# Petition — Demopolis City School System v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0008%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 434 U.S. 1014 ## Text Supreme Court, U. S. FILED NOV 4 1977 MICH CLERK IN THE SUPREME COURT OF™ nel RODAK, J. THE UNITED STATES OCTOBER TERM, 1977 77-649 * NO. DEMOPOLIS CITY SCHOOL SYSTEM, Petitioner, Vv. UNITED STATES OF AMERICA, Plaintiff-Intervenor, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT H. A. Lloyd, Counsel for Petitioner P. O. Drawer Z Demopolis, Al., 36732 Of Counsel: Lloyd, Dinning & Boggs P. O. Drawer Z Demopolis, Al., 36732 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1977 NO. DEMOPOLIS CITY SCHOOL SYSTEM, Petitioner, Vv. UNITED STATES OF AMERICA, Plaintiff-Intervenor, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT H. A. Lloyd, Counsel for Petitioner P. O. Drawer Z Demopolis, Al., 36732 Of Counsel: Lloyd, Dinning & Boggs P. O. Drawer Z Demopolis, Al., 36732 INDEX Page Opinions below - -----+---°- 1-2 Jurisdiction -----+-+e-+-+e-e-- 2-3 Questions Presented - - - - --- - 3-13 Statutes, federal rules & regula- tions involved - - ------ 13 Statement - -----+efefefere-- 14-22 Reasons for granting the writ - - 22-37 Conclusion - --\-+-f*efererere--r 37 Appendix - ----\-+-*+e-"eferrer-°- 38 A-8-©--© ce e& © © © © = = = 39 B----+-+-+-+e-e-+--- 49 C---+----- - eee 57 D---+--+-+-e+-+-+-+-+-- 62 i ’that the HEW plan would have moved the zone tine further westwardly and increased the number of whites to Se assigned to East Side but in so doing it would have overcrowded Fast Side by about 300 students; that the prox- imity of the schools if paired would re- quire transporting students as much as three miles; that white flight was a po- 1. See transcript of March 27, 1970 hearing. that bussing by the city was not fea- Sible from the standpoint of expense; that the county could contribute to bussing; the effect of bussing; 51 BEST GOPY AVAILABLE tential threat; and the many other points that lend themselves to the argument that one proposition or another would be the more desirable. All of these same points were considered by the three Judge Court and the plan now in force opted for. No appeal was perfected from the original Order and no contest of any nature was lodged until August 22, 1972 when the NEA filed a motion for further relief charg- ing, among other things, that the pro- motion and demotion policies of the school system, to be conducted pursuant to the Singleton opinion, were being violated. Later on September 21, 1972, a motion for supplemental relief was filed on behalf of Anthony T. Lee and others contending that the school board was not enforcing the Court Order in respects therein specified. On March 31, 197- the Department of Justice advised the Court by pleading that it desired to conduct investigations into this case to see if there had been any violations of the three Judge Court Order and it wasn't until July 14, 1975 that Justice filed an application for order to show cause why a new plan of elementary student assignment ought not be entered to further desegregate the elementary schools. It was and 1S con- tended that evolving law mandates such change. For example, in an appendix to the brief filed by the United States in April of 1976 which was obtained from the records on file in this cause, it appears that the population at West Side Elemen- tary went from a total of 511 for the 52 aioe, nek SARs Ow. oGratvelw — at ste? VY te Te OE Rate school year 1970-71 to a total of 456 for the school year 1974-75 and Fast Side Elementary went from 551 in 1970-71 school year to 403 in 1974-75 school year. The number of white students in the elementary grades has decreased from a total of 495 in 1970 to 398 for a total attrition of 97 while the black populaticn has decreas- ed from 573 in 1970 to 461 fox a total of 112. If the schools are paired, the rough estimate is that each school would have a racial population of 199 white to 230 black or a rough 52% black population whereas the middle school and the upper school have a ratio of 45% to 47% black respectively. The easy thing for the Court to do would be to simply say that the rea- sonings employed by the three Judge Court were erroneous; that the findings and conclusions of that tribunal were based on erroneous assumptions; that Swann v. Charlotte Mecklenberg Board of Education, 402 U.S. 1 (1971) changed the law; that the fact that the statistical information available to that Court and the parties though it has not changed materially, placed no burden or requirement on the plaintiffs totest the accuracy of the conciusions of the Court through the appellate processes; and that the fact that the school board itself has not undertaken any procedure or process that continued or enhanced segregation is of no importance in the equation and there- fore the schools should forthwith be paired to maximize desegregation. The 53 problem is, to so rule tips the veil on this Court's understanding of what the function of the Court is in litigious matters of this type. A terminal Order was entered and the parties operated under it for more than five years before there was any attempt to question its basics. The facts prevailing at the time the Order was en- tered have not changed to any measurable degree. The children of Demopolis have operated under the benefits of that de- segregated system. The population has become acclimated to that operation. Further tampering by imposing new finan- cial burdens upon an already tightly bud- geted system, together with the tential los of muchly needed tax revenue~and the real probability of accelerated attrition with its concomitant loss of further revenue from the State, all for no app- reciable net gain, seems to be poor jus- tification for this Court to now agree with the 20-20 hindsight of a sometimes visitor from Washington rather than agree- ing with the collective judgments of Judge Rives, Johnson and Grooms. This is 2. In 1977 the voters of Demopolis will determine whether to continue a three- mill special school tax due to expire that year. A favorable vote is highly questionable if the schools are paired. (see transcript). 54 Oe ee ee ee ee ee a eee ee ee ee ATA PRM Hake Cetin Sattel E ee e . neta nas ttn ie not to say that more presentable statis- tics might not be accomplished in doing what Washington wants, but it is to say that the Court finds that the collective wisdom of Judges Rives, Johnson and Grooms is not so wide of the mark as would justi- fy a finding that that judgment did not establish a unitary system. There are areas which the evidence indicated do need attention however. The assignment of faculty to the elementary schools does not appear to this Court to reflect a proper assignment contemplated by the original decree, though some pro- gress has been made towards this end, The percentage of black teachers at East Side decreased from 73% to 64% as of the fall of 1974 and increased at West Side from 25% to 33% during that same period of time. The Court directs that the school board update those statistics to give the Court promptly the present teacher assignment statistics and what steps, if any, are now being taken to more nearly equalize the faculty. Some complaint has been registered that the school board has not strictly enforced the attendance zoning, but the Court is satisfied from the evidence that where this problem has existed it has been substantially corrected, if not totally so, and that diligence is being employed by the school board to insure the integ- rity of that part of the Court's prior Order. In the case of Youngblood v. 55 Board of Public instruction of Bay County, 448 F.2d 770 (5th Cir. 1971) the Court of Appeals for the Fifth Circuit addresses itself to the requirements for concluding a desegregation case on the docket of the Court. That case provided that after a finding by the Court that a system was a unitary system as contemplated by the law and semi-annual reporting by the school board of the conditions of the operation of the system for a period of three years had been accomplished that the cause could be set for hearing on the issues and if the facts then justified, the cause could then be removed. Out of an abundance of caution in an effort to comply with this requirement of the law, the Court now specifically finds that the system in the City of Demopolis is a unitary system and the school board is re- quired to file with the Court on a semi- annual basis commencing thirty days follow- ing mid-term of this year and continuing for a period of three years, reports of the schools' activities in accordance with those requirements as specified by the Court of Appeals of the Fifth Circuit in the case of United States v. Hinds County School Board, 433 F.2d 611 (5th Cir. 1970). The school board is further directed that within sixty days of the filing of the sixth such report that it shall cause to be noticed a hearing before the Court for the purpose of terminating all further proceedings in this cause. Done this 29th day of December, ortred States ptstrict out ge 56 1976. APPENDIX Cc IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ANTHONY T., LEE, ET AL., Plaintiffs, UNITED STATES oF AMERICA, Plaintiff-Inter- venor-Appellant, NATIONAL EDUCATION ASSOCIATION, INC., Plaintiff~Inter- venor, versus DEMOPOLIS CITY SCHOOL SYSTEM, ET AL., De fendants-Appel- lees. Appeal from the United States District Court for the Southern Distri Dis¢eri Alabama wieuiaes August 8, 1977 57 Before BROWN, Chief Judge, MORGAN and GEE, Circuit Judges. GEE, Circuit Judge: Demopolis is a medium-sized town in Western Alabama which, until 1969, oper- ated a dual school system. AS a result of a Court-ordered desegregation plan, all students in grades 7-12 were assigned to one junior and one senior high school. These higher grades have operated since on a desegregated basis. There had, be- fore the Order, been three all-white schools and one all-black one which served all grades. The Order converted the former black school and one of the former white ones to elementary schools serving two geographic zones. Under this plan, it has worked out that the black school, East- side, remains essentially all black. For the school year 1970-71, it was 95% black, climbing back a percentage point or so at a time to 100% by 1974-75, but falling back to 98% for 1975-76. The other ele- mentary school, formerly white, remained overwhelmingly so: percentages of black students there ranged from a low of nine in 1970-71 to a high of thirteen in 1974- 75 and 1975-76. These schools are about two-and-one-quarter miles apart by road, a drive of under ten minutes, and are separated by no very significant barriers. A substantial highway does divide them, but it is controlled by traffic lights. The school board has repeatedly stated that only pairing will effectively deseg- regate these schools. On these essential and not seriously disputed facts, and with- out subsidiary findings, the District Court found the Demopolis system unitary. 58 Aa A A Na Ni. men eS tT WA CHS eg eC et Es = ls SEARO Nel Rs ere ee ee att & ee cna Wn dain 19 Oring: So finding , it refused to order further measures to alter the racial imbalance in the elementary schools of this small city, and the United States appeals, This finding of the District Court cannot stand. It is clearly erroneous. See Dayton Board of Education v. Brinkman, U.S. » 45 U.S.L.W. 4910, 4913 (U. S., June 28,1977). The District Court had obviously hoped that its milder, earl- ier Orders would have effect to desegre- gate the elementary schools of Demopolis. They have entirely failed. We do not here contemplate a system including two or three essentially one-race schools result- ing from geographic or demographic acci- dents and surviving as minor anomalies in a broadly integrated program, despite earnest planning and honest effort to eliminate them and those like them, be- cause practical considerations of hazard, distance or expense ail but forbid their elimination. Cf. Carr v. Montgomery County Board of Education, 377F.Supp. 1123 (M.D. Ala. 1974), aff'd, 511 F.2a 1374 (Sth Cir.), cert. denied, 423 U.S. 986, 96 S.Ct. 394, 46 L.Ed. 2d 303 (1975); Stout v. Jefferson County Board of Ed- ucation, 537 F. 2d 800 (Sth Cir. 1976). This is a case where, in a small city Spanned by mostly walking distances, and after eight years, elementary school desegregation has never begun. Nor do we think the procedure carefully laid down by the Supreme Court in Brinkman, Supra, for considering such cases as this and the remedies to be granted in future 59 cases applies here. — 1/ For the Court com- The duty of both the District Court and the Court of Appeals in a case such as this, where mandatory segregation by law of the races in the schools has long ceased, is to first determine whether there was any action in the can- duct of the business of the school board which was intended to, and did in fact, discriminate against minority pupils, teachers or staff. Washington v. Davis, supra. All parties should be free to introduce such additional testimony and other evidence as the District Court may deem appropriate. If such vio- lations are found, the District Court in the first instance, subject to re- view by the Court of Appeals, must de- termine how much incremental segre- gative effect these violations had on the racial distribution of the Dayton school population as presently con- stituted, when that distribution is compared towhat it would have been in the absence of such constitutional violations. The remedy must be design- ed to redress that difference, and only if there fhas been a systemwide impact may there be a systemwide remedy. Keyes, supra, at 213. 45 U/S.L.W. at 4914. 60 = mences its definitive pronouncement in Brinkman with the words "in a case such as this, where mandatory segregation by saw Of the races has long since ceased... 45 U.S.L.W. at 4914, Here, it is true, segregation “by law" has ceased, but all is as it was before it @id. The only elementary schocls Demopolis has are one-race schools, and tne black school is about as black today and the white school about as white as either ever was In so extreme a case and on these unique Statistics, we think we are entitled to presume an intent to discriminate on the part of local authorities, and we do so. It is plain (and practically admitted) that no measure short of pairing the two one-race elementary schools will produce desegregation of them. Milder measures have failed. The evil is clearly system- wide, for all the elementary schools in the system are involved, and all remain effectively segregated. We therefore vacate the Order of the District Court and remand, with directions that the elementary schools of Demopolis be paired and for further proceedings not incon- Sistent with this opinion. It is so ORDERED. 61 APPENDIX D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO. 77-1233 ANTHONY T. LEE, Be Slee Plaintiffs, UNITED STATES OF AMERICA, Plaintiff-Intervenor-Appellant, NATIONAL EDUCATION ASSOCIATION, INC., Plaintiff-Intervenor, V. DEMOPOLIS CITY SCHOOL SYSTEM, Et al., De fendants-Appellees. MOTION FOR RECALL AND STAY OF MANDATE 62 ee ee rit tne ade 8 cape a MOTION FOR RECALL AND STAY OF MANDATE TO THE HONORABLE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT: Defendants- Appellees respectfully present this, their application for, and move the Court to enter, an Order recall- ing and staying the Opinion Order and Man- date heretofore issued in this case on August 8, 1977, and in support of said Motion, Petitioner represents unto the Court as follows: The Opinion Order of this honor- able Court was issued as and for the man- date on August 8, 1977, and was received by the Petitioner on August 10, 1977. Petitioner has filed simultaneous- ly with the filing of this application a Motion for Rehearing En Banc, seeking a further review in connection with the Order of Reversal heretofore issued, In support of this application, Petitioner adopts the grounds and argument of the Motion for Rehearing En Banc which are incorporated herein by reference. As further grounds for its appli- Cation, Petitioner respectfully represents that under the terms of the Order of Re- versal and Mandate heretofore issued, Petitioner is required to pair its ele- mentary schools. While no date is speci- fied in the mandate for the pairing of 63 said elementary schools, the schools of Petitioner open for their fall term on August 26, 1977, and the Order-Mandate was not received until August 10, 1977, as aforesaid. It is physically impossible for the school authorities to plan and implement a pairing of its schools in the short time left remaining from the date of the Order Mandate to the opening of school for the fall term. Attached hereto and marked Exh ib- its "A" through "C" inclusive, are Affi- davits of the Superintendent of Education and other officials of the school and . municipality, detailing the need for this application for a stay of the Order-Man- date. Wherefore, Petitioner prays that this Honorable Court will recall its man- @ate and stay the same pending a ruling on Petition for Rehearing En Banc and such other proceedings as may be finally determined by this Honorable Court. /s/ Hugh A. Lloyd Attorney for Defendants Appellees Post Office Drawer Z Demopolis, Alabama 36732 64 = Ma ee ON el A me ee Oe TN oe — oo STATE OF ALABAMA EXHIBIT "A" MARENGO COUNTY Before me the undersigned auth- ority in and for said State and County personally appeared A.A. Knight who, having been first duly sworn, deposes on oath and states as follows: My name is A. A. Knight and I am Superintendent Demopolis City Schools, and, as such, am familiar with facts Stated herein. The Demopolis City School's Elementary grades should not be paired in a hurry for the following reasons: Travel for many of the walking students will be past a cemetary, over two canal bridges, through at least a mile of uninhabited road which would be unduly dangerous to elementary school- age children. In fact, three years ago a rape-murder of a fifth grade child was committed in this particular area during daylight hours. Unsupervised school children along this route would be exposed to dangers of dog bites, drowning in one of the canals, being run over by automobile or truck or worse, The road (Maria Street), which is the eastern boundary of westside Ele- mentary School Campus, is a truck route, heavily traveled by trucks to and from 65 Miller Lumber Co., Borden Chemical Company, Demopolis Hickory Mill, Grain Elevator for State Docks, River City Industries, (a concrete Products Company) and Saunders Truck Leasing Company. There are no traffic lights from South Main Avenue to the crossroads lead- ing to State Docks and River City indus- tries, a distance of over a mile by road. There are no sidewalks along eith- er of the three routes that traffic must follow from Eastside to Westside and West- side to Eastside in our City. There has been no school trans- portation in our City School Systems. Of the 824 pupils in the two schools, five hundred eighty-three (583) are not eligible for State supported bus trans- portation if such were available due to their living within two miles of school. A mass upheaval at this time would be detrimental to the educational progress of the children involved. This in itself, is reason enough to leave present in force now. Undue stress would be created by sudden school environment changes. The total school programs have been planned with the zoned desegretation plan in mind; and we shall be hard pressed to plan, prepare and get set for a year's work on an entirely different plan if pairing is required by August 26th this year. Pupils who have been notified of placement, etc. and teachers who have been assigned and 66 lated ee ak ee ee a, rl / AM UGS ee A Ni Ite me iba tl i ae ape prepared for one set -up will hardly be able to adjust with Such short notice A change of the maqni gnitude set b the Court must be dealt with carefully : — Preferably Slowly. This can hardly e€ done in the very short while from now to the date set ‘ year. for school opening this /s/ A. A. Knight A. A. Knight Superintendent Demopolis City Schools Subscribed and sw Orn to before ; 18th day of August, 1977. me this /s/ Bobbie w. Sanford NOTARY PUBLIC STATE AT LARGE 67 STATE OF ALABAMA EXHIBIT "B" MARENGO COUNTY Before me the undersigned auth- ority in and for said State and County personally appeared Robert B. Templin who, having been first duly sworn, deposes on oath and states as follows: My name is Robert R. Templin and I am Principal, Westside Elementary School and, as such, am familiar with facts stat- ed herein. (1) The immediate action for pair- ing the schools on August 29, 1977, would be in my opinion emotionally traumatic to the students because of the lack of appropriate time for pre- paration. (2) At this time, which is one week away from the official opening date for the school year 1977-78, the confusion on the part of the teachers, staff and students is al- ready great. Any immediate move would be chaotic for everyone involved. (3) The community must have time to prepare itself phycho- logically for a move of such magnitude, in order to main- tain a practical resemblance to our resent black and 68 white identity. The main- tenance of acceptable racial levels is crucial. If the community has time to study the situation, maybe we will not have a high degree of “white flight" from public education. (4) Time must be furnished for appropriate sidewalks or bike paths to be constructed to give students a safe manner to get from one school comm- unity to another. Presently, there is heavy industrial traffic and no sidewalks or bike paths. Two long bridges must be crossed with no sat- isfactory walks. Numerous sharp curves are involved. /s/ Robert B. Templin Robert B. Templin Principal, Westside Elementary Subscribed and sworn to before me this 18th day of August, 1977. /s/ Bobbie W. Sanford NOTARY PUBLIC STATE AT LARGE 69 STATE OF ALABAMA , EXHIBIT "C MARENGO COUNTY Before me the undersigned auth- ority in and for said State and County personally appeared Chief A. E. Cooper who, having been first duly sworn, deposes on oath and states as follows: My name is Chief A. E. Cooper and I am Chief of Police, City of Demopolis, and, as such, am familiar with facts stated herein. I, Chief A. E.Cooper, have been Police Chief in the City of Demopolis, Alabama since April 15, 1962, and was Chief of Police for 10 years in another jurisdiction prior to this. At the pre- sent time, the Demopolis Police Department consist of a police chief and an assistant chief, and sixteen officers. This depart- ment is entrusted with the police duties of a city with approximately 8000 pop- ulation. The City of Demopolis is approx- imately 45% black and 55% white. To go into pairing situation would require a great deal of planning and schooling for Demopolis officers in what would be expected of them in the face of any situation that may arise due to us having no prior notice of this. A number of our officers are on summer vacation at this time and will not return until about the 25th of August. Furthermore, the Demopolis Police Department operates on a budget that is prepared well in advance. 70 Our 1978 budget has already been submitted and we did not request additional man- power or money for some additional over- time that we are sure this Order will necessitate. As the Court is well aware, the City of Demopolis is a small City but is Spread out over a very large land area. The pairing of the schools will necessi- tate children having to walk from one to three miles unless bussingis provided. Along the three routes to the Westside School, for over 14 miles, there is not one sidewalk for the use of students, or any other pedestrians. Furthermore, there are several bridges that these students would have to travel that have no pro- visions for foot travel. As the department is now operating, four men is about maximum for any one shift and most of the time it is three men. For these officers to try to patrol the schoo.s and take care of the added traffic on our inadequate streets and roads, will be almost beyond our capacity at this time. When added to their regular duties moreover, at the present time, the Demopolis Police Department is operating the only ambulance service in Marengo County and surrounding areas. This am- bulance service has been a great drain on our manpower and it cannot take second place to any other service due to its nature. I, as Chief of Police, need to have time to approach the Council for more men and vehicles to give adequate police protection to our children and 71 citizens involved. We would further need time for a schooling system within our department to acquaint our officers with these changes and to provide enforce- ment of the Court's ruling. At this time, I do not see how we can adequately do these things in the short period of time available us, but you may rest assured that the Demopolis Police Department will try in every way to meet their obligations to the students, citizens, and the Courts if it is within our power. /s/ A. E. Cooper Chief A. E. Cooper Chief of Police City of Demopolis Subscribed and sworn to before me this 18th day of August, 1977. /s/ Bobbie W. Sanford Notary Public State at Large 72 aieueke: eetsall: APPENDIX E IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO. 77-1233 ANTHONY T. LEE, Et al., Plaintiffs, UNITED STATES OF AMERICA, Plaintiff-Intervenor-Appellant, NATIONAL EDUCATION ASSOCIATION, INC., Plaintiff-Intervenor, Ve DEMOPOLIS CITY SCHOOL SYSTEM, Et al., De fendants-Appellees. PETITION FOR REHEARING EN BANC 73 STATEMENTS OF COUNSEL FOR REHEARING EN BANC (Rule 12 F.R.A.P., Fifth Circuit Court of Appeals) I express a belief, based on a reasoned and studied professional judgment, that the panel decision is contrary to the following decisions of the United States Court of Appeals for the Fifth Circuit, and the following decisions of the Supreme Court of the United States, and that con- Sideration by the full Court is necessary to secure and maintain uniformity of Gecisions in this Court: Carr v. Montgomery County Board of Education, 377 F.Supp. 1123, 511 F.2d 1374; (1974) Stout v. Jefferson County Board of Education, 537.F.2d 800; (1976) Washington v. Davis, 426 U.S. 229 (1976) Austin Independent School District v. United States, 97 S.Ct. 517 (1977); Dayton Board of Education, et al., v. Mark Brinkman, et al, 45 LW 4910 (June 27, 1977) I express a belief, based on a reasoned and studied professional judg- ment, that this appeal involves one or more questions of exceptional importance: 74 ee ) ! i i 1. Are the rights of individual school children attending school in a small school district, to be defined and treat- ed in the same manner as the rights of individual school children in a large City and a large school district? 2. Are the same criteria to be used to eliminate the racial imbalance in elementary schools as are used in junior high schools and in high schools? 3. May the Court presume an in- tent to discriminate on the part of local authorities on the basis of racial im- balance in some of the schools in a system where all students in the district, in grades 7-12, are assigned to one junior and one senior high school and the auth- Orities are operating two elementary schools on a zone line established by the lower Court? 4. In the instant case, where mandatory segregation by law of the races has long since ceased, what burden must the Plaintiff-Appellant meet, if any, to entitle him to a system-wide remedy? /s/_H. A. Lloyd Attorney of Record for Demopolis City School System 75 PETITION FOR REHEARING EN BANC TO THE HONORABLE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT: Demopolis City School System, the De fendant-Appellee above named, presents this, its Petition for a rehearing in the above entitled cause; suggests to this honorable Court that the same be heard en banc; and, in support thereof, res- pectfully shows: I The Court in its opinion of rever- Sal herein has failed to take into consid- eration the detailed findings of fact in the Order of the lower Court dated Dec- ember 29, 1976, and upon which that Order was based. il The Court in its reversal opinion failed to apply the principals laid down in Carr v. Montgomery County Board of 3 Education, 511 F.2d 1374, and Stout v. : Jefferson County Board of Education, 537 F. 2d 800 (1976), giving no weight to geographic or demographic considerations, including the practical considerations of hazard, distance, and expense, all of which are incorporated in the evidence and in the findings of the lower Court in this instant case. Pe Par ee Le Fs aed tha. BE 8 52 76 Ii! The Order of Reversal in the in- stant case is in conflict with the Carr case and the Stout case previously de- cided by this honorable Court. IV The Order of Reversal in the in- stant case is contrary to the decisions laid down in the Supreme Court of the United States in Washington v. Davis, 426 U.S. 229 (1976); Austin Independent School District v. United States, 97 S.Ct. 517 (1977); and Dayton Board of Education, Et al., v. Mark Brinkman, Et al. 45 LW 4910 (June 27, 1977). V The Court makes no finding of dis- crimination on the part of local auth- orities in the Reversal Crder, but simply presumeSan intent to discriminate on the part of the local authorities because of the unique statistics involved in this case. To presume an intent to discrimin- ate without any finding of discrimination is, in the opinion of the Petitioner, clearly in conflict with Washington v. Davis, Supra. and Brinkman, Supra. VI The Court, in its opinion of re- versal herein, cites the case of Brinkman, Supra., as a basis for finding the Order of the District Court erroneous; and, in 77 the opinion of Petitioner, this case does not support such a ruling based upon the facts and evidence adduced in the lower Court. VII To require a pairing of the ele- mentary schools in the Demopolis School System would be unfeasible and contrary to practical considerations. ARGUMENT I This school is beforethis honor- able Court after having operated under a terminal Order of desegregation rendered by a three-Judge panel in the Middle District of Alabama more than seven years ago, which Order has now been thoroughly reviewed by the District Court for the Southern District of Alabama, upon sev- eral oral hearings, lengthy depositions of various parties, and various briefs and oral arguments of the parties. This review culminated in the Order of the lower Court, dated December 29, 1976 (Record, Vol. I, P. 56-62). This Court, in its Reversal Order, recites the various racial statistics in the elementary schools involved; finds that the two schools are two and a quarter miles apart by road, a drive of under ten minutes; and are separated by no very significant barriers. The Court then concludes that “on these essential and not seriously disputed facts, and without subsidiary 78 findings" the lower Court found the Demopolis System to be unitary. A reference to tne Order of the lower Court, however, shown in the Record as above cited, reveals that the Order does have recited therein find- ings and conclusions which were quite pertinent to a decision in this matter. For instance, in referring therein to the original three-Judge Order rendered in 1970; "the facts prevailing at the time the Order was entered have not changed to any measurable degree". (Record, Vol. 1, Page 60). The lower Court further concluded from the evi- dence (Record, Vol. 1, Page 59-60) that the School Board itself had not under- taken any procedure or process that continued or enhanced segregation and (Record, Vol. 1, Page 61) that, although some complaint had been registered that the School Board had not strictly en- forced the attendance zoning, it was found from the evidence that where this problem had existed, it had been sub- Stantially corrected, if not totally so; and that diligence was being employed by the School Board to insure the integrity of that part of the Cart's prior Order. The lower Court also found, as reflected in its Order (Record, Vol. 1, Page 57), that the original three-Judge Court had before it for its consideratior. the same information that was presented to the lower Court in the instant case, namely the size of the elementary schools, the distance to be traveled, the fact that the Eastside was an all-black school 79 prior to desegregation, and the Westside was an all-white school prior to dese- gregation, and the fact that the Eastside zone (objectively established in the Order of the three-Judge panel) had approximately 160 white students zoned to attend Eastside School and that the Westside zone had 52 black students zoned to attend that school. From these facts and these findings, reflected in the low- er Court's Order, and based upon the latest statistics before the Court at the time of that Order, it can be readily seen that more black students were act- ually attending the Westside School in the 1975-76 school year than were even anticipated by the three-Judge panel's Order. Moreover, while the evidence is not before the Court, the 1976-77 enroll- ment report shows a substantial gain in the attendance of black students in the Westside School. On the other hand, the projected 160 white students zoned to attend the Eastside School were lost in great degree, as shown by the evidence in the Record, through demographic changes in great measure, and through registration in private schools in lesser measure. This fact is not controverted at all by the Plaintiffs. Petitioner is of the opinion that the Court is in error in failing to take into consideration the findings of fact, and the conclusions hereinabove detailed. 80 * SDs (PTR Ae Po PORTE A Ree Me On a it - {it The entire thrust of the Court's reversal opinion is the assumption that desegregation in the elementary schools of Demopolis has entirely failed simply because of the racial imbalance. The cases of Carr, Supra. and Stout, Supra., as well as other more recent decisions, do not accept the principa! that de- segregation (or the establishment of a unitary system) does not exist simply becauw of racial imbalance. These dec- isions give weight t>% practical con- siderations of changes in demographic patterns, geographic conditions, hazards, distance, and expense, all of which may be contributing factors accounting for racial imbalance, and none of which are attributable to discrimination or actions to preserve segregation on tke part of the school authorities. The Court has either ignored or overlooked the exis- tence of a number of the above mentioned practical considerations which are clear- ly shown by the evidence to be present in the instant case; or, because this is a small school system, these considera- tions are not to be given the weight which they were given in the Carr and Stout cases. In any or either event, the Court disposes of any similarity between the cases by finding that the Demopolis School System is not contem- plated to be such a system ac those mentioned in the above cited cases. Petitioner submits, and strongly con- tends, that the same causes and effects 81 creating the conclusions reached in Carr and Stout are also applicable and present in the instant case. IV and V In the Austin Independent School District v. United States, Supra. the Court stated: "As suggested by this Court's re- mand upon Washington v. Davis, Supra., the Court of Appeals may have erred by a readiness to impute to school officials a segregative intent far more pervasive than the evidence justified. The Court also seems to have erred in ordering a desegregation plan far exceeding any identifiable violations of constitutional rights”. The above cited case, as well as the Brinkman case, makes it clear that where segregation by law has ceased, it is the task of the District Court, as well as the Court of Appeals, to first determine whether there has been any action in the conduct of the business of the school board which was intended to, or did in fact, discriminate against minority pupils. The lower Court found no such discrimination as would justify overturning the three-Judge panel Order issued in 1970. In fact, witnesses of both races testified as reflected by the Record, that no cases of discrimina- tion existed. If, indeed, such dis- crimination did exist, it would then be 82 Et Nes a LA Ried a nll pear inst eS — ld anh Gs RE 6 the ik Tac + SO EBEY welt bihexidlin. oe gE RRS. 00 Ft ve edd Atala yc: STI ol Nn as ee batt AAs oe . , Se ee eee ee incumbent upon the Court under the Austin School case, as well as the others above cited, to correct by balancing of the in- dividual and collective interests, the condition that offends the Constitution and the scope of the remedy would be determined by the nature of the violation. Here, the evidence shows no such vio- lations by the school authorities; yet, the Court, in its reversal opinion, seeks to impute an intent to discriminate to the school authorities. The Petitioner strongly contends that to uphold such an Order would be contrary to the de- cisions above cited. VI The Order of Reversal recognizes that segregation by law has ceased in the instant case, yet goes on to observe: “.eeDut all is as it was before it dia". Petitioner is of the opinion that the statement that “all is as it was before it did" is not supported by the facts in the instant case and that a racial imbalance, in and of itself, cannot re- move the instant case from the operation of the principles laid down in Brinkman, Supra. VII One important factor that must be Strongly considered in the instant case and has been repeatedly considered in previous decisions, is the welfare of the individual student. (See Austin Indepen- 83 dent School District, Supra., and Brink- man, Supra.) Justice Brennan, in the Brinkman case, reminded the District Court to “always be conscious that it is the rights of individual school children that are at stake, and that it is the Constitutional right to equal treatment of all races that is being protected. It is also to be noted in that case that the District Court laid down certain guidelines in the case of elementary school students (45 LW, at Page 4911, Footnote 2(3), specifying that "no student should be transported for a period of time exceeding 20 minutes, or two miles, whichever is shorter". The facts in the instant case show that while the two elementary schools are two and a quarter miles apart, some of the smaller children in grades 1-6 would be forced to walk three and sometimes four miles, one way, to their school in the event these schools were paired, and in the event the child had no transporation. This situation, coupled with the fact that there are few, if any, sidewalks along the routes to these schools, re- quiring the students to walk on the sides of the highways, would impose an unbear- able burden on children of both races, creating exposure to accidents and injury and anxieties to both student and parent which would not be justified from a practical consideration simply to improve racial balance. There are other practical considerations abundantly shown in the record, involving demographic patterns and financial outlays beyond the cap- 84 a abilities of the system which have been overlooked in the present Reversal Order. Moreover, Petitioner wishes to emphasize that the majority to minority provision of its desegregation Order, as may be seen from the Record, is actively being used by black students and has in- creased over the years. Wherefore, upon the foregoing grounds, it is respectfully urged that this Petition for Rehearing be granted, and that the judgment of the District Court be, upon further consideration, affirmed. /s/ H. A.Lloyd Attorney for Petitioner and De fendant-Appellee Post Office Drawer Z Demopolis, Alabama 36732 I, H. A. Lloyd, Attorney for the Demopolis City School System, do hereby certify that the foregoing Petition for Rehearing of this cause is presented in good faith and not for the purpose of delay. /s/ He. A.Lloyd H. A.Lloyd 85 APPENDIX F UNITED STATES COURT OF APPEALS FIFTH CIRCUIT OFFICE OF THE CLERK Edward W. Wadsworth Tel 504-589-6514 Clerk 600 Camp Street New Orleans, La. 70130 October 4, 1977 TO ALL PARTIES LISTED BELOW: No. 77-1233 - Anthony T. Lee, U.S.A., National Education Assoc. v. Demopolis City School System Dear Counsel: This is to advise that an order has this day been entered denying the petition for rehearing, and no member of the panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc (Rule 35, Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the petition for rehearing en banc has also been denied. See Rule 41, Federal Rules of Appellate Procedure for issuance and stay of the mandate. 86 — FS aan Site Gra ieles Aiegwvibe. » eb Sa iatara as aia fi ois iia ec... Sidr: MN ae SRO ie WOME Ie ote. eee Very truly yours, Edward Ww. Wadsworth, Clerk /s/ By Brenda M. Hauck Deputy Clerk *on behalf of appellees, Dem i ’ oOpolis School System, , “— cc: Messrs. Thomas M, Keeling Burtis M. Dougherty H. A. Lloyd 87 ait dehs IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1977 NO. DEMOPOLIS CiTY SCHOOL SYSTEM, Petitioner, Vv. UNITED STATES OF AMERICA, PLAINTIFF-INTERVENOR, Respondent. CERTIFICATE OF SERVICE I, H. A. Lloyd, one of the Attorneys for Demopolis City School System, Petitioner herein, and a member of the Bar of the Supreme Court of the United States, here- by certify that on the day of Novem- ber, 1977, I served copies of the foregoing Petition for Writ of Certiorari to the Su- preme Court of the United States on the several parties thereto as follows: l. On the United States, by mailing a copy in a duly addressed envelope, with postage prepaid, to W. A. Kimbrough, Jr., Esquire, United States Attorney for the Southern District of Alabama, P. O. Drawer E, Mobile, Alabama; and by leaving a copy thereof at the office of the Solicitor General, Department of Justice, Washington, D. C. 20530; and by leaving a copy thereof at the office of Burtis M. Dougherty, Esquire, Attorney of Record for Plaintiff-Intervenor, Department of Justice, Washington, D.C. 20530. 2. On National Education Association, Plaintiff-Intervenor, by mailing a copy in a duly addressed envelope,with first class postage prepaid, to its Attorney of Record, Solomon S. Seay, Jr., Esquire, Gray, Seay, & Langford, 352 Dexter Avenue, Montgomery, Alabama 36104. Attorney for Petitioner, Demopolis City School System P. O. Drawer Z Demopolis, Alabama 36732 ee tees «lll . IOS ving He eke , . ne Raha; eS a ets MDE EAE SY GIG, Sct ty Safi Nite! Hee. AS seals Bho bay Wiis. ire --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0008%3A1. Public record. Not legal advice.