Petition — Pasadena City Board of Education v. Spangler

Supreme Cnort, i. &

FILED

JUL 30 1975

MICHAEL BOBAK, JR_CLERK

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1975.

Ne. 785-164

PASADENA CITY BOARD OF EDUCATION, ET AL.,

Petitioners,

vs.

NANCY ANNE SPANGLER, ET AL.,

Respondents,

and

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT.

LEE G. PAUL,

PETER D. COLLISON,

ROBERT G. LANE,

PAUL, HASTINGS, JANOFSKY & WALKER,

555 South Flower Street,

Los Angeles, California 90017,

Attorneys for Petitioners.

PHILIP B. KURLAND,

ALAN L. UNIKEL,

ROTHSCHILD, BARRY & MYERS,

Two First National Plaza,

Chicago, Illinois 60603,

(312/372-2345),

Of Counsel.

Gunthorp-Warren Printing Company, Chicago e Financial 66565

nal ee eo

TABLE OF CONTENTS.

PAGE

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PN sh Kh sd coed cen Skt aan ees Seeaed kel oe ks 2

Se IN 6G Gn.c6 uc G55 cba eee GN wea oVbee- 2

Constitutional Provision Involved.................... 2

SED bc.40 ecu aaawkedsdadonsébsd du endddseeces 3

Te GD CN oe Sb ve Gein cece asiccecees oe

i EY Go OCi Nig whkoh cvesdececs eu 4

III. The Action Under Review Here.............. 6

A. The “No Majority of Any Minority” Ruling... 6

B. Continuing Jurisdiction of District Court.... 7

Se . Tee BD GIN on bien ccnesiccuses 8

Reasons for Granting the Writ.....................- 9

I. The Issues Raised Herein Are Basic to the Admin-

istration by Federal Courts of School Desegregation

Plans. They Are in Need of Authoritative Determi-

nation by this Court, Especially in Light of the

Patent and Widespread Failure of Existing Plans

Either to Effectuate Desegregation or to Afford

Adequate Educational Opportunity to Minorities... 9

II. The Decision Below Imposed a Permanent Obliga-

tion of “Racial Balance” on Every School in the

Pasadena System. That Decision Is Inconsistent

with This Court’s Ruling in Swann............ 11

III. The Decision Below Held That a School Board

That Has Operated a Unitary System for Four

Years May Not Be Relieved of the Desegregation

Injunction and Freed from Further Judicial Super-

vision Because of Minor Variances Occurring After

Racial Balance for All Schools Had Been Achieved,

Although the Resulting Variances Were Due to

Demographic Changes Unrelated to Any School

Board Actions. That Decision Is Inconsistent with

This Court’s Opinion in Swann............... 12

ii

IV. The Courts Below Rejected Petitioners’ “Alterna-

tive Plan” Because: (1) It Contained an Element

of “Freedom of Choice” and (2) It Would not

Maintain the Strict Racial Balance for Each School

in the System, Demanded by the Existent Plan.

That Decision Is Inconsistent with Swann and a

Misconstruction Of Green .......cccccseccees 14

CD <6 oc cb.cb a 6a ced eed Cnesccoveccosescoses 16

Appendix A: Opinions of the Court of Appeals ........ Al

Appendix B: Summary of Alternative Plan............ A34

TABLE OF CASES AND OTHER CITATIONS.

Cases.

Green v. County School Board, 391 U. S. 430 (1968)... 15

Spangler v. Pasadena City Board of Education, 375

F. Supp. 1304 (CD Calif. 1975) .............000es 1

Spangler v. Pasadena City Board of Education, 311

P. Be GRP UED ce ccccvccsccconcvossecvess 2,3

Swann v. Charlotte-Mecklenburg Board of Education, 402

TB 8 GURGED cvccvccvesuccocs 3, 10, 11, 12, 13, 14, 15

Other Citations.

Busing: Integrationists Now Have Their Doubts, N. Y.

, © F fF See eee ee reer 10

Coleman, Kelly & Moore, Recent Trends in School Edu-

POT TT TET TTT TTT TTT Te 9

Jencks, Inequality: A Reassessment of the Effect of

Family and Schooling in America (1972)........... 9

Rescinding a California Busing Order, N. Y. Times, 22

SE GU 6:0 4% oF 00060 650000600 400000 000060008 10

School Integration Drive Eases in South, N. Y. Times, 29

DC .6deiuas dune a6 obeneessuten 6 6eee 10

IN THE

Supreme Court of the Gnited States

OcTOBER TERM, 1975.

No. 75-

PASADENA CITY BOARD OF EDUCATION, ET AL.,

Petitioners,

VS.

NANCY ANNE SPANGLER, ET AL.,

Respondents,

and

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT.

Petitioners pray that a writ of certiorari issue to review the

judgment of the Court of Appeals for the Ninth Circuit, entered

on 5 May 1975, in the above-entitled action.

OPINIONS BELOW.

The opinions of the Court of Appeals for the Ninth Circuit

are unreported. They are reproduced as Appendix A to this

petition. The opinion of the United States District Court for the

Central District of California is reported at 375 F. Supp. 1304.

2

An ea.lier decision of the District Court in this litigation is

reported at 311 F. Supp. 501.

JURISDICTION.

The opinions and judgment of the Court of Appeals were

entered on 5 May 1975. The jurisdiction of this Court is

invoked pursuant to 28 U. S. C. § 1254(1).

QUESTIONS PRESENTED.

1. Is a judicial decree valid which requires a fixed racial

balance for all schools within a school system?

2. Is a school system required to amend its judicially

validated desegregation plan to accommodate for annual demo-

graphic changes for which the school system is in no way

responsible?

4. Must a unitary school system which has been in com-

pliance with a school desegregation decree for four years remain

subject indefinitely to the control of the trial court which entered

the decree?

4. Does a decree imposing racial balance preclude a school

board from acting to prevent the school system from becoming

an all-minority school system?

5. Does the inclusion of a “freedom of choice” element in a

proposed desegrefation plan make it invalid per se?

CONSTITUTIONAL PROVISION INVOLVED.

“No State shall . . . deny to any person within its jurisdiction

the equal protection of the laws.” United States Constitution,

Amendment XIV, § 1.

STATEMENT.

I. The Original Decree.

In January, 1970, the District Court for the Central District

of California, entered a decree enjoining the Pasadena City

Board of Education (Petitioners) “from discriminating on the

basis of race in the operation of the Pasadena Unified School

District.” Spangler v. Pasadena City Board of Education, 311 F.

Supp. 501, 505 (C. D. Calif. 1970). Essentially the findings

of violations were based not so much on affirmative acts of segre-

gation by Petitioners, as on their failure to act to prevent “racial

imbalance.” For the District Court of the Central District of

California: “Racial segregation and racial imbalance are two

names for the same phenomenon, racial separation. The terms

are used interchangeably throughout these findings and conclu-

sions.” Id. at 506, n. 4. This confusion of racial imbalance and

racial segregation is, in large measure, responsible for the basic

errors committed by the courts below. The district court de-

cision was rendered before the judgment of this Court, in Swann

v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1

(1971), where it was made abundantly clear that “racial im-

balance” and “desegregation” are not alternative descriptions

of “the same phenomenon.”

The trial court's 1970 judgment required the Board “to

prepare and adopt a plan to correct racial imbalance at all

levels.” Id. at 505. And further: “The plan shall provide for

student assignments in such a manner that, by or before the

beginning of the school year that commences in September, 1970

there shall be no school in the District, elementary or junior high

or senior high school, with a majority of any minority students.”

Ibid. There is nothing in the language of this judgment to

suggest that the racial balance required by the order was to be

effective in perpetuity.

—_e

4

There is no question that the plan effectuated in the Pasadena

Unified School District, which is made up of the city of Pasadena,

the city of Sierra Madre, the town of Altadena, and portions of

Los Angeles county, complied with the requirements of the

order. The 1970 plan divided the school district into four

ethnically balanced areas. Within each of these divisions, stv-

dents were assigned to schools in a fashion assuring that no

racial or ethnic minority made up a majority of any school in

the system. This was accomplished in large measure by the

utilization of extensive crosstown busing.

II. Post-Decree Events.

The plan that was instituted in 1970 has been adhered to by

the Board since that time. In the interim, however, there have

been demographic changes within the school district. The school

population at the time of the framing of the plan was 17,859

whites, 9,173 blacks, and 3,590 other minorities. By the time

of the trial from which review of the judgment is sought here,

the school population was 11,188 whites, a decrease of 37.4%;

10,155 blacks, an increase of 10.7% ; and 4,711 other minorities,

an increase of 31.4%.

Petitioners contended that the cause of the decline in the

white school population was “white flight.” Respondents and

the courts below asserted that the diminution of the white student

population was simply a reflection of a statewide—if not national

—movement away from cities to the suburbs. (This despite the

fact thot the school system in question here is a suburban school

system. )

Whatever the cause of this demographic change, however,

there has been and can be ne attribution that it has been caused

by actions of the Petitioners. And, on either hypothesis, it

is agreed that the trend is expected to continue.

By reason of the changing school population and residential

movements within the school district, over the four-year period

in which the plan was in effect, a few of the thirty-five schools

5

in the system failed to maintain the standard of “no majority of

any minority” rule. As Judge Wallace said below (App. A26):

The injunction took effect in the fall of 1970. In October,

1970, no school had a majority Black enrollment. In

October, 1971, one out of the 35 regular schools in the

district had a majority Black enrollment (51.9%). In

October, 1972, four schools were in violation with Black

enrollments of 53.9% , 53.4%, 53.0% and 50.1%. Finally,

in October, 1973, five schools failed to comply, with Black

enrollments of 60.2%, 56.8%, 55.3%, 52.9%, and

51.3%. Thus, over the four-year period that the injunction

has been in effect, only one school has had a Black enroll-

ment exceeding 60% and only two have had an enrollmert

exceeding 55%, all in the most recent school year. During

that time, the percentage Black enrollment in the district

as a whole has increased from 32.8% (in October, 1970)

to 40.0% (in October, 1973). Although the cause of this

increase was disputed in the district court, see Spangler v.

Pasadena City Board of Education, 375 F. Supp. 1304,

1306, 1307-8 (C. D. Cal. 1974), the increase itself, re-

gardless of its cause, makes deviations from the prescribed

quota both more difficult to avoid and less serious once

they occur.

The Board did not contribute to the variations caused by the

demographic changes in the school district. In fact, the Board

attempted to correct the very first deviation (Loma Alta School),

but without success because the “tipping” moved faster than the

Board could act. The action of the Board did serve, however,

to minimize the variations caused by the demographic changes.

Judge Wallace took note of the fact that the parties to this

litigation had stipulated that these variations did not constitute

a violation of the trial court order. The Judge said in footnote 4

to his opinion (App. A32, n. 4):

In addition, the significance of the district's violation of

the “no-majority of any minority” provision of the injunc-

tion should be judged in the light of the parties’ stipulation,

which was not simply that these violations are insignificant,

but that they never occurred. While this stipulation was not

binding upon the district court, it does indicate, how the .

6

parties interpreted the “no majority of any minority”

language in the injunction and whether the deviations are

evidence of persisting de jure segregation.

Ill. The Action Under Review Here.

In 1973, Petitioners brought the action which is the subject

of this Petition for Certiorari. Out of concern for diminishing

educational quality and out of fear that the Pasadena system

would, like that of the District of Columbia or Inglewood,

California, for example, become an “integrated” system with

almost nothing but minority students in attendance, Petitioners

asked the District Court: (1) to be relieved of the necessity for

annual revisions of the desegregation plan to assure the “no

majority of any minority” requirement as to every school in the

system; (2) to be relieved of further judicial supervision of the

school system, on the ground that the school system had become

and was a unitary school system for a period of four years; and

(3) in the alternative, to consider an “Alternative Plan” that

made provision for special “magnet” schools with freedom of

election by parents to have their children attend these special-

ized schools. The Alternative Plan is set out in full at 375

F. Supp. at 1309-12. It is summarized in Appendix B hereto,

which is taken from Petitioners’ brief in the Court of Appeals.

The courts below rejected each of the Petitioner’s requests and,

in so doing, ignored the proposed findings of fact and conclu-

sions of law that the trial court had requested from the Govern-

ment, as well as those submitted by Petitioners.

A. The “No Majority of Any Minority” Ruling. On the

question of the requirement of “no majority of any minority,”

the trial judge was adamant. As Judge Wallace pointed out

below (App. A25):

The district judge interpreted the injunction to require

“that at least during my lifetime there should be no

majority of any minority in any school in Pasadena.” All

of us disapprove of this statement but Judge Ely minimizes

its significance. Although the district judge made this

7

comment in announcing his decision from the bench, he

did not depart from it in his published opinion. He allowed

only impossibility of compliance as a reason for dissolving

or suspending the prohibition against majority enrollments

of minority students. So interpreted, the injunction trans-

forms racial balance from a means of remedying de jure

segregation into an end in itself, precisely contrary to the

principles expressed by the Supreme Court.

The Court of Appeals affirmed the District Court’s position,

Judge Ely found it valid; Judge Wallace, as indicated above,

found it invalid under this Court’s judgments. Judge Chambers,

who would have found it invalid on direct appeal from the

original order, was prepared to hold it valid but only for a

short period of time (App. A20):

I cannot go along with an order continuing, except for a

short time, beyond one more reassignment of pupils that

is found to be in compliance. Prospectively, I reject the

edict that there shall never be a particular school with a

“majority of any minority” or a majority of any minority

as long as “[the district judge] live[s].”

B. Continuing Jurisdiction of District Court. On the ques-

tion of relieving the Petitioners of further judicial supervision,

the Court of Appeals again divided into three parts, resulting in

an affirmance of the trial judge’s decision. Judge Ely ruled that

the supervision could not be lifted because of the minor varia-

tions from what Judge Chambers and Judge Wallace believed

to be an invalid order. Because of these variances from the “no

majority of any minority rule,” Judge Ely held that the Peti-

tioners had not attained a unitary system and, therefore, the

school district must continue to be governed, not by the school

board, but by the district court, even though all the Board's

actions were deemed to have been taken in good faith (App.

Al6, n. 5).

Judge Chambers gave a strange reading to Judge Ely’s

opinion in order to be able to join that judgment (App. A21):

I interpret Judge Ely’s opinion as requiring a termina-

tion of the mandatory injunction within a very short time

after the school board again gets in compliance and I

think the message is clear to the district court.

Judge Wallace would have held that continued jurisdiction

was invalid as inconsistent with this Court’s judgments (App.

A28-29):

Since there is no substantive right to any particular racial

balance a perpetual injunction directed toward that goal

cannot be justified as a flexible remedy for past de jure

segregation. Note, 43 U. Cin. L. Rev. 922, 928 (1974).

The same test that determines whether the injunction

should be dissolved also determines whether jurisdiction

should be relinquished. Although the Supreme Court has

required that jurisdiction be retained “until it is clear that

disestablishment has been achieved,” Raney v. Board of

Educ. of the Gould School Dist., 391 U.S. 443, 449

(1968), that requirement is met if the school district

proves that de jure segregation has been abolished. Once

the school district has met this burden of proof, further

intervention by the court is justified only upon a showing

of new de jure segregation. Swann y. Charlotte-Mecklen-

burg Bd. of Educ., supra, 402 U.S. at 32 (dictum).

Because the burden of proof then returns to the plaintiffs,

they could just as well file a new action as file a petition

for relief in a court that possesses continuing jurisdiction.

In addition, because the injunction also is dissolved, juris-

diction need not be retained to supervise compliance.

Hence, continued jurisdiction serves no purpose after the

school district has shown that de jure segregation has been

eliminated.

C. The Alternative Plan. The third issue, whether an

alternative plan was valid, was, of course, relevant only if

petitioners’ first requests were properly rejected. Both the trial

court and Judge Ely held that the plan was invalid on its face

because it contained an element of “freedom of choice.”

Judge Chambers did not reach this question at all (App.

A21):

I do not reach the merits of any other plan. This should

be left to future adjudication in another case. I have some

9

doubt that one will find any de jure segregation after the

decree has been complied with again—if all that is done

is to let residence patterns shift by themselves.

Judge Wallace, too, would have left that question for future

litigation. Acknowledging the heavy burden of proof of any

alternative plan he wrote (App. A29-30):

The Board must show that the Alternative Plan is not

motivated by an intent to segregate and that there is no

present or foreseeable segregation which is attributable to

any intentionally segregative actions of the school district,

either those found in 1970 or any committed thereafter.

See Swann v. Charlotte-Meckienburg Bd. of Educ., supra,

402 U.S. at 26; Note, 88 Harv. L. Rev. 61, 67-69 (1974).

It is to this trifurcated judgment of the Court of Appeals for

the Ninth Circuit that this Petition for Certiorari is directed.

REASONS FOR GRANTING THE WRIT.

I. The Issues Raised Herein Are Basic to the Administration

by Federal Courts of School Desegregation Plans. They Are

in Need of Authoritative Determination by This Court,

Especially ii. Light of the Patent and Widespread Failure of

Existing Plans Either to Effectuate Desegregation or to

Afford Adequate Educational Opportunity to Minorities.

The federal courts, in their constitutionally mandated duty

to effect desegregation of the public schools of the nation, have

behaved laudably but, frequently, ineffectually. That there is a

great lack of success in accomplishing either the goals of

desegregation or improved educational opportunities cannot be

gainsaid. Scholars have documented these failures. See, e.g.,

Jencks, Inequality: A Reassessment of the Effect of Family and

Schooling in America (1972); Coleman, Kelly & Moore, Recent

Trends in School Education (mimeo. 1975). The daily news-

papers reveal that, in city after city, desegregation orders have

been followed by (1) a major and continued reduction of the

number of white students within the system; (2) a continual ©

10

reduction in educational achievement in these schools; and

(3) the disillusionment and frustration of parents, both black

and white, with the unsuccessful efforts of the courts to resolve

the school segregation problem and in apparent disregard of the

baleful effects on student education. See, e.g., Busing: Integra-

tionists Now Have Their Doubts, N. Y. Times, 22 June 1975,

§ E, p. 16, col. 1; Rescinding a California Busing Order, id.,

p. 6, col. 2; School Integration Drive Eases in South, N. Y.

Times, 29 June 1975, p. 1, col. 4.

None of this, of course, suggests that the federal courts should

withdraw from the duty of effectuating the commands of the

Fourteenth Amendment. It does suggest, however, the invalidity

of the commitment of the lower federal courts, like those below,

to a rigid formula of specified racial balance to be accomplished

by extensive busing. A remedy that does not work, however

constitutional it may be, does not effect the constitutional man-

date for desegregation. Yet, as this case demonstrates, lower

federal courts have obdurately refused to consider any alterna-

tive to their Procustean plans calling for racial balance as the

end and busing as the means. The federal courts’ patterns are

inconsistent with this Court’s rulings.

The lower courts, erroneously certainly, have found their

justification for these rigid orders in this Court's decision in

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U. S. 1

(1971). Until this Court reestablishes its ruling in Swann that

racial balance is a proper factor for consideration but not a

constitutional goal and that busing is a permitted but not a

compulsory means, federal court desegregation plans will con-

tinue to result in chaotic school conditions. Contrary to the

views of some federal judges, the purpose of a desegregation

decree is not punishment but cure. This case, with its obvious

inconsistencies with this Court’s ruling in Swann, calls on this

Court for the elucidation of the proper principles that should

govern in this case as well as the myraid of others where

similar errors are being committed.

oo

11

II. The Decision Below Imposed a Permanent Obligation of

“Racial Balance” on Every School in the Pasadena System.

That Decision Is Inconsistent with This Court’s Ruling in

Swann.

The trial court in the Swann case had ordered “that pupils of

all grades [should] be assigned in such a way that as nearly as

practicable the various schools at various grade levels have

about the same population of black and white students.” Quoted,

402 U. S. at 23. This stance evoked from this Court the guiding

principle that the courts below in this case have rejected (id. at

23-24):

The District Judge went on to acknowledge that variation

“from that norm may be unavoidable.” This contains intima-

tions that the “norm” is a fixed mathematical racial balance

reflecting the pupil constituency of the system. If we were

to read the holding of the District Court to require, as a

matter of substantive constitutional right, any particular

degree of racial balance or mixing, that approach would be

disapproved and we would be obliged to reverse. The con-

stitutional command to desegregate schools does not mean

that every school in every community must always reflect

the racial composition of the school system as a whole.

Yet, that is exactly the way the trial court in this case has

read “the consitutional command.” For it, as it plainly stated,

racial balance and desegregation were merely different words

for the same concept.

It is possible, to construe the original decree in this case, the

way this Court construed the trial court decree in Swann, “as no

more than a starting point in the process of shaping a remedy,

rather than an inflexible requirement.” 402 U. S. at 25. Indeed,

it is apparent that this was the way that it was read by the

parties to this controversy and explains the stipulation of all the

parties that, although there had been some variations from the

“no majority of any minority” rule, there had been no violations

of the decree. But this reading was rejected by the trial court and |

12

by the Court of Appeals in favor of an interpretation that the

mathematical formula was indeed not “a starting point” but

rather “an inflexible requirement.”

By this Court’s standards then, since the lower courts did

“require, as a matter of substantive consitutional right [a] par-

ticular degree of racial balancing or mixing,” it follows that this

“approach [shlould be disapproved” and that this Court is

“obliged to reverse” the judgment below.

Ill. The Decision Below Held That a School Board That Has

Operated a Unitary School System for Four Years May Not

Be Relieved of the Desegregation Injunction and Freed

From Further Judicial Supervision Because of Minor Vari-

ances Occurring After Racial Balance for All Schools Had

Been Achieved, Although the Resulting Variances Were

Due to Demographic Changes Unrelated to Any School

Board Actions. That Decision Is Inconsistent with This

Court’s Opinion in Swann.

The question how long a school system must remain wider the

control and direction of a federal district court after that system

has achieved a unitary status remains unresolved by this Court.

The Court of Appeals so acknowledged (App. A15), n. 1):

We note that one of the basic legal issues presented by

this appeal, the question of when and under what circum-

stances a school district may compel a federal district court

to relinquish jurisdiction and end its supervision, has not

yet been directly addressed by any Court of Appeal [sic]

or by the United States Supreme Court.

Certainly that is an important question that will be pressing

on this Court for adjudication in light of the large number of

school district that have been under judicial control for so long.

Direction of an authoritative kind is required.

This Court, has, however, made it clear that the reason given

by the lower courts in this case for their refusal to discharge the

13

school board from supervision is an invalid one. There is no

question that the Petitioners conformed to the trial court’s

order to disestablish an allegedly dual school system and replace

it with a unitary system. There is no doubt that the unitary

system has been maintained for the entire period since the order

was instituted, except that the lower courts assert that the few

variations from “no majority of any minority” rule constituted

violations. The requirement of such a rule is, however, as already

shown, an invalid one under this Court’s ruling in Swann. More-

over, such variations as did occur were admittedly not the result

of any school board action, but the result of demographic

changes not attributable to the school board. Swann also made

it clear that such variations cannot afford a basis either for

holding that the unitary system had not been attained or for

rejecting Petitioners’ claim to be relieved of further direct control

by the district court.

In Swann, this Court said (402 U. S. at 31-32):

At some point, these school authorities and others like

them should have achieved full compliance with this Court’s

decision in Brown I. The systems would then be “unitary”

in the sense required by our decisions in Green and

Alexander.

It does not follow that the communities served by such

systems will remain demographically stable, for in a grow-

ing, mobile society, few will do so. Neither school authorities

nor district courts are constitutionally required to make

year-by-year adjustments of the racial composition of stu-

dent bodies once the affirmative duty to desegregate has

been accomplished and racial discrimination through

official action is eliminated from the system. This does not

mean that federal courts are without power to deal with

future problems; but in the absence of a showing that

either the school authorities or some other agency of the

State has deliberately attempted to fix or alter demographic

patterns to affect the racial composition of the schools,

further intervention by a district court should not be

necessary.

14

It is clear, therefore, that the reliance of the lower courts on

the demographic changes that resulted in minor variations from

the “no majority of any minority” order in five of the thirty-five

schools in the system cannot afford a basis for refusing to release

control over the school board in this case.

IV. The Courts Below Rejected Petitioners’ “Alternative Plan”

Because: (1) it Contained an Element of “Freedom of

Choice” and (2) It Would Not Maintain the Strict Racial

Balance for Each School in the System Demanded by the

Existent Plan. That Decision Is Inconsistent with Swann

and a Misconstruction of Green.

The lower courts here found the proposed Alternative Plan

improper on two grounds, both erroneous and both inconsistent

with this Court’s decisions. One was that the Alternative Plan

did not include a continuing mandate for the “no majority of

any minority” rule for each school in the system. The trial court

pointed out that under the Alternative Plan, eight of the thirty-

five schools in the system, could have black majorities of

60%. 375 F. Supp. at 1307, n. 9. But, as we have already

shown, the “no majority of any minority” rule was an invalid

command of racial balance. It can hardly be said that, with a

black school population of 40% and a white school population

of 44%, and with a recognized tre J toward an increasing

black school population, a deviation from the strict racial

balance of eight schools because of a 60% black population

would make the school system a dual system rather than a

unitary one. Swann itself certainly tolerated far greater aberra-

tions from the overall ratio than that which would be effected

by the Alternative Plan here. Swann upheld, in a district where

the school populations were 71% white and 29% black, a plan

that called for schools with 91% white population and others

with a 38% black population. 402 U. S. at 9. The Court

acknowledged in Swann that even plans with one-race schools

were not per se invalid. “In light of the above, it should be clear

15

that the existence of some small number of one-race, or virtually

one-race, schools within a district is not of itself the mark of a

system that still practices segregation.” 402 U. S. at 26.

The second reason for rejecting the Alternative Plan was that

it contains an element, if only an element, of “freedom of

choice,” which the lower courts read to be barred by Green v.

County School Board, 391 U. S. 430 (1968).

The fact is, of course, that Green did not invalidate “freedom

of choice” per se. “We do not hold that ‘freedom of choice’ can

have no place in such a plan [i.e., a plan to convert a dual

system into a unitary system]. We do not hold that a ‘freedom-

of-choice’ plan might of itself be unconstitutional, although that

argument has been urged upon us. Rather, all we decide today

is that in desegregating a dual school system a plan utilizing

‘freedom of choice’ is not an end in itself.” 391 U. S. at

439-40.

The Court went on to quote from Judge Sobeloff that “ ‘free-

dom of choice’ is not a sacred talisman; it is only a means to a

constitutionally required end, the abolition of a system of seg-

regation and its effects.” Jd. at 440. Thus, the Court held in

Green, that “freedom of choice” is not a talismanic phrase that

either validates or invalidates a plan: “[T]here may well be

instances in which it can serve as an effective device.” Ibid.

Swann reiterated this position: “[A] freedom of choice concept

could well be a valid remedial measure in some circumstances.”

401 U. S. at 13.

Thus, what the courts below, in their rush to reject the

Alternative Plan, failed to recognize was: (1) Green did

not bar the utilization of freedom of choice elements in all

situations; (2) in Green, the freedom of choice concept consti-

tuted the entire plan, whereas in this case it is only one element

of the plan; (3) in Green the utilization of freedom of choice

was held ineffective to bring about a unitary system, while here

there is already a unitary system and the freedom of choice

16

element is sought to be used only as a part of a plan to prevent

resegregation.

The advantages and disadvantages of the Alternative Plan

are, of course, subject to amendments after due consideration

by the courts. But the reasons utilized by the lower courts to

reject the Alternative Plan in its entirety were plainly incon-

sistent with the rulings of this Court.

CONCLUSION.

The issues raised herein call for adjudication by this Court

both because they are of fundamental and nationwide impor-

tance to the administration by the federal courts of desegrega-

tion plans and because the judgment below is patently incon-

sistent with the rulings of this Court. The petition for a writ of

certiorari should be granted.

Respectfully submitted,

LEE G. PAUL,

PETER D. COLLISON,

ROBERT G. LANE,

PAUL, HASTINGS, JANOFSKY & WALKER,

555 South Flower Street,

Los Angeles, California 90017,

Attorneys for Petitioners.

PHILIP B. KURLAND,

ALAN L. UNIKEL,

ROTHSCHILD, BARRY & MYERS,

Two First National Plaza,

Chicago, Illinois 60603,

(312/372-2345),

Of Counsel.

Al

APPENDIX A.

OPINION.

UNITED STATES COURT OF APPEALS

For the Ninth Circuit.

NaNCY ANNE SPANGLER, by her father )

and next friend, James E. SPANG-

LER, Jr., JupITH R. CLERKE, by

her father and next friend, WILTON

A. CLERKE, and VIVION ROSTKER,

by her father and next friend, SkiP-

PER RostkeER, for herself individu-

ally and all others similarly situated.

Plaintiffs-A ppellees,

and

UNITED STATES OF AMERICA,

Plaintiff-Intervenor-A ppellee,

| No. 74-2116

vs.

PASADENA CITY BOARD OF EDUCA-

TION, and BRADFORD C. HOUSER,

JOHN T. WELSH and STEVE SALISAN,

individually and as Members of the

Pasadena City Board of Education,

Defendants-A ppellants. J

Appeal from the United States District Court

for the Central District of California.

Before: CHAMBERS, ELy and WALLACE, Circuit Judges.

ELy, Circuit Judge:

The appellants, Pasadena [California] City Board of Educa-

tion (hereafter Board) and some of its officials, individually,

A2

appeal from an Order of the District Court, reported at 375

F. Supp. 1304 (C. D. Cal. 1974), which denied the Board's

motions for: (1) relief from the District Court’s Order of

January 23, 1970, requiring the desegregation of the Pasadena

public schools and the District Court’s Order of March 10,

1970, which approved the then Board’s Pasadena Plan for

desegregation; (2) dissolution of the District Court’s injunction

requiring that there be no school in the School District with a

majority of its enrollment composed of students of a minority

race; (3) termination of the District Court’s continuing jurisdic-

tion of the case; and (4) alternatively, for permission to modify

the Pasadena Plan ordered by the court by substituting a so-

called Alternative Plan.’

It is important at the outset to underscore the narrow ambit

of our review, a constriction resulting fron the procedural

posture in which this appeal is before our court. Neither the

Pasadena Plan itself nor the District Court’s January 23, 1970,

and March 10, 1970, Orders directing the implementation

of the plan are here on direct appeal. Nor are we concerned with

the correctness of the District Court’s original decision in

Spangler v. Pasadena City Board of Education, 311 F. Supp.

501 (C. D. Cal. 1970), and the conclusions drawn thercin. The

only question before us now is whether the District Court

erred in its determination, in denying appellants’ 1974 motions,

that events and circumstances occurring and existing in Pasadena

since the Pasadena Plan was ordered implemented do not

justify relief from the January 23, 1970, Decree, relinquishment

of the court’s continuing jurisdiction over the Board, or the

substitution of a substantial alteration of the original Pasadena

Plan.

I. Procedural History and Factual Background.

This action was originally instituted on August 28, 1968,

by certain Pasadena public school children and their parents as

a class action against the Pasadena City Board of Education

A3

of the Pasadena Unified School District and certain officials

thereof, seeking injunctive relief from alleged unconstitutional

segregation of its public schools. The United States Govern-

ment, also endeavoring to eliminate the discrimination, was per-

mitted to intervene as a party plaintiff on December 4, 1968.

On January 23, 1970, after a nine-day trial, the District Court

entered its Decree, enjoining the Board and the Superintendent

of Schools “from discriminating on the basis of race in the

operation of the Pasadena Unified School District.” Spangler v.

Pasadena City Board of Education, 311 F. Supp. 501, 505

(C. D. Cal. 1970). The court required the Board “. . . to

prepare and adopt a plan to correct racial imbalance at all

levels,” and further directed that “[t]he plan shall provide for

student assignments in such a manner that, by or before the

beginning of the school year that commences in September of

1970 there shall be no school in the District, elementary or

junior high or senior high school, with a majority of any minority

students.” 311 F. Supp. 501 at 505.?

In support of the 1970 Decree from which the appellants

now seek relief, the District Court found that the Board had

adopted a neighborhood school policy and a policy against

forced crosstown busing which resulted “in racial imbalance

and increasing racial imbalance.” Jd. at 506. Among the facts

supporting the court’s conclusion that the Board’s policy violated

the Fourteenth Amendment were findings that: (1) in numerous

instances the Board changed attendance areas, changes having

the net effect of increasing the percentage of blacks in schools

that were already “black” and, correspondingly, increasing the

percentage of whites in “white” schools, (Jd. at 506-509); (2)

the Board had consistently rejected proposals from its super-

intendent, citizens’ committees, and other Board members that

would result in significantly more racial integration, (Jd. at

510); (3) the Board “used transportation provided at school

district expense to make it possible for white children to avoid

attending schools with greater percentages of black students

A4

enrolled than in the District as a whole”, (/d. at 512); (4) very

few black teachers were hired and most were assigned to schools

with majority black enrollment (/d. at 513-516); (5) there was

discrimination in the hiring and promotion of black administra-

tors, (/d. at 516); (6) the Board placed transportable class-

rooms at black schools to accommodate over-enrollment at

those schools while adjoining white schools had fewer trans-

portables or none at all, (/d. at 518); and (7) the Board granted

transfers “which it knew or should have known were wholly

or at least in part motivated by racial considerations, including

baseless trarsfers that had the effect of intensifying racial

segregation in the Pasadena schools”, (/d. at 520). Additionally,

the court found that during the 1969-70 school year, 85 percent

of the District’s black elementary school students attended the

eight majority black elementary schools, while 93 percent

of its white elementary students attended the remaining 21

elementary schools, (/d. at 507).

Pursuant to the court’s Decree a comprehensive-desegregation

plan (commonly called the “Pasadena Plan”) was formulated

by a task force consisting of various employees of the Pasadena

Unified School District, under the direction of the Superintendent

of Schools. The Pasadena Unified School District, although

relatively small geographically, includes the city of Pasadena,

the city of Sierra Madre, the town of Altadena, and various

portions of Los Angeles County. Under the Pasadena Plan,

as approved by the District Court on March 10, 1970, ‘he

District was divided into four ethnically balanced areas. Students

are assigned to the schools in the area of their residence “in such

a way as to develop an ethnic balance in each school”, while

retaining at the elementary level the concept of the neighbor-

hood school by permitting students to walk to a nearby school

for part of their elementary schooling and be transported as a

neighborhood to another school” for the remainder. The plan

created primary schools covering grades kindergarten through

third (K-3) and elementary schools covering the fourth through

AS

sixth (4-6) grades to replace the old concept of the neighbor-

hood school encompassing kindergarten through the sixth grade

(K-6). The plan altered the secondary school structure by shift-

ing the ninth grade from the junior high schools to the senior

high schools. Ethnically balanced secondary school attendance

zones were drawn in a fashion that prevented any secondary

school from having a “majority of any minority students.” The

plan provided for transportation for all students who attend

school outside their normal areas, and students were permitted

to transfer from their assigned schools to other schools in cases

of “urgent hardship” involving considerations of curriculum,

family circumstances, or medical-psychological factors.

At the commencement of the 1970-71 school year the Pasa-

dena Plan was implemented, and it has ostensibly remained in

effect since that time. On January 15, 1974, the motion which is

the subject of this appeal was filed by the Board, now having

a majority of newly elected members. A hearing on the motion

was conducted on February 25, 26, 27 and March 1, 1974.

On May 15, 1974, the District Court entered its opinion and

order denying appellants’ motion in its entirety. The District

Court refused the requested relief from its Order of January

23, 1970, in view of the opposition which the Pasadena Plan

had encountered and the fact that beginning in 1971, only a

few months after the supposed implementation of the original

plan, the District had violated the “no majority of any minority”

portion of the injunction. By the time of the hearing in March,

1974, five Pasadena schools were operating in violation of the

no majority of any minority portion of the court’s injunction.’

Spangler v. Pasadena City Board of Education, 375 F. Supp.

1304, 1306 (C. D. Cal. 1974). The court further found that

the Pasadena Plan had not been accorded such cooperation from

the Board as would permit an assessment of its educational

success or failure, (/d. at 1308); that the decline in white

enrollment relative to total enrollment in Pasadena Schools

since 1970 was not caused by the desegregation Order, since

A6

the decline closely approximated state-wide trends in California,

(Id. at 1306); that the Alternative Plan was essentially a

freedom of choice plan like those which had failed to desegre-

gate Pasadena schools in the past, (/d. at 1311); and that it

was unrealistic to believe that parents who fled the district

because their children were forced to attend school with black

children would now voluntarily choose that alternative under the

Alternative Plan, (/d. at 1308).

II. Relief from the Order of January 23, 1970 and Dissolution

of the “No Majority of a Minority” Injunction.

It has long been established that in fashioning and effectuating

school desegregation decrees, the courts are to be guided by

traditional equitable principles. Brown v. Board of Education,

349 U. S. 294, 299-300 (1955) (Brown II). “... [A] school

desegregation case does not differ fundamentally from other

cases involving the framing of equitable remedies to repair the

denial of a constitutional right.” Swann v. Charlotte-Mecklen-

burg Board of Education, 402 U. S. 1, 15-16 (1971). “Once a

right and a violation have been shown, the scope of a district

court’s equitable powers to remedy past wrongs is broad, for

breadth and flexibility are inherent in equitable remedies” Swann,

supra at 15. It is also firmly established that a federal court

which has imposed an injunction also retains the power to sus-

pend or modify it. System Federation v. Wright, 364 U. S. 642,

646-7 (1961); United States v. Swift & Co., 286 U.S. 106, 114

(1932). The oft-quoted test for determining whether enough

has been shown to justify the exercise of this power is whether

there has been a change in conditions that is “so important that

dangers, once substantial, have become attenuated to a shadow.”

Swift, supra, 286 U. S. at 119 (Cardozo, J.). The question is

whether modification cr dissolution can be made “without

prejudice to the interests of the classes whom this particular

restraint was intended to protect.” Swift, supra, 286 U. S. at

118 (Cardozo, J.); or whether changed circumstances have

A7

rendered the injunction “an instrument of wrong.” Lubben v.

Selective Service System Local Board No. 27, 453 F. 2d 645,

651 (2nd Cir. 1972). We further note that in making our

determination as to whether the District Court abused its

“broad” equitable powers by concluding that changed circum-

stances since 1970 have not attenuated the dangers present at

that time “to a shadow”, we are compelled to apply the clearly

erroneous test to the trial judge’s resolution of the factual issues

raised by conflicting evidence bearing on the question of changed

conditions. Fed. R. Civ. P. 52(a); United States v. Texas Ed.

Agency, 459 F. 2d 600 (Sth Cir. 1972). Craggett v. Board of

Education of Cleveland City School District, Cuyahoga County,

Ohio, 338 F. 2d 941 (6th Cir. 1964).

Applying the above standards to the case at hand, it would

constitute an abuse of our power to hold that the District Court

was clearly erroneous in finding that the appellants did not

establish such a sufficient change in conditions as would require

the court, in the exercise of its discretionary equitable powers,

to modify or dissolve its earlier Decree. Accordingly, we affirm

the court’s denial of the appellants’ motion insofar as that motion

sought relief from the Orders of January 23 and March 10,

1970, and dissolution of the injunction requiring that there be

no school in Pasadena wherein the student body consisted of a

majority of a minority race. A careful review of the record

reveals abundant evidence upon which the district judge, in the

reasonable exercise of his discretion, could rightly determine that

the “dangers” which induced the original determination of

constitutional infringement in Pasadena have not diminished

sufficiently to require modification or dissolution of the original

Order. The Pasadena Unified School District has failed to com-

ply with the “no majority of any minority” provision during

three of the four years in which the Pasadena Plan has, pursuant

to court order, supposed to have been in full effect and opera-

tion.‘ In its motion to disolve the original injunction, the present

Board has also sought the approval of a plan of the “freedom

A8

of choice” variety which would very likely result in rapid resegre-

gation. A majority of the members of the preent Pasadena City

Board of Education ran for election principally on a platform

which urged “stop forced busing of students and return them to

their neighborhood school.”® It was against this background that

the District Court concluded that to dissolve the court’s “no

majority of any minority” injunction would “surely be to sign

the death warrant of the Pasadena Plan and its objectives.”

Spangler v. Pasadena City Board of Education, 375 F. Supp.

1304, 1309 (C. D. Cal. 1974).

In support of their position that circumstances have signifi-

cantly changed, appellants contended that the Pasadena Plan

was responsible for a substantial portion of the “white flight”

phenomenon that has occurred since the implementation of the

plan. When the Pasadena Plan was first approved by the District

Court, Caucasian students constituted a majority of the School

District's enrollment (58.3 percent). At present Caucasians

constitute a plurality of only 44.0 percent. The District Court

rejected the appellants’ contention on the basis of evidence that

the trends in Pasadena closely approximate the state-wide trends

in both segregated and desegregated California schools. More-

over, the Supreme Court has indicated that the existence of a

“white flight” phenomenon does not excuse a school system

from the constitutional duties imposed by Brown and its progeny.

When confronted with such a contention in Monroe v. Board of

Commissioners of the City of Jackson, Tennessee, 391 U.S. 450

(1968), the Supreme Court said: “[w]e are frankly told in the

Brief that without the transfer option it is apprehended that

white students will flee the school system altogether. ‘But it

should go without saying that the vitality of these constitutional

principles cannot be allowed to yield simply because of dis-

agreement with them.’ Brown II, at 300.” Id. at 459.

The appellants also asserted that the Pasadena Plan has

proved to be an educational failure because student performance

on certain standardized tests has declined, and the performance

<——

A9

of black students on the tests has continued to fall 30 percentage

points below that of white students. The Government's expert

testified that the appellants achievement charts should be

analyzed as a net gain for black students and that, under the

Pasadena Plan, the white students had not suffered academically

in relation to the national norms. Additional evidence was pre-

sented that under the existing Plan there have been few disci-

plinary problems and that the District has been able to imple-

ment a variety of innovative educational programs and alterna-

tives. In the light of this evidence the district judge resolved the

conflict against the appellants and refused to conclude that the

Pasadena Plan had been demonstrated to be an educational

failure.

The appellants have strongly urged that a constitutionally

unitary school system has been achieved in Pasadena under the

Plan and that the District Court was consequently required to

grant their motion because of the following dictum in the opinion

of the United States Supreme Court in Swann v. Charlotte-

Mecklenburg Board of Education, 402 U. S. 1, 31-2 (1971):

“At some point, these school authorities and others like

them should have achieved full compliance with this Court’s

decision in Brown I. The system would then be ‘unitary’ in

the sense required by our decisions in Green and Alexander.

“It does not follow that the communities served by such

systems will remain demographically stable, for in a grow-

ing, mobile society, few will do so. Neither school authori-

ties nor district courts are constitutionally required to make

year-by-year adjustments of the racial composition of stu-

dent bodies once the affirmative duty to desegregate has

been accomplished and racial discrimination through official

action is eliminated from the system. This does not mean

that federal courts are without power to deal with future

problems; but in the absence of a showing that either the

school authorities or some other agency of the State has

deliberately attempted to fix or alter demographic patterns

to affect the racial composition of the schools, further in-

tervention by a district court should not be necessary.”®

Al0

In the years since Brown v. Board of Education, 347 U. S.

483 (1954), the United States Supreme Court has consistently

held that if de jure’ school segregation is shown, there is “an

affirmative duty to take whatever steps might be necessary to

convert to a unitary system in which racial discrimination would

be eliminated root and branch.” Green v. County School Board,

391 U. S. 430, 437-8 (1968). See also, Milliken v. Bradley, 43

U. S. L. W. 3595 (1973); United States v. Scotland Neck

Board of Education, 407 U. S. 484 (1972); Swann v. Charlotte-

Mecklenburg Board of Education, 402 U. S. 1 (1971); Monroe

v. Board of Commissioners, 391 U. S. 443 (1968); Raney v.

Board of Education, 391 U.S. 443 (1968). “Having once found

a violation, the district judge or school authorities should make

every effort to achieve the greatest possible degree of actual

desegregation, taking into account the practicalities of the situa-

tion. . . . The measure of any desegregation plan is its effective-

ness.” Davis v. Board of School Commissioners, 402 VU. S. 33,

37 (1971). The obligation of every school district is to “ter-

minate dual school systems at once and to operate now and here-

after only unitary schools.” Alexander v. Board of Education,

396 U.S. 19, 20 (1969) (emphasis added). When viewed from

the perspective of this long line of Supreme Court authority, we

cannot conscientiously hold that the district judge abused his

broad equitable discretion in refusing to modify or dissolve his

Decree. His decision was primarily based upon his finding that

there had not been a full and genuine implementation of his

original Order such as would achieve the elimination of racial

discrimination “root and branch.” The directive of the dictum

in Swann by its very terms becomes operative “once the affirma-

tive duty to desegregate has been accomplished and racial dis-

crimination is eliminated from the system.” 402 U. S. 1, 31-32

(1971) (emphasis added). On the specific facts of this case as

revealed from the record and reiterated supra, it was reasonable

for the District Court to conclude that full and effective elimina-

tion of racial discrimination had not been achieved during the

roo et en neten sans

All

three school years following the initial year in which the Pasadena

Plan was in effect. If desegregation was “accomplished” or

“eliminated” after the implementation of the Pasadena Plan,

such was a transitory and temporary achievement, enduring for

a period of the utmost brevity.*

We think it clear, however, that Swann indicates that annual

readjustment is not necessary once a court has determined that

there has been a full and genuine implementation which has

eliminated, with some anticipated permanence, racial discrimina-

tion from the system. We must therefore expressly disapprove

such portions of the record as suggest that the district judge

interprets his injunction to require continuous annual redis-

tricting. In the course of final argument the district judge stated

that to him the Pasadena Plan meant. . . “that at least during

my lifetime there would be no majority of any minority in

any school in Pasadena.” [Emphasis added]. This remark,

apparently spontaneous, cannot be broadly interpreted, inasmuch

as it sugegsts that even after the court has determined that

its plan has been effectively implemented and racial discrimina-

tion eliminated from the system, a disruptive juggling of students

to correct de minimis alterations in racial balance in specifiec

schools might be required annually, or even day by day. This

is precisely what we interpret Swann to prohibit.®

III. Termination of the Continuing Jurisdiction

of the District Court.

The portion of the appellants’ motion seeking termination

of the District Court’s continuing supervision over the actions

of the Board is susceptible to the same reasoning followed in

Part II of this opinion, supra. The Supreme Court’s policy in

respect to the retention of jurisdiction by a District Court was

unambigously announced in Raney v. Board of Education, 391

U. S. 443, 449 (1967):

“In light of the complexities inhering in the disestablish-

ment of state-established segregated school systems, Brown

Al2

II contemplated that the better course would be to retain

jurisdiction until it it clear that disestablishment has been

achieved.”

We hold that the District Court did not clearly err in con-

cluding that it was not yet clear that the contemplated disestab-

lishment of segregation had been achieved in the Pasadena

Unified School District. In light of the School District’s failure

fully to comply with the “no majority of any minority” re-

quirement for three successive years, and the fact that appellants

sought to substitute a “freedom of choice” type of plan that

the court found would likely result in re-segregation, it was

reasonable for the District Court to conclude that all vestiges of

de jure segregation had not been eliminated. On these facts

the court did not abuse its broad equitable discretion in finding

an urgent need to retain, for some time, its jurisdiction of the

controversy.’°

IV. The Alternative Plan.

Finally, the appellants moved for modification of the Pasadena

Plan to conform with what they have termed their “Alternative

Plan.” The “Integrated Zone/Educational Alternatives Plan”

was approved by a four to one vote of the Board, and that

plan applies only to students at the elementary level (grades

K-6). Under the terms of the plan, specific elementary school

attendance boundries would be replaced with four racially

and ethnically balanced zones corresponding to the four existing

zones of the Pasadena Plan. Any student could choose to attend

any school in his zone, with any necessary transportation provi-

ded at District expense. The present divided system of separate

schools for grades K-3 and grades 3-6 would be replaced

with traditional 4-6 schools. Each K-6 school, in addition to

the “traditional” program taught there, would have a special-

ized “mini-school” offering a unique alternative program.”

These unique alternatives would ostensibly result in voluntary

integration by attracting a mix of students from all parts of

en i ee ree ane

Al3

the zone, with the schools in each zone competing for attendance.

If racial imbalance should occur under the Alternative Plan,

a program would then be implemented pairing “sister schools”

of opposite ethnic composition for “shared experiences” attended

by both schools for one-half day per week.

The appellants have insisted that since the Pasadena Plan

was ordered implemented September, 1970, a constitutionally

unitary system has been established. Therefore, they argue

that the District Court had an obligation to return local control

to the School District so long as the proposed modifications did

not violate the Constitution. Starting from our earlier premise

that the District Court’s determination that the School District

had not yet effectively discharged its affirmative duty to eliminate

segregation was not clearly erroneous, we hold that the District

Court’s refusal to permit substitution of the appellant’s proposed

Alternative Plan constituted a reasonable exercise of the court’s

equitable discretion.

The district judge found that the Alternative Plan was essen-

tially a “freedom of choice” plan, and we are inclined to agree.

The Supreme Court has acknowledged, as of 1968, the general

“ineffectiveness” of such plans as “a tool of desegregation,”

Green v. County School Board, 391 U. S. 430, 440 (1967).

The Court has directed that “. . . if there are reasonably available

other ways, such for illustration as zoning, promising speedier

and more effective conversion to a unitary, nonracial school

system, freedom of choice must be held unacceptable.” (Jd.

at 441). Our own court reached a similar conclusion in Kelly v.

Guinn, 456 F. 2d 100, 108-9 (9th Cir. 1972) wherein we

observed:

“Freedom of choice plans usually, if not invariably, fail

to eliminate school segregation. Such plans rest upon the

theory that the school district’s entire obligation is to

refrain from excluding any student from the school because

of race. But once it has been determined that a school dis-

trict has contributed to the creation and maintenance of

Al4

segregation, neutrality is no longer enough. Then the

schoo] district’s duty is not limited to the removal of

discriminatory bars to school integration; it is charged with

an affirmative duty to eliminate segregation. ‘Freedom of

choice’ plans operate ‘simply to burden children and their

parents with a responsibility which Brown II (347 U. S.

483, 74 S. Ct. 686, 98 L. Ed. 873) placed squarely on the

School Board.’ The attempt to shift responsibility rarely

works. The parents and children are either unable or

unwilling to carry the burden. Not suprisingly, they failed

to do so in this instance.”**

There was ample evidence to support the District Court’s

conclusion that the proposed freedom of choice or ‘Alternative

Plan” would not discharge the Board’s duty to “. . . make every

effort to achieve the greatest possible degree of actual deregre-

gation . . . .” Davis v. Board of School Commissioners 402

U. S. 33, at 37 (1971). Previous efforts by Pasadena to deseg-

regate by “freedom of choice” plans h.d failed. (Spangler,

supra, 311 F. Supp. at 510). There was also evidence show-

ing that freedom of choice plans in California locations, the

cities of Richmond and San Bernadino, had been wholly unsuc-

cessful."* On this record, we could not hold that the court

abused its discretion in refusing to permit implementation of

an Alternative Plan which it justifiably found highly unlikely

to achieve the constitutionally required unitary school system

in Pasadena.

AFFIRMED.

lt ee ee Pee ee eee eee ee ee ee ee errr

United States Circuit Judges.

Al5

FOOTNOTES

Footnote 1.

We note that one of the basic legal issues presented by this

appeal, the question of when and under what circumstances a

school district may compel a federal district court to relinquish

jurisdiction and end its supervision, has not yet been directly

addressed by any Court of Appeal or by the United States

Supreme Court. See generally Craven, Intergrating the Deseg-

regation Vocabulary—Brown Rides North, Maybe, 73 W. Va.

L. Rev. 1 (1971); Fiss, The Charlotte-Mecklenburg Case—lIts

Significance for Northern School Desegregation, 38 U. Chi. L.

Rev. 697 (1971); Comment, 39 U. Chi. L. Rev. 421, 436-

40 (1972).

Footnote 2

A majority of the Board voted not to appeal the District

Court’s original Decree. Thereafter a group of parents filed a

motion in the District Court for leave to intervene as defendants

for the purpose of perfecting an appeal. The motion was denied

on March 4, 1970, and the movants appealed to this court. On

June 15, 1970, we affirmed. Spangler v. Pasadena City Board

of Education, 427 F. 2d 1352 (9th Cir. 1970).

Footnote 3

As of the beginning of the 1973 school year, the Pasadena

Unified School District operated 32 regular schools, having

an enrollment of approximately 44 percent Anglo-Caucasions

and 40 percent blacks. At the time of the initial implementation

of the Pasadena Plan (1970-71) every school in the District

was in literal compliance with the court’s order. No school had

a Negro enrollment as high as 50 percent, and in only three

schools was the Negro enrollment greater than the Anglo-

Caucasian enrollment. In the 1971-72 school year, one school

(Loma Alta) slipped out of compliance with the no majority

of any minority standard. In 1972-73 four schools, in viola-

tion of the court’s order, had a black enrollment in excess of

50 percent, and in seven other schools the black enrollment

exceeded that of Anglo-Caucasian students. By 1973-74, five

schools were in violation of the court’s order (Franklin, Sierra

Mesa, Edison, Loma Alta, and Eliot), and sixteen others had a

Negro enrollment exceeding that of Anglo-Caucasians.

Al6

Footnote 4

In Kelly v. Guinn, 456 F. 2d 99 (9th Cir. 1972), our court

upheld a desegregation order that was very similar to the one in

this case. In Kelly, the decree specified “that the black enroll-

ment in any elementary school in the Clark County District

shall not exceed fifty percent of the total enrollment in such

grade.” 456 F. 2d at 109.

It should be noted that a trial stipulation in the present case

recited that plaintiff and the Government-intervenor were

aware “of no violations of the Pasadena Plan up to and includ-

ing the present.” The appellee’s explain that the sipulation was

based on the parties interpretation of the plan, which was

inconsistent with the interpretation of the District Court. The

District Court was not, of course, obliged to accept, as abso-

lutely controlling, a stipulation of the parties as to a question

of law or a mixed question of law and fact. Estate of Sanford

v. Commissioner, 308 U. S. 39, 51 (1939); Swift & Co. v.

Hocking Valley Ry,. 243 U. S. 281, 289 (1917); Los Angeles

Shipbuilding & Drydock Corporation v. United States, 289 F.

2d 222 (9th Cir. 1961). Furthermore, contrary to that of

which the parties may have been “aware” at the time of the

stipulation, the evidence at the trial established undeniably

that significant violations of the Pasadena Plan had previously

occurred and continued to exist.

Footnote 5

The appellants claim that the rationale applied by the dis-

trict judge in denying the appellants’ motion was a conclusion

that the Board and its new members had acted in “bad faith.”

In our view the good or bad faith of the school authorities

is irrelevant to the issues presented. In upholding the District

Court, we have assumed that the actions of the Board and its

authorities were, from their viewpoint, committed in good faith.

Footnote 6

The substance of the dictum in Swann was partially codified

by the Congress on August 21, 1974:

“Effect of Certain Population Changes on Certain Actions.

Sec. 208. When a court of competent jurisdiction de-

termines that a school system is desegregated, or that it

meets the constitutional requirements, or that it is a unitary

system, or that it has no vestiges of a dual system, and

thereafter residential shifts in population occur which re-

sult in school population changes in any school within

Al7

such a desegregated school system, such school population

changes so occurring shall not, per se, constitute a cause

for civil action for a new plan of desegregation or for

modification of the court approved plan.”

It bears emphasis that the prohibition of the statute is trig-

gered when a court determines that a desegregated unitary

system, with no vestiges of a dual system, has been established.

This is precisely that which has not yet occurred in this case.

It should also be noted that the statute prohibits new plans

or modification of the court approved plan. The statute does

not purport to cover the question here presented, i.e., whether

an existing plan should be continued.

Footnote 7

In their brief appellants state that in the original decision of

the District Court directing the School Board to desegregate

“there was no finding of state imposed segregation.” They fur-

ther assert that “[t]he constitutional violation found against ap-

pellants in 1970 was relatively minor.” We think that these

declarations are erroneous. The original opinion of the District

Court, as we discussed supra, detailed a series of purposeful ac-

tions by the School Board resulting in de jure segregation. The

meaning of the term de jure is clarified in Soria v. Oxnard School

District Board of Trustees, 488 F. 2d 570, 585 (9th Cir. 1973),

wherein we wrote in the context of interpreting Keyes v. School

District No. 1, Denver Colorado, 413 U. S. 189 (1973):

The Court emphasized that the differentiating factor be-

tween so-called de facto segregation and the de jure segre-

gation held consitutionally impermissible in Brown v.

Board of Education (1), 347 U. S. 483 (1954) was that

in the latter case there was present a purpose or intent to

segregate.”

Footnote 8

Ir this connection it is highly significant that the United

States Court of Appeals for the Fifth Circuit routinely requires

that the District Court in a desegregation case should retain

jurisdiction for a period of at least three years before dismissing

such cases upon a determination that the school district has

achieved unitary status. In United States v. State of Texas, et al.

(San Felipe Del Rio Consolidated Independent School District),

509 F. 2d 192 (Sth Cir. 1974), the District Court, acting sua

sponte, without notice or an opportunity for a hearing as to any

opposition thereto, found that the objective of a unitary school

Al8

system had been achieved and dismissed the action. In doing so,

the court expressly relied upon the Swann dictum. On appeal

the dismissal was vacated and the cause remanded because under

the standards enunciated in Youngblood v. Board of Public

Instruction, 448 F. 2d 770 (Sth Cir. 1971), the District Courts

of the Fifth Circuit are directed to retain jurisdiction for a period

not less than three school years, during which the school district

is required to file semi-annual reports with the District Court.

In United States v. Texas, etc., supra, only three such reports

had been filed, and therefore the Court of Appeals concluded:

“Once these reports have been filed, then upon proper

notice, and following a hearing if one is appropriately

sought, the District Court may proceed to determine whe-

ther San Felipe Del Rio has achieved unitary status. If it

has, then a dismissal is not out of order.

“If, however, such reports have not been or cannot now

be filed then the matter may not be considered until three

additional semi-annual reports have been filed in due

course.” (509 F. 2d at 194).

Thus, the Fifth Circuit obviously shares our view that a dis-

trict judge must not be prematurely divested of his traditional

power to supervise his equitable decrees.

Footnote 9

See United States v. Wilcox County Board of Education, 494

F. 2d 575, 579 at n. 2 (Sth Cir. 1974).

Footnote 10

The appellants have not cited, nor have we found, any case in

which a District Court, acting upon a request for dissolution of

a detailed desegregation injunction, has relinquished jurisdiction

entirely. The procedure that has uniformly been followed when

an initial and specific regulatory desegregation injunction has

been dissolved has been the reduction of the controversy to an

inactive status on the court’s docket. The matter may then be

re-activated on proper application by any party, or on the court's

own motion, should it appear that further proceedings have

definitely become necessary. See, e.g., United States v. Georgia,

N. D. Ga. Civil Action No. 12,972 (Order entered July 23,

1973): United States v. County School Board of Sussex County,

E. D. Va., Civil Action No. 606-R (Order filed July 5, 1973);

United States v. County School Board of Sussex County, E. D.

Va., Civil Action No. 224-69-R (Order filed July 5, 1973).

Al9

Footnote 11

The unique alternatives proposed included a fine and per-

forming arts program, an animal and plant life program, a daily

newspaper based program, a community-career awareness pro-

gram, a social science-science program, a foreign language and

cultural program, and an early childhood education program.

Footnote 12

Among the numerous cases in which Courts of Appeals have

found “freedom of choice” plans unacceptable are United States

v. Georgia. 466 F. 2d 197 (7th Cir. 1972); Brunson v. Board

of Trustees of School District No. 1 of Clarendon County, S. C.

429 F. 2d 820 ((4th Cir. 1970); Clark v. Board of Education

of Little Rock School District, 426 F. 2d 1035 (8th Cir. 1970),

cert. denied, 402 U. S. 952 (1971); Hilson v. Outzts, 425 F. 2d

219 (Sth Cir. 1970); Hall v. St. Helena Parish School Board,

424 F. 2d 320 (Sth Cir. 1970); United States v. The Board of

Education of Baldwin County, 423 F. 2d 1013 (Sth Cir. 1970);

Stecie v. The Board of Public Instruction of Leon County, 421

F. 2d 1382 (Sth Cir. 1970); Boykins v. Fairfield Board of Edu-

cation, 421 F. 2d 1330 (Sth Cir. 1970); United States v. Choc-

taw County Board of Education, 417 F. 2d 838, 841 (5th Cir.

1969); United States v. Jefferson County Board of Education,

417 F. 2d 834, 836 (Sth Cir. 1969); United States v. Lovett,

416 F. 2d 386, 392 (8th Cir. 1969); Walker v. County Board

of Brunswick County, 413 F. 2d 53, (4th Cir. 1969), cert.

denied, 396 U. S. 1061 (1970); United States v. Greenwood

Municipal Separate School District, 406 F. 2d 1086 (Sth Cir.

1969), cert. denied. 395 U. S. 907 (1969).

Footnote 13

The San Bernardino plan attracted only 15 percent of the

Negro students, and no whites participated. The Richmond plan

had an 11 percent Negro participation over the course of three

years and, there again, no whites participated. 375 F. Supp. at

1307. This failure occurred despite the fact that these plans

promised that efforts would be made to make minority neighbor-

hood schools attractive to all students and that free transporta-

tion was provided for any student wishing to attend school out-

side his neighborhood.

A20

NANCY ANN SPANGLER, ET AL., Plaintiffs-Appellees, and

UNITED STATES OF AMERICA, Plaintiff-Intervenor-A ppellee, v.

PASADENA CITY BOARD OF EDUCATION, ET AL., Defendants-

Appellants.

No. 74-2116

CHAMBERS, Circuit Judge, concurring:

This is sad business. We had to have Brown v. the Board of

Education’ because seldom more than lip service was given to the

ideal of equal education.

But we cannot perpetually homogenize school children every

September. It won't be much of an education for any child if

children have to go to a different school every year. Furthermore,

a school district surely should not be kept under injunctions of a

court forever. We are already involved from time to time in

teachers’ tenure. Next thing we shall find ourselves grading stu-

dents’ papers—if we keep the schools under a court decree at all

times.

Had the first Pasadena decree* been appealed to conclusion,

I would have held, I believe, once in compliance that the case

should have been terminated and any future complaints should

be the subject of a new action. But the appeal was dropped. So

the school board was left under a continuing duty to homogenize

ai | they have not done it beyond the first massive reassignment

of pupils.

Thus, I think we cannot unring the latest orders of the district

court retroactively. But I cannot go along with an order con-

tinuing, except for a short time, beyond one more reassignment of

pupils that is found to be in compliance. Prospectively, I reject

the edict that there shall never be a particular school with a

“majority of any minority” or a majority of any minority as long

as “[the district judge] live[s].” Never is a long time. No one can

foresee future contingencies. Furthermore, one man’s life is a

slender thread for court decrees.

A21

I interpret Judge Ely’s opinion as requiring a termination of

the mandatory injunction within a very short time after the school

again gets in compliance and I think the message is clear to the

district court.

I do not reach the merits of any other plan. This should be

left to future adjudication in another case. I have some doubt

that one will find any de jure segregation after the decree has been

complied with again—if all that is done is to let residence pat-

terns shift by themselves.

As indicated above, I concur.

/s/ RICHARD CHAMBERS,

United States Circuit Judge.

FOOTNOTES.

1. 347U.S. 483 (1954).

2. 311F. Supp. 501 (C. D. Cal. 1970).

a Se

A22

SPANGLER V. PASADENA CITY BOARD OF EDUCATION.

No. 74-2116

WALLACE, Circuit Judge, Dissenting:

I respectfully dissent.

My Brother Ely would affirm the district court's decision to

continue the desegregation decree in effect and to retain juris-

diction for two reasons: because five schools over three years

have had majority enrollments of Black students and because

racial imbalance would result from implementation of the Alter-

native Plan if the injunction were dissolved. Although other rea-

sons might justify continued enforcement of the injunction, these

reasons do not. Racial balance is not a constitutional right.

Swann Vv. Charlotte-Mecklenburg Bd. of Educ., 402 U. S. 1,

24 (1971). The test for retaining jurisdiction and continuing a

desegregation injunction in effect is not the school district’s main-

tenance of an inflexible racial balance but whether “the affirma-

tive duty to desegregate has been accomplished and racial dis-

crimination through official action is eliminated from the system.”

Id. at 31-32. Because the district court did not consider this

question, I believe it failed to apply the proper test and, there-

fore, I would reverse and remand.

The disposition I propose would jeopardize neither the de-

Segregation already achieved nor that still necessary to remedy

any de jure segregation which may remain in the Pasadena

schools. The injunction would remain in effect pending the

outcome of proceedings upon remand, see Johnson v. San Fran-

cisco Unified School Dist., 500 F. 2d 349, 352 (9th Cir.

1974); Soria vy. Oxnard School Dist. Bd. of Trustees, 488 F. 2d

579, 588 (9th Cir. 1974), cert. denied, 416 U. S. 951 (1974),

and the Board of Education would bear the burden of proving

that all segregation attributable to intentionally segregative action

of the school district has been eliminated, see Keyes v. School

A23

Dist. No. 1, Denver, Colo., 413 U. S. 189, 207-13 (1973);

Swann Vv. Charlotte-Mecklenburg Bd. of Educ., supra, 402 VU. S.

at 26. By relying solely upon past or predicted deviations from

racial balance by the Pasadena schools, both the district court

and Judge Ely needlessly reduce complex constitutional ques-

tions to mathematical ratios. See Fiss, The Fate of An Idea

Whose Time Has Come: Antidiscrimination Law in the Second

Decade after Brown Vv. Board of Education, 41 U. Chi. L. Rev.

742, 765-70 (1974). The district court’s full consideration of

the difficult questions presented by this case would not impede

constitutionally required desegregation.

I.

The fundamental flaw in the district court’s decision is its

premise that there is no difference between de facto and de jure

segregation. In its written opinion, the district court takes the

position that the two are indistinguishable.' Were this true, a

holding that the Pasadena schools must always maintain some

degree of racial balance would undoubtedly be correct. Like-

wise, there would be no need to determine whether de jure

segregation has been eliminated, since the existence of segre-

gation of any kind would suffice to maintain the injunction in

effect. But we have rejected the equivalence of de facto and

de jure segregation and have held that segregation in public

schools is unconstitutional only if it is de jure segregation; that

is, only if it results from intentionally segregative state action.

Johnson v. San Francisco Unified School Dist., supra, 500 F.

2d at 351-52; Soria v. Oxnard School Dist. Bd. of Trustees,

supra, 488 F. 2d at 585-88; see Berkelman vy. San Francisco

Unified School Dist., 501 F. 2d 1264, 1266-67 (9th Cir.

1974). The Supreme Court has impliedly, if not expressly,

reached the same conclusion. Milliken v. Bradley, ........... U. S.

inital y wey 42 U. S. L. W. 5249, 5258 (July 25, 1974);

Keyes v. School Dist. No. 1, Denver, Colo., supra, 413 U. S.

at 207-09; Swann v. Charlotte-Mecklenburg Bd. of Educ., supra,

OO

A24

402 U. S. at 17-18, 25-27; Spencer v. Kugler, 404 U. S. 1027

(1972) (mem.), affg 326 F. Supp. 1235, 1239-43 (D. N. J.

1971); cf. Note, 88 Harv. L. Rev. 61, 70 n. 58 (1974).? Thus

the justification for the desegregation decree in this case must be

the de jure segregation found to exist in 1970, not de facto

segregation existing before or after that date.

I.

The justification for the injunction determines its scope. The

purpose of a desegregation decree is to remedy the underlying

constitutional violation:

[T]he remedy is necessarily designed, as all remedies are,

to restore the victims of ciscriminatory conduct to the posi-

tion they would have occupied in the absence of such con-

duct.

Milliken v. Bradley, supra, ............ i | yaaa . 42 U.S. L. W.

at 5258; accord, Swann vy. Charlotte-Mecklenburg Bd. of Educ.,

supra, 402 U. S. at 16. The Supreme Court has expressly re-

jected the view that a desegregation injunction is designed to

produce any specific degree of racial balance:

If we were to read the holding of the District Court to

require, as a matter of substantive constitutional right,

any particular degree of racial balance or mixing, that

approach would be disapproved and we would obliged to

reverse. The constitutional command to desegregate schools

does not mean that every school in every community must

always reflect the racial composition of the school system

as a whole.

Swann v. Charlotte-Mecklenburg Bd. of Educ., supra, 402 U. S.

at 24; accord, Milliken Vv. Bradley, supra, —........ Os Oe OD cccctns

42 U.S. L. W. at 5256; Drummond v. Acree, 409 U. S. 1228,

1230-31 (1972) (Powell, Circuit Justice); Winston-Salem/

Forsyth Bd. of Educ. v. Scott, 404 U. S. 1221, 1227-29, 1230-

31 (1971) (Burger, Circuit Justice) (dictum); Kelly v. Guinn,

456 F. 2d 100, 110 (9th Cir. 1972), cert. denied, 413 U. S.

A25

919 (1973). The district court’s decision is inconsistent with

these principles.

The district judge interpreted the injunction to require “that

at least during my lifetime there would be no majority of any

minority in any school in Pasadena.” All of us disapprove of

this statement but Judge Ely minimizes its significance. Although

the district judge made this comment in announcing his deci-

sion from the bench, he did not depart from it in his published

opinion. He allowed only impossibility of compliance as a

reason for dissolving or suspending the prohibition against ma-

jority enrollments of minority studenis.* So interpreted, the

injunction transforms racial balance from a means of remedying

de jure segregation into an end in itself, precisely contrary

to the principles expressed by the Supreme Court.

Nor is the district court’s interpretation of the injunction

permissible because the racial quota requires only “no majority

of any minority.” Although in Swann the Supreme Court con-

sidered a different kind of quota ( i.e., one requiring that the

racial balance in each school approximate that of the district

as a whole), the principles applied in that case are equally

aplicable here. Kelly v. Guinn, supra, 456 F. 2d at 110. The

Court did not emphasize the kinds of quotas that are permis-

sible but did indicate the proper role of quotas in devising

remedies for de jure segregation.

We see therefore that the use made of mathematical

ratios was no more than a starting point in the process of

shaping a remedy, rather than an inflexible requirement.

. . . Awareness of the racial composition of the whole

school system is likely to be a useful starting point in

shaping a remedy to correct past constitutional violations.

In sum, the very limited use made of mathematical ratios

was within the equitable remedial discretion of the District

Court.

402 U. S. at 25.

A26

Once the “no majority of any minority” provision of the

injunction is deprived of a strict interpretation, the significance

of the school district’s violations diminishes greatly.* The injunc-

tion took effect in the fall of 1970. In October, 1970, no school

had a majority Black enrollment. In October, 1971, one out

of the 35 regular schools in the district had a majority Black

enrollment (51.9% ). In October, 1972, four schools were in

violation, with Black enrollments of 53.9%, 53.4%, 52.0%

and 50.1%. Finally, in October, 1973, five schools failed to

comply, with Black enrollments of 60.2%, 56.8%, 55.3%,

52.9% and 51.3%. Thus, over the four-year period that the

injunction has been in effect, only one school has had a Black

enrollment exceeding 60% and only two have had an enroll-

ment exceeding 55%, all in the most recent school year. During

that time, the percentage Black enrollment ir ‘he district as

a whole has increased from 32.8% (in October, 1970) to

40.0% (in October, 1973). Although the cause of this increase

was disputed in the district court, see Spangler v. Pasadena

City Bd. of Educ., 375 F. Supp. 1304, 1306, 1307-08 C. D.

Cal. 1974), the increase itself, regardless of its cause, makes

deviations from the prescribed quota both more difficult to avoid

and less serious once they occur.®

Il.

The same fundamental error that underlies the district

court’s inflexible interpretation of the injunction also underlies

its failure to consider whether the racial imbalance foreseeable

upon dissolution of the injunction is attributable to intentionally

segregative actions of the school district. Both errors derive from

its erroneous equivalance of de facto with de jure segregation and

its neglect of the basic principle that “the scope of the remedy

is determined by the nature and extent of the constitutional

violation.” Milliken v. Bradely, supra, ............ es fame , 42

U. S. L. W. at 5258. The corollary of the latter, which is rele-

vant here, is that the need for a desegregation injunction ceases

A27

once de jure segregation has been eliminated. A unanimous Su-

preme Court has so stated:

Neither school authorities nor district courts are con-

stitutionally required to make year-by-year adjustments of

the racial composition of student bodies once the affirma-

tive duty to desegregate has been accomplished and racial

discrimination through official action is eliminated from

the system. This does not mean that federal courts are

without power to deal with future problems; but in the

absence of a showing that either the school authorities or

some other agency of the State has deliberately attempted

to fix or alter demographic patterns to affect the racial

composition of the schools, further intervention by a dis-

trict court should not be necessary.

Swann v. Charlotte-Mecklenburg Bd. of Educ., supra, 402 U.

S. at 31-32 (dictum); cf. Keyes v. School Dist. No. 1, Denver,

Colo., supra, 413 U. S. at 211 (dictum).*®

Although the Alternative Plan is a freedom-of-choice plan

and therefore an unlikely remedy for past de jure segregation,

Green v. County School Bd. of New Kent County, 391 U. S.

430, 440 (1968); Kelly v. Guinn, supra, 456 F. 2d at 108-09,

it hardly follows that it is motivated by an intent to segregate

or that it necessarily reflects the effects of past de jure segre-

gation. The district court did not decide whether the Allter-

native Plan created or perpetuated de jure segregation, appar-

ently because it believed that de facto segregation alone amounts

to a constitutional violation. See Spangler v. Pasadena City Bd.

of Educ., supra, 375 F. Supp. at 1307 & n.10. Although fore-

seeable segregation is relevant to the question whether the in-

junction should be dissolved, it is not dispositive. The question

not addressed by the district court is crucial: whether the segre-

gation foreseeable upon dissolution of the injunction is attri-

butable to intentionally segregative actions of the school district.?

My Brother Ely also does not address this question, defer-

ring instead to the equitable discretion of the district court upon

A28

the authority of Swann v. Charlotte-Mecklenburg Bd. of Educ.,

supra, 402 U. S. at 12, 15-16. Although Swann endorses the

discretion of the district courts to formulate and modify deseg-

regation decrees, it also places important restrictions upon that

discretion, among them the requirement that the injunction be

terminated when de jure segregation has been abolished. In-

deed, immediately before its discussion of this restriction, the

Court states:

However, in seeking to define the scope of remedial power

or the limits on remedial power of courts in an area as

sensitive as we deal with here, words are poor instruments

to convey the sense of basic fairness inherent in equity.

Substance, not semantics, must govern, and we have

sought to suggest the nature of limitations without frust-

rating the appropriate scope of equity.

Id. at 31 (emphasis added); accord, id. at 6. A sound inter-

pretation of the whole of Swann must yield the conclusion that

the equitable discretion of the district court continues only so

long as de jure segregation persists.

Nor can this restriction be weakened, as my Brother Ely

would have it,* into a caution against strict enforcement of

racial quotas once de jure segregation has been eliminated.

Another passage in Swann, discussed earlier, requires that ra-

cia! quotas be flexibly interpreted even before de jure segrega-

tion has been eliminated. 402 U. S. at 24-25. The prohibition

against “further intervention” cannot mean the same thing.

More important, Judge Ely’s interpretation of the prohibition

against “further intervention” would permit the desegregation

decree to be prolonged beyond the continued existence of de

jure segregation, contrary to the principle that the scope of the

constitutional violation determines the scope of the remedy.

See Milliken v. Bradley, supra, ............ Ss Spee , 42 U.S.

L. W. at 5258; cf. Keys v. School Dist. No. 1, Denver, Colo.,

supra, 413 U. S. at 211 (dictum). Since there is no substan-

tive right to any particular racial balance, a perpetual injunc-

A29

tion directed toward that goal cannot be justified as a flexible

remedy for past de jure segregation. Note, 43 U. Cin. L. Rev.

922, 928 (1974).

The same test that determines whether the injunction should

be dissolved also determines whether jurisdiction should be

relinquished. Although the Supreme Court has required that

jurisdiction be retained “until it is clear that disestablishment

has been achieved, “Raney v. Board of Educ. of the Gould

School Dist., 391 U. S. 443, 449 (1968), that requirement is met

if the school district proves that de jure segregation has been

abolished. Once the school district has met this burden of proof,

further intervention by the court is justified only upon a show-

ing of new de jure segregation. Swann v. Charlotte-Mecklen-

burg Bd. of Educ., supra, 402 U. S. at 32 (dictum). Because

the burden of proof then returns to the plaintiffs, they could

just as well file a new action as file a petiiion for relief in a

court that possesses continuing jurisdiction. In addition, because

the injunction also is dissolved, jurisdiction need not be retained

to supervise compliance. Hence, continued jurisdiction serves

no purpose after the school district has shown that de jure

segregation has been eliminated.

IV

The school district’s burden of proof, however, is not easily

met. The Supreme Court has held that once de jure segrega-

tion has been found in one part of a school system, the school

district must show that de facto segregation elsewhere in the

system is not the result of any intentionally segregative action

on its part. Keyes v. School Dist. No. 1, Denver, Colo., supra,

413 U. S. at 207-13. So too, here,*® the Board of Education

must prove that any segregation reasonably foreseeable upon

dissolution of the injunction is not the result of any intentionally

segregative actions of the Pasadena Unified School District.’®

The Board must show that the Alternative Plan is not motiva-

ted by an intent to segregate and that there is no present or

A30

foreseeable segregation which is attributable to any intention-

ally segregative actions of the school district, either those found

in 1970 or any committed thereafter. See Swann v. Charlotte-

Mecklenburg Bd. of Educ., supra, 402 U. S. at 26; Note, 88

Harv. L. Rev. 61, 67-69 (1974).

Vv

The heavy burden of proof upon the Board of Education

renders the majority’s decision all the more difficult to under-

stand. Returning this case to the district court would not hinder

constitutionally required desegregation. Instead, it would allow

the crucial question in this case to be decided: whether de jure

segregation has been eliminated from the Pasadena schools.

The majority avoids this issue by deferring to the equitable

discretion of the district court but the district court did not

reach this question because it erroneously equated de facto with

de jure segregation. The district court must eventually decide

this question. As Judge Chambers notes in his concurring

opinion, the Board of Education will sooner or later renew its

motion to dissolve or modify the injunction. Instead of surmis-

ing from the record how the district court would have decided

a question it did not face, I would reverse and remand for a

determination whether de jure segregation still exists in the

Pasadena schools.

Therefore, I dissent.

A31

FOOTNOTES

1. There appears to be, in logic, no distinction between

de jure and de facto segregation for our purposes. “De jure”

and “de facto” are only adjectives that give some attempted

“legal” distinction to the aims of Brown v. Board of Educa-

tion I, 347 U. S. 483, 74 S. Ct. 686, 98 L. Ed. 873

(1954), and Brown v. Board of Education II, 349 U. S.

294, 75 S. Ct. 753, 99 L. Ed. 1083 (1955) that “segrega-

tion” denies equal educational opportunity. See also, Keyes

v. School District Number One, 413 U. S. 189, 93 S.

Ct. 2686, 37 L. Ed. 2d 548 (1973), Mr. Justice Powell,

concurring and dissenting.

Spangler v. Pasadena City Bd. of Educ., 375 F. Supp. 1304,

1307 n. 10 (C. D. Cal. 1974) (emphasis in first sentence

added). The district judge’s statements from the bench reflect

the same error.

2. It might be thought that the Supreme Court declined to

decide this issue in Keyes, by reserving the question “whether

a ‘neighborhood school policy’ of itself will justify racial or

ethnic concentrations in the absence of a finding that school

authorities have committed acts constituting de jure segrega-

tion.” Keyes v. School Dist. No. 1, Denver, Colo., 413 U. S.

189, 212 (1973). This passage, however, must be interpreted

to leave open only the question whether segregated neighbor-

hoods in combination with a neighborhood school policy give

rise to a presumption of de jure segregation.

The Court held in Keyes that where de jure segregation has

been found in one part of a school district, de facto segregation

in the remainder of the district is constitutionally permissible,

provided the school district can show that such segregation did

not result from any intentionally segregative actions on its part.

Id. at 207-13. Likewise, in Swann the Court held that, in a

school system undergoing desegregation, a few schools pre-

dominantly of one race are permissible if the school district can

prove that their racial composition did not result from dis-

criminatory actions on its part. Swann v. Charlotte-Mecklen-

burg Bd. of Educ., 402 U. S. 1, 26 (1971). Hence, even when

de jure segregation has been found in a school district, de facto

segregation is permissible upon a showing that it did not result

from intentionally discriminatory actions. A fortiori, in the

absence of de jure segregation, de facto segregation must also

A32

be permissible. The question left open in Keyes is whether the

school district must show lack of de jure segregation when a

neighborhood school policy, neutral on its face, results in segre-

gation. See Ybarra v. City of San Jose, 503 F. 2d 1041, 1042-

43 and n. 2 (9th Cir. 1974). Compare Johnson v. San Francisco

Unified School Dist., 500 F. 2d 349, 351 n. 1 (9th Cir. 1974)

(dictum).

3. The Court recognizes that conceivable circumstances

exist in which that mandate could not reasonably be met.

Pasadena, however, does not present such a circumstance

at this time.

Spangler v. Pasadena City Bd. of Educ., 375 F. Supp. 1304,

1307 n. 11 (C. D. Cal. 1974).

4. In addition, the significance of the district’s violation of

the “no majority of auy minority” provision of the injunction

should be judged in light of the parties’ stipulation, which was

not simply that these violations are insignificant, but that they

never occurred. While this stipulation was not binding upon the

district court, it does indicate how the parties interpreted the

“no majority of any minority” language in the injunction and

whether the deviations are evidence of persisting de jure segre-

gation.

5. At the hearing, the district court also concluded that

the school district had violated the hiring provisions of the

injunction but it does not refer to these violations in its written

opinion. These violations too would be open to consideration

upon remand.

6. Although the statement quoted from Swann is dictum,

neither the majority nor any other court has refused to rely

upon it for that reason.

7. The district court mentions this issue in only two con-

clusory sentences:

To [dissolve the injunction] would—in light of the avowed

aims of four members of a five-member Board—surely be

to sign the death warrant of the Pasadena Plan and its

objectives.

Spangler v. Pasadena City Bd. of Educ., 375 F. Supp. 1304,

1309 (C. D. Cal. 1974).

Unfortunately, I cannot make that finding [that the school

district has become unitary], because I think that from the

evidence that was presented to me I find still some vestiges

that would indicate that the Board has not completely made

this School District a unitary school district.

A33

Oral opinion. However, these statements must be taken in the

context of the district court’s failure to abandon its erroneous

equivalence of de facto with de jure segregation.

8. Judge Chambers apparently does not concur in this

portion of Judge Ely’s opinion. Judge Ely apparently would

enforce the “no majority of any minority” provision of the

injunction indefinitely but would allow de minimis deviations

after de jure segregation has been eliminated. Judge Chambers

apparently would abandon the injunction entirely once de jure

segregation has been abolished.

9. The de jure segregation found in 1970, and not reviewed

by us, was attributed in part to the school district’s failure to

compensate for residential segregation. In turn, this residential

segregation was attributed in part to public and in part to

private discrimination. Spangler v. Pasadena City Bd. of Educ.,

311 F. Supp. 501, 504-05, 512-13, 522 (C. D. Cal. 1970).

However, the only constitutional violations found by the dis-

trict court were those of the school district in failing to compen-

sate for residential segregation. /d. at 524. Likewise, no evi-

ence was presented in the proceedings now on appeal that state

entities other than the school district had committed constitu-

tional violations. Hence, this case does not present the question

whether constitutional violations of other state entities would

justify continued enforcement of an injunction against the school

district. See Milliken v. Bradley, ..... U. S. ees | & *

42 U.S. L. W. 5249, 5252 n. 7 (July 25, 1974); id. at __,

42 U. S. L. W. at 5261 (Stewart, J., concurring); Swann v.

Charlotte-Mecklenburg Bd. of Educ., 402 U. S. 1, 22-23

(1971); Ybarra v. City of San Jose, 503 F. 2d 1041, 1043

(9th Cir. 1974).

10. I do not believe that proving an absence of de jure

segregation requires no more than proving momentary compli-

ance with a desegregation injunction. The school district must

prove that all present and reasonably foreseeable segregation is

divorced from any intentionally segregative action on its part.

Further, when the school board presents a new plan to re-

place the injunction, proving momentary compliance leaves the

most difficult elements of its case unproved: first, that the plan

to replace the injunction lacks any segregative intent; and second,

that any segregation reasonably foreseeable upon implementa-

tion of the plan is not attributable to any past, intentionally

segregative actions on its part. As the Supreme Court has made

clear, such conclusions are not easily proved. Keyes v. School

Dist. No. 1, Denver, Colo., 413 U. S$. 189, 207-13 (1973).

A34

APPENDIX B.

SUMMARY OF “ALTERNATIVE PLAN”

In order to approach these problems from a fresh point of

view, the School Board, with the assistance of the staff, devised

an overall educational program commonly known as the “Alter-

native Plan”. [Exhibit L]. By a vote of four to one, the Board

approved the Alternative Plan and set about its implementation.

{R. T. 101]. The principal features of the Alternative Plan are:

(1) It applies only to grades kindergarten through six.

(2) It reinstates the K-6 school and abolishes the present

bifurcated system of having separate schools for grades

kindergarten through three and grades four through six.

(3) Each school, in addition to its traditional program,

will have a specialized “mini-school”. The curriculum and

size of the mini-schools would be determined by parent

and student interest. Programs would vary among schools

and would include a fine and performing arts program.

Other programs are listed at C.T. 160-62.

(4) Any student may attend any school in his area.

The ethnically-balanced areas are retained from the Pasa-

dena Plan.

(5) Transportation will continue to be furnished at

District expense.

(6) Mini-school programs will be allocated among the

various schools so as to maximize integration within the

School District.

(7) Schools will be paired with other schools in the

District and students from each pair of schools will jointly

attend “shared experiences.” This program will be imple-

mented only if racial imbalance occurs at any school.

(8) All other features of the Pasadena Plan will be

retained. Therefore, hiring, promotion, construction, trans-

fer and grouping policies will all be administered so as

to enhance racial balance within the District.