Opposition — Dayton Board of Education v. Brinkman

—ijicenanel , “PE MEEE TO Ak, IR, ccm

In THE

Supreme Court of the United States

Ocroser Term, 1976

(Oo°539 ¢

Dayton Boarp or Epvucarion, et al.,

Petitioners,

v.

Mark Brinkman, et al.,

Respondents.

BRIEF IN OPPOSITION TO CERTIORARI

NaTHANiEL R. Jones

1790 Broadway

New York, New York 10019

Paut R. Diwonp

O’Brien, Moran and Dimond

210 Kast Huron Street

Ann Arbor, Michigan 48104

Louis R. Lucas

Ratner, Sugarmon, Lucas,

Salky & Henderson

525 Commerce Title Bldg.

Memphis, Tennessee 38103

Ricuarp Austin

Suite 1500

First National Bank Bldg.

Dayton, Ohio 45306

Attorneys for Respondents

MEILEN PRESS INC.—N. ¥. Co <i 219

TABLE OF CONTENTS

PAGE

E.R | oases enecicacccetcnecieeemenscentnmnnisin viliabodenamiannaded 1

Jurisdiction ........ i a a ed ee

I IG eccissisintiisscintaciinabaminstionnaiaiiaa siniatitiadais 2

Statement —............. AIS ce AOR IRE eee eee en

Reasons Why the Writ Should Be Denied .................... 12

0 SEA ERLE TCE IAL NOT Ey

TABLE oF CASES

Brown v. Board of Education, 347 U.S. 483 (1954)....3, 5, 13,

19

Cisneros v. Corpus Christi Independent School Dis-

trict, 467 F.2d 142 (5th Cir., 1972), cert. denied 413

Se HUT NEIIIIITED secrtieiiirnssoensiainccecatadensinlenabbipanldubesbiebiaiin Ia

Davis v. Board of School Commissioners, 402 U.S. 1

RR Ne ES ae 14

Davis v. School District, 443 F.2d 573 (6th Cir.), cert.

I Oy I I Gin iiciccctednccnestesniietidctciegaiincaipettinis 15

Drummond vy. Acree, 409 U.S. 1228 (1972) 000. 14, 17

Goss v. Board of Education of Knoxville, 482 F.2d

1044 (6th Cir., 1973), cert. denied 414 U.S. 1171

SEIT, sAcsiidesscicblctiesssmetnlgaiebenialadentaniedtenchosseanei ns Me A 11

Green v. County School Board, 391 U.S. 480 (1968) ... 7

Hall v. Werthan Bag Corp., 251 F. Supp. 184 (M.D.

Tenn., 1966) 0......... jsnieiaetp aliceiaaiesdiaabadhiesiabideneiniatiabicameduadaeattiin 19

il

PAGE

Hart v. Community School Board, 512 F.2d 37 (2nd

Cir.), cert. denied 417 U.S. 943 (1974) -...000.. 16

Jenkins v. United Gas Corp., 398 F.2d 496 (5th Cir.,

1968)

Kelly v. Guinn, 456 F.2d 100 (9th Cir., 1972), cert.

EE PS TY SEUPIID iocssnnasasnindanbicadatentecnnsecnin 11

Kelly v. Metropolitan Board of Education, 463 F.2d

732 (6th Cir. 1972), cert. denied 409 U.S. 1001

(1972), 508 F.2d 179 (6th Cir., 1974)

Keyes v. Sghool District No. 1, 413 U.S. 189 (1973),

521 F.2d 465 (10th Cir., 1975), cert. denied 423 U.S.

REGS aE Ee Aer eae 2, 4, 5, 13,14,

15, 17-18

Mapp v. Board of Education, 525 F.2d 169 (6th Cir.,

Se een ee ee a ae a aE Nr 11

Milliken v. Bradley, 418 U.S. 717 (1974)... 4, 14, 15,

16,18

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

ea PEE EEN ESA ote ee ee 21

Morgan v. Kerrigan, 509 F.2d 58 (1st Cir., 1974), cert.

denied 421 U.S. 963 (1975), 530 F.2d 401, cert. de-

nied 44 L.W. 3719 (June 10, 1976) ......0000000 16

Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th

a :scedaieeiahialaiadiaaidhdiaaia tials 19

Oliver v. Michigan State Board of Education, 508 F.2d

arene 11,16

Pasadena City Board of Education v. Spangler,

U.S. ——, 44 U.S.L.W. 5114 (June 28, 1976) ...12, 15, 18

Potts v. Flax, 313 F.2d 284 (5th Cir., 1963)... 19

ili

PAGE

Swann v. Charlotte-Mecklenberg Board of Education,

8S , eeeeeeneee: 2, 4, 5, 13, 14,

15, 16, 17, 18

United States v. School District No, 151, 482 F.2d

1147 (7th Cir., 1970), cert. denied 402 U.S, 943 (1971) 15

United States v. School District of Omaha, 521 F.2d

530 (8th Cir.), cert. denied 423 U.S. 946 (1975) ........ 16

IN THE

Supreme Court of the United States

Ocroser Term, 1976

Dayton Boarp or Epvcation, et al.,

Petitioners,

Vv.

Mark Brinkman, et al.,

Respondents.

BRIEF IN OPPOSITION TO CERTIORARI

Opinions Below

The July 26, 1976, opinion of the Court of Appeals, stay

denied August 19, 1976 (Circuit Justice Stewart), is not

yet reported. The two prior opinions of the Court of

Appeals are reported. 518 F.2d 684 (1975), cert. denied

423 U.S. 1000 (1975); 503 F.2d 684 (1974). The opinions

of the District Court are unreported. (These opinions of

the courts below appear in the appendix attached to the

Dayton Board’s Petition for Certiorari and will be cited in

this Opposition as App. a.*)

* Although the record evidence from previous violation and re-

medial hearings is voluminous, reference to record evidence in this

Opposition will be limited to the most recent set of remedial hear-

ings below in December, 1975, and March, 1976, cited as R. —.

Jurisdiction

The Court of Appeals’ judgment affirming a plan of

desegregation required to eliminate the de jure segregated

system of schooling previously found (App. 118a-123a) was

entered on July 26, 1976. This Court’s certiorari jurisdic-

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

Question Presented

Whether any issue warranting this Court’s review is

presented by the Court of Appeals’ affirmance of a plan of

desegregatron required to eliminate the de jure segregation

within the Dayton Public Schools consistent with the stan-

dards enunciated in Aeyes vy. School District No. 1, 413

U.S. 189 (1973) and Swann vy. Charlotte-Mecklenberg

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

Statement

A. Plaintiffs commenced this school desegregation action

in April, 1972, against city and state officials having re-

sponsibility for the maintenance and operation of the public

schools of Dayton, Ohio. After an evidentiary hearing, the

District Court in February, 1973, found a constitutional

violation (App. 12a)—on the basis of its findings that there

was substantial segregation in the racial composition of

Dayton schools; that defendants had utilized optional or

dual attendance zones; and that other board action, both

historic and recent, also contributed te the segregation.’

1 E.g., the illegal rescission, during the 1971-72 school year, of

a system-wide program of desegregation (App. 10a-1la) ; explicit

“physical segregation” of teachers, pupils, facilities and programs

among and within schools pre-Brown (App. 2a-3a); intentional

creation and maintenance of the Dunbar High School as a city-

wide, all-black secondary school (App. 4a-5a).

3

The District Court held “that the totality of these findings

require intervention by this Court under the mandate of

Brown v. Board of Education” (App. 12a). Accordingly,

the District Court directed the school board to prepare a

plan for desegregation consistent with Swann and Davis

(App. 13a-14a, 34a).

After submission of alternative plans and objections by

the parties, but without evidentiary hearing, the District

Court in July, 1973, adopted the proposal of the Dayton

Board majority to eliminate dual zones, to revise transfer

priorities, and to provide part-time integration for some

students in a few programs; the District Court also re-

quired the Board to adopt a “free-choice” plan for all high

schools (see, App. 35a-36a). Although expressing disap-

pointment with the limited nature of the Board majority’s

proposal (App. 27a), the District Court rejected the com-

prehensive plan of the Board minority.

Plaintiffs (here the Respondents) appealed; and the Day-

ton Board (here the Petitioners) cross-appealed.

B. On August 20, 1974, the Sixth Circuit affirmed the

District Court’s ultimate finding that the Dayton schools

were unlawfully segregated by race (App. 56a). In addi-

tion to the evidence specified by the District Court as part

of violation (App. 39a-56a), the Court of Appeals also

reviewed defendants’ other discriminatory practices pro-

moting and perpetuating racial segregation in the assign-

ment of faculty and staff (App. 56a-61a), in the location

and construction of new schools (App. 61a-64a), in the

reorganizetion of grade structures (App. 64a-65a), and in

student transfers and transportation (App. 65a-66a).? The

2? For example, the Court of Appeals noted that prior to 1951

faculty and staff were assigned on a racial basis “pursuant to an

explicit segregation policy of the Board .. .”; thereafter a new

4

Court of Appeals concluded that “the remedy ordered by

the District Court is inadequate, considering the scope of

the cumulative violations” (App. 68a) and remanded the

ease for further remedial steps consistent with Swann

Keyes and Milliken (Id.).

Certiorari was not sought.

C. Following remand of the case, the board majority and

the plaintiffs each presented separate plans to the District

Court. The bourd majority plan (see App. 91a-92a) was

essentially a limited expansion of the prior plan—a mod-

ified freedom of choice plan calling for the establishment

in some schools of programs not offered in others. These

special program schools would be called “magnet schools”

and “learning centers.” The programs offered were to be

designed to attract a limited bi-racial enrollment on a

voluntary and, in the main, part-time basis (see App.

91a-92a). In contrast, the plaintiffs’ plan used traditional

techniques of rezoning, pairing, and grouping of schools.

On March 10, 1975, while expressing confusion over the

applicable legal standards concerning de jure segregation,

the District Court provisionally accepted the board maj-

ority’s plan for the 1975-76 school year (App. 83a-84a).

The District Court recognized the very limited nature of

the proposals, as well as the school board’s failure to con-

sider more promising alternative methods of accomplishing

desegregation (App. 80a-8la). The hoard was directed to

study the feasibility of adopting more significant measures

for the following school year (App. 81a).

policy “effectively continued in practice the racial assignment of |

faculty through the 1970-71 school year” (App. 56a). With respect

to school construction, the Court of Appeals noted “that in the

period of greatest expansion of the Dayton school system, from

the late 1940's to the mid-1960's, the great majority of new schools

and additions were located by the Board in either virtually all

black or all white areas” (App. 62a).

D

The plaintiffs immediately appealed, moving for sum-

mary reversal and requesting specific remedial directives

from the Court of Appeals; for after two years’ experience

with the Dayton Board’s prior special programs and part-

time desegregation, the systematic pattern of segregation

had remained unchanged. The defendants did not cross-

appeal.

D. In its June 24, 1975, opinion, the Court of Appeals

[to clear-wp the District Court’s confusion] again sum-

marized the nature of the violation and the applicable law

in this case (App. 89a-90a) :

Segregative acts and practices were found to have

occurred both before and after the decision of the

Supreme Court in Brown v. Board of Education, 347

U.S. 483 (1954), and to have continued down to the

present time. These findings of fact as to segregative

practices in Dayton are set forth in detail in our former

opinion. . . . Sufficient to say that . . . these findings

of fact .. . are supported by substantial evidence.’

Although the phrase “de jure” does not appear in our

former opinion, the meaning of that decision is that

the Dayton school system has been and is guilty of

de jure segregation practices. See Keyes v. School

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

3 The evidence of constitutional violation is more than substan-

tial. For example, the evidence shows that just prior to Brown

over half of the black students and all of the black teachers were

isolated in four all-black schools as a direct result of the Board’s

intentionally segregative practices (App. 39a, 50a, 56a) and that,

thereafter, staff continued to be assigned on a racial basis (App.

56a), new schools and additions opened almost always on a virtu-

ally uniracial basis (App. 62a), racially dual optional zones oper-

ated at one time or another to directly affect segregation at over

30 schools (e.g., App. 53a) and the Board deliberately chose in

1971 to perpetuate this pattern of segregation system-wide (App.

55a).

6

The Court of Appeals noted the inadequacy of the Dis-

trict Court’s “remedy.” After describing the plan (App.

9la-92a), the Court of Appeals held that the plan failed to

remedy the violation of the constitution and failed to obey

the previous mandate:

Under the plan... the basic pattern of one-race schools

will continue largely unabated. The plan does not even

purport to dismantle Dayton’s one-race schools .. .,

and the vast majority of one-race schools will remain

identifiable as such.

(App. 92a-98a). Accordingly, the Court of Appeals re-

manded the case to the District Court for further pro-

ceedings with directions, infer alia, “that the District Court

adopt a system-wide plan for the 1976-77 school year that

will conform to the previous mandate of this court and to

the decisions of the Supreme Court in Keyes and Swann”

(App. 96a). The Court of Appeals directed that such a

plan be adopted by December 31, 1975, for implementation

in September 1976.

The Dayton Board petitioned for a writ of certiorari to

review this judgment. This Court denied certiorari on

December 2, 1975. 423 U.S. 1000.

EK. On remand the District Court took action to imple-

ment the directions of the Court of Appeals. The District

Court immediately appointed an expert, Dr. Charles Glatt,

to assist in preparing and evaluating desegregation plans

for the Dayton Publie Schools. In the midst of his work,

Dr. Glatt was murdered. On November 5, 1975, the Court

directed the parties to submit proposed plans and ap-

pointed Dr. John A. Finger, Jr., as a court expert.

On December 8-9, 1975, the District Court held hearings

to consider plans proposed by plaintiffs and friends of

7

Dr. Glatt, as well as a plan “presented” by a team of Board-

appointed experts but neither “proposed” nor “recom-

mended” by the Dayton Board.‘ The plans utilized dif-

ferent techniques to accomplish desegregation. Plaintiffs’

plan utilized traditional pairing, clustering and zoning. The

Board experts’ proposal utilized, within racial desegrega-

~ tion limitations, diverse choice, zoning and curriculum dif-

ferentiation mechanisms; but the proposal was inchoate in

that actual assignments and provision for transportation

were not included. R. 38-40, 52, 101, 136-7, 149-151, 188-191,

206-220. The testimony of all witnesses, including plain-

tiff and Board experts, was in agreement (1) that approxi-

mately 15,000 pupils would have to be provided transpor-

tation under either proposal; (2) that, because of Dayton’s

compact nature and thoroughfares, no threat would be

presented by the time, distance, and amount of transporta-

tion involved in any effective desegregation plan to the

health, safety, or education of the school children; and (3)

that the proper object of a plan is to eliminate the de jure

pattern of one-race schools in Dayton. Board Experts’

plan at 127; App. 98a; R. 45-46, 71, 130-1, 218, 229-232, 249-

252, 255-256.

On December 29, 1975, the District Court issued its order

concerning the plans submitted, the December 8 hearings

and future proceedings. In light of the two earlier failed

*The Dayton Board expressly rejected approving, proposing,

adopting, or recommending its experts’ plan or any plan for the

District Court’s approval. See, App. 12la, where the Court of

Appeals later noted, “[t]hough this Court ordered system-wide

desegregation on the previous remand, the Board proposed no plan

to achieve this mandate.” Instead the Board authorized its attor-

ney to present or submit its experts’ plan, without Board approval,

for the District Court’s consideration. See, e.g., App. 116a; R.

203-4. Contrast the affirmative obligation imposed on the Board by

Green v. County School Board, 391 U.S. 430, 438-439 (1968) ; and

compare this continuing three-year pattern of Board conduct with

the similar default confronted by the District Court in Swann.

See, e.g., 402 U.S. at 8-11, 24 n. 8.

8

plans and after summarizing the different techniques of the

two new plans, the very limited nature of federal judicial

intervention to protect constitutional rights, and the broad

discretion left to the Board on all educational policy and

administrative matters, the District Court established a

broad racial range (plus or minus 15% of the system-wide

racial composition) as a starting point within which the

Dayton Board was free to implement the desegregation

plan of its choice (App. 103a). The District Court pro-

vided for modification of the broad racial guideline in the

final plan, including excluding all present 10th through

12th graders and future kindergarten students from the

plan and permitting the retention of other one-race or

substantially disproportionate schools where shown to be

required “by reason of geographic location” (App. 104a).

In its discretion, the District Court also established a

priority of remedial devices designed to minimize pupil

reassignments and transportation wherever feasible for

elementary students (see, App. 119a-120); named Dr.

Finger master to work with the defendant school authori-

ties to assist in developing the necessary pupil assignment

plan; and approved a representative citizen’s board to

monitor the plan for a period not to exceed three years

(App. 104a-105a).

On March 22 and 23, 1976, the District Court held hear-

ings on March 15 report of the Master concerning a final

plan of desegregation for the 1976-77 school year. Working

in consultation with the Dayton school administration, the

Master reported on the proposed elementary plan which

relied primarily on pairing and on a proposed plan for

high school which relied on program choices and random

assignments within racial guidelines. See, e.g., Report of

the Master.’ The Master estimated that the maximum

°From the evidence, it appeared that the Master basically ac-

cepted the Dayton school administration’s elementary plan except

9

distance would be somewhat in excess of five miles and that

the longest travel time “should not much exceed twenty

minutes.” Jd. at 8. See also, R. 391.

At the hearing the Dayton Board presented evidence in

support of several modifications: to reassign pupils in

advance in the spring by the central administration rather

than by the principals in the paired schools on the first day

of the 1976-77 school year; to transfer pupils (with no

transfer of teachers) between the paired schools on an

annual rather than semi-annual basis; to assign high school

students on a geographic zone rather than choice and ran-

dom assignment basis; and to phase-in the elementary plan

over three years (including withholding some eight schools

from the desegregation plan for the 1976-77 year). E.g.

R. 288 et seq. The Board presented no argument, testi-

mony, or any other evidence that any school or child should

be excluded from the plan because of any geographic loca-

tion or claim of excessive distance or time involved in

reassignment and transportation.

Finally, the Master testified that he did not seek an

arbitrary racial balance but rather operated pursuant to

the broad and flexible guidelines established by the District

Court to disestablish the de jure pattern of segregated

schools (R, 339, 361-362). Thus, for example, the projected

racial composition of high schools varied from 23% to 78%

black® (R. 361-362; Report of the Master at 21).

insofar as the school authorities proposed to “phase-in” over a

three year period, but opted for a choice mechanism over the

Dayton administration’s preference for rezoning some schools at

the high school level. E.g., Report of the Master; R. 292 et seq.

* This wide variation results from the exclusion of next year’s

11th and 12th graders from the plan. Report of the Master at 21.

The projected enrollment for the elementary pairings fall within

a narrower range under the final Master/Dayton school admin-

istration plan (Jd., 12-12a). However, these are only projections;

-

10

On March 23, 1976, the District Court issued its final

order approving the proposed desegregation plan with

modifications and directing the Dayton Board to imple-

ment that the plan for the 1976-77 school year. With re-

spect to the modifications requested by the Dayton Board,

the Court gave the Board the discretion either to imple-

ment the Master’s report or the Board’s proposed modifi-

cation, except insofar as the Board sought a three-year

phase-in (App. 1lla). Subject to time constraints and

desegregation requirements, the District Court expressed

its willingness to consider additional proposals from any

party to modify the plan (App. 112a-113a).

On May 11, 1976, the Dayton Board sought six additional

modifications which the District Court granted on May 14,

1976, with one exception (concerning the exclusion of eighth

graders from the plan)’ (App. 117a).

The Dayton Board then appealed.

F. In its July 26, 1976, opinion, the Court of Appeals

affirmed the judgment of the District Court after carefully

reviewing the Board’s primary claim that the plan

amounted to forbidden “racial balance” (App. 121la). The

Court of Appeals first noted that the Board had proposed

no plan to meet the court’s prior mandates of system-wide

desegregation and made no showing relating to “the top-

ography of the Dayton area, location of natural or artifi-

and no perennial reassignment provision was included, contem-

plated, or required by the District Court or permitted by the

Court of Appeals (see, App. 123a).

™The District Court’s rationale for excluding, in its discretion,

llth and 12th graders from the plan related to certain unique

high school relationships, particularly in extra-curricular activities,

already made by these “rising” 11th and 12th grade students. See,

App. 101-102. Whatever merit this “rising” student option may

have to the high school experience, the District Court was not per-

suaded of its substance with respect to elementary school children.

11

cial barriers, geographic isolation or similar [time and

distance] considerations” which would require modification

of the plan or justify the maintenance of particular one-

race schools (App. 121a). “Compare Goss v. Board of Edu-

cation of Knoxville, 482 F.2d 1044 (6th Cir. 1973), cert.

denied, 414 U.S. 1171 (1974)” (Jd.). Second, the court ap-

proved the District Court’s use of a broad and flexible

racial range, subject to modification upon proper showing,

in initially shaping a plan. Application of the “plus or

minus 15%” range in Dayton would permit “black enroll-

ments at particular schools to range between 33% and 63%”

even before the board modifications permitted (App. 121a).

The court held that this limited use of “mathematical ra-

tios” constituted “no more than ‘a useful starting point’

in shaping a remedy for past discrimination. Swann, supra,

402 U.S. at 25” (App. 119a).* Finally, the court noted that

the District Court’s order applied, by its own terms, only

to the 1976-77 school year and did not require any changes

thereafter (App. 121a). The court concluded:

The judgment appealed from in the present case estab-

lished the first constitutionally sufficient desegregation

plan for the Dayton system. If adjustments to this

plan are sought by any of the parties in future years,

the District Court will necessarily consider the limita-

® See also, Statement, pp. 7-9, supra. The Dayton Board’s off-

hand suggestion that the Sixth Circuit has been or is bent on

“racial balance” (see, Petition 16 n. 2) is an unwarranted attack.

For the Sixth Circuit has closely reviewed each case in light of its

particular facts and the local circumstances to insure that the sub-

stantive teachings of Swann have been properly applied in each

case. Compare, Brinkman, supra, with Goss v. Bd. of Education

of Knozville, supra; Mapp v. Board of Education, 525 F.2d 169

(6th Cir., 1975) ; Kelly v. Metropolitan County Bd. of Education,

463 F.2d 732 (6th Cir., 1972) 508 F.2d 179 (6th Cir., 1974);

Oliver v. Michigan State Board of Education, 508 F.2d 179 (6th

Cir., 1974). This Court has denied certiorari from these decisions.

12

tions in Spangler [—— U.S. ——, 44 U.S.L.W. 5114,

June 28, 1976] in dealing with such requests.

(App. 121a-122a).

On July 27, 1976, the Dayton Board filed a motion to

stay the Judgment with the Court of Appeals, pending

writ of certiorari. Pending the Court of Appeals’ deci-

sion on that motion, the Dayton Board applied to Cir-

cuit Justice Stewart for a stay on August 10, 1976. The

Court of Appeals denied the stay motion on August 16,

1976; Cireuit Justice Stewart denied the application for

stay on August 19, 1976. As a result, the desegregation

plan has*been implemented as required.

The Dayton Board now petitions for a writ of certiorari

to review “the first constitutionally sufficient desegrega-

tion plan for the Dayton system.”

Reasons Why the Writ Should Be Denied

This is a traditional, intra-district, de jure school segre-

gation case which raises no new or important issue worthy

of review by this Court. As with its previous petition,

see 423 U.S. 1000 (1975), denying cert, from 518 F.2d

684 (6th Cir., 1975), the continuing attempt of the Day-

ton Board to fabricate such an issue is without merit:

1. The Dayton Board’s argument that the nature of

the violation is anecdotal and that the scope of the remedy

must therefore be narrow (see, Pet. 17-19) flies in the face

of the findings, conclusions and record below. As noted

in the Statement, supra, the Dayton Board—in contraven-

tion of an 1887 Ohio statute and a 1926 state judicial de-

cision involving the Dayton Board outlawing segregation

engaged in “repeated” acts of blatant, intentional segre-

gation of pupils, teachers, facilities, and extracurricular

13

activities, including the intentional creation and mainte-

nance of Garfield, Willard, Wogoman, and Dunbar as

all-black school (App. 39a-40a, App. 2a-5a). “Pursuant

to an explicit segregation policy of the Board” (App. 56a),

Dayton school authorities long assigned all black teachers

only to all-black classes and schools. As a result, im-

mediately prior to Brown, “over half of all black pupils

fand all black teachers] were enrolled in the four all

black schools.” (App. 50a).° Thereafter, this long-stand-

ing pattern of segregation by one-race schooling continued

without interruption through the time of trial (App. 50a-

5la). Cf., Keyes, supra, 413 U.S. at 206, 211. Since

1950, racially dual optional zones—which “destroy or di-

lute the neighborhood school” defense (App. 13a)—di-

rectly effected segregation at some thirty schools at one

time or another; and there was direct evidence that some

optional zones had “racial significance at the time of

their creation” and “embraced desires motivated by ra-

cial considerations.” (App. 5la-52a). Moreover, Dunbar,

® There is no question that this rendered the Dayton school sys-

tem “dual” in the Keyes sense, 413 U.S. at 201, 203, 211-213, at

the time of Brown. See, e.g., App. 56a (“the basically dual school

system inherited at the time of Brown”).

1°For example, the Board “effectively continued in practice the

racial assignment of faculty through the 1970-71 school year.”

App. 56a. “The great majority of new schools and additions were

located by the Board in either virtually all-black or all-white areas”

and opened to virtually one-race student bodies and staff. E.g.,

App. 62a. There was also evidence that a racially identifiable

middle-school reorganization, as well as racially identifiable trans-

fers similarly operated at least to maintain this de jure pattern of

segregation. E.g., App. 65a-66a. Under this Court’s decisions in

Keyes and Swann, there is no doubt that these practices, at a mini-

mum, perpetuated the de jure system of segregation inherited if

not also being independent de jure practices themselves. Keyes,

413 U.S. at 200-202, 210-213; Swann, 402 U.S. at 14, 20-21. In

view of the scope of the other independent violations found, the

Court of Appeals determined that it was unnecessary to determine

whether these practices also violated the constitution. App. 66a-

68a.

14

which “was intended to be and did in fact become a black

high school” (App. 4a), remained a district-wide optional

zone for “blacks only” through 1962 (App. 5a). By its

unlawful rescision in 1972 of a district-wide program of

desegregation, the Dayton Board deliberately chose to

perpetuate the de jure pattern of segregation system-wide

(App. 58a-56a; App. 42a-48a). And the Dayton Board

presented no evidence showing that the Dayton school

system could be divided into “separate, identifiable, and

unrelated units,” Keyes, 413 U.S. at 203, nor that any

school or portion of the Dayton Public Schools is geo-

graphically isolated (e.g., App. 121a).

In these circumstances, the nature and extent of the

constitutional violation are unquestionably substantial and

pervasive: de jure segregation of the Dayton Public

Schools. The court below was manifestly correct in so

holding on each appeal (e.g., App. 12le; App. 89a-90a,

App. 96a; App. 32a-69a). A system-wide desegregation

plan was therefore necessary to remedy the constitutional

violation here'' (App. 96a, 119a). See, e.g., Swann, 402

U.S. at 25-30; Davis v. Board of School Commissioners,

402 U.S. 1, 37 (1972); Keyes, 413 U.S. at 214, Milliken v.

Bradley, 418 U.S. at 746, 752 (1974).

1! For this reason, the decisions and desegregation plan ordered

below do not conflict in any way with the Equal Educational Op-

portunities Act of 1974, 20 U.S.C. 1701 et seq. As the Court of

Appeals held on the prior appeal, “the 1974 Act, read as a whole,

does not limit either the nature or scope of the remedy for consti-

tutional violations in the instant case.” App. 95a. The 1974 Act

provides specifically that “the provisions of this chapter are not

intended to modify or diminish the authority of the courts of the

United States to enforce fully the fifth and fourteenth amend-

ments to the Constitution of the United States.” 20 U.S.C. 1702

(b). This Court did not deem this plainly correct judgment of

the Court of Appeals worthy of review on the Dayton Board’s

previous petition for certiorari. 423 U.S. 1000 (1975). Cf., Drum-

mond v. Acree, 409 U.S. 1228 (1972) (Powell, Circuit Justice).

15

Thus, with respect to the questions sought to be raised

by the Dayton Board concerning the nature of the consti-

tutional violation and the scope of an adequate remedy,

the Court of Appeals has adhered scrupulously to the de-

cisions of this Court in Swann, Keyes, Milliken and

Spangler in this traditional, intra-district, de jure segre-

gation case. There is no conflict with the decisions of this

Court, the Sixth Circuit, or any of the other Court of

Appeals. To the contrary, the judgment of the Court of

Appeals is manifestly correct.'* There is no reason for

granting certiorari to review the judgment below. See,

e.g., United States v. School District No. 151, 432 F.2d

1147 (7th Cir., 1970), cert. denied, 402 U.S. 943 (1971) ;

Davis v. School District, 443 F.2d 573 (6th Cir.), cert.

denied, 404 U.S. 913 (1971); Kelly v. Guinn, 456 F.2d 100

121In an attempt to suggest some conflict or issue worthy of re-

view, the Dayton Board on this petition again refers to the Dis-

trict Court’s passing remarks after the first remand for further

remedial proceedings, to the effect that the Dayton school system

had never been “dual.” See, e.g., Pet. 17-18, 26. However, the

remarks relate only to the District Court’s continuing confusion

over semantics. The District Court apparently acted under the

impression that the phrases “dual” or “de jure” are talismanic

and apply only to explicit segregation policies mandated by state

law or local ordinance, not to the intentional segregation practices

of school authorities. See, e.g., App. lla-12a; 75a, 77a. On the

second appeal, the Court of Appeals responded directly to the Dis-

trict Court’s confusion by making explicit what it had held on the

first apeal: the pervasive intentional segregation practices by the

Dayton Board constitued “de jurc” (or unlawful) segregation and

rendered the system “dual” (or unconstitutionally segregated).

App. 89a-90a; see also, Statement, supra, at pp. 4-5. In so many

words, the Court of Appeals stated that in so-called “Northern”

school segregation litigation, substance not semantics must govern

the constitutional inquiry—the very message which this Court made

clear in Swann and Keyes. That the Court of Appeals in this ease

thus properly performed its appellate function with respect to

one of its district courts surely presents no conflict or issue worthy

of review by this Court, particularly from the Court of Appeals’

judgment on the third appeal following this Court’s denial of

certiorari from that holding on the second appeal. See, 423 U.S.

1000 (1975).

16

(9th Cir., 1972), cert. denied, 413 U.S. 919 (1973) ; Cisneros

v. Corpus Christi Independent School District, 467 F.2d

142 (5th Cir., 1972), cert. denied, 413 U.S. 920, 922 (1973);

Hart v. Community School Board, 512 F.2d 37 (2nd Cir.),

cert. denied, 417 U.S. 943 (1974); Oliver v. Michigan State

Board of Education, 508 F.2d 178 (6th Cir., 1974), cert.

denied, 421 U.S. 963 (1975); Morgan v. Kerrigan, 509 F.2d

58 (1st Cir., 1974), cert. denied, 421 U.S. 963 (1975), 530

¥'.2d 401, cert. denied, 44 L.W. 3719 (June 10, 1976) ; United

States v. School District of Omaha, 521 ¥°.2d 530 (8th Cir.),

cert. denied, 423 U.S. 946 (1975); and ef., Milliken v. Brad-

ley, 418 U.S. 717, 738 n. 18 (1974).

2. Contrary to the petitioners’ suggestion (Pet. 19-21),

the desegregation remedy ordered below does not require

“racial balance” as a matter of constitutional right or

remedy. To the contrary, as noted by the Court of Ap-

peals, “the use of mathematical ratios in this case [by the

District Court constitutes] no more than ‘a useful starting

point’ in shaping a remedy for past discrimination. Swann,

supra, 402 at 25.” (App. 122a). Faced by over three years

of Board refusal to propose or recommend any plan other

than ones which would perpetuate the basically dual sys-

tem of one-race schooling in Dayton, the District Court

looked to the racial composition of the school district as

a starting point. The District Court then (a) appointed

its expert as master to work with the Dayton school au-

thorities on a broad guideline which would “permit black

enrollments at particular schools to range between 33%

and 63%” (App. 12la) as a starting point; and (b) estab-

lished guidelines for elementary students to keep the time

and distance of busing to a minimum. App. 102a-104a;

119a-120a. The Board, working with the Master, was then

given (a) the discretion to implement any effective plan

(e.g., App. 101a-102a, 1092), and (b) the flexibility to di-

17

verge from the broad range to accommodate legitimate

educational concerns and any schools which might be geo-

graphically isolated and thus beyond reasonable time and

distance limitations. App. 106a, 109a; App. 119a. Cf.,

Swann, 402 U.S. at 24-31.

The Board, to the District Court’s satisfaction, showed

a need to exempt “rising” high school juniors and seniors

from the plan. This resulted in projected enrollments for

the 1976-77 school year ranging from 23% to 78% black in

high schools under the final plan. However, the Board

made no claim and offered no proof showing the geographic

isolation of any school or pupil or excessive time or dis-

tance of transportation. The Board simply failed to meet

its burden to show why other schools or grades should

remain one-race or substantially disproportionate. See,

supra, pp. 6-10. Compare Swann, 402 U.S. at 24-31.

Finally, the District Court’s judgment, by its own terms,

applies only to the 1976-77 school year. And any modifica-

tions sought by any party are governed by the decision in

Spangler, U.S. (June 28, 1976), 44 L.W. 5114.

(App. 121a-122a).

In sum, there should be no question that the remedial

plan has been ordered by the courts below “to accomplish

desegregation of a school system in accordance with Swann

and not for the purpose of achieving a racial balance.”

Drummond v. Acree, 409 U.S. 1228, 1231 (1972) (Powell,

Circuit Justice).’* See also, Keyes v. School District No. 1,

The District Court's occasional use of the words “balance” or

“racial balance,” like its use of the word “dual,” gives rise to

semantic problems. In both instances, the District Court was not

using these phrases as they have been defined by recent caselaw

and made into almost legal terms of art. Compare Note 12 supra.

The District Court, however, was fully cognizant of the limitations

which Swann places on the equitable powers of courts to remedy

de jure segregation. E.g., App. 103a-104a (quoting Swann, 402

U.S. at 24); R. 315. And, as detailed in the text, the District

18

521 F.2d 465 (10th Cir. 1975), cert. denied, 423 U.S. 1066

(1976) and cases cited in text at Note 12, supra.

3. The Procedural issues sought to be raised by the

Dayton Board concerning the purported lack of standing

and of a class action (Pet. 22-25) are spurious. These

issues were resolved adversely to the Dayton Board in the

initial decree of the District Court (App. la). On its cross-

appeal from that ruling, the Dayton Board raised these

issues; but the Court of Appeals found the contentions of

the Dayton Board “to be without merit.” (App. 69a).

Having lost its cross-appeal, including on the standing and

class action issues, the Dayton Board chose, however, not

to petition for a writ of certiorari. The Dayton Board

never again raised the standing and class action issues

before either the District Court or the Court of Appeals

through countless proceedings on remand, the two sub-

sequent appeals, and a petition for writ of certiorari.

Apparently unwilling to accept the long-standing law of

the case, the Dayton Board now seeks to resurrect these

procedural issues in its latest certiorari petition.

This procedural claim of the Dayton Board is also with-

out merit. As noted, in their initial decrees in this pro-

tracted litigation, the lower courts held “this is a school

desegregation suit brought as a class action by the parents

of black children attending schools operated hy the defen-

dant Dayton (Ohio) Board of Education.” (E.g., App. 1a).

Court did act in fact in accord with Swann in the face of the

Dayton Board’s continuing default. Finally, it should be disposi-

tive that the Court of Appeals scrutinized the record and the Dis-

trict Court’s judgments in light of the District Court’s loose use

of language in order to make sure that substance not semantics

would govern his case for remedy just as for violation. Exercis-

ing its proper appellate function, the Court of Appeals made sure

that the District Court’s processes and final orders adhered

scrupulously to Swann, Keyes, Milliken and Spangler. E.g., App.

118a-123a; App. 89a-96a; App. 67a-68a.

19

Plaintiffs’ standing to bring such an action cannot be se-

riously contested fourteen years after Brown. And counsel

for plaintiffs are aware of no school case where more Black

citizens personally testified so movingly at trial of their

direct experiences with the de jure practices of their school

district and their personal stake in rooting out racial dis-

crimination from their public schools. Contrary to the

assertion of the Dayton Board in their petition (Pet. 23-

24), it is manifest that the courts below held that the

Dayton school system was unconstitutionally segregated

and that children were thereby effectively excluded from

or assigned to schools on a racially discriminatory basis.

See App. passim. From the inception of this litigation,

and long before, this cause of action bas been no idle sport

to plaintiffs.

Nor can there be any doubt that a school desegregation

case is properly maintained as a class action. The Notes

of the Advisory Committee on the 1966 Amendments to

Rule 23 point to civil rights cases, and school desegregation

cases in particular, as the archetype for Rule 23(b)(2).

This is so because racial discrimination is by definition

class discrimination. E.g., Hall v. Werthan Bag Corp.,

251 F. Supp. 184, 186 (M.D. Tenn., 1966); Potts v. Flaz,

313 F.2d 284, 289 n.5 (Sth Cir. 1963); Oatis v. Crown Zel-

lerbach Corp., 398 F.2d 496, 499 (Sth Cir. 1968); Jenkins

v. United Gas Corp., 400 F.2d 28 (Sth Cir. 1968). Indeed,

an individual parent, child or teacher of the school district

is constitutionally entitled to attend a racially non-dis-

eriminatory system of public schooling. Brown II, 349

U.S. 294, 301 (1955). Each has the personal constitutional

right “to attend schools which, near or far, are free of

governmentally imposed racial distinctions. . . .;” and their

school desegregation action is directed at the “system-wide

policy of racial discrimination.” Potts v. Flax, 313 F.2d

284, 288-290 (5th Cir. 1963).

20

4. The Dayton Board’s last claim is that any desegrega-

tion plan for Dayton involving pairing or clustering should

be rejected because it will lead to “resegregation” or “white

flight.” See, Pet. 16, 24-25. There was conflicting argument

(and offers of proof) at the Deeember 8-9, 1975, remedial

hearings concerning the potential effeet of the alternative

plans on “white flight” or “resegregation.” The Board,

without proposing or otherwise supporting any plan, had

its attorneys argue that a “choice” plan would be more

“stable” than a “pairing” or “rezoning” plan. Plaintiffs

countered with evidence showing that such claims of “re-

segregation” and “white flight” resulting from actual de-

segregatian were factually unsupported. In its evidentiary

rulings the District Court indicated its view that any such

evidence of opposition to desegregation was not legally

cognizable as a reason for limiting or delaying otherwise

constitutionally required desegregation (K.g., R. 8-9, 53-54,

129, 282-285, 440-441).

In any event, the December 29, 1975 order and subsequent

events rendered the issue moot. The Distriet Court adopted

neither plan but rather allowed the Board to adopt either

plan, subject to the supervision and report of the court-

appointed Master and review by the Court. See Statement,

supra pp. 7-8. At the subsequent hearing in March 1976,

the Dayton Board objected to the Master’s “choice” plan

for high schools and presented evidence in support of an

alternative “pairing” and “rezoning” plan. The Board

asked the Distriet Court to substitute the “rezoning” plan

for the Master’s “choice” plan at the high sehool level.

See, Statement, supra, p. 9. The District Court acquiesced

in the Board’s request for modification by permitting the

Board to implement either the “pairing-rezoning” or

“choice” plan (App. Ila, 115a). In these cirenmstances, it

seems to us that the attempt by the Dayton Board to raise

21

in the Stay Application “resegregation” or “white flight”

claims on this record is totally frivolous if not estopped."

Indeed, the Board’s “resegregation” claim, in and of it-

self, is repugnant to the Constitution. In the Board’s

petition (at pages 16, 25-26) this Court is “frankly told”

that without ultimate rejection of a desegregation plan

designed to remedy the constitutional violation “it is appre-

hended that white students will flee the sehool system

altogether” :

But it should go without saying that the vitality of

these principles cannot be allowed to yield simply be-

cause of disagreement with them. Brown II, at 300.

Monroe v. Board of Commissioners, 391 US 450, 459 (1968).

™ The reference to the Dayton Board petition at (25) to “testi-

mony of plaintiffs’ own witness” to the effect that clustering and

pairing would cause “white flight’ is wholly misplaced. First,

that testimony comes not at all from the December 8-9, 1975,

remedial hearings which shaped the final desegregation plans af-

ter the second remand; rather, it comes on the first remand from

evidentiary hearings in February, 1975, which were naught but a

side detour in this protracted litigation. See, Statement, supra,

pp. 4-5. Second, the testimony is that of a managing agent of an

adverse party (the State defendants) who was hostile and whose

testimony was never “vouched for” by plaintiffs. Third, plaintiffs

introduced substantial direet testimony and made extensive offers

of proof at the February, 1975 hearing and again in the Decem-

ber, 1975 remedial hearing to rebut the Dayton Board’s “white

flight” claim. Fourth, the Board was given diserction to develop

and implement any effective desegregation plans; but the courts

below would not brook the Dayton Board’s attempt to limit its

constitutional obligation to eliminate de jure segregation by claims

of “white flight.” (Moreover, the Dayton Board’s apparent insin-

uation, Pet. 25, that pupils have already left the Dayton schools

over the past five years as a result of a “foreed busing plan” is

ludicrous; for there has been virtually no effective, full time de-

segregation in Dayton prior to this fall.) To put the point di-

rectly, the Board's presentation of the “white flight” claim to this

Court, as to the courts below, is a sham.

22

CONCLUSION

Wuenrerors, for the foregoing reasons, the Petition for a

Writ of Certiorari should be denied forthwith.

Respectfully submitted,

NaTuHanigeL R. Jones

1790 Broadway

New York, New York 10019

Paut R. Dimonp

O’Brien, Moran and Dimond

» 210 East Huron Street

Ann Arbor, Michigan 48104

Lovis R. Lucas

Ratner, Sugarmon, Lucas,

Salky & Henderson

525 Commerce Title Bldg.

Memphis, Tennessee 38103

Ricnarp Austin

Suite 1500

First National Bank Bldg.

Dayton, Ohio 45306

Attorneys for Respondents