Petition — Bowen v. United States
Supreme Court brief1978
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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
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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.