Petition — McDONOUGH v. MORGAN (No. 75-1445)

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FILED |

Abo |

In the MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

OctToser TERM, 1975

No. 5-7-1445

JOHN J. MecDONOUGH, ET AL.,

PETITIONERS,

Vv.

TALLULAH MORGAN, ET AL.,

RESPONDENTS.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

JaMES J. SULLIVAN, JR.

Francis J. DiMento

Purp T. TrerRNEy

D:1MentTo & SuLLIVAN

100 State Street

Boston, Massachusetts 02109

Counsel for the Petitioners

Blanchard Press, Inc.. Boston, Mass. — Law Printers

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TABLE OF CONTENTS

Page

Opinions Below . 2

Judgments Below 2

Jurisdiction 3

Questions Presented - 3

Constitutional Provisions Involved 3

Statement of the Case | 3

Reasons for Granting the Writ 8

Conclusion 21

TABLE OF CITATIONS

Cases

Epperson vy. Arkansas, 393 U.S. 97 (1968) | 15

Kerrigan v. Morgan, U.S. , 95 S.Ct. 1950 (1975) 5

Keyes v. School District No. 1, 521 I’.2d 465 (10th Cir.,

1975) | ss

Milliken v. Bradley, S.—, 94 S.Ct, 3112 (1974) 9,

11, 13

Morgan v. Hennigan, 379 F. Supp. 410 (D. Mass. 1974). 4,5

Morgan v. Kerrigan, 401 F.. Supp. 216 (D. Mass. 1975) 2

Morgan vy. Kerrigan, 509 F.2d 580 (1st Cir., 1974) . D

Morgan v. Kerrigan, 509 F.2d 618 (1st Cir., 1975) . 6

Morgan v. Kerrigan, 523 F.2d 917 (1st Cir., 1975) 8

Morgan v. Kerrigan, slip op. (1/14/76 1st Cir.) .._. 2

San Antonio Independent School District v. Rodriguez,

411 U.S. 1 (1973) ........ 12, 14, 15

Shelton v. Tucker, 364 U.S. 479 (1960) 16

Swann v. Board of Education, 402 U.S. 1 (1971) .. 9, 1i

Wright v. Council of City of Emporia, 407 U.S. 451

(1972) =P ? Fie Aah: ae care

ll Table of Contents

Constitutional Provisions Involved

Page

Thirteenth Amendment 4

Fourteenth Amendment 3, 4

Statutes

28 U.S.C. §1254(1) 3

§1291 5

$1292 5

§1343 4

42 U.S.C. §1981 4

$1983 4

§2000D 4

Miscellaneous

Dentler, ‘‘Improving Public Education: The Boston

Schooi Desegregation Case,’’ The Advocate, Suffolk

University Law School Journal, Vol. 7, No. 1, Fall,

1975 . 19, 20

Silber, ‘‘ Paying the Bill for College—The Private See-

tor and the Public Interest,’’ Atlantic Monthly,

Vol. 235, No. 5, May, 1975 19

In the

Supreme Court of the United States

Octroser Term, 1975

No.

JOHN J. MecDONOUGH, ET AL.,

PETITIONERS,

TALLULAH MORGAN, ET AL.,

RESPONDENTS.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Petitioners are the School Committee for the City of

Boston, Massachusetts, John J. McDonough, Paul R.

Tierney, Kathleen Sullivan, David I. Finnegan, Elvira

Palladino, as members of said School Committee, and

Marion J, Fahey, as she is Superintendent of the Boston

school system. Respondents are Tallulah Morgan, and

fifty-six other black parents and their children who attend

the Boston public schools. Petitioners pray that a writ

of certiorari issue to review the judgment of the United

2

States Court of Appeals for the First Cireuit entered in

the above-entitled case on January 14, 1976.

Opinions Below

The opinion of the Court of Appeals for the First Cir-

cuit is not reported et this writing, but the slip opinion is

reproduced in a separate Appendix, commencing at page 1.

The Memorandum of Decision and Remedial Orders of

the District Court for the District of Massachusetts are

reported at 401 I’. Supp. 216 (D. Mass. 1975) and are

reproduced in the separate Appendix, commencing at

page 57.)

Judgments Below

The Further Remedial Orders requiring petitioners to

implement the student desegregation plan of the United

States District Court for the District of Massachusetts

were entered on May 10, 1975, and are reproduced in the

separate Appendix at page 198. The judgment of the

Court of Appeals for the First Cireuit was entered January

14, 1976, and is reproduced in the separate Appendix com-

menecing at page oo.

1 Both the Opinion of the Court of Appeals for the First Circuit

and the Memorandum of Decision and Remedial Orders of the

District Court were entered sub nom. Morgan, et al v. Kerrigan,

et al. As a result of a November, 1975 municipal election in

Boston, petitioners David I. Finnegan and Elvira Palladino sue-

ceeded John J. Kerrigan and Paul Ellison as members of peti-

tioner School Committee for the City of Boston on January 5,

1976. Pursuant to an Order of the Distriet Court for the District

of Massachusetts entered February 25, 1976, Mr. Finnegan and

Ms. Palladino were substituted as parties defendant for Messrs.

Kerrigan and Ellison, and the caption of the case in the District

Court was changed to- Talluleh Morgan, et al. v. John J. MeDon-

ough, ct al. Petitioner Marion J. Fahey succeeded William J.

Leary as Superintendent of the Boston Public Schools on Septem-

ber 1, 1975, and was substituted as a party defendant.

3

Jurisdiction

The jurisdiction of this Court is invoked pursuant to

the provisions of 28 U.S.C. § 1254(1) and Rule 22(3).

The judgment of the Court of Appeals was entered on

January 14, 1976, and this petition for certiorari was filed

within ninety (90) days of that date.

Questions Presented

In a school desegregation case, may a Federal District

Court, as part of its remedy, dictate the quality of edu-

cation to be offered?

What are the limits of a Federal District Court’s power

in the remedial phase of a school desegregation case?

Constitutional Provisions Involved

Fourteenth Amendment:

‘Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

Wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immun-

ities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property,

Without due process of law; nor deny to any person

Within its jurisdiction the equal protection of the

laws.’’

Statement of the Case

This petition seeks review of a judgment of the Court

of Appeals for the First Circuit affirming a student dese-

4

gregation plan for the Boston Public School System

formulated by the District Court for the District of Massa-

chusetts and requiring petitioners to implement that plan.

Suit was brought by respondents, representing a class

of all black public school students and their parents,

against petitioners, the School Committee of the City of

Boston, its individual members and the Superintendent

of the Publie Schools,? seeking relief against racial segre-

gation in the operation of the Boston Public School

System.

Federal jurisdiction was invoked under 28 U.S.C. ¢ 1343.

Violations of the Thirteenth and Fourteenth Amendments

and 42 U.S.C. ¢§ 1981, 1983 and 2000D were alleged.

On June 21, 1974, the District Court found that sub-

stantial segregation existed in the Boston Publie Schools

and that petitioners ‘‘took many actions in their official

capacities with the purpose and intent to segregate the

Boston public schools and that such actions caused current

conditions of segregation in the Boston public schools.”’

Morgan v. Hennigan, 379 F. Supp. 410, 424, 480 (D. Mass.

1974). It found the entire school system of Boston to be

unconstitutionally segregated. Jd. at 482. The Partial

Judgment ruled that ‘‘the rights of the plaintiff class of

black students and parents under the Fourteenth Amend-

ment to the Constitution of the United States have been

and are being violated by the defendants in their manage-

ment and operation of the public schools of the City of

Boston,’’ permanently enjoined petitioners ‘from dis-

criminating upon the basis of race in the operation of the

public schools of the City of Boston and from creating,

promoting, or maintaining racial segregation in any school

or other facility in the Boston school system,’’ and ordered

2 Also named as defendants, but not petitioners here, were the

Board of Education of the Commonwealth of Massachusetts, its

individual members, and the Commissioner of Education, The

District Court found no liability against these ‘state defendants.”’

5

petitioners ‘‘to begin forthwith the formulation and im-

plementation of plans which shall eliminate every form

of racial segregation in the public schools of Boston, in-

cluding all consequences and vestiges of segregation

previously practiced by the defendants.’ Jd. at 484. The

Interlocutory Order preliminarily enjoined petitioners

from:

‘*(a) failing to comply in any respect with the Racial

Imbalance Act plan ordered by the Supreme Judicial

Court of Massachusetts to be implemented on or be-

fore the opening day of school in September, 1974;

‘“‘(b) beginning the construction of any new school

or expansion or ihe placement of any new portable;

‘‘(e) granting transfers of white teachers from

schools with majority black enrollments or black

teachers from schools with majority white enroll-

ments;

‘““(d) granting transfers [of students] under excep-

tions to the controlled transfer policy.’’ Id.

Appeal to the Court of Appeals for the First Cireuit

pursuant to 28 U.S.C. 4§ 1291 and 1292 was taken from the

District Court’s judgment of liability against petitioners,

the resulting permanent injunction and the interlocutory

order. On December 19, 1974, the- Court of Appeals for

the First Circuit affirmed the judgment of the District

Court. Morgan v. Kerrigan, 509 F.2d 580 (1st Cir. 1974).

A petition for Writ of Certiorari to the Court of Ap-

peals for the First Cireuit was denied by this Court on

May 12, 1975. Kerrigan v. Morgan, —— US. , 95S. Ct.

1950 (1975).

Following its decision on June 21, 1974, the District

Court commenced the exploration of appropriate remedies

(A. 2), and on October 31, 1974 entered an Order dictating

6

generally the contents of a citywide student desegregation

plan for the 1975-1976 school year to be filed by the peti-

tioners on December 16, 1974.5 This Order provided that:

“In drafting the plan, the defendants shall utilize

as a starting »int and keep in mind the goal 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, ele-

mentary, intermediate and secondary, throughout the

system.’’ (A. 65).

Staff of the Boston School Department prepared such

a plan, but on December 16, 1974, members of the peti-

tioner School Committee voted not to submit it to the

District Court. Notwithstanding that the ‘‘December 16

Plan’’ was filed with the District Court by petitioners’

then counsel (A. 66), the District Court, because of peti-

tioners’ refusal to adopt the plan as their own, held three

of the petitioners in continuing contempt of its Octo-

her 31, 1974, Order. Following the denial of a stay

pending appeal of the contempt order by the Court of

Appeals for the First Cireuit, Morgan v. Kerrigan, 509

F.2d 618 (1st Cir. 1975), the District Court found that

the three members had purged themselves, and, on January

27, 1975, the School Committee did submit a student dese-

gregation plan, (the ‘*School Committee Plan’’) different

from the plan proposed by the schoo! department staff.

(A. 4, n. 3).

An alternative student desegregation plan for the Boston

3During the 1974-1975 school year, the Boston Publie School

System operated under a student desegregation plan of limited

scope initially ordered into effect by the Supreme Judicial Court

of Massachusetts and incorporated by reference into the Inter-

locutery Order of the District Court entered as part of its liability

finding of June 21, 1974 (A. 62, 63).

7

Public School System was filed by the respondents on

January 20, 1975, and the parties then filed comments on

one another’s submissions.* (A. 68).

On January 31, 1975, the District Court appointed two

experts, Dr. Robert A. Dentler, Dean of the Boston Uni-

versity School of Education, and Dr. Marvin B. Scott,

Associate Dean of the same school (the ‘‘experts’’), to

assist in the adoption of a student desegregation plan for

implementation in September, 1975. (A. 68). The experts

were directed to assist a panel of four masters appointed

by the District Court on February 7, 1975, who were

charged with considering the plans filed, holding eviden-

tiary hearings, and making recommendations on a student

desegregation plan to that Court. (A. 5, 68, 69).

After two weeks of such hearings and final arguments

on their draft report, the Masters issued a final report on

March 31, 1975, wherein they found the School Committee’s

plan inadequate because it relied primarily upon parental

free choice; rejected the respondents’ plan because it was

educationally deficient, unwieldy and arbitrary; and re-

jected the December 16 plan as being vague and unduly

burdensome to minorities. (A. 5, 6).

The Masters’ final report proposed a new plan which

incorporated certain elements of the plans submitted. (A.

69). Following hearings on objections to the Masters’

plan, and after consideration of updated data furnished by

the School Department in April, 1975 (A. 69), the District

Court issued its own student desegregation plan on May

*Between the period from the District Court's June 21, 1974

liability opinion and February, 1975, the Boston Teachers Union,

the Boston Association of School Administrators and Head-

masters, The Boston Home and Sehool Association and El Comite

De Padres Pro Defensa De La Education Bilingue were allowed

to intervene. The Commissioners of the Public Facilities Com-

mission, the Director of the Public Facilities Department and the

Mayor of the City of Boston were joined as parties defendant in

September, 1974. (A. 3, 68).

8

10, 1975, but deferred entry of its underlying decision until

June 5, 1975, at which time the May 10 plan was included

as Part V of the District Court’s Memorandum of Deci-

sion and Remedial! Orders. (A. 118).

On June 17, 1975, the Court of Appeals for the First

Circuit denied petitioners’ motion for a stay of the Dis-

trict Court’s plan pending appeal. Morgan v. Kerrigan,

923 F.2d 917 (1st Cir. 1975).

Reasons for Granting the Writ

The District Court’s finding, at the liability stage, that

the respondents have been denied equality of educational

opportunity has become the vehicle by which the District

Court has sought to justify remedial orders which far

exceed any proven constitutional violation. The District

Court has ordered changes in the content of education to

be offered in the schools; it has formulated educational

policy ; and it has entered orders requiring the expenditures

of monies, not to bring about the dismantling of a dual

schoo] system, but to improve the general quality of educa-

tion which is to be offered in the school system.

The District Court has proceeded to place itself in the

shoes of the publicly elecied petitioners, mandating its own

notions of good educational policy unrelated to the demands

of the Constitution. It has initiated precedent for the era-

dieation of local control over educational policy and the

wholesale operation of the public schools by federal dis-

trict courts in school desegregation cases. The result has

been an unrestrained, de facto veceivership of the entire

Boston School system.

To appreciate the magnitude of the departure from

precedent sanctioned by the Court of Appeals in its af-

firmance of the District Court’s plan, a brief review of

the standards governing district courts in desegregation

cases Of this sort is necessary. The leading case governing

the available remedial options is Swann v. Board of Edu-

cation, 402 U.S. 1 (1971), wherein this Court stated that:

‘*| A }|bsent a constitutional violation there would be

no basis for judicially ordering assignment of stu-

dents on a racia. basis. . . But all things are not equal

in a system that has been deliberately constructed

and maintained to enforce racial segregation, The

remedy for such segregation may be administratively

awkward, inconvenient, and even bizarre in some

situations .

* >. * *

‘‘No fixed or even substantially fixed guidelines

can be established as to how far a court can go, but

it must be recognized that there are limits. The ob-

jective is to dismantle the dual school system.’’ Id.

at 28.

In Milliken v. Bradley, US. —, 94 S. Ct. 3112

(1974), this Court, elaborating on Swann, supra, stated:

‘‘|T lhe task is to correct, by a_ balancing of the

individual and collective interests, ‘the condition that

offends the Constitution.’ A federal remedial power

may be exercised ‘only on the basis of a constitutional

violation’ and ‘{a|s with any equity case, the nature

of the violation determines the scope of the remedy.’

402 U.S. at 15, 16.’’ Id. at 3124.

This Court has made it clear that the broad, but not

unlimited, remedial powers of federal courts in school

desegregation cases must be directed toward remedying

the constitutional violation; that is, the existence of the

dual school system. When a district court aims at im-

10

proving the overall quality of education and educational

facilities, it has exceeded the limits of its remedial powers

by ceasing to address itself to the condition that offends

the Constitution.

‘Specifically, the District Court below mandated that the

1975-1976 entering classes at the examination schools *® be

at least thirty-five percent black and Hispanie (A. 162);

that the petitioners appoint additional superintendents,

principals and headmasters (A, 51, 52, 119); that certain

courses that had not previously been offered be taught (A.

169-174): that two court-appointed experts supervise the

assignment of students (A. 179, 181), decide program alloca-

tions (A. 53-54), and oversee the nature of instruction (A.

85); that the petitioners enter into contracts with institu-

tions of higher education to share in the development and

direction of curriculum and instruetion (A. 107-110, 163-

168); and that community groups be established to partic-

ipate in the educational process. (.A. 110, 111, 119, 187-192).

In sum, the violation of the respondents’ rights to equal

educational opportunity has been remedied, not merely by

disestablishing the dual schoo] system, but by changing

the educational policy of the petitioners. The case has

reached the stage where the District Court has decided

that the respondents are entitle’ not only to an equal

education, but to a better edueation, as evidenced by the

District Court’s statement that it was ordering the pairing

of certain schools with the institutions of higher education

to ‘‘improvie| the quality of education throughout the

school system.”? (.A. 107). Sinee these pairings are to be

‘long-term commitment(s|*’ to ‘‘the quality of education’’

(A, 108), under the District Court’s order, there can never

©The examination schools are Boston Latin School, Boston Latin

Academy and Boston Technical High School. These schools have

a long history of providing an excellent edueation to any student

who has sufficient scholastic ability to keep up with their rigorous

standards. (A. 100).

11

be a point where the petitioners ‘‘should have achieved

full compliance.’’ Swann, supra at 31.

The Court of Appeals for the Tenth Circuit, unlike the

Court of Appeals for the First Cireuit, has recognized

that district courts should not venture into the area of

educational philosophy.

In Keyes v. School District No. 1, 521 F.2d 465 (10th

Cir. 1975), the Tenth Circuit rejected the argument that

school authorities could be forced to establish a receptive

environment for minority students. It found that the ‘‘Car-

denas Plan,’’ which required ‘tan overhaul of the sys-

tem’s entire approach to education of minorities,’’ was

beyond the limits of the District Court’s remedial powers.

Id. at 480, 481. The Keyes court went on to state that:

‘*Courts have the power to effectuate their remedial

orders by removing all obstacles to meaningful dese-

gregation. Brown II, . . ., 349 U.S. at 299-300. The

equitable power to order relief adjunct to desegrega-

tion is limited, however, by considerations that loom

significantly in the present case. One of these, as we

have noted, is the extent of the proven constitutional

violation and its relationship to the ordered relief.’’

Id. at 481.

In reaching its conclusion that the District Court had

gone too far, the Tenth Circuit considered the following

factors:

‘*Direct local control over decisions vitally affecting

the education of children ‘has long been thought es-

sential both to the maintenance of community concern

and support for public schools and to the quality of

the educational process.’ Milliken v. Bradley, 418

U.S. 717, 741, 742; Wright v. Council of City of Em-

12

porta, 407 U.S. at 451, 469. Local control permits citi-

zen participation in the formulation of school policy

and encourages innovation to meet particular local

needs. Educational policy, moreover, is an area in

which the courts’ ‘lack of specialized knowledge and

experience counsels against premature interference

with the informed judgments made at state and local

levels.’ San Antonio Independent School District v.

Rodriguez, 411 U.S. 1, 42.’’ Jd. at 482.

Reversing a District Court order that combined two

high schools, the Keyes court stated that the District Court

had erred in acting ‘‘solely according to its own notions

of good educational policy unrelated to the demands of

the Constitution.”’ 7d. at 483. What has been stated by

the Aeyes court has been the longstanding position of the

petitioners: Where a Constitutional violation is found,

then remedies, even ‘‘bizarre’’ remedies, may be ordered,

but they must be limited functionally to desegregation.

The Court of Appeals for the First Cireuit considered

the petitioners’ objections to the District Court’s intrusion

upon their function (A. 46-54), but found that the over-

riding justification for these encroschments, ‘‘which might

otherwise be open to question’? (A. 47), was that ‘‘the

district court in this case has had to deal with an in-

transigent and obstructionist School Committee majority.

These elected officials engaged in a pattern of resistance,

defiance and delay.’’ (A. 46).

In so justifying the District Court’s action, the First

Circuit has enunciated a new standard. Where local school

officials are intransigent and obstructionist, no longer need

a district court confine its desegregative remedy to the

specific constitutional violation. Rather, it is to look at

the offending party and determine its attitude. Thereafter,

all restraints are removed. Even though the offending party

13

may not in fact have defaulted, it may be stripped of its

most basic powers.

The pernicious result of such a standard is made plain

in the instant case. The issue of the petitioners’ default

in the area of the quality of education offered on a system-

wide basis in the Boston schools was never litigated. There

was no evidence that the quality of education offered was

in any way diminished by petitioners. Petitioners’ obstruc-

tion itself was never litigated nor even in issue prior to

the findings of the District Court. Nevertheless, petitioners,

because of an imagined attitude, are forced to give up their

powers, as elected public officials, of deciding educational

policy.

The petitioners were fearful that once the door to de-

ciding what is and what is not quality education, or what

courses would or would not be taught, was opened by the

District Court, it would never be closed. Subsequent events

have borne out these fears. The District Court has placed

one high school into receivership and ordered a complete

revamping of the physical facilities at that school, Among

other things, the petitioners were ordered to purchase,

e.g., ‘‘glass backboards’’ for the basketball court, ‘‘10 to

12 new MacGregor X101L basketballs,’’ ‘‘1 case of tape

(114” width) for taping ankles,’’ ‘‘1 chalk pan,’’ ete. The

issues raised by these orders have been appealed and are

pending before the Court of Appeals for the First Circuit.

Morgan v. McDonough, No. 75-1482.

If a district court can proceed this far, then the past

admonitions of this Court can be thrown to the wind.

In Milliken v. Bradley, — U.S. —, 94 S.Ct. 3112 (1974),

it was made clear that:

‘‘No single tradition in public education is more

deeply rooted than local control over the operation of

schools; local autonomy has long been thought essen-

14

tial both to the maintenance of community concern and

support for public schools and to quality of the educa-

tional process. See Wright v. Council of the City of

Imporia, 407 U.S. 451, 469. Thus, in San Antonio

Independent School District v. Rodriguez, 411 U.S. 1,

00, we observed that local control over the educational

process affords citizens an opportunity to participate

in decision-making, permits the structuring of school

programs to fit local needs, and encourages ‘experi-

mentation, innovation and a healthy competition for

educational excellence.’ ’’ Id. at 3125, 3126.

In his dissenting opinion in Wright v. Council of City

of Emporia, 407 U.S. 451 (1972), Mr. Chief Justice Burger

stated:

‘*This limitation on the discretion of the district

courts involves more than polite deference to the role

of local governments. Local control is not only vital

to continued publie support of the schools, but it is of

overriding importance from an educational standpoint

as well. The success of any school system depends on

a vast range of factors that lie beyond the competence

and power of the courts. Curricular decisions, the

structuring of grade levels, the planning of extracur-

ricular activities, to mention a few, are matters lying

solely within the province of school officials, who main-

tain a day-to-day supervision that a judge cannot.

A plan devised by school officials is apt to be attuned

to these highly relevant educational goals; a plan

deemed preferable in the abstract by a judge might

well overlook and thus undermine these primary con-

cerns.’’ Id. at 477-478.

15

This Court, in San Antonio Independent School District

v. Rodriguez, 411 U.S. 1 (1973), pointed out that:

‘‘Related to the questioned relationship between cost

and quality is the equally unsettled controversy as to

the proper goals of a system of public education. And

the question regarding the most effective relationship

between state boards of education and local school

boards, in terms of their respective responsibilities and

degrees of control, is now undergoing searching re-

examination. The ultimate wisdom as to these and

related problems of education is not likely to be divined

for all time even by the scholars who now so earnestly

debate the issues. In such circumstances, the judiciary

is well advised to refrain from imposing on the States

inflexible constitutional restraints that could cireum-

scribe or handicap the continued research and experi-

mentation so vital to finding even partial solutions to

educational problems and to keeping abreast of ever-

changing conditions.’’ Id. at 43.

Again, this Court, in Epperson v. Arkansas, 393 U.S. 97

(1968), stated:

‘Judicial interposition in the operation of the pub-

lie school system of the Nation raises problems requir-

ing care and restraint. Our courts, however, have not

failed to apply the First Amendment’s mandate in our

educational system where essential to safeguard the

fundamental values of freedom of speech and inquiry

and of belief. By and large, public education in our

Nation is committed to the control of state and local

authorities. Courts do not and cannot intervene in

the resolution of conflicts which arise in the daily

operation of school systems and which do not directly

16

and sharply implicate basic constitutional values. On

the other hand, ‘[t]he vigilant protection of constitu-

tional freedoms is nowhere more vital than in the com-

munity of American schools,’ Shelton v. Tucker, 364

U.S. 479, 487 (1960).’’ Id. at 104.

Are these decisions still the law of the land or will the

federal courts be permitted now to turn to the unprece-

dented approaches of the District Court in this ease,

approaches which mandate the long-term goal of improving

the quality of education in the Boston public schools and

which are affirmed by the Court of Appeals with such

statements as ‘‘quality [of education] is a key to this

[magnet] aspect of a plan of desegregation.’’ (A. 49),

The overbreadth of the District Court’s remedy is clearly

evidenced by its approach to the magnet schools. The Court

of Appeals correctly notes that it was the petitioners who

proposed magnet schools as an element of their desegre-

gation plan (A. 47); but in so proposing the petitioners

did not thereby invite the District Court’s determination

that, e.g., at Fast Boston High School the petitioners must

introduce new fields of education which ‘will stress instrue-

tion in environmental protection and aviation-linked tech-

nology.’’ (A. 171).

In dismissing petitioners’ objections to the District

Court’s mandating the type of new programs to be put

into the magnet schools, the Court of Appeals stated that

‘‘[i]mplicit in the power to use magnet schools, at least

upon the default of the School Committee, is the power to

specify programs essential to make them magnetie.’’ (A. 48).

There had heen no default by the petitioners in this area,

yet the Court of Appeals sanctioned the Distriet Court

proceeding as if there had.

Moreover, it must be noted again here, and noted with

emphasis, that the District Court, in addressing the area

of quality education, did not limit itself to the magnet

17

schools. As the District Court, itself, said, its plan was

designed

‘“ft]o assist the Boston school system in developing

the new magnet programs and also in improving the

quality of education throughout the school system...’’

(emphasis added) (A. 107).

Perhaps the best example of the District Court’s system-

wide interference with educational policy may be found in

its order that the petitioners use their best efforts to enter

into contracts with colleges and universities. (A. 164). The

District Court notes that these institutions ‘‘have commit-

ted themselves to support, assist, and participate in the

development of educational excellence within and among

the public schools of Boston.’’ (A. 163). The District Court

further notes that these commitments ‘‘shall enable par-

ticipating institutions of higher learning to share in the

direction and development of curriculum and instruction

under court-sanctioned contracts with the Schoo] Depart-~

ment.’’ (A. 164).

Clearly the District Court is no longer concerned with the

eradication of the dual system, but with better education,

a direction sanctioned by the Court of Appeals in the area

of magnet schools on the grounds that:

‘‘Reliance on the Committee to create imaginative pro-

grams of utility and attractiveness would not only

have been ill advised, but the supervision of compliance

in this area, as opposed to student assignment for

example, would have been extraordinarily complex and

might well have drawn the court into purely educa-

tional decisions.’’ (A. 49).

This is extraordinary in view of the fact that there was

no showing of default by the petitioners in this area; that

the petitioners were the moving force behind the magnet

18

school idea; and that the petitioners have successfully

operated magnet schools for a number of years. (A. 47).

Nonetheless, petitioner’s control over the Boston schools

is usurped. The Court of Appeals concedes that the action

is innovative and without precedent (A. 50), an observation

with which petitioners entirely concur, since at no time

has any court sought to go further than to remedy the

offending condition, nor has any court imposed a remedy,

as here, in the area of quality of education, where there

has been no adjudication of default. More remarkable is

the Court of Appeals’ noting that the District Court did

not want to be drawn into purely educational decisions

(A. 49, 50), vet that is precisely what has kappened

because of the overbreadth of the District Court’s plan.

Other provisions of the District Court’s plan are equally

contrary to prior decisions of this Court. The establishing

of citizen groups to support efforts to improve quality

education in the schools (A. 110, 111, 189), to resolve

problems which they identify (A. 188, 190), to advise the

petitioners (A. 190), and to discuss the educational needs

of each district (A. 119, 192), are far beyond the powers

of the District Court. The Court of Appeals, on the one

hand, notes that ‘‘better quality education as a general

goal is beyond the proper concern of a desegregation court

...’’ (A. 51), yet, on the other hand, upholds this desegre-

gation plan which provides for the intrusion of selected

citizen groups to improve the quality of education and for

pairings with institutions of higher learning for the same

purpose, The petitioners contend that it is their duty to

improve the quality of education where it is deficient; not

the District Court’s duty, nor the duty of court-established

citizen committees or court-appointed experts or institu-

tions of higher learning.

The District Court ordered that the petitioners appoint

three additional District Superintendents and that each

community school facility be administered by an adminis-

19

trator at the rank of principal or headmaster. (A. 119).

The Court of Appeals dismisses the petitioners’ argument

that this exceeds the District Court’s remedial powers by

referring to information it received outside the record that

the District Court’s intent was that there be a ‘‘person in

charge’’ of each school. (A. 52). The petitioners may be

required, however, due to union considerations, to compen-

sate these people at the rate of headmaster or principal.

The order to have additional principals and headmasters is

a purely educational decision which involves additional

costs for the citizens and which in no way relates to

the goals of the District Court.

The order that thirty-five percent of the 1975-1976 enter-

ing class to the examination schools be black or Hispanic

(A. 162) is likewise an educational decision, since the type

and quality of education to be offered may have to be

changed to insure that those admitted can remain, given

the veiled threat that unless the proportion of minorities

is inereased, the structure of the elite schools may be

changed. (A. 162). There are some opinions in the educa-

tional field that these schools perform a disservice and,

if the District Court shares that opinion, and if this is

a better education case, then the destruction of such schools

may well be the result.

That the goal of the District Court is to improve the

education in the City of Boston is demonstrated by an

article written by one of the District Court’s experts,

Robert A. Dentler,® ‘‘Improving Public Education: The

6 Mr. Dentler is the Dean of the Boston University School of

Education. The President of Boston University, John R. Silber,

has recently written an article seeking public funds for his

university. See, ‘‘Paying the Bill for College— The Private

Sector and the Public Interest,’’ Atlentic Monthly, Vol. 235,

No. 5, May, 1975. It is clear that the District Court’s orders

requiring contracts with the colleges and universities, including

Boston University (A. 166), will go a long way toward assisting

that school in its search for funds. If the decision in this casc

stands, the public coffers will be depleted to assist the ‘private’

sector.

20

Boston School Desegregation Case,’’ The Advocate, Suffolk

University Law School] Journal, Vol. 7, No. 1, Fall 1975.

Mr. Dentler boasted that ‘‘{n]o federal court order issued

in the twenty years between Brown and Morgan .. . had

ever been so consciously and explicitly aimed at effective

improvements in publie education.’’ /d. at 4. He further

predicts that ‘‘[a]fter the remedial order... every federal

case concerning school desegregation will be more than

what some lawyers call a ‘race case.’ Every case will be

a case involving detailed educational planning ...’’ (empha-

sis added) /d. at 8.

Mr. Dentler concludes by stating that ‘‘[c]ourt jurisdic-

tion will continue indefinitely, until the judge decides that

equal protection—which in education must mean improved

conditions for learning—has been accomplished and is self-

maintaining.’’ /d. at 8. It must be noted that Mr. Dentler

is in frequent contact with the District Court and could

be considered its alter ego. He is the same expert whom

the District Court appointed to supervise the ass‘ gnments

(A. 179, 181), to give attention to the natuie of the

instruction (A. 83), and to resolve ‘‘issues with respect to

facilities utilization, program allocation and enrollment

units.’’ (A. 53).

If the decisions below stand, then Dentler is correct, and

federal courts are in the education business. Clearly, this

notion runs contrary to every decision of this Court and,

if not overruled, will sound the death knell of local control

over publie schools.

The Court of Appeals for the First Cireuit has sanctioned

this unorthodox ‘‘remedy’’ by affirming the student de-

segregation plan. There is no precedent for these departures

anywhere among the myriad of prior school desegregation

Moreover, in a letter to the court-appointed Masters, President

Silber, in March of 1975, stated that the Boston schools were

inadequate and mediocre, thus helping to lay the groundwork

for this better education plan without the necessity of litigating

the issue.

21

‘ases. Such a sudden and drastic departure from precedent

requires this Court to intervene, lest the longstanding

tradition of local control over the educational policies of

public schools is wrested from the hands of the citizens

and their duly elected representatives, and placed into the

hands of the federal judiciary.

As previously argued, the Court of Appeals for the Tenth

Circuit, unlike the Court of Appeals for the First Cireuit.

has recognized that District Courts should not venture into

the area of educational philosophy. The conflict between

the Cireuits is obvious and requires immediate resolution

by this Court.

Finally, the importance of this case can be seen from

what has been previously stated. The City of Boston is

presently suffering the financial burdens of attempting to

comply with a better education decision which knows no end.

Other cities may be likewise ensnarled in this type of inter-

ference unless the precedent of de facto receivership created

by the lower courts is quickly overturned. This case pre-

sents substantial questions which should be answered now.

Conclusion

For the foregoing reasons, this petition for a writ of

certiorari should be granted.

Respectfully submitted,

JAMES J. SULLIVAN, JR.

Francis J. DiMento

Puiu T. Trerne\

DiMento & SuLLIVAN

100 State Street

Boston, Massachusetts 02109

Counsel for the Petitioners