Petition — School District of Omaha v. United States

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Supreme Court, u. S. |

PIiIiLi OD

NOV I 1976

JR., CLERK

In The 4

Supreme Court of the Huited States

October Term, 1976

—t6- 705

ty.

THE SCHOOL DISTRICT OF OMAHA,

STATE OF NEBRASKA, et al.,

Petitioners,

vs.

UNITED STATES OF AMERICA,

and

NELLIE MAE WEBB, et al.,

Respondents.

ra’

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Kenneta B. Hotm

GeraLp P. LAuGHLIN

Micuae. G. LessMAnN

Davip M. PEDERSEN

Barrp, Hotm, McEKacuen, Pepersen,

Hamann & Haaoart

1500 Woodmen Tower

(Omaha, Nebraska 68102

(402) 344-0500

Attorneys for Petitioners

COCKLE PRINTING CO., 1622 St. MARY'S AVE., OMAHA

INDEX

Pages

Opinions Below ..0.........cnccccn-.ney 2

ira aes OE ovE RON ran He 2

FS cermin ie

Constitutional and Statutory Provisions 000200... 3

re Cr ne a eneninmaeeaiila 4

SS 5 ee

Reasons for Granting the Writ 202m 12

I. The Legal Standard Regarding Purpose to

TR ELLE Sieh PI ASS a La Ee 13

A. The standard employed by the Court of Ap-

peals is in clear conflict with Keyes v. School

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

Washington v. Davis, 96 S. Ct. 2040 (1976)... 13

B. There is a conflict in the Courts of Appeals

on the proper standard for ascertaining seg-

ID TI xoccksihecnseeessitebiatinsieessideenitniieialitaninninan 20

II. The Legal Standard Regarding the Scope of the

A. The Court of Appeals’ unwarranted require-

ment of system-wide integration conflicts with

this Court’s remedy decisions since it failed

to make the findings of fact necessary for the

imposition Of such a PEMA Y. ce ccc 24

INDEX—Continued

: Pages

1. The Court of Appeals’ view of the School

District’s remedial obligation: an affirma-

tive duty to integrate. 0 ditceeiibion 26

2. This Court’s remedial requirement: a ra-

cially neutral student assignment system... 26

NN oe ee ere 34

Appendix of Constitutional and Statutory Provisions

Involved (Attached Appemadix) 2. nc ccecccecseneenmneeeee A-1

Appendix of Court Opinions ................ (In Separate Volume)

CITATIONS

Cases:

Armstrong v. Brennan, 539 F.2d 625 (7th Cir.

ED einiteienais eee eee eee Dele, a +}

Berkelman v. San Francisco Unified School Dis-

trict, 501 F.2d 1264 (9th Cir. 1974) 0 cee 20

Bronson v. Board of Education, 525 F.2d 344

I woven 22

Brorvn v. Board of Education, 349 U.S. 294 (1955) ..26, 27

Diaz v. The San Jose Unified School District, 412

F. Supp. 310 (N. D. Cal. 1976) is 23

Falk v. Brennan, 414 U.S. 190 (1973) 2 2

Furman v. Georgia, 408 U.S. 238 (1972) 00000 0. = BB

Green v. School Board of New Kent County, 391

{| Fe aeaesiren annem. =F

iii

CITATIONS—Continued

Cases-—Continued:

Johnson v. San Francisco Unified School District,

Fe FF EL RF) 20

Hart v. The Community School Board of Educa-

tion, New York School District No. 21, 512 F. 2d

37 (2nd Cir. 1975) 22

Higgins v. Board of Education of City of Grand

Rapids, 508 F.2d 779 (6th Cir. 1974) .. 20, 23

Keyes v. School District No. 1, 413 U.S. 189

SE 6, 7, 9, 13, 14, 20, 21, 23, 27

Mercer v. Theriot, 377 U.S. 152 (1964) eee 2

Milliken v. Bradley, 418 U.S. 717 (1974) 00 e 31

Morgan v. Kerrigan, 509 F. 2d 580 (1st Cir. 1974) ..16, 21

Oliver v. Michigan State Board of Education, 508

SSI Te ec 22

Palmer v. Thompson, 403 U.S. 217 (1971) 18

Pasadena City Board of Education v. Spangler, 96

S. Ct. 2697 (1976) shcctloacbbiiliaiieabdadtiasieadiatecbadetditteainnicteats 27

Soria v. Oxnard School District Board of

Trustees, 488 F.2d 579 (9th Cir. 1973) . 20, 21

Swann v. Charlotte-Mecklenburg Board of Educa-

I, i eines alerinienreasll 27, 31, 32

United States v. Texas Education Agency, 532

F’. 2d 380 (5th Cir. 1976), petition for cert. filed,

45 U.S. L. W. 3145 (U.S. August 24, 1976)

I a ioiamnenientil 17, 23

eC“

In The

Pages Supreme Court of the Huited States

October Term, 1976

CITA TLONS—Continued

Cases—Continued:

Wade v. Mississippi Cooperative Extension Serv-

ice, 372 F. Supp. 126 (N. D. Miss. 1974) 220. 18 0

Washington v. Davis, 96 S. Ct. 2040 (1976) 6, 13, 18, No.

20, 21, 23 -0—

Wright v. Council of the City of Emporia, 407 THE SCHOOL DISTRICT OF OMAHA,

Ul. BH GR (TTR) essere 18 STATE OF NEBRASKA, et al.,

Petiti ,

United States Constitution: a oneal

Fourteenth Amendment to the United States Con- | UNITED STATES OF AMERICA,

stitution, Section Vcc 3, 4, 16, 17, 27, 31, 32, A-1 | and

| NELLIE MAE WEBB, et al.,

Statutes: | Respondents.

, Bim Gee) Fp) em eee: 2 | °

43 U.3.C. Geatiom BID cccnncisecccieee assnmntdy Sy A-2 | PETITION FOR A WRIT OF CERTIORARI

42 U.S.C. Section 2000-6 .cucnnnsnnnnn 3,4, A-1 | win ae

Miscellaneous: °

Cox, The Role of the Sepeeme Geust tn ana The Petitioners, the School District of Omaha, Owen

A. Knutzen, Superintendent of Schools, and the members

Government (1976). ................ naveaemsasiocscttinsiaitibiiaia aan 12 ; ae

' maw of the Board of Education of the School District of

Glazer, Affirmative Discrimination : Ethnic In- | Omaha, respectfully pray that a writ of certiorari issue

equality and Public Policy (1975) eee 12 | to review the judgments and the opinions of the United

Goodman, De Facto School Segregation, 60 Calif. States Court of Appeals for the Eighth Cireuit entered

FS A Ey | ee SME 25 in this proceeding on June 12, 1975, and August 24, 1976.

Graglia, Disaster By Decree: The Supreme Court

Decisions on Race and the Schools (1976) 200000000... 12, 25 o-

Rule 24 (b) (2), Federal Rules of Civil Procedure ...... 4

Rule 52 (a), Federal Rules of Civil Procedure ........... sai 8

OPINIONS BELOW

The August 24, 1976, opinion of the Court of Appeals

is reported at 541 F. 2d 708 (8th Cir. 1976) and appears in

the separate Appendix hereto at pages 172 to 175. The

District Court opinion on the motion for new trial on the

plan, not yet reported, appears in the separate Appendix at

pages 165 to 169. The District Court opinion approving the

plan for desegregation is reported at 418 F. Supp. 22 (D.

Neb. 1976) and appears in the separate Appendix at pages

139 to 145. The opinion of the Court of Appeals on the issue

of liability is reported at 521 F. 2d 530 (Sth Cir. 1975) and

appears in the separate Appendix at pages 100 to 133.

The opinion on liability issued by the District Court is

reported at 389 F. Supp. 293 (D. Neb. 1974) and appears

in the separate Appendix at pages 41 to 98. The opinion

on the motion to intervene issued by the District Court

is reported at 367 F’. Supp. 198 (D. Neb. 1973) and appears

in the separate Appendix at pages 34 to 40. The District

Court’s opinion on the motion for a preliminary injunc-

tion is reported at 367 F.Supp. 179 (D. Neb. 1973) and

appears in the separate Appendix at pages 1 to 33.

ra’

a ~/

JURISDICTION

The final judgment of the Court of Appeals for the

Eighth Circuit was entered on August 24, 1976, and this

petition for certiorari was filed within 90 days of that

date. This Court’s jurisdiction is invoked under 28

U.S.C. §¢ 1254 (1). Review of the interloeutory judgment

of June 12, 1975, is sought under the authority of Mercer

v. Theriot, 377 U.S. 152, 153-54 (1964), and Falk v. Bren-

nan, 414 U.S. 190, 194, n. 7 (1973).

QUESTIONS PRESENTED

1. Do school districts with racially imbalanced neigh-

borhoods violate the Fourteenth Amendment merely by

adopting or maintaining policies which in fact have as one

of their effects some racial separation or imbalance in the

schools?

2. Does mere proof that school district actions had a

foreseeably segregative effect compel a finding of segrega-

tive intent? <

3. Does a federal court have the remedial authority

to fully integrate racially imbalanced schools without find-

ing the extent of the racial imbalance in fact caused by pur-

posefully discriminatory school district policies and with-

out finding the extent to which the effects of such purpose-

ful discrimination would be eliminated by prohibiting the

policies?

CONSTITUTIONAL AND STATUTORY PROVISIONS

The following constitutional and statutory provisions

involved in the resolution of this matter are set forth in the

Appendix attached to this Petition: (1) The Fourteenth

Amendment to the United States Constitution, Section 1;

(2) 42 U.S.C. Seetion 2000c-6; (3) 42 U.S.C. Section

1983.

STATEMENT OF THE CASE

I. The Background.

This suit was instituted on August 10, 1973, in the

District Court for the District of Nebraska by the United

States of America under 42 U.S.C. Section 2000c-6 (a).

The United States contended that the School District of

Omaha, its superintendent, and the members of its Board

of Education (hereinafter collectively referred to as the

“School District’) engaged in racial discrimination in the

operation of the Omaha Publie School System in violation

of Title IV of the Civil Rights Act of 1964 and the Four-

teenth Amendment to the Constitution of the United States.

Several black students and their parents were allowed to

intervene pursuant to Rule 24 (b) (2) of the Federal Rules

of Civil Procedure. They asserted a similar claim for de-

privation of their right to equal protection of the laws un-

der 42 U.S.C. Section 1983 and the Fourteenth Amend-

ment to the United States Constitution. (The United

States and intervenors are hereinafter collectively referred

to as the “Plaintiffs”.)

For the 1973-74 school year the School District of

Omaha had a total enrollment of 60,502 students. The

boundaries of the School District are not coterminous with

those of the City of Omaha. Substantial portions of the

city are within School District No. 66 and the Millard

School Distriet, both of whose enrollments are almost to-

tally white. Segregation of the races within the boundaries

of the School District of Omaha or the City of Omaha has

never been mandated hy any statute or by any local regu-

lation, policy or ordinance. The basic method of student

assignment is, and always has been, the neighborhood

school policy.

There has been a rapid expansion of the black popula-

tion of Omaha. In 1950 the black population was 16,311

(6.5% of the total population) and in 1970 it was 34,431

(9.9% of the total population). During each of the years

from 1950 to 1970 the black birth rate substantially ex-

ceeded the white birth rate. From 1950 to 1973 the total

black enrollment in the School District of Omaha grew

from 2,862 to 11,962, an increase of 318% and the black

percentage of the total enrollment increased from 10% to

20%.

The black population is concentrated primarily in one

geographic area of the city, and this concentration is re-

flected in the racial enrollments of the neighborhood schools

serving that area. Despite this concentration, for the 1973-

74 school year, 40.6% of the black students attended ma-

jority white schools and 85.9% of all schools had some

black enrollment.

Ii. The History of the Case.

This case is before this Court for a second time. A

writ of certiorari was sought following the interlocutory

reversal by the Eighth Cireuit Court of Appeals of the

District Court on the question of liability. No. 75-270.

The Court of Appeals has now entered a final order on li-

ability and remedy. This Petition seeks review of the

Court of Appeals’ judgment on both phases of this case.

The liability phase of this litigation focused on certain

aspects of the School District’s neighborhood school policy

and on whether the racial imbalance present in the school

system was intentionally caused or maintained by the

School District. Following the pattern of other school de-

segregation cases, the Plaintiffs alleged intentional racial

discrimination in: (1) the hiring of faculty; (2) the place-

ment of portable classrooms within the District; (3) the

alteration of school attendance boundaries; (4) the assign-

ment of black faculty; (5) the adoption of an open transfer

policy for students; (6) the adoption of certain feeder pat-

terns for junior high schools; (7) the construction of

schools; and (8) the condition of one particular school,

Technical High School.

After a two-and-one-half week trial, the District Court

issued an opinion dismissing the action and holding, based

on all of the evidence before it from the trial and from the

hearing on the United States’ motion for a preliminary in-

junction, that:

“ .. this record simply does not justify the finding

and determination that the school authorities in ques-

tion intentionally discriminated against minority stu-

dents by practicing a deliberate policy of racial segre-

gation.” (App. p. 97).

The District Court arrived at its conclusion by apply-

ing the standard which this Court enunciated in Keyes v.

School District No. 1, 413 U. S. 189 (1973), and subse-

quently reaffirmed in Washington v. Davis, 96 S. Ct. 2040

(1976). First, the District Court held that the burden of

proof was on the Plaintiffs to show that an intentionally

segregative policy was practiced in a meaningful or signifi-

cant portion of the school system. Second, it recognized that

once the Plaintiffs had borne their burden of proof on pur-

pose to segregate with respect to a meaningful portion of

the school system, the burden of proof shifted to the School

District to show that its actions as to any other segregated

schools within the school system were not motivated by pur-

pose or intent to segregate. Third, it recognized that intent

or purpose to segregate must in most cases be inferred from

the objective actions of the school authorities. Fourth, it

held that the natural and foreseeable consequences of the

School District’s actions were neither determinative nor

immaterial, but rather constituted an additional factor to

be weighed in evaluating its overall intent (App. pp. 43-44).

On appeal, the Court of Appeals for the Eighth Cir-

cuit reversed the District Court. While ostensibly agree-

ing with this Court in Keyes and with the District Court

that school desegregation may not be ordered by a federal

court unless there is a finding that segregation was brought

about or maintained by intentional state action, the Court

of Appeals held that the District Court erred as a matter

of law in its placement of the burden of proof on this issue.

The Court of Appeals held that the plaintiff in a school

desegregation case need only prove that racial imbalance

exists in the schools and was the natural, probable, and

foreseeable consequence of school district action or inac-

tion. The plaintiff need not prove purpose or intent to

segregate by the defendant in a meaningful portion of the

school district. Mere proof of racial separation effects

creates a presumption of purpose to segregate and shifts

the burden of proof to the school authorities to establish

that segregative intent was not among the factors that mo-

tivated their actions regarding any of the racial imbalance

in the schools (App. pp. 107-108).

The Court of Appeals held that, as to five of the

policy areas challenged at trial, the foreseeable conse-

quence of School District actions and inactions was to

create or maintain racially imbalanced schools and there-

fore the School District was presumed to have taken those

actions and inactions with a racially discriminatory pur-

pose. The Court of Appeals concluded that the School

District had failed to rebut the presumption by carrying

its burden of establishing that segregative intent was not

among the factors motivating its actions.

The five areas where the Court of Appeals found

racial separation attributable to actions of the School

District were: (1) the assignment of black faculty to

already black schools; (2) the open transfer policy initi-

ated upon the recommendation of the Mayor’s bi-racial

committee; (3) feeder patterns for Horace Mann Junior

High School and for Technical Junior High School, which

had closed a year before this litigation commenced; (4)

neighborhood school construction; and (5) the condition

of Technical High School.

The Court of Appeals applied its standard to School

District policies in each of these areas and based upon

that standard, and that standard alone, found a violation

of the Fourteenth Amendment. The Court of Appeals

did not review the District Court’s findings under Rule

52 (a) of the Federal Rules of Civil Procedure. Thus, it

did not hold that the District Court’s findings were

‘‘clearly erroneous” under the legal standard employed

by the District Court.

The propriety of the Court of Appeals’ reversal of

the District Court must be determined by the propriety

of its legal standard. And that legal! standard is clearly

improper. The significance of the Court of Appeals’ pre-

sumption, and the feature which distinguishes it from the

law of Keyes is that it removes proof of discriminatory

purpose from the plaintiff’s prima facie case with respect

to a meaningful portion of the school district and instead

places the burden of proving that there was not intent to

segregate as to any school on the defendant school district.

In addition to reversing the District Court on liability,

the Court of Appeals also ordered full integration of the

entire School District of Omaha no later than the begin-

ning of the 1976-77 school year according to certain racial

balance remedy guidelines which the Court of Appeals

developed sua sponte and which it thereafter modified

sua sponte. As modified, these racial balance guidelines

required that no school have a black enrollment exceeding

50% of the total enrollment, that no schoo] with a black

enrollment lower than 25% of the total enrollment be per-

mitted to have a black enrollment exceeding 25%, and

that the burdens of achieving this integration be borne

equally by blacks and whites in all areas of the School

District of Omaha. Such guidelines in fact called for a

system-wide alteration of assignment policies and required

the bussing of substantial numbers of students. Only the

mechanical details of the plan were left to the School Dis-

trict and the District Court to work out.

The major contours and scope of the remedy were

thus determined by the Court of Appeals even though the

remedy was not in issue in tle trial court, had not been

raised as an issue on appeal, and was not addressed by

any of the parties either by brief or oral argument before

the Court of Appeals. Moreover, these remedial deter-

minations were made without any inquiry into the precise

extent of the racial separation caused by the policies the

Court of Appeals found violative of the Fourteenth

Amendment and without any inquiry into the extent to

which the effects of these policies would continue after

the policies were eliminated.

Following the Court of Appeals’ decision, the School

District filed a petition for rehearing en bane with that

court both on the liability question and on the propriety

of issuing remedy guidelines at that stage of the litigation.

The School District’s petition for rehearing was denied

and no hearing was held.

Thereafter, the School District filed a petition for a

writ of certiorari with this Court, No. 75-270, seeking a

reversal of the Court of Appeals’ decision. That petition

presented two questions to this Court. First, whether the

Court of Appeals had utilized an improper standard for

determining purpose or intent to segregate. Second,

whether the guidelines of the Court of Appeals were im-

properly issued at that stage of the litigation without any

opportunity for the parties to submit evidence or argu-

ment on the appropriate remedy. The propriety of the

guidelines themselves was not raised since such remedial

questions before this Court were premature. This Court

denied the School District’s petition. 423 U.S. 946 (1975).

Following the denial of its petition for a writ of cer-

tiorari, the School District prepared a plan for desegre-

gating its schools according to the dictates of the racial

percentage guidelines established by the Court of Appeals.

That plan, with certain modifications suggested by the

Plaintiff United States of America, was adopted by the

District Court (App. pp. 139-65). In submitting this plan

the School District reserved its objections to the racial

percentage guidelines imposed by the Court of Appeals.

Those objections were formally presented to the District

Court by a motion for a new trial filed after the District

Court’s memorandum opinion of April 27, 1976. The

District Court denied the School District’s motion for a

new trial in this respect, taking the position that the

propriety of the Court of Appeals’ guidelines was beyond

the scope of the District Court’s review (App. p. 169).

The Plaintiff-Intervenors and the Schoo] District both

appealed the District Court’s order approving the plan.

The School District raised before the Court of Appeals the

issue of the propriety of the remedy guidelines. The Court

of Appeals, en banc, heard argument on both appeals on

August 17, 1976. One week later, on August 24, 1976, the

Court of Appeals entered a per curiam opinion affirming

the District Court’s plan (App. pp. 172-75). The plan (App.

pp. 147-65) requiring the reassignment of over 10,000

students went into effect on September 7, 1976.

REASONS FOR GRANTING THE WRIT

The issues raised herein are basic to restoring fair-

ness and reason to the methods by which federal courts

evaluate evidence on claimed discriminatory purpose and on

appropriate remedies in school desegregation cases. The

unique rules applied by most lower federal courts to school

desegregation cases, which lead inevitably to system-wide

racial balance decrees, are particularly damaging to the

public’s confidence in the judicial process. Such cases

directly affect the lives of large numbers of citizens who

bear the burdens of remedies for claimed wrongs for

which they are not personally responsible and often arise

only from presumed violations by elected officials.

The trial of a school desegregation case is usually fo-

cused upon the issue of whether the school authorities have

acted with a discriminatory design. These cases usually

take weeks or even months for the presentation of evi-

dence. Because findings of liability are indirectly man-

dated by legal standards which conceal the true reason for

decision and which would never be applied in other con-

texts, the public, and a growing number of legal scholars,'

perceive such trials as only a necessary formality with a

predetermined result. In this area, the federal courts are

seen as engaging in social legislation, without the sanction

of popular election, and as using methods unprecedented

in our constitutional history.’

1. L. Graglia, Disaster By Decree: The Supreme Court Decisions

on Race and the Schools (1976); N. Glazer, Affirmative Dis-

crimination: Ethnic Inequality and Public Policy (1975).

2. Archibald Cox, The Role of the Supreme Court in American

Government 77-90 (1976).

These methods have indirectly transformed the consti-

tutional prohibition against racially discriminatory state

action into an affirmative constitutional duty to integrate

the Nation’s schools. This has occurred because this Court

has not clearly insisted that fact-finding in these cases,

both with respect to the presence of purpose to segregate

and the absence of alternatives to system-wide integration,

be fairly and thoroughly undertaken. The lower federal

courts have strained the meaning of this Court’s opin-

ions regarding each of these factual determinations and

in so doing have loaded the ‘‘game board’’ against de-

fendants by the use of explicit presumptions regarding

intent and implicit presumptions regarding the extent and

persistence of racial separation in fact caused by school

district policies.

The time has come for this Court to restore

fairness to school desegregation litigation and to re-

store the federal courts to their proper role in our sys-

tem of government. This case presents the opportunity

for this because it is a singular example of the circum-

vention of the intent requirement at the violation stage

and the presumptive imposition of an extensive remedy

beering no relationship to the actual wrong in the remedy

stage.

The Legal Standard Regarding Purpose to Segregate

A. The standard employed by the Court of

Appeals is in clear conflict with Keyes v. School

District No. 1, 413 U. 8. 189 (1973), and Wash-

ington v. Davis, 96 8. Ct. 2040 (1976).

The first question presented by this case is whether

this Court will insist that the lower courts apply its re-

quirement that purpose or intent to segregate is an essen-

tial element of an Equal Protection Clause violation.

In Keyes this Court held that ‘‘purpose or intent to

segregate” was the critical factor distinguishing unlawful

segregation in this Nation’s public schools from racial

imbalance in the schools not prohibited by the Fourteenth

Amendment. In Keyes this Court maintained the burden

of proof on this issue on the plaintiff until the plaintiff

demonstrated such a purpose behind actions of school au-

thorities producing racial separation in a meaningful por-

tion of the school district. Then, and only then, did this

Court shift the burden of proof to the defendants to show

that any racial separation in other portions of the school

district was not the result of their intentionally segrega-

tive actions.

In contrast, the Court of Appeals adopted the follow-

ing standard:

‘*. .. a presumption of segregative intent arises once

it is established that school authorities have engaged

in acts or omissions, the natural, probable, and fore-

seeable consequence of which is to bring about or

maintain segregation. When that presumption arises,

the burden shifts to the defendants to establish that

‘segregative intent was not among the factors that

motivated their actions.’’’ (App. pp. 107-108).

In so holding the Court of Appeals explicitly relieved the

plaintiff in a school desegregation case of any burden of

proof for any portion of the school district with respect

to purpose or intent to segregate. It placed the entire

burden of proof on this issue as to all racial separation

in the school district on the school authorities by requir-

ing them to show that not one of their motives was to

cause racial separation. Therefore, the Court of Appeals

implicitly eliminated purpose or intent to segregate as an

essential clement of an Equal Protection Clause violation

by placing an impossible burden of explanation on school

authorities. This unjustifiable shift in the burden of proof

is a prime example of the lower federal courts’ use of

unfair procedural rules which mandate substantive results.

It is patent that this presumption is fundamentally

unfair.

First, by its very terms the standard places on the de-

fendant the burden of proving a negative proposition.

That is, the defendant must show that not one of its in-

tentions was to cause or maintain segregation. Proof of

a negative proposition—especially one regarding inten-

tions—is notoriously and obviously difficult.

Second, in strict logic such a standard sets up an ir-

rebuttable presumption. The standard is based on the

assumption, as the Eighth Circuit explicitly noted, that the

nature of the “state action” takes its quality from its fore-

seeable effect (App. p. 108). The purpose of an action is

defined in terms of its foreseeable effect. The presump-

tion applies only in those circumstances where one of the

foreseeable effects of defendant’s actions was to cause

racial separation. Once such a foreseeable effect is shown,

the standard ostensibly permits the defendant to rebut the

inference of segregative intent by « monstrating that not

one of its motives for action was such an intent. Since

the standard defines intent from the effect of one’s actions

and since the plaintiff has already proven that one of the

effects of defendant’s actions was to cause racial separa-

tion, by definition the court must find that one of the de-

fendant’s motives was segregatory. Thus, the defendant

will not be able to rebut the presumption since it cannot

show that intent to cause racial separation was not at least

one of its motives for action. Therefore, logically, the

presumption employed by the Eighth Circuit is irrebut-

table.

Third, even if the strict logic of the standard is not

followed in practice, it does place on the defendant, as one

court of appeals, Morgan v. Kerrigan, 509 F. 2d 580, 594,

n.21 (1st Cir. 1974), has recognized, at least the burden

of showing that with respect to the questioned actions it

acted with integrative intent. Thereby it places an obliga-

tion on school authorities to integrate their school systems,

which duty this Court does not require unless purposeful

segregation is already independently demonstrated.

Such a shift in the burden of proof is especially harsh

for school districts utilizing a neighborhood school assign-

ment policy in cities where there is residential racial im-

halanee, as is the case in Omaha. The presumption is

readily invoked since it is apparent that the school dis-

trict intentionally adopted a neighborhood school assign-

ment policy and maintains it with conscions knowledge that

such a policy produces racially imbalanced schools. Thus,

all the plaintiff need show is that the school district em-

ploys a neighborhood school assignment policy and has resi-

dentially racially imbalanced neighborhoods. This show-

ing alone makes out a prima facie case, which, given the

diffieulty of overcoming the presumption, amounts to a

demonstration that the neighborhood school policy itself

violates the Fourteenth Amendment. This implication of

the standard is no fanciful dream. The Fifth Cireuit in

United States v. Texas Education Agency, 532 F.2d

380 (5th Cir. 1976), petition for cert. filed, 45 U. S.

L. W. 3145 (U. S. August 24, 1976) (No. 76-200), held pre-

cisely this. Moreover, the Eighth Circuit in this case util-

ized an identical analysis in finding that the School Dis-

trict’s policy with respect to school construction violated

the Fourteenth Amendment. Racial imbalance effects man-

dated a finding of purposeful segregation.

Finally, the Court of Appeals’ standard for proof

of purpose to segregate logically implies a new substan-

tive standard for violations of the Fourteenth Amend-

ment. The Court of Appeals ostensibly developed its

standard as a procedural rule for determining the

presence of an essential element of a violation of the

Fourteenth Amendment: purpose or intent to segregate.

Its standard finds such purpose in actions or inactions

whose foreseeable effects are racial separation or im-

balance. It is clear, as a matter of fact, that school dis-

tricts have the power to assign students so that racial im-

balanee would not exist. Thus, any racial imbalance pres-

ent in a school system is the foreseeable consequence of

inaction by school authorities. For this reason, the Court

of Appeals’ standard mandates a finding of purpose to

segregate from the mere presence of any racial imbalance

in a school system unless school authorities demonstrate

at least that they acted with integrative intent with re-

spect to this racial imbalance. Therefore, school authori-

ties must either show that there is no racial imbalance in

the schools or that they are attempting to eliminate what

racial imbalance remains. In either case, the Court of

Appeals’ standard imposes an obligation on the school

authorities to completely integrate their school system

if they wish to avoid a finding that they are purposefully

segregating.

Thus, a procedural rule for determining an es-

sential element of a constitutional] violation effectively

requires a new constitutional rule contradictory to the

constitutional rule it purports to interpret. A rule pre-

sented as only procedural has changed the substantive

law without any discussion by the Court of Appeals on

the merits of such a change and while the Court of Ap-

peals was giving the appearance that the substantive law

had in fact remained unchanged. If racially imbalanced

schools violate the Constitution per se, this Court should

so state, but if they do not, then this Court should not

permit the lower courts by indirection to find that they do.

Any doubt concerning the clear error of the Court of

Appeals’ standard was eliminated in Washington v. Davis,

96 S. Ct. 2040 (1976). Therein this Court, onee again

stressing the necessity of proof of discriminatory racial

purpose in making out an equal protection violation, spe-

cifically disapproved lower court interpretations of Palmer

v. Thompson, 403 U.S. 217 (1971), and Wright v. Coun-

cul of the City of Emporia, 407 U. S. 451 (1972), which

held that the operative effect of official action rather than

its purpose was the paramount factor for the Fourteenth

Amendment. Not only did the Court of Appeals explicitly

rely on the disapproved interpretation of each of these

cases in devising its standard (App. pp. 108-109), but also

this Court in Washington v. Davis specifically disapproved

a standard almost identical to that of the Court of Ap-

peals. This Court cited Wade v. Mississippi Cooperative

Extension Service, 372 F. Supp. 126, 143 (N. D. Miss. 1974),

as an example of lower court error in eliminating the

necessity of proof of discriminatory purpose. 96 S. Ct. at

2050 n. 12. On the very page cited by this Court, that

district court used a standard almost identical to the

Court of Appeals here.

Therefore, this case presents an opportunity for this

Court to resolve a recurring substantial problem in school

desegregation litigation: is proof of purpose to segregate

necessary, and if so, what is the appropriate standard for

determining it? The Court of Appeals is clearly in error.

This error has had a substantial detrimental effect on the

lives, liberty, and property of the citizens and school

children of the School District of Omaha. This fact alone

demands action by this Court.

More significantly, however, this error is not the

Eighth Cireuit’s alone, as the following section of this

Petition demonstrates. The Eighth Circuit and the other

circuits which have taken a similar position have con-

structed a body of law which has determined in advance

the outcome of school desegregation litigation for urban

school districts with ethnically or racially imbalanced

neighborhoods. It is time for this Court to restore fair-

ness to school desegregation litigation by insisting that

the lower courts, as did the District Court here, follow

this Court’s standards for determining purpose or intent

to segregate. Therefore, this Court should grant the Peti-

tion for a Writ of Certiorari, reverse the Eighth Circuit,

and remand this case to it with an order to affirm the

District Court.

B. There is a Conflict in the Courts of Ap-

peals on the Proper Standard for Ascertaining

Segregative Intent.

Since Keyes, one of the main concerns of ‘‘northern

and western’’ school desegregation litigation has been the

question of what sort of proof, if any, is necessary to es-

tablish an intention or purpose to segregate and how the

burden of proof on this issue is to be allocated. Seven

Cireuit Courts of Appeals have considered these questions

and have come to varying conclusions.

The Ninth Circuit,’ the Seventh Circuit,‘ and one pan-

el of the Sixth Circuit’ have employed a standard similar

to that adopted by this Court in Washington v. Davis and

by the District Court in this case. These courts require

the plaintiff, unaided by any presumption in the first in-

stance, to prove racially discriminatory motivation for

school authorities’ actions causing racial separation in a

meaningful portion of the school district before a court

may find a constitutional violation. The Sixth Circuit in

Higgins explicitly recognized that segregative intent may

be inferred from the foreseeable consequences of a school

district’s actions,® but held mere proof that school district

3. Berkelman v. San Francisco Unified School District, 501 F.

2d 1264 (9th Cir. 1974); Johnson v. San Francisco Unified

School District, 500 F. 2d 349 (9th Cir. 1974); and Soria v. Ox-

nard School District Board of Trustees, 488 F. 2d 579 (9th

Cir. 1973).

4. Armstrong v. Brennan, 539 F’. 2d 625 (7th Cir. 1976).

5. Higgins v. Board of Education of City of Grand Rapids, 508

F. 2d 779 (6th Cir. 1974).

6. Id., at 793.

actions had a foreseeably segregative effect was not suf-

ficient to compel a finding of segregative intent.’ The

Ninth Circuit emphasized the role of the trial court in

determining segregative intent because the credibility of

school officials’ testimony is crucial on this question.*. The

Ninth Circuit, like the District Court here, held that segre-

gative effects are not determinative on the question of

intent. The Seventh Circuit explicitly recognized this

Court’s rule in Washington v. Davis and that purpose

may, but need not, be inferred from the totality of rele-

vant facts, which may include discriminatory impact.’

The First Circuit, although less clearly than the Ninth

Circuit, also appears to have approved a standard similar

to that applied by the District Court in this case because

it recognized that the Keyes burden-shifting presumption

did not apply until the district court had made independ-

ent findings of intentional segregation in a significant

portion of the school district.'’° That Cireuit further found

that the district court correctly inferred segregative intent

because it relied upon the permissible inference of intent

from consciously consummated acts and because that in-

ferred intent was consistent with the expressed motiva-

tion."

On the other hand, the Second Cireuit has done ex-

plicitly what the Eighth Circuit has done here implicitly,

7. Id., at 787-88, 793.

8. Soria v. Oxnard School District Board of Trustees, 488 F. 2d

at 588.

9. Armstrong v. Brennan, 539 F. 2d at 634.

10. Morgan v. Kerrigan, 509 F. 2d 580, 594 (Ist Cir. 1974).

ll. Id., at 592.

by holding that proof of lack of segregative intent is ir-

relevant once it is established that school district actions

and omissions have the natural and foreseeable conse-

quence of causing educational segregation.”

The Fifth Circuit, in its most recent consideration of

this issue, has taken a position similar to the Second Cir-

cuit... Therein it held that proof of purpose or intent to

segregate is conclusively established by the utilization of

a neighborhood school assignment policy in racially or

ethnically imbalanced neighborhoods."

Another panel of the Sixth Circuit'’ has taken a posi-

tion similar to that adopted by the Eighth Circuit here.

The standards are identical in requiring a shift in the

burden of proof to the school district upon a showing of

racially segregative effects. This panel of the Sixth Cir-

cuit does not, however, explicitly place upon the school

district the burden of proving a negative proposition.

Rather, it requires that the defendants ‘‘affirmatively

establish that their action or inaction was a consistent and

resolute application of racially neutral policies’’.'® In its

most recent decision discussing the issue,'’ the Sixth Cir-

cuit has taken the position that proof of purpose or intent

12. Hart v. The Community School Board of Education, New York

School District No. 21, 512 F. 2d 37, 51 (2nd Cir. 1975).

13. United States v. Texas Education Agency, 532 F. 2d 380 (5th

Cir. 1976).

14. Id., at 392.

15. Oliver v. Michigan State Board of Education. 308 F. 2d 178

(6th Cir. 1974).

16. Id., at 182. ;

17. Bronson v. Board of Education, 525 F. 2d 344 (6th Cir. 1975).

to segregate from actions having racial imbalance effects

is simply a permissive inference. In this opinion, how-

ever, it did not indicate what sort of burden of proof is

placed on the defendant with respect to this question.

This conflict in the Courts of Appeals has continued

to produce contrary results since the last time Petitioners

raised this issue to this Court. The District Court for the

Northern District of California in Diaz v. The San Jose

Unified School District, 412 F. Supp. 310 (N. D. Calif.

1976), specifically recognized the conflict in the circuits

referred to above, recognized that the Ninth Circuit places

the burden on the plaintiff to show purpose or intent to

segregate, and, based on this interpretation, found for the

defendants.'*

The differing approaches taken by the Courts of Ap-

peals and the disarray of the law on this most vital ques-

tion speak for this Court’s guidance now to clarify the

proper role of proof of segregative intent in school de-

segregation cases and the proper allocation of the burden

of proof as to intent. The differences in standard are

not of academic interest only. They have brought about

opposite results in the face of similar facts as is shown

by the Eighth Cireuit’s decision in this case and the Sixth

Cireuit’s decision in Higgins; and they have brought about

opposite results on identical facts as is shown by the de-

cisions of the District Court and the Eighth Cireuit in

this case. The time has come for this Court to settle this

vital question of law and instruct the Courts of Appeals

to follow the law as set down by it in Keyes and Wash-

ington v. Davis.

18. 412 F. Supp. at 329.

The Legal Standard Regarding the Scope of the Remedy

A. The Court of Appeals’ unwarranted re-

quirement of system-wide integration conflicts

with this Court’s remedy decisions since it failed

to make the findings of fact necessary for the

imposition of such a remedy.

The second question presented by this case is whether

school authorities have an affirmative duty to integrate

the entire school system when there has been no showing

or finding that actions by school authorities caused sys-

tem-wide racial separation and no showing or finding that

the racial separation in facet caused by actions of school

authorities will continue after the simple prohibition of

those actions.

This question is also of great national significance.

The kind of remedy imposed by the Court of Appeals’

guidelines in this case is not unique to Omaha. Most

other lower federal courts have required such remedies

after finding a violation of the Fourteenth Amendment

by school authorities. Such remedies have caused drastic

alterations in normal neighborhood student assignment

procedures, the expenditure of millions of dollars for

buses and gasoline instead of education, no measurable

increase in educational achievement for black children,

and ultimately, in many cities, more severe racial separa-

tion than before their institution.

Since these remedies touch the lives of so many eiti-

zens in an area of such vital concern—the well-being and

education of their own children—they have focused public

scrutiny on the federal courts. Outraged public violence,

thankfully, was never present in Omaha and has subsided

nationally, but deep public concern continues on the role

of the federal courts and the fairness of the rules em-

ployed by those courts in dealing with racial separation

in America’s schools. Such concern has prompted schol-

arly criticism particularly on the proportionality between

these remedies and the wrong usually demonstrated.'? The

School Distriet here raises two remedial issues directly

presented by this case which question the fairness of lower

court rules for determining school desegregation remedies

because such rules are primarily responsible for the dis-

proportion between the remedy and the wrong.

Although this Court’s remedy decisions contain argu-

ably conflicting themes, certain fundamental principles do

emerge which, if properly applied, can at least assure the

Nation that such remedies are not needlessly imposed. The

lower federal courts have, however, been inattentive to

these principles. The time has come for this Court to

speak directly and forcefully to guide the lower federal

courts regarding appropriate remedies in school systems

where racial separation was never mandated by law and

regarding the factual inquiry which must be undertaken

before such determinations can be made.

19. L. Graglia, supra note 1, at 160-202; N. Glazer, supra note

alif. L.

at 77-129; Goodman, De Facto School Segregation, 60 C

Rev. 275, 387-91 (1972).

1. The Court of Appeals’ view of the School

District’s remedial obligation: an affirmative duty

to integrate.

The Court of Appeals placed upon the School District

the obligation to ‘‘bring about a thoroughly integrated

school system....’’ (App. p. 129). Throughout its

treatment of the remedy required (App. pp. 129-33) the

Court of Appeals viewed the School District’s obligation

as being one of integration: The School District must

integrate its faculty and integrate its student body. It

must utilize ‘‘integration techniques’’.

A similar obligation was placed on the District Court.

It was required to retain jurisdiction to assure that the

plan ultimately adopted was one ‘‘which effectively inte-

grates the entire Omaha School System... .’’ (App. p.

133). The Court of Appeals, in approving the plan or

dered by the District Court, continued to speak of the

School District’s constitutional obligation as a duty to

integrate (App. pp. 172-75).

Never did the Court of Appeals carefully examine

the exact extent of racial imbalance in fact caused by the

policies it found violative of the Fourteenth Amendment.

Nor did it determine that these effects would continue to

exist after the elimination of these policies.

2. This Court’s remedial requirement: a ra-

cially neutral student assignment system.

This Court in Brown v. Board of Education, 349 U.S.

294 (1955), determined that a schoo] district which had

intentionally assigned children on the basis of race had

the remedial obligation to ‘‘achieve a system, of determin-

ing admission to the public schools on a non-racial basis’’.

349 U. S. at 300-301. The contours of this obligation have

changed over twenty-one years of judicial decision-making.

Arguably, this Court for a time indicated that the obliga-

tion was entirely different.°° But in Pasadena City Board

of Education v. Spangler, 96 S. Ct. 2697, 2704-05 (1976),

this Court strongly reasserted that Brown II correctly

stated a school district’s remedial obligation.

There is no unconditional duty to integrate entire

school systems. Nor is such a goal, whatever its merits,

the appropriate mandate of the Equal Protection Clause.

The Fourteenth Amendment prohibits official racial classi-

fications, requires their elimination, and demands the in-

stitution of a system which utilizes racially neutral criteria

for a student assignment system. All judicial remedies

must be assessed in light of this standard.

On its face, the Court of Appeals’ determination of

the School District’s remedial obligation clearly violated

this Court’s recently reasserted position since it places

on the School District an affirmative duty to integrate

rather than the duty to devise and institute a racially

neutral method of student assignment.

The only possible justification for such an affirmative

duty rests upon a misunderstanding of what this Court

held in Green —. School Board of New Kent County, 391

U. S. 430 (1968), and Swann v. Charlotte-Mecklenburg

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

eases this Court rejected student assignment systems

which did not explicitly classify students on the basis of

race and were, therefore, on their face ‘‘racially neutral’’.

The holdings in these cases, however, are not inconsistent

with Brown II and Pasadena. These ‘‘racially neutral’’

20. Keyes v. School District No. 1, 413 U.S. 189, 200 n. 11 (1973).

assignment plans were unacceptable only because they

failed to counteract ‘‘the continuing effects of past school

segregation” resulting from discriminatory actions by

school authorities. 402 U.S. at 28. An affirmative duty

to thoroughly integrate the public schools arises if and

only if: first, actions of school authorities taken with a

purpose to segregate in fact caused the racial separation

which the remedy seeks to cure; and second, the institu-

tion of a racially neutral assignment plan would not elim-

inate the racial separation effects in fact caused by these

purposefully discriminatory actions.

The Court of Appeals’ requirement of complete inte-

gration is not justified since its racial balance guidelines

were determined without any finding that the School Dis-

trict caused the racial separation which the Court of Ap-

peals’ remedy sought to cure.

The Court of Appeals’ remedy guidelines required

that all of the majority black schools be less than 50%

black, but nowhere did the Court of Appeals find that each

of the majority black schools would have been less than

50% black but for the actions it found violative of the

Fourteenth Amendment. No such finding was made be-

cause the evidence was never examined by the Court of

Appeals from this perspective. Its examination of the

evidence on the question of liability focused on the finding

of a causal relation between School District action and

some racial imbalance effect. The exact extent was never

carefully analyzed.

Moreover, the record simply would not support such

a finding. To be sure, if the Court of Appeals correctly

found purposeful segregation, there is evidence in the

record from which one could conclude that the questioned

actions of school authorities had some racial separation

effects. However, the Court of Appeals did not find that

the School District’s neighborhood school assignment pol-

icy was itself purposefully discriminatory. Rather, the

entire dispute between the parties focused on certain vari-

ations in that policy and the motivation for those varia-

tions.

In analyzing those variations to determine if they

caused racial separation, the Court of Appeals did make

certain findings of causation. These findings, however,

cannot be utilized as a substitute for a factual inquiry into

the exact extent of the racial separation caused by these

variations as distinguished from the racial separation

caused by other factors.

First, the Court of Appeals clearly focused on the

wrong facts in analyzing the open transfer policy (App.

p. 116). At least from the perspective of assessing the

extent of the racial separation effects of such a policy,

the percentage of white students utilizing the policy is

irrelevant. The critical factor is what effect the policy

had on the racial identifiability of the schools. This,

the Court of Appeals neglected. The record clearly

revealed that these effects were negligible, an av-

erage of a three to four percent difference in the per-

centage of black enro'lment in schools with a 35% or

greater black enrollment. Second, the Court of Appeals

made no determination of the racial separation effeets on

Horace Mann Junior High School of the failure to assign

Sherman and Pershing Elementary Schools as feeder

schools for it (App. p. 120). ‘Third, no analysis was made

of the racial separation effects of the assignment of black

faculty to already black schools (App. pp. 110-113).

Fourth, ro analysis was made of the percentage increase

in white enrollment at South High School (App. p. 116)

or any other high school due to transfers from Technical

High School (App. pp. 124-29). The Court of Appeals

merely focused on the raw number of such transfers (App.

p. 116). Finally, even when the Court of Appeals, in ex-

amining optional attendance zones for certain elementary

schools feeding Technical Junior High School, focused on

the correct analysis for determining the extent of racial

separation attributable to these variations, its findings in-

dicated that Technical Junior High School still would have

been an identifiably black school even if the school auth-

orities had not adopted these variations in a strict neigh-

borhood school policy (App. p. 119).

Nonetheless, the Court of Appeals ordered that no

school was to be identifiably black judged by its enroll-

ment. What caused the schools to become racially identi-

fiable was not the variations in the neighborhood school

policy, but the growth of racially imbalanced neighbor-

hoods superimposed on a pre-existing neighborhood school

policy.

An affirmative duty to thoroughly integrate cannot

arise unless the extent of the racial separation caused by

these variations is determined and a finding made that

they caused substantially all of the racial imbalance pres-

ent in the schools because this Court clearly requires that

the scope of the remedy be determined not- by the extent

of racial separation present in the schools but by the na-

ture and extent of the constitutional violation. Swann v.

Charlotte-Mecklenbury Board of Education, 402 U.S. at

16; Milliken v. Bradley, 418 U. S. 717, 744 (1974). This

Court explained this principle in Milliken by stating that

school desegregation remedies must necessarily be de-

signed solely to restore the subjects of discriminatory

conduct by school authorities to the position they would

have occupied in the absence of such conduct. 418 U. S.

at 746.

It was simply unfounded and unreasonable specula-

tion for the Court of Appeals to assume that the schools

in Omaha would all have been thoroughly integrated but

for the slight variations in the neighborhood school as-

signment policy which it found violative of the Fourteenth

Amendment. This Court’s decisions demand a proportion-

ality between the remedy and the wrong and the Court of

Appeals’ remedy for Omaha does not have it.

The Court of Appeals’ requirement of complete inte-

gration is also unjustified under Green and Swann be-

cause it imposed this requirement without any inquiry

into, or finding that, the racial separation effects of the

policies it found violative of the Fourteenth Amendment

could not be eliminated by the institution of a racially

neutral assignment plan, such as a strict neighborhood

school policy.

Had the Court of Appeals examined the record in this

light it could only have found that the negligible racial

identifiability caused by the variations from a strict neigh-

borhood school policy would have been eliminated without

requiring complete integration of the entire Umaha school

system. The assignment of black faculty to already black

schools clearly did not add to those schools any racial

identifiability not already present by virtue of their en-

roliment, and certainly none that could not be cured by a

racial balance faculty assignment policy. There were no

lingering effects with respect to Technical Junior High

School since it had long since been closed for racially

neutral reasons and its student body reassigned on a

neighborhood school basis. The assignment of Sherman

and Pershing Elementary Schools as feeder schools to Hor-

ace Mann Junior High would have been accomplished by

requiring a strict neighborhood school assignment policy.

Technical High School’s racial identifiability could have

been, and has been, eliminated by curriculum reform and

active recruitment of students within its city-wide attend-

ance zone.

Therefore, since the Court of Anpeals did not and

could not make the findings of fact necessary to authorize

complete integration under Green and Swann, the impo-

sition by judicial decree of such a remedy on the School

District is without foundation in this Court’s decisions.

It is precisely such far-reaching remedies based on

mere speculation, rather than careful fact finding, which

have jeopardized public trust in the courts. This Court

ean restore confidence in the judicial process by requiring

that the lower federal courts base orders to integrate not

on speculation or the desire to obtain a particular social

BEST COPY AVAILABLE

order but on careful factual analysis and this Court’s in-

terpretation of the Fourteenth Amendment. But such

restoration can occur only if this Court speaks soon and

definitively. This case presents the opportunity since

the Court of Appeals required cemplete integration of the

public schools without even attempting the kind of inquiry

which this Court’s remedy decisions properly mandate be-

fore such a remedy can be required.

The significance of the remedial issue presented by

this case cannot be overstated. While this Court cannot

assure that all judges at all times in all cases will act with

consideration for the virtues of judicial restraint, it can,

and should, insist at this time and in this case that the

lower courts give rigorous attention to the limits of, and

prerequisites for, the exercise of their authority. For

nothing less is involved here than this:

‘*While overreaching by the Legislative and Ex-

ecutive Branches may result in the sacrifice of indi-

vidual protections that the Constitution was designed

to secure against action of the State, judicial over-

reaching may result in sacrifice of the equally im-

portant right of the people to govern themselves.”’

Furman v. Georgia, 408 U. 8. 238, 470 (1972) (Rehn-

quist, J., dissenting).

CONCLUSION

For these reasons, a writ of certiorari should issue

to review the judgments and opinions of the Kighth Cir-

cuit.

Respectfully submitted,

Kennetu B. Hotm

Geratp P. LAuGHLIN

Micuae. G. LessMANN

Davip M. PepERSEN

Barrp, Horm, McEacuen,

Pepersen, Hamann & Haccart

1500 Woodmen Tower |

Omaha, Nebraska 68102

Attorneys for Petitioners

A-l

APPENDIX OF CONSTITUTIONAL

AND STATUTORY PROVISIONS INVOLVED

Fourteenth Amendment to the United States Constitution,

Section 1:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, with-

out due process of law; nor deny to any person with-

in its jurisdiction the equal protection of the laws.

42 U.S.C. § 2000e-6 :

(a) Whenever the Attorney General receives a com-

plaint in writing—

(1) signed by a parent or group of parents to

the effect that his or their minor children, as mem-

bers of a class of persons similarly situated, are being

deprived by a school board of the equal protection of

the laws, ...

and the Attorney General believes the complaint is

meritorious and certifies that the signer or signers of

such complaint are unable, in his judgment, to initi-

ate and maintain appropriate legal proceedings for

relief and that the institution of an action will ma-

terially further the orderly achievement of desegre-

gation in public education, the Attorney General is

authorized, after giving notice of such complaint to

the appropriate school board . . . and after certifying

that he is satisfied that such board ... has had a

reasonable time to adjust the conditions alleged in

such complaint, to institute for or in the name of the

A-2

United States a civil action in any appropriate dis-

trict court of the United States against such parties

and for such relief as may be appropriate, and such

court shall have and shall exercise jurisdiction of pro-

ceedings instituted pursuant to this section, provided

that nothing herein shall empower any official or

court of the United States to issue any order seeking

to achieve a racial balance in any school by requiring

the transportation 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 standards. The At-

torney General may implead as defendants such addi-

tional parties as are or become necessary to the grant

of effective relief hereunder.

(b) The Attorney General may deem a person or

persons unable to initiate and maintain appropriate

legal proceedings within the meaning of subsection

(a) of this section when such person or persons are

unable, either directly or through other interested

persons or organizations, to bear the expense of the

litigation or to obtain effective legal representation;

or whenever he is satisfied that the institution of

such litigation would jeopardize the personal safety,

employment, or economic standing of such person or

persons, their families, or their property.

42 U.S.C. § 1983:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory, 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 Con-

stitution and laws, shall be liable to the party injured

in an action at law, suit in equity, or other proper

proceeding for redress.

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.