Amicus Brief — Dayton Board of Education v. Brinkman

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| B IN THE APR § 1977

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: Dayton Boarp or Epucation, et al.,

Petitioners,

—Y.—

Mark Brinkman, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION,

AMICUS CURIAE

Rosert ALLEN SEDLER

Wayne State University

Law School

Detroit, Michigan 48202

Jor. M. Gora

FE. Ricuarp Larson

American Civil Liberties Union

22 East 40th Street

New York, New York 10016

Attorneys for Amicus Curiae

RECORD PRESS. INC, 95 MORTON ST., NEW YORK, N. Y. 10014—(212) 243-5775 ial

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i

TABLE OF CONTENTS

Page

Satie of Amtheeeithes®§ acccccecvceceesse 45

Interest of Amicus sevee ee cue totes

GUPGARE OF ARGU ccccccccccseces 9

ARGUMENT

I. SINCE THE DAYTON SCHOOL BOARD

WAS FOUND TO HAVE PRACTICED INTEN-

TIONAL SEGREGATION WITH RESPECT TO

A MEANINGFUL PORTION OF THE SCHOOL.

SYSTEM, AND DID NOT REBUT THE PRE-

SUMPTION THAT THE ONE-RACE CHARACTER

OF 47 OUT OF ITS 68 SCHOOLS WAS

LIKEWISE THE RESULT OF INTENTIONALLY

SEGREGATIVE ACTIONS, THE INTENT TO

SEGREGATE IS DEEMED TO EXIST SYSTEM-

WIDE, AND SYSTEM-WIDE RELIEF IS

MANDATED. ........ Cccccccccccccces e.9

II. THE DESEGREGATION PLAN ADOPTED

BY THE DISTRICT COURT AND APPROVED

BY THE SIXTH CIRCUIT IS FULLY CON-

SISTENT WITH, AND IN THE CIRCUM-

STANCES OF THIS CASE MANDATED BY,

THE APPLICABLE DECISIONS OF THIS

COURT. ecccccecce Corccccccccccccces 14

CONCLUSION ...ccccccccee eccccccecs oe Af

ii

Table of Authorities

Casteneda v. Partida, - P

45 U.S.L.W. 4302 (March 23, 1977).... 8

Cooper v. Aaron, 358 U.S. 1 (1958).... 16

Davis v. School Commissioners of

Mobile County, 402 U.S. 33 (1971)......

3, 8, 14

Green v. County School Board of

New Kent County, 391 U.S. 430

(1968) cecccccees TEETTTILILILiTtTT » 15

Keyes v. School District No. l,

Denver, 521 F.2d 465 (10th Cir.

1975), cert. denied, 423 U.S.

LOGG (1976) coccccccsecececcscccese - 16

Keyes v. School District No. l,

Denver, Colorado, 413 U.S. 189

(A97S) cvcccee 2, 34 Fo OB, 30,.44, 22, 13

Pasadena City Board of Education

v. Spangler, 427 U.S. 424

(1976) coccccsecce coeccccoccces 4, 16-17

Swann v. Charlotte-Mecklenburg

Board of Education, 402 U.S.

L (ESTA) cocccccceccesse eecces 9, 14, 15

United States v. Scotland Neck Board

of Education, 407 U.S. 484

Di .. ¢iticue vanes neeencasue soa Ss

iii

Village of Arlington Heights v.

Metropolitan Development Corp.,

U.S. , 45 U.S.L.W. 4073

(Jame Ll, L977) coccccccsievecesecs

Washington v. Davis, 426 U.S. 229

(1976) ccccecscecece ensecesesecece

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No. 76-539

DAYTON BOARD OF EDUCATION, et al.,

Petitioners,

Vv.

MARK BRINKMAN, et al.,

Respondents.

On Writ of Certiorari to The

United States Court of Appeals

for the Sixth Circuit

BRIEF OF THE

AMERICAN CIVIL LIBERTIES UNION,

AMICUS CURIAE

+

Interest of Amicus

The American Civil Liberties Union

is a nationwide, non-partisan organization

of over 250,000 members dedicated solely

* Letters of consent to the filing of

this brief fron counsel to the parties

will be lodged with the Clerk of the

Court.

Re

to defending the guarantees of the Bill of

Rights. Central among those guarantees is

the right of all persons to equal treat-

ment under the law. No component of that

right is more precious than the opportunity

of black children to receive an education

in school systems that are not intention-

ally segregated. Because of our concern

with such issues, the ACLU has represented

plaintiffs in school desegregation litiga-

tion throughout the country, seeking to

make the promise of racial equality in

education a reality across the nation.

The arguments raised by the school

board in this case, if accepted, would

severely undermine those efforts and would

effectively limit the requirements estab-

lished by this Court in Keyes v. School

District No. l, Denver, Colorado, 413 U.S.

189 (1973). We are filing this brief in

order to suggest why the Court should

reject those arguments, and should re-

affirm the principles set forth in Keyes.

3.

SUMMARY OF ARGUMENT

I.

The courts below properly held that

the plaintiffs had made out a case of de

jure segregation within the Dayton school

system, entitling them to system-wide

relief. Keyes v. School District No. l,

Denver, Colorado, 413 U.S. 189 (1973).

Once a proper finding of intent to segre-

gate was made, the burden shifted to the

school authorities to show that those

schools which were racially identifiable

did not have that character as a result

of intentionally segregative actions, and

the school authorities did not satisfy

that burden. Instead, the school author-

ities are seeking, in effect, to have this

Court overrule Keyes and hold that in a

district where segregation is not required

by state law, the intent to segregate test

of de jure segregation no longer applies.

That argument should be rejected, and the

principles of Keyes re-affirmed.

Il.

The remedial plan adopted and

approved below is a sound one, does not

involve "racial balance," and insures

the "greatest possible degree of actual

desegregation, taking into account the

practicalities of the situation." Davis

v. School Commissioners of Mobile County,

4.

402 U.S. 33, 37 (1971). Fears of future

“resegregation” or “white flight" cannot

undermine the present obligation of the

school authorities to achieve desegrega-

tion of the Dayton schools. United States

v. Scotland Neck Board of Education, 407

U.S. 484 (1971); Pasadena City Board of

Education v. Spangler, 427 U.S. 424 (1976).

5.

ARGUMENT

I

SINCE THE DAYTON SCHOOL BOARD WAS

FOUND TO HAVE PRACTICED INTENTIONAL

SEGREGATION WITH RESPECT TO A MEAN-

INGFUL PORTION OF THE SCHOOL SYSTEM,

AND DID NOT REBUT THE PRESUMPTION

THAT THE ONE-RACE CHARACTER OF 47

OUT OF ITS 68 SCHOOLS WAS LIKEWISE

THE RESULT OF INTENTIONALLY SEGRE-

GATIVE ACTIONS, THE INTENT TO

SEGREGATE IS DEEMED TO EXIST SYSTEM-

WIDE, AND SYSTEM-WIDE RELIEF IS

MANDATED.

The Dayton School Board argues that

since the District Court's finding of

intent to segregate was premised only on

the discriminatory establishment of

optional attendance zones, the District

Court could only require the remedying of

the segregation that was shown to have

resulted from this action and could not

order system-wide desegregation. (Brief

for Petitioner, pp. 25-30). The District

Court also found, however, that the school

board was operating an inordinate number

(47 out of 68) of “racially imbalanced,"

Or more accurately, racially identifiable

schools, and premised its finding of the

existence of de jure segregation on both

6.

of these factors. i/ In addition to the

District Court's findings, the record

below also contains evidence of the main-

tenance of a dual school system in Dayton,

both before and after Brown, in violation

of Ohio law, see the discussion in Brink-

man v. Gilligan, 503 F.2d 684, 688-690

(6th Cir. 1974), and of the school board's

segregative practices with respect to

staff assignment, site selection and

school construction. Id. at 697-703.

Although the Sixth Circuit noted that the

plaintiffs had "raised serious questions

with respect to whether the District

Judge's failure to include these four

school practices within the constitutional

violation was supported by substantial

1/ Although the District Court and the

Sixth Circuit, when the case was first

before it, did not use the phrase, "de

jure," the Sixth Circuit specifically

noted subsequently that the finding of the

District Court was that, "the Dayton

school system has been and is guilty of de

jure segregation practices." Brinkman v.

Gilligan, 518 F.2d 853, 854 (6th Cir.

1975). The District Court also found that

the school board was guilty of de jure.

segregation when it rescinded prior resol-

utions that were designed to eliminate

segregation, but the Sixth Circuit found

it unnecessary to consider this point.

Brinkman v. Gilligan, 503 F.2d 684, 697

(6th Cir. 1974).

7.

evidence," it quite correctly concluded

that it was unnecessary for it to pass on

that question, Id. at 703, since it found

that the District Court's conclusion -

based on the discriminatory use of the

optional attendance zones and the large

number of racially identifiable schools -

that the board was guilty of practicing

de jure segregation was "amply supported

by the evidence." Id. at 693.

The holding of the Sixth Circuit

that the plaintiffs had made out a case of

de jure segregation, entitling them to

system-wide relief, was mandated by this

Court's decision in Keyes v. School Dis-

trict No. 1, Denver, Colo,, 413 U.S. 189

(1973). In Keyes this Court held that in

a school district where segregation had

not been required by state law, the exis-

tence of de jure segregation could be

established only by a showing of intent

to segregate: "We emphasize that the

differentiating factor between de jure

segregation and so-called de facto segre-

gation...is purpose or intent to segregate.’

Id. at 208 (emphasis in original). See

also the discussion in Washington v. Davis,

426 U.S. 229, 240 (1976). In Keyes it was

also argued, as it is in the present case,

that the plaintiffs had to show the exis-

tence of system-wide intent to segregate

in order to be entitled to system-wide

relief. This Court specifically rejected

that contention, noting that, "We have

never suggested that plaintiffs in school

desegregation cases must bear the burden

8.

of proving the elements of de jure segre-

gation as to each and every school or each

and every student within the school system."

Id. at 200. What the plaintiffs are re-

quired to prove in a case challenging

school segregation, as in any other case

challenging racial discrimination, see

Washington v. Davis, supra, Village of

Arlington Heights v. Metropolitan Develop-

ment Corp., U.S. __, 45 U.S.L.W. 4073

(Jan. 11, 1977), Casteneda v. Partida,

U.S. __, 45 U.S.L.W. 4302 (March 23, 1977),

is simply the existence of intent to dis-

criminaté.

The substantive constitutional right

of black children is the right not to be

compelled by state action to attend a

segregated school system. See the discus-

sion in Keyes, supra, at 225 (opinion of

Powell, G.). since this is so, where a

school system is found guilty of practic-

ing de jure segregation, whether in

conformity to the requirements of state

law or by a showing of intent to segregate,

the school system must be desegregated by

a plan that achieves the "greatest possible

degree of actual desegregation, taking into

account the practicalities of the situa-

tion." Davis v. School Commissioners of

Mobile County, 402 U.S. 33, 37 (1971).

In school districts where segregation

was formerly required by law, and where

“vestiges of state-imposed segregation"

remain, system-wide relief is required,

and no effort is made to “sort out" the

9.

segregation that can be directly traced to

state laws requiring segregated schools

and that which might be traced to other

causes. Swann v. Charlotte-Mecklenburg

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

A system-wide remedy may also be

imposed upon school districts which have

become segregated not by state law but by

intentionally discriminatory practices.

Under Keyes, proof of "intentionally seg-

regative school board actions in a mean-

ingful portion of the school system

creates a presumption that other segregated

schooling within the system is not adven-

titious." 413 U.S. at 208. The school

board can overcome this “presumption" by

"proving that the other segregated schools

within the system are not also the result

of intentionally segregative actions."

Id. Only when this presumption is rebutted,

however, may the desegregation decree be

limited to those schools shown to have been

intentionally segregated.

In the present case, once the finding

of intent to segregate was made, the burden

shifted to Dayton to show how many of the

47 racially identifiable schools did not

have that character as a "result of inten-

tionally segregative actions." Id. Dayton,

however, made no effort whatsoever to

satisfy its burden. Although the District

Court specifically delayed its supplemental

order on remedy, pending this Court's deci-

sion in Keyes, the school board never moved

the District Court to allow it to introduce

10.

proof showing that the schools other than

those that were segregated as a result of

its discriminatory use of optional zones

were not also “the result of intentionally

segregative actions." Id. Quite probably,

the school board did not do so because it

knew that it could not show that "segrega-

tive intent was not among the factors that

motivated its actions." Id. at 210.

Instead of attempting to discharge the

burden clearly placed upon it by Keyes,

the school board has insisted throughout

this litigation thet the plaintiffs had

the burden of establishing not only segre-

gatory intent generally, but also segrega-

tory intent with respect to the drawing of

attendance zones, site selection, school

construction and the like, that produced

a condition of segregation in specific

schools on a system-wide basis, in order

to be entitled to system-wide relief.

As it turns out, the District Court

correctly forecast this Court's decision

in Keyes, and specifically referred to

Keyes in ordering what it considered to

be adequate system-wide relief. It must

be emphasized that the District Court

found not only intent to segregate with

respect to the use of optional attendance

zones - “intentionally segregative school

board actions in a meaningful portion of

the school system"2/(1d. at 208) - but

2/ At the time of the litigation, there wre

seven optional elementary zones and four

(footnote continued on the next page)

ll.

also found a high degree of racial isola-

tion and a large number of racially

identifiable schools. 503 F.2d at 693-

695. Under Keyes, the burden shifted to

the school board to show that the racially

identifiable character of these schools

was not also "the result of intentionally

segregative actions," 413 U.S. at 208, but

the school board did not even try to sus-

tain that burden. When the case came

before the Sixth Circuit, the only question

that it had to decide was whether the

District Court's findings relating to seg-

regative intent were "clearly erroneous, "

and it held that they were not. 503 F.2d

at 693. Although the plaintiffs buttressed

the District Court's findings of segrega-

tory intent by showing the cmtinuing effects

of the prior maintenance of a dual system

and by showing segregative staff assign-

ment, site selection and school construc-

tion, these matters were unnecessary in

light of Keyes, and the Sixth Circuit quite

properly refused to consider this question.

Id. at 703. Since the District Court found

segregatory intent in the use Of optional

attendance zones, it was compelled to reach

the conclusion, as it did, that the Dayton

optional high school Zones, in a system

that had only 68 total schools and 11 high

schools. The high school optional zones

contributed most significantly to increased

racial segregation. 503 F.2d at 694-696.

12.

school board was guilty of practicing de

jure segregation. Since the school board

did not attempt to show that the racially

identifiable character of its 47 one-race

schools was not the result of “intention-

ally segregative actions," 413 U.S. at 208,

there could be no question but that system-

wide relief was mandated, as the Sixth

Circuit ordered. And since the school

board did not seek certiorari to this Court

from the Sixth Circuit's decision, the

finding of system-wide de jure segregation

is now the “law of the case."

The school board is now, in effect,

asking this Court to overrule Keyes and to

hold that in a school district where seg-

regation is not required by state law,3/

the intent to segregate test of de jure

segregation no longer applies, and that

black children do not have a constitutional

right to attend school in a system that is

not segregated. That position must be

rejected. The Keyes principles relating

to the burden of proof as to system-wide

intent to segregate are as sound today as

when this Court described them a scant

four years ago. As this Court stated in

3/ This is giving Dayton the benefit of

the doubt, since it was operating a dual

system, in violation of Ohio law, both

before and after Brown. See the discus-

sion, 503 F.2d at 688-690.

Keyes:

we

a

"Where school authorities have

been found to have practiced

purposeful segregation in part

of a school system, they may be

expected to oppose system-wide

desegregation, as did the res-

pondents in this case, on the

ground that their purposefully

segregative actions were isolated

and individual events, thus

leaving the plaintiffs with the

burden of proving otherwise.

But at that point where an

intentionally segregative policy

is practiced in a meaningful or

significant segment of a school

system, as in this case, the

school authorities cannot be

heard to argue that plaintiffs

have proved only ‘isolated and

individual’ unlawfully segregated

actions. In that circumstance,

it is both fair and reasonable to

require that the school authori-

ties bear the burden of showing

that their actions as to other

segregated schools within the

system were not also motivated

by segregative intent.”

413 U.S. at 209.

The District Court and the Sixth Circuit

correctly applied the standards of proof

for system-wide de iure segregation estab-

lished by this Court in Keyes, and if

Keyes

their

is fully to be honored and enforced,

decision should be. affirmed.

14.

II |

THE DESEGREGATION PLAN ADOPTED BY THE

DISTRICT COURT AND APPROVED BY THE

SIXTH CIRCUIT IS FULLY CONSISTENT

WITH, AND IN THE CIRCUMSTANCES OF

THIS CASE MANDATED BY, THE APPLICABLE

DECISIONS OF THIS COURT.

The essential objection of the Dayton

school board to the desegregation plan

adopted by the District Court, approved by

the Sixth Circuit, and implemented peace-

ably this past fall, is that it achieves

"too much" desegregation by not allowing the

board to continue to operate any of its

previously 47 one-race schools as one-race

schools. The school board confuses -

seemingly deliberately - “racial balance"

with the elimination of one-race schools

so as to achieve the "greatest possible

degree of actual desegregation, taking

into account the practicalities of the

situation." Davis v. School Commissioners

of Mobile County, 402 U.S. 33, 37 (1971).

"Racial balance," as this Court stated in

Swann, means that “every school must always

reflect the racial composition of the

school system as a whole." 402 U.S. at 24.

If the desegregation plan for Dayton had

required "racial balance," this would mean

that every school would be required to be

52% white and 48% black, which clearly is

not so.

Rather, the desegregation plan

adopted for Dayton follows Davis by

15.

attempting to achieve the “greatest

Possible degree of actual desegregation,

taking into account the practicalities of

the situation,” 402 U.S. at 37, and follows

the directive of this Court in Swann man-

dating the elimination of one-race schools.

402 U.S. at 26. The plan employes a flex-

ible minimum-maximum ratio of between 33%

and 63% black, designed to insure that no

School shall have so many blacks in rela-

tion to the system-wide black population

So as to be perceived of as a racially

identifiable black school or so few blacks

So as to be perceived of as a racially

identifiable white school.

The school board argues that the

Sixth Circuit has “erroneously equated

Gesegregation with the elimination of any

predominantly white or predominantly black

Schools." (Pet. Cert., p. 16). But it is

precisely the elimination of predominantly

white and predominantly black schools that

Swann mandates, and the essential objec-

tive of a desegregation plan must be to

establish a school system in which there

are no “black schools” or “white schools,”

but just schools, attended by children of

both races. Green v. County School Board

of New Kent County, 391 U.S. 430, 432

(1968). Moreover, as the Sixth Circuit

emphasized, there are no practical obsta-

cles to the elimination of all one-race

schools in Dayton by the use of cross-

busing (App. Pet. Cert., p. 12la), and

this being so, “the greatest possible

degree of actual desegregation, taking

16.

into account the practicalities of the

situation,” 402 U.S. at 37, requires that

the one-race schools be eliminated.

Dayton simply has no right to retain any

one-race schools, and the District Court,

like all of the other courts that have

adopted plans involving the use of flex-

ible minimum-maximum racial ratios, see

e.g., Keyes v. School District No. 1,

Denver, 521 F.2d 465 (10th Cir. 1975),

cert. denied, 423 U.S. 1066 (1976), was

acting not only within its discretion, but

in compliance with the desegregation

standards contained in the applicable

decisions of this Court.

Finally, Dayton argues that "forced

transportation" will produce "white flight”

and ultimately lead to "“resegregation of

the school system." (Brief for Petition-

ers, pp. 35-37). One would have thought

that the “white flight" argument would

have been laid to rest by this Court's

reminder that the fear of “white flight”

cannot be accepted as a reason “for

achieving anything less than the complete

uprooting of the dual school system,"

United States v. Scotland Neck Board of

Education, 407 U.S. 484, 491 (1972); see

also, Cooper v. Aaron, 358 U.S. 1l, 16

(1958). The duty of the school board is

to achieve a unitary system now, and if

“white flight" results subsequently, and

alters the racial composition of the

schools under the desegregation plan, this

is something over which the school board

and the courts have no cmtrol. Pasadena

17.

City Board of Education v. Spangler, 427

U.S. 424 (1976). So long as there are

black children am white children living

in Dayton, they are entitled to attend

school in a desegregated school system.

A present condition of segregation cannot

be tolerated on the ground that it is

necessary to prevent segregation in the

future. It is the present condition of

segregation that offends the Constitution,

and it is that condition that must be

eliminated.

CONCLUS ION

For the foregoing reasons, the

judgment of the Court of Appeals should

be affirmed.

Respectfully submitted,

ROBERT ALLEN SEDLER

Wayne State University

Law School

Detroit, Michigan 48202

JOEL M. GORA

E. RICHARD LARSON

American Civil Liberties

Union

22 East 40th Street

New York, New York 10016

Attorneys for Amicus

April, 1977 Curiae