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Chapter 12. The Sixth Circuit on Trial: The Columbus and Dayton School Cases on Appeal, June, 1977, to July, 1978
- University of Michigan Press
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Chapter 12 The Sixth Circuit on Trial: The Columbus and Dayton School Cases on Appeal, June, 1977, to July, 1978 On the Attack Judge Rubin read the news of the Supreme Court's June 27,1977, ruling in Dayton not only as a call to retreat but an invitation to scuttle the desegregation plan that had gone into effect the year before. He immediately convened a conference call among counsel to schedule a hearing to ascertain whether plaintiffs had any additional evidence. Lucas received the call at his home in Memphis, where he was recuperating from minor surgery. He informed Rubin of his condition, his commitments at previously scheduled courtordered appearances in the Columbus, St. Louis, and Wilmington school cases throughout July, and the need to review the Supreme Court's opinion and fully prepare for any evidentiary hearing. Lucas also thought to himself that if it had taken almost four years of litigation to get a desegregation plan in Dayton, it ought to take more than a month to end it. Over the phone, however, Lucas only described how his reading of early newspaper accounts of the decision suggested that the hearing contemplated by the Supreme Court was not a foregone conclusion and that the desegregation plan would in all probability have to remain in effect at least for the coming school year. Rubin pressed for an expedited hearing because he saw no reason to bus for another year if it would not be required thereafter. By suggesting that further debate over a ruling that no one had yet read made little sense, Lucas cut the conversation short. Rubin agreed to another conference call for Friday, July 1. On the next call, Judge Rubin reiterated his desire to hold the hearing and make his determination before the opening of school. He offered to hold any hearing in Memphis at any time to fit with Lucas's medical and scheduling problems. Lucas reiterated his view that a complete review of the existing record and further discovery were required to prepare for the hearing contemplated by the Supreme Court remand. Rubin resisted and instructed Lucas to file a statement concerning why any hearing should be delayed. On July 5 Lucas submitted his "Report to the Court." The "Report" described the substance of the two conference calls; it left no doubt that in plaintiffs' view Rubin had prejudged the issues left open by the Supreme 258 Sixth Circuit on Trial 259 Court's remand. On the same day Lucas called me to draft an application to the Sixth Circuit to stay any order that Rubin might issue dismantling desegregation . On July 18, Judge Rubin reiterated his intention to rule before the fall semester and scheduled a hearing for August 8. Lucas appeared at the August 8 hearing but only to argue for delay, not to present evidence. He stated that he needed until October to review the record and to interview witnesses for possible supplementation. In particular, Lucas cited the several offers of proof excluded by Judge Rubin at the first hearing concerning the critical issue of intent. Rubin claimed to have "no such independent recollection" of excluding such evidence but added, "Mr. Lucas, I will accept your professional word. " Lucas also noted that many of Lamson's maps and overlays had been lost by the court clerk during the various appeals; time was needed for preparation of new exhibits. Finally, Lucas argued that the Supreme Court had, in effect, cautioned the parties and the lower court "to take your time" in order to do it right this time around. Rubin retorted, "Mr. Lucas, I am astonished to hear a plaintiff in this type of case use the phrase 'take your time. ' " Rubin then engaged Lucas in a debate over the relative merits of "busing," desegregation, and segregation. The judge suggested that the courts might be wasting the taxpayers' money for no reason if busing continued another year. Dave Greer, the board's attorney, responded by noting sarcastically that "October 1, coincidentally, would be just after the opening of another school year under the racial balance plan." Greer was relentless. As Lucas had offered no additional evidence, Greer argued that the case should be dismissed . The trial court had already found the basic facts in the board's favor. The only conceivable issue remaining was whether a few isolated optional zones were created with discriminatory intent and whether they had any current segregative impact years later; surely such trivial violations could not...