Petition — Carr v. Montgomery County Board of Education

Sup:eme Court, U. &

In THE

: ICHAEL RODAK, JR., CLERK

Supreme Court of the United peiis

Arutam Carr, JR., et al.,

and

PeneLore ANNE JENKINS, et ai.,

Petitioners,

vs.

Montcomery County Boarp or Epvucation, e¢ al.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Jack GREENBERG

James M. Nasait, III

Drew S. Days, III

CHuarLes STEPHEN RALSTON

Metvyn LEVENTHAL

10 Columbus Circle

New York, New York 10019

Sotomon S. Szay, JR.

Frep T. Gray

Gray, Seay and Langford

352 Dexter Avenue

Montgomery, Alabama 36104

Howarp A. MAaNnDELL

212 Washington Building

P.O. Box 1904

Montgomery, Alabama 36103

Attorneys for Petitioners

ee _ eee

INDEX

PAGE

I TD erecsccsestersetinctocoresisnissivntecnisnanimmninatammmaniinatiiiie 1

I Gir ninintiinssctinnncvititiilitiiamnenanicnnianrisiatniiinsitititiatn 2

8 ge ne ee 2

Constitutional Provisions Involved .................---......0--:-+ 3

Ek ne Rane e 3

History of The Litigation ...............................c-cs--220- 3

The Montgomery County System ............................ 5

1974 Desegregation Proposals ......................---:--+-00++-+ 7

The District Court Opinion ................2.......:.-seceese0-e+ 10

The Court of Appeals Opinion ......................:---+-- 11

Reasons for Granting the Writ—

A. The Decisions of the Courts Below Approving

a Desegregation Plan Which Leaves Significant

Numbers of Black Children In One-Race

Schools Conflict with Controlling Decisions of

ID III sci ines coeeiiieenennetssstieneenesdedemmaabeeiiaimiediisialuits 12

B. The Decisions of the Courts Below Approving

An Ineffective Desegregation Plan Which Un-

equally Burdens Black Children In Order to

Reduce The Likelihood of White Flight Conflict

With Controlling Decisions of This Court ........ 21

Oe ae a 93

a ee ee

li

PAGE

TABLE oF CaSsEs

Brown v. Board of Education (Brown II), 394 U.S.

a aliens 21

Carr v. Montgomery County Board of Education, 232

F.Supp. 705 (M.D. Ala..1964) -........2...02..0....:c..00-20 4,14,15

Carr v. Montgomery County Board of Education, 253

F.Supp. 306 (M.D. Ala. 1966) .......000 ad a 4

Carr v. Montgomery County Board of Education, 289

F.Supp. 647 (M.D. 1968), aff'd, 400 F.2d 1 (5th Cir.

1968), rehearing denied, 402 F.2d 782, aff'd sub nom.

United States v. Montgomery County Board of

Education, 395 U.S. 225 (1969) .........00.000....... 4,6, 15, 16, 18

Carr v. Montgomery County Board of Education, 429

ee ee Ee EG. HRIUIE dniciisstinabinesiecceesnrctieninseeel 4,6,17

Cooper v. Aaron, 358 U.S. 1 (1958) ...0020.02.. ee 21

Davis v. School Commissioners of Mobile County, 402

Ss Oe RTE ceresiccenccitecnctes PEI GMb 3, 12, 13, 14, 20, 21

Ellis v. Board of Public Instruction of Orange County,

eS EF OE BER nT eS RL 10, 13

Ellis v. Board of Public Instruction of Orange County,

465 F.2d 878 (Sth Cir. 1972), cert. denied, 410 U.S.

ES De SSE ees Eg Ae ee) | ae va 13

(rreen v. County School Board of New Kent County,

Se Cee: SY IE pices iticninineeneiteenerebiaeutana 13n

Keyes v. School District No. 1, 413 U.S. 189 (1973) ....19, 20

Monroe v. Board of Commissioners, 391 U.S. 450

iii

PAGE

Swann v. Charlotte-Mecklenburg Board of Education,

Ge se OD haetiliitct din 3, 4, 8n, 12, 13,

| 14, 18, 19, 20

United States v. Jefferson County Board of Education,

380 F.2d 385 (5th Cir. 1967) en banc, cert. denied,

eS I SU EET DD colic clalicndsiia dls lated cdeceseasiuaneicidacmesumabiiieen 6

In THE

Supreme Court af the United States

October Term, 1975

Artam Carr, Jr., et all.,

and

PeneLore ANNE JENKINS, ef all.,

Petitioners.

vs.

Montocomery County Boarp or Epvuca‘tion, ef al.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioners pray that a writ of certiorari issue to review

the judgments of the United States Court of Appeals for

the Fifth Circuit entered in the above-entitled cause on

April 11, 1975, and June 27, 1975.

Opinions Below

The District Court opinion of May 22, 1974 is reported

at 377 F.Supp. 1123 (M.D. Ala. 1974) and is printed in

the appendix hereto,’ App. la; the Court of Appeals opin-

icon of April 11, 1975 affirming the District Court is re-

ported at 511 F.2d 1374 (5th Cir. 1975) and is printed in

The appendix to this petition is being printed separately pur-

suant to Rule 23.1(i) of this Court.

2

the appendix hereto, App. 44a; the Court of Appeals

opinion of June 27, 1975 denying rehearing and rehear-

ing en banc is reported at 511 F.2d 1390 (5th Cir. 1975)

and is printed in the appendix hereto, App. 78a.

Jurisdiction

The judgment of the Court of Appeals was entered on

April 11, 1975 (App. 44a). On June 27, 1975, the Court

of Appeals denied application by petitioners herein for re-

hearing en banc (App. 78a). The jurisdiction of this Court

is invoked under 28 U.S.C. Section 1254(1).

Questions Presented

On May 22, 1974, the District Court approved the im-

plementation of a desegregation plan for Montgomery

County, Alabama schools submitted to it by the Mont-

gomery County Board of Education. The plan retains

eleven virtually all-black elementary schools, enrolling ap-

proximately 57% of the system’s black elementary school

population, and leaves approximately 40% of the County’s

black junior high school students in virtually all-bleck

facilities. It employs no conventional desegregation mea-

sures such as pairing or clustering whatsoever, relying in-

stead upon neighborhood zoning and the assignment of

black students previously enrolled in five virtually all-black

elementary schools, closed under the plan, to predomi-

nantly white schools. No white children, only blacks, are

transported under the plan for purposes of desegregation.

Alternative plans submitted by petitioners which achieved

greater desegregation than the Board’s plan through re-

liance upon pairing and clustering were rejected by the

district court based, in part, on its determination that

white children would withdraw from the system if as-

3

signed to traditionally black schools. The district court

was affirmed by the Court of Appeals for the Fifth Circuit

on April 11, 1975. The questions presented here to this

Court are as follows:

1. Do the decisions of the courts below conflict with

this Court’s decisions in Swann v. Charlotte-Meck-

lenburg Board of Education, 402 U.S. 1 (1971) and

Davis v. School Commissioners of Mobile County,

402 U.S. 33 (1971) requiring that such techniques

as pairing and clustering of non-contiguous school

zones and other measures be resorted to where

their utilization achieves the greatest possible de-

gree of actual desegregation;

2. Do the decisions of the courts below conflict with

this Court’s decision in Monroe v. Board of Com-

missioners, 391 U.S. 450 (1968) holding that ap-

prehensions that white students might flee the sys-

tem cannot justify the acceptance of a less than

effective desegregation plan.

Constitutional Provisions Involved

This case involves the Equal Protection Clause of the

Fourteenth Amendment to the Constitution of the United

States.

Statement of the Case

History of The Litigation

This school desegregation action was commenced on May

11, 1964 on behalf of the class of black children eligible to

attend the public schools of Montgomery, Alabama.* On

_ + The history of petitioners’ efforts to achieve a unitary system

in Montgomery County, Alabama between the date suit was com-

4

August 18, 1972 petitioners filed a motion for further relief

seeking greater desegregation, pursuant to this Court’s

decision in Swann, supra, in light of an enrollment report

submitted by the Board to the district court which reflected

the continued existence of numerous one-race schools with-

in the Montgomery County system. On August 29, 1973,

pursuant to the joint motion of petitioners and the Board,

the district court entered an order approving the closing

of a virtually all-black elementary school and assigning

of its students to a predominantly white facility and the

transferring of certain white students from a predom-

inantly white junior high to a predominantly black facility

and establishing a schedule for the submission of further

suggestions for eliminating “such one-race schools as may

be required by Swann v. Charlotte-Mecklenburg Board of

Education, [citation in original omitted] .. .”.

On September 7, 1973, a motion to intervene was filed

by the American Friends Service Committee and thirty-

four Montgomery students. Intervention was eventually

granted as to the individual applicants, Jenkins et al (peti-

tioners herein) by order of February 15, 1974.

Pursuant to the district court’s orders of August 29,

1973 the Board submitted a desegregation proposal on

January 15, 1974. This submission was initially modified

on March 29, 1975. The proposed plan of petitioners Carr,

et al., herein (“plaintiffs” in tre trial court) was filed on

menced in May, 1964 and June, 1970 is amply chronicled in re-

ported opinions by the district court, Court of Appeals for the

Fifth Cireuit and by this Court. Carr v. Montgomery County

Bd. of Education, 232 F.Supp. 705 (M.D. Ala. 1964) ; 253 F.Supp.

306 (1966); 289 F.Supp. 647 (1968), aff'd, 400 F.2d 1 (5th Cir.

1968), aff'd, sub nom. United States v. Montgomery County Board

of Education, 395 U.S. 225 (1969); and 429 F.2d 382 (5th Cir.

1970). The United States was formally designated amicus curiae

by the district court in July, 1964 and has played an active role

in proceedings since that date.

ee ee ee er

5

February 16, 1974. Alternative plans were submitted by

petitioners Jenkins, et al. herein (“plaintiffs-intervenors

in the trial court) on April 1, 1974. After discovery depo-

sitions and evidentiary hearings conducted during April,

1974, the Board submitted further modifications of its pro-

posed plan on May 8, 1974.

On May 22, 1974, the district court issued its opinion

and judgment approving the Board’s plan in its entirety

for implementation commencing with the 1974-75 academic

year. Carr v. Montgomery County Board of Education,

377 F.Supp. 1123 (M.D. Ala. 1974), App. la. On April 11,

1975, the Court of Appeals for the Fifth Circuit affirmed,

per curiam, the district court’s approval of the Board’s

plan “for the reasons set forth in its opinion”; one mem-

ber of the panel, Judge Goldberg, dissented. Carr v.

Montgomery County Board of Education, 511 F.2d 1374

(5th Cir. 1975), App. 44a. Rehearing and rehearing en

banc were denied by the Court of Appeals on June 27,

1975, Judge Goldberg, joined by Circuit Judges Brown,

Wisdom and Thornberry, dissenting. 511 F.2d 1390 (5th

Cir. 1975), App. 78a.

The Montgomery County System

Montgomery is a consolidated city-county school system

which in 1973-74 operated some 53 schools, including special

facilities, enrolling approximately 36,016 students of which

17,042 (47%) were black and 18,974 (53%) were white.

Thirty-six elementary schools enrolled 18,449 students

(9,279 or 50%. black) ; thirteen junior highs enrolled 9,644

students (4,390 or 45% black); and five high schools en-

rolled 7,923 students (3,373 or 43% black). Seven of these

facilities were located in the County outside Montgomery

City. The Board’s Fall, 1973 report shows that the system

had a variety of grade structures among its various build-

ings offering a regular mstructional program:

6

30 Elementary schools serving grades 1-6

6 Elementary-Junior High Schools serving grades 1-9

7 Junior High Schools serving grades 7-9

4 Senior High Schools serving grades 10-12

1 Senior High School serving grades 7-12

The Montgomery County schools operated pursuant to

a freedom of choice desegregation plan, in conformity with

the requirements of United States v. Jefferson County

Board of Education, 380 F.2d 385 (5th Cir. 1967) en banc,

cert. denied, 389 U.S. 840 (1967), during the academic years

1967-68, 1968-69 and 1969-70. In August, 1969 the district

court observed that three years of free choice had failed

to eradicate the duality of the Montgomery County school

system and that other means would have to be found to

achieve further desegregation. Of some 68 schools oper-

ated at all grade levels at that time, four enrolled only

white students and 26 had all-black enrollments. The

district court’s order of February 24, 1968 pointed out that,

out of a school population of approximately 15,000 blacks

and 52,000 whites, only 550 blacks and no whites were

attending schoois enrolling children predominantly of the

opposite race under freedom of choice. 289 F.Supp. 647,

649-50.

In 1970, the district court approved a Board desegrega-

tion proposal which, as modified in minor detail in 1972

and 1973, assigned students to schools in basically two

ways: within the city limits of Montgomery, a geographic

zone was established for each school, and students residing

within that zone attended the school, except for majority-

to-minority transferees. (See, 429 F.2d 382, at 386); out-

side Montgomery City, students fell within loosely defined

“periphery” zones, except for students in extreme southern

Montgomery County. Almost all students in “periphery”

7

zones were transported to school by bus, and most were

assigned to schools in the city. In no instance was pairing

end clustering, of either contiguous or non-contiguous

schools of oppesite racial composition, resorted to under

the approved Board plan.

In 1973-74, these assignment techniques resulted in

the continued maintenance of many racially-identifiable

schools. Fifteen of thirty-six elementary schools were 87%

or more black; seven of thirteen junior high schools were

85% or more black; and two senior high schools were more

than 85% black.

1974 Desegregation Proposals

The district court had three desegregation proposals be-

fore it, one prepared by the Board, one submitted by peti-

tioners Carr, et al. (referred to as “plaintiff<’ plan” in

the opinions below) and one, containing several variations,

offered by petitioners Jenkins, et al. (referred to as “plain-

tiffs-intervenors” plan).

The Board’s plan relied upon satellite zoning of black

students primarily, reassignment of “periphery” pupils,

rezoning, and black school closings, but eschewed any re-

ciprocal transportation of white students to black schools, #,

pairing or clustering. It projected that almost 60% of/ \

Montgomery County’s elementary students would remain

in eleven disproportionately and indentifiably black facil-

ities and that two junior high schools over 70% black

would be retained. More specifically, the Board plan pro-

posed closing five previously virtually all-black elementary

schools and assigning some of the students from those

schools to predominantly white schools and reassigning

approximately 400 black students at another virtually all-

black school to predominantly white schools. No white

elementary school students were to be reassigned to a

2

8

school that would remain predominantly black. Conse-

quently, 55% of the black elementary school population

was to be enrolled in facilities 87% or more black; 44%

of them was scheduled to attend elementary school 93%

or more black.

The plan of Petitioners Carr, et al. (“plaintiffs”) was

prepared by Dr. Gordon Foster, Director of the Florida

School Desegregation Center. Dr. Foster’s plan was based

upon the flexible guideline that racially unidentifiable

schools in Montgomery should not, in general, vary more

than 15% above or below the system-wide population, al-

though he made “no attempt to press the schools within

that mold.” * His plan dealt only with Montgomery City

schools. Dr. Foster prepared a plan based upon the board’s

1973-74 zones which fully desegregated all city schools

through the use, at the elementary level, of pairing and

clustering, with some modification of the zones, primarily

through reassignment of “periphery” students. Dr. Foster

proposed desegregation of all secondary schools within the

city using the same basic techniques as the school board:

closing one black junior high, rezoning, and reassigning

transported students from the periphery area. Under his

plan, elementary schools would have had a 1-3 or 4-6

structure; capacities did require deviation, however, in two

pairings, where the division of grades was 1-2, 3-6 and 1-4,

5-6, respectively. Dr. Foster’s plan would have also re-

quired an increase in the number of pupils being trans-

ported in this system, although the times and distances of

travel wonld have been no greater than those for many

*In so doing, Dr. Foster acted in the spirit of this Court’s hold-

ing in Swann, supra, at 25, that “Awareness of the racial com-

position of the whole school system is likely to be a useful start-

ing point in shaping a remedy to correct past constitutional vio-

ations.”

9

students bused in the south county, in “periphery” areas

or to be reassigned across the city under the Board’s plan.

The plan of petitioners Jenkins, et al. (“plaintiffs-

intervenors”) was devised by Dr. Larry Winecoff, former

Director of the South Carolina School Desegregation Cen-

ter. Dr. Winecoff first sought to achieve the maximum

desegregation feasible through alteration of attendance

zones in a contiguous fashion, within the school board’s

walking-distance regulations (a 24% mile radius from any

school). He also made use of the existing “periphery”

transportation zones. This contiguous rezoning took the

form of “strip zones” across the city from east to west,

or northwest to southeast. In order to achieve any sub-

stantial desegregation at the elementary level with this

technique, Dr. Winecoff restructured elementary schools

into primary (1-3) and intermediate (4-6) school centers.

He further determined, however, that even with this

grade restructuring and alteration of zone lines, 14 ele-

mentary schools would remain racially identifiable. He

therefore, pursued means of increasing the degree of de-

segregation at the elementary level, selecting the method

of creating satellite, cross-busing sub-zones between cer-

tain of the grade 1-3 zones he had drawn. Winecoff’s “Plan

A”, therefore, consisted of the following components: new

zone lines and proposals for some cross-transportation,

using satellite zones, at grades 1-3; new zone lines at grades

4-6; new zone lines at grades 7-9; and new zone lines for

the senior high schools, grades 10-12.

Like Dr. Foster’s plan, Plan A required transportation

of additional students by the Montgomery County system.

But, the distances to be travelled under Dr. Winecoff’s plan

were well related to those traversed by “periphery area”

buses carrying Montgomery County students under: the

Board’s 1970 desegregation plan.

10

The District Court Opinion

The district court’s May 22, 1974 approval of the Board

desegregation plan for implementation at the commence-

ment of the 1974-75 academic year, App. la., was avowedly

premised upon its view that such an arrangement satisfied

the tests for the establishment of a unitary system arti-

culated by the Court of Appeals for the Fifth Circuit in

Ellis v. Board of Public Instruction of Orange County, 423

F.2d 203 (5th Cir. 1970), App. 25a. There, the Court of

Appeals held that a neighborhood assignment plan, under

which an elementary school student normally attended the

school nearest his home, could pass constitutional muster

if it observed a strict proximity rule (ignoring man-made

or natural boundaries) and was effective to establish a

unitary system. Ellis, supra at 207-208. While acknowledg-

ing that the Board’s plan did not comply strictly with Ellis’

requirements, the district court observed that the “prin-

ciple” of that decision was respected, and that, where a

school district’s desegregation process remained under

“judicial scrutiny”, such deviations could not be regarded

as constitutionally fatal, App. 28-29a. The schools left

to serve virtually all-black enrollments under the Board’s

plan were, according to the district court, “the result of

residential patterns and not of the school board’s action—

either past or present”, App. 18a. It remarked approv-

ingly that most of the black children assigned to racially

identifiable elementary schools could look forward to at-

tending substantially desegregated junior and senior high

school facilities, App. 18a. In defending its preference

for the Board’s plan over those submitted by petitioners,

the district court asserted that the latter plans proposed the

establishment of fixed racial quotas for the student popu-

lation in each school, an approach contrary to prevailing

doctrines, as it understood them, and reliance upon satel-

11

lite zoning, clustering and pairing techniques that would

have a disruptive influence upon the system, infra, p. 16a.

In any event, such approaches would, in the court’s view, re-

quire cross-city busing which would increase the time and

distances students would have to travel and still not “ac-

complish any effective or realistically stable desegrega-

tion”, App. 18a. The district court continued in effect

existing majority-to-minority provisions and appointed a

biracial committee to assist the Board in achieving further

desegregation, infra, pp. 33, 35-37a.

The Court of Appeals Opinion

In a per curiam opinion of April 11, 1975, the Court of

Appeals for the Fifth Circuit affirmed the district court

judgment in its entirety, App. 44a. Pointing to “reasons

set forth” in the lower court’s opinion as justifying its

action, the Court of Appeals concluded its terse opinion

by remarking that it had taken note of the “history of this

litigation” and that the system had been and would con-

tinue to be under close judicial scrutiny insofar as desegre-

gation was concerned, App. 44a. In the lengthy and schol-

arly dissent, App. 46a, one member of the panel, Judge

Goldberg, set forth an analysis of how the district court’s

opinion diverged significantly from school desegregation

principles established by this Court and his own Circuit,

concluding that “the district court erred in adopting the

School Board plan, because that plan falls short of the con-

stitutional mark, and because there is no indication of the

unworkability of a constitutional remedy.” App. 47a.

12

Reasons for Granting the Writ

A. The Decisions of the Courts Below Approving a Deseg-

regation Plan Which Leaves Significant Numbers of Black

Children In One-Race Schools Conflict with Controlling

Decisions of This Court.

In Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1 (1971) and Davis v. Board of School Commis-

sioners of Mobile County, 402 U.S. 33 (1971), this Court

made clear that, in school systems previously segregated

by race pursuant to state law, the continued existence of

one-race schools should be regarded as a vestige of this

prior unconstitutional discrimination, not the consequence

of adventitious demographic change. Any attempts to dis-

mantle such dual systems, these decisions teach, may not

rely upon approaches, including so-called neighborhood

assignment plans, that would perpetuate the effects of past

segregative practices. Instead, where necessary “to achieve

the greatest possible degree of actual desegregation,” such

districts should resort to a variety of school assignment

practices such as reasonable pairing, clustering and

transportation.

The district court in this litigation, effectively dis-

regarded these now-familiar doctrines by ordering the

implementation of a “neighborhood assignment plan” for

the Montgomery County, Alabama school system which

projected the assignment of almost 60% of the system’s

black elementary students to eleven schools more than

80% black. Pairing, clustering and additional transporta-

tion of students were found by the district court to be

“impracticable” and unnecessary since the remaining

virtually all-black schools were the result of residential

patterns completely unaffected by Board conduct, past or

=,

13

present.‘ This was so, held the district court, despite the

judicial record it established as to the existence of a

totally segregated system in Montgomery in 1964 and of

overt segregative acts by the Board as late as 1968. Peti-

tioners respectfully submit that if a district court, with

appellate court approval, can condone the continued isola-

tion of large numbers of black children in segregated

schools in a system which has had such a recent history

of discriminatory practices as does Montgomery County,

Alabama on the ground that the result is dictated by

residential patterns, this Court’s decisions offer little

realistic promise of achieving equal education. The district

court by adopting the Ellis v. Board of Public Instruction

of Orange County, 423 F.2d 203 (5th Cir. 1970) neighbor-

hood assignment plan as the standard against which the

Board’s proposal should be measured, in effect revived an

approach to desegregation explicitly rejected in Swann

and Davis. The Court of Appeals, by affirming the lower

court and refusing en banc rehearing, has left standing a

decision that conflicts with many of its own decisions subse-

quent to Swann, including a subsequent order requiring

desegregation beyond that achieved through neighborhood

assignments in the very case upon which the district court

placed such great reliance. See Ellis v. Board of Public

Instruction of Orange County, 465 F.2d 878 (5th Cir. 1972),

*The district court’s approach violates not only Swann and

Davis, but Green v. County School Board of New Kent County,

391 U.S. 430 (1968) which dictated that only plans promising

“realistically to work”, and “realistically to work now”, should be

approved and that a school board would have a heavy burden to

justify “its preference for an apparently less effective method”

at 4399, in the face of more promising alternatives. Here the

Board did not offer, nor did the district court require, any ex-

planation, other than generalized objections to pairing and cluster-

ing, for its limited proposal. See Judge Goldberg’s remarks in this

regard, App. 63a-65a.

14

cert. denied, 410 U.S. 966 (1973). In so doing, the Court of

Appeals, after years of faithful adherence to the principles

of Swann, has decided to encourage trial courts in its

circuit to evaluate desegregation plans according to

standards it followed prior to Swann and Davis.

No more effective indictment can be found of the district

court’s determination that the eleven remaining virtually

all-black schools were the consequence of residential pat-

terns, we submit, than the record made by that very court

since this school desegregation case was filed in May, 1964.

It duly catalogues the variety and persistence of Board

actions to create, maintain and perpetuate the racially dual

system in Montgomery County, Alabama.

In its July 31, 1964 order, the district court found that:

1. through policy, custom and practice, the Montgom-

ery County Board of Education, operated a dual

system based upon race and color. 232 F.Supp.

705, at 707;

teachers were assigned according to race. Id., at

707 ;

3. there were schools designated for and solely at-

tended by white students that were in closer prox-

imity to the homes of black students than were

the schools designated for the black students.

Id., at 707;

4. students using the transportation facilities—school

buses—were segregated according to race and

transportation was furnished by the defendants for

blacks only to schools attended solely by black stu-

dents and for white students only to schools at-

tended solely by white students. Id., at ‘707;

to

15

5. the “feeder system” had been set up, was based, and

was presently operating on distinctions of race and

color. Id., at 707;

6. strong considerations of race had figured in the

disbursement of school funds for maintenance,

operation and construction in the Montgomery

County school system. /d., at 708;

7. the Montgomery County Board of Education had

made and was presently making assignments and

transfers of students on the basis of race notwith-

standing the provisions of the Alabama Placement

Law. Id., at 709.

As the district court remarked in a later opinion with re-

spect to the status of desegregation in Montgomery County

prior to 1964:

From 1954—when the Supreme Court of the United

States put the Montgomery County School Board and

other school boards throughout this country on notice

that they could not continue under the law to operate a

dual school based on color—until this Court found it

necessary to enter an order on July 13, 1964, requiring

commencement of the desegregation of public schools

in Montgomery County, Alabama, the Montgomery

County, Board of Education had taken no steps and

had made no plans whatsoever to comply with the law

of this land in the area of school desegregation. 289

F.Supp. 647, at 657.

In its order of February 24, 1968, the district court

found that:

1. the defendants through their agents—the principals

and coaching staffs—had adopted a policy of

scheduling interscholastic athletic contests for its

16

traditionally white schools only with other tradi-

tionally white schools, and for its traditionally

black schools, only with other traditionally black

schools and that this manner of operating the

athletic program had and continued to have the

effect of influencing the choice of students within

the system. 289 F.Supp. 647, at 651;

the defendants had continued to construct new

schools and expand some existing schools [and

that] the construction of new schools with proposed

limited capacities geared to the estimated white

community needs and located in predominantly

white neighborhoods and the expansion of the

existing schools located in predominantly black

neighborhoods had violated both the spirit and the

letter of the desegregation plan for the Montgomery

County School System. Jd., at 651;

3. the defendants had failed to eliminate the bus

routes where there existed overlapping and duplica-

tion based upon race. /d., at 651;

bo

4. the defendants could not justify nor excuse any fur-

ther delay [in the area of desegregation of facili-

ties and staffs] upon the ground that some of the

teachers were reluctant to teach in the schools pre-

dominantly of the opposite race. Id., at 653; and

5. unless the “freedom of choice” plan were more effec-

tively and less dilatorily used by the defendants

in this case, the court would have no alternative

except to order some other plan used. Id., at 653.

And, by August, 1969, the district court had concluded that

the freedom-of-choice plan in effect since 1967, had not

been successful in disestablishing the dual system and

17

offered no realistic promise of being effective in the reason-

ably near future. 429 F.2d 382, 384 (5th Cir. 1970).

Contrary to the district court’s contentions, most of the

eleven virtually all-black elementary facilities left under

the plan it approved for the 1974-75 academic year per-

petuate the discriminatory practices previously designed to

maintain a racially-dual system. As the following chart

demonstrates, eight of eleven schools were all-black in

1967-68 (when the court found the Board actively engaged

in segregation), remained all-black or virtually all-black

through 1968-69, (when the court found that freedom-

of-choice was a failure) up to 1973-74 (during the opera-

tion of the Board’s desegregation proposal initiated in

1970) and were projected to remain all-black by the Board

under its plan for 1974-75:

Black Enrollment Ratios

School Name 1967-68 1968-69 1973-74 1974-75

(Projection

in Board's

plan)

Booker T. Washington 100 100 98 98

Carver 100 100 99 99

Daisy Lawrence 100 100 98 98

Dunbar 100 100 87 87

Fews 100 100 99 99

Hayneville Road 100 100 96 95

Loveless 100 100 100 99

Paterson 100 100 94 94°

* Appendia A to Judge Goldberg’s dissent, App. 76a estab-

lishes that the Board’s predictions of black enrollments for these

schools were generally accurate except in the case of three schools

where actual black enrollments for fall 1974 exceeded projections:

Dunbar (91% black); Fews (100% black) and Hayneville Road

(97% black) ; and his Appendix B points out that two junior high

schools scheduled to enroll significant numbers of whites were ac-

tually substantially black for 1974-75: Badwin Jr. (73% black

projectiou; 85% black enrollment) and Bellingrath (62% black

projection; 81% black enrollment).

a —eGVOO™

18

Thus, these schools were established before any desegre-

gation, they have always been black schools, and will con-

tinue to be unless an effective plan is implemented. More-

over, it is interesting to note that Carver High School

(located on the same site as Carver Elementary) and

Hayneville Road Elementary were cited by the district

court in its February 24, 1968 opinion as examples of

facilities that had been expanded by the Board to perpetu-

ate segregation. 289 F.Supp. 647, 651.

This Court observed in Swann, that school board policies

with respect to expansion, construction, closing and loca-

tion of school facilities may promote segregated residential

patterns:

People gravitate toward school facilities, just as

schools are located in response to the needs of people.

The location of schools may thus influence the patterns

of residential development of a metropolitan area and

have important impact on composition of inner-city

neighborhoods.

In the past, choices in this respect have been used as

a potent weapon for creating or maintaining a state-

segregated school system. In addition to the classic

pattern of building schools specifically intended for

Negro or white students, school authorities have some-

times, since Brown, closed schools which appeared

likely to become racially mixed through changes in

neighborhood residential patterns. This was some-

times accompanied by building new schools in the

areas of white suburban expansion farthest from

Negro population centers in order to maintain the

separation of the races with a minimum departure

from the formal principles of ‘neighborhood zoning.’

Such a policy does more than simply influence the

19

short-run composition of the student body of a new

school. It may well promote segregated residential

patterns which, when combined with “neighborhood

zoning,” further lock the school system into the mold

of separation of the races. Upon a proper showing a

district court may consider this in fashioning a

remedy. 402 U.S. 1, at 20-21.

More recently, this Court in Keyes v. School District No. 1,

413 U.S. 189 (1973), pointed out similarly that:

the use of mobile classrooms, the drafting of transfer

policies, the transportation of students, and the

assignment of facility and staff on racially identifiable

bases, have the clear effect of earmarking schools

according to their racial composition, and this, in turn,

together with the elements of student assignment and

school construction, may have a profound reciprocal

effect on the racial composition of residential neigh-

borhoods within a metropolitan area, thereby causing

further facial concentration within the schools. 1d,

at 202.

These characterizations aptly describe the extent to which

Board policies created and maintained one-race schools in

Montgomery County, Alabama. Swann, supra, clearly

dictates that one-race schools created by Board action must

be desegregated : |

... Ina system with a history of segregation the need

for remedial criteria of sufficient specificity to assure

a school authority’s compliance with its constitutional

duty warrants a presumption against schools that are

substantially disproportionate in their racial composi-

tion. Where the school authority’s proposed plan for

conversion from a dual to a unitary system contem-

PPPPPO 202 Depeerpepey

20

plates the continued existence of some schools that

are all or predominantly ~f one race, they have the

burden of showing that such school assignments are

genuinely non-discriminatory. The court should

scrutinize such schools, and the burden upon the school

authorities will be to satisfy the court that their racial

composition is not the result of present or past dis-

criminatory action on their part. 402 U.S. 1, at 26.

Pairings and groupings of non-contiguous zones may be

resorted to even where “administratively awkward, incon-

venient and even bizarre” during the interim period de-

signed to eliminate the dual system, in view of the fact

that assigning children to schools nearest their homes

may not serve to dismantle a system deliberately con-

structed to enforce racial segregation. 402 U.S. 1, 28.

The district court, heedless of this Court’s conclusion in

Swann and Keyes that such schools must be regarded as

perpetuations of school board segregative policies and,

hence, disestablished, held that eleven virtually all-black

schools need not be desegregated since they arose as a

result of residential patterns. It based its conclusion not

upon any evidence but rather as implicitly true because

“the population of Montgomery is so arranged that whites

largely live on the east side of the city and blacks on the

west” App. 16a. Certainly, if the district court’s con-

clusion that Montgomery County, Alabama one-race schools

are the products of segregated residential patterns which

its Board had no hand in creating, then any other school

system previously segregated by law should have no diffi-

culty satisfying the same standard. It is squarely contrary

to this Court’s lecision in Davis, supra, where the existence

of residential segregation in Mobile was rejected as a justi-

fication for the school board’s failure to desegregate its

21

all-black schools. 402 U.S. 33, 36. Nothing could more

effectively assure success to those boards which have been

fighting since 1954 to avoid implementing Brown, supra

than leaving the district court ruling undisturbed.

B. The Decisions of the Courts Below Approving An Ineffec-

tive Desegregation Plan Which Unequally Burdens Black

Children In Order to Reduce The Likelihood of White

Flight Conflict With Controlling Decisions of This Court.

This Court’s decisions in Brown II, 349 U.S. 294, 300

(1955), Cooper v. Aaron, 358 U.S. 1 (1958) and Monroe v.

Board of Commissioners, 391 U.S. 450, 459 (1968) establish

that no more basic error can be committed in efforts to

achieve desegregation than to yield to community opposi-

tion. In Monroe, this Court stated:

Respondent’s argument in this Court reveals its pur

pose. We are frankly told in the Brief that without

the transfer option it is apprehended that white stu-

dents 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 disagreement with them. Brown IT,

at 300, 99 L.Ed. at 1106. 391 U.S. 450, at 459.

Here, the district court violated this principle.

To the extent that the approved plan achieves any mean-

ingful desegregation, it does so in a fashion that unduly

burdens black children and their parents. Under the

Board’s proposal, five previously all-black schools are

the only facilities closed; only black children are assigned

to elementary schools enrolling predominantly students of

the opposite race; and only blacks are transported for

desegregation. The Board’s plan imposed this unequal

burden upon blacks and the district court approved such

22

provisions to reduce the level of white opposition to deseg-

regation and discourage “white flight.” Hence, the district

court concluded that satellite zoning and cross-city busing

of white students to desegregate further the remaining

virtually all-black schools would not accomplish “stable

desegregation” and should, therefore, be dismissed as

viable alternative techniques to neighborhood zoning. App.

18a. In so doing, that court improperly rejected consti-

tutionally-acceptable and effective techniques for achieving

meaningful desegregation simply because of apprehension

that white citizens of Montgomery County, Alabama would

find them intolerable.*

® As Judge Goldberg indicates in his dissent, in this regard:

the district court was persuaded by the school Board’s at-,

tempt to demonstrate that busing of white children into black

neighborhoods to attend traditionally black schools would in

many cases be met with withdrawal of white students from

those schools Infra, p. 64a.

23

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that this Court should issue a writ of certiorari to the

United States Court of Appeals for the Fifth Circuit.

Respectfully submitted,

JacK GREENBERG

James M. Nasrit, III

Drew S. Days, ITI

CHARLES STEPHEN RALSTON

Metvyn LEVENTHAL

10 Columbus Circle

New York, New York 10019

Sotomon S. Szgay, Jr.

Frep T. Gray

Gray, Seay and Langford

352 Dexter Avenue

Montgomery, Alabama 36104

Howarp A. ManpDELL

212 Washington Building

P.O. Box 1904

Montgomery, Alabama 36103

Attorneys for Petitioners