Petition — Brennan v. Armstrong

euyrone LOU, U. 3. ]

FILED

DEC 14 I9TE

MICHAEL RODAK, JR, GERK |

IN THE ‘

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No.

26-809

THOMAS BRENNAN, et al.,

Petitioners,

v.

KEVIN ARMSTRONG, et al.,

Respondents.

LLL ee eee

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

SOOO EEE EEE EEE EEE EEE EEE EERE EEE EERE RHEE EEE EEE EEE EEE EH EEE EHH HEHEHE Oe

L. C. HAMMOND, JR.

780 North Water Street

Milwaukee, Wisconsin 53202

Attorney for Petitioners

Of Counsel:

MICHAEL J. SPECTOR,

ROSS R. KINNEY,

RONALD E. KLIPSCH,

PATRICK W. SCHMIDT

and

QUARLES & BRADY .

780 North Water Street

Milwaukee, Wisconsin 53202

a ,

Nt etn ne Ee

INDEX

Page

TTT STERILE ae eA TT 2

TEESE AE OTE AT 2

QUESTIONS PRESENTED ..............c.-c.csecessesssecones 2

CONSTITUTIONAL PROVISIONS AND

Eee Be ee TEE nccccitccorcnnssnsenvesectctuocsecess 3

STATEMENT OF THE CASE ..............:0:c:ceccsceeeeees 5

& — [SsASgR SEs ee 6

B. Description of the Milwaukee Public School

System and Its Policies ...........cccccsrscccssssrssesoseseses 7

C. Decision of the District Court ......................... 9

D. Decision of the Court of Appeals .................... 12

REAS ONS FOR GRANTING THE WRIT ............. 13

I. THE CIRCUIT COURT HAS DECIDED AN

IMPORTANT QUESTION OF FEDERAL LAW,

INTENSIFIED A CONFLICT AMONG THE

CIRCUITS AND MISAPPLIED APPLICABLE

DECISIONS OF THIS COURT; BY INFER-

RING INTENT TO SEGREGATE, IT HAS

MISTAKENLY UPON (A) BOARD

DECISIONS WHICH ARE CONSISTENT WITH

THE NEIGHBORHOOD SCHOOL POLICY,

(B) RACIALLY NEUTRAL TEACHER ASSIGN-

MENT POLICIES AND (C) AN OPEN TRANSFER

PROGRAM ADOPTED TO ENHANCE RACIAL

A. The Circuit Court Decision Highlights a

Conflict among the Circuits as to the Meaning of

gs, EET S ETC TENT DENI 15

B. The Circuit Court Has in Effect Over-

ruled Keyes by Equating Segregative Intent

with Adherence to a Neighborhood School

PE cccsenccnncentiitsihibiibiadeiiebiaiimtatiivigagintetentsamepneesnseses 17

ii

C. The Courts Below Misinterpreted

Additional Applicable Prior Law ......................se00

D. This Petition Should Be Granted

because the Circuit Court Mistakenly Inferred

Segregative Intent from: (a) Board Decisions

Consistent with the Neighborhood School

Policy, (b) Racially Neutral Teacher Assign-

ment Policies and (c) an Open Transfer

Program Adopted to Enhance Racial Balance .........

1. Boundary changes conformed to

the neighborhood school policy ..................:.seeeeeeees

2. Intact busing is a natural extension

of the neighborhood school concept ................s000+

3. The Board's racially neutral teacher

assignment policies were required by non-racial

circumstances beyond the Board’s control and do

not evidence segregative intent .....................c.-ceeeees

4. The open transfer policy was

adopted at NAACP urging and caused improved

racial balance in some schools and greater im-

balance in others. It does not evidence segrega-

ID cect cncctpcinsccnstinctncanditipindaindiaiatigstathingias

Il. THE CIRCUIT COURT IGNORED THE

MEANING OF SEGREGATION ADOPTED

IN KEYES BY EQUATING RACIAL IM-

BALANCE WITH SEGREGATION AND

REQUIRED INORDINATE REMEDIAL

Ill. THE PRESUMPTION OF CONSISTENCY

ARBITRARILY REJECTS DISTRICT COURT

FINDINGS WHICH MANDATE A LEGAL

RESULT CONTRARY TO THAT REACHED

BY THE DISTRICT COURT ...........:00ccceceeeseeseeeneens

18

21

21

25

27

28

29

31

— eee

IV. THE APPLICATION OF THE CLEARLY

ERRONEOUS STANDARD OF REVIEW TO

ULTIMATE AND CONCLUSORY FINDINGS

IS IN CONFLICT WITH THE RULE IN OTHER

CIRCUITS AND SHOULD BE OVERRULED

FE tecewensttencssnseinnnnennnimnmsandicineemeneanumanereene 33

V. ADISTRICT COURT’S URGENT IM-

POSITION OF REMEDY SHOULD NOT

DENY APPEAL RIGEIIS. ........cccccccccocvecscscecccseooseree 34

CSOT, cccecvercccnssssseneseseensosveccccovesosenossoosveese 35

iv

TABLE OF CITATIONS

Cases

Page

Bell v. School City of Gary, Indiana,

324 F.2d 209 (7th Cir. 1963), cert. denied,

STT UG SBE CIGES) eccsecccerssiesesinnsntintetasiniasieaas 18,19,20

Berkelman v. San Francisco Unified School District,

501 F.2d 1264 (9th Cir. 1974) ............ccccccccssessecereees 16

Brown v. Board of Education,

DOD U.B. FOS CIGIS) ceccnscssvesssncccenetesesenennans 31

Diaz v. San Jose Unified School District,

412 F.Supp. 310 (N.D. Cal. 1976), appeal docketed,

No. 76-2148, 9th Cir., May 24, 1976 .0.........ccccceeeeeees 18,19

Hart v. Community School Board of Education,

Irae Poiy | 3), ee 15

Hester v. Southern Railway Co.,

497 P.26 1376 (SEs Gas. UTED ccssctnstotininninimenies 33,34

Higgins v. Board of Education,

Ie be] oS 8 ee 16,26

Johnson v. San Francisco Unified School District,

500 F.2d 349 (Sth Cir. 1974) .........cccccccccccccrscereesseees 16

Joseph Lupowitz Sons, Inc. v. Commissioner of

Internal Revenue.

O97 F.26 GES COG GOs. BOGE cceescnssecsncionsnsitenmnnains 33

Keyes v. School District No. 1,

ER SG of) ae 3,6,14,15,

socnenentsuensevenesedsusdactocnsnsemednennsnneesennaaiinaanane 17,18,20,21,

spvesedseeeeuveuseneniansessaienssmniecenieassiaesalanananne 26,30

y

Lawlor v. Board of Education, -

458 F.2d 660 (7th Cir. 1972), cert. denied,

ee

Milliken v. Bradley,

EE

Oliver v. Michigan State Board of Education,

508 F.2d 178 (6th Cir. 1974), cert. denied,

Te

Pasadena City Board of Education v. Spangler,

U.S. , 44 U.S.L.W. 5114

EE

Philber Equipment Corp. v. Commissioner of Internal

Revenue

Ee

Soria v. Oxnard School District Board of Trustees,

488 F.2d 579 (9th Cir. 1973), cert. denied,

ES

Spencer v. Kugler,

326 F. Supp. 1235 (D.N.J.), aff'd,

404 U.S. 1027 (1972) ......... 4h

Swann v. Charlotte-Mecklenburg Board of Education,

Sn TTT cenccetesensscsnsesoses ai aieitiaiaicane

United States v. Board of School Commissioners,

474 F.2d 81 (7th Cir. 1973), cert. denied,

a

United States v. Jacksonville Terminal Co.,

451 F.2d 418 (Sth Cir. 1971), cert. denied,

EE

19

19

16

16

33

16

19

31

34

33

vi

United States v. School District of Omaha,

521 F.2d 530 (8th Cir. 1975), cert. denied,

a es ITED westerinsincitienisnencccscnitintimcinaninnnianientin 16

United States v. Texas Education Agency,

og mw ff. eee 14

United States v. Texas Education Agency,

532 F.2d 380 (Sth Gir. 1976), cert. granted,

vacated sub nom. Austin Independent School

District v. United States, No. 76-200,

IG, FPO tlitececeticviiainintiiineeneitaninnnsninmanntal 8,14,16,17

encnscineinncruiannemennieiabstbelaeaisisnidmnciabsiinetpiitmmmnnaiienete 21,30

United States v. United States Gypsum Co.,

eh ED ditiiiccntitsttininiicniscenensninerneenciennnies 33

Washington v. Davis,

Se ee SPEED entreninniicnncemensnmenmnnen 16,17,26

United States Constitution

I TIO canenisnineediniiniaieniaricianimaaccieainninniiaians 3

Statutes

pe En 4,18

Fe is ID III adisciichechiieiisuiceibleidtnahaadinduitenmsbibiniditeaniae 4,18

i ines 4,5,18

pF ena eae 5,31

ars Se I Siiinctnccnteintiscriitthaibiniinnsineiiiaitidiies 5,34

Be GK, GRU TSG cscctccssvcsscassccsinsinctscnnentcancnene 2

EE ECEE ee wae rane ae 7

(| RE eS RO rae 6

Oe is DI Wiech cetintccitndienitiiticatetintinstaiiinds 6

DOG}

Vii

Miscellaneous

Rule 19, Supreme Court Rules ..............::c0ccseeseeeeeeeeees 32

Rule 22(3), Supreme Court Rules ................::ceeeeeeeees 2

Webster’s New International Dictionary (3d ed.) ........ 32

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No.

THOMAS BRENNAN, et al.,

Petitioners,

v.

KEVIN ARMSTRONG, et al.,

Respondents.

PT OTE E TICLE eee

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

PTETESIOIO LOCO LEE Le eee eee eee eee eee

Petitioners are the individual members of the Board of

School Directors of the City of Milwaukee, the

Superintendent of Schools, and the Secretary-Business

Manager of Schools. They pray that a writ of certiorari issue

to review the judgment and opinion of the United States

Court of Appeals for the Seventh Circuit entered in this

proceeding on July 23, 1976.

-%

OPINIONS BELOW

The July 23, 1976 opinion of the United States Court

of Appeals for the Seventh Circuit is reported at 539 F.2d

625 and is reproduced in the Appendix at pages 1-20. The

order denying petitioners’ Petition for Rehearing in Banc was

entered on September 22, 1976, without opinion, and is

reproduced in the Appendix at page 21. The January 19,

1976 opinion of the United States District Court for the

Eastern District of Wisconsin is reported at 408 F.Supp. 765,

and is reproduced in the Appendix at pages 22-139. The

Partial Judgment entered by the United States District Court

for the Eastern District of Wisconsin on January 19, 1976 is

not reported but is reproduced in the Appendix at pages

140-141. The orders of the District Court specifying

desegregation guidelines are reported at 416 F.Supp. 1344

and 416 F.Supp. 1347, and are reproduced in the Appendix

at pages 142-151.

JURISDICTION

The judgment of the Court of Appeals for the Seventh

Circuit was entered on July 23, 1976. A timely petition for

rehearing in banc was denied on September 22, 1976, and

this petition for certiorari will be filed within 90 days of the

date of denial. This Court’s jurisdiction is invoked pursuant

to the provisions of 28 U.S.C. Section 1254(1) and Rule

22(3) of the Supreme Court Rules.

QUESTIONS PRESENTED

1. Does a school district which adopted a neighborhood

school policy decades before substantial numbers of black

students resided in the district and which later develops

non-governmentally caused residential racial concentration

violate the Constitution by uniformly and consistently

adhering to that neighborhood school policy in the good

faith belief that it provides the best educational opportunity

for all students regardless of race?

3-

2. In such a district, does a school board which in good

faith believes that a neighborhood school policy provides the

best educational opportunity for all studerts regardless of

race evidence segregative intent by not adopting programs

inconsistent with that policy even though they will improve

student racial balance?

3. In a school desegregation case, if the court does not

identify any school as “segregated” as defined in Keyes ».

School District No. 1 and specific references are made to

only a few of the more than 150 schoois in the district, may

the court hold the entire school system unconstitutionally

segregated and order a complete dismantling of the system

and approximate district-wide student and faculty racial

ratios in each school?

4. Did the Circuit Court err in applying the “clearly

erroneous” standard of review to ultimate and conclusory

findings of the District Court?

CONSTITUTIONAL PROVISIONS AND

STATUTES 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, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.”

4-

20 U.S.C. Section 1701(a) (Supp. V, 1976)! provides in

relevant part:

“The Congress declares it to be the policy of the

United States that —

*(2) the neighborhood is the appropriate

basis for determining public school assignments.”

20 U.S.C. Section 1704 (Supp. V, 1976) provides:

“The failure of an educational agency to

attain a balance, on the basis of race, color, sex, or

national origin, of students among its schools shall

not constitute a denial of equal educational

opportunity or equal protection of the laws.”

20 U.S.C. Section 1705 (Supp. V, 1976) provides:

“Subject to the other provisions of this

subchapter, the assignment by an educational

agency of a student to the school nearest his place

of residence which provides the appropriate grade

level and type of education for such student is not

a denial of equal educational opportunity or of

equal protection of the laws unless such assignment

is for the purpose of segregating students on the

basis of race, color, sex, or national origin, or the

school to which such student is assigned was

-5-

located on its site for the purpose of segregating

students on such basis.”

20 U.S.C. Section 1712 (Supp. V, 1976) provides:

“In formulating a remedy for a denial of

equal educational opportunity or a denial of the

equal protection of the laws, a court, department,

or agency of the United States shall seek or 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. Section 1752 (Supp. V, 1976) provides:

“Notwithstanding any other law or provision

of law, in the case of any order on the part of any

United States district court which requires the

transfer or transportation of any student or

students from any school attendance area

prescribed by competent State or local authority

for the purposes of achieving a balance among

students with respect to race, sex, religion, or

socioeconomic status, the effectiveness of such

orders shall be postponed until all appeals in

connection with such order have been exhausted

or, in the event no appeals are taken, until the time

for such appeals has expired. This section shall

expire at midnight on June 30, 1978.”

STATEMENT OF THE CASE

l. 20 USC. Sections 1701-1758 were enacted as part of the This petition presents for decision an unsettled legal

Education Amendments of 1974 to the Elementary and Secondary

Education Act of 1965. Act of August 21, 1974, Pub.L. No. 93-380,

Title II, Sections 201-259, 88 Stat. 514-521. Section 201 of the Act

provided that this title may be cited as the “Equal Educational

Opportunity Act of 1974.”

issue of significance to every resident of a school district with

a neighborhood school policy and racial residential

6-

concentration.” Given the District Court’s specific findings of

uniform and consistent good faith adherence by the Board to

its neighborhood school policy, and the sound educational

reasons for the innumerable consistent decisions made during

the policy’s more than fifty year history, it is unlikely that

this Court will ever be presented with a clearer neighborhood

school policy case.

Both the District and Circuit Courts phrased their

conclusions in terms of the Keyes intent test; the phrasing,

however, is more form than substance — more obfuscating

than illuminating. If Keyes is controlling, the District Court’s

conclusion is wholly inconsistent with its findings of fact and

the Circuit Court’s affirmance perpetuates this error. In fact,

the decisions of both courts makes sense only if (a) a racially

neutral neighborhood school policy is unconstitutional per se

in districts with racial residential concentration or (b) the

courts’ conclusions are based on a statistical, foreseeability

approach to intent, without regard to purpose or motivation.

A. Procedural History

This action originated in 1965 with the filing of a

complaint seeking declaratory and _ injunctive relief

concerning various alleged acts of the Board of School

Directors of the City of Milwaukee, its Superintendent, its

Secretary-Business Manager and the individual members of

that body (hereinafter collectively referred to as “the

Board”). The Board was alleged to have violated the Equal

Protection Clause of the Fourteenth Amendment to the

United States Constitution. Federal jurisdiction was invoked ~

under 28 U.S.C. Section 1343, the jurisdictional counterpart

of 42 U.S.C. Section 1983. The plaintiffs were certain black

and white students and their parents, who were class

representatives.

2. ‘This Court in Keyes v. School District No. 1, 413 US. 189

(1973) specifically reserved the constitutionality of unmanipulated

neighborhood school policies. See p. 14, infra.

x %

Thirty trial days were concluded on January 31, 1974.

Almost two years later, on January 19, 1976, the District

Court for the Eastern District of Wisconsin entered and filed

a Decision and Order (including Findings of Fact and

Conclusions of Law) and a Partial Judgment concluding that

the Board “engaged in practices with the intent and for the

purpose of creating and maintaining a segregated school

system, and that such practices had the effect of causing

current conditions of segregation in the Milwaukee public

schools” (A. 125).> The Board was enjoined from

discriminating upon the basis of race in the operation of the

schools and from “creating, promoting, or maintaining racial

segregation” (A. 141).

In certifying the case for appeal pursuant to 28 U.S.C.

Section 1292(b), the District Court concluded that “(t]he

issues here decided are of public importance, concerning as

they do the duties imposed upon school officials by the

Constitution” (A. 139). A petition for permission to appeal

was filed with the United States Court of Appeals for the

Seventh Circuit on January 29, 1976. Permission was granted

on February 4, 1976 (Misc. No. 76-8005). A panel of the

Circuit Court consisting of Judges Philip W. Tone, Harlington

Wood, Jr. and Robert A. Grant affirmed the District Court

decision on July 23, 1976. A timely petition for rehearing in

banc was denied without opinion on September 22, 1976.

B. Description of the Milwaukee Public School System

and Its Policies.

The Milwaukee school system, whose boundaries are

coterminus with those of the City, is one of the fifteen

largest public school systems in the United States (155

schools and approximately 128,000 students in 1973) (A. 2,

40). Since 1950, Milwaukee’s geographic area and total

3. A. ___ references are to the Appendix which is bound

separately.

All references to pp. 36-113 of the Appendix are to specific

findings of fact of the District Court.

-8-

student population has doubled and the number of schools

has increased 71% (A. 2, 40).

Between 1950 and 1970 the City’s black population

multiplied fivefold from 3.5% (21,722) to 14.5% (105,088)

of the total population (A. 2, 4041). During that same

period, the number and percentage of black students rose at

almost twice that rate, with blacks comprising about 35% of

the student population at the time of trial (A. 2-3, 41).

The overwhelming majority of Milwaukee’s black

population has tended to reside in an area in the north

central and northwestern central part of the City (A. 41).

Neither “state action” nor racially imbalanced schools have

caused the racial residential concentration (A. 132). Black

residential concentration has been determined primarily by

the occurrence of residential vacancies in combination with

the particular needs, desires, and incomes of black citizens

(A. 42-43)4 No statute, local regulation, policy or ordinance

requiring segregation of the races has ever existed in

Wisconsin or Milwaukee.

In 1919, long before the presence of any significant

number of black students, the Board adopted a neighborhood

school policy. Subsequent Boards have consistently adhered

to that policy, in the good faith belief that it provides

Milwaukee’s students with the best possible education which

limited available resources permit (A. 43-44, 102). The

4. These findings of the District Court correspond to the recent

recognition by three members of this Court that

“(t]he principal cause of racial and ethnic imbalance

in urban public schools across the country — North and

South —is the imbalance in residential patterns. Such

residential patterns are typically beyond the control of

school authorities. ... Economic pressures and voluntary

preferences [footnote omitted] are the primary

determinants of residential patterns.” Austin Independent

School District v. United States, No. 76-200, December 6,

1976 (Burger, Powell and Rehnquist, concurring)

(hereinafter cited as Austin ).

9.

neighborhood school policy has determined how and where

Milwaukee students are educated, including decisions on new

school site selection, construction, school remodeling, school

building additions, and actions taken to meet the increased

crowding in the schools during the 1950’s and early 1960’s

(A. 44).

Milwaukee school officials have been generally aware of

residential racial concentration patterns since the 1950’s and

have understood that adherence to the neighborhood school

policy would result in a number of schools with

predominantly non-white student bodies (A. 102). Although

school officials have considered certain systemic changes in

an attempt to achieve more racially balanced schools (A.

102), they have refused to mandate greater racial balance

through non-voluntary means because, inter alia, it would

necessitate abandonment of the neighborhood school policy

(A. 103).

C. Decision of the District Court

The District Court’s conclusion that the Board intended

to create and maintain a segregated school system is wholly

inconsistent with its own specific findings of fact that:

(1) “The Board has consistently and uniformly

adhered to a ‘neighboriiood school policy,’ first

developed in 1919. The essence of that policy has

been the assignment of students to schools within

reasonable geographic distances of the students’

residences. The policy has controlled the allocation

of students among the schools in the system for

attendance purposes... .”’ (A. 43).

(2) “This central policy has been supported

through the years by most Board members and has

been of decisive importance in a host of decisions

concerning how and where students were and will

be educated, including decisions with respect to

-10-

new school site selection and construction, school

remodeling, school building additions, and actions

taken to meet the increased crowding in the

schools during the 1950’s and early 1960's.” (A.

44).

(3) “Board and Administration determinations

concerning site selection, building additions, school

size, and district boundaries, among others, were

made with the knowledge of their racial effect

because there was general knowledge as to the

racial characteristics of neighborhoods affected by

such decisions. The evidence established that with

respect to any such decision, alternatives were

available which would have resulted in schools

which are presently predominantly black having

substantially lower proportions of their students

nonwhite. However, these alternatives were not

consistent with the neighborhood school policy

and, consequently, were not adopted.”’ (A. 59)

(emphasis added).

(4) “During the period, the Board’s fundamental

purpose was the maintenance and preservation of

the neighborhood school policy. The Board knew

that adherence to the neighborhood school policy

would result in a high proportion of racially

imbalanced schools but believed, in good faith,

that such a policy would produce the best possible

educational opportunities for all students in the

system, regardless of race.” (A. 102).

(5) “{[E]ven Board members inclined toward

affirmative action to attain racial goals agree that

the majority Board members’ views and decisions

to the contrary were not motivated by any desire

to discriminate against or otherwise ‘shortchange’

black students. To the contrary, the majority

members had as their objective quality education

-ll-

for all. From their point of view, quality education

required adherence to the neighborhood school

policy even though that policy necessitated the

creation of segregated schools.” (A. 107).

(6) “The gross imbalance in the city’s racial

residential patterns, superimposed upon the

neighborhood school policy, has produced a

number of schools which are predominantly white

or predominantly black.” (A. 110).

The District Court thus either mysteriously changed a

uniform and consistent good faith adherence to a racially

neutral neighborhood school policy for the educational

benefit of all students into a premeditated intent to

segregate, or held thai the mere application of the policy was

unconstitutional.

Additional District Court findings concerning the

Board’s teacher assignment policies, busing practices,

boundary change and school siting decisions, and student

transfer policies allegedly support its conclusion of

constitutional violation. However, each of the cited practices

and policies conformed to the neighborhood school policy,

was racially neutral or, as in the case of the open transfer

program, deviated from that policy at the specific request of

the Milwaukee chapter of the NAACP.>

5. The open transfer program was adopted to promote better

racial balance, a result in fact accomplished in some schools. See pp.

28-29, infra.

Contrary to the allegation of lower educational quality and

programs in schools with predominantly black populations, the District

Court found that (a) substantially equal educational services were

provided to all schools prior to the mid-1960’s and (b) subsequent to

that time

“those schools serving the black areas of the city received a

greater quantum of such services under the system's

compensatory educational program.” (A. 90).

-12-

D. Decision of the Court of Appeals

The Circuit Court’s decision imposes an affirmative duty

to achieve racial balance in each of the Milwaukee schools,

even if it requires abandoning the Board’s racially neutral

neighborhood school policy.

In affirming the District Court’s “‘conclusory findings of

segregative intent” (A. 17), the Circuit Court applied a

so-called and unusual “presumption of consistency” in

conjunction with the “clearly erroneous” standard of review.

The Circuit Court resorted to the “presumption of

consistency” because of the “‘unexplained hiatus” between

(a) the District Court’s findings of the Board’s good faith,

consistent and uniform adherence to the neighborhood

school policy and (b) its “conclusory findings” of intent to

segregate:

“Defendants here rely on the findings that they

‘consistently and uniformly adhered’ to a

neighborhood school policy, 408 F.Supp. at 780,

and that although ‘with respect to any such

decision, alternatives were available which would

have resulted in schools which are presently

predominantly black having substantially lower

proportions of their students nonwhite, . . . these

alternatives were not consistent with the

neighborhood school policy and, consequently,

were not adopted.’ 408 F.Supp. at 788. These

findings may be read as meaning that defendants

hewed to their neighborhood school policy solely

for racially neutral reasons and that the racial

effects were not intended as such but were merely

an unavoidable result; and, if so read, they cannot

be said to be indicative of segregative intent. Here,

as elsewhere, there is an unexplained hiatus

between specific findings of fact and conclusory

findings of segregative intent. The District Court is,

however, entitled to a presumption of consistency,

-13-

and we should, therefore, read the findings as

elements of a presumably harmonious whole and

interpret them as internally consistent when it is

possible to do so. Reading the

neighborhod-school-policy findings just referred

to with the other findings, it is apparent that the

former were not meant to describe all cases and

that the court did not, as defendants contend, find

that their challenged actions were entirely

motivated by a racially neutral intent to adhere to

a neighborhood school policy.” (A. 17).

The result-oriented culmination of the Circuit Court’s

reconciliation of the findings and conclusion was, in effect,

an arbitrary redefinition of “consistent and uniform” to

mean “not all the time.”

The Circuit Court also imposed an affirmative duty

upon school officials to abandon the racially neutral

neighborhood school policy to improve racial balance.

Though it asserted that the Board failed to adopt programs

which would have fostered integration “without violating the

neighborhood school policy” (A. 18), it failed to identify

even one of those programs. The only possibility allided to

by the Circuit Court was inconsistent with the neighborhood

school policy. See pp. 23-25, infra.

REASONS FOR GRANTING THE WRIT

I. THE CIRCUIT COURT HAS DECIDED AN

IMPORTANT QUESTION OF FEDERAL LAW,

INTENSIFIED A CONFLICT AMONG THE CIRCUITS

AND MISAPPLIED APPLICABLE DECISIONS OF THIS

COURT; BY INFERRING INTENT TO SEGREGATE, IT

HAS MISTAKENLY RELIED UPON (A) BOARD

DECISIONS WHICH ARE CONSISTENT WITH THE

NEIGHBORHOOD SCHOOL POLICY, (B) RACIALLY

NEUTRAL TEACHER ASSIGNMENT POLICIES AND (C)

-14-

AN OPEN TRANSFER PROGRAM ADOPTED TO

ENHANCE RACIAL BALANCE.

The Circuit Court cast its decision as a routine

affirmance of a district court. In fact, the Circuit Court

decided two important and unsettled areas of federal

constitutional law of overwhelming significance to the City

of Milwaukee and the nation by holding that: (1) irrespective

of segregative intent, a neighborhood school policy is

unconstitutional per se if it results in school racial imbalance,

and (2) irrespective of segregative intent, school officials have

an affirmative duty to lessen racial imbalance in every school

in their system.

This case, unlike any other to date,® is unique in

providing the factual and legal foundation for a decision on

the neighborhood school policy issue specifically reserved in

Keyes v. School District No. 1, 413 U.S. 189, 212 (1973):

“We have no occasion to consider in this case

whether a ‘neighborhood school policy’ of itself

will justify racial or ethnic concentrations in the

absence of a finding that school authorities have

committed acts constituting de jure

segregation . . . by techniques that indicate that the

‘neighborhood school’ concept has not been

maintained free of manipulation.”

6. United States v. Texas Education Agency, $32 ¥°.2d 280 (Sth

Cir. 1976), cert. granted, vacated sub nom. Austin

Independent School District v. United States, No. 76-200, Decembei 06,

1976, recently remanded to the Court of Appeals for the Fifth Circuit

without opinion, is the only other recent decision presented to this

Court which involved in any direct manner the neighborhood school

policy question. However, the factual circumstances present in Austin,

e.g. dualoverlapping attendance zones, United States v. Texas

Education Agency, 467 F.2d 848, 867 (Sth Cir. 1972), are totally

absent here. The fact that this Court has dealt with a school

desegregation decision so recently should not obstruct the granting of

this petition. To permit the error of this case to continue uncorrected

will render Austin equivocal.

-15-

In creating and applying a “presumption of

consistency” in its affirmance, the Circuit Court attempted

to hide what is plainly true — the District Court’s conclusion

of a constitutional violation is correct only if good faith

adherence to a racially neutral neighborhood school policy is

a per se constitutional violation. Intact bussing, boundary

changes, school siting decisions and all other Board decisions,

except one,’ were in harmony with the neighborhood school

policy. Alternative programs which the Circuit Court

suggested should have been adopted are inconsistent with the

neighborhood school policy and were rejected for that reason

as specifically found by the District Court (A. 59).

A. The Circuit Court Decision Highlights a Conflict

among the Circuits as to the Meaning of “Intent” under

This Court’s decision in Keyes held that proof of

purpose or intent to segregate was one of three elemen

which must be shown to establish a constitutional violation.

413 U.S. at 208. Lower courts have struggled with the

application of “purpose or intent to segregate” since Keyes

and the circuits are likewise in conflict over its proper

interpretation.

The Second Circuit in Hart v. Community School Board

of Education, 512 F.2d 37 (2d Cir. 1975), held that the

foreseeable consequences of school officials’ actions rather

than a racjal motivation test meets the Keyes intent

requirement. The Fifth and Eighth Circuits, and a panel of

7. The exception, the open transfer program, adopted at the

instance of the NAACP, is discussed at pp. 28-29, infra.

8. Keyes established that de jure segregation exists only if (1)

school officials administer the school system with acts or omissions

“motivated by segregative intent,” (2) which substantially cause (3)

schools to be presently “segregated” in fact. 413 US. at 198, 201,

205-206, 208-209. See pp. 29-31 , infra for a discussion of the lower

courts’ misapplication of the Keyes “segregation” test.

-16-

the Sixth Circuit agree with this interpretation. United States

v. Texas Education Agency, 532 F.2d 380 (Sth Cir. 1976),

cert. granted, vacated sub nom. Austin Independent School

District v. United States, No. 76-200, December 6, 1976;

United States v. School District of Omaha, 521 F.2d 530

(8th Cir. 1975), cert. denied, 423 U.S. 946 (1975); Oliver v.

Michigan State Board of Education, 508 F.2d 178 (6th Cir.

1974), cert. denied, 421 U.S. 963 (1975).

The Ninth Circuit disagrees; it has consistently held that

racial motivation is required. Berkelman v. San Francisco

Unified School District, 501 F.2d 1264 (9th Cir. 1974);

Johnson vy. San Francisco Unified School District, 500 F.2d

349 (9th Cir. 1974); Soria v. Oxnard School District Board of

Trustees, 488 F.2d 579 (9th Cir. 1973), cert. denied, 416

U.S. 951 (1974). One panel of the Sixth Circuit also

disagrees. Higgins v. Board of Education, 508 F.2d 779 (6th

Cir. 1974).

This Court in a non-school case recently indicated that a

racially discriminatory purpose, rather than statistical

discriminatory impact, is required to establish a

constitutional violation. Hence, the foreseeability test is

inappropriate to establish segregatory intent. In Washington

v. Davis, 426 U.S. 229, , 96 S.Ct. 2040, 2048 (1976),

this Court said:

“The school desegregation cases have also

adhered to the basic equal protection principle that

the invidious quality of law claimed to be racially

discriminatory must ultimately be traced to a

racially discriminatory purpose. That there are

both predominantly black and predominantly

white schools in a community is not alone violative

of the Equal Protection Clause.”?

9. See also Pasadena City Board of Education v. Spangler,

US. (1976), 44 U.S.L.W. 5114 (US. June 28, 1976), where it

was held that a constitutional violation is not established by the

existence of racially imbalanced schools resulting from shifts and racial

concentration in housing patterns.

-17-

The Circuit Court was well aware of the problem of

intent and referred to Washington in its decision (A. 13).

However, the reference to racial motivation was rhetoric; in

fact, its decision and that of the District Court make sense

only if a foreseeability test was applied or the Milwaukee

neighborhood school policy was unconstitutional per se. The

effect of the decision, given its rationale and the findings

both relied upon and ignored, constitutes a holding of per se

malintent and unconstitutionality. !

B. The Circuit Court Has in Effect Overruled Keyes by

Equating Segregative Intent with Adherence to a

Neighborhood School Policy.

In reserving the neighborhood school policy question in

Keyes, this Court stated that the manipulation of a

neighborhood school policy so as to cause de jure segregation

may be a constitutional violation. Here, there were no

findings of “manipulation,” but rather findings of a good

faith adherence to a racially neutral neighborhood school

policy. The Circuit Court sub silentio destroyed the Keyes

intent test by holding that the requisite intent is present

simply because the policy exists.

If the Circuit Court decision stands, school districts

throughout the nation whose racially imbalanced schools

10. In United States v. Texas Education Agency, The Court of

Appeals for the Fifth Circuit held:

“[S]chool authorities may not constitutionally use a

neighborhood assignment policy that creates segregated

schools in a district with ethnically segregated residential

patterns. A segregated school system is the foreseeable and

inevitable result of such an assignment policy. When this

policy is used, we may infer that the school authorities have

acted with segregative intent.” 532 F.2d at 392.

Whether by express language or implication, the result is equally

erroneous. This Court’s decision to grant certiorari and vacate the

decision of the Court of Appeals for the Fifth Circuit indicates beyond

a doubt the error of automatically equating neighborhood school policy

adherence with segregative intent. See Austin.

-18-

result from a long-standing neighborhood school policy and

relatively recent racial housing concentrations will be

constitutionally required to abandon the policy. Such an

affirmative obligation is also contrary to enacted

Congressional policy and should be corrected by this Court

so that state and local authorities are not misled.!! See 20

U.S.C. Sections 1701, 1704 and 1705, pp. 4-5, supra.

C. The Courts Below Misinterpreted Additional

Applicable Prior Law.

Keyes carefully preserved the holding of Bell v. School

City of Gary, Indiana, 324 F.2d 209 (7th Cir. 1963), cert.

denied, 377 U.S. 924 (1964). The District Court’s

interpretation of Bell discloses the true essence of its decision

and the Circuit Court’s affirmance. Bell held that a

neighborhood school policy, honestly and conscientiously

constructed, with no intention or purpose to segregate the

races, does not violate the Equal Protection Clause, even if

the effect is to have racial imbalance in schools because

residential areas are populated almost entirely by blacks or

whites. It further held that there is no affirmative

constitutional duty to change school attendance districts

simply because shifts in population either increase or

II The importance of the resolution of the issues here presented

is disclosed by the decision of the District Court for the Northern

District of California in Diaz v. San Jose Unified School District, 412

F Supp. 310 (N.D. Cal. 1976), which is currently on appeal to the

Court of Appeals for the Ninth Circuit, appeal docketed, No. 76-2148,

9th Cir., May 24, 1976. If the Circuit Court decision here is permitted

to stand, and if the Ninth Circuit follows its prior decisions and

affirms Diaz by holding that racial motivation is required to establish

a constitutional violation, school officials will be faced with yet another

conflict in the decisions of the circuit courts, for Diaz held that the

consistent neutral adherence to a neighborhood school policy is not a

constitutional violation, even if racially imbalanced schools result. 412

F Supp. at 334.

-19-

decrease the percentages of black or white students in

particular schools. 324 F.2d at 213.!2

The District Court acknowledged the holding of Bell,

but concluded that:

“{A] ‘neighborhood school system’ would be

beyond serious constitutional attack if, and only if,

the schools in the system remained essentially the

same with respect to most of the factors

mentioned in Keyes, such as teachers, facilities,

staff, and boundaries.

“But as soon as school officials start to make

changes in school site locations, school sizes,

school renovations and additions, school

attendance zones, assignment and transfer options,

transportation of students, assignments of faculty

and staff, etc., their actions

become .. . ‘constitutionally suspect.’

** *

“In Milwaukee, none of these decisions ever

resulted in any significant or noticeable degree of

desegregation in the school system, and practically

all of them resulted in greater segregation.” (A.

128-129).

The rapid student population changes of the fifties and

sixties forced every large American school system, including

12. The principles expressed in Bell have been subsequently

reaffirmed. See, e.g., Milliken v. Bradley, 418 US. 717, 740-741, 747,

n.22 (1974); Spencer v. Kugler, 326 F Supp. 1235, 1243 (D. NJ.

1971), aff'd, 404 U.S. 1027 (1972); Lawlor v. Board of Education, 458

F.2d 660, 662 (7th Cir. 1972), cert. denied, 413 U.S. 921 (1973).

-20-

the Gary, Indiana system challenged in Bell, to undertake

new school construction, change faculty assignments and

adopt temporary measures in response to overcrowding. 324

F.2d 211-212. Under the District Court’s restrictive

interpretation of Bell, the neighborhood school policy of

each of those systems is “constitutionally suspect.”

The fact that racial balance did not result from Board

decisions consistent with the neighborhood school policy

does not e that the Board acted with an intent to

segregate. ! Site selection, boundary changes and other

similar decisions which are consistent with a neighborhood

school policy but do not eliminate racial imbalance are

evidence of segregative intent only if adherence to the

underlying policy is per se evidence of that intent. If that is

so, all neighborhood school policies in cities with racially

concentrated housing patterns are unconstitutional. Such a

decision emasculates the distinction between de jure and de

facto segregation which was preserved in Keyes.!

13. In Diaz v. San Jose Unified School District, 412 F Supp. 310

(N.D. Cal. 1976), the court made findings amazingly similar to those

made by the District Court here, and concluded that segregative intent

had not been shown. After reviewing site decisions and school

construction decisions, boundary assignment practices and the board’s

failure to take affirmative steps to “integrate,” the court stated:

“The court finds that the district has consistently

adhered to a neighborhood school policy. The board has

applied this policy féutrally: the record discloses no

attempts to gerrymander attendance boundaries or

otherwise manipulate attendance areas to lock in minorities

or freeze segregated school patterns.

“The court may disagree with the policy of the board in

pursuing other educational goals over improved ethnic

balance. If, however, neutral adherence to a neighborhood

schov! policy is constitutional, this court has no authority

to intervene and order integration.” 412 F Supp. at 334.

14. Mr. Justice Powell would have abolished the distinction

(Footnote continued)

Se eee tte he em ht taney Ae ee bie ainda!

21.

D. This Petition Should Be Granted because the Circuit

Court Mistakenly Inferred Segregative Intent from: (a) Board

Decisions Consistent with the Neighborhood School Policy,

(b) Racially Neutral Teacher Assignment Policies and (c) an

Open Transfer Program Adopted to Enhance Racial Balance.

1. Boundary changes conformed to _ the

neighborhood school policy.

The District Court found that: (1) the Milwaukee Board

adhered to the neighborhood school policy uniformly and

consistently (A. 43); (2) the essence of this policy has been

the assignment of students to schools within reasonable

geographic dis.ances of their residences, with attendance

zone radii based upon numerous practical (non-racial) criteria

(A. 43); (3) the policy has controlled the allocation of

students among ‘he schools for attendance purposes (A. 43)

and alternatives inconsistent with this policy were rejected

for that reason (A. 59); (4) this policy has been of decisive

importance in deciding how and where students were and will

be educated (A. 44); (5) boundary changes were primarily

made to meet increasing or shifting student populations or

changing school capacities (A. 47-48); (6) the boundary

changes transferred pupils from overcrowded schools to

adjacent schools having available space so as to avoid, in the

face of population shifts, overcrowding or under-utilization

of buildings (A. 48); and (7) there was no direct relationship

between the student body racial percentages of the receiving

and losing school affected by boundary changes (A. 49).

between de jure and de facto segregation. Keyes, 413 US. at 224. He

would have further limited the scope of remedial steps so as to include

a concern for “legitimate community and individual interests in framing

equitable decrees.” /d. at 253. He advocated that a “more flexible and

reasonable” remedial standard be applied. /d. While district courts have

relied upon Mr. Justice Powell’s concern about proof problems under

the varying standards for southern and northern cases, his statements

on remedy have been for the most part ignored. This problem will

hopefully be alleviated in light of the concurring opinion of Justices

Burger, Powell and Rehnquist in Austin.

-22-

The District Court further found that the basic policy

with regard to boundary changes was to act consistently with

the underlying commitment to the neighborhood school

policy (A. 48). Indeed, the Board refused to undertake

“domino” type boundary changes precisely beceuss they

would have been inconsistent with that policy (A. 49).!> The

pattern and practice was a resolute application of neutral

criteria. These findings preclude any possible inference of

segregative intent.

Nevertheless, the Circuit Court sustained the conclusion

of segregative intent by relying upon an unsupportable

finding of the District Court based on a study of 63

boundary changes which were made between 1950 and 1968.

The conclusions, contained in Exhibit 374, were based upon

information orally collected piecemeal by the plaintiffs’ chief

witness from unidentified persons as to racial composition of

various city blocks many years prior to the date upon which

the data was collected. Only schools which had student

bodies more than 50 percent black as of 1967-1968 were

involved — there was no comprehensive analysis of all

boundary changes during the time period in question.

Even if one were to assume that the study has some

validity and probative value, the District Court found that

only 29 of the 63 (46%) boundary changes arbitrarily

selected for study over an 18-year period increased the

concentration of black students (A. 4, 112). Approximately

44 percent of the boundary changes had no effect on the

concentration of black students. Hence, it was improper for

the Circuit Court to infer segregative intent cven from this

unreliable boundary change study.

15. “Domino” type boundary changes would involve a series of

boundary changes in three or more contiguous disuicts uliimately

placing students in the most distant school in the series (A. 49). “This

was rejected because it was incompatible with the neighborhood school

policy and would ultimately compel children to attend schools far from

their homes.” (A. 49).

rere.

23

Aside from study unreliability, both the District and

Circuit Courts ignored the fact that the evidence conclusively

shows the Board was completely unaware of the racial

makeup of blocks involved in boundary changes. Block by

biock racial statistics were not available, considcred or used

by school personnel. Even if the casually collected statistics

of Exhibit 374 have probative value, no basis exists for

concluding boundary change decisions were motivated by

intent to segregate or even were made with knowledge of

racial consequences.

Racial imbalance in neighborhood schools followed

closely upon black residential concentration. The fact that

Milwaukee’s boundary changes did not eliminate racial

imbalance does not prove segregative intent. Racial balance

could have been achieved only if the Board had abandoned

its neighborhood school policy in response to the

overcrowding and expansion problems which it faced during

the 1950’s and 1960’s.

As student population density increased, boundary

changes were needed to prevent overcrowding. Such changes

were made by contracting attendance zones in conformity

with neighborhood school policy principles. If a negative

inference is drawn from these facts, the neighborhood school

policy is per se unconstitutional.

Although the Circuit Court held that the Board

consistently failed to choose policy options which would

enhance racial balance “without violating the neighborhood

school policy” (A. 18), it did not identify any options

consistent with that policy. Rather, the Circuit Court

suggested boundary change options inconsistent with the

neighborhood school policy.

In footnote 15 to its opinion, the Circuit Court

discussed a boundary change example involving Walnut and

Center Street Schools (A. 18). The example incorrectly

assumed that those schools were overcrowded and then

-24-

stated that the Board had at least three options in making

required boundary changes:

“{T] hey could have transferred only a few biocks

closest to the white school to that school, even

though those blocks were predominantly white;

they could have transferred those blocks and

additional blocks containing black students,

assuming we are right in concluding that there was

room to accommodate additional students; or if we

are wrong about that, they could have transferred

blocks containing blacks instead of blocks

containing whites.” (A. 18, n. 15).

In clear conformity with the neighborhood school

policy, the Board adopted the first option. The second

option assumes, without justification, that there was room in

the “receiving” school to accommodate additional students.

Even if this were true, there was no necessity to transfer

additional blocks. The overcrowding problem was alleviated

by shifting the blocks closest to the transferee school. The

Circuit Court suggestion is the imposition of an affirmative

duty to promote racial balance at the expense of a

neighborhood school policy. This is not the law.

The third option required blatant gerrymandering since

blocks closest to the school would have been passed over in

order to include more distant blocks with a higher black

population. At no time did the Board engage in such

gerrymandering for any reasons.

The option adopted by the Board for the Walnut and

Center Street Schools was the option consistent with the

neighborhood school policy. The suggestion that an

acceptable alternative was to transfer blocks further away

because such transfer would improve racial balance discloses

that the Circuit Court is rejecting the neighborhood school

policy, and is requiring that schooi officials change that

policy to pursue racial balance.

-25-

The Board’s discretion in applying its neighborhood

school policy does not support an inferential conclusion of

segregative intent. The Circuit Court, without factual

foundation, mistakenly assumed the existence of options

consistent with both the neighborhood school policy and

increased racial balance.

2. Intact busing is a natural extension of the

neighborhood school concept.

The Circuit Court inferred segregative intent from, inter

alia, so-called “intact busing” (A. 16) of classes temporarily

displaced from their neighborhood school by overcrowding

or remodeling *” In instances of classroom shortage, the class

and its teacher went from their neighborhood school to a

school having an available classroom, usually for one semester

or less for remodeling or one year for overcrowding (A. 7, 8,

61, 62). A large number of white students were bused by the

intact method (A. 65-66). Indeed, the initial use of such

busing involved white students in the early 1950’s prior to

overcrowding in predominantly black schools. The intact

practice continued to involve white students until it was no

longer used.

Intact busing is a temporary measure which is consistent

with the neighborhoo’ school concept. It has educational,

administrative, efficuwacy and economic advantages (A.

61-62), and it permitted the bused students and their

teachers to continue to identify with the neighborhood

schools to which they would return after the short term

overcrowding was corrected or remodeling completed (often

in mid-semester). Placing the students into multiple classes at

the “receiving” school and reassigning them to their

16. “Intact busing” is a misnomer because it implies a complete

separation of students. In Milwaukee, students bused by the intact

method mixed with receiving school students during recess periods,

lunch programs and school assemblies. This was specifically found by

the District Court (A. 61), but ignored by the Circuit Court. Such

practices are hardly indicative of a segregative motive.

-26-

neighborhood school shortly thereafter would have caused

needless trauma. Further, in pure overcrowding instances,

such actions would have severed the students’ connection

with their neighborhood schools. To infer intent from the

intact busing policy, with its obvious history, purpose and

application without regard to race, is inappropriate.

It is illogical to conclude as did the Circuit Court (A.

16), that intact busing is evidence of segregative intent simply

because in one case it was called one of the “commonly used

or classic segregative techniques.” Higgins v. Board of

Education, 508 F.2d 779, 787 (6th Cir. 1974). Such

arbitrary classification bypasses the intent to segregate

requirement, for an adverse inference, regardless of

motivation or purpose, could be drawn whenever the policy

was used. The Circuit Court’s statement discloses a

misunderstanding of the Keyes-Washington intent standard

and illustrates its generally simplistic approach in reviewing

the District Court decision.

The Circuit Court also based its inference of segregative

intent upon those exceptional instances where intact busing

was used for more than a few semesters. The Circuit Court

relied upon the District Court finding that those exceptions

involved “elementary schools which tended to be

predominantly black” (A. 8, 64). The inference is

unwarranted. There is no finding or evidence that the same

students at the same grade levels were bused over extended

periods of time and no finding or evidence that the sending

schools either transported students to the same receiving

schools each year or that there was space available in the

same receiving schools. The absence of such findings or

evidence discloses that an alternative method of busing would

not have been viable. Further, four of the sixteen schools

(25%) involved in intact busing for more than a few semesters

were predominantly white schools.

-2}-

3. The Board's racially neutral teacher assignment

policies were required by non-racial circumstances beyond

the Board's control and do not evidence segregative intent.

The Circuit Court concluded that the Board must “bear

some part of the responsibility for the teacher imbalance,”

(A. 10) because “[i]t could...have been inferred that

teacher assignments not governed by the collective bargaining

agreement were not made in accordance with racially neutral

principles.” (A. 17). This conclusion was apparently premised

in large part upon testimony not relied upon by the District

Court in making a finding concerning teacher assignment.

The Circuit Court overlooked the contrary testimony of a

Board employee responsible for teacher staffing whose

testimony was incorporated into a finding (A. 75). Further,

even the Circuit Court acknowledged that “the primary cause

of the racial imbalance was the priority given under the

collective bargaining agreement to transfer requests by

teachers with seniority... .”’ (A. 10), and the District Court

found that the “‘agreements have generally barred involuntary

reassignments” (A. 77). When the Board attempted to regain

some of their reassignment rights, the “teachers would have

struck to prevent insertion of such provisions in the

contract” (A. 77).

In addition, thy Gircuit Court ignored the importance of

the following findings:

(1) Teachers, black and white, were in short supply in

early and mid-1960’s (A. 72);

(2) Since at least the early 1960's, heavy emphasis has

been placed on recruiting minority teachers, principals and

administrators; this program was only moderately successful

due both to a shortage of those teachers and the great

demand for them (A. 72-73);

-28-

(3) Significant progress in the recruitment program has

occurred in recent years as a result of increasing numbers of

black teachers (A. 73-74);

(4) The scarcity of qualified teachers required the

Board generally to honor teachers’ personal needs and desires

concerning initial assignment (A. 76);

(5) The Board attempted to persuade teachers not to

transfer out of schools when this would harm facvi.. racial

balance (A. 77); and

(6) “There has never been any effort to keep black

teachers from teaching in predominantly white schools.” (A.

79).

Given these specific findings and the Circuit Court’s arbitrary

reliance on the testimony of one Board member which was

not made a finding of fact, the Circuit Court’s inference that

teacher assignments evidenced segregative intent is without

foundation.

4. The open transfer policy was adopted at

NAACP urging and caused improved racial balance in some

schools and greater imbalance in others. It does not evidence

segregative intent.

The Circuit Court also inferred segregative intent from

the Board’s adoption and maintenance of an open transfer

policy (A. 16). This program permitted students upon

request to transfer from their neighborhood school to any

Milwaukee school with available space, on a first come, first

serve basis. The policy was adopted in 1964 at the request of

the National Association for the Advancement of Colored

People (NAACP) and a black member of the Board, Mr.

Golightly (A. 8, 67, 68), in the hope of enhancing “racial

integration” (A. 68). The Circuit Court recognized that the

policy was adopted for a proper purpose, and further noted

—

-29-

that it had a “mixed racial impact” (A. 9).

The District Court improperly concluded that the open

transfer policy was a substantial cause of segregation even

though there were only “eight instances in which the transfer

policy substantially affected an elementary or secondary

school’s racial composition” (A. 9). Its conclusion is based

upon a 1972 study of the effects of open transfers on racial

balance. The study also discloses that student body racial

percentages at 53 of the system’s approximately 160 schools

(33%) were improved by the use of open transfers. Both the

District and Circuit Courts acted improperly in inferring

segregative intent from an open transfer policy which (a) was

adopted at the request of the NAACP to enhance “ravial

integration,” (b) adversely affected racial balance in only >%

of the system’s schools, and (c) had a positive racial balance

effect at 33% of the schools.

Finally, as there is no evidence that the Board knew that

the open transfer policy was affecting racial imbalance in any

school until the 1972 study was released, and the resulting

imbalance did not affect the system as a whole, its

maintenance is an insufficient basis from which to infer

segregative intent. Through hindsight, the Board has been

condemned for an action initially adopted to, and which in

fact did, enhance racial balance. Both the condemnation and

the inference are unsupported.

Il. THE CIRCUIT COURT IGNORED THE MEANING

OF SEGREGATION ADOPTED IN KEYES BY EQUATING

RACIAL IMBALANCE WITH SEGREGATION AND

REQUIRED INORDINATE REMEDIAL ACTION.

A further reason for this Court to issue a writ of

certiorari is a need to clarify the standard for proving

“segregation.” To prove segregation, the following factors are

to be considered:

-30-

“In addition to the racial and ethnic composition

of a school’s student body, other factors, such as

the racial and ethnic composition of faculty and

staff and the community and administration

attitude towards the school, must be taken into

consideration.”” Keyes, 413 U.S. at 196 (emphasis

supplied).

The District Court did not find any school to be

“segregated” as defined in Keyes. Contrary to the Keyes

directive, both Courts relied solely upon statistical evidence

in concluding that segregation existed. The Circuit Court

stated:

“The statistical evidence, without more, shows that

the system is in substantial part segregated in fact.”

(A. 12).

This departure from Keyes is exacerbated by the Circuit

Court’s conclusion that the system is “in substantial part

segregated in fact,” despite the District Court’s remedial

requirement that the system as a whole must be desegregated

(emphasis added). There is no judicial power to remedy that

which does not violate the Constitution. The conclusion that

some schools are segregated does not justify a similar

conclusion as to all schools, and certainly does not support a

semodies decree which requires a racial quota at every

school. ! 7

17. ‘The District Court ordered that all schools in the system shall

have student populations between 25% to 45% black, with one-third of

the schools to reach this goal by September of 1976, and the middle

and final thirds to meet the required percentages, respectively, by

September of 1977 and 1978 (A. 143-144).

The following comment from the concurring opinion in Austin is

equally applicable here:

“(T]he remedy ordered appears to exceed that necessary to

eliminate the effect of any official acts or omissions. The

Court of Appeals did not find and there is no evidence in

(Footnote continued)

eee ee 2 oe

-3}-

As stated in Brown v. Board of Education, 349 U.S.

294, 300 (1954): “[i]n fashioning and effectuating the

[desegregation] decrees, the courts will be guided by

equitable principles.” The finding of a violation in one

portion of a school system does not permit an equity court

to order its perception of an ideal remedy in all schools.

While there is broad power to remedy past wrongs, and to

correct the condition that offends the Constitution, “the

nature of the violation determines the scope of the remedy.”

Swann v. Charlotte-Mecklenburg Board of Education, 402

U.S. 1, 16 (1971). Congress has also indicated that the

remedy must be limited to the violation. See 20 U.S.C.

Section 1712, p. 5, supra.

Il. THE PRESUMPTION OF CONSISTENCY

ARBITRARILY REJECTS DISTRICT COURT FINDINGS

WHICH MANDATE A LEGAL RESULT CONTRARY TO

THAT REACHED BY TFE DISTRICT COURT.

The Circuit Court resolved the dilemma of an

“unexplained hiatus”’ between the District Court’s “specific

findings of fact” and its “conclusory findings of segregative

intent”’ (A, 17) by creating a “presumption of

consistency.”’*” See pp. 12-13, supra, (A. 17). In so doing, the

Circuit Court conveniently dissolved findings of fact

requiring a reversal. It thus preempted the District Court’s

role as the trier of fact.

Through the “presumption of consistency,” the Circuit

Court ignored the key finding of the District Court that the

the record available to us to suggest that, absent those

constitutional violations, the Austin school system would

have been integrated to the extent contemplated by the

plan.

“Thus, large-scale busing is permissible only where the

evidence supports a finding that the extent of integration

sought to be achieved by busing would have existed had the

school duthorities fulfilled their constitutional obligations

in the past.”

18. “Counsel for petitioners were unable to find a single instance

(Footnote continued)

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Board had “uniformly” and “consistently” adhered to the

neighborhood school policy. The word “uniform” is defined

as “marked by complete conformity to a rule or pattern or

by similarity in salient detail or practice,” and the word

“consistent” is defined as “marked by harmony, regularity,

or steady continuity throughout: showing no significant

change, uneveness, or contradiction.” Webster’s New

International Dictionary (3d ed.). The decision making

process employed by the Circuit Court repudiates the District

Court’s language by concluding that “consistently” and

“uniformly” do not mean what they say.

If a presumption of consistency is proper in an appellate

review context, it must be used to harmonize the

inconsistencies. Here, in the guise of harmonizing, the Circuit

Court in fact negated a specific District Court finding, for

there was no way to harmonize that finding with the

conclusion of segregative intent.

The “‘presumption of consistency” has no foundation in

the law, and, in the context here employed, with good

reason. If such appellate court practice was permitted, courts

would have unfettered discretion to reach a desired result

without constraint by findings inconsistent with that result.

The presumption improperly insulates from meaningful

appellate review erroneous district court conclusions. The

Circuit Court “has so far departed from the accepted and

usual course of judicial proceedings... [that] an exercise

of this court’s power cf supervision [is called for] .”’ Supreme

Court Rule 19.

where an appellate court has relied upon the device created by the

Circuit Court.

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IV. THE APPLICATION OF THE CLEARLY

ERRONEOUS STANDARD OF REVIEW TO ULTIMATE

AND CONCLUSORY FINDINGS IS IN CONFLICT WITH

THE RULE IN OTHER CIRCUITS AND SHOULD BE

OVERRULED HERE.

In affirming the District Court’s “‘conclusory findings of

segregative intent” (A. 17), the Circuit Court improperly

applied the “clearly erroneous” standard of review.!? Its use

of that standard conflicts with decisions of other circuits

concerning the appropriate standard of review of ultimate

and conclusory findings based upon inferences from basic

facts. Among such holdings are the following:

Joseph Lupowitz Sons, Inc. v. Commissioner of

Internal Revenue, 497 F.2¢ 862, 865 (3d Cir.

1974);

Hester v. Southern Railway Co., 497 F.2d 1374,

1381 (Sth Gir. 1974);

United States v. Jacksonville Terminal Co., 451

F.2d 418, 423 (Sth Cir. 1971), cert. denied, 406

U.S. 906 (1972);

Philber Equipment Corp. yv. Commissioner of

Internal Revenue, 237 F.2d 129, 131 (3d Cir.

1956).

As stated in Lupowitz:

19. District Court factual findings may not be set aside unless they

are “clearly erroneous,” i.e. unless upon reviewing all of the evidence

the appellate court is “left with the definite and firm conviction that a

mistake has been committed.” United States v. United States Gypsum

Co., 333 US. 364, 395 (1948).

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“{ Appellant] challenges not the basic facts

found... but its ultimate finding of fact,

[footnote omitted] which represents an inference

drawn from the basic facts. It is settled that such

an ultimate finding is reviewable as an issue of law

and is not subject to the clearly erroneous rule.”

497 F.2d at 865 (emphasis added).

The Circuit Court’s reliance on United States v. Board

of School Commissioners, 474 F.2d 81 (7th Cir. 1973), cert.

denied, 413 U.S. 920 (1973) for the proposition that the

“clearly erroneous” test was the appropriate one is in error,

for the proper standard of appellate review of ultimate and

conclusory findings based upon inferences from basic facts

was apparently neither briefed nor considered therein. This

Court should correct the Circuit Court’s misapprehension of

the law and the resultant conflict between circuits.

V. A DISTRICT COURT’S URGENT IMPOSITION OF

REMEDY SHOULD NOT DENY APPEAL RIGHTS.

This action was commenced in 1965, tried in late 1973

and early 1974 and decided in January of 1976.

Notwithsianding this lengthy history, the District Court

demanded the fashioning of an immediate remedy, and the

Circuit Court refused to stay remedial action.~

The deprivation of more than cursory appellate review

in cases like the instant one by imposing immediate relief

should not be condoned. Meaningful appeal is denied if

limited in any way because a remedy is in process.“* This

20. Application for a stay was filed on May 13, 1976, and denied

on May 20, 1976.

21. It may have been for just such reason that Congress in

adopting 20 U.S.C. Section 1752,p. 5 ,supra, provided that district

court orders requiring the transportation of students for racial balance

purposes shall be postponed until appeal rights have been exhausted.

-35-

Court should review this case on the merits even though the

District Court forced initial implementation before the

processing of timely appeal procedures. Unlike the

experience in some American cities, Milwaukee school

Officials have peacefully commenced restructuring their

school system under court supervision. If anything, their

respect for the law is even more reason for an in-depth review

of the Circuit Court’s decision.

Prior to the District Court’s decision on liability, the

Board initiated development of a voluntary integration

program based upon educational incentives. The Board

adopted a “Statement on Education and Human Rights” on

September 2, 1975. Since the first phase of the remedial

program approved by the District Court was primarily based

upon the voluntary educational incentive program which the

Board had adopted prior to decision, a reversal of the Circuit

Court decision will have little effect on Milwaukee’s present

programs.

CONCLUSION

Recent American history makes clear that a federal

court conclusion of unconstitutional public school

segregation must be based on clear and specific consistent

findings. The District Court’s conclusion of segregative intent

in the instant case does not meet that test. Even a brief

reading of the District Court’s findings of fact reveals that the

racial imbalance in the Milwaukee Public Schools resulted

solely from the Board’s good faith adherence to a racially

neutral neighborhood school policy and non-governmentally

caused racial residential concentration. As a matter of law,

this cannot constitute the requisite intent to segregate unless

a racially neutral neighborhood school policy which results in

some racial imbalance is per se unconstitutional.

Nevertheless, relying on an improper standard of review

and a novel concept called a “‘presumption of consistency,”

the Circuit Court affirmed the District Court’s ultimate

conclusory finding of segregative intent. Even if a

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“presumption of consistency” is appropriate in some cases

decided by a district court, it has no place in a case where the

judicial branch takes continuing jurisdiction of and

extensively restructures a public school system. Public

confidence in the even-handedness of the appellate process in

a case of such far-reaching social consequences requires

something more substantial than appellate presumptions and

reliance on only selected portions of the record and selected

lower court findings of basic facts.

The relationship of Milwaukee residents to their

neighborhood schools traditionally has been a great source of

stability and strength for the City. In a time of increasing

citizen alienation from government at all levels, the forced

dismantling of neighborhood school relationships by the

federal judiciary should be undertaken only in the clearest of

cases.

For economic and educational reasons, the

neighborhood school policy dominates school districts

throughout the nation. If the policy is unconstitutional per se

because of non-governmentally caused racial residential

concentration, let the word go forth immediately.

Conversely, if the policy is constitutional in such a context,

that too should be declared.

Petitioners pray that a Writ of Certiorari be granted to

review the judgment and opinion of the United States Court

of Appeals for the Seventh Circuit.

Respectfuily submitted,

L. C. HAMMOND, JR.

780 North Water Street

Milwaukee, Wisconsin 53202

Attorney for Petitioners

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Of Counsel:

MICHAEL J. SPECTOR,

ROSS R. KINNEY,

RONALD E. KLIPSCH,

PATRICK W. SCHMIDT

and

QUARLES & BRADY

780 North Water Street

Milwaukee, Wisconsin 53202

December 14, 1976.