Petition — Columbus Board of Education v. Penick

In The

Deoveme Court, U. &”

FILED

oct Li 1978

ced

\

MI@HAEL REDAK, JR. CLERK

Supreme Court of the United States

October Term, 1978

No, £8-610

COLUMBUS BOARD OF EDUCATION,

Paul Langdon, M. Steven Boley,

Virginia Prentice, Marilyn Redden,

and William Moss, five of its individual Members,

and Dr, Joseph L. Davis, Superintendent

of the Columbus Public Schools,

Petitioners,

vs.

GARY L. PENICK, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Ear. F, Mornnis

Samue.t H. Ponrer

Curtis A, LOVELAND

WituiaM J. Kevry, Jn.

Porter, Wricut, Mornrus & ARTHUR

37 West Broad Street

Columbus, Ohio 43215

Telephone: (614) 227-2000

Attorneys for Petitioners

i

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

QUESTIONS PRESENTED

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

STATEMENT OF THE CASE

A. Introduction

B. Procedural History

C. The District Court's Decisions

D. The Court of Appeals’ Decision

REASONS FOR GRANTING THE WRIT

I. THE DECISIONS BELOW ARE IN CONFLICT

WITH AND MISAPPLY DECISIONS OF THIS

COURT IN FINDING THAT LIABILITY CON-

CERNS THE SYSTEM AS A WHOLE AND IN

IMPOSING A SYSTEMWIDE RACIAL BALANCE

REMEDY WITHOUT FIRST DETERMINING

INCREMENTAL SEGREGATIVE EFFECT

A. In Failing to Determine Incremental Segregative

Effect, the Decisions Below Conflict With the

Decisions of this Court in Dayton, Brennan and

Omaha -

B. There Must Be Factual Findings and Conclusions

of Law on Incremental Segregative Effect Before

a Remedy Can Be Fashioned

C. The Lower Courts Presumed a Causal Connec-

tion Between Remote and Isolated Acts and the

Current Racial Imbalance in the School System

16

16

ii

D. The Systemwide Racial Balance Remedy is in

Conflict with Swann ___.

Il. THE DECISIONS BELOW CONFLICT WITH

AND MISAPPLY DECISIONS OF THIS COURT

AND HIGHLIGHT A CONFLICT AMONG THE

CIRCUITS CONCERNING THE MANNER IN

WHICH DISCRIMINATORY INTENT OR PUR-

POSE MAY BE PROVEN .|

A. The Courts Below Inferred Segregative Intent

From the Mere Continuance of the Neighbor-

hood School System

B. The Lower Courts’ Adoption of a Foreseeable

Effects Standard of Liability is in Conflict with

Washington v. Davis

C. The Decisions Below Highlight a Conflict Among

the Circuits as to Whether an Act Can be Pre-

sumed to be Motivated by Discriminatory Intent

Simply Because its Disproportionate Impact is

Foreseeable

CONCLUSION _.

Page

25

26

27

29

&

iii

TABLE OF CITATIONS

Page

CASES

Amos v. Board of Directors, 408 F. ‘Supp 765 (E.D. Wis.

1976) Ss —

Armstrong v. Brennan, 539 F.2d 625 (Ith Cir. 1976) _... 19

Armstrong v. O'Connell, 427 F. — 1377 (E.D. Wis.

|g } ett : | | _ 19

Austin Independent School District v. United States, 429

U.S. 990 (1976) 28, 29, 31, 32

Berkelman v. San Francisco Unified School District, 501

F.2d 1264 (9th Cir. 1974) ; | 34

Brennan v. Armstrong, 433 U.S. 672 (1977) 7, 8, 16, 18, 19,

20, 22, 32

Brinkman v. — Case No. 78-3060 ie Cir. we cds 27,

1978) . beer a 20

Brown v. Board of Education, 347 U.S. 483 (ag 1954) _ 9, 10

Castenada v. Partida, 430 U.S. 482 (1977) _.. S83

Davis v. Board of School Commissioners, 422 F.2d 1139

(5th Cir. 1970) A Snares tear ae Sage

Dayton Board of Education v. Brinkman, 433 U.S. 406

(1977) _... 7, 8, 14, 16, 17, 18, 20, 21, 22, 23, 24, 25, 28, 29, 32

Deal v. Cincinnati Board of Education, 369 F.2d 55 (6th

Cir. 1966), cert. denied, 389 U.S. 847 (1967) ae

Echols v. Sullivan, 521 F.2d 206 (5th Cir. 1975) - 22

Gomillion v. Lightfoot, 364 U.S. 339 (1960) ee

Hart v. Community School Board, 512 F.2d 37 (2d Cir.

1975) - TE EA es =e eae ae are 33, 34

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

Se eee ee

iv

Page

Keyes v. School District No. 1, 413 U.S. 189 (1973)... 23, 24,

28, 29, 33

Mayo v. Lakeland Highlands sities Co., 309 U.S. 310

| a etiet SS: #2

Milliken v. Bradley, 418 U.S. 717 (1974) eiitciebena an

Mt. Healthy City Board of Education v. Doyle, 429 US.

eae ce = eee

Oliver v. Kalamazoo Board of Education, 508 F.2d 178

(6th Cir. 1974), cert. denied, 421 U.S. 963 (1975) 34

Pasadena City Board of Education v. Spangler, 427 U.S.

424 (1976) | __ 25, 28, 29

School District of Omaha v. United States, 433 U.S. 667

(1977) Pra eak __. T, 8, 16, 18, 19, 20, 22, 32

Soria v. Oxnard School District Board of Trustees, 488 F.2d

579 (9th Cir. 1973), cert. denied, 416 U.S. 951 (1974) 34

Swann v. ee Board of Education, 402

WS 3 (2071) a

United States v. School District of Omaha, 565 F.2d 127

(9th Cir. 1977), cert. denied 434 U.S. 1064 (1978) 33

United States v. Texas Education oe 532 F.2d 380

(ie Chr. 170) eee

United States v. Texas Education ares 564 F.2d 162

(ie Gee. 8677) eee eee

Village of Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252 (1977) - 28, 29, 31, 32, 33

Washington v. Davis, 426 U.S. 229 (1976) _.. . 28, 29, 31, 32, 33

Yick Wo v. Hopkins, 118 U.S. 356 (1886) S82

STATUTES

20 U.S.C. § 1701(a) (2)

28 U.S.C. § 1254(1)

28 U.S.C. § 1331(a) ~

28 U.S.C. § 1343(3) ..

28 U.S.C. § 1343(4)

Onto Rev. Cove § 3313.48

RULES

Rue 52, FepeERAL RuLes or Civit, PROCEDURE

OTHER AUTHORITIES

5A Moore, Feperay Practice, { 52.06[2], 52.11[4]

9 Wricut & MILLER, FEDERAL PRACTICE AND PROCEDURE:

Civit, § 2577 (1971) .

The Supreme Court, 1976 Term, 91 Harv. L. Rev. 70,

166-67, n. 33 (1977)

Page

In The

Supreme Court of the Wuited States

October Term, 1978

TMA icntcinomeenan:

COLUMBUS BOARD OF EDUCATION, et al.,

Petitioners,

vs.

GARY L. PENICK, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioners are the Columbus Board of Education, five

of its seven individual members, Paul Langdon, M. Steven

Boley, Virginia Prentice, Marilyn Redden and William

Moss, and Dr. Joseph L. Davis, Superintendent of the

Columbus Public Schools. They pray that a writ of cer-

tiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Sixth Circuit

entered in this proceeding on July 14, 1978.

2

Adverse respondents are individual plaintiffs and a

plaintiff class consisting of all children attending Colum-

bus Public Schools, together with their parents and

guardians,’

OPINIONS BELOW

The July 14, 1978 opinion of the Court of Appeals is

not yet reported and is reproduced in the Appendix at

pages 140-207. The March 8, 1977 liability opinion and

order of the United States District Court for the Southern

District of Ohio is reported at 429 F. Supp. 229, and is

reproduced in the Appendix at pages 1-86. The July 29,

1977 order of the district court concerning desegregation

plan guidelines and rejecting desegregation plans submit-

ted by Petitioners, is not reported and is reproduced in the

Appendix at pages 97-124, The district court’s October 4,

1977 Memorandum and Order ordering implementation

of a systemwide desegragation plan is not reported, and is

reproduced in the Appendix at pages 125-137.

JURISDICTION

The judgment of the Court of Appeals for the Sixth

Circuit was entered on July 14, 1978, and this petition for

a writ of certiorari will be filed within 90 days of the

entry of that judgment. This Court's jurisdiction is invoked

under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Ina school desegregation case, where mandatory

segregation by law has long since ceased, does the imposi-

' Additional respondents are the Ohio State Board of Education

and Franklin B. Walter, the Ohio Superintendent of Public

Instruction (State Defendants), and Harriet L. Hammersmith,

William K. Hammersmith, and Robert E. Hammersmith (Inter-

vening Defendants),

3

tion of a systemwide remedy, requiring the statistical

balancing of all schools within a residentially segregated

urban school district, exceed the equitable jurisdiction of

a federal court where the court has failed to determine

how much incremental segregative effect discrete and

isolated segregative acts had on the racial composition of

the individual schools within the system at the time of

trial as compared to what the racial composition would

have been in the absence of such acts?

2. May a federal court employ legal presumptions,

in combination with evidence of discrete and isolated

constitutional violations, to justify a systemwide statistical

racial balance remedy where (i) there is no evidence of a

causal connection between those unconstitutional actions

and the existence of other racially imbalanced schools, (ii)

there is a high degree of residential segregation, and (iii)

the systemwide remedy would not be warranted by the

incremental segregative effect of the identified violations?

3. May a federal court infer segregative intent from

the mere assignment of students to schools nearest their

homes pursuant to a longstanding, statutorily required and

educationally sound neighborhood school policy where the

foreseeable effect of such assignment, because of segre-

gated housing patterns in the urban school district, is to

cause some schools to be racially imbalanced?

4, Where there was no direct proof that segregation

of students was a factor which motivated the decision of

school officials, may a federal court infer segregative intent

solely from evidence that a collateral foreseeable effect of

the decision made would be to continue or increase statisti-

cal racial imbalance within schools when the same decision

would have been made for educational and administrative

reasons?

4

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

A. Fourteenth Amendment to the United States Constitu-

tion, Section 1.

‘i . nor shall any such State . . . deny to any

person within its jurisdiction the equal protection of

the laws.”

B. Ohio Revised Code, Chapter 33:

§ 3313.48 Free Education to be Provided;

Minimum School Year

“The board of education of each city, exempted vil-

joint vocational school district shall

lage, local and }

provide for the free education of the youth of school

age within the district under its jurisdiction, at such

places as will be most convenient for the attendance

of the largest number thereof.”

STATEMENT OF THE CASE

A. Introduction

The decisions of the courts below cannot be properly

understood without an appreciation of some basic char-

acteristics of the Columbus public school system at the

time this case was tried.

For the 1975-76 school year, the Columbus City

School District had a total enrollment of 95,998 students,

making it the second largest school district in Ohio. The

student enrollment in that year was 67.5% white and

32.5% non-white.

The boundaries of the school district are generally

coterminous with the boundaries of the City of Columbus.

The City and the school system experienced a unique and

tremendous growth from 1950 to the time of trial. The

5

population of Columbus increased by 22.8% in the 1950's

and by an additional 25.4% in the 1960's, while the geo-

graphic area increased from 40 square miles in 1950 to

over 173 square miles in 1975 as a result of its aggressive

annexation policy. School enrollment more than doubled

during this period, and 103 new schools were built.

There was also a dramatic increase in the number and

percentage of black residents in Columbus during this

period. The number of black residents almost tripled from

1940 to 1970, and the percentage of black residents in-

creased from 11.7% to 18.5% in that period. At the same

time, the black student population of the Columbus schools

increased at an even faster rate, and by 1970 over 29% of

the student enrollment was black.

As in many large cities in the United States, the black

residential population in Columbus is concentrated in a

geographically contiguous area. In 1970, 71% of all blacks

resided within just 23 contiguous census tracts located in

the east central area of Columbus. This concentration is

reflected in the racial composition of enrollments in the

neighborhood schools serving that area.

In Ohio, statutory segregation of school children

ceased long ago. In 1887, the Ohio General Assembly

repealed a law which had permitted separate schools for

black children. Prior to that time, in 1881, the Columbus

Board had abolished separate schools for black children,

and assigned all students to attend schools in districts

where they resided. Thus, the Columbus Board of Educa-

tion’s neighborhood school policy has been in continuous

force since before 1900 and before any meaningful resi-

dential racial segregation in Columbus.

Adherence to a neighborhood school policy in a city

which exhibits patterns of residential segregation neces-

sarily results in some schools which are not racially bal-

anced, and Columbus is no different in this respect.

6

However, despite the concentration of blacks and general

residential segregation, the Columbus schools are substan-

tially more integrated than the residential population of

Columbus. This is due in large part to the Columbus

Board’s promotion of integration in a manner consistent

with the neighborhood school policy.

B. Procedural History

This action commenced on June 21, 1973, upon the

filing of a complaint seeking declaratory and injunctive

relief concerning an $89.5 million school construction and

improvement program. The plaintiffs, 14 black and white

students and their parents, alleged that the Columbus

Board of Education, its individual members, and its Super-

intendent (hereinafter collectively referred to as_ the

“Columbus Board”) had, by virtue of the United States

Constitution and certain Board resolutions, a legal obliga-

tion of affirmative integrative action in the expenditure

of the construction funds, Federal jurisdiction was invoked

under 28 U.S.C. §§ 1331(a) and 1343(3) and (4). After the

plaintiffs had withdrawn their motion for a preliminary

injunction and filed one amended complaint, a second

amended complaint was filed on October 22, 1974. The

second amended complaint was styled a class action, and

it alleged that the Columbus Board had _ intentionally

segregated the public schools by creating and maintaining

a neighborhood school policy notwithstanding a segregated

housing pattern in the city, by using optional attendance

areas, by segregating teachers and principals, and by

failing to desegregate. The second amended complaint

also named the Ohio State Board of Education and its

Superintendent of Public Instruction, and it alleged that

they were liable for failing to bring about the desegrega-

tion of the Columbus public schools. The plaintiffs sought

an order requiring desegregation of the schools.

7

A motion to intervene was filed by NAACP lawyers

on February 5, 1975, on behalf of 11 other black and white

students and their parents. The complaint in intervention

contained essentially the same allegations as the second

amended complaint and sought the systemwide desegre-

gation of the Columbus public schools. The district court

granted the motion to intervene, certified the case as a

class action, and designated one of the NAACP lawyers

as lead counsel for the entire plaintiff class.

The case was tried in 36 trial days from April 19 to

June 17, 1976. On March 8, 1977, the district court issued

its Opinion and Order, including findings of fact and

conclusions of law, which found that the Columbus public

schools were unconstitutionally segregated “as a whole.”

The court enjoined the Columbus Board and the State

Board from discriminating on the basis of race in the

operation of the Columbus system, and ordered both

defendants to formulate and submit desegregation plans.

In accordance with the district court’s order, the

Columbus Board of Education formulated and submitted

a desegregation plan on June 10, 1977, reserving all rights

to appeal. The State Board filed its plan on June 14,

1977. Shortly thereafter, this Court announced its decisions

in three major urban school desegregation cases: Dayton

Board of Education v. Brinkman, 433 U.S. 406 (June 27,

1977); Brennan v. Armstrong, 433 U.S. 672 (June 29,

1977); and School District of Omaha v. United States,

433 U.S. 667 (June 29, 1977). In all three cases, lower

court decisions finding systemwide violations and order-

ing systemwide remedies were vacated and remanded with

the direction to determine the incremental segregative

effect of any unconstitutional school board actions and

to formulate remedies limited to the correction of that

effect. Prompted by these decisions, the Columbus Board,

on July 8, 1977, filed an amended desegregation plan

designed to racially balance the specific schools identified

8

in the Court's liability decision as being involved in the

constitutional violations found.’ Hearings on all of the

plans submitted by the defendants began on July 11, 1977.

At the start of the remedy hearings, both the Columbus

and State Boards moved the district court to make the

determination of incremental segregative effect required

by this Court’s decisions in Dayton, Brennan and Omaha,

before it proceeded to fashion a remedy. The court denied

these motions.

On July 29, 1977, the district court issued its order

rejecting the desegregation plans formulated by the Co-

lumbus Board and the State Board and ordered develop-

ment of a new systemwide racial balance remedy plan.

[A. 97.] On August 31, 1977, the Columbus Board filed a

desegregation plan which conformed to the requirements

of the district court’s July 29 Order that every school in

the Columbus system be racially balanced.* On October

4, 1977, the district court entered a Memorandum and

Order approving the August 31 Plan and ordering that it

be implemented in September, 1978. [A. 125.]

* The district court entered a Memorandum and Order July 7,

1977, granting leave to file the amended plan. [A. 90.] Although

it permitted the plan to be filed, the district court stated its

opinion that this Court’s decisions in Dayton, Brennan and

Omaha had no effect on this litigation, and that “systemwide

liability is the law of this case pending review by the appellate

courts.” [A. 95.]

* Although the Board developed and submitted the plan in ac-

cordance with the court’s remedy directives, the Board in no

way approved of the racial-balancing provisions of the plan

and reserved its right to appeal all orders requiring implementa-

tion of the plan or any part of it. The Board has persistently

contended that a systemwide racial balance remedy is not con-

stitutionally required in this case. The Columbus Board believed,

however, that if ary such plan was to be ordered, its staff had

the ability and expertise to design the most reasonable plan for

the Columbus school system.

9

The Columbus Board of Education took interlocutory

appeals under 28 U.S.C. §1292(b) from the March 8, 1977

liability order and from the July 29, 1977 interim remedy

order. Both orders were certified for interlocutory appeal

by the district court on its own motion, and the Sixth

Circuit granted the Board’s petitions for permission to

appeal. The Board also appealed the October 4 remedy

order. The appeals were consolidated in the Court of

Appeals and argued on February 15, 1978.

On July 14, 1978, the court of appeals affirmed the

district court’s orders and judgments with respect to the

Columbus Board, but remanded the case for additional

findings concerning the liability of the State Board. [A.

140.] A Judgment to that effect was entered on July 14,

1978. [A. 208.] On July 31, 1978, the Court of Appeals

denied the Columbus Board’s application for a stay of its

mandate and judgment pending the filing of a petition for

a writ of certiorari.

On August 11, 1978, Mr. Justice Rehnquist stayed

the mandate and execution and enforcement of the judg-

ment of the Court of Appeals pending the timely filing

of a petition for a writ of certiorari. [A. 217.] The stay

of the lower court’s judgment remains in effect pending

disposition of this petition.

C. The District Court’s Decisions

The district court’s liability findings, issued March 8,

1977, were predicated upon a finding that the Columbus

Board was responsible for the creation of five predomi-

nantly black schools in the east area of the school district

prior to 1943. Although the court conceded that there was

“substantial racial mixing of both students and faculty in

some schools,” it found that as a result of the existence of

the five schools there was not a “unitary school system”

when this Court decided Brown v. Board of Education,

347 U.S. 483 (1954). [A. 10-11.] The court then reviewed

10

the actions of the Columbus Board in the 20 years in-

tervening between Brown and the filing of the second

amended complaint.

The district court first found that enrollments in the

Columbus system had increased rapidly since 1950. Enroll-

ment grew from 46,352 in 1950-51 to 110,725 in 1971,

then declined to 95,998 in 1975-76.‘ This “rapid growth

demanded new school facilities and placed pressures upon

the school officials seeking to provide quality school facili-

ties for the expanding enrollments in a continually en-

larging geographical area.” [A. 12.] The Columbus Board

responded by building 103 new schools between 1950 and

1975. These schools were built in “substantial conformity”

with the specific recommendations contained in the “com-

prehensive, scientific and objective” analyses of the Colum-

bus school plant needs performed by the Bureau of Edu-

cational Research of The Ohio State University. [A. 13-14. ]

The six research reports prepared by the Bureau were

based upon the neighborhood school concept and made

specific recommendations for the “size and location of new

school sites as well as additions to existing sites.” [A. 14.]

Although the court found that the Columbus Board had

substantially followed these objective recommendations

and had considered all of the many relevant school siting

factors, it nevertheless found it necessary “to consider

those foreseeable effects of the construction practice which

promote or preserve a segregated school system.” [A. 21.]

The court found that the Columbus Board had, in

accordance with its neighborhood school policy, built

schools “in locations where the expanding and growing

population demanded additional facilities.” [A. 21.] Of

the 103 new schools opened between 1950 and 1975,

however, 87 opened with a “racially identifiable student

‘ During the 1950's, enrollment increased at a rate of 3,700 each

year. In the 1960's, the rate of increase was 2,700 each year.

Thus, about 100 new classrooms were needed each year.

11

body,” that is, a student racial composition greater than a

certain statistical range from the systemwide mean. [A.

21, 78.] Although it purported to recognize that “given

segregated residential patterns, not all schools can be built

in an integrated setting,” the court nevertheless made a

generalized finding that “in some instances the need for

school facilities could have been met in a manner having

an integrative effect rather than a segregative effect.”

[A. 24-25.] Only two instances of new school siting, how-

ever, were condemned by the court. [A. 21-24.] Neverthe-

less, the district court inferred segregative intent from the

mere continuance of the neighborhood school construction

policy with knowledge of segregated housing patterns and

the foreseeable racial effects of such actions. [A. 48-49.]

The district court found some other isolated, discrete

actions after 1954 from which it also inferred segregative

intent. These included the use of three optional zones,

three boundary changes, and the use of two discontiguous

attendance areas. [A. 26-42.] These discrete actions were

among the hundreds of post-1954 actions challenged by

the plaintiffs as intentionally segregative. Finally, although

teacher assignments had been racially imbalanced in the

past, the Board’s implementation of a state civil rights

consent agreement had racially balanced all teaching

faculties by the time the second amended complaint was

filed. [A. 15-16.]

The district court also inferred segregative intent from

the failure to take action “to correct and to prevent the

increase in racial imbalance.” [A. 50-51.] Although the

Columbus Board’s recent efforts to promote integration

through voluntary methods were “highly commendable,”

they fell short of providing the degree of racial balance

the lower court found to be constitutionally required.

[A. 59-60. ]

The district court determined there was systemwide

liability, stating that the “finding of liability in this case

12

concerns the Columbus school district as a whole.” [A. 73.]

In so finding, however, the court did not attempt to cdm-

pare the present racial composition of the schools with what

it would have been in the absence of the specific consti-

tutional violations found in its opinion. In fact, that com-

parison was found to be unnecessary and impossible by

the trial judge. [A. 58.] The Columbus and State Boards

were ordered to formulate and submit systemwide de-

segregation plans. The court directed the defendants to

prepare plans which would give each black child “an

opportunity for integrated education” and cautioned the

defendants about leaving any “racially imbalanced, pre-

dominantly white schools” under the plans. [A. 75.]

Three plans were formulated and submitted to the

district court pursuant to its March 8 order. On July 29,

1977, the district court rejected all three plans and ordered

development of a new plan to comply with five specific

“principles” for pupil reassignment. [A. 97.] The district

court found the July 8 amended plan constitutionally un-

acceptable, stating that it “falls far short of providing a

reasonable means of remedying the systemwide ills.”

[A. 100.] The June 10 plan was also found to be constitu-

tionally unacceptable. The State Board’s plan was found to

be constitutionally acceptable, but was rejected for its

educational and logistical shortcomings. [A. 106.] Finally,

the Court specifically approved the “numerical face” of

the results of an early planning exercise by the Columbus

Board’s staff which developed school pairings which would

result in a racial balance within + 15% of the 32.5% mean

black student population in each of the system’s school

buildings. [A. 107.]

The July 29 decision concluded by ordering that a

new plan be developed which would desegregate “the

entire Columbus school system.” [A. 111.] A new plan was

formulated in accordance with the court guidelines and was

filed on August 31, 1977. On October 4 the district court

13

ordered the plan’s implementation in September 1978. [A.

125.] The desegregation remedy ordered by the court re-

quires that every school in the system be racially balanced

to within + 15% of the system’s overall racial composition.

Implementation of the remedy will involve the reassign-

ment of over 42,000 children from the neighborhood

schools which they currently attend to schools in different

geographic areas of the city. These reassignments will

involve extensive cross-town transportation of over 37,000

students on 213 buses. In order to accomplish this trans-

portation with available equipment, six different school

starting times must be scheduled so that each bus can make

an average of three trips each morning and afternoon. The

pairing and clustering of elementary schools under the

plan requires the alteration of grade structures in nearly

every elementary school.

D. The Court of Appeals’ Decision

The Court of Appeals affirmed the liability and

remedy judgments against the Columbus Board. [A.140.]

Referring to the trial court’s discussion of the Columbus

schools prior to 1954, the court of appeals concluded that

a “dual school system” existed as of 1954, and that “under

these circumstances, the Columbus Board of Education has

been under a constitutional duty to desegregate its schools

for 24 years.” [A. 160.] With that finding as its predicate,

the court of appeals took the view that any action taken

by the Board after 1954 which did not eradicate all racial

imbalance was unconstitutional. The appellate court held:

“{T]he District Judge on review of pre-1954 history

found that the Columbus schools were de jure segre-

gated in 1954 and, hence, the Board had a continuing

constitutional duty to desegregate the Columbus

schools. The pupil reassignment figures for 1975-76

demonstrate the District Judge’s conclusion that this

burden has not been carried. On this basis alone (if

14

there were no other proofs), we believe we would be

required to affirm the District Judge’s finding of

present unconstitutional segregation.” [A. 165.]

With respect to the post-1954 actions, the Sixth

Circuit, quoting extensively from the lower court's findings

on liability, agreed with the analysis and conclusions of the

district court. The appellate decision added that the gross

data alone, showing that 87 of the 103 new schools opened

as “racially identifiable” schools and that 71 of the 87 were

still racially identifiable at the time of trial, “requires a

very strong inference of intentional segregation.” [A, 173.]

The court of appeals stated that these “repeated instances”

of constructing neighborhood schools which were “racially

identifiable” was the equivalent of choosing segregative

sites and justified a finding of “unconstitutional system-

wide segregation.” [A. 173.] The other acts indentified in

the trial court’s decision as unconstitutional (boundary

changes, optional areas, discontiguous areas ) were charac-

terized as “isolated in the sense that they do not form any

systemwide pattern” of segregation. [A. 175.]

The court of appeals found that the district court had

correctly imposed a systemwide remedy even in the

absence of any attempt to determine incremental segrega-

tive effect in the manner directed in Dayton. [A. 197.]

Instead, the court of appeals was of the opinion that legal

presumptions could be used to justify a systemwide statis-

tical racial balance remedy even though the specific con-

stitutional violations cited by the district court were iso-

lated in nature.

REASONS FOR GRANTING THE WRIT

This school desegregation case presents important

questions pertaining to the proper legal standards which

must be adhered to by federal courts in the determination

of constitutional violations and in the fashioning of equit-

15

able remedial decrees. If the lower courts’ interpretation

of these legal principles is permitted to stand, any large

urban school district in a city with segregated housing pat-

terns may be presumed to be in violation of the equal pro-

tection clause and under a constitutional duty to achieve

racial balance in each school in the system. The uncontrol-

led use of legal presumptions in these cases leads inevit-

ably to the imposition of systemwide racial balance reme-

dies because the use of such presumptions has the effect of

turning the constitutional prohibition against racially dis-

criminatory action into an affirmative duty to racially

balance all schools.

The opinions of the courts below illustrate the need

for explicit guidelines from this Court to limit school dese-

gregation remedial orders to the correction of segregation

caused by school officials and not that caused by others.

The lower federal courts must be instructed that in making

the transition from the liability stage to the remedy stage

of school desegregation cases, they are not to forsake fact-

finding, supported by a reasoned statement of legal princi-

ples, in favor of what they may find more fair or socially

desirable. However well-intentioned, federal courts have

no general jurisdiction in these cases to restructure public

education. Under the aegis of constitutional authority and

with the improper use of presumptions, the federal courts

are doing just that. Large urban school districts are being

forced to restructure their entire school systems, to trans-

port students away from their nearby neighborhood

schools, and to spend large amounts of scarce resources to

implement ambitious racial balance remedies.’ This

is seen as wasteful by taxpayers, undesirable and threaten-

5 In Ohio, many school districts do not even have sufficient re-

sources to continue operations for the remainder of the current

school year. The Columbus system now projects an $8.8 million

deficit for 1978, and that it will be forced to close schools by

mid-November unless emergency state loans are made available.

16

ing by parents whose children are forced to participate in

these massive relocations, and counterproductive by many

educators. This Court should issue a writ of certiorari to

correct the substantial legal errors committed by the courts

below, and to set forth explicit standards confining the

fashioning of equitable remedial decrees to the correction

of the demonstrated effects of specific unconstitutional

conduct on the part of school officials.

I. THE DECISIONS BELOW ARE IN CONFLICT

WITH AND MISAPPLY DECISIONS OF THIS

COURT IN FINDING THAT LIABILITY CON-

CERNS THE SYSTEM AS A WHOLE AND IN

IMPOSING A SYSTEMWIDE RACIAL BALANCE

REMEDY WITHOUT FIRST DETERMINING

INCREMENTAL SEGREGATIVE EFFECT

A. In Failing to Determine Incremental Segregative

Effect, the Decisions Below Conflict With the Deci-

sions of this Court in Dayton, Brennan and Omaha

The courts below violated the dictates of this Court’s

decisions in Dayton, Brennan and Omaha by failing to

determine the current incremental segregative effect of

the remote and isolated constitutional violations found by

the district court, and by failing to tailor a remedy con-

fined to the correction of that effect. Both courts approved

the imposition of a systemwide statistical racial balance

remedy which goes far beyond the correction of any pos-

sible current effect of the limited violations which were

found.

Neither the district court, nor the court of appeals,

conducted the inquiry which this Court mandated in

Dayton.

“The duty of both the District Court and the Court

of Appeals in a case such as this, where mandatory

segregation by law of the races in the schools has

17

long since ceased, is to first determine whether there

was any action in the conduct of the business of the

school board which was intended to, and did in fact,

discriminate against minority pupils, teachers or staff.

.. . If such violations are found, the District Court

in the first instance, subject to review by the Court

of Appeals, must determine how much incremental

“one effect these violations had on the racial

distribution of the Dayton school population as pres-

ently constituted, when that distribution is compared

to what it would have been in the absence of such

constitutional violations. The remedy must be de-

signed to redress that difference, and only if there

has been a systemwide impact may there by a system-

wide remedy.”

Dayton Board of Education v. Brinkman, 433 U.S.

at 420. (Emphasis added. )

The lower courts refused to make this mandatory com-

parison of present racial distribution with the racial dis-

tribution that would exist but for the constitutional vio-

lations.

An examination of the district court’s March 8, 1977

opinion discloses that the court absolutely failed to make

any factual inquiry into the incremental segregative effect

of constitutional violations found, but rather premised its

findings of systemwide liability on a presumption that the

violations would have a systemwide impact. No attempt

was made to find that portion of segregation in the schools

which was caused by the defendant school officials as

opposed to that portion“€aused by segregated housing

patterns attributable to economics, choice, and discrimi-

nation by non-parties in the housing market. Indeed, the

trial court specifically found that it was not required to

make such a comparison:

“The interaction of housing and the schools operates

to promote segregation in each. It is not now possible

to isolate these factors and draw a picture of what

Columbus schools would have looked like today with-

18

out the other’s influence. I do not believe such an

attempt is required.” [A. 58.]

The district court did find, however, that no “reasonable

action by the school authorities could have fully cured

the evils of residential segregation.” [A. 58.] More im-

portantly, it found and concluded that

“It is plainly the case in Columbus that had school

officials never engaged in a single segregative act or

omission, the system-wide percentage of black stu-

dents would nevertheless not be accurately reflected

in each and every school in the district.” [A. 74.]

Notwithstanding these findings and its refusal to determine

incremental segregative effect, the district court, relying

on legal presumptions, found that liability “concerns the

Columbus district as a whole” and imposed a systemwide

remedy. [A. 73.] This generalized approach, devoid of

fact-finding on incremental effect, was affirmed by the

court of appeals.

The district court was required to make the specific

factual inquiry mandated by Dayton, and thereby to sort

out that portion of any current racial segregation caused

by school officials from that caused by others. Although

perhaps a “difficult task, . . . nonetheless, that is what

the Constitution and our cases call for.” Dayton, 433 U.S.

at 420. The district court’s finding that not all schools in

Columbus would be racially balanced even in the absence

of any segregative actions by school officials is inconsistent

with its imposition of a systemwide remedy. Since the

plaintiffs failed to prove, and the court was unable to

find, any current condition of segregation resulting from

such actions, no remedy was constitutionally permissible

under Dayton, Brennan and Omaha.

The conflict between this Court’s decisions and those

of the lower courts is further illustrated by the district

court's comments concerning the application of Dayton,

19

Brennan and Omaha to this case. In its July 7, 1977 order

permitting the Board to leave to file an amended desegre-

gation plan, the court stated:

“In my view, the hope that the Dayton case would

provide new and clear instructions for trial courts has

not been realized. I do not view these principles as

any different from those under which the litigants

were operating when this case was tried.” [A. 93.]

The court’s attempt in that order to distinguish Dayton

on the premise that a determination of incremental segre-

gative effect was only required in cases of “isolated” vio-

lations, and not where there was a finding of “systemwide

liability,” was in direct conflict with Brennan and Omaha.

In both of those cases, the lower courts had found system-

wide liability and had ordered systemwide remedies. Nev-

ertheless, this Court vacated those decisions and remanded

the cases with instructions to make the mandatory inquiry

into incremental segregative effect. Thus, the district

® In Omaha, the district court had ordered a systemwide deseg-

regation plan in conformity with an earlier decision by the Eighth

Circuit, 521 F.2d 530 (8th Cir. 1975), finding extensive consti-

tutional violations which created systemwide liability. 418 F.

Supp. 22 (D. Neb. 1976). The plan was affirmed by the court

of appeals. 541 F.2d 708 (8th Cir. 1976). Despite the unam-

biguous finding of the courts below that the violation was “sys-

temwide,” this Court vacated the judgments and directed the

courts below to conduct the Dayton inquiry. 433 U.S. 667.

In Brennan, the district court found intentional segregation in

the “entire” Milwaukee school system and that Milwaukee officials

had operated a “dual” system. Amos v. Board of Directors, 408

F. Supp. 765, 821 (E.D. Wis. 1976). The Seventh Circuit affirmed

the finding of systemwide liability. Armstrong v. Brennan, 539 F.

2d 625 (7th Cir. 1976). Thereafter, the district court ordered

implementation of a systemwide desegregation plan. Armstrong

v. O'Connell, 427 F. Supp. 1377 (E.D. Wis. 1977). Despite the

finding of systemwide violations, this Court vacated and re-

manded the liability judgments with the direction that the

mandatory Dayton inquiry be made. 433 U.S. 672.

20

court's attempt to confine the rule of Dayton to the facts

of that case was clearly improper. Under Omaha and

Brennan, the district court's finding that “systemwide lia-

bility is the law of this case” did not excuse it from making

the inquiry into incremental segregative effect. Nor does

the court of appeals’ single cryptic footnote dismissing the

applicability of Omaha and Brennan justify or explain its

refusal to require such an inquiry. [A. 200.]

In his August 11, 1978 decision granting the Colum-

bus Board’s stay application, Mr. Justice Rehnquist, after

reviewing the decisions below and the July 27, 1978

decision of the Sixth Circuit in the Dayton school desegre-

gation case [A. 219.], stated that these decisions “clearly

indicate to me that the Sixth Circuit has misinterpreted

the mandate of this Court’s Dayton opinion.” [A, 213.]' The

Sixth Circuit's approach in the Columbus case “evinced an

unduly grudging application of Dayton.” [A. 213.] Mr.

Justice Rehnquest further concluded that in these cases

the Sixth Circuit Court of Appeals had

“employed _ presumptions of intent to extrapo-

late systemwide violations from what was described

in the Columbus case as “isolated” instances. Penick

v. Columbus Board of Education, supra, slip op. at

36 (July 14, 1978). The Sixth Circuit is apparentl

of the opinion that presumptions, in combination wit

such isolated violations, can be used to justify a sys-

temwide remedy where such a remedy pas | not ‘a

warranted by the incremental segregative effect of

the identified violations.” [A. 213-214.]

* In Dayton, this Court remanded the case directly to the district

court for further proceedings. On remand, the district court con-

ducted evidentiary hearings, and on December 15, 1977 ren-

dered a decision dismissing the plaintiffs’ complaint. The Sixth

Circuit reversed all the findings of fact made by the District

Judge as “clearly erroneous,” and held that he “misunderstood”

this Court’s mandate on remand. The court of appeals reinsti-

tuted the systemwide racial balance remedy. Brinkman ov.

Gilligan, Case No. 78-3060 (6th Cir, July 27, 1978). [A. 219.]

21

Mr. Justice Rehnquist therefore found the Sixth Circuit's

view inconsistent with Dayton and worthy of review on

certiorari;

“That is certainly not my reading of Dayton and ap-

pears inconsistent with this Court's decision to vacate

and remand the Sixth Circuit’s opinion in Dayton ITI.

In my opinion, this questionable use of legal presump-

tions, combined with the fact that the Dayton and

Columbus cases involve transportation of over 52,000

school children, would lead four Justices of this Court

to vote to grant certiorari in at least one case and hold

the other in abeyance until disposition of the first.”

[A. 214.]

We respectfully submit that Mr. Justice Rehnquist's assess-

ment of the proceedings below is correct, and that the

Court should therefore grant certiorari in this case.

B. There Must Be Factual Findings and Conclusions

of Law on Incremental Segregative Effect Before

a Remedy Can Be Fashioned

Dayton, Brennan and Omaha require that findings of

incremental segregative effect be entered before a remedy

is fashioned. In the present case, there was no evidentiary

support or findings upon which the court of appeals, in

July, 1978, could make a finding of incremental segregative

effect. Instead, it resorted to the use of a legal presumption

to find that “school board policies of systemwide applica-

tion necessarily have systemwide impact.” [A. 198.] This

after-the-fact attempt to supply some “findings” to support

the lower court’s October 4 systemwide remedy order was

improper. ;

Petitioners respectfully submit that the Sixth Circuit's

purported effort at making a determination of incremental

segregative effect from the record which was before it was,

in fact, a rather transparent attempt to avoid the clear

conflict of the trial court's systemwide liability and remedy

judgments with the decisions of this Court in Dayton,

22

Brennan and Omaha.‘ Although the court of appeals pur-

ported to apply Payton to this record, the opinion dis-

closes no attempt to make the required inquiry into “the

racial distribution of the [Columbus] school population as

presently constituted” as “compared to what it would have

been” in the absence of the school board actions which the

district court found to be constitutional violations. Dayton,

433 U.S. at 420. In fact, it would have been impossible for

the court to make that comparison on the basis of the

record before it. The trial court's only relevant finding on

this issue was that even in the absence of any segregative

acts, “the systemwide percentage of black students would

nevertheless not be accurately reflected in each and every

school in the district.” [A. 74.] Yet, such racial balance is

precisely what the systemwide remedy approved by the

court of appeals requires.

Petitioners do not lightly suggest that the Sixth Circuit

is disregarding the recent decisions of this Court. How-

ever, its decision in this case, especially when read in

conjunction with its July 27, 1978 ruling in the Dayton

school desegregation case, demonstrates that the Sixth

Circuit has adopted an approach to the adjudication of

school desegregation cases which conflicts with Dayton,

Brennan and Omaha.

* The appellate court's attempt to make the necessary “complex

factual determination” (Dayton at 420) was clearly outside the

proper scope of appellate review. If it felt that the trial court

failed to make adequate findings under Rule 52, Fed. R. Civ. P.,

it should not have attempted to make these findings itself, but

should have reversed, or vacated the judgment and remanded

the case for additional findings by the trial court. Mayo v. Lake-

land Highlands Canning Co., 309 U.S. 310, 316 (1940); 5A

Moore, Federal Practice, {{ 52.06[2], 52.11[4]; 9 Wright & Miller,

Federal Practice and Procedure: Civil, § 2577 (1971). Civil rights

cases do not present an exception to this general rule. See, e.g.,

Echols v. Sullivan, 521 F.2d 206 (5th Cir. 1975); Davis v. Board

of School Commissioners, 422 F.2d 1139 (5th Cir. 1970).

23

C. The Lower Courts Presumed a Causal Connection

Between Remote and Isolated Acts and the Cur-

rent Racial Imbalance in the School System

Where there is no history of statutorily mandated

segregation, it is incumbent upon the plaintiffs to adduce

proof of causal connection between racially imbalanced

schools and intentionally discriminatory actions by school

officials:

“[I]n the case of a school system like Denver's, where

no statutory dual system i ever existed, plaintiffs

must prove not only that segregated schooling exists

but also that it was brought about or maintained by

intentional state action.”

Keyes v. School District No. 1, 413 U.S. 189, 198

(1973).

This requirement was reaffirmed and elaborated upon in

Dayton, which defined the causation standard in terms of

the demonstrated current incremental segregative effect

of intentionally discriminatory action. Lower federal courts

are required to make findings, supported by factual proof,

of a causal relationship between alleged discriminatory acts

and the racial composition of schools, and to specifically

quantify that effect. Despite this, the courts below sub-

stituted legal presumptions for a detailed factual inquiry

into cause and effect, thus permitting the imposition of a

systemwide remedy in the absence of factual proof of a

systemwide effect. '

The lower courts’ abandonment of the causation re-

quirement is most apparent from the trial court's liability

opinion. First, the district court based its liability findings

to a great extent upon actions by predecessor boards of

education dating back to 1871, which the court found to

have created, by 1943, an “enclave” of five predominantly

black schools on the near east side of the city. Even if it is

assumed that these acts were intentionally discriminatory,

however, there was no attempt by the plaintiffs to prove,

24

or the district court to find, a causal connection between

these acts and the current existence of racially imbalanced

schools. Instead, relying on a “fruit of the poisonous tree”

theory, the court concluded that these acts were respon-

sible for or tainted the contemporary school system. It was

just such a theory which this Court rejected in Dayton.

433 U.S. at 417. Second, while the court identified the

immediate impact on the racial composition of schools

involved in the isolated post-1954 violations, it again made

no effort to determine whether these effects continued to

the date of trial. Finally, although the trial court acknowl-

edged that a “myriad” of other factors were responsible for

residential racial imbalance, it found it was not required

to attempt to separate their effects from those attributable

to actions by school officials. [A. 58.]°

Consequently, it is apparent that the courts below

abandoned the requirement set forth in Keyes and Dayton,

that plaintiffs must prove a cause and effect relationship

between acts found to be intentionally discriminatory and

a current condition of racially imbalanced schools. In sub-

stitution therefor, the lower courts employed legal pre-

* In fact, the record contained ample evidence of intervening

events and circumstances which were acknowledged as the

cause of the residential racial imbalance in Columbus, the prin-

cipal cause of racially imbalanced schools. These factors included

demographic trends, economics, personal choice, and discrimina-

tion by non-parties. Within the category of discrimination by

non-parties were: (1) racially motivated site selection and assign-

ment policies of public housing authorities; (2) racially motivated

site selection, financing, sale and rental policies of FHA and VA;

(3) racially motivated site selection, relocation and redevelop-

ment policies of urban renewal programs; (4) zoning and annex-

ation policies; (5) restrictive covenants; (6) policies of financial

institutions that discourage prospective developers of racially

integrated private housing; (7) policies of financial institutions

that allocate mortgage funds and rehabilitation loans to blacks

only if they live in black areas; (8) practices of the real estate

industry such as limiting the access of black brokers to realty

25

sumptions to arrive at a judgment of systemwide liability

and systemwide remedy. This Court should grant certiorari

to review this departure from its decisions.

D. The Statistical Racial Balance Remedy is in Con-

flict with Swann

This Court has consistently disapproved of any dese-

gregation plan which requires statistical racial balance in

every school. Swann v. Charlotte-Mecklenburg Board of

Education, 402 U.S. 1, 23-24 (1971); Milliken v. Bradley,

418 U.S. 717, 740-741 (1974); Pasadena City Board of

Education v. Spangler, 427 U.S. 424, 434 (1976). In Day-

ton, the Court reaffirmed its consistent position that the

Constitution does not command that schools be racially

balanced. 433 U.S. at 417.

Although careful not to say so explicitly, the district

court’s July 29 order required development of a system-

wide desegregation plan which would racially balance the

enrollment of all schools in the system to within = 15%

of the systemwide black student enrollment, thus elimi-

nating all “racially identifiable” schools in the system

associations and multiple-listing services, refusal by white realtors

to co-broker on transactions that would foster racial integration,

block-busting and panic selling, racially identifying vacancies

overtly or by nominal codes, steering, and penalizing brokers who

attempt to facilitate racial integration; and (9) racially discrim-

inatory practices by individual homeowners and landlords.

In view of the district court’s findings concerning the impact

of residential racial imbalance on the racial composition of

schools, it is apparent that the courts below sought to use the

vehicle of this litigation to correct the effects of residential segre-

gation, discrimination by non-parties, and socio-economic strati-

fication. While such an objective may be laudable as a matter

of social policy, it is clearly beyond.the scope of a federal court's

remedial jurisdiction in this type of case. Swann v. Charlotte-

Mecklenburg Board of Education, 402 U.S. 1, 22-23 (1971).

96 *

under the court’s definition.”® [A. 97.] The plan ultimately

ordered by the court accomplishes that objective. [A. 125.]

Although the Columbus Board strenously objected to the

requirement that each school be raciaily balanced within

a + 15% range or target, these objections were not

addressed by the court of appeals. The Court should review

this case to make it clear that such use of statistical racial

ratios is not constitutionally permissible under Swann.

Il. THE DECISIONS BELOW CONFLICT WITH

AND MISAPPLY DECISIONS OF THIS COURT

AND HIGHLIGHT A CONFLICT AMONG THE

CIRCUITS CONCERNING THE MANNER _ IN

WHICH DISCRIMINATORY INTENT OR PUR-

POSE MAY BE PROVEN

The lower courts adopted a legal rule which effec-

tively dilutes the requirement of proof of invidious dis-

crimination as an element of a violation of the equal

protection clause. By drawing an inference of segregative

The district court adopted the following definition of racially

identifiable schools:

“The concept of racial identifiability or unidentifiability is

used to describe the relationship between the racial com-

position of a particular school and the racial compositign of

the system as a whole. A measure of statistical variance is

applied to the actual (or estimated) system-wide percentage

of black pupils. Schools which have a percentage of black

pupils within this range are racially unidentifiable, or bal-

anced. Schools which have a black population in excess of

this range are racially identifiable, or imbalanced, black

schools. Schools having a black population less than the range

are racially identifiable, or imbalanced, white schools.”

[A. 78.]

The “range” adopted by the court was + 15% from the 32.5%

black student enrollment in the system. Thus, under the court’s

approach, a school is racially balanced only if it has a black

enrollment of between 17.5% and 47.5%.

27

intent from the mere continuance of a neighborhood school

system and the construction of new schools in racially

imbalanced neighborhoods, the lower courts misapplied

decisions of this Court. Under the lower courts’ opinions,

any schocl system which employs a neighborhood assign-

ment policy in an urban area with residential racial

imbalance will be presumed to be in violation of the

Constitution.

A. The Courts Below Inferred Segregative Intent

From the Mere Continuance of the Neighborhood

School System

Although the district court explicitly recognized the

worth of the neighborhood school policy and the benefits

derived from such a policy [A. 55], the Columbus Board’s

continuance of a neighborhood school policy since before

1900 was inexplicably found to be evidence of segregative

intent.'' The district court’s inference of segregative intent

from adherence to the neighborhood school policy is

apparent from a question posed and answered in its

opinion:

“If a board of education assigns students to schools

near their homes pursuant to a neighborhood school

wlicy, and does so with full knowledge of segregated

wae patterns and with full ynderstanding of the

foreseeable racial effects of its actions, is such an

assignment policy a factor which may be considered

by a court in determining whether segregative intent

exists?” [A. 48.]

'The neighborhood school policy has a statutory foundation in

Ohio, The Sixth Circuit has interpreted Ohio Revised Code

§ 3313.48 to compel Ohio boards of education to follow a neigh-

borhood school policy. Deal v. Cincinnati Board of Education,

369 F.2d 55 (6th Cir. 1966), cert. denied, 389 U.S. 847 (1967).

The United States Congress has enacted a statute declaring the

neighborhood to be the “appropriate basis for determining public

school assignments.” 20 U.S.C, § 1701(a) (2).

28

After stating that “a majority of the United States Supreme

Court has not directly answered this question regarding

non-racially motivated inaction,” the district courte an-

swered the posed question in the affirmative. [A, 48-49. ]

The court of appeals approved, adding that mere proof

of construction of 103 neighborhood schools between 1950

and ‘1975, 87 of which opened “racially identifiable,” re-

quired “a very strong inference of intentional segregation.”

[A. 173.]

This Court has not yet directly confronted the ques-

tion of whether segregative intent can be inferred from

adherence to a neighborhood school policy in a school

system which is residentially imbalanced. In Keyes, the

Court specifically reserved the question

“whether a ‘neighborhood school policy’ of itself will

justify racial or ethnic concentrations in the absence

of a finding that school authorities have committed

acts constituting de jure segregation.”

Keyes, 413 U.S. at 212.

Subsequent decisions, however, require that this question

be answered in the negative. In Washington v. Davis, 426

U.S. 229 (1976), Village of Arlington Heights v. Metro-

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

Austin Independent School District v. United States, 429

U.S. 990 (1976), and Dayton, the Court explicitly required

proof of discriminatory motive, and not merely proof of

a racially disproportionate impact.

Particularly in Austin and Pasadena City Board of

Education ». Spangler, 427 U.S. 424 (1976), the Court

has indicated its negative answer to the question reserved

in Keyes. In Austin, the Court vacated and remanded, in

light of Washington v. Davis, a judgment of the Fifth

Circuit which had relied on the foreseeable effect concept

in drawing an inference of segregative intent from mere

eee ee

29

adherence to a neighborhood school policy.’ In the Pasa-

dena case, the Court held that school systems were not

constitutionally required to reassign students to overcome

racial imbalance attributable to demographic patterns.

427 U.S. at 436.

In this case the courts below have answered the ques-

tion reserved in Keyes in a manner which is inconsistent

with this Court’s subsequent decisions. Since it is an ack-

nowledged fact that residential racial imbalance is a char-

acteristic of nearly all urban areas of this country, if the

standards announced below are allowed to stand, no urban

school system in this country can adopt a neighborhood

school policy without being presumed to be in violation of

the equal protection clause. This Court should there-

fore grant certiorari to answer the question whether neigh-

borhood school systems are per se unconstitutional.

B. The Lower Courts’ Adoption of a Foreseeable

Effects Standard of Liability is in Conflict with

Washington v. Davis.

As early as its decision in Keyes, this Court made it

clear that proof of intent or purpose to segregate was an

essential element of a violation of he equal protection

clause. The Court’s subsequent decisions in Washington

v. Davis, Arlington Heighis and Dayton reaffirmed and

' The Vifth Circuit had held;

“{S]chool authorities may not constitutionally use a neighbor-

hood assignment policy that creates segregated schools in a

district with ethnically segregatec residential patterns. A seg-

regated school system is the foreseeable and inevitabie result

of such an assignment policy. When this policy is used, we

may infer that the school authorities have acted with segre-

gative intent.”

United States v. Texas Education Agency, 532 F.2d 380, 392

(5th Cir, 1976).

Mr. Justice Powell’s concurring opinion in Austin cited this

holding as contrary to Washington v. Davis.

30

elaborated upon that rule. Nonetheless, ever since Keyes

was decided, the lower federal courts have adopted con-

flicting interpretations of the intent requirement. The

interpretations adopted in this case are in conflict with

this Court’s decisions and serve to highlight a conflict

among the circuits.

Although acknowledging the requirement of proof of

segregative intent, the lower courts adopted a foreseeable

effects standard of proof which excused the plaintiffs of

any burden of proof on intent. This was done in two basic

ways. First, if the school board took a specific action with

knowledge or reason to know that a collateral effect of the

action (whether desired or not) was to maintain or in-

crease racial imbalance, the court drew an inference of

segregative irtent.’’ Under this approach, the Columbus

Board’s neighborhood school policy was per se uncon-

stitutional.,

Second, whenever the Board was presented with two

alternative courses of action, one with an integrative effect

and one with the effect of maintaining or increasing racial

imbalance, the failure to choose the integrative alternative,

regardless of the preponderance of other factors weighing

in favor of the less integrative alternative, was taken as

evidence of segregative intent. Thus, a decision not to alter

the grade structures and to pair two elementary schools,

regardless of non-racial justifications, was condemned as

segregative because it did not improve racial balance. [A.

35-42.] The court felt “constrained” to draw an inference

® This formulation is similar to the tort concept of intent, and was

expressed by the district court in the following terms:

“The intent contemplated as necessary proof can best be

described as it is usually described —intent embodies the

expectations that are the natural and probable consequences

of one’s act or failure to act, That is, the law presumes that

one intends the natural and probable consequences of one’s

_ actions or inactions.” [A. 44-45.]

31

of segregative intent from the failure “after notice, to con-

sider predictable racial consequences of their acts and

omissions when alternatives were available which would

have eliminated or lessened racial imbalance.” [A. 19-20.]

The employment of these inferences by the courts

below amounted to the adoption of an “effect” standard —

that an act would be presumed to be intentionally dis-

criminatory if it had a racially disproportionate impact. The

only apparent qualification to the “effect” test which these

courts adopted was to engraft onto it a requirement that

the actor must know or have reason to know that the effect

might result.

In Washington v. Davis, the Court held that official

action that has a racially disproportionate impact does not

violate the equal protection clause unless it is also dis-

criminatorily motivated. Although the Court did not elabo-

rate upon the manner in which such a motive must be

proven, it did reject the practice of inferring such an intent

or motive from the impact of governmental action in the

absence of other relevant facts from which such an intent

or motive could be inferred. 426 U.S. at 242.

The conflict between a “foreseeable effect” standard

and this Court’s decision in Washington v. Davis became

apparent almost immediately in Austin, where the Court

vacated and remanded a lower court decision which had

employed a “foreseeable effect” test for reconsideration in

light of Washington v. Davis. Justice Powell’s concurring

opinion noted that the Fifth Circuit had erred by imputing

segregative intent to school officials by drawing an infer-

ence from the foreseeable effect of official action.

In Village of Arlington Heights, the Court elaborated

on its holding in Washington v. Davis and established the

manner in which discriminatory intent or purpose must be

proven. The Court held that a plaintiff claiming that

government action was discriminatory had the burden of

proving that discrimination was “a motivating factor.”

Impact alone is not sufficient to prove this except in the

32

rare case where it is so stark that the decision would be

“unexplainable on grounds other than race.”"* 429 U.S.

at 266. Otherwise, as in this school desegregation case,

the plaintiff must introduce other evidence which is pro-

bative of discriminatory motivation, such as a connection

with another invidiously discriminatory decision, a de-

parture from normal procedures in making the decision, a

sudden willingness to disregard factors ordinarily con-

sidered important, or incriminating statements of decision-

makers. 429 U.S. at 266-268.

In the instant case, the district court did not require

the plaintiffs to prove that racial discrimination was “a

motivating factor” in decisions of the Columbus Board. In

adopting the “foreseeable effect” test, therefore, the district

court and court of appeals violated the dictates of Wash-

ington v. Davis, Austin, and Village of Arlington Heights.

“ For examples of such cases, see, e.g., Gomillion v. Lightfoot, 364

U.S. 339 (1960); Yick Wo v. Hopkins, 118 U.S. 356 (1886). As

stated in Washington v. Davis, such proof may be appropriate

in cases where the selection of jurors is challenged on constitu-

tional grounds. Washington v. Davis, 426 U.S. at 242. The Court

subsequently applied this relaxed standard of proof in Castenada

v. Partida, 430 U.S. 482 (1977), where the Court relied almost

entirely on disproportionate impact in holding that a Texas

county had discriminated in its selection of grand jurors, As

Austin, Dayton, Brennan, and Omaha indicate, this relaxed

standard would normally not apply in a school desegregation

case,

© At least one commentator has recognized that the two intent

formulations adopted by the lower courts in this case are im-

proper under Washington v. Davis and Arlington Heights:

“Some courts and commentators thought that the tort law

intent standard — that an actor, here the decisionmaker, in-

tends the probable, natural, or foreseeable consequences of

his decision — applied in the equal protection context. [Cita-

tion omitted.] Since the village was probably aware of the

consequences of its refusal to rezone, Arlington Heights seems

to preclude this interpretation. In any event, it would gener-

33

The error was compounded by treating the foreseeable

effects standard as a legal presumption which shifted to

the defendants the burden of proving that their acts were

not discriminatorily motivated. However, Washington v.

Davis, Arlington Heights and Mt. Healthy City Board of

Education v. Doyle, 429 U.S. 274 (1977), indicate that the

use of the foreseeability test to shift the burden of proof

on this issue is improper and that the district court should

have maintained the burden of proof on the plaintiffs until

they proved that discrimination was “a motivating factor’

in the Columbus Board's decisions.

C. The Decisions Below Highlight a Conflict Among

the Circuits as to Whether an Act Can be Pre-

sumed to be Motivated by Discriminatory Intent

Simply Because its Disproportionate Impact is

Foreseeable.

In addition to the Sixth Circuit, the Second, Fifth

and Eighth Circuits have held that mere proof of the

foreseeable effect of official action, rather than the presence

of racial motivation, satisfies the segregative intent re-

quirement of Keyes in school desegregation cases. See

Hart v. Community School Board, 512 F.2d 37 (2d Cir.

1975); United States v. Texas Education Agency, 564

F.2d 162 (5th Cir. 1977); and United States v. School

District of Omaha, 565 F.2d 127 (8th Cir. 1977), cert.

denied, 434 U.S. 1064 (1978).

ally amount to the impact test rejected by Washington v.

Davis...”

“Other commentators have suggested that a decisionmaker

would violate the intent standard of Washington v. Davis if

it chose a more segregative measure over an alternative that

served its purpose equally well . . . [T]he propriety [of such

a standard] is questionable. And Arlington Heights seemed to

preclude this interpretation of Washington v. Davis as well.

The Supreme Court, 1976 Term, 91 Harv. L. Rev. 70, 166-67

n. 33 (1977).

34

The Ninth Circuit has rejected the foreseeable effect

test. See, Berkelman v. San Francisco Unified School Dis-

trict, 501 F.2d 1264 (9th Cir. 1974); Johnson v. San Fran-

cisco Unified School District, 500 F.2d 349 (9th Cir. 1974);

Soria v. Oxnard School District Board of Trustees, 488 F.2d

579 (9th Cir. 1973), cert. denied, 416 U.S, 951 (1974).

This conflict among the circuits was discussed in the

district court’s liability opinion and was described as

follows:

“The difference, if any, between the Second Circuit’s

approach to the oe of liability and that of the

Ninth Circuit appears to be that the Second Circuit

would affirm a finding of liability based upon proof

of affirmative intentional acts and omissions after

notice which foreseeably result in segregation even

in the absence of a desire to segregate. The Ninth

Circuit would appear to require proof of a deliberate

policy of segregation, but would permit this require-

ment to be met by the drawing of reasonable infer-

ences from evidence of defendants intentional acts

and omissions.” [A. 47-48, n.3.]

Noting, however, that the law of the Sixth Circuit

governed this case, the district court adopted the fore-

seeable effect test set forth in the Sixth Circuit’s decision

in Oliver v. Kalamazoo Board of Education, 508 F.2d 178

(6th Cir. 1974), cert. denied, 421 U.S. 963 (1975), which,

in turn, had approved the approach of the Second Circuit

in Hart. Thus, liability was imposed even in the “absence

of a desire to segregate.” This conflict of decisions should

be resolved by this Court.

35

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment of the Sixth Circuit Court of Appeals.

Respectfully submitted,

Earu F, Morris

SAMUEL H. PORTER

Curtis A, LOVELAND

WituiaM J. KELLY, JR.

PORTER, WRIGHT,

MORRIS & ARTHUR

37 West Broad Street

Columbus, Ohio 43215

Telephone: (614) 227-2000

Dated: October 11, 1978 = Attorneys for Petitioners