# Petition — White v. Morgan > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1954%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 426 U.S. 935 ## Text IN THE Supreme Couwt of the United State Ocroser TERM, 75 l 44 1 er Kevin H. Wurre, Mayor of the City of Boston, Petitioner, —_—Ve— TALLULAH Moraan, et al., and Joun J. Kernriaan, et al., Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT Rospert E.. Herzsrerw Davin BonDERMAN 1229 Nineteenth Street, N.W. Washington, D.C. 20036 Hersert P. GLEASON Corporation Counsel Kevin F. Mooney Assistant Corporation Counsel Law Department City Hall Boston, Massachusetts 02201 Attorneys for Petitioner Of Counsel: ArnoLp & PorTER Washington, D.C. April, 1976 | TABLE OF CONTENTS PAGE SNE TERI: ssscovtssicsiindnsneiisenieseitasiineereniniiinticcianieaiiinaniiiaiaaiidiiilian 1 IIT. sscucisinicicseentnatehshhieniahinpaitalaiaciinleeapas dialing 2 I TI cctocsesitnttnnsapentsietiniancieadatpniaiiitinistanieiiosins 2 I TD iecieniicienicnnissctienesencnsnterraissninitaincinnn 2 a I ccicescsiritntiniintninsciintariiandipeniigmattinbaasiiiansiaitinii 6 I, Ee GI ccccscrtinccisanicetieticcanictapitindia mmm 7 Reasons for Granting the Wit ....................:ccsccsseeseneesenes 28 aR NA ALT LD I I eS MoE nca eNO EE NTN 36 APPENDICES: A. Opinion of the Court of Appeals... la B. Judgment of the Court of Appeals ...................... 52a C. Opinion of the District Court 20.0.0... eeeeee 54a D. Relevant Sections of the Equal Educational Opportunities Act of 1974, 20 U.S.C. §§ 1701 06 GID: sccccenitnicinenegntindaieentianenitiaisecidiaiininiiapiaicmedeies 109a TABLE oF AUTHORITIES Cases: Brown v. Board of Education IT, 349 U.S. 294 (1955) ... 31 Carr v. Montgomery County Board of Education, 377 F. Supp. 1123 (M.D. Ala. 1974), 511 F.2d 1374, reh. denied, 511 F.2d 1390 (Sth Cir. 1975) ...0.........cc.cesseseeeees 29 PAGE Davis v. Board of School Commissioners, 402 U.S. 33 CRTU ciscisnitbiiniieantaiapstamedinnsaibediidslmiaiiaanieidanl 6, 27, 29, 30, 32 Goss v. Board of Education, 482 F.2d 1044 (6th Cir. 1973), cert. denied, 414 U.S. 1171 (1974) -2000 29 Higgins v. Board of Education, 508 F.2d 779 (6th Cir. STTTLD .wstensitestrisinessbiiaissnitebundaiaenanecintenenninadiaaiiaineimeaantdaaiiiisebinsite 31 Johnson v. San Francisco Unified School District, 339 IF’. Supp. 1315 (N.D. Cal. 1971), vacated on other grounds, 500 F.2d 349 (9th Cir, 1975) 2... eeeeeeeseeeeees 30 Keyes vy. School District No. 1, 413 U.S. 189 (1973) ...... 29 Mayor v. Educational Equality League, 415 U.S. 605 SUTTEED ssnseiceespineasieshiianiimitnceaa ebb eipieainldeiataeiiaaaiias 31 Milliken v. Bradley, 418 U.S. 717 (1974) ...cccceececeseeseeees 30 Missouri Kansas and Texas R. Co. v. May, 194 U.S, 267 ERE. cniccsepinineiitssensaniauiecniasbataletiaipinenininimntianiaiailiduentide 35 Monroe vy. Board of Commissioners, 391 U.S. 450 TEE: vennsvimemsianetennsnbanmegeninenssdneancsinmeininninniibnentds 30 Northeross v. Board of Education, 489 F.2d 15 (6th Cir. 1973), cert. denied, 416 U.S. 962 (1974) ...... eee eeececeees 29 Pate v. Dade County School Board, 434 F.2d 1151 (Sth Cir. 1970), cert. denied, 402 U.S. 953 (1971) ...... 29 Rizzo v. Goode, 44 U.S.L.W. 4095 (January 21, 1976) .... 31 Ross v. Eckels, 434 F.2d 1140 (5th Cir. 1970), cert. gE | eee een 29 PAGE Schoot Committee v. Board of Education, 1973 Masse. Adv. Sh. 275, 292 N.E.2d 870 (1973) ...........c.cccceccorereeeeee 7 Spangler v. Pasadena Board of Education, 519 F.2d 430 (9th Cir.), cert. granted, 96 S. Ct. 355 (1975) ... 30 Swann y. Charlotte-Mecklenburg Board of Education, 5 ere HN 6, 29, 30, 31, 32 United States v. Richardson, 418 U.S. 166 (1974) ........ 35 United States v. Scotland Neck City Board of Educa- eB ee 30, 32 Wright v. Council of the City of Emporia, 407 US. TE ERIE ‘cccendincduniatepessiubiinunundaneneen seikdasniindiaiatabidinaiensaisdigi 30 Constitution and Statutes: Fourteenth Amendment, Section 5 ..............:ccssceeceeeeeeeees 32, 34 Equal Educational Opportunities Act of 1974, 20 U.S.C. Se SE Se ON. cicesicincceweveieiccanhlitanisinilianidinpneniiaianmmemenetmnnin 32 eT ee ee 33 SITE ‘iscisenntesentsntiiimenanabinnn idmiaeinennts 32 EY isthe lainisecsiataLenihine ita caietaeaeimceatienl 33, 34 SEIT sintdtiniteilipsidantsschiamindamaainiienaipmemanemennate 33 SEED diikinsniiepnamvetaionds 33 Other Authorities: Boston Globe alain ll dtaltai 18 January 1, 1975 .............cccecseere vieticieideitedamimiandinaiinsinipniane ‘18 SD Tie TTT eceiersnsinnsinsianienntnninabuinaniinnimcmmninadile 18 I a ae ieacrednainats 16 EE | | iv PAGE Catalogue of the Boston Latin School (1957) ................ 12 O. Handlin, Boston’s Immigrants (Athenaeum ed. 1971) 10 J. Kozol, Death at an Early Age (1967) ...........cseeseseee 12 Prospectus, City of Boston, Massachusetts, General Obligation Bonds (February 26, 1976) ........--..-.-v-e 11 Report of the Special Commission for the Improvement and Extension of Educational Facilities in the Com- mnemwenktts (1906) .nccescsscsssssssssscinenemsesiientniemmmane 12 S. Warner, Streetear Suburbs: The Process of Growth in Boston 1870-1900 (Athenaeum ed, 1973) ................ 9,10 IN THE Supreme Court of the United States Ocroper Term, 1975 aN Kevin H. Wurre, Mayor of the City of Boston, Petitioner, —V.— TaLLuLaH Morcan, et al., and JouHN J. Kerrican, et al., Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT Petitioner Kevin H. White, as Mayor of the City of Boston, respectfully prays that a Writ of Certiorari issue to review the judgment of the United States Court of Appeals for the First Circuit in the above-entitled case. OPINIONS BELOW The opinion of the Court of Appeals is not yet reported, but is reprinted in the Appendix hereto, p. la, infra. The opinion of the District Court for the District of Massachu- setts is reported at 401 F. Supp. 216 and is reprinted in the Appendix, p. 54a, infra.’ Previous opinions of the Court of Appeals and of the District Court in this litiga- tion are reported at 509 F.2d 580 and 379 F. Supp. 410. ‘The appendix to this petition is hereafter cited as “App.” JURISDICTION The judgment of the Court of Appeals was entered.on January 14, 1976. (App. 52a). The jurisdiction of this Court is invoked under 28 U.S.C. 4 1254(1). The basis of jurisdiction in the District Court was 28 U.S.C. § 1343(3). QUESTIONS PRESENTED 1. Whether the District Court, which had before it two different plans both of which would eradicate school segre- gation “root and branch,” erred in refusing, as a matter of law, to consider the extent of busing, the cost, community acceptance, and the potential for resegregation of the schools when choosing between the two plans?’ 2. Whether the Equal Educational Opportunities Act of 1974, 20 U.S.C. §§1701 et seq., required the District Court, in choosing between two desegregation plans, both of which would have satisfied the constitutional mandate to eradicate segregation, to adopt the plan which involved less busing of students? INTRODUCTORY STATEMENT This petition concerns the remedy phase of the Boston school desegregation litigation. The remedy phase is of particular importance because, regardless of the conclusion reached in the liability phase, the actual prospects for meaningful desegregation in Boston, and the social and * The two plans involved are the plan drawn up by the Masters appointed by the District Court and the District Court’s own plan. See pages 14-20, infra. 3 economic effects on the City, will vary greatly depending upon the nature of the remedial decree. The Mayor’s interest in these proceedings is the mainte- nance of Boston’s social stability and financial integrity amidst the far reaching, and in some instances traumatic, changes required to protect the constitntional rights of the City’s school children. Tais case poses a critical problem common to the urban areas throughout the United States: the extent to which, as a matter of law, courts must consider such practicalities as costs, community support, amount of busing, and poten- tial for resegregation in choosing among a number of plans, each of which will eradicate segregation. As the tables at pages 23 and 25, infra, indicate, this case presents a vivid example of the adoption by courts of the most extreme measures when more moderate ones will fully satisfy the requirements of the Constitution and will yield important social, educational, and economic benefits to the community. In the earlier liability phase of this case the District Court found, and the Court of Appeals agreed, that the Boston School Committee (an elected body independent of the Mayor’s control) had maintained a dual and un- constitutionally discriminatory school system. Those find- ings are supported by the record, are final, and are not contested by petitioner. Indeed, the Mayor was not a party to this litigation during the District Court’s consideration of liability. After its finding of segregation, however, the District Court ordered the Mayor added as a defendant with respect to 4 the remedy phase of the litigation’ because he is responsible for the public safety and finances of the City of Boston, including limited financia! control over the Boston public school budget.‘ After the Mayor was joined as a defendant, the District Court entered an order adopting the school desegregation plan which is the subject of this petition. As described further below, the District Court had appointed a panel of four distinguished Masters who held hearings and took detailed account of the particular requirements of the Boston school system. The Masters then recommended a plan which would have eliminated “root and branch” the segregation previously found to exist. The District Court, however, rejected the Masters’ plan in significant respects. As explained below at pages 22-26, there was very little difference in potential for desegregation between the Masters’ plan and the District Court plan. Yet the Dis- trict Court explicitly refused to consider the fact that its plan required the busing of 6,000 more students than did * The Mayor was added as a defendant by an order entered on September 20, 1974. * The School Committee is an elected body of five members. It controls operation of the schools independently of the Mayor's gen- eral executive powers. Under the provisions of Mass. St. 1963 e. 786, § 3, as amended, the Boston School Committee may appro- priate such amounts for the operation of the schools as it had available the preceding year with certain additions, but any addi- tional amounts must be requested from the Mayor and City Coun- cil. All these amounts, including those appropriated by the School Committee, come out of funds raised by the City’s general taxing powers. Thus the School Commiitee’s spending directly and sub- stantially affects the City’s budget and its financial standing. In addition, under Mass. St. 1966 ¢. 642 a department subject to the Mayor’s authority has responsibility for new schoo! con- struction. the Masters’ plan, that the Masters’ plan was well accepted in the community, and that its own plan provoked sub- stantial hostility. Moreover, the District Court ignored all cost considerations and would not consider the possible effects of resegregation caused by its plan. Indeed, the District Court in ordering, and the Court of Appeals in cursorily affirming, those portions of the plan at issue here held that these factors are legally irrelevant. As a con- sequence, in choosing between two constitutionally-satis- factory plans, the courts below chose to impose the most costly plan, the plan most burdensome to students, the plan ieust acceptable to the community, and the plan most likely to cause resegregation of the schools. Boston, in common with other large American cities, is currently encountering major social and economic stresses. Under these circumstances, a reorganization of the City’s most basic and visible every-day function—its school sys- tem—which does not consider practicalities such as cost, burden on students, community support, and resegrega- tion, is bound to have a disruptive impact on the social framework of the City and on the City’s ability to meet the needs of its residents. The result in Boston, as else- where, has been social unrest, dissatisfaction with the schools, and an entirely unnecessary setback to the cause of meaningful desegregation. The courts below evidently believed that imposition of the more onerous desegregation plan was required by this Court’s prior holdings. In the Mayor’s view this conclu- sion was incorrect. This Court’s emphatic mandates to eliminate segregation promptly and thoroughly—expressed in cases where desegregation efforts were plainly dilatory or inadequate—cannot properly be interpreted as auto- matically requiring district judges to adopt the most extreme among a number of alternatives, each of which would fully eliminate segregation. Yet, as this case indi- cates, oft-quoted phrases from this Court’s prior opinions can become slogans used to dignify results that are injurious to desegregation and to the viability cf the City. This case presents the occasion for this Court to clarify its directive to achieve the greatest possible degree of actual desegregation, “taking into account the practical- ities of the situation,” by the adoption of “workable” school desegregation plans. Davis v. Board of School Commissioners, 402 U.S. 33, 37 (1971) ; Swann v. Charlotte- Mecklenburg Board of Education, 402 U.S. 1, 31 (1971). This question is of major importance not only to Boston, but to the future of desegregation and civic vitality in all urban areas of this country. It is deserving of this Court’s attention. STATUTE INVOLVED The relevant sections of the Equal Educational Oppor- tunities Act of 1974, 20 U.S.C. 441701 et seq., are repro- duced in the Appendix, infra, at 109a. 7 STATEMENT OF THE CASE 1. Prior Proceedings in this Litigation Resulted in a Finding of Segregation. On June 21, 1974, the District Court issued its opinion in the liability phase of this litiga- tion. “ae District Court held that the Boston School Com- mittee had knowingly carried out a systematic program of segregation which affected all of the City’s students, teachers, and school facilities and which intentionally estab- lished and maintained a dual school system. 379 F. Supp. at 482. As noted earlier, the Mayor was not a party to this litigation during the District Court proceedings on liability. No party to this litigation has ever suggested that he had any responsibility for creating or maintaining the dual school system. 2. Desegregation Plans Were Submitted by the Parties Pursuant to Court Order. On October 31, 1974, the District Court directed the School Committee to develop and file a desegregation plan for the Boston schools no later than December 16.° The court also ordere¢ that the other parties and any interested community groups would have until January 20, 1975, to file criticisms of the School Committee plan or to file alternative plans. Ultimately, three plans were filed pursuant to the court order—one prepared by the School Committee staff and submitted to the District ° For one school year while the District Court formulated the final order on remedy which is the subject of this petition, the court ordered the Committee to comply with a preexisting racial balance plan drawn up by the State Board of Education pursuant to the Massachusetts Racial Imbalance Law. Mass. Gen. Laws Ann. e. 71, §§ 37C and D and ec. 15, §§ 11, J. and K. See also School Committee v. Board of Education, 1973 Mass. Adv, Sh. 275, 292 N.E.2d 870 (19738). Court although not approved by the School Committee (“the December 16 plan”); one approved by the School Committee; and one prepared by the plaintiffs.’ Criticisms and evaluations of the various plans were then filed by a number of parties, including the Mayor. 3. The District Court Appointed Well-Qualified Masters to Examine the Parties’ Proposals and to Recommend a Desegregation Plan. In view of the complexity of the issues and the numerous suggestions as to appropriate remedies, the District Court, pursuant to FRCP 53, appointed a racially integrated panel of four Masters. The Masters were instructed to hold hearings on the adequacy of the three proposed plans and, if none of them satisfied con- stitutional requirements, to submit a plan of their own. The Masters were Jacob J. Spiegel, a retired Justice of the Massachusetts Supreme Judicial Court; Francis Kep- pel, a former United States Commissioner of Education and a former Dean of the Harvard School of Education; Ed- ward J. McCormack, Jr., a former Attorney General of the Commonwealth of Massachusetts; and Charles V. Wil- lie, a professor at the Harvard School of Education. To aid the Masters, the District Court appointed two experts, Dean Robert A. Dentler and Professor Marvin B. Scott of the Boston University School of Education. 4. The Masters Gave Consideration to Social and Finan- cial Implications of the Desegregation Plans. The Masters held eleven days of evidentiary hearings and personally *In addition, the Boston Ilome and School Association filed a proposed plan. On February 5, 1975, the District Court, after a hearing on the Home and School Association's plan, held that the plan would not be considered because it was constitutionally inade- quate. (App. 65a). 9 visited the City’s neighborhoods and the schools in opera- tion. Counsel for all parties and for a number of com- munity organizations participated in the hearings, which dealt at length with the merits and drawbacks of the plans and suggestions made by the parties and community groups. The Masters then considered in detail the material pre- sented to them by the parties, the views expressed by rep- resentatives of the community, and their own knowledge and available published materials on the City of Boston and its school system. This information included the follow- ing: (a) Boston’s Demography. Most of Boston’s neighbor- hoods started as independent and distinctive cities and towns and were incorporated into the City of Boston as they grew together in the course of the 19th and 20th cen- turies. S. Warner, Streetcar Suburbs: The Process of Growth in Boston 1870-1900, 35-43 (Athenaeum ed. 1973) (hereinafter cited as Warner). As a result, Boston re- sembles a confederation of small towns more than it does a cohesive city. Moreover, the growth of Boston and its neighboring towns was by no means orderly or comprehen- sive. For example, Charlestown, which has been a part of Boston since 1873, is separated from the rest of the City by Boston Harbor and the Charles River and is sur- rounded on its land approaches by the separate cities of Somerville and Cambridge. Similarly, the Brighton-Allston district of Boston is connected to the rest of the City by a strip of land a few hundred yards wide and is otherwise separated from the City by the independent town of Brook- line. There are still more than 50 separately incorporated cities and towns within easy commuting distance of down- town. 10 Boston has received successive waves of newcomers vir- tually since its founding by English colonists in 1630, These include Irish, Italians, Portuguese, Polish, Chinese, Blacks, Spanish-surnamed, and Greeks. See generally O. Handlin, Boston’s Immigrants (Athenaeum ed. 1971). New arrivals have tended to settle—and their descendants to remain— in particular neighborhoods. For example, the North End and East Boston have retained their character as Italian neighborhoods for more than 50 years and Charlestown and South Boston have been largely Irish in composition for at least that period of time. See generally Warner, supra. Due to the geographic isolation of many areas of Boston and the settlement of various neighborhoods of the City by different ethnic groups, the people of Boston to this day have maintained a strong ethni cohesion and deep-rooted traditional attachment to their neighborhoods. These quali- ties can serve as a source of strength and vitality in a large city, and in that respect should not be needlessly disrupted. They can also, of course, create an impediment to school desegregation, especially if residents sre led to feel that their ethnic and neighborhood attachments are being dis- regarded. As explained below, the Masters displayed con- cern for these factors and an ability to deal with them in a constructive fashion. (b) Boston’s Precarious Financial Condition. In the past two decades Boston, in common with most urban areas in this country, has experienced a drastic emigration of the middle class and a substantial immigration of low income residents. As a result, citizens of Boston have been faced with a declining tax base from which to meet vastly increas- ing costs for schools, hospitals, and public services. 11 The table below demonstrates just how greatly the City’s financial requirements have increased in recent years. As the table shows, the budget for the school system has been growing at a rate far greater than the remainder of the city budget. City Budget? Schools Other Services ETE istnsbleisieths $334,176,000* $105,812,000* $228,364,000 1973-74? ............ $364,308,000 $119,854,667 $244,453,333 SD" eniiichinccnsieiies $377,296,000 $126,586,000 $210,710,000 UN issihiniiadieadiac $394,310,000 $154,605,000 $239,705,000 In order to support this budget level, Boston has been forced to raise the rate of its property tax, upon which it depends for most of its revenue, to the near-confiscatory level of $196.70 per $1,000 of assessed valuation. This is by far the highest property tax rate in any major city in the United States, and it is scheduled to increase stil] further in 1977. Despite these high taxation levels, the City has projected a 25-million dollar deficit this year (a sub- stantial portion of which is attributable to the costs of school desegregation)’ and this winter was at the brink of "These figures exclude the costs of contributions to county, metropolitan, and state governments, pensions, and interest. * These figures do not include the projected $16 million deficit now expected in the school budget. * In 1974 the City of Boston changed from a calendar to a fiscal year budget, resulting in a single eighteen-month “year” for 1973-74. The figures used for 1973-74 are adjusted to reflect the costs per twelve months. © See Prospectus, City of Boston, Massachusetts, General Obli- gation Bonds, pp. 23-24 (February 26, 1976), 12 default on certain of its financial obligations. As a result of its precarious financial situation, Boston has been forced to cancel new construction and is facing cutbacks on essen- tial city services such as police, fire protection. and hos- pitals. In addition, the schools themselves are facing significant budget cuts. Quite plainly, the general welfare of both the school children and other residents of Boston required consideration of comparative costs in choosing be- tween constitutionally adequate desegregation plans. (ec) The Educational Problems of the Boston Public Schools. Boston’s school system is the nation’s oldest, dating from the founding of the Boston Latin School on April 23, 1635." But in the past thirty years in particular, the Boston public schools became increasingly deficient in the education they offered students, both black and white. See, e.g., J. Kozol, Death at an Early Age (1967). Indeed, in the 1960's, a special Commission, assigned by the Com- monwealth of Massachusetts to investigate schools, noted that course offerings in the Boston Schools were similar to those two generations earlier. Report of the Special Commission for the Lnprovement and Extension of Eduea- tional Facilities in the Commonwealth, p. 70 (1964). Among the early students of the Boston schools were Benjamin Franklin, Samuel Adams, John Ilanecocek, and Ralph Waldo Emer- son, Catalogue of the Boston Latin School, 11, 20-22 (1957), Boston also built the nation’s first multi-classroom public elemen- tary school, the Quiney school, in 1547. Masters Report, p. 2. The (Juincy School was in use until closed last year. 13 Thus, in the past few years it had become widely recog- nized that reform and improvement of the Boston school system was a matter of some urgency. Despite the severe limitations on the City’s finances, in 1969 the Mayor ini- tiated the most extensive school building program per capita of any city in tie country. But the City’s limited financial resources precluded many other desirable educa- tional advances. In light of this background, the Masters concluded that no desegregation plan would work unless it included substantial and visible educational improve- ments. 5. The Masters Found that All the Plans Submitted by the Parties Were Inadequate. Based upon all the fore- going materials and information, the Masters ultimately issued a lengthy report and detailed desegregation plan (hereinafter cited as “M.R.”). In the report, the Masters unanimously found that all the plans submitted by the parties should be rejected by the District Court because they either did not promise to remedy the segregation or were educationally unsound.’* The Masters found, how- ’? The Masters found that the School Committee’s plan was essentially a freedom-of-choice proposal which would unfairly bur- den the school children and their parent with taking affirmative action to undo the School Committee's prior discrimination and that the plan did not realistically promise to desegregate the schools. M.R. 9-16. The Masters next found that, while the plain- tiffs’ plan would effectively desegregate most portions of the school system, it was educationally inferior because it required an exces- sive number of school changes for certain students: provided for excessive busing; set up unnecessarily complicated zone boundaries ; did not adequately provide for the educational improvements which were sorely needed by the Boston schools; and required the use of a number of school buildings which the Masters believed should be closed to preserve the physical safety of the school children. M.R. 17-25. The Masters also considered the December 16th plan submitted by the School Committee's counsel over the Committee’s objections and found that plan, too, unsatisfactory because it im- posed undue burdens on minority children. M.R. 27. 14 ever, that each of these plans contained a number of salu- tary proposals. Specifically, the Masters found that the School Committee’s proposal to adopt a variety of inno- vative programs and to offer a limited choice of schools to students and their parents would contribute to effective desegregation. They found that the use of geographic school assignments and limited transfer options generally as proposed by the plaintiffs would help to desegregate the system. And the Masters found that, in principle, the proposals of the December 16th plan with regard to es- tablishing magnet schools with specially attractive pro- grams would also aid desegregation. M.R. 16, 24-25, 28. The Masters concluded, however, that these steps alone would not fully desegregate the Boston school system and that a substantial amount of mandatory busing would be necessary. M.R. 29. 6. The Masters Proposed Their Own Highly Innovative Plan. Based upon these conclusions, the Masters, again unanimously, drew up their own plan. This plan included concepts taken from the School Committee plan, the plain- tiffs’ plan, the December 16th plan, and the Mayor’s pro- posals, as well as a number of other features proposed by the Masters themselves. The Masters viewed their respon- sibility to the District Court as requiring them to propose a plan which would not only thoroughly desegregate the schools and improve the quality of education, but also defuse the growing hostility between the black and white communities over the school system. The salient aspects of the Masters’ plan were as follows: (a) The City would be divided into nine geographie dis- tricts containing about two thirds of the student population OOO a 15 and one city-wide district containing about one third of the students. Each of the geographic districts, insofar as was consistent with desegregation, had a geographical, political, or historical basis and hence had a certain affinity of in- terest. The city-wide district and three of the geographic dis- tricts, which jointly contained more than half of the school population, would reflect almost precisely the school system’s racial population at the time of 50% white and 00% black and other minorities. Three other districts would be within + 13% of the City’s school population racial percentages. The final three districts would vary from the overall city-wide student racial percentage by somewhat greater margins due to housing patterns or, in one instance, geographic barriers.** A chart showing the racial composition by district of the Masters’ plan appears at page 23, infra. Within the districts, each of the schools would be within + 10% of the district racial percentages of students. (b) There would be a number of magnet schools, in both the city-wide and local districts. These schools would have one or more specially attractive programs designed to draw students of all races to those schools and thereby increase both inter- and intra-district integration. To aid the de- velopment and enrich the content of these magnet programs, the Masters’ plan provided that a number of individual schools were to be paired with specific businesses and uni- versities located in the Boston area. 48 East Boston, the one district which would have maintained its character as nearly all white (and which retains that character under the District Court plan) is separated from the rest of Boston by the Boston Harbor and is easily accessible only by a tunnel. (App. 76a). 16 (c) A limited choice of schools was to be offered to students and their parents. Basically, the plan would allow student choice of assignment to a school in the appropriate geographic district or in the city-wide district, insofar as consistent with the racial desegregation guidelines pro- posed by the Masters. (d) District and city-wide councils of parents and others concerned with the school system were to be established to help explain and monitor the plan. (e) Finally, the plan required the closing of a number of physically inadequate facilities, the construction of several new facilities, and the reorganization of certain parts of the School Committee’s administrative apparatus to make certain that the plan was properly implemented. M.R. 31-33. The Masters concluded that, under their plan, approxi-— mately 15,000 students would have to be bused for desegre- gation purposes. This amounted to about 206¢ of the then student population. As the charts at pages 23 and 25, infra, show, the Masters’ plan would have thoroughly desegre- gated the Boston schools. 7. The Masters’ Plan Was Widely Acclaimed. When the Masters’ plan was released to the public, it received wide- _spread acclaim for its innovative character and promise to improve the quality of the education being offered in the public schools. It also received cautious acceptance as a viable means of desegregation in a community which had been badly split by this issue for almost two years. Repre- sentatives of the black community praised the plan for its innovation and promise of meaningful improvement in the educational curricula. Boston Globe, March 23, 1975, p. 4, 17 col. 4 (NAACP President); Boston Globe, March 24, 1975, p. 7, col. 4 (Freedom House spokesperson). On the other hand, a number of representatives of white neighborhood and school groups who strongly opposed busing stated that the plan was much more acceptable than they had thought it would be and that they could live with the Masters’ plan even though they would prefer the elimination of busing entirely. Boston Globe, March 23, 1975, p. 4, col. 5 (anti- busing group president). Thus, while the Masters’ plan provided a remedy that might not have been considered ideal by any of the communities which make up the Boston school system, and was not exactly welcomed by anti-busing groups, it had a broad degree of acceptability. This acceptability followed from the work done by the Masters. As mentioned earlier, the Masters were not only well qualified to deal with desegregation problems but were also familiar with the City. They had excellent contacts with the minority and white communities. Accordingly, in drafting the plan, the Masters took unusual eare to de- scribe their actions to the community. They met with public officials, representatives of the Home and School Associ- ation, leaders of the black community, and others, and ex- plained the necessity for an effective remedy to segregation in the Boston public schools and the details of the Masters’ plan. Moreover, the Masters understood that, as discussed earlier, Boston is a city of unusual neighborhood and ethnic loyaity, and they took those factors into account where constitutionally possible. Thus, they took great care in drawing district boundary lines. For example, tae Masters — determined to redistrict the South Boston area to include portions of neighboring Dorchester rather than portions 18 of neighboring Roxbury, which contained approximately equal numbers of black students. The Masters knew that histori¢ community ties would make the pairing of Dorches- ter and South Boston acceptable to both black and white residents of those neighborhoods, but that the pairing of Roxbury and South Boston would be acceptable to neither.” Accordingly, based on their careful consideration of the practicalities of the situation, the Masters developed a plan which would combine maximum desegregation and maxi- mum community acceptability for stable and long term desegregation. 8. The District Court Rejected Important Parts of the Masters’ Plan. (a) Summary Procedure. The Masters filed their final report and desegregation plan on March 31, 1975, and there- after the parties to the litigation, including the Mayor, submitted suggested modifications to the plan. The Mayor also filed a motion to confirm the Masters’ plan in most respects. However, the District Court made substantial revisions in the Masters’ plan. In making these revisions, Judge It is noteworthy that most of the unfortunate violence that has marred Boston’s schoo] desegregation resulted from this pairing, which was imposed by the District Court contrary to the Masters’ plan. The first such incidents occurred at South Boston High on the opening day of school in 1974. See Boston Globe, October 9, 1974, p. 1, col. 4. Incidents continued throughout the school year, at one point forcing the school to close for several weeks. See Boston Globe, January 1, 1975, p. 1, col. 3; Boston Globe, January 3, 1975, p. 1, col. 4. The Masters sought to prevent a recurrence of such incidents through their careful districting. After the rejec- tion of the Masters’ recommendations, violence continued, cul- minating in the District Court's placing South Boston High School in receivership. ii ee eens Seah 19 Garrity never conferred with the Masters. He first informed the Masters of his substantial changes only one or two days before he distributed his revisions to the parties. He then spoke with the Masters and provided them with a copy of his plan. He indicated that they might make comments but told them that the revisions he had made in their carefully thought-out district boundaries were already printed and could not be changed. Under those cirecum- stances, the Masters did not see fit to comment further. The next morning, the District Court held a one day hearing on its plan, which the parties had been able to con- sider only overnight. Ultimately, on May 10, 1975, the Dis- trict Court issued its final plan, which was in all significant respects identical with its proposed plan. (b) Differences from the Masters’ Plan. The plan issued by the District Court differed from the Masters’ plan in a number of respects. The critical difference was that the District Court restructured the geographic districts recom- mended by the Masters, combining two districts and chang- ing the boundaries of four others. The District Court claimed that this restructuring was necessary because, after the Masters had rendered their recommendations, the School Committee provided an updated data base for deter- mining the race of students in the various districts.** (In fact, as the tables at pages 23 and 25, infra, show, the revised statistics were not demonstrably more accurate than those According to the District Court, this new data showed that in two of the districts drawn by the Masters. the white enrollment was underestimated; that in another of the Masters’ districts, the ° black enrollment was significantly underestimated; and that the number of students in the system was underestimated. (App. 74a- 75a). 20 upon which the Masters had based their plan.)** The Dis- trict Court did not request the Masters to reconsider their plan to see if these new statistics would require any changes, or even to monitor the revised statistics to check their accuracy. Nor did the District Court merely make minor technical revisions in the Masters’ plan to compen- sate for the new data. Instead, the District Court simply redrew the plan itself, and in the process ignored the careful efforts of the Masters to locate boundary lines so as to preserve community ties where possible. The plan, as redrawn by the District Court, required the busing of at least 21,000 students for desegregation pur- poses—6,000 or 40% more than required by the Masters’ plan. The District Court may have believed that such additional busing was necessary in light of the revised statistics, but it made no specific findings in that regard. In fact, as described in detail at pages 22-26, infra, the amounts of desegregation produced by the District Court plan and promised by the Masters’ plan were comparable. (c) Failure to Consider Practicalities. Counsel for the Mayor and others attempted to impress upon the District Ceurt the importance of considering the amount of busing, cost, community acceptance, and resegregation problems in choosing between the court’s plan and the Masters’ plan since both would produce satisfactory desegregation. The District Court, however, refused to consider any of these factors. The one-page portion of the District Court opinion *® The only evidence as to the effect of the new statistics was the deposition testimony of John Coakley, the School Committee’s Chief desegregation planner. Mr. Coakley testified that the new data were not significantly different from the data upon which the Masters’ plan was based. Coakley deposition, p. 51. 21 which dealt with ecst considerations merely stated that busing would cost approximately $7.6 million a year and that closing a number of schools would save fuel and main- tenance expense. (App. 102a-03a). The court refused to admit any evidence as to community acceptance of the two plans or possible resegregation of the school system on the ground that resistance to desegregation is irrelevant in considering remedy. (App. 71a-72a). Finally, although the District Court made a number of findings as to the need for busing, in an effort to comply with the Equal Educational Opportunities Act of 1974, 20 U.S.C. §§ 1701 et seq., the court never made any finding that the busing it ordered of 6,000 additional students was re- quired to achieve desegregation. (App. 10la-02a). In fact, the District Court explicitly refused to consider whether the Masters’ plan was a constitutionally satisfactory remedy and specifically stated that constitutional considerations were “only secondary” in its decision to make the changes in the Masters’ plan which resulted in this additional bus- ing. Transcript of April 15, 1975, hearing, pp. 7-8, 32. 22 9. The District Court’s Plan Imposed Substantial Addi- tional Burdens But Did Not Achieve Greater Desegregation Than the Masters’ Plan. As a result of the District Court’s refusal to consider the practicalities of the situation, Boston is now operating under a plan which achieves no more de- segregation than the Masters’ plan, but which requires a great deal more busing and substantial additional expense and which has been less acceptable to the community than the Masters’ plan. The following table compares racial per- centages by district of the Masters’ plan and the District Court’s plan with those actually achieved. As can be seen from the table, the District Court plan did in some instances propose to balance the racial per- centages of students by district slightly more precisely than did the Masters’ plan. In fact, however, the student percentages are now in most instances closer to those pro- posed by the Masters than to those proposed by the District Court. Furthermore, under the Masters proposal three school districts would have been more than 50% white, and no school districts would have been more than 50% black, while under the District Court’s plan there are still three districts more than 50% white and, in addition, two districts are more than 50% black. othe BOSTON PUBLIC SCHOOL ENROLLMENTS Actual Attendance under District Court Plan Court Plan (2-6-76) Master's Plan Other Black White Other Black White Other Black White 382% 27% 35% 22% 35% Ss 4 31% 20% 49% Brighton 47% 19% 342 15% 42% 25% 43% 37% 38% Jamaica Plaia 2% 50% 48% er - Hyde Park 52% 4% 41% 442% 17% 62 77% West Roxbury 41% 49% Dorchester Burke 29% 382% 13% 512 14% 35% 9% 512 33% 582 South Boston 26% 42% 32% 252% 46% 17% 37% Madison Park 42 94% x 2% 95% East Boston 362 122% 522 16% we / 48% Citywide 43% 122 45% 11% 14% wr 50% TOTAL portion of the table are based upon school population resident in the The District Court made no adjustment to compensate for students resident in the dis- trict bet attending city-wide schools. */ All the statistics in this district. aa/ The court proposed to have the city-wide district reflect city-wide school racial percentages but did not tabulate precise racial data for this district. 24 Moreover, as demonstrated by the following table, the District Court’s final plan may actually have achieved less desegregation than did the Masters’ plan with respect to individual schools. It is certainly clear that the Court’s plan was not a significant improvement over the Masters’ plan in this regard. But although there was little differ- ence in the amount of the desegregation accomplished by the Masters’ and District Court plans, the social and eco- nomic costs borne by the people of Boston as a result of the District Court’s refusal to adopt the Masters’ proposal have been great. BOSTON SCHOOL SYSTEM. COMPARISON BETWEEN PRE-DESEGREGATION, MASTERS’ PLAN, AND DISTRICT COURT ACTUAL RACIAL COMPOSITION BY SCHOOL */ PHE-DIESIOREGATION PLAN Schoo] population 61% white ~-=32% black--78 other minority 84% of white students in schools more than @uU* white 62% of black students in schools more than 708 black 23 total high schools 2 high schools within 10% of system's racial distribution 6 high schools over 90% white 1l high schools over 65% white 2 high schools over 90% black 4 high schools over 508 black JUNIOR HIGH AND MIDDLE SCHOO ee/ MASTERS PLAN SYSTIN-W1 DI" Schoo) population 50% white --36t black--14¢ other minority 148 of white students in schools more than 80% white (mainly Tast Roston) No black students in schools more than 70% biack HIGH SCHOOLS 22 total high schools 16 high schools within 10% of system's racial distribution 1 high school over 908 white 1 hagh school over 65% white No high school over 90% black No high school over 50% black S , a —- 19 total schools 4 schools over 90% black 7 schools over 60% black 6 schools over 808 white 2 schools within 20% of the black citywide percentages 140 elementary schools 62 schools under 5% black 32 schools over 865% hlack 5 schools with racial composi- tion within 10% of black citywide percentages Date on numier of schools with racial compositions within 1$% of citywide percentages unavailable 29 cotal schools No schools over 90% black No schools over 60% black 1 school over 80% white 17 schools within 20% of the black citywide percentages ELEMENTARY SCHOOLS 115 elementary schools 9 schools under St black (all in Fast Boston) No schools over 85% black 73 schools with racial composition within 108 of black citywide percentages 83 schools within 15% of black citywide percentages DISTRICT COURT PIAN®®*/ School population 45% white--43€ black--1l2t other minority 128 of white students in schools more than BON white (mainly East Roston) 10 of black students in schools more than 70% black 19 total high schools 7 high schools within 108 of system's racial distribution 1 high school over 90% white 1 high school over 65% white No high school over 90% black 1 high school over $08 black 28 total schools No schools over 90% black 3 schoois over 60% black 4 schools over 60% white 23 schools within 200 of the black citywide percentages 117 elementary schools 6 schools under 58 black (all in East Boston) 1 school over 865% black $7 schools with racial composition within Lot of black citywide percentages 71 schools within 15% of black citywide percentages TT Rast Por We TV oe he 1971-72 school year set forth by the District Court in ats liabality opinion, 179 F. Supp. at 424, e*/ fased on the data set forth in the Masters’ pian for the 1975-76 school year. (M. K., Appendix E). acid by Bocc, Ccehoo) ard Level as wy 9, 19%6), fased on the data set forth in Roseton Public Schools, Actual Prrollments of February 6, 1976 (submitted by the School Committee te the District Court on Febr: 26 Community resentment toward the replacement of the Masters’ plan with the District Court plan has heightened social and racial problems in the City and resulted in a decline in enrollment in the schools. Boston Scuoot District—TotraL ENRoLLMENT Total White Black Other 1974-75" 72,249 36,735 (51%) 27,225 (38%) 8,289 (11%) 1975-76" 67,383 30,629 (45%) 28,706 (48%) 8,048 (12%) As shown by this table, the school system has lost nearly 5,000 students, approximately 8% of its total enrollment, since the imposition of the District Court plan. The white school population has dropped by over 6,000. The school system has changed from a majority white to a majority nonwhite system in one year. Moreover, despite the decline in enrollment, the School Committee’s budget has increased by 20% from $126.6 million to $154.6 million during the past year. (See table, page 11, supra). A very large part of this increase is due to the expenses of the desegregation plan. 10. The Court of Appeals Affirmed the District Court Decision. Although the court issued a lengthy opinion, its treatment of the important issues raised by this petition was cursory. With regard to the redrawing of the district lines, the Court of Appeals indicated only that the effect of the District Court’s alterations in the Masters’ plan was unclear in light of the new data developed by the ' These are the April 10, 1975, statistics referred to by the Dis- trict Court in its opinion. (App. 74a). * These statistics are taken from Boston Public Schools, Actual Enrollments by Race, School, and Level as of February 6, 1976 submitted by the School Committee to the District Court on February 9, 1976). 27 School Committee. (App. 15a, n.14). The Court of Ap- peals went on to hold that, even if the District Court plan did bus 6,000 additional studeuts, the District Court did not abuse its discretion by requiring that additional busing. (App. 18a-20a). The Court of Appeals next held that resegregation, white flight and community acceptability are not “practicalities” which may be considered in formulating “the greatest possible degree of actual desegregation” as required by this Court’s decision in Davis v. Board of School Commis- stoners, 402 U.S. 33, 37 (1971). (App. 19a, 29a-32a). In making this decision, the court did not consider actual statistics of the sort which have been reprinted in this petition at pages 23 and 25, supra, nor did the court dis- tinguish the factors which may be considered in framing a constitutionally-required remedy from those which may appropriately be considered in choosing between two con- stitutionally sufficient remedies. The Court of Appeals next dismissed any problems of cost by asserting that “virtually the entire expense of any incremental busing is fundable by the State Board of Edu- cation.” (App. 19a). (In fact, it appears that the State Board is only willing to reimburse Boston for less than 60% of the cost of busing incurred under the desegrega- t.on plan, if the legislature makes the funds available.) The court did not consider any other costs imposed by the plan. Finally, the court rejected the Mayor’s contention that the Equal Educational Opportunities Act of 1974 precluded the District Court from adopting a plan which required more busing of school children than necessary to achieve te rtrti—C—SSCOCW 28 constitutionally sati=factory school desegregation. The court held that, once the District Court had feund that some busing was necessary, the Act did not limit the Dis- trict Court’s discretion to order any amount of busing it chose. (App. 15a-19a). The Court of Appeals reached this result despite the evident contrary meaning of the statu- tory language and despite the court’s recognition that its holding rendered the Act meaningless.” REASONS FOR GRANTING THE WRIT 1. This case raises, for the first time in this Court, the issue whether courts are required by law to ignore such factors as the amount of busing, cost, community accep- tance, and potential for resegregation in choosing between clearly satisfactory but different plans to remedy urban school segregation. The resolution of this issue is im- portant, not only to the City of Boston, but also to the pros- pects for achieving meaningful desegregation elsewhere and for avoiding excessive and needless social and financial burdens on the nation’s hard-pressed cities. As the facts set forth above demonstrate, there was very little difference in potential for desegregation between the Masters’ plan and the District Court plan. Neither of the courts below found that the Masters’ plan would have been constitutionally insufficient to remedy the segregation im- posed by the Boston School Committee, and the Court of ** “Since this argument [that the Act precluded the District Court from ordering more busing than constitutionally required] concerns the district court's discretion in determining the adequacy of the remedy, and therefore gains nothing from the Act which leaves that discretion unaffected, it must stand or fall upon those traditional principles of equity which would govern this issue even were the Act not in existence.” (App. 17a-18a). ee ne, 29 Appeals recognized that it could reach no such conclusion.” Indeed, many circuit courts have approved school desegre- gation plans which resulted in significantly less desegrega- tion than did the Plan proposed by the Masters.** Thus the District Court had before it two plans—the Masters’ and its own, described in detail earlier—either of which would have eliminated the vestiges of state imposed segre- gation “root and branch” as required by this Court’s deci- sions. Keyes vy. School District No. 1, 413 U.S. 189, 200 (1973); Davis v. Board of School Commissioners, 402 U.S. 33, 37 (1971); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15 (1971). Nevertheless, the courts below refused to consider any factors relating to comparative costs, busing requirements, community acceptance, or possible resegregation of the 20The District Court explicitly refused to consider this issue, although the judge did state that in choosing between the Masters’ plan and the District Court plan “constitutional considerations |were] only secondary. ...” Transcript of April 15, 1975, hearing pp. 7-8, 32. The Court of Appeals at least posed, although it did not answer, the question whether the District Court could reason- ably have found that whatever additional desegregation would be accomplished by its plan was constitutionally required. (App. 19a). The Court of Appeals concluded that the differences between the Masters’ and District (Court plans were “slight” but “not trivial.” The court then stated that “the concept of minimum [constitutionally required desegregation] cannot be identified with precision” and indicated that it was not possible to determine if any differences between the Masters’ plan and the District Court plan were of constitutional significance. (App. 20a). *1 E.q., Northceross v. Board of Education, 489 F.2d 15, 16-17 (6th Cir. 1973), cert. denied, 416 U.S. 962 (1974) (Memphis) ; Goss Vv. Board of Education, 452 F.2d 1044 (6th Cir. 1973), cert. denied, 414 U.S. 1171 (1974) (Knoxville); Ross v. Eckels, 434 F.2d 1140, 1147-47 (Sth Cir. 1970), cert. denied, 402 U.S. 953 (1971) (Houston); Pate v. Dade County School Board, 434 F.2d 1151, 1154 (5th Cir. 1970), cert. denied, 402 U.S. 953 (1971) (Miami); Cerr v. Montgomery County Board of Education, 377 F. Supp. 3128 (M.D. Ala. 1974), aff'd per curiam, 511 F.2d 1374, reh. denied, 511 F.2d 1390 (Sth Cir. 1975) (Montgomery). 30 Boston schools in choosing between the Masters’ and the District Court plans. In support of their conclusion, the courts below relied on this Court’s decisions which have held that factors such as community acceptability, cost, and the like cannot be used as reasons for achieving less than a complete uprooting of a dual schoo! system. F.g., United States v. Scotland Neck City Board of Education, 407 U.S. 484, 490-91 (1972); Venroe v. Board of Commissioners, 391 U.S. 450, 459 (1968). But that, of course, was not the issue in the present case. Here there is no attempt to avoid constitutionally mandated desegregation. Rather, the ques- tion is simply if such factors as the extent of busing, cost, community acceptance, and resegregation can and should be considered by a court in determining which of two con- stitutionally satisfactory but differing plans should be adopted. The Mayor submits that such factors must be considered in choosing between constitutionally adequate alternatives if cuurts are to take “into account the practicalities of the situation” in adopting “realistic” and “effective” school desegregation plans. Davis vy. Board of School Commis- stoners, supra, 402 U.S. at 37; Swann vy. Charlotte-Mecklen- burg Board of Education, supra, 402 U.S. at 31. For ex- ample, this Court has previously recognized that it is ap- propriate to consider resegregation or “white flight” where that is relevant to preserving a desegregated school svstem. Wright v. Council of the City of Emporia, 407 US. 451, 464-65, 470 (1972); Milliken v. Bradiey, 418 U.S. 717, 801- 02 (1974) (Marshail, J., dissenting). The lower courts have reached the same conclusion. Spangler v. Pasadena Board of Education, 519 F.2d 430, 438 (9th Cir.), cert. granted, 96 8. Ct. 355 (1975): Johnson vy. San Francisco Unified School District, 339 F. Supp. 1315, 1321-22 (N.D. 31 Cal. 1971), vacated on other grounds, 500 F.2d 349 (9th Cir. 1975). See also Higgins vy. Board of Education, 508 - F.2d 779, 794 (6th Cir. 1974). This Court’s command in Swann and Davis that school plans accomplish effective desegregation in light of the prac- ticalities of the situation is derived from the traditional equitable principle that courts must weigh the benefits and harms to the parties and the public interest in choosing from among alternative adequate forms of relief. Swann vy. Charlotte-Mecklenburg Board of Education, supra, 402 U. at 30-31; Brown vy. Board of Education II, 349 US. 994, 300 (1955). Moreover, this Court has repeatedly em- phasized that in the exercise of remedial powers in cases such as this, the courts must take particular care in view of the “delicate issues” of the relationship of the federal courts to state and local government. Rizzo v. Goode, 44 U.S.L.W. 4095, 4101 (January 21, 1976); Mayor v. Educa- tional Equality League, 415 U.S. 605, 615 (15974). As noted previously, the Masters had taken particular care to maximize desegregation and educational benefits and, insofar as consistent with these objectives, to mini- mize community disruption and busing. But, as was also described above, the courts below believed that they could not consider the amount of busing, cost, community accep- tance, or resegregation as “practicalities.” The decision of the courts below in this regard is incon- sistent with the decisions of this Court and contrary to common sense. As the District Court’s own experts indi- cated in the proceedings below, courts cannot blind them- selves to everyday realities in choosing between two per- fectly permissible and constitutionally adequate remedies. School systems work only to the extent that students and 32 parents cooperate in making them work. Desegregation is meaningful only so long as students of all races remain in the schools and only so long as they find there a quality education for all. As deseribed earlier, Boston is afflicted with many of the urban financial and social problems which are so readily exacerbated when such factors are ignored. While these considerations are irrelevant in determining if a particular remedy passes constitutional muster, they are critical to a court decision to choose between two ade- quate, but different, plans. The courts below, under a mis- conception of the requirements that this Court has set forth in Scotland Neck, Monroe, and Swann, supra, im- properly refused to consider the extent of busing, cost, community acceptance or potential for resegregation in determining whether to adopt the Masters’ plan or the plan drawn up by Section 5 of the District Court. 2. This Court has never interpreted the Equal Eduea- tional Opportunities Act of 1974, 20 U.S.C. §§ 1701 et seq. In view of the Act’s important social judgments, i.s passage under the specific authority granted Congress by Section 5 of the Fourteenth Amendment, and its evisceration bv the decisions below, consideration of the Act by this Court is appropriate. In Swann vy. Charlotte-Mecklenburg Board of Education, supra, 402 U.S. at 14, this Court found that remedies for school segregation have been “imperfect” and “incomplete.” The Congress made the same finding in enacting the Equal Educational Opportunities Act of 1974, 20 U.S.C. § 1702 (a)(6). In passing the Act, Congress, without attempting to diminish the authority of the courts to remedy viola- tions of the Fifth and Fourteenth Amendments of the Con- stitution, undertook to “specif. appropriate remedies for 33 the orderly removal of the vestiges of the dual school sys- tem” and to establish a priority for the imposition of such remedies. 20 U.S.C. §§ 1701(b) and 1713. The priorities for desegregation remedies under the Act are as follows: (a) Assigning students to the closest school to their place of residence ; (b) Majority to minority transfers; (c) Revisions of attendance zones to require assign- ments to the second closest school to the student’s place of residence; (d) Construction of new or closing of old schools; (e) Establishment of magnet schools; (f) Development and implementation of any other plan, including busing. 20 U.S.C. § 1713. Congress did not attempt to prohibit busing of students, but it did conclude that busing was the least educationally satisfactory remedy and should be used only where other remedies for de jure segregation did not work. 20 U.S.C. § 1755. Finally, Congress specifically prohibited the imposi- tion of remedies more drastic than necessary to correct segregation. 20 U.S.C. §1712. The Act thus seeks to limit the imposition of busing to the minimum necessary to achieve a constitutional remedy. The courts below held that the Act did not in any way limit the District Court’s discretion to impose any remedy it preferred once it had found that some busing was neces- sary. This renders the Act meaningless, as the Court of Appeals explicitly recognized. (App. 18a-19a). In the ab- sence of the Act, it was arguable that the District Court had 34 discretion, after a consideration of all relevant factors, to adopt a plan which required more busing even though a plan using other techniques would have required less busing. The Equal Educational Opportunities Act specifically removes that discretion. See 20 U.S.C. § 1712. In the present case, where neither the District Court nor the Court of Appeals found that the Masters’ plan, with less busing, was consti- tutionally inadequate,” the Equal Educational Opportu- nities Act precluded the District Court from adopting a plan which required busing of 6,000 additional children. The Act fills a grave need for a satisfactory legal fraine. work to enable courts to define proper limits for busing. Those who support busing suggest that busing is necessary as a remedy for segregation and will result ultimately in better education and better social] conditions for all stu- dents. Those who oppose busing point out that there is increasing evidence that it disrupts educational systems, in- terferes with the provision of quality schools, and may precipitate resegregation. Both theories have the support of eminent educators and sociologists, but both theories are lacking in definitive proof. Under these circumstances, it is perfectly appropriate for Congress to make a social judg- ment in establishing the legal framework for busing. Congress therefore made an entirely legitimate judgment when it considered the possible dangers to important indi- vidual and social interests and adopted the Equal Educa- tional Opportunities Act of 1974. Congress determined that, because of these dangers, in choosing between satisfactory alternative plans to remedy the ills of racial segregation in the public schools, the courts should choose the plan which requires least busing. Section 5 of the Fourteenth Amend- 22 See the discussion at page 29, n.20, supra. - 35 ment specifically authorizes Congress to make judgments of this type. Under these circumstances, “it must be remem- bered that legislatures are ultimate guardians of the liber- ties and welfare of the people in quite as great a degree as the courts.” Missouri Kansas and Texas R. Co. v. May, 194 U.S. 267, 270 (1904) (Holmes, J.). See also United States v. Richardson, 418 U.S. 166, 189 (1974) (Powell, J., concurring). The courts below should not be permitted to ignore the important Congressional judgment embodied in the Act. 36 CONCLUSION The constitutional and statuiory standards which guide lower courts in the fashioning of urban schoo! desegregation remedies are in urgent need of clarification by this Court. The issues raised by this petition concerning such standards are central to the hope for workable, long-lasting desegrega- tion and continued viability of the major cities. These issues are therefore of major importance not merely to Boston but to the urban areas across the country. For the reasons set forth above, this Petition for Certiorari should be granted. Respectfully submitted, Ropert E. HerzstTe1n Davip BonpDERMAN 1229 Nineteenth Street, N.W. Washington, D.C. 20036 Herpert P. GLEASON Corporation Counsel Kevin F. Motoney Assistant Corporation Counsel Law Department City Hall Boston, Massachusetts 02201 Attorneys for Petitioner Of Counsel: ARNOLD & PORTER Washington, D.C. April, 1976 APPENDICES la A. Opinion of the Court of Appeals United States Court of Appeals For the First Circuit Nos. 75-1184, 75-1194, Nos. 75-1197, 75-1212 TALLULAH MORGAN, et al, PLAINTIFFS, APPELLEES, v. JOHN J. KERRIGAN, et al. DEFENDANTS, APPELLANTS, BOSTON HOME AND SCHOOL ASSOCIATION, DEFENDANT-INTERVENOR, APPELLANT, KEVIN H. WHITE, etcz., et al., DEFENDANTS, APPELLANTS. APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS (Hos. W. Agtuer Garrity, Jr., U.S. District Judge) Before Corrin, Chief Judge, McEstee and Camppeuy, Circuit Judges. Matthew T. Connolly, with whom Francis J. DiMento, James J. Sullivan, Jr., Pailip T. Tierney, aud DiMlento & Sullivan were on brief, for John J. Kerrigan, €: al. Eevcia F. Moloney for Kevin White et al. Thayer Fremont-Smith with whom Owen S. Walker, Choate, Hall & Stewart, acd Philip B. Kurland were on brief, for Boston Home and Schooi Association. John Leubsdorf, with whom Laurence S. Fordham, Foley, Hoag & Eliot, J. Harold Flannery, Rudolph F. Pierce, Keating, Perretta & Pierce, Thomas M. Simmons, Robert l’ressman, Erie E. ban Loon, Nathaniel BR. Jones, and Boger I. Abrams were on brief, for Tailulah Morgan, et al. Timothy J... iFise, Assistant Attorney General, with whom Francis XY. Bel- lotti, Attorney General, Margot Botsford, Assistant Attorney General, and Seadra L. Lynch, General Counsel, State Board of Education were on brief, for S:ate defendants. 2a 2 MORGAN U. KERRIGAN Richard Iiiler, with whom Jack Johan Olivero, Terbert Teitclbaum, Michael Hlare:, dcan Mirer, and 'amela Taylor were on brief, for El Comite De Padres Pro Defensa De Education Bilingue. January 14, 1976 Corrin, Chief Judge. These appeals present varied chal- lenges to orders of the district court implementing a plan of desegregation for the publie schools of Boston. The consoli- dated cases concern the remedy phase of litigation initiated by plaintiffs-appellees, representing a class of all black public school students and their parents, against, princi- pally, the Boston School Committee and the Superintendent of Boston Public Schools. The liability phase came to an end in 1974 with a district court finding of substantial segrega- tion in the entire school system intentionally brought about and maintained by official action over the years. Morgan v. Hennigan, 379 F. Supp. 410 (D. Mass. 1972).1 We affirmed, Morgan v. Kerrigan, 509 F.2d 580 (1st Cir. 1974), and the Supreme Court denied certiorari, 421 U.S. 963 (1975). While the liability issues were being considered on appeal, the district court. after its decision on June 21, 1974, began its exploration of appropriate remedies. The period from June, 1974, to May, 1975, was occupied with the addition of prties to the litigation,? hearings as to the nature, scope and 1 The court specifically found that sezregative policies had operated in the following respects: in the utilization of facilities and planning of new struc- tures; in drawing and redrawing schoo! district lines; in developing feeder pat- tcrus determining enroliments at specific high schools; in the open enrollment policy, the subsequent controlled transfer policy and the exceptions thereto; in the hirinz, promotion, and assiznment of b'ack faculty and staff. Because of the operation of the second presumption in Keyes v. School District No. 1, 413 U.S. 159, 208 (1973), which it found had not been rebutted, the court also held that oficial intentional segregation infected the elite, citywid examination schools and vocational schools and programs. 2 The original purties, in addition to the plaintiffs and the Boston defendants, included the State Board of Education (nominal defendants, although support- ing the court’s order and appelice here). Subsequently allowed to intervene were the Boston Teachers Union, the Boston Association of Schoo! Administra- tors and Headmasters, the Boston Home and School Association, and E] Comite Ibe Padres Pro Dcfense De La Education Bilingue. The Commissioners of the 3a OPINION OF THE COURT 3 objectives of a plan, submission and criticism of various plans, consideration of all proposals and preparation of a plan by u panel of masters, and, finally, the issuance of a revised plan by the district court on May 10, 1975, followed by a Memorandum Decision and Remedial Order. Morgan v. Kerrigan, 401 I’. Supp. 216 (1). Mass. 1975). On June 17, 1975, we denied appellants’ motion for a stay pending appeal, Morgan v. Kerrigan, 523 I’.2d 917 (1975), but devised a consolidated and expedited briefing schedule, in which all parties have faithfully cooperated. During the summer of 1975 the court, counsel, school officials, teachers, parent or- ganizations, and federal, state, and city agencies and officials worked intensively to prepare for the September school opening in compliance with the district court’s order, com- monly referred to as Phase II.3 The schools are now func- tioning in accordance with the court’s plan and orders. The issues to be considered here are both procedural and substantive and require some further background of events. After hearings during the summer and early fall of 1974, the district court, on October 31, 1974, entered an order estab- lishing guidelines and date (December 16) for a plan of desegregation to be filed by the School Committee. Such a plan was prepared by the staff but, on the deadline date, Public Facilities Commission, the Direetor of the Public Facilitics Department, and the Mayor of Boston (hereinafter, collectively, the Mayor) were joined as parties defendant. 3 Following the determination on liability in 1974, the district court ordered the implementation of a plan devised by the state for the 1974-1975 school year. This pian was commonly referred to as Phase I. See 379 F. Supp. at 483. * The order provided that the ‘‘starting point’’ for its desegregation decree would be that ‘‘the racial composition of the student body of every school should generally reflect the ratios of white and black students enrolled at that grade level of : schools, elementary, intermediate, and secondary, throughout the system. BEST COPY AVAILABLE 4a 4 MORGAN UV. KERRIGAN the School Committee voted not to submit it.5 It was, how- ever, filed by the Committee’s counsel. This plan called for six districts, with varying learning approaches available within each district, and ‘‘magnet’’ or special purpose high schools, but left with parents the choice of schools for their children. On January 20, 1975, plaintiffs submitted a plan, accepting the six districts identified in the staff plan of December 16, 1974, but proposing a mandatory allocation of students among the schools to achieve minority enrollments that were neither too small (e.g., a minimum of 29.4 percent in element- ary schools) nor too large (e.g., a maximum of 60.6 percent in elementary schools). Also on January 20, 1975, the Boston Home and School Association (Association) filed a plan which was based on the theory that segregation in certain schools was the result of ‘‘existing residential separateness’’ and a policy of neigh- borhood school assignments, rather than of any official ac- tions of the Schoo] Committee. To support its approach, the Association offered evidence of demographic patterns, which the district court refused to accept on the grounds that the evidence was irrevelant at the remedy stage of the case and that the issue raised by the offer had been litigated and finally decided in the liability phase of these proceedings. The court’s refusal to consider the Association’s plan is not in issue, but the Association’s contention that the court should reopen the proceedings to consider, for purposes of tailoring remedies, the impact of demographic conditions on particular schools is one of the principal issues before us. 6 This action by the School Committee led to contempt proceedings and a finding by the district court that three members were in continuing contempt of the order of October 31, 1974. This court denied a stay pending appeal of the civil contempt order. Morgen v. Kerrigan, 509 F.2d 618 (1st Cir. 1975). Subsequently, the district court found that they had purged themselves, aud, ult mately, on January 27, 1975, the School Committee did submit a plan, differ- ent from the staff proposal filed by counsel. 5a OPINION OF THE COURT 5 The School Committee’s plan, finally submitted on January 27, 1975, see note 5 supra, also kept the six districts or zones, and allowed parents several options, ranging from electing to have their child remain in a racially mixed school, to choosing a citywide or zoned magnet school, to any school within the zone. Should the school chosen by the parents be dominantly black or white, the desegregative remedy would | be a once-a-week (for elementary schools) or a once-every- two-week (for middle level schools) visit by paired black and white schools to a ‘‘third site’’ resource center for training and experience in race relations. With these three plans on the table, the court appointed two experts to assist in evaluating plans and a panel of four masters to consider the plans— commencing with the School Committee’s January 27 plan — hold hearings, and ‘‘make recommendations to the Court’’.6 The masters held hearings for over two weeks, and, after hearing argument addressed to a draft report, issued their final report on March 31, 1975. The masters found the School Committee plan inadequate, in large part because of its reliance on parental free choice; rejected plaintiffs’ plan as being educationally deficient, unwieldly and arbitrary; rejected the December 16 plan as being vague and unduly burdensome to minorities; and proposed a ten district system, one being a citywide district with magnet schools and specially appealing programs, with each of the other nine districts and some of the magnet schools being paired with specific colleges, labor and busi- 6 An objection was made by the Schoo] Committee to the naming of two of the masters on the ground that their association with the Harvard University Grad- uate School of Education constituted a disqualifying interest in the Harvard Center for Law and Education, which presently or formerly employed three attorneys representing plaintiffs. The Schoo: Committe: ‘o objected to the appointments of a third master and one expert because . had in the past supported the NAACP, which had provided financial] assistance and ccunse! te the plaintiffs. The issue arising from the overruling of these objections will be dealt with later in this opinion. So also will be a further objection of the School Committee to the court’s order awarding compensation to the masters. 6a 6 MORGAN UV. KERNICGAN ness organizations for assistance in program enrichment. Mandatory busing was estimated by the masters to affect 10,700 to 14,900 students. The court then called for hearings on objections to the masters’ report, which commenced on April 10. In the mean- time, the court had called for updated enrollment data from the School Committee. The court issued its Draft Revision of the Masters’ Report on April 17, heard comments on April 18, and issued its desegregation plan on May 10. Its plan reduced the number of districts from the ten recommended by the masters to nine, redrew district lines, and reflected — on the basis of the new data — less racial disparity generally in school assignments than did the masters’ plan. The plan not only precisely set forth the new districts but called for changes in the school system’s administrative hierarchy, and established a system of community participation in district and citywide councils. The mandatory busing estimated by the court would affect 21,000 students. During this time of accelerated activity, the court also appointed an ad hoe com- mittee of three attorneys to assist in obtaining support from colleges and universities, and ordered that school personnel meet and confer with personnel from the designated college or university. Late in June the court authorized the court- ‘ appointed experts to resolve some remaining issues relating to facilities utilization, program allocation, and enrollment limits. Each of these actions by the court has been chal- lenged, as well as the court’s plan itself. This skeletal recitation of chronology masks a year of in- creasingly intensive activity in collecting and updating data, preparing, evaluating, and amending plans embracing a wide variety of approaches, and, finally, devising procedures and taking action to put into effect a plan calling for a dramat- ically different educational system affecting some 80,000 students. The pressures of time, the problems of developing 7a OPINION OF THE COURT. 7 reliable data, the clash among radically differing approach- es, the resistance of the Schoo] Commitice, the sheer numb- ers of parents, students, teachers, and administrators to be informed and oriented were all part of the massive problems of implementation. While we appreciate the labors that have taken place by all concerned, we also appreciate the necessity of giving the most careful consideration fo the issues before us. Some are of large significance. Some are of little moment. For pur- poses of clarity, we summarize them, not necessarily in terms of importance, but in terms of their breadth and specificity. A. Broad challenges to the court’s plan. 1. The School Committee contends that its free choice- third site plan was constitutionally sufficient and should have been adopted. 2. The Mayor contends that, the masters’ plan being con- stitutionally sufficient, the Equal Mducational Opportunities Act of 1974, 20 U.S.C. $1701 et seg., deprived the court of power to issue its own plan. 3. The Association contends that the court’s plan was erroneous because the court did not confine the remedy to climinating the demonstrable effects of the School Comunit- tee’s unlawful actions. 4. The Association, the Mayor, and by implication, the School Committee, contend that the court’s plan is defective in not having given weight to the impact of the departure of white students to other schools outside the Boston school system. B. Detailed challenges to the court’s plan. 1. The School Committee and the Association contend that the court erred in a mechanical resort to ratios. The Mayor and the Association object particularly to the use of ratios in effecting minority assignments to the high standard examination schools. 8a 5 MORGAN VU. KERRIGAN 2. The School Committee challenges the appointment of three masters and one expert and objects to the compen- sation of all four masters. 3. The School Conunittee objects to the court’s enercach- ment on its functions: a Inspecifying magnel programms; b, In requiring the participation of colleges and universities ; ce. In requiring the systematic involvement of a City- wide Coordinating Council and Community District Advisory Councils; d. In requiring the hiring of additional supervisory personnel; and e. In giving supervisory power to court-appointed experts. A. Broad challenges to the court’s plan. our sweeping criticisms have been leveled ot the court’s plan. The simplest is that the School Committee’s plan passed constitutional muster and the court could not justi- fiably require more. A similar argument, taking another point of reference, is that since the masters’ plan was con- stitutionally sufficient, the court could not, by reason of the qual Educational Opportunities Act of 1974, require more. The remaining two broad scale attacks do not assert a bar- rier to going beyond any other plan but rely on the necessity for making further inquiries into remedial issues before a final plan is implemented. One type of prerequisite inquiry would be to ascertain the prior impact of official segregative action sc that the remedy could be restricted to removing that impact. The other asserted prerequisite would be an inquiry into the likelihood of ‘‘ white flight’’ so that a remedy may he tailored which, by minimizing such flight, would assure a maximum achievable co-education among the races. 9a OPINION OF THE COURT 9 1. Sufficiency of the School Committee’s Pian. Upon a finding that a school system has been operated in contravention of the equal protection clause of the Four- teenth Amendment to the constitution, the burden falls upon the loeal school authorities to present a plan of action to the district court lo remedy the violations. Swann v. Charlulle- Mecklenberg Board ef Education, 402 U.S. 1, 16 (1971). Only on the default of the School Commitice to proffer an acceptable remedial plan is the district court empowered to fashion a remedy adequate to produce a unitary school system. Jd. The threshold question, then, in reviewing the district court’s action, is whether the rejection of the School Committee’s plan of January 27 was proper. In determining the acceptability of a proposed plan, the district court must assess the effectiveness of the plan in achieving desegregation. Green v. County School Board, 391 U.S. 430, 439 (1968). The district court, applying this stand- ard, rejected the School Committee plan stating that it ‘*presented no more than a hope for desegregation in Bos- ton’’. 401 i". Supp. at 229. On review, we conclude not only that the district court’s assessment of the School Committee plan was proper, but that if the district court had accepted the January 27 plan, we would have been constrained to reverse. See Keyes v. School District No. 1, 521 F.2d 465 (10th Cir. 1975) ; Jackson v, Marvell School District No. 22, 416 F.2d 380 (Sth Cir. 1969). The pian submitted by the School Committee was, in sum- mary, a freedom of choice plan supplemented by magnet schools and third site resource centers. The school assign- ment process was to be based upon a series of options avail- able to the students and their parents. Starting with the option to remain in the school attended in the previous year if it had been desegregated under Phase I, the student could choose in succeeding options to attend a citywide magnet 10a 10 MORGAN U. KERRIGAN school, a zonal magnet school, a school in which his race is in the minority, and finally, any school in the zone. At the end of this five step, seven week process a review committee would determine a course of action to deal with over-sub- scribed schools.” In the event that schools remained ‘‘ racial- ly isolated’’, defined by the school department as more than a 15 pereent deviation from the racial ratio for that level in the zone, the plan provided for mandatory student partici- pation in resource center activities. The resource center proposal called for integrated educational experiences at a third site, once a week for elementary students, once every two weeks for middle school students and a human relations course for high seheo] students. The entire plan rested on student and parental choice to desegregate the schools. It is well established that freedom of choice plans to dese- gregate school systems are not per se unconstitutional. Green, supra. In order for such a plan to be constitutionally acceptable, however, it must promise to be as effective in achieving a unitary desegregated system as any alternative and feasible plan. 7d. Freedom of choice has a long history of failure in achieving desegregation both in the south, Swann, supra; Monroe v. Board of Commissioners, 391 U.S. 450 (1968) ; Green, supra,8 and in other parts of the country, 7 According to this plan, various options were to be considered to deal with oversubscribed schools. These included the use of temporary classrooms, and extension of the school rear to increase capacity. The use of temporary class- rooms to enable white scliools to operate in excess of their capacity was found to be one of the bases of liability in this action. Morgan v. Hennigan, supra, 379 F. Supp. at 427-28. 8 Accord, Bivins v. Bibb County Board of Education, 424 F.2d 97 (5th Cir. 1970); United States v. Board of Education of Baldwin County, 423 F.2d 1013 (Sth Cir. 1970); United States v. Hinds County School Board, 417 F.2d 852 (Sth Cir. 1969); United States v. Jefferson County Board of Education, 417 F.2d 534 (5th Cir. 1969); Hall v, St. Iiclena Parish School Board, 417 F.2d 801 (5th Cir. 1969); Jackson v. Marvell School District No. 22 ,416 F.2d 380 (Sth Cir. 1969); United Siates v. Lovett, 416 F.2d 386 (Sth Cir. 1969); Anthony v. Marshall County Board of Education, 409 F.2d 1287 (Sth Cir. 1962); United States v. Greenwood Municipel Separate School District, 406 F.2d 1086 (5th Cir. 1969). lla OPINION OF THE COURT ll Kelly v. Guinn, 456 F.2d 100 (9th Cir. 1972) (Las Vegas) ; Spangler v. Pasadena City Board of Education, 375 F. Supp. 1304 (C.D. Cal. 1974). To be sure, it may be argued that vol- untary plans were less promising in the South than in the North, as segregate:: dual systems were deeply entrenched there, having had an express legal basis. Yet as the district court’s findings indicate, Boston had gone far in the creation of a de jure dual system. Boston, moreover, for ten years had a policy of open enrollment, followed by a controlled transfer policy riddled with exeeptions. In an earlier stage of the present case the district court found that this policy served to increase, rather than deercase, segregation in the school system. Morgan v. IIennigan, supra, 379 F. Supp. at 449-59. The School Committtce contends that its plan, although founded on freedom of choice, held promise to achieve dese- gregation due to the heavy reliance on magnet schools and alternative program schools — some fifty in number. Like freedom of choice, the use of magnet schools to achieve vol- untary desegregation has failed elsewhere, Bradley v. Milli- ken, 484 F.2d 215, 243 (6th Cir. 1974), rev’d on other grounds, 418 U.S. 717 (1974) ; Kelly v. Guinn, supra; Spang- ler v. Pasadena City Board of Education, supra; Dowell v. Board of Education, 338 F. Supp. 1256, 1264 (W.D. Okla. 1972). Compare Hart v. Community School Board, 512 F.2d 37, 54-55 (2d Cir. 1975). Although Boston has had experi- ence with one school which offered a specialized program and achieved a racially mixed student body,? we must agree with the district court that schools offering programmatic alter- natives, while a useful supplement to an otherwise adequate desegregation plan, could not realistically sustain the burden 9 The Trotter School was desizned to offer cultural enrichmert programs for children from AFDC families. White students residing in AFDC homes from outside the city of Boston made up part of the student body. 379 F. Supp. at 430. 12a 12 MORGAN UV. KERRIGAN of achieving desegregation of the Boston city schools.10 Finally, the School Committee plan to remedy ‘‘ racial iso- lation’’ with part-time integregated resource centers added nothing to the effectiveness of the overall plan. The objective sought to be achieved in a remedial plan is desegregation, not interracial experience or racial balance. Milliken v. Bradley, 418 U.S. 717 (1974). Accordingly, similar part-time pro- grams have been categorically rejected elsewhere, Keyes v. School District No. 1, supra, 521 F.2d at 477-79; Arvizu v. Waco Independent School District, 495 F.2d 499, 503 (5th Cir. 1974); United States v. Texas Education Agency, 467 I’.2d 848, 859 (Sth Cir. 1972), and must be rejected here. Against this historical background which promised failure for every feature of the School Committee plan, it is incon- eeivable that anyone, the School Committee members or the court, could believe that the plan would be effective in elim- inating and guarding against officially imposed segregation in Boston.11 The district court, therefore, was clearly cor- rect in declaring the School Committee in default of its obli- gation to present a constitutionally adequate plan. It was the district court’s unquestionable duty to utilize all the re- 10 The masters found: ‘*The magnet concept as devised by the Committee is unrealistic and unworkable. Magnet programs could assist desegregation if they satisficd certain conditions. They must be limited in number, and they must be care- fully placed, so that the effect of the applications they attract is to pro- mote desegregaion. The Committce Plan, which proposes the introduction of many magnet programs, satisfies none of these conditions, and could not possibly be put into operation by September, 1975.’’ 11 Comments of a member, and of the then Chairman, are revealing: ‘*The plan is ‘pie in the sky.’ It is a contradiction, it is impossible. All of us would love to sce a voluntary desegrezation system put into effect. It is not a practical reality. Of course I will vote for this.’’ ‘*I would never vote for a plan that involved the busing of school chil- dren. It is unfortunate that is the way our society exists... but the only way you are going to desegrezate city schools is through forced busing.’’ The only member of the School Committee to refuse to vote for the plan stated: ‘*T agree that it would be an ideal solution and therefore will not vote against it, but I will vote ‘present.’ I believe we should have our votes consistent with what we feel is a reality.’’ Remarks of Member Sullivan, Emergency Meeting of the Boston School Comm., January 7, 1975. 13a OPINION OF TUE COURT 13 sources ava.iulle to it as to fashion expeditiously a remedy that realistically would produce a unitary school system. Swann, supra. 2. The Constitutional Adequacy of the Masters’ Plan and the Applicabilily of the Equal Lducational Opportunities Act of 1974. The Mayor’s principal attack on the court’s plan, essent- ially joined in by the Association, is that, since the masters’ pian was constitutionally sufficient, the court was without power to require more busing than that contemplated by the masters. The source of this alleged limitation is the Equal Educational Opportunities Act of 1974, 20 U.S.C. §§1701-1758. The Act manifests an intention of Congress that mandatory busing not be ordered to a greater extent than is required by the constitution. Section 1712 states that a court shall ‘‘im- pose only such remedies as are essential to correct particular denials of equal educational opportunity or equal protection of the laws.’’12 Section 1713 requires a court to consider, make specific findings about, and adopt a series of less onerous devices before requiring busing. These include school assignments close to home, transfers which would improve racial balance, revision of zones, and the construc- tion of new schools and magnet schools. The Mayor’s argument proceeds simply: the masters’ plan contemplated mandatory busing for 6,100 fewer stu- dents of the 84,000 total student population than did the court’s plan; the court did not find that the additional com- pulsory transportation was required by constitutional neces- sity; and comparison with other cases demonstrates that in 12 One provision, § 1714, facially proscribes any court ordered transportation of a student to a school other than one ‘‘closest or next closest to his place of residence’’ of the appropriate grade level and type of education. The Mayor properly concedes that this section must be read in conjunction with § 1702(b) which states that provisions of the Act ‘‘are not intended to modify or diminish the authority of the courts... to enforce fully ... the Constitution .. .’’ l4a 14 MORGAN UV. KERRIGAN fact the masters’ plan was constitutionally sufficient; there- fore, the court exceeded its powers.13 The masters filed their final recommendations on March 31, 1975. On April 10 the school department furnished new statisties on the size and racial composition of the student body, on the basis of which the court modified the recom- mended plan. As noted by the district court in its May 28 order denying a stay, ‘‘the masters’ report and recommenda- tions contained the key elements and formed the foundation of the plan promulgated by the court.’’ The most significant change effected by the court was a change in the number of geographic districts froin nine to eight. The appellants assert that this change required more busing than the masters’ plan would have required had it been updated to reflect the new figures. While this basic factual promise is open to some doubt, we need not rest our decision on such a necessarily 13 The Association also arzucs that the adoption of the masters’ plan was required by F. R. Civ. P. 53(¢) (2), on the theory that the ‘‘delineation of dis- triete was a factual determination’’ which could not be changed by the district court unless found to be clearly crroncous. This argument misconceives the type of reference made in this case. Rule 53(c) provides that ‘‘[t]he order of reference to the master may specify or limit bis powers’’, and that was done in this case. The Order of Appointment and Reference to Masters of February 7, 1975, specified that the masters were ‘*to conduct hearings and make recommendations for a desegregation plan for Boston publie schools together with the reasons for recommending that plan, including discussion of the key issues.’’ This clearly described a mission not involving findings of fact meriting deferential treatment under Rule 53(e) (2). That rule’s mandate simply ‘‘does not ... apply where the master is directed only to report the evidence [and] to make recommendations... .’’ 5A J. Moore, Federal Practice 9 53.12(2], at 3002; Mattcr of Van Swearingen Corp., 180 F.2d 119 (6th Cir. 1950). See Dart v. Community School Board 383 F. Supp. 699 (E.D. N.Y. 1974), af’d, 512 F.2d 37 (2d Cir. 1975). Tiis reference was not a substitute for trial, where the master to a large extent takes over the fact-finding presess; the district judge could not delegate his duty to evaluate for himseli what actions had to be undertaken in order to remedy past failure to comply vith the constitution. Indecd, we doubt that the determin ation of district boundaries is accurately described as purely factual in nature, given the nature of this case. It is uncontested, moreover, that the figures on which the masters relied in drawing their districts were outdated and invalid in light of new figures sub- mitted by the School Department shortly after the masters’ final report was filed. Both as to racial composition and numbers of studerts in the districts, the cew figures rendered the factual assumptions underlying the masters’ determ- ination clearly erroneous. 15a OPINION OF THE COURT 15 elusive determination.14 We proceed to examine the district court’s duties and powers, as they are affected by the Mqual Educational Op- portunities Act of 1974; whether the court purported to be guided by the Act; and whether its findings and conclusions are sufficiently supported. Prior to the passage of the Act it was clear that the man- date governing federal judges was to accomplish ‘‘the tran- sition to a unitary, nonracial system of public education”’ in which ‘‘racial discrimination would be eliminated root and branch.’’ Green, supra, 391 U.S. at 436, 438. They were to make ‘‘every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities 14 The estimate of 6,100 additional students who would be bused under the court’s plan (21,000-court minus 14,900-masters) ignores the impact of the new data, even had the masters’ districts remained essentially intact. For exampie, the Burke district, climinated by the court, had a capacity of 8,250 and an en- rollment projected by the masters of 7,590. But the new statistics revealed it as containing 11,620 students. Even after assuming that some of the overflow would be absorbed by citywide magnet schools, there would remain perhaps 2,000 oxecss students. The Mayor dovs not show that shifts in district lines to accommodate these students cither by merging contiguous neighborsoods and their schools into Burke or by removing fringe neighborhoods from it would not encounter the difficulty of incrcasing Burke’s percentage of black students, already a high 63%. Although the amount of additional busing that would have been needed to take cure of this situation is u matter of conjecture, it would appear to be substantial, if increased segregation were to be avoided. Not only student population but racial concentration estimatcs of the masters were at odds with the realitics of the new figures. The following discrepancics were found to exist: Possible result New figures of allowed de- applied by viation of + 10 court to percentage points Master’s final masters’ within each report districts school West Roxbury 80% W 93% W 100% W South Boston 60% W 67% W 717% W Burke 50% B 63% B 73% B The result, particularly when the + 10 point deviation is considered, represent- ed substantial changes, unanticipated by the masters. While the masters gave greater weight to neighborhood identity than did the court, it is far from clear that they would have tolerated the higher concentrations shown by the new data. The Mayor’s assumption that the court’s plan would involve anything close to the —_— busing of 6,100 more students is therefore significantly vulnerable. l6a 16 MORGAN VU. KERRIGAN of the situation.’’ Davis v. School Commissioners of Mobile Cowiity, 402 U.S. 33, 37 (1971). And in so doing, ‘‘the scope of [their] equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable rem- elies.’’ Swann, supra, 402 U.S. at 15 (1971). The Act disavows any intention to encroach upon the obli- gation of the cousts ‘‘to enforce fully’’ the constitution, § 1702(v). Moreover, it places reliance on specific findings with respect to the efficacy of particular remedies in the ‘‘priorities’’ section, } 1713, and on a more general finding of the inadequacy of other remedies in $1755. By explicitly leaving the district court the power to determine the ad- equacy of remedies, the Act necessarily does not restrict the breadth of discretion of that court to determine what scope of remedy is constitutionally required. Thus the Act mani- fests a purpose not to limit judicial power but to guide and channel its excreise. Ina sense it is a statutory “‘less restric- tive means’’ guideline, endeavoring to ensure that substan- tial compulsory transportation be used as a last resort. Our reviewing function remains the limited one of scrutinizing the record for sufficent factual support for the scope of the remedy, its reasonableness and its feasibility. See Swann, supra, 402 U.S. at 31. The Act adds the factor that the dis- trict court’s findings must reflect a substantial consideration of the less restrictive means which Congress has required to be explored and used prior to resorting to compulsory trans- portation of any magnitude.15 We turn therefore to an analysis of these two areas. Initially, we look to whether the remedy imposed in this ease reflected the channelling contemplated by the Act. On this question, there can be little doubt. The district court 15 As the court said in Brinkman v. Gilligan, 518 F.2d 853, 856 (Sth Cir. 1975), ‘We construe the 1974 Act, read as a whole, as not limiting cither the nature or the scope of the remedy for constitutional violations in the instant case.’’ 17a OPINION OF THE COURT 17 clearly purported to be guided by the Act’s mandate. In the course of presenting its plan, the court stated: ‘*Assignment of every student to the school closest or next closest to nis residence, considering only school capacity, natural physical barriers or both, along with grade level and the type of education provided, cannot achieve substantial desegregation in Boston due to the geography of the city and racial and ethnic distribution in the city. 20 U.S.C. § 1713(a)(b), $1714. Revision of attendance zones and grade structures, construction of new schools and the ciosing of old schools, a controlled transfer policy with limited exceptions and the creation of magnet schools have been used in the formulation of the plan here adopted in order to minimize mandatory transportation. 20 U.S.C. § 1713. The court finds, how- ever, that some transportation of students to schools other than those next closest to their residences is re- quired to remedy adequately the denial of plaintiffs’ constitutional rights and to eliminate the vestiges of a dual school system in Boston. 20 U.S.C. §1702(b), §1714(a).’’ 401 F. Supp. at 264.16 We do not understand the Mayor to contest these findings; nor would there be any basis in the record for such a chal- lenge. Rather, the Mayor’s theory goes less to which type of remedy (e.g., busing, magnet schools, etc.) was used by the court than to whether the remedial plan as a whole effectu- ated more desegregation (and as a result more busing) than was required. Since this argument concerns the district 16 Additional comments in the same vein are te be found in various parts of the court’s opinion filed subsequent to the plan itself: **The plan that the court has ordered into effect reflects the court’s con- tinuing efforts to hold compulsory busing to a minimum.’’ ‘‘The districts in this plan and the guidelines for assigning students have been drawn to minimize required transportation as much as possible consistently with desezregating the city’s schools.’’ ‘‘ The plan adopted by the court attempts to minimize forced busing.’’ 18a 18 MORGAN VU. KERRIGAN court’s discretion in determining the adequacy of the rem- edy, and therefore gains nothing from the Act which leaves that discretion unaffected, it must stand or fall upon those traditional principles of equity which would govern this issue even were the Act not in existence. We turn, thercfore, to those principles and ovr traditional reviewing function. It is important to understand what the court’s plan accom- plished. Assuming that it involves the foreed busing of up to—but probably substantially fewer than —6,100 more students than the masters’ plan, what did it get in return? We see the plan as one involving relatively unskewed, con- _tiguous, compact districts without extensive gerrymander- ing or satellite zoning. It should be borne in mind that com- pulsory busing occurs only within, not between, districts. Although both the masters’ plan and the court’s plan leave the East Boston schools 95 percent white, the court’s plan eliminated the other virtually one-race schools (as would have existed under the masters’ plan in West Roxbury, 93 percent white) and many racially identifiable schools (pre- dictable for the masters’ Burke district, 63 percent black). It reduced the racial distortion in the three districts which, under the masters’ plan (as the new figures affected it), would have been markedly disproportioned. By reducing racial identifiability, the plan did more to avoid the dilemma of either denying a district’s pupils access to citywide schools or allowing the district to lapse back into a one-race status. That the plan was not perfectionist is shown by the parameters of its district ratios, the percentage of whites ranging from a high of 61 percent to a low of 40 percent, in a school population 52 percent white, 36 percent black, and 12 percent other minority. Moreover, a 25 percent deviation was permitted for each district schoo]. This compares with parameters in the masters’ plan, when the newer School Department data are taken into account, which are substan- 19a OPINION OF THE COURT 19 tially more extreme at both ends. As for the compulsory transportation, the maximum is a 5 mile, 25 minute trip, the avearge being 214 miles, 10 to 15 minutes. Could the district court have reasonably found this addi- tional desegregation to be constitutionally required?!7 To put it another way, does the court’s pian go beyond ‘‘every effort to achieve the greatest possible degree of actual dese- gregation, taking into account the practicalities of the situ- ation’’? Davis, supra, 402 U.S. at 37. The *‘practicality”’ of white flight is not a viable basis for declaring the plan in- valid. See part A 4, infra. Apart from the practicality of geography which induced the court to exempt East Boston from Phase II, we sce no other geographical factor of sig- nificant dimensions. To the extent that funding is a problei, we note that virtually the entire expense of any incremental busing is fundable by the state Board of Education, which supports the court’s plan. See Mass. G. L. ¢. 15, $11; ¢. 71, 17 The Mayor would have us answer this question in the negative by referring to other cases, aflirmed by courts of appeals, where more schools were allowed to remain all black or more dominantly black than the masters’ plan contem- plated. Apart from the Mayor’s assumption that the masters’ plan contem- plated no school more than about 53% black —an estimate which, in the light of the new data, shou'd be closer to 73% —we reject such a simplistic color matching test to determine the constitutional sufficiency of any plan. The cases cited by the Mayor reveal the hazard of picking as a control any one statistic of residual racial imbalance which another court may have ap- proved. In three cases, Mims vy. Duval County School Board, 329 F. Supp. 123 (M.D. Pia.), aff’d, 447 F.2d 1330 (Sth Cir. 1971); Goss v. Board of Education, 482 F.2d 1044 (Gth Cir. 1973) (en bane); and Norticross v. Board of Edu- cation, 489 F.2d 15 (6th Cir. 1973), geographie factors and, at least in Jfims and Northcross, the dvsire to avoid extensive long distance busing were relied upon to justify the lesser degree of desegregation attempted. In two cases, Pate v. Dade County School Board, 434 F.2d 1151 (Sth Cir. 1970) and Ross v. Eckels, 434 F.2d 1140 (Sth Cir. 1970), while more all black sehvols were permitted to remain, the courts of appeals had insisted on reducing the number of pupils attending such schools to around 5% »f the total school population. Were we to take this statistic as a control, we would have to declare the court’s p!an, which leaves over 7% of the total studeut population attending the East Boston white schools, constitionally inadequate. The remaining case, Carr v. Montgomery Board of Education, 377 F. Supp. 1123 (M.D. Ala. 1974), afd per curiam, 511 F.2d 1374 (Sth Cir. 1975), concededly insisted on a less stringent plan. Whether the desire to avoid cross-city busing would be, in our minds, sufticient to justify the lower objective, we have no reason tu decide. The exercise of one district court’s discretion, in a particular case, though aflirmed on appeal, cannot establish constitutional limits for other courts facing other circumstances. BEST COPY AVANLABLE 20a 20 MORGAN UV. KERRIGAN §§ 7A, 7B, 371(ii). The amount of additional desegregation which was ‘‘purchased’’ by the court’s plan was neither trivial nor disproportionately burdensome. When we ask oursclves whether a slight increase of maximum percentage of planned white enrollment at some schools, or leaving some vlementary schools unaffected, or adding a few more magnet schools would achieve the aiid minimum with less compulsory busing, we realize that the concept of the mini- mum cannot be identified with precision. Whatever pres- eription may be adopted by a judge, after months and years of consideration, it is doubtless always possible to make a case that something less will do. We have no basis for hold- ing that the court exceeded its obligation to do all that it feasibly could to extirpate the effects of the constitutional violations over the years. 3. Alleged Overbreadth of the Remedy. On January 20, 1975, the Association submitted a desegre- gation plan that was designed to restore the racial composi- tion of the Boston schools to that which they would have had in the absence of any illegal official action. It contended that the district court was obliged to determine the extent to which the segregation in the Boston schools was attributable to official action and to limit the remedy to eliminating only that segregation. The factual premise of the Association’s plan was that the racial composition of most of Boston’s elemen- tary schools and of two of its high schools, Charlestown and East Boston, is the result of residential patterns in Boston and not of the illegal acts of the Schoo] Committee. Its plan, accordingly, provided that these schools should not be affected by the court’s remedy. Since the Association’s plan challenged the remedial guidelines contained in the district court’s order of October 31, 1974, the district court treated the Association’s docu- 2la OPINION OF “HE COURT 21 ment as both a motion to modify the remedial guidelines prescribed by that order and as a proposed desegregation plan. The district court held a hearing on the issues pres- ented by the Association on January 23, 1974. In support of its plan, the Association offered to introduce evidence that would establish Giant population patterns, not legal state action, caused the existing racial segregation iu the schools in question, he district court denied the motion to modify the remedial guidelines, holding that the Association’s remedial theory was inconsistent with the controlling Supreme Court precedents.8 The court also held that the Association’s desegregation plan was constitutionally inad- equate and could not be considered by the masters. Finally, the court refused to admit the Association’s evidence, on the grounds that it was irrelevant since the only question before the court at that time was how to accomplish the greatest amount of actual desegregation consistent with the practi- calities of the circumstances and that the motion represented an attempt to reopen the findings of fact made by the district court at the liability stage of the proceedings and affirmed by this court. The Association has appealed, contending that the district court erred, first, in refusing to frame the remedy in terms of the specific consequences of the proven consti- tutional violations, and, second, in rejecting the evidence that the racial segregation in particular Boston schools was not the result of any state action. The central question on appeal is whether the district court erred in refusing to accept the Association’s remedial theory. In support of its theory that the district court must ascertain the extent to which state action caused the existing segregation in the schools and limit its remedy to eliminating that segregation, the Association relies upon the language of 18 The district court also ruled that modification was not required by the Equal Educational Opportunities Act of 1974. See note 24 infra. 22a 22 MORGAN ¥. KERRIGAN the Fourteenth Amendment itself. Since the amendment pro- hibits only state imposed racial segregation, see Civil Rights Cases, 109 U.S. 3 (1883), the Association contends that a district court’s remedial power is limited to remedying the specific effects of the ‘‘state action’’ that formed the basis of the constitutional violation. Although the theory possesses some surface plausibility, the Supreme Court precedents clearly establish that the dis- trict court was correct in rejecting the Association’s pro- posed modification of its remedial guidelines. The remedial principles set forth in Swann, Davis, and Green do not toler- ate anything less than ensuring that the effects of constitu- tional violations are eliminated, and we are certain that the application of the Association’s remedial theories could not eradicate the effects of state iinposed segregation.19 To appreciate why the Association’s remedial theory must be rejected, it will be helpful to consider the nature of the constitutional violation. In the first stage of this ease, the district court found that the School Committee’s policies re- garding the construction of new facilities, the use of portable classrooms, overcrowding, districting and _ redistricting, feeder patterns, open enrollment, transfers, and faculty and staff assignments ‘‘were all marked by segregative intent”’ and substantially contributed to the segregated character of dozens of Boston schools. 379 F. Supp. at 426-30, 433-37, 442-45, 455, 459, 466-68, and 472. The latter part of the dis- trict court’s opinion dealt specifically with the School Com- mittee’s defenses that the racial segregation in the Boston 19 A remedy may sometimes properly ‘‘exeeed the violation’’ in that it may do more than cradicate the constitutional wrong. To the extent that ‘‘ overbreadth’’ in the remedy is necessary to ensure that the constitutional violation is corrected, it is not at all unusual. There are many instances in the law in which remedial law placcs greater restrictions on primary activity than did the substantive law that had been violated. For example, a company that is found to have violated the Sherman Act will have its future operations governed by a much more re- strictive standard than that imposed by the Sherman Act itself. See United States v. United Shoe Machinery Corp., 391 U.S. 244 (1968). ee a ee 23a OPINION OF THE COURT 23 schools — which it conceded to exist—-resulted from | private residential patterns and/or its racially neutral neighborhood school policy. The district court found that Boston had never followed a true neighborhood school policy and rejected the defense, relying in part on its earlier find- ings. 379 F. Supp. at 469-74. These specific findings, many of which related to elementary schools, were the basis for the determination that Boston’s school system as a whole vio- lated the Fourteenth Amendment. Although the defendants eould have limited the geographic scope of the violation by proving that parts of the Boston school system were geo- graphically unrelated to the rest of the system and had not been operated with ‘‘segregative intent,’’ Keyes, supra, at 203-05 and 210-13, the School Committee failed to satisfy this burden with respect to any portion of the system. We aflirmed the district court’s findings and legal conelusions in their entirety, Morgan v. Kerrigan, supra. The Association, in effect, argues that the trial on liability should be treated as the first of two battles, and that the second battle should involve a more particularized inquiry into the causes of the segregation at the individual schools within the system. Although the defendants failed, at the trial on liabilily, to persuade the district court that private residential patterns alone caused the segregation in the Boston schools, the Association maintains that the district court must, at the remedy stage, reconsider the effects of non-official action, determine the degree to which private action caused the existing segregation, and fashion a remedy that preserves the segregation that can be separated from governmental causation. This second battle would be consid- erably more complicated than the first. The logical impli- cation of the Association’s proposal is that it would be proper for any group connected with any school to introduce proof that that school’s racial profile was only partially 24a 24 MORGAN VU. KERRIGAN attributable to official action. The district court could be faced with the task of making percentage findings as to every school in the district. The short answer to the Association is that its position is squarely contrary to the remedial principles of Swann, Davis, and Green.29 See also Keyes, supra, at 200 and 214. These cases establish that when intentional official action has significantly contributed to segregation in substantial por- tions of a school system, the individual schools in the system must be subjected to the maximum feasible desegregation if official action ‘‘created or maintained’’ the racial segre- vation contained therein. Swann, supra, at 21 and 28. See Keyes, supra, at 214. In the Boston case, the School Com- mittee had the opportunity to prove that official action had not contributed to the segregated character of some of the 20 The Association recognizes that Swann, Davis, and Green provide that, during the remedial phase of a school desegregation casc, the district court must order the maximum practicable desegregation regardicss of the degree to which the actual sezrezation in the schools is demonstrably the result of unlawful state action. The Association attempts to distinguish these cases on the ground that each involved school systems that had been segregated by statute for years. In such school systems, the Association contends that the application of these remedial principles was warranted because all segregation could be presumed to be the result of illegal official action. The Association’s attempt to limit the applicability of these remedial prin- ciples to cases in which there had previously been a statutory 7:21 school system fails. In Swann and Davis, the Court clearly did not proeced on the assumption that the application of its remedial principles would operate only to eliminate the segregation which was directly attributable to illegal official action. The Court recognized that the segregation in those systems that remained after the school authorities abolished the stavutory dual system and adopted a ‘‘neithborhood’’ school policy was, to some extent, a consequence of private residential patterns. Sce Swann, supra, at 25-26; Davis, supra, at 36. The Court clearly provided that, although all the remaining segrecation in certain schools may not be attributable to illegal state action, the schools must be subjected to the maximum practicable desegregation. Swann, supra, at 21 and 28. The lower federal courts have consistently rejected desegrezation plans that attempted to justify the failure to desegregate certain schools on the ground that the racial composition of those schools results from housing patterns. Maximum feasible desezregation is required unless the school authoritics can demonstrate that their actions in no way contributed to the sezregated character of the individual schools. Sec, e.g., Lee v. Macon County Board of Education, 488 F.2d 746 (Sth Cir. 1971); Goss v. Board of Education of Knozville, 443 F.2d 632 (6th Cir. 1971); Clark v. Board of Education of Little Rock, 465 F.2d 1044 (Sth Cir. 1972); Brewer v. Board of Education of Norfolk, 397 F.2d 37 (4th Cir. 1960). —— 25a OPINION OF TIE COURT | 25 individual schools in the system, but the district court found that the School Committee had failed to satify this burden.21 fence, under Swann, the district court was obligated to fashion a remedy that would accomplish the greatest amount of system-wide desegregation taking into account the prac- ticalities of the situation. S:cann, supra, at 15-16; Davis, supra, at 37. The Supreme Court has tacitly recognized the impotence of a remedy designed only to eliminate the demonstrable effects of past official conduct. While de jure segregation may not have been established at cach and every school in a system, ‘‘common sense’’, to use the words of the Court, supports the conclusion that effects of the proven discrim- inatory actions pervade the school system asa whole. Keyes, supra, at 201. Acts that establish one school as white or as black will have a reciprocal effect on the racial composition of nearby schools. Id. at 202-03; Swann, supra, at 20-21. The use of various devices to earmark sei:>9ls according to their racial compositions may well have had a ‘‘ profound effect on the racial composition of the residential neighborhoods with- in the [city], thereby causing further racial concentration within the schools.’’ Keyes, supra, at 202. ‘*‘People grav- itate toward school facilities just as schools are located in response to the needs of the people.’’ Swann, supra, at 20.22 22 The Association places extensiv’ [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1954%3A1. Public record. Not legal advice.