# Petition — Brennan v. Armstrong

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 433 U.S. 672

## Text

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.

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1003%3A1. Public record. Not legal advice.