Petitioners Brief — Dayton Board of Education v. Brinkman
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SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1976
No. 76-539
DAYTON BOARD OF EDUCATION,
WILLIAM E. GOODWIN,
JOSEPHINE GROFF and
JAMES D. HART,
Petitioners,
v.
MARK BRINKMAN,
PATTY BRINKMAN, and
PHILLIP BRINKMAN,
By Their Mother and Next Friend, Donna
Brinkman, et al.,
Respondents.
(Additional Respondents Inside Cover)
On Writ Of Certiorari To The United States Court Of Appeals
For The Sixth Circuit
BRIEF OF PETITIONERS
DAVID C. GREER
LEO F. KREBS
BIESER, GREER & LANDIS of counsel
8 North Main Street
Dayton, Ohio 45402
Counsel for Petitioners
SS
COURT INDEX PRESS, INC..— 2/5 E. Ninth Street, Cincinnati, Ohio 45202 — (513) 241-1450
Additional Respondents:
Jesse Montague, Jr. and Debbora Montague,
by their Mother and Next Friend, Arva Montague;
Debbora Mitchell,
by her Father and Next Friend, John Mitchell;
Robbin J. Kent, Michael J. Kent and Leslie A. Kent,
by their Father and Next Friend Henry K. Kent;
Claudius R. Walker, Frserieea M. Walker and Bernice L.
Walker, by their Father and Next Friend, C. R. Walker, Jr.;
Rubin Atitia Jackson and Lahmarie Jackson,
by their Mother and Next Friend, Winona Jackson;
National Association for the Advancement of Colored People;
John J. Gilligan, Governor of the State of Ohio, etc.;
William J. Brown,
Attorney General of the State of Ohio;
Ohio State Board of Education;
Martin W. Essex, Superintendent of Public Instruction,
Ohio Department of Education;
Terry Lawson;
Leo A. Lucas;
Jane Sterzer;
Wayne M. Carle,
Superintendent of Dayton School District.
TABLE OF CONTENTS
mS PPSETTVTTTICTELT TTT TT Te
SPF ET POPES TE TST ET ETT TT err
Ill. CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ..................
IV. QUESTIONS PRESENTED
A. Does The Imposition Of A District-Wide
Racial Balance Remedy Exceed The Re-
medial And Equitable Powers Of A Fed-
eral Court And Does Such Imposition Vio-
late 28 U.S.C. $1712, Where, Although
Isolated Segregative Practices Have Been
Found To Exist, It Has Been Affirmatively
Determined That The Board Of Education
Has At No Time Maintained A Dual System? .
B. Is A Judicial Decree Valid Which Requires
A Fixed Racial Balance For Each And Every
EE. BA. Tre GI oie vcs cccnvvnscs.
C. Is A Desegregation Remedy That Will Result
In Resegregation Constitutionally Man-
SE Cae cud adaedaeuineseaeekeses
D. Is A Judicial Decree Valid Where The Com-
plainants Have Failed To Establish That
Any Injury To Them Has Occurred Or That
The Action Is Maintainable As A Class
Action?
Sees anveeeeeeeeneee esos ede@edc#ess es s
seen ee Ces e 20.0 2.e0 e
. ARGUMENT ......
IN A SCHOOL DESEGREGATION CASE
THE IMPOSITION OF A_ DISTRICT-
WIDE RACIAL BALANCE REMEDY EX-
CEEDS THE REMEDIAL AND EQUITA-
BLE POWERS OF A FEDERAL COURT
AND VIOLATES 28 USC. $1712
WHERE, ALTHOUGH’ ISOLATED SEG-
REGATIVE PRACTICES HAVE BEEN
FOUND TO EXIST, IT HAS BEEN AF-
FIRMATIVELY DETERMINED THAT
*THE BOARD OF EDUCATION HAS AT
NO TIME MAINTAINED A_ DUAL
PER EE. sicirssaeis Heep eee
l. The Limited Nature Of The Violation In
This Case Was Carefully And Narrowly
Defined By The Finder Of The Facts. ...
a. The adverse finding of racially imbal-
anced schools has no independent con-
stitutional significance. .............
b. The adverse finding with respect to
rescission of the resolution of Decem-
ber 8, 1971 has no independent con-
stitutional significance. ..............
c. The adverse finding with respect to op-
tional zones, whether considered sepa-
ately or as part of a cumulative viola-
tion, did not involve a substantial por-
tion of the students in the Dayton
TPURTM, ww ce censncedvosscedaceses
to
The Sweeping Remedy Imposed In This
Case Should Be Restructured In Rela-
tionship To The Nature Of The Violation. . .
16
20
25
Lb.
C,
D.
3. The Remedy Imposed In This Case Er-
roneously Elevates The Achievernent Of
Racial Balance To The Status Of A Con-
ea has 6 ce6 60.0000
4. The Remedy Imposed In This Case Vio-
lates The Equal Educational Opportuni-
EE
IN A SCHOOL DESEGREGATION CASE
THE IMPOSITION OF A’ DECREE
WHICH REQUIRES A FIXED RACIAL,
BALANCE FOR EACIL AND EVERY
SCHOOL IN TILL SYSTEM IS INVALID. ..
THE CONSTITUTION CANNOT BE
DEEMED TO MANDATE A DESEGRE-
GATION REMEDY THAT WILL RESULT
IN RESEGREGATION OF STUDENTS
SERVED BY TITE SCHOOL SYSTEM. .
A COURT IS WITHOUT POWER TO IM-
POSE A DECREE IN A SCHOOL DE-
SEGREGATION CASE WHERE THE
COMPLAINANTS HAVE FAILED TO ES-
TABLISH THAT ANY INJURY TO THEM
HAS OCCURRED OR THAT THik AC-
TION IS MAINTAINABLE AS A CLASS
TEC cee rea biden ssecececscessc<
l. The Record Is Void Of Any Evidence
That Any Of The Adverse Respondents
Sustained Any Injury Or Was Deprived
Of Any Constitutional Right. .........
Page
30
wr)
i |
iV.
Page
2. The Record Is Void Of Any Evidence
That Any Of The Respondents Was A
Member Of The Class They Purportedly
Represented And There Was No Deter-
mination That This Action Was Maintain-
able As A Class Action. ........... Svensk ae
Was QED ee vaetudéevesachiuncecsscuass 4l
CITATIONS
Cases:
Austin Independent School District v. United States,
— US. —, 45 U.S.L.W. 3413 (U.S. Dec. 6, 1976)
LOGE GUID oi cacckcdeeceuntensssiacess nasbaks 26, 41
Bailey v. Patterson, 369 U.S. 31 (1962) ............... 40
fe & 22S Fer eo 39
Bradley v. Milliken, 411 F.Supp. 943 (E.D. Mich. 1975),
modified, 540 F.2d 229 (6th Cir. 1976) .............. 32
Bradley v. School Board of City of Richmond, 462 F.2d
1058 (4th Cir. 1972), affd equally divided court, 412
Te FT Catal a eine ae aS Ged 19
Brinkman v. Gilligan, 503 F.2d 684 (6th Cir.
DE “sc caktcwenl ar nsehuds eh ela ceie 8, 16, 17, 21, 38
Brinkman vy. Gilligan, 518 F.2d 853 (6th Cir.), cert.
denied, 423 U.S. 1000 (1975) ............ ll, 16, 20, 31
Brinkman vy. Gilligan, 5389 F.2d 1084 (6th Cir.
SD Wk. debe pa eka al auton bandas 13, 16, 30, 34
Brotherhood of Locomotive Firemen and Engineermen
v. Bangor and Aroostook R.R., 389 U.S. 327 (1967) .... 11
Page
Brown v. Board of Education, 347 U.S. 483 (1954) ..19, 30
Brown v. Board of Education, 349 U.S. 294 (1955) .... 15
Calhoun v. Cook, 522 F.2d 717 (5th Cir. 1975) ........ 36
Carr v. Montgomery County Board of Education, 377
F.Supp. 1123 (M.D. Ala. 1974), affd, 511 F.2d 1374
(5th Cir.), cert. denied, 423 U.S. 986 (1975) ........ 35
Davis v. Board of Commissioners of Mobile County,
a es Se OE a o% ke w'eneut 6 ud@wodeutes oe ¥awas 36
Davis v. Schultz, 453 F.2d 497 (3rd Cir. 1971) ........ 40
Dayton Board of Education vy. Brinkman, 423 U.S. 1000
SRE 9s te eee abe beh Sada wes deans lei 11-12
Deal v. Cincinnati Board of Education, 419 F.2d 1387
(6th Cir. 1969), cert. denied, 402 U.S. 962 (1971) .... 20
Gomillion v. Lightfoot, 364 U.S. 339 (1960) .......... 21
Green v. County School Board, 391 U.S. 430 (1968) .. 36
Hamilton Shoe Co. v. Wolf Brothers, 240 U.S. 251 (1916). 11
Hunter v. Erickson, 393 U.S. 385 (1969) ............ 21
Kauffman v. Dreyfus Fund, Inc., 434 F.2d 727 (3rd
Cir. 1970), cert. denied, 401 U.S. 974 (1971) ...... 40
Keyes v. School District No. 1, Denver, Colorado,
413 U.S. 189 (1973) ...... 8, 9, 11, 15, 19, 20, 23, 29, 30
Lawlor v. Board of Education of City of Chicago, 458
F.2d 660 (7th Cir. 1972), cert. denied, 413 U.S. 921
SEY; svauchsapeheceadttaths webb whrerieictebns 19
McCabe v. A.T. & S.F. Railway Co., 235 U.S. 151
SEs snc deuce iad Ciey One AMeNE Caen ynaeetens 38
Milliken v. Bradley, 418 U.S. 717 (1974) .............. 15, 28
O’Shea v. Littleton, 414 U.S. 488 (1974) .............. 38
Pasadena City Board of Education v. Spangler, — U.S.
—, 49 L.Ed.2d 599 (1976) ..................20.4. 034, 40
>
Vi.
~ Page
San Antonio Independent School District v. Rodriguez,
SD i ee ee eee idee ou iy 21
Spencer v. Kugler, 326 F. Supp. 1235 (D. N.J. 1971),
= f S fl ee re 19
Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1 (1971) ....9, 10, 11, 15, 29, 30, 31, 35, 36, 39
Village of Arlington Heights v. Metropolitan Housing
Development Corporation, — U.S. —, 50 L.Ed.2d 450
tee en
Washington v. Davis, 426 U.S. 229, 48 L.Ed.2d 597
RUN dit elg ni oe tre eee WA eee ae a la ie .20, 23
United States Constitution:
en en ee se ceeeeewnkeubaust 2
Statutes:
I ee a ae 2, 3)
oe el heaue ace ake eka 2, 31
ERR SERRE penal c Seneur Lene as pore RS Fe 3, 31
RIE CoG oes re ieee ieee ee ee 2
tN ea Poa re a ea uue snes 3, 6, 39
ES EE es:
I rs ace ee ee ee 4, 6, 39
REE are RP Bee Gere, UOT nay es Re 4, 6, 39
33 Ohio Revised Code § 3313.48 .................... 5
IN TRE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1976
No. 76-539
DAYTON BOARD OF EDUCATION,
WILLIAM E. GOODWIN,
JOSEPHINE GROFF and
JAMES D. HART,
Petitioners,
Vv.
MARK BRINKMAN,
PATTY BRINKMAN, and
PHILLIP BRINKMAN,
By Their Mother and Next Friend, Donna
Brinkman, et al.,
Respondents.
On Writ Of Certiorari To The United States Court Of Appeals
For The Sixth Circuit
BRIEF OF PETITIONERS
I. OPINIONS BELOW
The July 26, 1976 opinion of the Court of Appeals for the
Sixth Circuit is reported at 539 F.2d 1084. The opinions of the
Court of Appeals issued on June 24. 1975 and August 20, 1974
are reported at 518 F.2d 853 and 503 F.2d 684, respectively.
2
All these decisions and the unreported opinions of the District
Court are reproduced in the appendix.
Il. JURISDICTION
The jurisdiction of this Court is invoked under 28 U.S.C.
§ 1254(1). The judgments of the Court of Appeals for the
Sixth Circuit were made and entered on July 26, 1976, June
24, 1975 and August 20, 1974.
III. CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
A. Fourteenth Amendment To The United States Constitu-
tion, Section 1:
. nor shall any such State .. . deny to any person
within its jurisdiction the equal protection of the law.”
B. United States Code, Title 20:
§ 1712. Formulating remedies; applicability:
In formulating a remedy for a denial of equal educa-
tional opportunity or a denial of the equal protection of
the laws, a court, department, or agency of the United
States shall seek to impose only such remedies as are
essential to correct particular denials of equal educational
opportunity or equal protection of the laws. 20 U.S.C.
§ 1712, p. 1685, Supp. V, 1975 (1970 ed.).
§ 1751. Prohibition against assignment or transporta-
tion of students to overcome racial imbalance:
No provision of this Act shall be construed to require
the assignment or transportation of students or teachers
in order to overcome racial imbalance. 20 U.S.C. § 1751,
p. 1686, Supp. V, 1975 (1970 ed.).
3
§ 1754. Provisions respecting transportation of pupils
to achieve racial balance and judicial power to insure
compliance with constitutional standards applicable to the
entire United States:
The proviso of section 2000c-6(a) of Title 42 providing
in substance that no court or official of the United States
shall be empowered to issue any order seeking to achieve
a racial balance in any school by requiring the transpor-
tation of pupils or students from one school to another
or one school district to another in order to achieve such
racial balance, or otherwise enlarge the existing power of
the court to insure compliance with constitutional stan-
dards shall apply to all public school pupils and to every
public school system, public school and public school
board, as defined by section 2000c of Title 42, under all
circumstances and conditions and at all times in every
State, district, territory, Commonwealth or possession of
the United States, regardless of whether the residence of
such public school pupils or the principal offices of such
public school system, public school or public school board
is situated in the northern, eastern, western, or southern
part of the United States. 20 U.S.C. § 1754, p. 1687, Supp.
V, 1975 (1970 ed.).
United States Code, Title 28:
§ 1343. Civil rights and elective franchise:
The district courts shall have original jurisdiction of any
civil action authorized by law to be commenced by any
person:
(1) To recover damages for injury to his person or
property, or because of the deprivation of any right or
privilege of a citizen of the United States, by any act
done in furtherance of any conspiracy mentioned in
section 1985 of Title 42;
(2) To recover damages from any person who fails
4
to prevent or to aid in preventing any wrongs mentioned
in section 1985 of Title 42 which he had knowledge were
about to occur and power to prevent;
(3) To redress the deprivation, under color of any
State law, statute, ordinance, regulation, custom or usage,
of any right, privilege or immunity secured by the Con-
stitution of the United States or by any Act of Congress
providing for equal rights of citizens or of all persons
within the jurisdiction of the United States;
(4) To recover damages or to secure equitable or
other relief under any Act of Congress providing for the
protection of civil rights, including the right to vote. 28
U.S.C» § 1343, p. 7571 (1970 ed.).
United States Code, Title 42:
§ 1981. Equal rights under the law:
All persons within the jurisdiction of the United States
shall have the same right in every State and Territory to
make and enforce contracts, to sue, be parties, give evi-
dence, and to the full and equal benefit of all laws and
proceedings for the security of persons and property as is
enjoyed by white citizer,, and shall be subject to like
punishment, pains, penalties, taxes, licenses, and exactions
of every kind, and to no other. 42 U.S.C. § 1981, p. 10281
(1970 ed.).
$ 1983. Civil action for deprivation of rights:
Every person who, under color of any statute, ordi-
nance, regulation, custom, or usage, of any State or Ter-
ritory, subjects, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress. 42 U.S.C.
§ 1983, p. 10283 (1970 ed.).
5:
Ohio Revised Code, Chapter 33:
§ 3313.48. Free education to be provided; minimum
school year:
The Board of Education of each city, exempted village,
local and joint vocational school district shall provide for
the free education of the youth of school age within the
district under its jurisdiction at such places as will be
most convenient for the attendance of the largest number
thereof. 33 O.R.C. § 3313.48, p. 175 (1972).
IV. QUESTIONS PRESENTED
Does The Imposition Of A District-Wide Racial Balance
Remedy Exceed The Remedial And Equitable Powers
Of A Federal Court And Does Such Imposition Violate
28 U.S.C. § 1712, Where, Although Isolated Segregative
Practices Have Been Found To Exist, It Has Been Af-
firmatively Determined That The Board Of Education Has
At No Time Maintained A Dual System?
Is A Judicial Decree Valid Which Requires A Fixed Racial
Balance For Each And Every School In The System?
Is A Desegregation Remedy That Will Result In Resegre-
gation Constitutionally Mandated?
Is A Judicial Decree Valid Where The Complainants
Have Failed To Establish That Any Injury To Them Has
Occurred Or That The Action is Maintainable As A Class
Action?
6
Vv. STATEMENT OF THE CASE
The complaint commencing this school desegregation action
was filed in the United States District Court for the Southern
District of Ohio, Eastern Division, on April 17, 1972 by
individuals purporting to act on their own behalf as parents
and on behalf of their minor children who attended schools in
the Dayton Public School District and by the National Asso-
ciation for the Advancement of Colored People (all of whom
are hereinafter referred to as adverse respondents). Named
as defendants to the complaint were the Governor of Ohio, the
Attorney General of Ohio, the State Board of Education, the
Superintendent of the Ohio Department of Education, six
individual members of the Dayton Board of Education and
the Superintendent of the Dayton School District.
A trial on the single issue of whether the school system of
Dayton was a segregated one by reason of acts of the Dayton
Board of Education commenced on November 13, 1972.
Equity jurisdiction of the District Court was predicated upon
the Equal Protection Clause of the Fourteenth Amendment to
the United States Constitution and upon 28 U.S.C. § 1343 and
42 U.S.C. §$ 1981 and 1983 (A. 1).
None of the adverse respondents testified at the trial and
none of the evidentiary exhibits established that any of the
named adverse respondents was ever excluded from attending
any school in the Dayton system or that any was a member
of a class that was allegedly excluded. Likewise, there was
no evidence that any of the adverse respondents was a school
child or a parent of a schooi child or that any of them ever
attended or sought to attend a school within the Dayton
district.
On February 7, 1973 the Trial Court rendered an opinion
in which it found that racially imbalanced schools, optional
attendance zones and recent Board action in rescinding three
resolutions calling for racial and economic balance in each
school in the Dayton system constituted a cumulative violation
of the Equal Protection Clause, and that the rescission action
7
constituted an independent constitutional violation (A. 11,
12). While school practices in the area of staff assignment,
establishment of attendance zones, school construction and
site selection, grade structure and organization, student trans-
fers and transportation were alleged to have constituted the
establishment of a dual system, these practices were passed
upon by the District Judge and were found free from any
segregative intent or effect (A. 5-10).
In order to correct the constitutional violations, the District
Court ordered the Dayton Board to submit a plan which
would (1) abolish all optional zones, (2) restate the priorities
of the Freedom of Enrollment Program so that racial trans-
fers would take precedence over curriculum transfers, (3)
maintain the faculty assignment practices so that the faculty in
each school would continue to reflect the approximate racial
balance of the total black-to-white faculty in the Dayton
system, and (4) establish hiring practices which would enable
the clerical and maintenance personnel hired by the Dayton
system to approximate the proportion of the black-to-white
population within the Dayton system (A. 13).
In compliance with the February 7, 1973 order of the
District Court, the Dayton Board submitted its plan to the
Court. This plan contained eleven points:
(1) Elimination of all elementary and high school
optional areas (A. 131);
(2) Revision of the Freedom of Enrollment Program
whereby racial balance took priority over other permissible
transfers (A. 133);
(3) Declaration that faculty assignment to each school
would continue to reflect a racial composition that would ap-
proximate a ratio of black-to-white faculty in the entire district
(A. 135);
(4) Modification of hiring practices for classified per-
sonnel (A. 136);
8
(5) Establishment of four city-wide elementary science
centers the enrollment of which would approximate the existing
black-white ratio of students in the system (A. 137);
(6) Combination of two high schools into a unified co-
operative school with district-wide attendance areas (A. 139):
(7) Formation of elementary and high school all-city
bands, orchestras and choruses (A. 140);
(8) Provisions for scheduling of integrated athletics (A.
140);
(9) Establishment of a minority language program for
education of staff (A. 141);
(10) Utilization of the Living Arts Center for inter-racial
experiences in art, creative writing, dance and drama (A. 141):
(11) Creation of centers for rumor control, school guid- -
ance and area learning (A. 142).
After submission of the Board plan and after publication of
Keys v. School District No. 1, Denver, Colorado, 413 U.S. 189
(1973), the District Judge entered a supplemental order on
remedy (A. 26-31). In this July 13, 1973 opinion the Trial
Court stated that there was no “evidence of a failure of the
equality of facilities, instructors and curricula opportuni-
ties ....” (A. 30). The Trial Court adopted the Board plan
with the modification that any student could attend any high
school of his or her choice within the Dayton system.
An appeal from the constitutional violations and remedy
judgment of the District Court was filed by the adverse re-
spondents and the Dayton Board cross-appealed. On August
20, 1974, the United States Court of Appeals for the Sixth
Circuit affirmed the finding of three cumulative constitutional
violations. Brinkman v. Gilligan, 503 F.2d 684, 697 (6th Cir.
1974) (A. 56).
The Court of Appeals did not, however, pass upon the
question of whether the rescission action constituted an inde-
9
pendent constitutional violation. Rather, the appellate court
stated that “[t]he question of whether a rescission of previous
Board action is in and of itself a violation of the appellants’
constitutional rights is inextricably bound up with the question
of whether the Board was under a constitutional duty to take
the action which it initially took.” Continuing, the Court of
Appeals_held that “[i]f the Board was not under such a duty,
then the rescission of the initial action in and of itself cannot
be a constitutional violation. If the Board is under such a
duty, then the rescission becomes part of the cumulative vio-
lation, and it is not necessary to ascertain whether the recis-
sion ipso facto is an independent violation of the Constitution.”
Id. at 697 (A. 55).
On the remedy issue raised in the appeal, the Sixth Circuit
concluded that the remedy prescribed by the District Court
was inadequate. Accordingly, the action was remanded to the
Trial Court for formulation of another desegregation plan con-
sistent with the remedial guidelines of Keyes and Swann. Id.
at 704 (A. 68).
After the first appellate remand the District Court ordered
the Board and any other interested party to submit desegrega-
tion plans. Under the plan submitted by the adverse respon-
dents each and every school in the Dayton system would have
become racially balanced; that is, the black-white student
ratio in each school would approximate within a plus or
minus fifteen percent the black-white ratio of the entire dis-
trict (A. 77-78). The plan submitted by the Dayton Board
contained the following key elements:
(1) The closing of the all black Roosevelt High School
with the students who would have attended this school being
given priority under open enrollment to attend any high
school (A. 145):
(2) Creation of a downtown magnet high school and satel-
lite magnets at the predominantly black schools of Dunbar and
10
Roth with enrollments in the specialized courses offered at
these magnets open to students throughout the district (A.
145);
(3) Creation of magnet learning centers for foreign lan-
guages, business education and career motivation for sixth
through eighth grade students (A. 147-149);
(4) Establishment of a new vocational high school where
student enrollment would be racially balanced (A. 146),
(5) Expansion of the science learning centers to accom-
modate additional middle school students (A. 149);
*- (6) Establishment of a structured, alternative elementary
school at the predominantly black Miami Chapel School where
enrollment would reflect the approximate racial balance of
the system for those students who attended this elective full
time school (A. 146, see A. 92).
After a hearing on these plans, the District Court rejected
the plan of the adverse respondents; found that racial balance
in each and every school was not required under Swann; and
concluded that the racial balance plan of the adverse re-
spondents was violative of the Equal Educational Opportuni-
ties Act of 1974 (A. 79). In provisionally accepting the plan
of the Dayton Board for the 1975-76 school vear, the Trial
Court held that the plan of the Board was desegregative in
intent and integrative in effect (A. 80, 83).
In this order of March 10, 1975 the District Judge addition-
ally held that (1) the State of Ohio has not since 1887 man-
dated a dual system (A. 75): (2) although the Dayton Board
has engaged in activities that were segregative in effect and
which impinged upon the constitutional rights of the plaintiffs,
the Board did not at any time maintain a dual system of
education (A. 75, 77); and (3) there were no district-wide
segregative acts (A. 77).
The March 10, 1975 order accepting the Board plan was
again appealed by the adverse respondents to the Sixth
Circuit Court of Appeals. A motion of the adverse respon-
dents for summary reversal was deferred pending a stepped-
up time for submission of briefs and oral arguments. While
declining to grant summary reversal because of the time factor
between the rendition of the opinion and the opening of
school in the fall of 1975, the Court of Appeals remanded the
action to the District Court with the direction that “the Court
adopt a system-wide plan for the 1976-77 school year that
will conform to the previous mandate of this Court and with
the decisions of the Supreme Court in Keyes and Swann.”
Brinkman v. Gilligan, 518 F.2d 853, 857 (6th Cir.) (A. 96),
cert. denied, 423 U.S. 1000 (1975).
In this second appellate opinion rendered on June 24, 1975
the Court of Appeals held that the Board plan was inade-
quate since “the basic pattern of one-race schools would con-
tinue largely unabated” and “the vast majority of one-race
schools will remain identifiable as such.” Id. at 856 (A. 93).
Additionally, the Court of Appeals held that the Equal Edu-
cational Opportunities Act of 1974 did not limit the scope
of the remedy for the constitutional violations found to exist.
Id. at 856 (A. 95). oe
After the second remand order the Trial Court appointed
Dr. Charles Glatt as an expert witness for the purpose of pre-
paring a desegregation plan. Due to the unfortunate death
of Dr. Glatt the District Court on November 5, 1976 appointed
Dr. John A. Finger, Jr. as a court consultant and ordered the
Dayton Board and other interested parties to submit desegre-
gation plans on or before December 1, 1975.
During this same time a petition for a writ of certiorari
was filed with this Court. The adverse respondents objected
to the entertainment of the writ on the grounds that the
appellate order of June 24, 1975 was interlocutory and was a
remand order requiring further substantive proceedings. See,
e.g., Brotherhood of Locomotive Firemen and Engineermen v.
Bangor and Aroostook R.R., 389 U.S. 327 (1967); Hamilton
Shoe Co. v. Wolf Brothers, 240 U.S. 251, 257-258 (1916).
12
Thereafter the writ was denied. Dayton Board of Education
v. Brinkman, 423 U.S. 1000 (1975).
On December 5, 1975 hearings were held upon the plan
submitted by the adverse respondents and the plan trans.
mitted to the Court by the defendant Board. After considering
these plans the Trial Court on December 29, 1975 decreed that
the Dayton Board could adopt any plan provided that as of
September 1, 1976 each school in the Dayton system was
desegregated. Desegregated was defined so as to require each
school in the system (excepting grades eleven and twelve for
the academic years of 1976 through 1978) to have a pupil
population that reflected, within a plus or minus fifteen per-
cent, the racial composition of the district as a whole (A. 103).
Dr. Finger was appointed as a Master to supervise these
student assignments and was directed to submit an assignment
report (A. 104-105).
The Master filed his report on March 15, 1976, and a
hearing was held on this report on the 22nd and 23rd of March.
At the conclusion of the hearing the Trial Court adopted the
Master's racial balance assignment plan for the elementary
level and rejected the phase-in proposal of the defendant
Dayton Board (A. 110-111). At the high school level the
Court permitted the Board to choose between the Master's
student selection plus random assignment or the Board's pro-
posal for specific attendance districts with the proviso that the
racial balance requirement be met (A. IIL).
On May 14, 1976 the District Court granted a modification
of the Master's report which did not affect the racial balance
requirement. At the same time the Court rejected a request
seeking permission to exclude most of next year's eighth
graders from the racial assignment requirement (A. 117).
An appeal from the judgments of December 29, 1975 and
March 25, 1976 was prosecuted by the Dayton Board. The
request of the Board for a stay pending appeal was denied,
but the entire appellate timetable was stepped-up. On July
13
26, 1976 the Sixth Circuit affirmed the judgment of the Trial
Court which ordered a district-wide racial balance distribu-
tion of students in each school in the Dayton system. Brink-
man v. Gilligan, 539 F.2d 1084 (6th Cir. 1976) (A. 118).
The Dayton Board's petition for a writ of certiorari, filed on
October 18, 1976, was granted by this Court on January 17,
1977.
VI. SUMMARY OF ARGUMENT
This case raises questions of the definition and limitations
of a federal court's equitable powers in fashioning school
desegregation remedies. The Dayton Board contends that
fundamental legal and constitutional principles have been
ignored and distorted by the decisions of the District Court
and the Sixth Circuit.
First, the scope of the remedy in a school desegregation case
must be determined by the nature of the violation. The lower
courts, while finding only limited constitutional violations
which did not affect a substantial portion of the Dayton dis-
trict, have imposed a sweeping decree affecting every school
and student in the system. In doing so, they have abandoned
a fundamental remedial principle and repiaced it with a “mine
field” approach under which a school board by committing an
isolated segregative act or series of acts triggers off a system-
wide remedy.
Second, the fashioning of a desegregation remedy should
be guided by the fixed purpose of eliminating state-imposed
exclusion of individuals from schools on account of race. By
adopting the false assumption that schools cannot be desegre-
gated unless the racial composition of the student body in each
school substantially reflects the racial composition in the system
as a whole, the lower courts have abandoned this purpose and
replaced it with a purpose of securing system-wide racial
balance. In doing so they have erroneously constructed a sub-
stantive “constitutional” right to a particular degree of racial
balance. No such right exists.
14
Third, the ultimate test of a desegregation remedy is its
pragmatic effectiveness in achieving desegregation. The lower
courts abandoned this test and replaced it with an artificial
mathematical formula test. In doing so they ignored evidence
that the result of a system-wide racial balance plan in Dayton
would be the conversion of a constitutional promise of equal
educational opportunity into the ashes of an impoverished
school system serving a low economic, predominantly black
student population.
Finally, the lower courts ignored the threshold principle
that judicial intervention is not permissible in the absence of a
showing of injury to the complainants or some class which
they legitimately represent. The jurisdiction which the lower
courts exertised in fashioning the inappropriate decrees that
have been imposed was never invoked by a party who had
standing to bring this action.
Vil. ARGUMENT
A. IN A SCHOOL DESEGREGATION CASE THE
IMPOSITION OF A DISTRICT-WIDE RACIAL
BALANCE REMEDY EXCEEDS THE REME-
DIAL AND EQUITABLE POWERS OF A FED-
ERAL COURT AND VIOLATES 28 U.S.C. § 1712
WHERE, ALTHOUGH ISOLATED SEGREGA-
TIVE PRACTICES HAVE BEEN FOUND TO
EXIST, IT HAS BEEN AFFIRMATIVELY DE-
TERMINED THAT THE BOARD OF EDUCA-
TION HAS AT NO TIME MAINTAINED A
DUAL SYSTEM.
This case poses basic questions of the limitations of the
power of federal courts in fashioning remedies in desegregation
cases. The principles from which those questions must be
resolved have been enunciated by this Court on repeated oc-
casions. They have unfortunately been ignored with the
mildest of lip service in numerous lower court decisions.
15
In fashioning desegregation decrees, equitable principles
control. Brown v. Board of Education, 349 U.S. 294, 300
( 1955).
“(T]he 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 exer-
cised ‘only on the basis of a constitutional violation’ and,
‘{a]ls with any equity case, the nature of the violation
determines the scope of the remedy. ”
Milliken v. Bradley, 418 U.S. 717, 738 (1974), quoting Swann
v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16
(1971). Before any affirmative duty arises to dismantle and
to eliminate the identifiability of one-race schools, there must
be a finding of a dual system mandated by state statute or a
dual system predicated upon evidence establishing state-
imposed segregation in a substantial portion of the school
district. Keyes v. School District No. 1, Denver, Colorado,
413 U.S. 189, 200, 203, 208-209 (1973).
The Sixth Circuit has replaced these standards with a “mine
field” theory of fashioning remedies in desegregation cases.
Rather than shaping the scope of the remedy to fit the nature
of the violation, it has been led by an erroneous definition of
desegregation to the false position that the only effective
remedy for a system tainted by an act of segregation is an
overall remedy. Whenever a school board permits an isolated
segregative act or series of acts, it triggers off a system-wide
remedy of climinating racial identifiability by balancing the
races in each school in the system.
The relationship between the District Court and the Sixth
Circuit in the course of this litigation dramatically reflects the
opposition between the “nature of the violation” and the “mine
field” theories of fashioning desegregation remedies. The
District Court, after a three week trial, found in favor of the
School Board on most of the contentions presented by the
plaintiffs (A. 1-14). It found against the School Board in
three specific and interrelated areas (A. 12) and set forth a
16
series of minimum requirements to eradicate the effects of
the unconstitutional actions that were found to have occurred
(A. 13). A plan incorporating those requirements and offering
additional integrative proposals was adopted (A. 131-144),
The Sixth Circuit affirmed the factual findings, but looked
at the remedy and in essence said “more”. Brinkman v.
Gilligan, 503 F.2d 684, 704-05 (6th Cir. 1974) (A. 69). The
District Court broadened the remedy, but the Sixth Circuit —
while again affirming the factual findings of the lower court
— again said “more” with respect to the remedy. Brinkman
v. Gilligan, 518 F.2d 853, 855 (6th Cir.) (A. 93), cert. denied,
423 U.S. 1000 (1975). After two reversals the District Court
in frustration acknowledged the Sixth Circuit's view that the
limited acts of the Dayton School Board had triggered a
system-wide mine field (A. 100). Accordingly, it adopted a
plus or minus fifteen percent racial balance plan (A. 103)
which in turn was approved by the Sixth Circuit. Brinkman
v. Gilligan, 539 F.2d 1084 (6th Cir. 1976) (A. 118).
To gauge and correct the error committed in this case it is
necessary to analyze the factual findings that have been made
and place them in the context of the applicable law.
1. The Limited Nature Of The Violation In This Case
Was Carefully And Narrowly Defined By The
Finder Of The Facts.
The arch on which the ruling against the Dayton School
Board rests is composed of three findings.
“The District Court found three constitutional violations
in the Dayton school system, namely, (A) racially im-
balanced schools, (B) optional attend ince zones, and (C)
the Dayton Board’s rescission of three resolutions. These
were held by the District Court to be ‘cumulatively in
violation of the Equal Protection Clause’... .
“We hold that the findings of fact on which the District
Court based its conclusion of a cumulative violation are
17
‘
not clearly erroneous but, to the contrary, are amply sup-
ported by the evidence.”
Brinkman vy. Gilligan, 503 F.2d 684, 693 (6th Cir. 1974) (A.
48), (see A. 12. 77). As will become apparent, the finding
as to optional zones is the keystone to the arch since the other
two findings could not independently support a ruling against
the Dayton Board of Education. o
Before an analysis is made of the adverse findings of fact,
they should be placed in the context of the other findings made
by the Trial Court. Although racial imbalance existed in the
schools comprising the Dayton district, the student population
of each school was consistent with the black-white distribution
of population in the Dayton area (A. 5). All sixty-eight
schools of the Dayton system — fifty-two elementary, five
middle and eleven high schools, with the exception of the
city-wide cooperative high school — were uniformly and im-
partially located in areas where students or potential students
were concentrated (R. I. 1783, Vol. 18).' The Court found
no evidence that school construction or site selection was seg-
regative in nature or that the Board was ever guided in such
matters by anything other than neutral criteria (A. 7). In
compliance with section 3313.48 of the Ohio Revised Code
attendance zones for each school, excepting the cooperative
high school, were drawn so as to make access from home to
school as convenient as possible for the greatest number of stu-
dents (see R.I. 1560, Vol. 16). These zones were not irregular
in shape (A. 5), were not gerrymandered (A. 6) and had re-
mained essentially stable over the past twenty years (A. 278),
notwithstanding changes in the student composition whereby
1 References in this brief to the record consisting of the twenty
volumes transcribed during the violation hearing held in November
and December of 1972 will consist of the designation R. 1., followed by
the page and volume number; references to the record consisting of the
remedial hearings held in February of 1975 will consist of the designa-
tion R. II. and the references to the record of the remedial hearing
held in December, 1975 and March, 1976 will consist of the designation
R. IIL.
18
many of the schools changed from predominantly white to
predominantly black (see Def. AR, R. I. 1237, Vol. 12; R. I.
2011, Vol. 20). Where construction of new schools re-
quired boundary changes, the changes have been rational,
reasonable and within the sound discretion of the Board (A.
5). White students have not been bused past black schools to
white schools, and black students have not been bused past
white schools to black schools (A. 5).
In 1969 assignment patterns were modified by enactment of
a Freedom of Enrollment Policy which permitted student
transfers for the purpose of improving racial balance (R. I.
1335, Vol. 13). This program was not operated in any manner
so as to discriminate against any student and free transporta-
tion was pfovided starting in 1972 (see A. 9). There was no
evidence of inequality of facilities in the Dayton school system
or inequality in instruction or curriculum opportunities (A. 30).
Starting in the 1951-52 school year black teachers were
gradually assigned to white or mixed schools, and by 1969 each
school in the Dayton system had an integrated teaching staff
(A. 4). In 1969 the Dayton School Board employed more
black teachers than any of the other twenty largest school
districts in the State of Ohio, and in the fall of 1971 the teach-
ing staff in each school in the system became organized so
that the staff in each school substantially reflected the ratio
between the number of black and white teachers employed in
the entire Dayton system (A. 4). The teaching staff as of the
date of the Trial Court’s initial order remained substantially
integrated, and with respect to non-teaching and non-adminis-
trative personnel the Court found that blacks comprised thirty-
eight percent of the total work force for the school years
1971-72 and 1972-73 (A. 4).
Against these positive findings in the areas of school con-
struction, site selection, attendance zones, assignment pat-
terns, facilities, faculty and non-teaching staff, the Court raised
three negative findings that it characterized as a cumulative
violation of the Constitution (A. 12). In doing so it was
careful to circumscribe its negative findings by holding that
19
the Dayton School Board did not at any time “maintain a dual
system of education” (A. 75, 77).
In its opinion following the first remand from the Sixth
Circuit the District Court stated that:
“The defendant School Board of the City of Dayton had
engaged in activities which were segregative in effect
and which did impinge upon the constitutional rights of
students in such system. At no time, however, did de-
fendant maintain a dual system of education. (A. 75).
“We do not deal with a mandated dual school system we
do not deal with actions taken on a school-by-school
basis. We do deal with a system that has in the past
permitted segregative practices to exist.” (A. 77).
This holding of a non-dual system not only establishes that the
Dayton district was not operating a mandated dual system as
proscribed in Brown I; it also confirms that the cumulative
constitutional violations did not constitute state-imposed seg-
regation in a substantial or significant portion of the district
as proscribed in Keyes.
In light of the positive findings and the holding of non-
duality, an analysis of the negative findings is necessary for
purposes of determining the scope of the remedy.
a. The adverse finding of racially imbalanced schools has
no independent constitutional significance.
The Court's first adverse finding — a condition of racial
imbalance in schools as a result of the geographic distribution
of races in the school system — was admitted by the defendant
at the outset of the case. Such a finding, however, is con-
stitutionally innocuous in and of itself. Lawlor v. Board of
Education of City of Chicago, 458 F.2d 660 (7th Cir. 1972),
cert. denied, 413 U.S. 921 (1973); Bradley v. School Board
of City of Richmond, 462 F.2d 1058, 1069 (4th Cir. 1972),
affd equally divided court, 412 U.S. 92 (1973); Spencer v.
Kugler, 326 F. Supp. 1235 (D. N.J. 1971), aff'd, 404 U.S. 1027
20
(1972); Deal v. Cincinnati Board of Education, 419 F.2d 1387
(6th Cir. 1969), cert. denied, 402 U.S. 962 (1971).
This Court has left no room for doubt as to the significance
of a finding of racial imbalance in a school system.
“That there are both predominantly black and predom-
inantly white schools in a community is not alone viola-
tive of the Equal Protection Clause. The essential ele-
ment of de jure segregation is ‘a current condition of
segregation resulting from intentional state action .
the differentiating factor being between de jure segrega-
tion and so-called de facto segregation . . . is purpose
or intent to segregate.’ ”
Washington v. Davis, 426 U.S. 229, 48 L.Ed.2d 597, 608 (1976),
quoting Keyes v. School District No. 1, Denver, Colorado,
413 U.S. 189, 205, 208 (1973). Proof of racially discriminatory
intent or purpose — not mere proof of racial imbalance — is
required to show a violation of the Equal Protection Clause.
Village of Arlington Heights v. Metropolitan Housing Develop-
ment Corporation, — U.S. —, 50 L.Ed.2d 450, 464 (1977).
While racially identifiable schools do not violate the Constitu-
tion, the predicate for the Sixth Circuit’s affirmance of the
racial balance plan was — ironically enough — the existence of
identifiable one-race schools. Brinkman v. Gilligan, 518 F.2d
853, 855-56 (6th Cir. 1975) (A. 93), cert. denied, 423 U.S. 1000
(1975). -
b. The adverse finding with respect to rescission of the
resolutions of December 8, 1971 has no independent
constitutional significance.
Like its first finding the Trial Court’s third and last “cumu-
lative” finding would not alone support a ruling against the
Dayton Board. On December 8, 1971 a lame duck Board of
Education, whose majority had lost the November, 1971 elec-
tion, passed three resolutions. One of these resolutions
required the elimination of all attendance zones with con-
21
comitant transportation of students on a large scale basis for
the purpose of achieving a racial and economic balance of
students within each school in the Dayton system. After sev-
eral parliamentary maneuvers, the new Board majority on
January 3, 1972 took action which in the opinion of the Dis-
trict Court constituted a rescission of the resolutions (A.
10-11).
While the rescission action was held by the District Court
to have constituted an independent constitutional violation,
the Sixth Circuit held simply that the rescission was part of
the cumulative violation since rescission alone could not
constitute a violation of the Constitution unless there was a
constitutional duty to take the action that was rescinded.
Brinkman v. Gilligan, 503 F.2d 684, 697 (6th Cir. 1974) (A.
55). If the Board was under no constitutional duty to adopt
the December 8th resolutions, it had the same power to rescind
them as it had to adopt them. The extent to which rescission
of the resolutions could be considered the breach of a consti-
tutional duty and therefore part of a cumulative violation is
measured by whatever unfulfilled duty to remedy the effects
of segregative acts the Constitution placed upon the Board
as of December 8th.
The reasoning of the Sixth Circuit on this point was mani-
festly correct and in accord with prior decisions of this Court.
See, e.g., Hunter v. Erickson, 393 U.S. 385 (1969); Gomillion
v. Lightfoot, 364 U.S. 339 (1960); cf. San Antonio Independent
School District v. Rodriquez, 411 U.S. 1 (1973). Any other
reading would invite the creation of substantive constitutional
rights by the exercise of ingenuity in the pursuit of parlia-
mentary games.
c. The adverse finding with respect to optional zones,
whether considered separately or as part of a cumulative
violation, did not involve a substantial portion of the
students in the Dayton system.
It is apparent that the finding with respect to optional
zones is the keystone of the cumulative violations which the
Court found to exist. Without this finding neither of the
other two findings — racial imbalance and rescission of resolu-
tions — would have any censtitutional significance. Here at the
core of the case the nature of the violation must be defined.
Numerous optional attendance areas were created in the
Dayton system in the 1950's and early 1960's (see, e.g., R.1.
1905-1917» Vol. 19). The optional areas, which permitted a
student residing in a designated zone to attend one of two
schools, were scattered throughout the system (A. 280) and
were located so as to be equidistant from the two schools that
they served (A. 278). Standards of access, safety, school
capacity, convenience and prior patterns of attendance were
the criteria governing the establishment of optional zones
(R.I. 1878-1879, 1889-1890, Vol. 18).
The plaintiffs’ own chief expert would not argue with these
criteria, would admit that such optional areas were widely used
by most big city school systems during the time period in
question and would concede that such areas are used for
legitimate reasons (A. 279). Indeed, it is self-evident that
no optional zone ever excluded anyone from attending any
school in the Dayton system; such a zone simply provided a
choice between cwo schools for students living within its
boundaries (see A. 280).
The District Court specifically held that “the majority of the
optional zones had no racial significance at the time of their
creation” (A. 8). It went on to hold, however, that four
specific optional zones “may have constituted exceptions to
this general rule” and that two of those four zones — Roosevelt-
Colonel White and Kiser-Colonel White — “have had the most
demonstrable racial effects in the past” (A. 8). In assessing
=
23
the current effect of these,few optional zones and in reasoning
back from effect to cause, the Court was less specific.
As Keyes and Washington have confirmed, the essential
elements of de jure segregation are (1) a current condition
of segregation resulting from (2) intential State action. On
the issue of intent the District Court noted the role played
by considerations of convenience of parents in the creation
of optional zones and found that “at times this last concept
embraced desires motivated by racial considerations” (A. 8).
There was no finding that such motivation was in fact at work
on either the Board or the affected parent level in the four
optional zones found to have had racial significance at the
time of their creation. The Court simply supported its holding
of segregative intent on the thread of generalized considera-
tions of parental convenience.
On the issue of current condition the Court found no racial
effects of the optional zones at the elementary school level —
“none of the elementary school optional zones today have any
significant potential effects in terms of increased racial sepa-
ration” (A. 8). The only elementary school zone (Westwood-
Jackson) listed as having had possible racial significance at
the time of its creation in 1952 remained in effect up to and
including the time of trial even though the two schools af-
fected had been predominantly black for the latter part of
that twenty year period (A. 17, see Def. Ex. AR, supra, at 18).
This leaves three high school optional zones ( Fairview-Roth,
Kiser-Colonel White and Roosevelt-Colonel White, A. 8) as
the constitutionally offensive product of the Court’s attenuated
finding of segregative intent.
The first of these three zones is clearly de minimus. The
Fairview-Roth optional area was created in 1965 at which
time Roth was 53.5 percent black and Fairview was 0.9 per-
cent black (A. 17). There is no evidence that the creation of
this area was in fact motivated by any segregative purpose.
The area was small (A. 280) and its creation had no signifi-
cant racial consequences. In fact, from the time of creation
QA:
of the area until the 1972-73 school year only three students
took advantage of the option, and this exercise of the option
did not occur until six years after the area was created (A. 281).
The second high school zone — the Kiser-Colonel White
optional area — was between predominantly white schools
(A. 282) and had no racial significance at the time of its
creation in 1962 (A. 17). At the start of the 1963-64 school
year, the black composition of Kiser was 2.7 percent and that
of Colonel White was 1.1 percent (A. 17). During the ensuing
ten years, the black composition at Colonel White increased
to 54.6 percent and that of Kiser to 9.8 percent (A. 17). At
no time during this period did the Board attempt to respond
to the changing composition of these schools by altering the
optional zone (cf. R. L. 1302-1303, Vol. 13). Moreover, from
1967 through 1971 only 129 students took advantage of this
option (A. 281).
The last and largest of the optional zones determined by
the Court to constitute a racially ‘significant result of Board
action was the Roosevelt-Colonel White optional area. The
greatest bulk of this area was created in 1951 (A. 17) and the
remainder of the area which constituted a couple of city
squares was added in 1959 (A. 282). The extent to which
parental convenience masking racial considerations played a
role in the creation of this area remains speculative. There
was persuasive evidence that problems of industrial expansion,
access and increased availability of public transportation led to
the establishment of the area (R. I. 1890-1894, Vol. 18).
The initial effect of the area on racial separation is likewise
dubious. In 1951 Roosevelt was 31.5 percent black and
Colonel White had no black students (A. 17). From 1951
until 1957 the percentage of black students at Roosevelt had
only increased from 31.5 percent to a minimum of 35 percent
and a maximum of 40 percent (R. I. 796, Vol. 8). This op-
tional area was not changed at any time since 1957 (A. 282),
‘ and its net effect as years passed and populations shifted
could be characterized as integrative rather than segregative.
Ln ee a at Reena
25
Had the optional area reflected a segregative intent on the
part of the Board to permit some whites to depart from an
increasingly black student body at Roosevelt, it would have
been logical for the Board to have eliminated the option once
blacks moved into the area. The optional zone, however,
remained unaltered, and it ultimately served to enable more
blacks to attend a mixed racial setting at Colonel White (A.
283 ).
This, then, is the nature of the violation found by the Dis-
trict Court. Against the background of racial imbalance gen-
erated by residential patterns in the community, the Dayton
Board created four optional attendance areas that may have
had “potential effects in terms of increased racial separation”
(A. 8). While the establishment of such areas was largely
guided by neutral criteria, the Board’s consideration of con-
venience of parents may have caused it to yield to “desires
motivated by racial considerations” (A. 8). Thus, purpose
or intent to segregate was found to underlie the limited
violations found to exist. Since the Board had a constitutional
duty to remedy those violations, its rescission of resolutions
which inter alia would have’ accomplished that result was to
the extent of that duty a cumulative violation of the Consti-
tution.
2. The Sweeping Remedy Imposed In This Case
Should Be Restructured In Relationship To The
Nature Of The Violation.
Despite the countless man-hours that have been spent in
chasing the will-o’-the-wisp of a system-wide plan that would
satisfy the mandates of the Sixth Circuit, it requires no exer-
cise in abstruse metaphysics to fashion a remedy with a scope
designed to cure the nature of the violations found to exist
in this case. The first step would be to eliminate the offending
optional zones. This has been done. The second and final
step would be to eliminate any effect of increased racial
26
separation the zones may have produced at the three high
schools in question.
In the latest commentary from this Court on the core prin-
ciple that the nature of the violation determines the scope of
the remedy, Mr. Justice Powell has suggested that the appro-
priate test of an equitable remedy is whether the evidence
indwates that the extent of integration sought to be achieved
by the remedy “would have existed had the school authorities
fulfilled their constitutional obligations in the past.” Austin
Independent School District vy. United States, — U.S. —, 45
U.S.L.W. 3413 (U.S. Dec. 6, 1976) (per curiam). This, we
respectfully submit, is a rational test that is in accord with
historic principles of equity.
Application of the Austin test to the present case suggests
that simple elimination of the optional zones would have been
an adequate remedy. Had the zones not been created, housing
patterns in Dayton suggest that by 1972 Roosevelt High School
would have been predominantly black, Kiser High School
predominantly white and Colonel White a relatively balanced
mixture of races. This is in fact what occurred, and it is
extremely doubtful that the pattern was altered or affected
in any meaningful way by the optional zones between those
schools. After all, the optional zones remained substantially
unchanged from the time of their adoption while populations
shifted and the complexion of schools changed.
Even assuming that the existence of the optional zones
had a segregative effect at the schools in question, the require-
ments of an appropriate remedy have been satisfied by actions
that have now been taken with finality. Roosevelt High School
has been closed (A. 145); a new vocational school with a stu-
dent body reflecting the racial composition of the district as
a whole has been created at Kiser (A. 146); Colonel White,
which had a student population approximating that district-
wide ratio, required no alteration. The other aspects of the
various plans that have consumed the energies of the parties
and the courts in this case since February 7, 1972 have un-
27
fortunately been no more than efforts to appease the Sixth
Circuit's “mine field” theory ot desegregation remedi@s. -
The plaintiffs in this case have long since recognized that
the only way to avoid the conclusion that the remedy is dis-
proportionate to the wrong and therefore inequitable would
be to rewrite the original findings of fact. On each of the
three appeals that have been taken from the District Court
they have begged the Sixth Circuit to reconsider the refusal
of the District Court to include other allegedly unconstitu-
tional acts as part of the cumulative violation, but on each
occasion the Appellate Court has refused to do so. The
factual findings, both favorable and unfavorable, are fixed in
this case, and they were supported by ample evidence. The
facts were written before this case was tried; it is not they
but the remedy which must be rewritten.
3. The Remedy Imposed In This Case Erroneously
Elevates The Achievement Of Racial Balance To
The Status Of A Constitutional Right.
The Sixth Circuit’s departure from the remedial principles
established by this Court stems less, we submit, from a readi-
ness to impute to school officials a segregative intent more
pervasive than the evidence justified than from an idealistic
commitment to a concept that there can be no desegregation
without the achievement of some degree of racial balance in
every school. The violation is only significant as an excuse for
a judicial foray into a realm of what can only be called
sociological science fiction. Instead of exercising the tradi-
tional equitable role of constructing specific remedies to rectify
specific violations of a legal or constitutional duty, it has
erroneously assumed the more grandiose role of attempting to
construct whole school systems on a racially utopian scale.
However well intentioned such an effect may be, it exceeds
the bounds of judicial power and competence and produces
results that are punitive rather than remedial.
At the core of the confusion lies a misconstruction of the
term “desegregation”. By equating that term with elimina-
28
tion of racially identifiable schools, the Sixth Circuit continues
to follow the assumption that schools cannot be truly desegre-
gated unless the racial composition of the student body in each
school substantially reflects the racial composition of students
in the system as a whole. This Court, in prior litigation arising
from the Sixth Circuit, has expressly declared such an assump-
tion to be erroneous. Milliken v. Bradley, 418 U.S. 717, 740-
41 (1974).
As a result of its persistence in this fundamental definitional
error the Sixth Circuit has in effect established a new constitu-
tional right that can only be enforced on a system-wide basis.
The implications extend far beyond the Dayton school system.
The plaintiffs’ chief expert acknowledged that by his definition
of segregation in terms of racial imbalance — which is essen-
tially the definition adopted by the Sixth Circuit — there is
only one known school system in the entire United States
which is not segregated (R. I. 1538, Vol. 16). So long as this
kind of confusion remains uncorrected the Sixth Circuit and
other courts will continue to ignore the nature of the violation
while fashioning the scope of the remedy.
It is fascinating to observe the metamorphosis of the District
Court’s approach in this case under the pressure of successive
reversals by the Sixth Circuit. In its initial opinion it care-
fully outlined its specific findings of fact and delineated the
outline of a remedy appropriate to those findings (A. 12).
In reviewing the plans submitted after the first remand it
rejected the plaintiffs’ plan which was designed to assign
students among the Dayton schools in a black/white ratio
approximating the district-wide ratio for such schools with a —
variation of fifteen percent, plus or minus, from the mean
with the comment that, “[t]he obligation does not exist to
create racial balance which is in essence the sole function
of the plaintiffs’ plan” (A. 79).
After the second remand, however, the District Court sur-
rendered its efforts to follow the principles established by
this Court and announced that the sine qua non of any plan
29
would be precisely the racial balance which it had previously
characterized as a non-existent obligation:
“Given the predicate that the limited segregatory activi-
ties found by this Court in its order of February 7, 1973,
brings this matter within the ambit of Swann and Keyes,
the remedy must be obvious. This Court now reaches the
reluctant conclusion that there exists no feasible method
of complying with the mandate of the United States
Court of Appeals for the Sixth Circuit without the trans-
portation of a substantial number of students in the Day-
ton school system. (A. 100).
“... [t]his Court does therefore ORDER that as of Sep-
tember 1, 1976, each*and every school in the Dayton
school district will have a pupil population approaching
the district percentage, but deviating no more than fifteen
percent, plus or minus.” (A. 103).
Two reversals were enough to supplant the precepts of the
Trial Court’ with the Sixth Circuit’s “mine field” theory of
desegregation remedies.
In its reluctant acceptance of the Sixth Circuit’s erroneous
theory the District Court articulated a principle that has been
implicit, although unstated, in the decisions of the Sixth Cir-
cuit:
“... [i]t is a constitutional right enforceable in the federal
courts that students, irrespective of race or residence,
shall share equally all facilities of a school system, both
the superior and the inferior.
“The only feasible method of sharing requires a bal-
ancing in each school between black and white students
in a ratio approximating the system-wide balance.” (A.
102).
The Sixth Circuit attempted to write off this language as a
judicial slip of the pen, but it is not enough to say that, “read
literally the quoted language does appear to create a right
which the federal courts have never recognized.” Brinkman v.
30
Gilligan, 539 F.2d 1084, 1087 (6th Cir. 1976) (A. 122).
Whether the Sixth Circuit has or has not recognized the
“right”, it has certainly attempted to create it by ignoring the
equitable principles involved in the fashioning of desegregation
remedies and requiring the elimination of racially identifiable
schools whenever any constitutional violation, however limited
in effect, has been established.
The constitutional right involved in this case is simply the
right not to be excluded from any school “directly or in-
directly on account of race”. Swann v. Charlotte-Mecklenburg
Board of Education, 402 U.S. 1, 23 (1971). Ever since Brown
I the objective of federal courts in school desegregation cases
has been the elimination of a dual system; that is, racial
segregation arising out of mandatory state statutes or constitu-
tions and racial segregation arising out of intentional state
actions affecting a substantial portion of a school district. Keyes
v. School District No. 1, Denver, Colorado, 413 U.S. 189, 203
(1973). Since the Dayton district has not operated a dual
system, there exists no basis for the judicial decree ordering
the assignment of students on a racial basis. See Swann v.
Charlotte-Mecklenburg Board of Education, supra at 28.
In transforming the constitutional right from a right not
to be excluded from any facility into an affirmative right to
be included in every facility, the Sixth Circuit implicitly and
the District Court explicitly have strayed from these funda-
mental principles. With this Court rests the burden of return-
ing the law in this area to its proper path and restoring the
constitutional right involved to its proper form.
4. The Remedy Imposed In This Case Violates The
Equal Educational Opportunities Act of 1974.
While it is unnecessary to go beyond the basic principles
established by the Constitution and prior decisions of this
Court to resolve the questions presented by this case, it is
important to note that the “mine field” approach used by the
lower courts to impose a system-wide racial balance on the
a
*e.
31
Dayton schools is also in direct conflict with the statutes that
have been enacted in this area. Under the Equal Educational
Opportunities Act of 1974 a court can impose only those
remedies which are essential to correct particular denials of
equal protection of the laws. 20 U.S.C. §1712. The Act
specifically prohibits a court from ordering transportation for
the purposes of racial balance. 20 U.S.C. §§ 1751, 1754.
The Sixth Circuit accepted the respondents’ argument that
the language of section 1702(b) of the Act — to the effect that
the Act was not intended to modify or diminish the authority
of the courts to enforce fully the Fifth and Fourteenth Amend-
ments — was an exception that swallowed up all the rules that
the Act purported to establish. Brinkman v. Gilligan, 518 F.
2d 853, 856 (6th Cir.) (A. 95), cert. denied, 423 U.S. 1000
(1975). The Act, like the nature of the Board’s violations, was
perceived as immaterial to the task of eliminating racially
identifiable schools.
Yet the intent of Congress in enacting Chapter 39 of the
1974 Act was clearly to focus attention on the core principle
that the nature of the violation determines the scope of the
remedy and to establish an obligatory order of remedies or
combinations thereof which would be uniformly followed by
the courts. When — and only when — these remedies are
insufficient to correct a constitutional violation, the language
of section 1702(b) comes into play. This construction is
not only logically sound; it is also constitutionally sound —
logical in the sense that a legislative provision is given a
meaning that does not completely vitiate the remaining pro-
visions in the enactment and constitutional in the sense that
such a construction does not raise any constitutional issue.
The Act cannot be cavalierly disregarded as waste paper.
It does serve to provide the judiciary with material assistance
in answering remedial questions in state-imposed segregation
cases. See Swann y. Charlotte-Mecklenburg Board of Educa-
tion, 402 U.S. 1, 17-18 (1971). Except where — but for the
exception contained in section 1702(b) — it would conflict
with constitutional requirements it is the law of the land.
32
It is apparent that the sweeping remedy imposed in this case
was not constitutionally mandated. As a racial balance plan
requiring transportation for purposes other than the elimination
of constitutional violations, it is contrary to and violative of the
congressional prohibitions contained in the Equal Educational
Opportunities Act of 1974.
B. IN A SCHOOL DESEGREGATION CASE THE
IMPOSITION OF A DECREE WHICH RE-
QUIRES A FIXED RACIAL BALANCE FOR
EACH AND EVERY SCHOOL IN THE SYSTEM
IS INVALID.
While the Sixth Circuit attempted to soft-pedal the District
Court’s plus or minus fifteen percent mathematical formula
as a “flexible starting point,” such is simply not the case. The
same formula was rejected in Michigan because of its ad-
herence to fixed racial ratios. Bradley v. Milliken, 411 F. Supp.
943 (E.D.Mich. 1975), modified, 540 F.2d 229 (6th Cir. 1976).
The District Court’s exclusion of junior and senior classes
from the plan is applicable only for the current classes and
will have no effect or flexibility in future school years. The
permitted deviations from the proposal of the Master like-
wise do not demonstrate flexibility since any permissible modi-
fication cannot deviate from the plus or minus fifteen percent
requirement (A. 112, 115).
The racial balance formula in this case was in fact clamped
onto the school district with adamantine bonds. That con-
clusion is demonstrated not only in the actual achievement
of the objective but by the following actions, statements and
rulings of the District Court.
(a) The Master’s rejection of the Court’s guidelines
for maximum time and distance on transportation of stu-
dents was approved (R. III. 313, see A. 162).
(b) Any deviations from the racial percentage on a
school-by-school basis for geographic reasons was barred.
33
(The projected elementary assignments fall within plus
or minus seven percent of the black-white ratio of the
entire district and, excepting present juniors and seniors,
the high school assignments fall within the required
racial percentage. )
(c) The plan transmitted by the Board was considered
solely in the context of racially balancing the district as
a whole (A. 101).
(d) A “constitutional right” of students to share equal-
ly all facilities of a school system, enforceable by a bal-
ancing of students in each school, was established and
granted (A. 102).
(e) <A desegregated school was defined as one which
has a black-white mix that reflects, within plus or minus
fifteen percent, the district ratio (A. 103, 109).
(f) It was unequivocally ordered that as of Septem-
ber 1, 1976 each school in the Dayton system must have
a pupil population that deviates no more than plus or
minus fifteen percent from the racial ratio of the district
(A. 103).
(g) The Master’s elementary pairing plan which as-
signs students on the basis of the racial balance require-
ment was adopted (A. 110), and the Board’s suggestion
of a phase-in for eight schools was rejected (A. 111, R.
III 378, 439-41).
(h) The Master's rejection of the assignment guide-
lines contained in the court order of December 29, 1975
was accepted.
(i) Only schools which are properly racially balanced
were held acceptable for purposes of a desegregation rem-
edy (A. 103, 105-106).
(j) The plus or minus racial balance recjuirement set
forth in the December 29, 1975 order was reaffirmed as
an essential component of any plan in the order of March
23, 1976 (A. 111).
34
If racial balance is the “starting point” of the Court's plan,
it is also the “ending point”.
The fundamental defects in the plan imposed in this case
render its future difficult to conceive or chart. The articu-
lation of the plan in terms of a fixed racial formula suggests
that the ratio imposed by the Court is a permanent ratio
so that adjustments of student assignments would be re-
quired each year as long as the system exists to maintain the
ratio in each school. Before the Dayton plan reached the
Sixth Circuit, however, this Court expressly declared that
a requirement of such annual adjustments is beyond the
authority of a court of equity. Once a court has corrected
perceived constitutional violations on the part of a defendant
school board, its role is concluded even though subsequent
changes in the racial mix in the schools might be caused by
factors for which the defendant could not be considered re-
sponsible, Pasadena City Board of Education y. Spangler, —
U.S. —, 49 L.Ed.2d 599, 608 (1976).
The Sixth Circuit dodged the implications of the Pasadena
decision by stating that the District Court's plan “directs no
changes after the 1976-77 school year.” Brinkman v. Gilligan,
539 F.2d 1084, 1087 (6th Cir. 1976) (A. 123). Yet the
problem of perpetuities remains inherent in any system-wide
racial balance remedy, and another school year is fast ap-
proaching. If the base line of the plan is a plus or minus
fifteen percent racial balance in each school, how can the
base line be maintained without annual adjustments of stu-
dent assignments? It requires no crystal ball to predict
that population shifts will continue to occur as they have oc-
curred in the past, and it can be anticipated that with the
passage of time both schools in at least some of the pairings
will become predominantly black or predominantly white.
Should the Dayton Board annually adjust the whole network
of pairings to maintain the racial balance ratios? Pasadena
says, “No.” Should it continue to drain its financial resources in
order to bus black children from one predominantly black
school to another or white children from one predominantly
os)
black school to another? Common sense says, “No.” Should it
dismantle pairings as their significance in terms of racial bal-
ance becdines frustrated by population shifts? If so, the plan
will be perceived as a failure.
The posting of these unanswerable questions is demon-
stration of the confusion that results when courts leave their
traditional role of shaping particular remedies to particular
wrongs and attempt to reshape society itself by judicial de-
cree. In defining “desegregated” as synonymous with “ra-
cially balanced” and thereby requiring a particular degree
of racial mixing as an essential component of desegrega-
tion, the District Court and the Sixth Circuit have mandated
a fixed racial balance formula not as a simple starting point,
but as an inflexible test for determining school desegregation.
This approach is contrary to Swann and is not required by the
United States Constitution. Carr v. Montgomery County Board
of Education, 377 F.Supp. 1123, 1133 (M.D. Ala. 1974), aff'd,
511 F.2d 1374 (5th Cir.), cert. denied, 423 U.S. 986 (1975).
C. THE CONSTITUTION CANNOT BE DEEMED
TO MANDATE A DESEGREGATION REMEDY
THAT WILL RESULT IN RESEGREGATION
OF STUDENTS SERVED BY THE SCHOOL
SYSTEM.
The first test of the propriety of a desegregation remedy lies
in the relationship it bears to the nature of the constitutional
violations found to exist. The second test is whether it is
guided by a purpose to desegregate rather than misguided by
some constitutionally irrelevant purpose such as securing of
racial balance. The third and final test is whether the reme-
dy can be perceived as satisfying a pragmatic standard of
effectiveness. The plan dictated and approved by the Sixth
Circuit in this case fails the third test as well as the first and
second tests.
36
The holdings in Swann require a “balancing of the indi
vidual and collective interests” and the taking of necessary steps
to convert the school system to a “unitary system’. Siwann
v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15-
16 (1971). The promise that a plan will work must be
“realistically” made. Green v. County School Board, 391 U.S.
430 (1968). The judicial effort should be an effort to achieve
the greatest degree of actual desegregation “taking into ac-
count the practicalities of the situation.” Davis v. Board of
Commissioners of Mobile County, 402 U.S. 33, 37 (1971). Thus
the final test of a plan is not whether it satisfies some abstract
philosophical model, but whether all of the factors relevant
to its actual success or failure have been pragmatically weighed
and balaifted. Is the plan reasonably calculated to satisfy the
end desired?
The evidence presented at the hearings establishes that as a
result of the demographic situation existing in the Dayton
district any effort to achieve racial balance in each school in
the system requires pairing and clustering of schools (A. 298-
299) with concomitant busing of approximately fifteen thousand
students. In his search for a racial balance remedy the
District Judge accordingly adopted these devices despite un-
equivocal testimony from the respondents’ own expert witness
that they have not worked in the past and eventually result
in a poor city with a poor school system (A, 291-294). In-
junctive relief in such cases cannot extend to parents of
school children, and for a variety of reasons a forced busing
plan can be expected to drive whites and upper middle
class blacks out of the system, leaving behind a low economic,
predominantly black student population.
The recent history of other school districts undergoing de-
segregation accomplished by massive transportation plans con-
firms the gloomy prediction of the respondents’ expert in this
case. See, e.g., Calhoun v. Cook, 522 F.2d 717 (5th Cir. 1975).
The issue presented is not a rhetorical issue of pro and con
arguments regarding “forced busing”, nor is it a sociological
issue of refusal of the majority to recognize rights of the
Pe heed
od
minority. The issue, simply stated, is “Will the desegregation
plan work?” Tf the remedy causes such a burden on the edu-
cational process that any students who can afford to do so
will leave the system, the remedy is obviously a failure. The
record establishes that during the five years this case has been
in the courts 11,000 white and 900 black students have left
the Dayton system (A. 301).
Certainly a remedy which defeats the goal of providing an
equal educational opportunity for minority students and which
will lead to resegregation of the city’s schools is not consti-
tutionally mandated. Indeed, an ironic and sad situation is
presented when in the name of the Constitution, the rights
and the opportunities which the Constitution was designed to
protect are destroyed. The action of a federal court in imposing
a plan that would inevitably lead to resegregation of the school
system is no less a segregative practice than those unconstitu-
tional practices which initially required federal intervention.
D. A COURT IS WITHOUT POWER TO IMPOSE
A DECREE IN A SCHOOL DESEGREGATION
CASE WHERE THE COMPLAINANTS HAVE
FAILED TO ESTABLISH THAT ANY INJURY
TO THEM HAS OCCURRED OR THAT THE
ACTION IS MAINTAINABLE AS A CLASS
ACTION.
The complaint in this case alleged that the individual ad-
verse respondents were children or parents of children attend-
ing schools in the Dayton system and that the parent adverse
respondents were bringing the action on their own behalf,
on behalf of their minor children and on behalf of other
children similarly situated. The N.A.A.C.P. joined in the action
on behalf of its members who were allegedly members of the
class. The allegations of capacity and class representation were
denied in the answer filed by the Dayton Board.
The adverse respondents were again alerted by the pretrial
order to the fact that questions of standing and capacity were
a0
5
challenged. At the close of the respondents’ case, the Day-
ton Board again raised the issue of whether they were mem-
bers of the class they purportedly represented and whether
this action was properly maintainable as a class action. (A.
124). The respondents made no response to the Board’s mo-
tion and made no request to present evidence on these funda-
mental issues. The District Court completely ignored the
issues.
On appeal the Dayton Board renewed its contention that
the Court could not proceed to a disposition of the re-
spondents’ claims in the face of a total absence of any evi-
dence to support a finding that the action was _ properly
maintainable as a class action. The only indication that the
Sixth Circuit reached this issue is its statement that “all
contentions of the parties contrary to the conclusions reached
in this opinion have been carefully considered and are found
to be without merit.” Brinkman v. Gilligan, 503 F.2d 684, 704
(6th Cir. 1974) (A. 69).
No explanation of just why this contention of the Dayton
Board is without merit has yet been suggested by any court
in five years of litigation. While desegregation cases raise
significant social issues, the significance of the issues should
not change basic procedural concepts and burden the federal
courts with the responsibility of rendering far-reaching de-
cisions at the request of curious bystanders.
1. The Record Is Void Of Any Evidence That Any
Of The Adverse Respondents Sustained Any Injury
Or Was Deprived Of Any Constitutional Right.
In the absence of proof that they were injured or deprived
of some constitutional right the adverse respondents cannot
prevail in this equity action. Village of Arlington Heights v.
Metropolitan Housing Development Corporation, — U.S. —,
50 L.Ed.2d 450, 462 (1977); O'Shea v. Littleton, 414 US.
488, 493-94 (1974): McCabe v. A.T. & S.F. Railway Co.,
235 U.S. 151, 162 (1914). Although the District Court
6) mere
ee
39
predicated jurisdiction under the Equal Protection Clause
of the Fourteenth Amendment and under 42 U.S.C., sec-
tions 1981 and 1983 and 28 U.S.C., section 1343, juris.
diction does not exist in the abstract. Courts deal with par-
ticular rights of particular people, and the adverse respondents
cannot prevail on the merits in the absence of proof of a vio-
lation of their rights under these provisions. Cf. Bell v. Hood,
327 U.S. 678 (1946). Comb the record for such proof. No
scintilla exists.
A school desegregation case is no different from any other
case in this respect. It was encumbent upon the adverse re-
spondents to establish that one of them, or at least some
member of the N.A.A.C.P., was excluded from a school in
the Dayton system on account of race. Swann v. Charlotte-
Mecklenburg Board of Education, 402 U.S. 1, 23 (1971). None
of the adverse respondents ever testified at the trial of this
action, and none of the evidentiary exhibits established that
any one of them was ever excluded from attending any school
in the Dayton system. In addition to their failure to es-
tablish the minimal requirement of injury or deprivation of a
constitutional right, the adverse respondents failed to establish
that any one of them was a school child or a parent of a school
child or that any of them ever attended or sought to attend
school in the Dayton system.
If the District Court had jurisdiction to proceed to a de-
termination of this case, the same anonymous collection of
respondents have standing to file a similar law suit against
every school board in the United States.
2. The Record Is Void Of Any Evidence That Any Of
The Adverse Respondents Was A Member Of The
Class They Purportedly Represented And There
Was No Determination That This Action Was
Maintainable As A Class Action.
The propriety of this action as a class action under Rule
23 of the Federal Rules of Civil Procedure is dependent
40
on proof from the individual adverse respondents that they
are members of the class they purportedly represent. Bailey
v. Patterson, 369 U.S. 31 (1962). It is further dependent
upon certification by the District Court that the suit is main-
tainable as a class action. Pasadena City Board of Education
v. Spangler, — U.S. —, 49 L.d.2d 599, 605 (1976). Neither
of these requirements was met.
Were any of the adverse respondents members of the class
that was allegedly, directly or indirectly, excluded trom some
school or schools in the Dayton system? Did any of them
or any of their children ever attend any of the high schools
found to be racially affected by optional zones? Did any of
them or any of their children ever attend any Dayton school?
Do any of them even live within the geographic boundaries
of the Dayton school system? Are there any members of the
N.A.A.C.P. who are also members of the class it purports to
represent in this case? The answers to these questions will
emerge from the lips of the inscrutable sphinx as readily as
they will be found in the silent record of this case. The
lack of such proof bars the maintenance of this law suit as a
class action. Davis v. Schultz, 453 F.2d 497 (3d Cir. 1971):
Kauffman v. Dreyfus Fund, Inc., 434 2d 727 (3rd Cir. 1970),
cert. denied, 401 U.S. 974 (1971).
Not only was there a failure to establish that any of the
adverse respondents was a member of the class they purported-
ly represented, there was a failure on the part of the District
Court to determine that this action was or was not maintain-
able as a class action. That failure, in and of itself, defeats the
adverse respondents’ desire to pursue this litigation as a class
action.
POR. a at
41
VILL. CONCLUSION
The history of this case reveals a District Judge drawn by
the magnetism of a significant social issue to disregard essen-
tial procedural requirements in order to address the sub-
stantive questions presented. In the first phase of the litigation
he did an able job of finding the facts and attempting to
apply the pertinent case law to those facts. Under pressure
from successive reversals by the Sixth Circuit and with an
evident sense of frustration, however, he ultimately imposed
a sweeping remedy that bore no relationship whatsoever to
what he referred to as “the limited segregatory activities found
by this Court.” (A. 100).
In doing so he violated the fundamental principle of fash-
ioning appropriate remedies in desegregation cases. ‘To borrow
Mr. Justice Powell's succinct phrase, “A remedy simply is
not equitable if it is disproportionate to the wrong.” Austin
Independent School District v. United States, — U.S. —, 45
U.S.L.W. 5413 (U.S. Dec. 6, 1976) (per curiam). Ile com-
pounded the error by succumbing to the definitional contusion
that has marred the eflorts of the Sixth Circuit in desegre-
gation cases. Once “desegregation” is defined in terms of
elimination of racially identifiable schools instead of elimination
of exclusions from schools on the basis of race, the path of
crror is easily traveled to the conclusion that the constitutional
right to be free from state-imposed segregation is a constitu-
tional right to share equally in all state facilities. The “ob-
vious’ way to enforce this right to share is to recast every
school system in the United States in a judicial mold of
racial balance.
Thus we arrive at a plan that bears no relationship either
to perceived constitutional violations or to anything that would
have been produced by the natural, unregulated actions of
human beings. It fails the equitable tests of propriety and
purpose. It also fails the test of pragmatic effectiveness. If,
as the evidence suggests, the inexorable ultimate effect of the
plan will be resegregation as a result of shifting population
>
42
groups, the goal of equal educational opportunities which the
Constitution should serve has been subverted. The plan im-
posed in this case is not a product of constitutional mandate;
it is a product of judicial confusion.
What relief should issue from this Court? Should the ac-
tion simply be remanded with instructions that the lower
courts impose a realistic plan that remedies only the limited
constitutional violations that have been found to exist? We
respectfully submit that those violations have been deter-
mined and confirmed through successive appeals. They have
been extirpated root and branch from the Dayton system.
No optional zones exist; Roosevelt High School has been
closed; a systemwide vocational school with a racially bal-
anced student composition has been created at Kiser; no
trace of the practices that were held to offend the Consti-
tution can be found in the’ school system. Even had there
been a basis established in the evidence for the District
Court’s assumption of jurisdiction in the first instance, there is
no basis for the continuance of that jurisdiction at this stage.
The case against the Dayton Board of Education should be
dismissed with instructions that the Board should consider
itself free to retain or reject those features of the plans im-
posed upon it that were not related to the limited violations
found to have existed.
Respectfully submitted,
DAVID C. GREER
LEO F. KREBS
BIESER, GREER & LANDIS
of Counsel
8 North Main Street
Dayton, Ohio 45402
Counsel for Petitioners.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.