Petition — Bowen v. United States

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\- Supreme Court, U

IN THE i SEP 11 1978

Supreme Court of the United States

SPARL POBAK, JR., CLER

October Term, 1978 rel,

No. ; re! i 4 l 3

OTIS R. BOWEN as Governor of the State of Indiana;

THEODORE L. SENDAK, as Attorney General of the

State of Indiana;

HAROLD H. NEGLEY, as Superintendent of Public In-

struction of the State of Indiana;

THE INDIANA STATE BOARD OF EDUCATION, a

public corporate body,

Petitioners,

Vs.

UNITED STATES OF AMERICA,

and

DONNY BRURELL BUCKLEY,

ALYCIA MARQUESE BUCKLEY, By their parent and

next friend, Ruby L. Buckley, on behalf of themselves

and all Negro school age children residing in the area

served by original defendants herein,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

THEODORE L. SENDAK

Attorney General of Indiana

DONALD P. BOGARD

Chief Counsel

WILLIAM F. HARVEY

Special Counsel

ATTORNEYS FOR

PETITIONERS

Office of Indiana Attorney General

219 State House

Indianapolis, Indiana 46204

Telephone: (317) 633-6249

C. E. Pauley & Co., Inc., Indianapolis

TABLE OF CONTENTS

nr i

EL ae a eT a NCES ORE eR EN PI

I ed

Questions Presented for Review —....................-..------

Constitutional and Statutory Provisions Involved

ey Or Te SO cl ete

I. Course of Proceedings Below ..................

II. Facts Material to Questions Presented ..

Reasons for Allowance of the Writ .........................

1. An Interdistrict Remedy is Neither

Necessary nor Proper Within Marion

RT EET SOE OTS

II. This Court Should Exercise its Power

of Supervision Over the Lower Federal

RN a eee ea

RN ke a

TABLE OF AUTHORITIES

Cases

Page

Austin Independent School District v. United States,

I Te, Be I heist sneichetccsvevenioridesinevcnsennsnneclennctionee 4

Bowen v. United States of America, 429 U.S.

Re ett ccoceasiscebias decade tonenoesnnceeetcmnnnineton’ 3, 12, 16

Brennan v. Armstrong, 433 U.S. 672 (1977) .........--- 4,13,16

Brown v. Board of Education of Topeka,

Fea ey Ae eiouley ecm nee meester eae ae 6

Carter v. Carter Coal Co., 298 U.S. 238 (1936) .............. 6

Dayton Board of Education v. Brinkman,

— fs By) ee ee eer eee 4, 13, 16, 17

Milliken v. Bradley, 418 U.S. 717 (1974) ............---.------- 4,12

Pasadena City Board of Education v. Spangler,

Bn cage cntetiataetabhswnscnteemraieicaeionisolneniennneks 4

Railroad Retirement Board v. Alton Railroad Co.,

Gk Ee | SNES One aes eee ee 6

School District of Omaha v. United States,

fh Rg) RAR RE ey a ee or 4, 13, 16

Swann v. Charlotte-Mecklenburg Board of

pe Eo ES ey SR nnn Rpeenee ere ese 4

United States v. United Mine Workers of

Be ae ED rat ncncctcrcicenorssnvcerocmecepnns 6

U.S.A. v. Board of School Commissioners, 332

oe Bae e.g | nonce 3, 4, 13, 15

U.S.A. v. Board of School Commissioners, 474

ge i oe ES: | Sa mEr eI CNOUS NAN KNCRRIO NOS Rv ECCN TE 3

U.S.A. & Buckley v. Board of School Commissioners,

368 F.Supp. 1191 (S.D. Ind., 1973) ................ 3, 5, 11, 12, 15

U.S.A. & Buckley v. Board of School Commissioners,

fe E Fy Ye ae | Reainubones Remeemnwnemunroee 3,15

ll

TABLE OF AUTHORITIES—Continued

Page

U.S.A. & Buckley v. Board of School Commissioners,

419 F.Supp. 180 (S.D. Ind., 1975) 200... 3, 5, 12, 14

U.S.A. & Buckley v. Board of School Commissioners,

Oe sare ERE CPM CO, FOU oovsiv cnc cecemtvapeeniesiesceens 3, 5, 14

U.S.A. & Buckley v. Board of School Commissioners,

PO ae Re CFU RT ng BG OD vo saciccceceserecsceteanncnsereees meta

Village of Arlington Heights v. Metropolitan

Housing Development Corp., 429 U.S. 252 (1977) 4,10, 12

Washington v. Davis, 426 U.S. 299 (1976) .......... 4,10, 12,16

Constitutional and Statutory Provisions

Fourteenth Amendment to the Constitution of the

I nn 7

I = a eeeinreua 4

S| re 7S RRM a NOR ry EES = OT ee aE 4

Pr a a 7

Sry NT ae ee 13, 14

Ne Ral AR RSE On WORDS er Se oe RE 13

Bele UI a ke 8,10

Other Authorities

Rule 19(1)(b) of the Rules of the Supreme Court of

OO tr Ne coceveliouini 4

Rule 20 of the Rules of the Supreme Court of

a a Th a ie 4,6

Rule 59 of the Federal Rules of Civil Procedure ............ 5

Rule 60 of the Federal Rules of Civil Procedure .......... 5)

iii

IN THE

Supreme Court of the United States

October Term, 1978

No.

OTIS R. BOWEN as Governor of the State of Indiana;

THEODORE L. SENDAK, as Attorney General of the

State of Indiana;

HAROLD H. NEGLEY, as Superintendent of Public In-

struction of the State of Indiana;

THE INDIANA STATE BOARD OF EDUCATION, a

public corporate body,

Petitioners,

vs.

UNITED STATES OF AMERICA,

and

DONNY BRURELL BUCKLEY,

ALYCIA MARQUESE BUCKLEY, By their parent and

next friend, Ruby L. Buckley, on behalf of themselves

and all Negro school age children residing in the area

served by original defendants herein,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

Petitioners’, Otis R. Bowen, as Governor of the State of

Indiana; Theodore L. Sendak, as Atiorney General of

1The parties in the Seventh Circuit who are considered respondents

herein are: United States of America; Donny Brurell Buckley, Alycia

Marquese Buckley, by their parent and next friend, Ruby L. Buckley, on

1

2

the State of Indiana; Harold H. Negley, as Superin-

tendent of Public Instruction of the State of Indiana;

and the Indiana State Board of Education, a public corpo-

rate body (hereafter State Defendants) respectfully pray

this Court issue a Writ of Certiorari to review two

decisions issued by the United States District Court for

the Southern District of Indiana, Indianapolis Division

(hereafter District Court) prior to decision by the United

States Court of Appeals for the Seventh Circuit (hereafter

Seventh Circuit). Those decisions were issued on June 2,

1978, and July 11, 1978, in cause number IP 68-C-225.

Notices of appeal were filed by the State Defendants on

June 30, 1978, and July 21, 1978, respectively, and the

cases were docketed in the Seventh Circuit as numbers

78-1871 and 78-2002.

OPINIONS BELOW

The opinions of the District Court have not been officially

reported. They were issued on June 2 and July 11, 1978,

following remand of the case by the Seventh Circuit on

behalf of themselves and all Negro school age children residing in the

area served by original defendants herein; The Board of School Commis-

sioners of the City of Indianapolis, Indiana; Karl R. Kalp, as Superin-

tendent of Schools; Erle A. Kightlinger, as President of the Board of

School Commissioners; Jessie Jacobs, Carl J. Meyer, Paul E. Lewis, Lester

E. Neal, Constance R. Valdez, W. Fred Ratcliff, Members of the Board

of School Commissioners of the City of Indianapolis; The Metropolitan

School District of Lawrence Township, Marion County, Indiana; The

Metropolitan School District of Perry Township, Marion County, Indiana;

The Metropolitan School District of Pike Township, Marion County, Indi-

ana; The Metropolitan School District of Warren Township, Marion Coun-

ty, Indiana; The Metropolitan School District of Wayne Township, Marion

County, Indiana; The Metropolitan School District of Decatur Township,

Marion County, Indiana; The Franklin Township Community School Cor-

poration, Marion County, Indiana, The Metropolitan School District of

Washington Township, Marion County, Indiana; The School Town of

Speedway, Marion County, Indiana; The School City of Beech Grove,

Marion County, Indiana; Citizens for Quality Schools, Inc.; Coalition for

Integrated Education; Indiana State Teachers Association.

3

February 14, 1978. 573 F. 2d 400 (7th Cir., 1978). A copy

of the Seventh Circuit’s opinion of February 14, 1978, is

included in the Appendix attached to the Petition for Writ

of Certiorari in No. 77-1614 (hereafter Petition Appendix).

Copies of the District Court’s opinions of June 2 and July

11, 1978, are attached hereto at pages A-1 and A-13 re-

spectively.

On August 11, 1978, the Seventh Circuit issued an Order

remanding the case to the District Court for the ‘‘limited

purpose of hearing and deciding upon modifications of the

July 11th judgment in the nature of alternative remedy’’

as well as hearing any further evidence on which alterna-

tive remedy ‘‘is necessary and equitable.’’ See copy at-

tached at page A-47. This limited remand is taking place

at the same time as the appeals from the two judgments

of June 2 and July 11, 1978, although the briefing schedule

for those appeals has been delayed by the Seventh Circuit.

The Order of this Court remanding the case to the

Seventh Circuit may be found at 429 U.S. 1068 (1977),

and the Opinion of the Seventh Circuit which was vacated

and remanded may be found at 541 F. 2d 1211 (7th Cir.,

1976). Petition Appendix A-31. The decision by the Dis-

trict Court which gave rise to that appeal to the Seventh

Circuit may be found at 419 F.Supp. 180 (S.D. Ind., 1975).

Petition Appendix A-68.

Other decisions by the District Court and the Seventh

Circuit in this case are 332 F.Supp. 655 (S.D. Ind., 1971),

aff'd. 474 F. 2d 81 (7th Cir., 1973), cert. denied 413 U.S.

920 (1973); 368 F.Supp. 1191 (S.D. Ind., 1973), aff’d in

part, reversed in part, and remanded, 503 F. 2d 68 (7th

Cir., 1974), cert. denied 421 U.S. 929 (1975). Those deci-

sions are appended to the Petition for Writ of Certiorari

in No. 76-515.

4

JURISDICTION

The jurisdiction of this Court is invoked pursuant to

28 U.S.C. §1254(1), 28 U.S.C. §2101(e), Rule 19(1)(b)

and Rule 20 of the Rules of this Court, to review two

opinions of the District Court pending on appeal to the

Seventh Circuit before judgment is given in such Court,

and to review an Order of the Seventh Circuit which has

so far departed from the accepted and usual course of

judicial proceedings as to call for an exercise of this

Court’s power of supervision because that Court 1s at-

tempting to decide a federal question in a way in conflict

with applicable decisions of this Court.

This case is of such imperative public importance to

justify deviation from the normal appellate processes and

to require immediate settlement in this Court. Litigation

was commenced by the United States in May, 1968, against

the Board of School Commissioners of the City of Indian-

apolis (hereafter L.P.S.), and LP.S. was found guilty of

de jure segregation in 1971, 332 F.Supp. 655 (S.D. Ind.,

1971). Attempts by the District Court to develop a remedy

beyond that school district have all been rejected on appeal.

However, those attempts continue, despite the decisions of

this Court in Village of Arlington Heights v. Metropolitan

Housing Development Corp., 429 U.S, 252 (1977); Wash-

ington v. Davis, 426 U.S. 299 (1976); Dayton Board of

Education v. Brinkman, 433 U.S. 406 (1977); Swann v.

Charlotte-Mecklenburg Board of Education, 402 U.S. 1

(1971); Austin Independent School District v. United

States, 429 U.S. 990 (1976) ; Milliken v. Bradley, 418 U.S.

717 (1974); Pasadena City Board of Education v. Spang-

ler, 427 U.S. 424 (1976); School District of Omaha v.

United States, 433 U.S. 667 (1977); and Brennan v. Arm-

strong, 433 U.S. 672 (1977).

5

The independent school districts sought to be used for

purposes of a remedy in this case have all been found not

to be guilty of any de jure acts of segregation. 368 F.Supp.

1191, 1203 (S.D. Ind., 1973). The statute alleged to have

illegally restricted desegregation of I.P.S. has been found

racially neutral, 541 F’, 2d 1211, 1220 (7th Cir., 1976), and

there has been no finding that that statute caused any inter-

district segregation.

Yet, despite all of the above, the District Court, on June

2 and July 11, 1978, issued two opinions which reinstituted

an opinion previously issued by that Court on August 1,

1975, 419 F.Supp. 180 (S.D. Ind., 1975), aff’d. 541 F. 2d

1211 (7th Cir., 1976), but vacated and remanded, 429 U.S.

1068 (1977). In those opinions the District Court made a

finding that it has not been able to make before, without

taking additional evidence, i.e., that the General Assembly

of Indiana had acted, in part, with a racially discrimina-

tory intent. Attached appendix pages A-19 and A-21,

Following appeals by several parties from those two

opinions, I.P.8., which was the original defendant and is

one of the appellants of the latest District Court opinions,

filed a motion in the Seventh Circuit asking for a ‘‘limited

remand’’ of the case to the District Court to explore

alternative remedies. There were no Rule 59 or Rule 60

motions filed in the District Court by I.P.S. Nevertheless,

the Seventh Circuit granted the motion, and returned the

case to the District Court for what appears to be the fourth

extensive trial in this cause.

Thus, after ten years of litigation which includes three

full trials, the students of I.P.S., who in 1973, were found

to have been denied their constitutional rights, are still

waiting for redress of those violations, due to the rejected

theories of the District Court and the Seventh Circuit. The

Solicitor General has acknowledged the futility of those

6

theories, stating on page 11 of his brief to this Court in

No. 76-515:

The United States commenced this suit to chal-

lenge racial discrimination by and within LP.S, It

prevailed on its claims. Full relief has been delayed

for several years, however, while the district court

has considered an expanded, inter-district remedy

that the United States did not seek. In our view this

delay has been fruitless, because the evidence has

not demonstrated any purposeful inter-district

racial discrimination of the sort that would justify

an inter-district mandatory reassignment of stu-

dents. (Emphasis supplied).

This case involves eleven separate and independent

school districts with a current enrollment of approxi-

mately 152,000 students. Those students and their parents

have been in a state of uncertainty regarding the future

of their schools and their school careers. That uncertainty

would be eliminated if the holdings of this Court were

followed by the District Court and the Seventh Circuit.

Thus, Petitioners would assert that it is in the public inter-

est that there be a prompt settlement of this important

matter, and that this case is, therefore, properly reviewable

by this Court pursuant to Rule 20. Brown v. Board of

Education of Topeka, 344 U.S. 1, 3 (1952) ; Carter v. Carter

Coal Co., 298 U.S. 238, 285 (1936) ; United States v. United

Mine Workers of America, 330 U.S, 258, 269 (1947) ; Rail-

road Retirement Board v. Alton Railroad Co., 295 US.

330, 344 (1935).

QUESTIONS PRESENTED FOR REVIEW

1. Whether the alleged violations in question had any

incremental segregative effect on the racial distribution of

the school populations of I.P.S. and the suburban schools

7

when compared to what they would have been in the

absence of such alleged violations.

2. Whether a unitary school district can be accom-

plished within the I.P.S. school district.

3. Whether the Seventh Circuit so departed from the

normal course of judicial proceedings by granting a motion

to remand while the case was properly on appeal as to call

for this Court’s power of supervision.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The Fourteenth Amendment to the Constitution of the

United States provides, in part, as follows:

§1. Citizenship—Due Process of law—Equal

protection.—All persons born or naturalized in the

United States, and subject to the jurisdiction there-

of, 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 immu-

nities 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

a its jurisdiction the equal protection of the

aws,

§5. Power to enforce amendment.—The con-

gress shall have power to enforce, by appropriate

legislation, the provisions of this article,

42 U.S.C. § 2000c-6 provides, in part, as follows:

(a) Whenever the Attorney General receives a

complaint in writing—

(1) signed by a parent or grou

p of parents

to the effect that his or their minor children,

as members of a class of persons similarly situ-

8

ated, are being deprived by a school board of

the equal protection of the laws, .. .

and the Attorney General believes the complaint is

meritorious and certifies . . . that the institution

of any action will materially further the orderly

achievement of desegregation in public education,

the Attorney General is authorized,-. after giving

notice of such complaint to the appropriate school

board or college authority and after certifying that

he is satisfied that such board or authority has had

a reasonable time to adjust the conditions alleged

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

the United States a civil action in any appropriate

district court of the United States against such par-

ties and for such relief as may be appropriate, and

such court shall have and shall exercise jurisdiction

of proceedings instituted pursuant to this section,

provided that nothing herein shall impower any of-

ficial or court of the United States to issue any

order seeking to achieve a racial balance in any

school by requiring transportation of pupils or stu-

dents from one school to another or one school dis-

trict to another in order to achieve such racial bal-

ance, or otherwise enlarge the existing power of the

court to insure compliance with constitutional stan-

dards. The Attorney General may implead as de-

fendants such additional parties as are or become

necessary to the grant of effective relief hereunder.

1.C. 20-8.1-6.5-1 provides :

Court Ordered Transfers. This chapter concerns

the transfer of students for education from one

school corporation (transferor corporation) to an-

other school corporation (transferee corporation)

in compliance with a court order as described in

this section. This chapter applies solely in a situa-

tion where a court of the United States or of the

State of Indiana in a suit to which the transferor or

transferee corporation or corporations are parties

9

has found the following: (a) a transferor corpora-

tion has violated the equal protection clause of the

Fourteenth Amendment to the Constitution of the

United States by practicing de jure racial segrega-

tion of the students within its borders; (b) a unitary

school system within the meaning of such Amend-

ment cannot be implemented within the boundaries

of the transferor corporation; and (c) the Four-

teenth Amendment compels the Court to order a

transferor corporation to transfer its students for

education to one or more transferee corporations to

effect a plan of desegregation in the transferor

corporation which is acceptable within the meaning

of such Amendment. This chapter shall not apply

‘until all appeals from such order, whether taken by

the transferor corporation, any transferee corpora-

tion or any party to the action, have been exhausted

or the time for taking such appeals has expired

except where all stays of a transfer order pending

appeal or further court action have been denied. .

STATEMENT OF THE CASE

I.

Course of Proceedings Below

This Petition arises from opinions issued by the District

Court and an Order issued by the Seventh Circuit in the

Indianapolis School Desegregation case. A full statement

of the case is contained in the Petition filed in 77-1614

which has not been acted upon by this Court. Actions taken

since the time of filing that Petition are listed below.

A.

Following remand from the Seventh Circuit on February

14, 1978, the District Court held a hearing on an intra-

LP.S. plan, with only L.P.S., the United States, the inter-

vening Buckley plaintiffs, and the Indiana State Teachers

10

Association (hereafter I.S.T.A.), an intervening plaintiff,

attending. The District Court issued its decision on June 2,

1978. See attached appendix, page A-1. In that opinion the

District Court reinstituted its interdistrict transfer opin-

ion of August 1, 1975, in which it had found that the

Indiana Transfer Act, I.C. 20-8.1-6.5-1, provided a remedy

for the segregation in I.P.S. The District Court stated that,

pursuant to the mandate of this Court it would consider

Arlington Heights and Washington v. Davis, and ‘‘express

its findings in a very short time.’’ Attached Appendix,

page A-2.

Notices of appeal to the Seventh Circuit were filed from

that opinion by LP.S., the State Defendants, and the

United States. The first notice was filed by I.P.S. on or

about June 21, 1978.

On July 11, 1978, the District Court issued its latest

opinion, incorporating the findings of the June 2 opinion,

and ordering a one-way transfer of black students from

L.P.S. to eight suburban Marion County schools so that

each such receiving school would have a black student

percentage of fifteen percent.

Notices of appeal to the Seventh Circuit were filed from

that decision by LP.S., the State Defendants, the eight

suburban schools, and The Housing Authority of the City

of Indianapolis. The first notice was filed by the Perry

Township Schools on or about July 12, 1978. LP.S. filed

its Notice on July 24, 1978.

On July 25, 1978, the Seventh Circuit held a hearing on

three issues, including, allowing I.P.S. to go forward with

an intradistrict plan; consolidating the appeals from the

two District Court opinions; and whether the Seventh

Cireuit should, sua sponte, issue a stay of the District

Court’s transfer order. See Attached Appendix, page

11

A-32. The Court issued its Order on July 28, 1978. Attached

Appendix, page A-33.

On August 2, 1978, I.P.S. filed a ‘“Motion of Indianapolis

Public Schools for Limited Remand for District Court

Consideration of Alternative Remedy Proposals’’ in the

Seventh Circuit. See Attached Appendix, page A-37. The

Seventh Circuit granted that Motion on August 11, 1978.

Attached Appendix, page A-46.

Applications for stays were filed by the eight suburban

schools and the State Defendants, and on August 11, 1978,

the District Court issued a stay of its inter-district trans-

fer order until the second semester of the current school

year. -

II.

Facts Material to Questions Presented

The district Court stated in its second opinion in this

case, 368 F'. Supp., at 1198, that:

In other words, it is apparent that as a sheer

exercise in mathematics, it would be possible for

this Court to order desegregation of IPS on a 58.9%-

41.1% basis, or some basis similar thereto, so that

no school could, for the time being, be racially

identifiable as a black school. .. .

REASONS FOR ALLOWANCE OF THE WRIT

I.

An Interdistrict Remedy is Neither Necessary nor

Proper Within Marion County, Indiana.

In 1971, the District Court found that LP.S. was guilty

of acts of de jure segregation in the operation of its

schools. That finding was affirmed by the Seventh Circuit,

and certiorari was denied. Thus, since 1973, I.P.S. has been

12

awaiting action to totally desegregate its schools. That

action has not been forthcoming, however, due to repeated

attempts by the District Court and the Seventh Circuit to

establish an interdistrict remedy.

The first attempt by the District Court was in 1973, 368

F.Supp. 1191, wherein that Court ordered a one-way trans-

fer of black students from LP.S. to nineteen separate and

independent school districts in seven counties in Central

Indiana equal to five percent of the receiving school’s

population. That transfer was ordered even though the

suburban schools were found not to be guilty of any acts

of de jure segregation. 368 F.Supp., at 1203, Prior to a

ruling by the Seventh Cireuit, this Court decided Miliken

v. Bradley, supra, and so the Seventh Circuit reversed the

District Court as to the transfers across county lines and

remanded the case for further proceedings in regard to

transfers to the ten schoo! districts within Marion County,

Indiana.

Following another trial the District Court, in 1975, 419

F.Supp. 180, ordered a one-way transfer of black students

from LP.S. to eight of the suburban Marion County schools

so that each receiving school would be approximately

fifteen percent black, Two suburban schools were not re-

quired to receive any students since they were ‘integrating

rather rapidly, as a result of demographic changes.’’ 419

F.Supp., at 185. The Seventh Circuit affirmed that decision,

and this Court vacated and remanded for further consider-

ation in light of Arlington Heights and Washington v.

Davis. 429 U.S. 1068 (1977).

A three judge Seventh Cireuit panel then issued a three

opinion decision remanding the ease to the District Court,

and that Court merely reinstituted its 1975 opinion with an

additional finding that official bodies of the State had the

13

intent, in part, to keep blacks within LP.S. and out of the

suburban schools.

However, neither the Seventh Circuit nor the District

Court considered this Court’s opinions in Dayton, Omaha,

or Brennan v. Armstrong. Those cases require that the

lower courts consider the incremental segregative effects

of the alleged violations on the racial distribution of the

school populations of I.P.S. and the suburban schools as

compared to what they would have been in the absence of

such alleged violations,

The last two decisions of the District Court attempt to

justify an interdistrict remedy by holding that the passage

of I.C, 18-4-1-1 et seq. (hereafter Uni-Gov) by the Indiana

General Assembly was done with the intent to segregate

the school populations of L.P.S, and the suburban schools.

That explanation is presented even though the Uni-Govy

act was not passed until 1969, to take effect in 1970, LC.

18-4-15-2, and even though the District Court previously

found segregation in I.P.S. on the:

... two critical dates... May 17, 1954, the date

of the decision of the Supreme Court of the United

States in Brown v. Board of Education of Topeka

(‘‘Brown 1’’) 347 U.S, 483, 74 S.Ct. 686, 98 L.Ed.

873, 38 A.L.R, 2d 1180, and May 31, 1968, the date on

which this suit was filed,

332 F.Supp., at 657-658,

Throughout the ten years of this litigation neither of

the lower courts has made any findings regarding the

effect of the alleged violations on the school populations

of I.P.S. and the suburban schools, That is so because

the record shows that none of these alleged violations had

any effect whatsoever on the school populations within

Marion County.

14

The Seventh Circuit found that Uni-Gov was a racially

neutral statute with its main purpose to efficiently re-

structure civil government? within Marion County. 541

F.2d, at 1220. There has never been a finding that Uni-Gov

caused any interdistrict segregation. In fact, the evidence

shows that since the passage of Uni-Gov three of the

ten suburban school districts have had substantial in-

creases in black population, and there are increases in the

other districts as well, Washington Township Schools, with

over 13,000 students, increased from 8.07% to 17.74%

black; Pike Township Schools, with almost 4,000 students,

increased from 5.16% to 17.62% black; and Lawrence

Township Schools, with approximately 9,500 students, in-

creased from 0.78% to 6.40% black. The District Court

acknowledged these demographic changes within Marion

County by not ordering transfers to Washington and Pike

Schools. 419 F.Supp., at 185.

However, the District Court is not willing to acknowledge

that black students move to the suburban districts of their

choice, i.¢., out of the L.P.S. District and into Washington,

Pike, Lawrence, or any other district. Instead, the District

Court seeks a racial balance of fifteen percent black in

every suburban district, a population pattern that has

never existed in Marion County and not one that would

have existed but for the passage of Uni-Gov.

The issue in this case is, and always has been the

desegregation of the LP.S. schools, There has been no

2 Uni-Gov consolidated several of the civil governmental functions of

the City of Indianapolis and the County of Marion. It did not consolidate

schools, which have never been a part of the civil government, and, in addi-

tion, did not consolidate the following: police and fire protection, I.C,

18-4-12-6 and 7 and I.C, 18-4-12-35; airport authority and board; health

and hospital corporation and board; county department of welfare and

board; county home board; building authority, board of trustees, and

board of directors; capital improvements board of managers; housing

authority; library districts and boards; I.C, 18-4-3-14,

15

showing in this case that I.P.S. could not be desegregated

within its borders. In fact, the District Court acknowleded

over five years ago that it could ‘‘order desegregation of

LP.S. on a 58.9%-41.1% basis, or some basis similar there-

to, so that no school could, for the time being, be racially

identifiable as a black school.’’ 368 F.Supp., at 1198. How-

ever, the District Court, contrary to the decisions of this

Court, seeks a remedy that will work forever. ‘‘In the

long haul, it won’t work.’’ 332 F.Supp., at 678.

Just as the District Court has applied the incorrect

standard to determine the extent of the remedy in this

case, so also is its finding of ‘‘intent’’ on the part of the

General Assembly incorrect as a matter of law and in

total disregard of this Court’s decisions. The same is true

for the finding that the State officials:

... have, by various acts and omissions, promoted

segregation and inhibited desegregation within

I.P.S., so that the state, as the agency ultimately

charged under Indiana law with the operation of the

public schools has an affirmative duty to assist the

I.P.S. Board in desegregrating I.P.S. within its

boundaries . . . 503 F. 2d, at 80.

That finding embraces the District Court’s concept that

there must be ‘‘meaningful desegregation’’ of LP.S., 368

F.Supp., at 1198, and that to be ‘“‘meaningful”’ a fixed

percentage of black students now enrolled in I.P.S. must

be transported to the suburban school districts in Marion

County. Further, because the State has not merged the ten

school systems in Marion County into one school system it

has obstructed ‘‘meaningful desegregation’’ which becomes

the State’s act of segregation and which allows the District

Court to invoke its equity power. The majority opinions of

the Seventh Circuit also support that concept.

16

But those findings and that concept violate Washington

v. Davis, supra. As this Court stated, at page 239:

Our cases have not embraced the proposition that

a law or other official act, [here the creation and

existence of school systems other than I.P.S.] with-

out regard to whether it reflects a racially diserim-

inatory purpose, is unconstitutional solely because

it has a racially disproportionate impact.

Even if such violations are found, then their significance

is to be measured by the legal standard established in

Dayton Board of Education v. Brinkman, supra, in which

this Court said that it is the duty of the Distriet Court to

determine how much incremental segregative effect those

violations had on the racial distribution of the Dayton

school population as presently constituted, when that dis-

tribution is compared to what it would have been in the

absence of such constitutional violations. The remedy,

then, must be designed to redress that difference. School

District of Omaha v. United States, supra, and Brennan v.

Armstrong, supra. The finding of the District Court and

the orders of the Seventh Circuit are totally at odds with

and in disregard of this Court’s decisions in those cases.

It is plain from this record that the lower courts seem

unable and unwilling to adhere to the ruling precedents

from this Court, and have not reconsidered this case as

this Court instructed in January, 1977, 429 U.S. 1068

(1977).

II.

This Court Should Exercise Its Power of Supervision

Over the Lower Federal Courts.

The Petitioners would assert that the actions of the

Seventh Cireuit and the District Court detailed above,

show, without a doubt, that those Courts choose not to

17

follow the decisions of this Court, but instead, seek to

justify an inter-district remedy any way that they can.

Thus, the Seventh Circuit ignored the remand order of this

Court, and once the District Court had issued its decisions,

granted a remand motion while the case was properly on

appeal and without the movants filing any such preliminary

motion in the District Court.

As stated above, the District Court did not consider

Dayton or its progeny. Now, however, even without valid

Arlington Heights, Washington v. Davis, and Dayton find-

ings in the latest District Court opinions, the Seventh

Circuit is remanding the case to the Dis:rict Court for

further remedy hearings. Such hearings are inappropri-

ate at this time, and emphasize the need for this Court to

give direction to the lower courts.

The action of these courts departs from the normal

course of judicial proceedings and calls for this Court to

exercise its power of supervision over the Seventh Circuit

and to order that Court to remand the case to the District

Court with instructions to dismiss the suburban school dis-

tricts and the State Defendants, and to proceed with the

desegregation of I.P.S. within its own boundaries.

No, 77-1614.

18

CONCLUSION

The State Defendants would respectfully urge this

Court to issue the Writ of Certiorari prayed for herein,

and to consolidate this Petition with the Petition filed in

Respectfully submitted,

THE )DORE L. SENDAK

Attorney General of Indiana

DONALD P. BOGARD

Chief Counsel

WILLIAM F. HARVEY

Special Counsel

ATTORNEYS FOR

PETITIONERS

Office of Indiana Attorney General

219 State House

Indianapolis, Indiana 46204

Telephone: (317) 633-6249

APPENDIX

INDEX

Page

United States District Court, Southern District

of Indiana, Indianapolis Division, IP 68-C-225,

Entry Gated Juma 2, 1978 nn ..sccecccccscencosecnsncssesee coors A-1

United States District Court, Southern District

of Indiana, Indianapolis Division, IP 68-C-225,

Memorandum of Decision and Judgment dated

OURS Tg FTE innicchinsiidina pacientes A-13

United States Court of Appeals for the Seventh

Circuit, Order dated July 18, 1978 ..0..........eeceeeeeeee A-32

United States Court of Appeals for the Seventh

Circuit, Order dated July 28, 1978 .......0..c.cccccececceeeee A-33

Motion of Indianapolis Public Schools for

Limited Remand for District Court

Consideration of Alternative Remedy Proposals .... A-37

United States Court of Appeals for the Seventh

Cireuit, Order dated August 11, 1978 0.000... A-46

A-1

[United States District Court IP 68-C-225]

ENTRY

This case comes before the court once again, this time

on the order of the Court of Appeals directing this court

to give further consideration to its order of April 7, 1978

denying approval of a skeleton desegregation plan proposed

by the defendant Board of School Commissioners of the

City of Indianapolis (IPS), and intended by it to be imple-

mented for the 1978-79 school year. The plan is referred

to by the Court of Appeals as the Proposed Intradistrict

Plan, and will hereafter be so styled herein by its initials

(PIP).

The Court of Appeals has posed certain questions to this

court, which will be answered seriatim. However, it also re-

quests that a determination as to the merits of PIP be

made independently of the matter of an interdistrict rem-

edy. With all due respect, this court is simply unable to

consider one without the other for the very simple reason

that the Court of Appeals has already adopted this court’s

previous findings, based on the evidence, that an interdis-

trict remedy is the only practical way to desegregate IPS

with any prospect of long term success. A recent pronounce-

ment of the Court of Appeals adopting this finding as

the law of the case, and criticizing the United States

for doing the very thing it is doing in this rather precip-

itous appeal is as follows:

‘‘The Government contends that the mandatory

transfer of students between IPS and the suburban

schools ordered by the district court is improper.

After conceding the import of Milliken, the propriety

of interdistrict relief, and noting the specific finding

of facts found by the district court to have sub-

stantially caused segregation in the other districts,

the Government concludes the district court’s order

was an abuse of discretion. We are confused by the

Government’s reasoning.

‘‘We fail to see how the district court abused its

discretion when it was clearly acting within the

guidelines of Milliken. It was not an abuse of dis-

A-2

cretion merely because the Government would have

preferred another remedy.

‘‘Furthermore, the Government’s arguments are in-

consistent. On the one hand, it demands that segre-

gation be eliminated root and branch from within

IPS; on the other, it condemns the only relief which

can make its demand a reality. We are.surprised the

Government seriously offers voluntary transfer as

an alternative to mandatory transfer as a means to

effectuate its goal of complete desegregation. His-

tory has taught us that ‘freedom of choice’ plans

produce negligible results. Green v. County School

Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716

(1967).’? United States v. Board, 541 F.2d 1211,

1223.

Further, this court believes that the interdistrict remedy

previously ordered by it can and should be put into effect

at once, wholly apart from the considerations posed by

such cases as Village of Arlington Heights v. Metropolitan

Housing Development Corp., 429 U.S. 252 (1977), and

Washington v. Davis, 426 U.S. 229 (1976). These cases,

requiring a finding of a racially discriminatory intent as a

prerequisite to the granting of equitable relief, deal purely

and simply with the limits on the power inherent in a

federal court of equity to rectify problems arising as a

result of segregation.

As a matter of constitutional law, then, the Court of

Appeals has held, following the mandate of the Supreme

Court, the Arlington Heights and Washington v. Davis

must be considered by this court. This court will do so and

will express its findings in a very short time. Meanwhile,

however, it is respectfully submitted that the State of

Indiana has provided a remedy which this court has fol-

lowed, but which has heretofore never been considered by

the Court of Appeals because no appellant added defendant

school corporation has raised or challenged the port.

In its Supplemental Memorandum of Decision dated

December 6, 1973, 368 F.Supp. 1191 beginning at 1223, this

A-3

court recognized both the right and the duty of the General

Assembly of Indiana to legislate with a view toward assist-

ing in the process of desegregation. Various possible ap-

proaches were pointed out, but with no suggestion as to

which would be preferable; indeed, the General Assembly

was encouraged to come up with a workable solution of its

own.

Shortly thereafter, during its 1974 session, the Gen-

eral Assembly acted promptly upon this court’s suggestion,

and adopted a method by which any state or federal court

in Indiana could order transfers of students from segre-

gated school corporations to other school corporations, and

provided a workable method of reimbursement to the trans-

feree corporations. This Act was written, passed, and in

force under an emergency clause on February 20, 1974~—

only 76 days after it was suggested by this court as one

possible means of meeting the problem! I.C, 1971, 20-8,1-

6.5-1, et seq. The Act provides that three essential elements

be met in order for the transfers to take place, as follows:

(1) A transferor corporation must have violated the

equal protection clause of the fourteenth amend-

ment to the Constitution of the United States by

practicing de jure racial segregation of the students

within its borders;

(2) A unitary school system within the meaning of such

amendment cannot be implemented within the

— of the transferor school corporation ;

an

(3) The fourteenth amendment compels the court to

order a transferor corporation to transfer its stu-

dents for education to one or more transferee

corporations to effect a plan of desegregation in

the transferor corporation which is acceptable

within the meaning of such amendment.

The foregoing constitute all of the requirements for

transfer (save exhaustion of appeals). There is no require-

ment whatever for Arlington Heights or Washington v.

Davis analysis of the transferee corporation, nor that it

A-4

have been guilty of any fourteenth amendment violation.

The statute represents purely and simply a State enacted

remedial measure, which the General Assembly had un-

doubted power to enact.

At the time the Indiana Transfer Act (ITA) was passed,

this case was on appeal, and continued in this status until

April 21, 1975, on which date the Supreme Court denied

certiorari as to the decision of the Court of Appeals dated

August 21, 1974, 503 F.2d 68, That decision directed this

court to have a further hearing to determine whether,

under the guidelines of Milliken v, Bradley, 418 U.S. 717

(1974), a case decided by the Supreme Court while the

Indianapolis case was on appeal, an interdistrict remedy

was justified within the area of Uni-Gov. Such a hearing

was held, and the question answered in the affirmative on

August 1, 1975 (Indianapolis IV), 419 F.Supp. 180. That

decision was affirmed by the Court of Appeals on July 16,

1976, 541 F.2d 1211, but the latter decision was vacated

and remanded by the Supreme Court on January 25, 1977,

429 U.S. 252. The Court of Appeals then vacated and

remanded the decision of this court on February 14, 1978

(mandate received March 31, 1978). The latter decision is

as yet unreported.

In its opinion of August 1, 1975, this court specifically

stated that in addition to the Milliken question it would

also consider matters of Indiana law, thus:

“This Court was specifically directed to determine

whether the establishment of the Uni-Gov bounda-

ries of the City of Indianapolis without a like

reestablishment of Indianapolis Public Schools

boundaries warrants an interdistrict remedy within

Uni-Gov in accordance with Milliken v. Bradley, 418

U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974).

Pursuant to such direction, a further evidentiary

hearing was held, beginning March 18, 1975, and the

parties have submitted both oral argument and

briefs, all of which have been considered. The Court

has also given consideration to other matters raised

A-5

rl hc —— and evidence, and to matters of

ndiana law, all as will more fully appear.’’ 419

F.Supp. 180, at 182. tins .

After answering the Milliken question in the affirmative,

this court then immediately launched into a discussion of

the ITA, pointed out its essential elements as previously

set out in this opinion, and then set out its findings as

follows :

‘*In the case at hand, we have a suit in which all of

the school corporations in Marion County, Indiana

are parties, and in which this Court has made, and

now reiterates, the following findings :

(a) The defendant Board of School Commission-

ers of Indianapolis, Indiana (IPS) has violated the

equal protection clause of the Fourteenth Amend-

ment to the Constitution of the United States by

practicing de jure racial segregation of the students

within its borders. United States v. Board of Sch.

Com’rs, Indianapolis, Ind., 332 F.Supp. 655 (S.D.

Ind. 1971), aff’d 474 F.2d 81 (7 Cir.), cert. den, 413

U.S. 920, 93 S.Ct. 3066, 37 L.Ed.2d 1041 (1973).

(b) A unitary school system within the meaning

of such amendment cannot be implemented within

the boundaries of IPS. ‘In the long haul, it won’t

work,’ 332 F.Supp. at 678.

‘This Court found as a fact in its opinion of Jul

20, 1973, 368 F.Supp. 1191, et seq., that within the

IPS boundaries resegregation of desegregated

schools occurs wen the percentage of black stu-

dents in a given school approaches 25% to 30%,

more or less. That finding has not been challenged

by anyone, Therefore, in a school corporation in

which the percentage of black pupils has now

reached more than 42% over all, and with the Court

of Appeals having ordered this Court to take fur-

ther steps to desegregate the same, 503 F.2d 80, the

Court is placed in an impossible situation unless

A-6

the transfer for education of a substantial number

of black IPS pupils to school corporations other

than IPS is accomplished.

‘‘The Court therefore makes the following addition-

al finding’s :

(c) The Fourteenth Amendment compels the

Court to order IPS to transfer a substantial number

of its black students to various added defendant

school corporations for education in order to effect

a plan of desegregation in the transferor corpora-

tion which is acceptable within the meaning of such

amendment.’’ 419 F.Supp. 180, 184.

This court then ordered that a certain number of black

students be transferred from IPS to various other school

corporations within the Uni-Gov area. In a separate order

of the same date, exact numbers of students were assigned

to each transferee school. IPS was ordered to identify the

transfer pupils and then to submit to this court a final plan

for desegregation of the remaining students within IPS.

419 F.Supp. 186. (IPS has not complied with this order in

any particular; indeed, it specifically directed its Director

of Planning to disregard it and to work up the PIP plan

when he brought such order to the attention of the present

Board. Testimony of witness Payne, May 30, 1975.)

In making the explicit findings compatible with ITA, as

above set out, this court was obviously acting pursuant to

the terms of that act. Not one of the transferee corpora-

tions named in the accompanying orders of the court

challenged these findings on appeal. Rather, they raised

the false issue that there was insufficient evidence to sup-

port the Milliken findings. This very clever maneuver on

the part of such added defendants has been successful to

date, since the Buckley plaintiffs have sought only to meet

the errors asserted by added defendants (and the original

plaintiff), and have wholly failed to point out to the Court

of Appeals that the remedy provided by the State of Indi-

ana makes it unnecessary to consider the constitutional

issues which would otherwise require solution. However,

A-7

the time in which a transferee corporation could have ques-

tioned this court’s findings has long since passed, so there

would appear to be no reason why this court’s orders,

based on ITA, should not be carried out.

Long established practice holds that questions of consti-

tutionality are not to be decided unless such adjudication

is unavoidable. Kelly v. Illinois Bell Telephone Company,

325 F.2d 148 (7 Cir. 1963), Although application of ITA

requires constitutional determinations to be made by the

trial court, such have in this case been made long ago and

have either been affirmed on appeal or not raised on appeal.

They are now res judicata, and ITA may and should be

applied.

This court was ordered to consider the merits of the PIP

plan. Of course, it had already done so insofar as could be

done in view of the incompleteness of the submission, when

it denied permission to imp!smeni the plan eu April 7,

1978, after hearing the arguments of counsel on April 6,

1978. However, in order to supplement the record, and to

develop facts required to meet the questions posed by the

Court of Appeals, a further hearing was had on M ay 30-31,

1978. The United States offered no evidence, but evidence

was presented by IPS, the Buckley intervening plaintiffs,

and by intervening plaintiff Indiana State Teachers Asso-

ciation. From the evidence heard the court finds as follows:

( A) PIP is not sound (apart from any interdependence

with an interdistrict remedy) as a remedy to be put into

effect in 1978-79, because :

(1) It is not complete in that Phase III (the plan for

the elementary schools) has not even been begun except for

the two-page skeleton filed May 26, 1978 at 4:13 p.m. Even

the skeleton had not been adopted «#t the time it was filed,

and was not adopted until some sort of a hurry-up meeting

was held on Memorial Day, May 29.

(2) It cannot be implemented as to Phase II (upper

elementary) because Phase II (the details of which were

only filed on May 26, 1978 at 4:13 p.m.) depends upon the

A-8

use of two buildings which are not even in existence, and

which will not be completed for a matter of years. Most

of the other proposed upper elementary schools require

remodeling or additions which will require until January,

1979 to complete.

(3) It should not be implemented as to Phase I (high

schools), as it is unnecessarily complicated and substan-

tially destroys the stability of presently stable elementary

schools.

(a) There are only two high schools which are

substantially out of phase which the Board’s own

guidelines. Both schools have an unduly high black

population, but this has come about since the filing

of this action as a matter of demographic movement.

It is not necessary to reorganize the high school

patterns in the whole city to change the racial bal-

ance in two schools.

(b) The PIP plan provides that elementary stu-

dents may only attend schools located in their ulti-

mate high school attendance areas, so that many

present elementary attendance areas will be split.

(4) PIP has been discussed either minimally, or not at

all, with IPS teachers, with the exception of the options

aspect. A new plan of massive reassignments which has

not been explained to the teachers will not function well,

if at all.

(5) The main selling point of the PIP plan was the

options plan for the elementary schools, Only 20% of the

elementary children, or their parents, made a choice under

the options plan. As a result IPS has voluntarily aban-

doned the options plan, except for a few pilot schools.

(6) While IPS was attempting to sell its options plan

to parents, teachers, pupils, and the public, it gave no

general publicity to the fact that PIP in its entirety was

in reality a massive desegregation plan.

(a) Consequently, the public, parents, teachers,

and pupils are unprepared for PIP.

A-9

(b) The above facts will hinder or defeat the

success of PIP, according to IPS’s own witnesses.

(7) IPS to this date has not furnished the court with

any estimate as to the number of students who will be

= and reassigned from the present schools under

(8) PIP represents a ‘‘massive ‘fruit basket’ scram-

bling of students . . .’’ which both this court, 332 F.Supp.

655, 678, and the Court of Appeals have said ‘‘ ‘won’t

work’ in the long run.’’ Moreover, all witnesses who testi-

fied on this point at the hearing of May 30-31, including

the defendant Superintendent of Schools of IPS, agreed

with this statement.

(B) The representation that PIP cannot be imple-

mented for 1978-79 unless it be approved at about the pres-

ent time is incorrect.

(1) It could not be implemented for 1978-79 even if it

was approved at this time, because:

(a) The options plan has already been aban-

doned for lack of interest.

(b) The Phase II buildings cannot be built or

altered in time.

(C) If PIP were presently approved and implemented

for 1978-79, and at some later time an interdistrict remedy

were found appropriate, (answering the precise question

put, although an interdistrict remedy is already appropri-

ate under ITA) the implementation of PIP might well

interfere with, and in fact prevent entirely the formula-

tion and implementation of interdistrict remedy.

Of the many Supreme Court cases on desegregation,

probably the most quoted case after Brown I, and certainly

the easiest to understand, is Swann v. Charlotte-Mecklen-

burg Bd. of Ed., 402 U.S. 1, (1971). The last two para-

graphs of the text in that decision read as follews:

‘‘At some point, these school authorities and others

like them should have achieved full compliance with

A-10

this Court’s decision in Brown I. The systems

would then be ‘unitary’ in the sense required by our

decisions in Green and Alexander.

‘‘Tt does not follow that the communities served by

such systems will remain demographically stable,

for in a growing, mobile society, few will do so.

Neither school authorities nor district courts are

constitutionally required to make year-by-year ad-

justments of the racial composition of student bod-

ies once the affirmative duty to desegregate has been

accomplished and racial discrimination through of-

ficial action is eliminated from the system. This

does not mean that federal courts are without power

to deal with future problems; but in the absence of

: showing that either the school authorities or some

other agency of the State has deliberately attempted

to fix or alter demographic patterns to affect the

racial composition of the schools, further interven-

tion by a district court should not be necessary.’’

402 U.S. 1, 31.

As stated above, the United States presented no evidence

at the current hearing. However, its counsel made an open-

ing statement in which he said, or said in substance, the

following:

(1) IPS schools can be desegregated with the IPS only

PIP plan.

(2) By desegregated is meant that ‘‘. .. if you take

all these schools and make them 60-40 or something like

that, then theoretically you have fulfilled the constitutional

mandate,’’

(3) The Government will not predict and is not con-

cerned with what will happen after a massive racial bal-

ancing plan is put into effect, so long as it is theoretically

sound on paper from the standpoint of numbers.

(4) The Attorney General is opposed to any plan which

would involve suburban schools.

A-11

It seems obvious to this court that if PIP is ordered

implemented by the Court of Appeals, the United States

will immediately declare IPS desegregated and get out.

Indeed, under Swann it will be argued by added defendant

transferee corporations and perhaps by the Attorney Gen-

eral as well that the case must forthwiiii end, except for

monitoring. The Buckley plaintiffs, representing all black

school children in IPS do not want this result, the trial

court does not want this result, and the Court of Appeals

did not appear to want it when it spoke as set out on pages

1 and 2 of this opinion.

(D) The explanation for it being termed ‘‘counterpro-

ductive’’ to put the PIP into effect for the year 1978-79

(or any year) is :

(1} Itis unsound, as explained in (A).

(2) It might well block further consideration of any

interdistrict remedy, as explained in (C). It is submitted

that, contrary to the tentative opinion of the Court of

Appeals appearing at the top of page 6 of its May 17

order, such would produce probable injustice.

One other matter remains, as to matters on appeal, and

that is the matter of the reassignment of students pres-

ently attending the Harry E. Wood High School. This

court originally denied the proposed method of reassign-

ment on no very good basis except that it appeared to

be a part of a wholly unsound package (PIP). The court

now reverses itself and approves the proposed Wood plan,

if it has jurisdiction to do so; if it does not have such

jurisdiction, it respectfully suggests that the Court of Ap-

peals order such plan approved.

The court detects a note of urgency in the May 17 order,

which is not inappropriate in view of the length of time

this case has been in the courts. However, this is no rou-

tine case, and in the end should result in implementation

of the innovative plan designed by the General Assembly

of Indiana, which might well serve as a guide to other

troubled school districts.

A-12

It is not as if nothing were being done in Indianapolis

to relieve segregation. Approximately 9,500 students have

been bused daily since 1973 without serious incident; all

high schools meet or approach PIP guidelines save two;

there are no longer any all white schools at any grade

level. The only remaining problem of substance is the

several 90% or more black elementary schools, and this

problem will be alleviated by application of ITA and rela-

tively minor readjustments thereafter.

ORDER

Having answered all questions put to it by the Court

of Appeals, this court now returns to old business. If IPS

can draw up a completely new, city wide, Phase III ele-

mentary school plan where none at all now exists, and do

it in eight weeks (which is testimony about which this

court has some reservation), it can surely designate the

pupils for transfer to transferee school corporations, and

adjust the remaining IPS students even more quickly. It

was ordered to make such plans in 1975, and has not done

so. The reason is clear—the IPS superintendent testified

that IPS did not want to give up any students or close

any schools. This may be a reason, but it is not an ac-

ceptable excuse.

It is therefore considered and ordered that the defend-

ant Board of School Commissioners forthwith proceed to

formulate a plan for the transfer of black students to the

various transferee school corporations, in the same num-

bers and grade levels, all as set out in this court’s judg-

ment dated August 1, 1975. IPS may consult with the

transferee schools, but will be sole judge as to what stu-

dents will be transferred, and will not delay its plans for

purposes of consultation. Such plan should be completed

within six weeks from this date, or sooner if possible.

Further orders will be made regarding the implementa-

tion of such plan pursuant to ITA at the same time that

this court announces its findings and conclusions as re-

quired by the Court of Appeals in its remand of February

A-13

14, 1978. It is anticipated that the same will be fortheom-

ing in three weeks, more or less, but said planning should

begin on receipt of this order.

All of which is considered and ordered this 2nd day of

June, 1978.

/s/ 8S. Hugh Dillin, Judge

[United States District Court IP 68-0-225]

MEMORANDUM OF DECISION

This cause comes before the court pursuant to remand

from the United States Court of Appeals for the Seventh

Cireuit, 573 F.2d 400 (1978).

To summarize briefly the more recent rulings in the case,

the Court of Appeals held in 1976 that the action of the

General Assembly of Indiana in passing legislation in 1969

to enlarge the City of Indianapolis to include all of Marion

County, with the exception of three cities and towns,

(‘‘Uni-Gov’’), while at the same time repealing a previous

law providing that the boundaries of the civil city and the

school city would, generaly speaking, be coterminous, had

an obvious racial segregative impact, and was a substan-

tial cause of interdistrict segregation. U.S. v. Bd of Sch.

Com’rs of City of Indianapolis, 541 F.2d 1211 at 1220.

Is also held that action of the added defendant Housing

Authority of the City of Indianapolis (“‘HACI’’) in locat-

ing all of its public housing projects within IPS borders,

although it had the authority to place them in the suburbs,

produced discriminatory effects both within IPS and the

suburbs. 7d., p. 1223. The Court then found that this

court’s order, 419 F.Supp. 180 (1975), which ordered the

transfer of black students from IPS to various suburban

schools within Marion County, was in accord with the prin-

ciples of Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112,

41 L.Ed.2d 1069 (1974), and affirmed the same, 541 F.2d

1211 (1976).

The Supreme Court of the United States vacated the

judgment and remanded the case to the Court of Appeals

A-14

for further consideration in light of Village of Arlington

Heights v. Metropolitan Housing Development Corp., 429

U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), and Wash-

ington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d

597 (1976). On remand the Court of Appeals reaffirmed

that the passage of Uni-Gov and its companion legislation

meets the requirements of Milliken and therefore can be

used as a basis for imposing an interdistrict remedy if

the district court finds that the General Assembly, in en-

acting the series of legislation, acted with a racially dis-

criminatory intent or purpose. 573 F.2d 400, 408. The

purpose of the remand, therefore, is for this court to make

findings as to the intent of the General Assembly, as well

as to the intent of HACI and the Metropolitan Develop-

ment Commission of Marion County (‘‘Commission’’) with

respect to the location of public housing.

In Arlington Heights the Court laid down some of the

criteria to be considered in determining whether a racially

discriminatory purpose entered into a challenged action.

‘‘The impact of the official action—whether it ‘bears more

heavily on one race than another,’ Washington v. Davis,

426 U.S. at 242—may provide an important starting point.

Sometimes a clear pattern, unexplainable on grounds other

than race, emerges from the effect of the state action even

when the governing legislation appears neutral on its face.

. 2? 50 L.Ed.2d 450, 465.

The Court then went on to list other evidentiary con-

siderations:

(1) ‘*The historical background of the decision is

one evidentiary source, particularly if it reveals a

series of official actions taken for invidious purposes

(2) ‘*The specific sequence of events leading up to

the challenged decision \. .

(3) ‘*Departures from the normal procedural se-

quence also might afford evidence that improper

purposes are playing a role.

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(4) _“‘Substantive departures too may be relevant,

particularly if the factors usually considered im-

portant by the decisionmaker strongly favor a de-

cision contrary to the one reached.

(5) ‘*The legislative or administrative history

may be highly relevant, especially where there are

contemporary statements by members of the deci-

sionmaking body, minutes of its meetings, or re-

ports... .’’ Id., pp. 465, 466.

The court will now consider the e pplication of such eri-

teria to the facts of this case.

I. Historical Background

The situation of the Negro in Indiana, 1800-1971, was

described in this court’s first opinion in this case, 332

F.Supp. 655 (1971). The facts set out therein have never

been challenged, and are a part of the law of this case.

Such facts show that Negroes were held as slaves in Indi-

ana, the provisions of its constitution to the contrary not-

withstanding, that they had no right to vote, nor to serve

in the militia, nor to intermarry with whites, nor to give

testimony as a witness in a case involving a white party.

The laws against serving in the militia and against inter-

eT were not repealed until 1936 and 1965, respec-

ively.

Further facts are that the Indiana Constitution of 1851

prohibited Negroes and mulattoes from coming into the

state. Until after World War II, Negroes were rarely

admitted, save on a segregated basis, to theatres, public

parks, State parks, schools, or public hospitals. Housing

was segregated in Indianapolis and Marion County until

a date past the filing of this suit in 1968. Negroes were

discouraged from purchasing homes in ‘‘white’’ neighbor-

hoods by realtors who refused to show them such homes,

by use of a ‘‘two-price’’ system, and by advertising hous-

ing for ‘‘colored’’ in Indianapolis newspapers. Racial

covenants barring Negroes were made a part of various

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plats in suburban areas, and were enforced by the courts

until 1948. An Indianapolis ordinance in 1926 made it a

crime for a Negro to live in a white area, and vice versa.

Pioneering Negroes who succeeded in penetrating a white

neighborhood were harassed by threatening and obscene

telephone calls and rocks hurled through windows. Custom

and usage dictated that Negroes were not to stay over-

night in small towns, and their departures was enforced

by the police.

In the area of schools, Negroes, mulattoes and their chil-

dren were barred from admission to the common schools

by an act of 1861. In 1869, after the adoption of the Four-

teenth Amendment, a law was adopted which provided for

the education of Negro children, but only in segregated

schools. The Supreme Court of Indiana held as recently

as 1926 that Negro children were not entitled to admis-

sion in common sehools provided for the education of white

children, a policy legislatively recognized again in 1935.

Desegregation, on a phased basis (one grade per year),

was not required until 1949.

The added defendant suburban school corporations of

Marion County, the record shows, have entered into a

great number of interdistrict cooperative educational and

vocational plans with each other and with districts out-

side the county. However, they have entered into none

with IPS, although IPS has initiated such discussions.

The only perceived difference between IPS and other dis-

tricts (other than size) is race.

In 1868 Indianapolis erected a new school house and,

anticipating the 1869 legislation, assigned the old building

on Market Street for the education of Negro children.

Thus the Indianapolis schools started educating the Negro

child on a segregated basis and continue to do so until

this day, inasmuch as several all-black elementary schools

remain in use.

From the foregoing, it will be noted that Indiana, unlike

most states in the north and west, practiced de jure segre-

a

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gation by act of the General Assembly, just as was true

in the southern and border states. Brown vy. Board of

Education, 347 U.S. 483 (1954), therefore imposed upon

Indiana and upon Indiana communities such as Indianap-

olis, which had practiced segregation in its schools, an

instant duty to desegregate.

However, the law of this case is that successive School

Boards of the City of Indianapolis after Brown continued

policies of de jure segregation in the operation of IPS up

until the time of this court’s first decision in 1971, aided

and abetted by officials of the State of Indiana. During

the same period of time (1954-1971), the HACI, with the

approval of the Commission, built numerous public hous-

ing projects in IPS territory, inhabited 98% by Negroes,

but none in the territory of any of the suburban Marion

County defendants, all of whom have consistently opposed

such housing projects. The suburban defendants also

unanimously opposed consolidation of all Marion County

schools, as proposed pursuant to the Indiana School Re-

organization Act of 1959, and they were successful.

As heretofore set out, the law of Indiana from the adop-

tion of its Constitution of 1851 until 1959 was that the

boundaries of a school city and of a civil city were coter-

minous, 332 F.Supp. 655, 675, n. 86. In 1959 the Indiana

School Reorganization Act, LC. 1971, 20-4-1-1, et seq.,

provided that reorganized districts need not be cotermi-

nous, but in 1961 it was again provided by Acts 1961, ch.

186, § 1, I.C. 1971, 20-3-14-1, et seq., that in counties hav-

ing a city of the first class (Marion County), the extension

of the boundaries of a civil city would automatically ex-

tend the school city boundaries, unless mutually agreed to

the contrary. Thus for the period 1851-1969, except for

the two year period 1959-1961, it was the law that any

annexation of territory by the City of Indianapolis carried

with it a like annexation of territory by IPS.

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II. Sequence of Events Leading to Repeal of 1961

Act and the Enactment of Uni-Gov

The added defendant Commission and its president par-

ticipated in drafting Uni-Gov. It had done planning stud-

ies with respect to population growth in Marion County

and as to where schools should be located. The Mayor of

Indianapolis, a former member of the IPS School Board,

appointed a task force for Uni-Gov called the Greater

Indianapolis Progress Committee. All members of. the

General Assembly from the Marion County area were ex

officio members of this committee. In short, Uni-Gov did

not arise from some general impulse on the part of the

entire General Assembly, but was envisioned, packaged

and sold to the General Assembly by various Marion Coun-

ty and Indianapolis officials.

A public meeting was held November 27, 1968 and a

draft was discussed. Such draft made no mention of

schools, but opposition to the inclusion of schools was

voiced at the meeting. Thereafter, a section was added to

the draft providing that schools were excluded from the

consolidation and expansion of the City of Indianapolis,

and a separate bill was drafted, introduced, and passed by

the General Assembly under an emergency clause, repeal-

ing that section of the 1961 Act which provided that the

boundaries of the City of Indianapolis and IPS would be

coterminous. Following all this, the Uni-Gov Act was

passed.

The Mayor, when testifying as a witness, gave no educa-

tional or governmental reason for excluding the schools

from the reach of Uni-Gov. He simply (and no doubt ac-

curately) stated that the Uni-Gov bill would not have

passed had the schools been included. The inference is

that the representatives elected by the vote of suburban

residents—many of whom had recently moved to the sub-

urbs from the central city to escape the threat of desegre-

gation posed by the filing of this very suit in 1968—would

have voted against Uni-Gov but for exclusion of the

schools.

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Ili. Departures from Normal—Legislative History

The evidence discloses no departure from normal pro-

cedural sequence, but the substantive departure is obvious.

After 133 years of dehumanizing the Negro citizen through

its laws, the General Assembly began in 1949 to attempt

to right its previous wrongs. It enacted the school deseg-

regation act in that year, and in subsequent years repealed

the anti-miscegenation law, and other vestiges of past dis-

crimination. In 1961 it enacted the law restoring the long

established rule that the school city of Indianapolis should

expand with the civil city.

Following the decision in Brown v. Board of Education

347 U.S. 483, in 1954 it became the duty of every member

of the General Assembly, under his oath to support and

defend the Constitution of the United States, to assist in

desegregating the Indianapolis school system. The neces-

sity of obtaining a wide dispersal of Negro school children

in order to secure a stable plan was obvious in 1969, as

a result of the dreary experience of resegregation in such

places as Atlanta, Georgia, Washington, D.C., and else-

where, which was widely known at that time. However, the

General Assembly reversed its forward progress and de-

parted from its long established boundary policy by re-

pealing the crucial section of the 1961 Act, and eliminating

the schools from Uni-Gov.

No further legislative history of Uni-Gov and companion

legislation is available, since the Indiana General Assem-

bly does not keep any record of its proceedings save the

daily journal which records only motions and the results

of roll calls.

IV. Finding and Conclusions—Legislation

Considering all of the foregoing facts, it is perfectly

obvious to this court, and it therefore finds, that the ac-

tions of the General Assembly above discussed were done,

at least in part, with the racially discriminatory intent and

purpose of confining black students in the IPS school sys-

A-20

tem to the 1969 boundaries of that system, thereby per-

petuating the segregated white schools in suburban Marion

County.

It was virtually identical action on the part of the Gen-

eral Assembly of Delaware in passing the Education Ad-

vancement Act of 1968 which caused the district court in

Delaware to order the consolidation of the 88% black pub-

lic schools of Wilmington with white suburban schools cf

New Castle County. Evans v. Buchanan, 393 F.Supp. 428

(1975), aff’d, per curiam, 423 U.S. 963, 96 S.Ct. 381, 46

L.Ed.2d 293 (1975). In that case the General Assembly

enacted a bill calling for the reorganization of Delaware

schools, but provided that the boundaries of the Wilming-

ton schools, which contained a huge majority of black stu-

dents, could not be changed. The Delaware court concluded

that the Act precluded the State Board of Education

(charged with the duty of desegregating Wilmington) from

considering the ‘‘integrative opportunities’’ of redistrict-

ing in New Castle County in any meaningful way, that

when the Act was passed the State Board had not satisfied

its obligation to eliminate the vestiges of de jure segrega-

tion in the Wilmington schools, and that therefore the Act

constituted a suspect classification, with no compelling jus-

tification therefor, since it had a significant racial impact

on the policies of the State Board. 393 F.Supp. 428 at 442,

443,

V. The Housing Violations

Once again this court refers to the previous record in

this case. It found as a fact in its 1973 opinion as follows:

‘«. |. [T]here can be little doubt that the principal factor

which has caused members of the Negro race to be con-

fined to living in certain limited areas (commonly called

ghettos) in the urban centers in the north, including Indi-

anapolis, has been racial discrimination in housing which

has prevented them from living any piace else.’’ 368 F.

Supp. 1191, 1204. This finding was specifically approved

by the Court of Appeals in its 1976 opinion. 541 F.2d 1211,

on

A-21

1222. Various aspects of racial discrimination in housing

by realtors licensed by the State, by state courts and legis-

lative bodies, and by private citizens, have been set out

in part I hereof.

Against this background of racial discrimination, can it

be said to be a mere benign coincidence that HACI and

the Commission located all public housing projects within

IPS boundaries? This court thinks not and specifically

holds that the action of such official bodies in locating such

projects within IPS, as well as the opposition of the sub-

urban governments to the location of public housing within

their borders, were racially motivated with the invidious

purpose to keep the blacks within pre-Uni-Gov Indianap-

olis and IPS, and to keep the territory of the added sub-

urban: defendants segregated for the use of whites only.

The Court of Appeals has already agreed that the record

shows a ‘‘ ‘purposeful, racially discriminatory use of state

housing. .. .’’’ 541 F.2d 1211, 1223.

The evidence clearly supports the foregoing findings. As

the Court of Appeals for the Sixth Circuit has said:

‘*A presumption of segregative purpose arises when

plaintiffs establish that the natural, probable, and

foreseeable result of public officials’ action or in-

action was an increase or perpetuation of public

school segregation. The presumption becomes proof

unless defendants affirmatively established that

their action or inaction was a consistent and reso-

lute application of racially neutral policies. NAACP

v. Lansing Board of Education, 559 F.2d 1042, 1046-

47 (6th Cir., 1977) quoting Oliver v. Michigan State

Board of Education, 508 F.2d 178, 182 (6th Cir.,

1974).’’ |

In this case it was obvious that the natural, probable

and foreseeable result of erecting public housing projects

wholly within IPS territory would be to concentrate poor

blacks in such projects and thus to increase or perpetuate

public school segregation within IPS. The Deputy Mayor

A-22

of Indianapolis testified that HACI never even examined

sites outside the then City of Indianapolis (IPS territory).

No consideration whatever was given to locating housing

projects so as to reduce public school segregation, and then

bring necessary municipal services to the project sites.

When faced with the choice of locating a public housing

project on the west side of Emerson Avenue (IPS terri-

tory) or across the street on the east side of such avenue

(Warren Township territory), HACI chose the IPS side

of the street. This deliberate choice was intended to, and

did, perpetuate Warren Township as a segregated white

community and IPS as a heavily black community.

The attitudes and motivation of the Metropolitan Devel-

opment Commission have been the same. Its chief admin-

istrator testified that its demographic studies failed to take

race into account in projections of population movement,

or in considering the location of schools, and did not re-

quire housing developers in the suburbs to pledge a non-

discriminatory policy in either the sale or rental of prop-

erty. This same Commission, after the filing of this suit,

refused to permit the defendant School Board to relocate

Crispus Attucks High School to a site at West 30th Street

and Guion Road—a white neighborhood. The separation

of the races, both in housing and in schools, has been an

unspoken, but intentional policy of the Commission. .

Certain of the adjed defendant suburban school corpo-

rations, joined by HACI, have attempted to avoid the fore-

going facts, and the inferences naturally flowing therefrom,

by arguing that HACI had no power to locate its housing

projects outside the former City of Indianapolis (IPS ter-

ritory), notwithstanding that the statute which enabled its

creation, I.C. 8-7-11-1, et seq., provided from the date of

its enactment in 1937 that the area of operation of a city

includes the area of the city and the area within five miles

of its territorial boundaries. I.C. 8-7-11-3(g) (1).

Added defendants refer to the United States Housing

Act of 1937, and its requirement for cooperation agree-

ments to be entered into by the public housing agency and

A-23

the ‘‘governing body of the locality involved.’’ 42 U.S.C.

§ 1415(7)(b)(i). They then contend that since no such

agreements were executed between HACI and the Marion

County Council, the building of housing units in the sub-

urban townships was impossible.

The foregoing argument, in the opinion of this court, is

sheer nonsense. The section of the Indiana statute in ques-

tion was analyzed by the Indiana Supreme Court in Ed-

wards v. Housing Authority of Muncie, 215 Ind. 330, 19

N.E.2d 741 (1939). The holding was that:

‘‘Normally the county government has jurisdiction

outside of the area of incorporated cities and towns

in respect to certain matters, but the city has power

to annex additional territory, which, for govern-

“mental purposes within the scope of the authority

of the city, is removed from the jurisdiction of the

county. It may have been the legislative intention

that either a county or a city housing authority

might assume jurisdiction to act in respect to ter-

ritory outside of the area of cities, but adjacent

thereto, and no doubt the authority which first

undertakes to exercise jurisdiction acquires exclu-

sive jurisdiction. .. .’’

According to the evidence, HACI is the only housing

authority ever established in Marion County to date, so

there can be no question as to its power to have built its

units in the unincorporated suburbs at any time. As to

the section of Federal law quoted, ‘‘the locality involved’’

simply refers to the city, town, or county governmental

unit which has established the housing authority—in this

case the City of Indianapolis. Indianapolis did, of course,

execute such 4 cooperation agreement. The statute has to

do, inter alia, with the guarantee by the Federal Govern-

ment of bonds issued by the local housing authority. Obvi-

ously, the cooperation desired is that of the governmental

agency which chartered the housing authority—not that

of some other unit (here the Marion County Council)

which has no interest in the matter.

A-24

VI. Application of Dayton v. Brinkman

In Dayton Board of Education v. Brinkman, — U.S.

—, 97 §.Ct. —, 53 L.Ed.2d 851 (1977), the Supreme Court

vacated the judgment of the Court of Appeals for the Sixth

Cireuit, 539 F.2d 1084 (1976), which had approved a dis-

trict court desegregation plan for the Dayton schools, The

plan involved districtwide racial distribution under which

the racial distribution of each school would be brought

within 15% of the black-white population ratio of Dayton,

The trial court had found a three-part ‘cumulative”’

constitutional violation by the Dayton School Board—the

lack of any affirmative effort to achieve racial balance in

its schools, the former use of optional attendance zones,

and its rescinding of resolutions passed by a previous

Board which had acknowledged segregative practices and

called for remedial measures. The Supreme Court eriti-

cized each of such findings for various reasons, and held

that in any event there was no justification for imposing

a systemwide remedy without evidence proving coustitu-

tional violations having a systemwide impact, It therefore

remanded with directions to take additional evidence and,

if constitutional violations be found, to determine how

much incremental segregative effect such violations had

on the racial distribution of the Dayton school population

as presently constituted, as compared to what it would

have been in the absence of such constitutional violations.

Following Dayton, the Court of Appeals has directed

this court to make the same determinations, The record

shows that as of April 30, 1974, HACI owned 2,395 apart-

ment units of various sizes, other than those held for rent

exclusively to the elderly (R. 1975, pp, 164-173 inel,), Hsti-

mating three school age children per unit, it is apparent

that more than 7,000 pupils would have been afforded a

desegregated education in the schools of added defendants

had the housing units been placed outside IPS, Further,

the evidence is that the neighborhoods around housing

projects tend to become integrated, so that others would

have moved to the suburban housing areas, The total

A-25

would approximate the number of students which this court

proposes to transfer.

VII. The Legislative Remedy

As set out in this court’s entry for June 2, 1978, the

General Assembly of Indiana has enacted a statute, 1.C,

1971, 20-8.1-6.5-1 et seq., pursuant to which a court may

order transfers of students from one school corporation

to another as an aid to desegregation, The Act requires

three findings to be made in order to justify the transfers:

(1) A transferor corporation must have violated

the equal protection clause of the fourteenth amend-

ment to the Constitution of the United States by

practicing de jure racial segregation of the students

within its borders;

(2) A unitary school system within the meaning

of such amendment cannot be implemented within

the boundaries of the transferor school corporation ;

and

(3) The fourteenth amendment compels the court

to order a transferor corporation to transfer its

students for education to one or more transferee

corporations to effect a plan of desegregation in

the transferor corporation which is acceptable with-

in the meaning of such amendment,

The foregoing constitute all of the requirements for

transfer (save exhaustion of appeals), There is no re-

quirement whatever for Arlington Heights or Washington

v. Davis analysis of the transferee corporation, nor that

it have been guilty of any fourteenth amendment viola-

tion. The statute represents purely and simply a State

enacted remedial measure, which the General Assembly

had undonbied power to enact,

In its opinion of August 1, 1975 this court made the

three required findings as the basis for its order to IPS

to transfer, and to the suburban school corporations to

A-26

receive certain numbers of black school children. Since

such findings were not found unsupported by the evidence

on appeal, they would seem to constitute the law of the

Case,

To eliminate any doubt, however, this court now states

its findings anew, as follows:

(a) The defendant Board of School Commissioners of

Indianapolis, Indiana (IPS) has violated the equal pro-

tection clause of the Fourteenth Amendment to the Con-

stitution of the United States by practicing de jure racial

segregation of the students within its borders, United

States v. Board of Sch, Com'rs, Indianapolis, Ind,, 832

F.Supp. 655 (S.D. Ind, 1971), aff'd 474 F.2d 81 (7 Cir.

1973), cert, den, 413 U.S, 920, 98 S.Ct, 38066, 37 L. Wd.2d

1041 (1973),

(b) A unitary school system within the meaning of

such amendment cannot be implemented within the bound.

aries of IPS. ‘In the long haul, it won't work,.’’ 3882

F.Supp. 655, 678,

(c) The Fourteenth Amendment compels the court to

order IPS to transfer a substantial number of its black

students to various added defendant school corporations

for education in order to effect a plan of desegregation in

the transferor corporation which is acceptable within the

meaning of such amendment,

The general transfer law of Indiana is quite liberal, It

provides that a transfer may be made upon application by

the parent of any child who resides in the transferor cor-

poration ‘‘if it feels the child may be better accommodated

in the public schools of another school corporation of this

state or of an adjoining state... .’’ LC, 1971, 20-8,1-6.1,

et seq. Inasmuch as transfers have long been a part of

the Indiana educational system, it is only natural that such

a method was selected by the General Assembly as one

method of assisting in bringing about desegregation in sys-

tems such as IPS, The use of such statute does not require

the courts to consider Dayton-type rules, but only what is

necessary to desegregate the transferor corporation,

A-27

VIII. Conclusions of Law

Pursuant to the findings of fact herein it is concluded

as a matter of law that this court’s previous order and

judgment of August 1, 1975 should in all things be rein-

stated, with that part thereof pertaining to the transfer

of pupils revised so as to apply to the school year 1978-79,

Surplus IPS teachers should be hired, if required by the

transferee school corporation, ie:

The court further concludes, based on its previous find.

ing that the State has an affirmative duty to assist in

desegregating IPS, that the defendant Superintendent of

Public Instruction should forthwith develop a comprehen-

sive in-service training program as described in Bradley

v. Milliken, 402 F.Supp, 1096, 1139 (13.D, Mich. 1975), aff'd

540 F.2d 229 (6 Cir, 1976), aff'd sub nom Milliken v. Brad.

ley, — U.S. —, 97 S.Ct. —, 58 L.Bd.2d 745 (1977). Such

program shall be participated in by all teachers and staff

of the transferee schools prior to and during the coming

1978-79 school year, Any and all expenses of developing

and administering such program shall be paid by the State

of Indiana,

The court further concludes that the limitations on the

construction or renovation of public housing projects by

HACI should be expanded to include any type of low-rent

housing, as that term is defined and used in 42 U.S.C,

Chapter 8, §§ 1401, et seq.

Orders will be entered in accordance herewith.

Dated this 11th day of July, 1978,

/8/ S&S. Hugh Dillin, Judge

A-28

JUDGMENT

The court having this day filed a memorandum of deci-

sion in the above entitled action (Indianapolis V), contain-

ing various findings requiring orders and judgments, such

orders and judgments are hereinafter set out.

Recognizing that some or all of the parties to this pro-

ceeding may wish to appeal the judgments entered herein

by this court as to them, and as a convenience to all parties,

this court will designate by separate subnumber that par-

ticular judgment directed against each particular defendant

or defendants, in order that the parties appealing may

properly designate in any notice of appeal filed herein that

particular judgment or judgments so appealed, The de-

fendant The Board of School Commissioners of the City of

Indianapolis, Indiana will be referred to as ‘‘IPS.’’ The

matter of transfer of pupils will be accomplished and con-

tinued in accordance with the applicable provisions of this

court’s Memorandum of Decision (Indianapolis IV), en-

tered August 1, 1975, and its Memorandum of Decision

(Indianapolis V), this day entered herein, all of which

provisions are incorporated in each subparagraph as if set

forth therein.

a. IP 68-C-225A. It is ordered and adjudged that IPS

is directed to transfer to The Metropolitan School District

of Decatur Township, Marion County, Indiana, 567 Negro

students to be enrolled in grades 1-9 for the 1978-79 school

year, and to make continuing transfers of such students

for ensuing school years, until further order of the court.

Said transferee school corporation is ordered to accept such

transfer students and enroll them accordingly.

b. IP 68-C-225B. It is ordered and adjudged that IPS

is directed to transfer to The Franklin Township Com-

munity School Corporation, Marion County, Indiana, 326

Negro students to be enrolled in grades 1-9 for the 1978-79

school year, and to make continuing transfers of such stu-

dents for ensuing school years, until the further order of

the court. Said transferee school corporation is ordered to

accept such transfer students and enroll them accordingly.

A-29

_ @ IP 68-C-225C. It is ordered and adjudged that IPS

is directed to transfer to The Metropolitan School District

of Lawrence Township, Marion County, Indiana, 930 Negro

students to be enrolled in grades 1-9 for the 1978-79 school

year, and to make continuing transfers of such students

for ensuing school years, until the further order of the

court. Said transferee school corporation is ordered to ac-

cept such transfer students and enroll them accordingly.

_ d. IP 68-C-225D. It is ordered and adjudged that IPS

is directed to transfer to The Metropolitan School District

of Perry Township, Marion County, Indiana, 1,555 Negro

students to be enrolled in grades 1-9 for the 1978-79 school

year, and to make continuing transfers of such students

for ensuing school years, until the further order of the

court. Said transferee school corporation is ordered to ac-

cept such transfer students and enroll them accordingly.

m. IP 68-C-225E. It is ordered and adjudged that IPS

is directed to transfer to The Metropolitan School District

of Warren Township, Marion County, Indiana, 1,206 Negro

students to be enrolled in grades 1-9 for the 1978-79 school

year, and to make continuing transfers of such students

for ensuing school years, until the further order of the

court. Said transferee school corporation is ordered to ac-

cept such transfer students and enroll them accordingly.

f. IP 68-C-225F. It is ordered and adjudged that IPS

is directed to transfer to The Metropolitan School District

of Wayne Township, Marion County, Indiana, 1,383 Negro

students to be enrolled in grades 1-9 for the 1978-79 school

year, and to make continuing transfers of such students

for ensuing school years, until the further order of the

court. Said transferee school corporation is ordered to ac-

cept such transfer students and enroll them accordingly.

ke IP 68-C-225G. It is ordered and adjudged that IPS

is directed to transfer to the School City of Beech Grove,

Marion County, Indiana, 329 Negro students to be enrolled

in grades 1-9 for the 1978-79 school year, and to make

continuing transfers of such students for ensuing school

years, until the further order of the court. Said transferee

A-30

school corporation is ordered to accept such transfer stu-

dents and enroll them accordingly.

h. IP 68-C-225H. It is ordered and adjudged that IPS

is directed to transfer to the School Town of Speedway,

Marion County, Indiana, 237 Negro students to be enrolled

in grades 1-9 for the 1978-79 school year, and to make con-

tinuing transfers of such students for ensuing school years,

until the further order of the court. Said transferee school

corporation is ordered to accept such transfer students and

enroll them accordingly.

i. IP 68-C-225I. It is ordered and adjudged ‘that IPS

prepare and file with the court, on or before August 1, 1978,

a plan, or alternative plans, for the final desegregation of

its schools, taking into account the transfer of pupils or-

dered herein.

j. IP 68-C-225J. To the extent that the transferee school

corporations above named may be required to hire addi-

tional teachers because of the transfers herein ordered, they

are each ordered and directed to give first consideration to

hiring, and to hire, teachers made surplus to IPS as a result

of such transfers.

k. IP 68-C-225K. The defendant Harold H. Negley, as

Superintendent of Public Instruction of the State of Indi-

ana, is ordered to develop a comprehensive in-service train-

ing program for use by all teachers and staff of the trans-

feree school corporations. Such program shall cover such

fields as teacher expectations, human relations, minority

culture, testing, the student code of conduct and the admin-

istration of discipline in a desegregated system for all

school personnel. The program shall also include an ex-

planation of the school desegregation cases, beginning

with Brown v. Board of Education, 347 U.S. 483, 74 S.Ct.

686, 98 L.Ed. 873 (1954).

1. IP 68-C-225L. The transferee school corporations

hereinabove named are ordered to administer said train-

ing program as an on-going program, and conduct the same

during the school year and just prior to the opening of

school.

aa i

A-31

m. IP 68-C-225M. The cost of developing and admin-

istering said in-service training program shall b i

the State of Indiana. ssl meine

n. IP 68-C-225N, It is ordered and adjudged that The

Housing Authority of the City of Indianapolis be, and it

is permanently enjoined from constructing or in any man-

ner acquiring any structure within the area served by IPS

for the purpose of offering the same, or any parts or por-

tions” thereof, for rent, and from renting the same to

families of low income, other than to elderly families, as

such terms are defined in 42 U.S.C. § 1402(2).

0. IP 68-C-2250. It is ordered and adjudged that The

Housing Authority of the City of Indianapolis be, and it

is permanently enjoined from renovating its presently

owned public housing project known as Lockefield Gardens

or any part thereof, for the purpose of offering the same,

or any parts or portions thereof, for rent, and from rent-

ing the same to such families of low income, other than

elderly families.

The court retains continuing jurisdiction of this action,

and the parties thereto, together with the right to modify

or supplement any orders or judgments herein or hereto-

fore made.

Dated this 11th day of July, 1978.

/s/ §. Hugh Dillin, Judge

A-32

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

July 18, 1978

Before

Hon. Tuomas KE, FarrcH Lp, Chief Judge

Hon. Luruer M. Swycert, Circuit Judge

Hon. Pair W. Tone, Circuit Judge

Unitep States oF AMERICA, 1

Plaintiff-Appellee, Appeal from the

Donny Brure.t Bucktey and bs nese om

—e MarQuEsE BuckLey, etc., Southern District of

sili . - Indiana, Indianapolis

Intervening Plaintiffs, Division.

No. 78-1800 vs.

No. IP 68-C-225

Tue Boarp or ScHoot Commis- ~

SIONERS OF THE City or INDIAN- S. Hues Druin,

APOLIS, INDIANA, Judge.

Defendant-Appellant.

The oral argument referred to in this court’s order of

June 30, 1978, is rescheduled to Tuesday, July 25, 1978, at

11:00 a.m. Oral argument of this appeal is limited to twenty

(20) minutes for each side.

Counsel are hereby directed to be prepared to discuss the

following:

1) that portion of the district court’s order entered on

June 2, 1978, which denied permission to adopt its plan for

assignment of ninth grade students for September, 1978;

2) plaintiffs-intervenors’ motion for consolidation of

appeals, filed in appeal No. 78-1871 on July 17, 1978; and,

3) the status of any appeals from the judgment entered

on July 11, 1978, and whether that judgment should be

stayed pending appeal.

A-33

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

(Argued July 25, 1978)

July 28, 1978

Before

Hon. Tuomas E., Farronixp, Chief Judge

Hon. Luruer M. Swycert, Circuit Judge

Hon. Pump W. Tons, Circuit Judge

Unirep States oF AMERICA, }

Plaintiff-Appellee, | Appeal from the

Donny Brurevi Buckiey and ry States

Atycra Marquess Buck ey, etc., istrict Court for the

et al., Southern District of

Intervening Plaintiffs, | Indiana, Indianapolis

Division.

No. 78-1800 vs.

Tue Boarp or ScHoot Commis- No. IP 68-C-225

SIONERS OF THE City or InpIAN- S. Hues Dau,

APOLIS, INDIANA, Judge.

Defendant-A ppellant.

ORDER

On June 2, 1978 (on remand from this court), the dis-

trict court again considered the Intradistrict Plan proposed

by appellant Board (IPS), and again denied approval.

IPS appealed. This court expedited the appeal insofar as

the June 2 order denied IPS permission to implement its

plan for assignment of ninth grade students (Phase I).

We left consideration of the appeal from the June 2 order

in other respects for a later time. We heard oral argument

on Phase I July 25.

In the meantime, on July 11, 1978, the district court en-

tered judgment, directing IPS to transfer to suburban

school districts specified numbers of Negro students who

will be enrolled in grades one through nine for the 1978-79

A-34

school year, although the judgment does not specify the

number of students about to enter the ninth grade who are

to be transferred. If Phase I were implemented now, it

would control the school assignments of students who will

enter the ninth grade for the 1978-79 school year. Thus if

both were implemented forthwith, both could (to the extent

ninth graders were transferred under the judgment) af-

fect the school assignment of the same students entering

the ninth grade for 1978-79, and a possibility of conflict

would be present. On the other hand, if the July 11 judg-

ment is not implemented until a later year, it will not

affect any students who enter ninth grade for the school

year 1978-79.

Accordingly, we invited argument not only on the merits

of Phase I, but also on the possibility that the July 11

judgment might be stayed.

We are advised that appeals have been taken by the sub-

urban school districts from the July 11 judgment and

they have requested the district court for a stay pending

appeal. We have considered the possibility of issuing a

stay sua sponte, but prefer to have that question considered

first by the district court.

We are impressed by the short time available until the

opening of school in the transferee districts and the prac-

tical problems of absorption into those schools of some

6,500 transferred students. We also note the appellate

history of the orders for interdistrict transfer in this case.

We therefore deem it a remote possibility that the July 11

judgment will be implemented as to the 1978-79 school

year whether stayed under the usual standards applied on

appellate review or because of the practical difficulties of

proper implementation without severe educational disrup-

tion for all students concerned.

Thus it is our best judgment that Phase I can be imple-

mented for students entering the ninth grade for the 1978-79

school year without conflict arising out of transfer, under

the July 11 judgment, of any of the same students.

eC eee ee oe

A-35

Implementation of Phase I will at least guarantee that

no 1978-79 ninth grade in any school in the IPS system will

be more than 60% black, whereas without Phase I a ninth

grade would be as much as 85% black. In our view Phase I

is the only additional step toward desegregation that can

take place during the 1978-79 school year, and it is a step

in the right direction for that year. We therefore hold that

the district court abused its discretion in refusing to permit

implementation of Phase I for 1978-79.

We do not view implementation of Phase I for 1978-79

as in any sense a final remedy. Assuming that the J uly 11

judgment, or some modification thereof, goes into effect

for some later school year, adjustments in Phase I will

clearly be necessary with respect to such year and future

years, and in any event, given the history and circumstances

of this case, we do not view the grant of permission to

IPS to implement its proposed Phase I in 1978-79 as cur-

tailing the power of the court to order other interim or

final intradistrict or interdistrict remedies. Clearly, such

implementation will not detract from the appropriateness

of interdistrict transfers if it be finally determined that a

so-called interdistrict violation occurred.

Accordingly, insofar as the order entered June 2, 1978

denied IPS permission to implement Phase I, it is reversed

and the district court is directed to enter an order permit-

ting the implementation of Phase I. Jurisdiction over

Appeal No. 78-1800 with respect to all remaining portions

of the order of June 2 is preserved in this court. When

the record on the appeals from the July 11 judgment is

docketed here, this court will direct a prehearing confer-

ence under Rule 33, F.R.A.P., and give favorable consider-

ation to consolidation of the remaining portions of Appeal

No. 78-1800 with the appeals from the July 11 judgment.

Should IPS desire, as suggested at argument, to propose

modification of the July 11 judgment, so as to provide for

two-way transfers or the like, this court will entertain an

application to give leave to the district court to consider

such proposal, notwithstanding the pending of the appeals.

A-36

The Clerk of this court is directed to enter judgment

accordingly. The mandate of this court shall issue July 31,

1978.

SWYGERT, Circuit Judge, concurring. I reluctantly

concur. My reluctance is based on my concern that, despite

assurances of counsel to the contrary, any implementation

of the intracity plan may have an effect on our full consid-

eration of an overall final and permanent desegregation

plan, whether intradistrict or interdistrict. I am satisfied,

however, that our order today is couched in terms that will

not impair the flexibility that is essential to a full consider-

ation of all aspects of the case.

Despite the legalisms that have shrouded this case from

the beginning, the case is primarily concerned with the

educational welfare of the black pupils in the Indianapolis

school system. After hearing argument on July 25, I am

persuaded that the stability of pupil assignments for those

entering the ninth grade is not endangered by our order.

These pupils will be moving to a different school regard-

less of whether Phase I is implemented as part of an

interim intradistrict plan. Whether they will be transferred

to a suburban school at a later date is at this point hypo-

thetical.

ee ee eee

A-37

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Nos. 78-

(Appeals from July 11, 1978 Order)

Unitep States or AMERICA,

Plaintiff-Appellee

Donny Brurewyt Buck ey, et al.,

Plaintiff s-Intervenors-A ppellees

Vv.

Boarp or ScHooL CoMMISSIONERS OF THE CITY oF

InpianaAPo.is, InpIANA, et al.,

Defendants-Appellants.

ON APPEALS FROM THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN

DISTRICT OF INDIANA

MOTION OF INDIANAPOLIS PUBLIC SCHOOLS

FOR LIMITED REMAND FOR DISTRICT COURT

CONSIDERATION OF ALTERNATIVE REMEDY

PROPOSALS

The Indianapolis Public Schools (IPS) hereby moves

the Court for limited remand of the July 11, 1978 judg-

ment of the lower court in order to permit the trial court

to hear, and to make findings on, alternative remedy plans

and related evidence. In support of this motion IPS shows

as follows:

1. In the July 28, 1978 order of the Court of Appeals,

on expedited consideration of the 9th grade aspect of

the intradistrict remedy plan in No. 78-1800, the Court

stated (Slip Op. 5):

Should IPS desire, as suggested at oral argument,

to propose modification of the July 11 judgment,

so as to provide for two-way transfers or the like,

this court will entertain an application to give leave

A-38

to the district court to consider such proposal, not-

withstanding the pending of the appeals,

See also 7/24/78 Memorandum of Indianapolis Public

Schools on Consolidation, Stays, and Further Proceedings,

pp. 3-8.

2. By August 15, 1978, in compliance with the District

Court’s orders, IPS will submit Remedy Proposal A, an

exclusively one-way, blacks-only plan for interdistrict de-

segregation that assigns 6,533 IPS black students in grades

1-9 to the eight virtually all-white school districts in Marion

County as specified in the Distriet Court’s July 11, 1978

order. At the same time, IPS will submit two pupil re-

assignment alternatives: Proposal B would, on a two-way

basis, assign some 6,533 white pupils from these eight

districts to IPS, as well as 6,533 black IPS pupils to these

outside school districts; Proposal C would reassign pupils

on a two-way basis between IPS and the outside school

districts in order to eliminate the current pattern of inter-

district school segregation throughout Marion County,

In order to avoid delay in trial court proceedings on

remedy, IPS at the same time will also submit extensive

and detailed offers of proof from recognized school de-

segregation and housing experts showing (a) the full

cross-district impact of the three interrelated constitutional

violations previously found by the distriet court (i.e, the

IPS de jure segregation, official state custom and usage of

racial segregation in schools and housing, and intention.

ally segregative school district boundary action by the legis-

lature) and (b) the extent to which each of the three pro-

posals does and/or does not fit the violations by over-

coming their continuing, ‘‘combined effect,’’ Mvans vy,

Buchanan, — ¥.2d — (3rd Cir, July 24, 1978) Slip Op, 22.'

1 Cf. also, e.g., Brinkman v, Dayton Bd, of Bdue, —- F.2d — (Oth Cir,

July 28, 1978); Penick v, Columbus Bd, of Bdue,, —— F.2d — (6th Cir,

July 14, 1978) Slip Op, 58-61; United States v, Columbus Municipal

Separate School District, 558 F.2d 228, 231 (Sth Cir, 1077); United States

v. T.E.A. (Austin), 564 F.2d 162, 174-176 (Sth Cir, 1978) (all applying a

similar impact standard in so-called intradistriet cases following Dayton),

a al

A-39

This procedure will allow all parties promptly to file written

objections to the proposals and to present any alterna-

tives and offers of rebuttal proof; as a result, the issues

for a remedy hearing can be sharply focused, and there

need by no delay in the evidentiary hearing before the

District Court.” Together the three remedy alternatives

and related offers of proof present the range of available

interdistriet relief which must be examined in light of

the evidence concerning the cross-distriet impact of the

violations to insure that any remedy ordered is tailored

to overcome all of the current effects of the constitutional

violations found, Milliken vy, Bradley, 433 U.S, 267, 281

(1977); Dayton Bd, of Edue., 483 U.S, 406, 420 (1977);

Milliken vy, Bradley, 418 U.S, 717, 744 (1974); Keyes vy.

School District No, 1, 4138 U.S, 189, 201-203, 208-214 (1973) ;

Swann v, Charlotte-Mecklenburg Board of Education, 402

U.S, 1, 16-17, 25-26 (1971); Davis v, Board of School Com-

missioners, 402 U.S, 33, 387 (1971),

3, This Court in its February 14, 1978 remand specifi-

cally directed the Distriet Court to consider and to make

specific findings concerning the cross-distriet impact of the

constitutional violations found in order ‘‘to fashion an

appropriate remedy,’’ 578 F.2d 400, 410; also 573 F.2d at

405 and n.4, 410 n,22, and 414, Although IPS (aeting in a

plaintiff capacity on interdistrict issues) filed a timely

motion and subsequent memorandum in the Distriet Court

requesting permission to present relevant evidence, inter

“In addition, IPS at the same time will submit proposala and offers of

proof relating to relief ancillary to pupil reassignments and the allocation

of the coata of desegregation as appropriate under Milliken v, Bradley,

433 U.S, 207 (1977), Although the District Court's July 11, 1978 order

({K-M) does address one aspect of these issues (in-service training, and

ite coats, for suburban staff), the District Court has not considered nor

ruled upon any other aspect, As a result, the appeals from the July 11,

1078 order may not divest the District Court of jurisdiction to hear these

supplemental matters on whieh it has never ruled, In all events, trial

court hearing and determination of the issues of ancillary relief and costs

ut the sgme time as the pupil reassignment remedy issues will allow this

Court fp irermin this case, finally, on one consolidated appeal rather

than by"We protracted process of piecemeal appellate review,

a ee ea a

A-40

alia, on these remedial issues, the District Court has de-

clined to rule on this request.’ Instead, without the benefit

of any evidentiary hearing nor the submission of any in-

terdistrict remedy plans, the District Court on July 11,

SIPS also requested the opportunity to present evidence on the wholly

inequitable and racially discriminatory nature and educational harm of

exclusively one-way, Liacks-only interdistriet desegregation proposals, The

District Court has also declined to rule on this request; instead, the District

Court has ordered a one-way plan without permitting a record to be made

on the issue, When the Wilmington School District was allowed to present

wuch evidence in shaping appropriate relief, the district court and court

of appeals in that metropolitan wehool ease were able to consider the issue

in the light of evidence as well as controlling legal standards, rather than

allow any preconceived notions of what is an “appropriate” remedy to

control their judgments, The resulting contrast to the July 11, 1078 order

here is #tartling, In rejecting just such blacksonly, exclusively one-way

interdiatrict desegregation, the courte in Hvans v, Buchanan, on the basin

of a complete record, held:

[Like ite reference to the legislative voluntary transfer plan,

in which only three white students took part, the State Board's

[one way, blacks-only| “plan” carried with it the tacit assumption

that only--and that all-black students benefit from transferring

to a white environment, and not vice versa, The district court

properly refused to accept such an untenable assumption, In

thin regard, the State Board's solution simply failed to meet the

standard for voluntary plana set forth in Green v, County School

Roard, 301 U.S, 490, 490 (1068): “The burden on a school board

today is to come forward, with a plan that promises realistically

to work, and promises realistically to work now.” ,.. [AJa atated

by the district court, perhaps the most glaring weakness in the

State Board's plan is that it would improperly shift the “entire

burden of the remedy” onto “those whose rights have been vio-

lated,” 435 F.Supp, at 840, Precepts of equity lie at the heart

of any desegregation remedy, and fairness and justice furnish

the fiber and sinew of those precepts, The district court recog.

nized this, and we refuse to fault ite judgment in perceiving what

it considered to be the basic inequity in the Board's proposal:

“One would find it difleult to ereate a more graphic paradigm

of an inequitable remedy than one which assigns to those who

have been wronged the responsibility of correcting those wrongs.”

Id,

Evana v, Buchanan, F.2d — (3rd Cir, July 24, 1978) (en bane) Slip

Op. 14-15 and see also n,7 at Slip Op, 14, At the very least, then, it is

plain error for the District Court to refuse to allow a record to be made

on the issue,

Se ie ee

a

A-41

1978, entered an order adopting a very limited, blacks-only,

exclusively one-way interdistrict proposal, Although the

July 11 opinion plumbs the record to make the requisite

findings concerning intent and the existence of interdistrict

violations, the District Court simply fails to take the next

step required by this Court in its remand, to evaluate the

full impact of the interdistrict violations found in order

to tailor the remedy to fit the combined effect of these vio-

lations.’ At the very least, then, reversal and remand of

the July 11, 1978 order is inevitable on the appeals there-

from if only (a) to allow IPS (and any other party so de-

siring) to make a record on the combined cross-district

impact of all of the constitutional violations and (b) to

require the Distriet Court to make the impact findings

and to tailor relief accordingly as mandated by this Court's

remand of February 14, 1978, At the July 25, 1978 oral

argument on the questions posed by this Court, no party

seriously questioned the necessity for such a determination

of the cross-district impact of the violations,

4. In all events, the Supreme Court has expressly held

that remedy hearings are required on the alternative

remedial proposals available in order to allow trial courts

to fashion relief which is fully effective and equitable in

*The District Court's July 11, 1978 opinion, in passing, addresses the

impact of only one aspect of the violations found: the cross-distriet im-

pact on blacks of the intentionally segregative location of public housing

projects within IPS, 7/11/78 Slip Op, 18-44, The opinion (and hence

the order), however, do not even purport to address nor to remedy the

additional combined interdistrict segregative impact of (a) the displace.

ment of whites to suburban districts caused by the intentionally segregative

placement of black public housing projects within IPS, (b) the confine

ment of black families and white families to separate schools within and

without IPS eaused by the total state housing violations, including the

longstanding official custom and usage of almost complete racial segrega-

tion throughout Marion County evidenced by the diverse public laws,

practices, subsidies and sanctions recited by the Distriet Court, (¢) the

substantial separation of IPS black pupils from suburban white pupils

caused, in this context, by the cross-distriet impact of the longstanding IPS

de jure violation, and (d) the further intentional cross-distriet confinement

of black and white school children to separate schools resulting from the

General Assembly's intentionally segregative boundary actions,

A-42

overcoming the continuing impact of the constitutional

violations found:

The obligation of the district courts, as it always

has been, is to assess the effectiveness of a proposed

plan in achieving desegregation. . . . The matter

must be assessed in light of the circumstances pres-

ent and the options available in each instance. .. .

It is incumbent on the district court to weigh th[e]

claim [that a school board’s proposed plan promises

to root-out all of the effects of the constitutional

violations] in light of the facts at hand and in

light of any alternatives which may be shown as

feasible and more promising in their effectiveness.

Green v. County School Board, 391 U.S. 430, 439 (1968)

(emphasis supplied). The District Court, therefore, has

an obligation to hear the merits of the range of remedial

alternatives submitted by IPS and to assess their adequacy

in view of the controlling principles of equitable relief

and the evidence on the scope and impact of the violations.

At the very least, the District Court has an obligation to

evaluate and to specify the full cross-district impact of

the violations found so that an appropriate interdistrict

remedy may be finally fashioned and ordered, as already

specifically directed by this Court. 573 F.2d at 410, 414.

In making its decision, the District Court must make

specific findings showing the relationship between the plan

approved and the combined effect of all of the violations

found. To date, the District Court has never held the

required hearing nor made the requisite findings on the

available interdistrict remedial alternatives and the total

cross-district impact of the violations.

5. It is not entirely clear whether the pending appeals

from the July 11, 1978 judgment, absent a limited remand,

technically bar the District Court from considering the

alternative remedy plans and related evidence on the scope

and impact of violation by divesting it of jurisdiction. Cf.

7 Moore’s Federal Practice § 60.30[2] and 62.05; 9 Moore’s

A-43

Federal Practice § 203.11; Kelley v. Metro. City Bd. of

Educ., 463 F.2d 745 n.3 (6th Cir. 1972) ; Ideal Toy Corp. v.

Sayco Doll Corp., 302 F.2d 623, 625 (2nd Cir. 1962) ;

United States v. Board of School Commissioners, 503 F.2d

68, 81-82 (7th Cir. 1974). In all events, the proposed ‘re-

mand to the District Court for an evidentiary hearing

and findings will resolve all doubts and allow the trial

court to hear the alternative remedy proposals and related

evidence concerning (a) the scope and impact of the con-

stitutional violations, (b) the alleged inequity, ineffective-

ness, and harm of blacks-only one-way plans, (c) relief

ancillary to pupil reassignments, and (d) the assessment

and allocation of desegregation costs. Such a remand will

also serve the salutary purpose of allowing the District

Court to make the complete record of evidence and findings

necessary to enable this Court finally to review this long-

protracted case in one piece.’ The alternative to such a

remand hearing is yet more piecemeal appellate review

and delay.

6. Pending hearing and ruling on the limited remand,

the record should remain for use in the District Court

pursuant to Rule 11(e), F.R.A.P.

CONCLUSION

In view of the foregoing, and in accordance with this

Court’s July 28, 1978 order (Slip Op. 5), IPS prays that

this Court provide a limited remand to the trial court

while preserving ruling on all issues raised by the pending

appeals. The limited remand to the District Court shall

be for the purpose of hearing the alternative remedy plans

and related evidence proffered by IPS (as well as any

alternatives, objections, modifications, and rebuttal of any

opposing party) and District Court determination by de-

5 Ordering such a remand at this stage will not decide the pending ap-

peals from the July 11 order insofar as they relate to intent and the

existence of a so-called interdistrict violation at all. That issue will be

preserved for decision on the pending appeals and can be consolidated for

review with all appeals from the District Court’s ruling on the remand.

A-44

tailed findings of which alternative remedy (including

pupil reassignment, ancillary relief, and allocation of costs)

is necessary and equitable to overcome the combined inter-

district effect of all of the constitutional violations pre-

viously found. Pending hearing and ruling on the partial

remand, the record should remain for use in the District

Court.

Respectfully submitted,

LOUIS R. LUCAS

Ratner, Sugarmon, Lucas,

and Henderson

525 Commerce Title Building

Memphis, Tennessee 38103

JOHN WOOD

Bamberger & Feibleman

500 Union Federal Building

Indianapolis, Indiana 46204

WILLIAM L. TAYLOR

Center For National Policy Review

Catholic University Law School

Washington, D.C. 20064

THOMAS I. ATKINS

Atkins & Brown

10 Post Office Square, Ste. 610

Boston, Massachusetts 02109

PAUL R. DIMOND

O’Brien, Moran and Dimond

320 North Main Street

Ann Arbor, Michigan 48104

Attorneys for Defendants-Appellants

Indianapolis Public Schools

oid PINES el Rt a I rad ave 2 Fr

A-45

CERTIFICATE OF SERVICE

The undersigned hereby certifies that copies of the fore-

going Motion of Indianapolis Public Schools For Limited

Remand For District Court Consideration of Alternative

Remedy Proposals have been served on all counsel of

record by first class mail, postage fully prepaid, this 1st

day of August, i978.

Paul R. Dimond

A-46

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

August 11, 1978

Before

Hon. Tuomas E. Farrcuixp, Chief Judge

Hon. Luraer M. Swycert, Circuit Judge

Hon. Putire W. Tone, Circuit Judge

Unirep States oF AMERICA, :

Plaintiff-Appellee,

Donny Brure.i BuckLey and

Atycita MarquEse BuckLey, etc.,

et al.,

Intervening Plaintiffs,

Nos. 78-1996 thru 78-2006, and

78-2039

vs.

Tue Boarp or ScHoot CommMIssIon-

ERS OF THE City oF INDIANAPOLIS,

INDIANA, THE METROPOLITAN

Scuoo.u District or Perry Town-

sHip, Marion County, Inp1ana,

AND THE SUPERINTENDENT OF

ScHoo.s, PrEsIDENT AND MEMBERS

oF THE Boarp or ScHoot Commis-

SIONERS, et al.,

Defendants-Appellants. }

Appeals from the

United States

District Court for

the Southern

District of Indiana,

Indianapolis Div.

No. IP 68 C 225

S. Hueu Druin,

Judge.

adit asic ictastnirctstiee te sabe 2 di coke wae

A-47

ORDER

This matter comes before the court upon the filing of

the following documents :

1. The ‘‘MOTION OF INDIANAPOLIS PUBLIC

SCHOOLS FOR LIMITED REMAND FOR DISTRICT

COURT CONSIDERATION OF ALTERNATIVE REM-

EDY PROPOSALS’’ filed by the Indianapolis Public

Schools on August 2, 1978;

2. The ‘‘RESPONSE IN OPPOSITION TO ‘MOTION

OF INDIANAPOLIS PUBLIC SCHOOLS FOR LIM-

ITED REMAND FOR DISTRICT COURT CONSIDER-

ATION OF ALTERNATIVE REMEDY PROPOSALS’ ”’

filed by Metropolitan School District of Lawrence, Warren

and Wayne Townships on August 7, 1978;

3. The ‘‘MOTION FOR STAY PENDING APPEAL’’

filed by Metropolitan School District of Perry Township,

Marion County, Indiana on August 7, 1978; and

4. The ‘‘MOTION OF APPELLANTS, BOARD OF

SCHOOL COMMISSIONERS OF THE CITY OF IN-

DIANAPOLIS, ET AL., FOR TEMPORARY RETEN-

TION OF RECORD IN DISTRICT COURT UNDER

F.R.A.P. 11(c)’’ filed by Board of Schoo] Commissioners

of the City of Indianapolis, its Superintendent and mem-

bers on August 7, 1978.

On consideration thereof, IT IS ORDERED, that this

cause is remanded to the district court for the limited

purpose of hearing and deciding upon modifications of the

July 11th judgment in the nature of alternative remedy,

plans and related evidence proffered by IPS (as well as

any alternatives, objections, modifications, and rebuttal of

any opposing parties) and hearing and making additional

findings upon further evidence offered by any parties on

the issue of which alternative remedy (including pupil

reassignment, ancillary relief, and allocation of desegrega-

tion costs) is necessary and equitable to overcome the

combined effect of all the constitutional violations pre-

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A-48

viously found by the district court. Pending the determina-

tions of the district court on this limited remand, and

also for the convenience of counsel in preparing their briefs

on appeal, the record shall be retained in the district court

until further order. All issues raised by the pending ap-

peals, including but not limited, to intent and the exist-

ence of any interdistrict violation at all are preserved

for decision by this court on the pending appeals and such

subsequent appeals as may be filed from the orders of the

district court on this limited remand.

This court assumes that the district court will rule upon

the various motions for stay of the July 11, 1978 judg-

ment pending appeal prior to the commencement of the

1978-1979 school session. And upon that assumption, this

court defers ruling on the motions for stay filed in this

court.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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