Unknown title — Columbus Board of Education v. Penick

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EVN ANUVUIVIENI

[eres

RILED

—_— MAR 26 1979

Supreme Court of the United {ebb nena, JR_CLERK

Octoser Term, 1978

Nos. 78-610, 78-627 ee

Cotumsus Boarp or Epvucation, et al.,

Petitioners,

—Y

Gary L. Penick, et al.,

Respondents.

Dayton Boarp or Epvucation, et al.,

Petitioners,

—V.—

Mark Brinkmay, et al.,

Respondents.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION

AND THE INTERNATIONAL UNION OF ELECTRICAL,

RADIO AND MACHINE WORKERS AMICI CURIAE

WINN NEWMAN

CaRoLE W. WILSON

1126 16th Street, N.W.

Washington, D.C. 20036

Attorneys for IUE

Burt NEUBORNE

E. Ricuarp LARSON

American Civil Liberties

Union Foundation

22 East 40th Street

New York, New York 10016

Ropert ALLEN SEDLER

Wayne State University

Law School

Detroit, Michigan 48202

Attorneys for ACLU

TABLE OF CONTENTS

Page

Interest of Amici .....-+ cee 2

Summary of Argument .-. « 6s ss «6

ARGUMENT. «© © © © © © © © @ © «6 © 0 hO

I. DEFENDANTS HAVE BREACHED

THEIR AFFIRMATIVE DUTY TO

DISMANTLE SCHOOL SYSTEMS

FOUND TO HAVE INTENTIONALLY

OPERATED ON A SEGREGATED BASIS

AT THE TIME OF THIS COURT'S

DECISION IN BROWN v. BOARD

OF EDUCATION. THE ISSUANCE

OF SYSTEMWIDE RELIEF WAS BOTH

NECESSARY AND APPROPRIATE TO

COMPEL COMPLIANCE WITH DEFEND-

ANTS' AFFIRMATIVE OBLIGATION TO

DISMANTLE THEIR DUAL SYSTEMS

OF PUBLIC EDUCATION .... .20

A. The Nature of The

Affirmative Duty to

Eliminate Dual Systems

Imposed Upon Defendants

By Green v. County

BEnGol BOOTG. . « 6 « « cfd

B. The Procedural Ground

Rules for Proving

Breach of Defendants'

Affirmative Duty to

Eliminate Vestiges of

Dual Systems of Public

BGucation. « « « + « « «46

ate

II.

DEFENDANTS ARE GUILTY

OF CULPABLE BEHAVIOR

IN KNOWINGLY OPERATING

RACIALLY SEGREGATED

PUBLIC SCHOOLS. FEDERAL

COURTS POSSESS UNQUESTIONED

POWER TO ORDER SYSTEM-

WIDE RELIEF TO REDRESS THE

CONSEQUENCES OF DEFENDANTS '

CULPABLE BEHAVIOR. ....

The Nature of the

Culpable Mental State

Required to Justify

Prospective Relief

Under the Equal Pro-

tection Clause. ...

The Burdens of Proving

Culpable Mental State

The Nature of Plaintiffs'

Initial Production

BurGes .o «:és 2s 2%

The Nature of Defend-

ants' Persuasion

DUSEOD -¢ é Oh 6 we

The Shift of the Pro-

duction Burden to

Defendants .....

Castaneda v. Partida

- 36

-61

and Keyes v. School Dis-

trict No. 1 as Evi-

dentiary Models. . .

oh ie

- 63

Page

5. Application of the

Evidentiary Model

to the Dayton and

Columbus Cases ... .68

a. Satisfaction of

Plaintiffs' Initial

Production Burden . .68

b. Defendants' Attempt

to Satisfy a Shifted

Production Burden . .70

c. Allocation and Attempted

Satisfaction of the

Persuasion Burden . .70

III. THE FOURTEENTH AMENDMENT

IMPOSES AN AFFIRMATIVE OB-

LIGATION UPON ALL SCHOOL

DISTRICTS TO OPERATE

RACIALLY INTEGRATED SCHOOLS

WITHIN THEIR DISTRICTS TO

THE MAXIMUM EXTENT FEASIBLE

« o f4

iS “o.. 6° ie a 6 ye. oe « ee ee

-iii-

Table of Authorities

Cases:

Adams v. Matthews, 403 F.2d 181

(5th Cir. 1968) - +--+ =: - “ss 6 eae

Arthur v. Nyquist, 573 F.2d 174

(28 Cia. B97B). « 6 2 ee ee ew tl el

Bell v. School City at Gary, 324 F.2d

209 (7th Cir. 1963) (cert. denied,

S77 Us Bete Temes 2 6 8 te lt le 8 8 FE

Berdahl v. S.E.C., 572 F.2d 643

(Sh Cae. AGTO) oie swe eee ee 0 OU

Bolling v. Sharpe, 347 U.S. 497 (1954). 81

Brown v. Board of Education, 347

U.S. 483 (1954) - - ++ ++ + + -passim

Carey v. Piphus, 435 U.S.247 (1978). 29,31,

Castaneda v. Partida, 430 U.S. 482

PAPE) 6 is 4. Jee 018. «& * 6 6 oPORRIR

Chapman v. California, 386 U.S. 18

Sa LS ere le @ ip! ee 6. ee Se ke fe

Coleco v. Berman, 567 F.2d 569

oe a a ae

In Re Con Edison of New York (Indian

Point #2) 6 A.E.C. 751 (Sept. 25, 1973). 60

Cook v. Avien, Inc. 573 F.2d 685

A Se a a

Cooper v. Aaron, 358 U.S. 1 (1958), , ,20

Continental T.V. Inc. v. G.T.E. Sylvania,

sen. 33S CB. 2S. Cvs se eee Ke

Crawford v. Board of Education of City

of Los Angeles, 17 Cal. 3d. 280

) (9976) 2 ww ww ew oe wo ww ww 0 89

Davis v. Board of School Commissioners,

Ce CBs FF (Ee i ee ate ara ec

Davis v. United States 160 U.S. 469

Co Re ar iy

Dayton Board of Education v. Brinkman,

433 U.8. 406 (1977). « 2 2 6 s & w 2 80

Deal v. Cincinnati Board of Education,

369 F.2d 55 (6th Cir., cert. denied,

3809 Ui8. OOF, 296Re © ieee 0 we HTT

Downs v. Board of Education, 366 F.2d

988 (10th Cir. 1964), (cert. denied

380 U.S. 914, 1965)- - - + + «+ « « «78

Ernst & Ernst v. Hochfelder, 425

U.S. 185 (1976)- - - »« « « - « -passim

Estelle v. Gamble, 429 U.S. 97 (1976) 42,

Evans v. Buchanan, 393 F, Supp.428

(D.Del), aff'd mem., 423 U.S. 963

el, | ae ee oe état woe

-V=—

Evans v. Buchanan, 582 F.2d 750

A OE 8 ery eee eo

Evans v. Newton, 382 U.S. 296 (1966)- -83

Frontiero v. Richardson, 411 U.S. 677 |

PR 6 A 8 UE Se ie Oe a Se ee ee er

Gomillion v. Lightfoot, 364, U.S.339

PR Ga ae ar ed Bete eck ae eee

Goss v. Board of Education, 373 U.S.683

(1963) 7 o . o * . > . a = . - _ . 7 3

W.R. Grace & Co. 230 NLRB No.037

4: Speer Ee ee oe eer aoe ee: Be eee ey |

Green v. County School Board of Education

391 U.S. 430 (1968). . ... . .passim

Griffin v. County School Board of Prince

Edward County, 377 U.S. 218 (1964) -2°

Hall v. St. Helena Parish School,

417 F.2d 801 (5th Cir.),. (cert. denied,

396 U.6. 904, 1969). . «. « © « « « £25

Hart v. Community School Board of Educa-

tion, 512 F.2d 37 (2d Cir.1975) 57,86

Kaiser Engineering v. NLRB, 538 F.2d

1379 (9th Cir.1976), ia alte ew eee

Keyes v. School District No.l, 413

U.S.189 (1973) - - +++ + + + -passim

-vi-

a _—

Knell v. Bensinger, 522 F.2d 720

(7om Gare 3BTS)s + oh 0% o: . 30

Knuth Bros. Inc. 229 NLRB No. 176

7) SM Oa ee ee ae ae ee ee ~42

McLaurin v. Oklahoma State Regents,

pe Oe ee a . 86

Milliken v. RESSREY: : — se §.717

(1974) --° de te Py

Monroe v. Board of Commissioners,

391 U.S.450 (1968) - - -21

Monroe v. Pape, 365 U.S.167 (1961). -42

Mt. Healthy School District Board of

Education v. eine 429 U.S.274

(1977) - - + = is & 6.4% “OR edb ese

Mullaney v. Wilbur, 421 U.S.684

eo: ee eee es ee

Nassar & Co. v. S.E.C. 566 F.2d 790

(D.C. Cir. 1977) bd ° e ° e ° . me He

National Labor Relations Board v.

Great Dane Trailers, 388 U.S.26

SOT 6s. ig kno co. 1h, ng A 7 x 09097 1 69

National Treasury Employees Union v.

Nixon, 492 F.2d 587 (D.C. Cir. 1974).

-vii-

. 30

Nelson v. Serwold, 576 F.2d 1332

[eae Ges Grr eteny aw eis eee es 6 ee

O'Connor v. Donaldson, 422 U.S.563

ig RRB ILE Cac" oat tn a A

Otter Tail Power v. United States

430 G4. 906 11078) 6 8 a

Patterson v. New York 432 U.S.197

Corie. & 2-6 we 6 ee ec ew ERT

Raney v. Board of Education, 391 U.S.443

Sos ss 8 ee OTe eee wea SR

Regents of the University of California

v. Bakke, 98 S.Ct. 2733 (1978). .. 83

6.8.6. ¥. Abtokh, P.9@ « «-s eH gS4

(2d Cir. 1979)

S.E.C. v7. American Realty Trust, 429

F. Supp. 1148 (E.D. Va.1977)- e bad e 40

S.E.C. v. Arthur Young & Co. — F.2d

(0 Ste ee a se ince M1

' §.E.C. v. Blatt, 583 F.2d 1325

[iis Gis SONOE oe) eS

.S.E.C. v. Commonwealth Chemical Securi-

ties, 574 F.2d 90 (2d Cir. 1978). . 40

S.E.C. v. Texas Gulf Sulphur, 401 F.2d

gee ee, ee ee ee ee |

-viii-

S.E.C. v. Universal Major Industries

Corp., 546 F.2d 1944 (lst Cir.

| ee 2a a a es 9 |

S.E.C. v. World Radio Mission, Inc. 544

Pum wae eee es Bere, . 2 ew ew lw le 41

Scheuer v. Rhodes, 416 U.S. 232 —*"

Sostre v. McGinnis, 442 F.2d 178

(2a Cir. 1971) - «+ + © © © © © « © 23D

Speiser v. Randall, 357 U.S. 513

SEE ES ee ne eee ae ae eee

State Street Co. v. Ernst, 278 N.Y.112,

15 N.E. 2d 416 (1938). + -S@

Steinberg v. Carey, 439 F.2d 1233

POO OR 4, 5 5 6 we 6 + eo 6 S41

Sunstrand Corp. v. Sun Chemical Corp.

553 F.2d 1933 (7th Cir. 1977): - - -49

Swann v. Charlotte Mecklenberg Board of

Education, 403 U.S. 1 (1971) . . 75,80

Sweatt v. Painter, 339 U.S. 629 (1950) .86

Ultra Mares Corp. v. Touch Niven & Co.,

255 Bote 170, 174, N.E.441 (1931) - 44

United States v. Arnold Schwinn & Co.,

388 U.S. 365 (1967)- - - - »- - « « «48

United States v. Barker, 546 F.2d 940

Oe ee ee ee | ee |

United States v. Board of School Commis-

sioners of the City of Indianapolis,

573 F.2d 400 (7th Cir. 1978)... .82

United States v. Dixon, 419 F.2d 288

ae. Sos « ¢) 67 & 9.2 « BB, 38

United States v. Erlichman, 546 F.2d

De cemete Gabe Bere) se « + « 62 00-38, 48

United States v. Grinnell Corp., 384

U.S. 563 (1966), aff'g except as to

decree 236 F. Supp. 244 (D.R.1I.1964)

ch s Oped ¢S4,59

United States v. LaSalle National Bank,

Gaetan oe. taG7e)) «bee we 10,52

United States v. McClean, 528 F.2d 1250

I EE

United States v. Melillo, 275 F. Supp.

CE Ny ) a *

United States v. O'Brien, 391 U.S. 367

(1968) - + + + + © ee ee ee ee sae

United States v. Taylor, #06: F.2d 240

(2d Cir. 1972) - + =: ; 2 « eae

-xXx=—

United States v. Texas Educational Agency

564 £.24. 162 (Sth Cir. i977) . « « «9/7

United States v. United States Gypsum

Co. et al, U.S.

98 S.Ct. 2864 (1978) .... . -passim

Utah State University v. Bear Stearns

& Co., 549 F. 20 164 (10th Cir.

SE oe ke ae a ee SS +, 22 2 OF

Valente v. Pepsico, Inc., 454 F. Supp.

32726. (ied. OTE). «2 ee ee +o eS)

Village of Arlington Heights v. Metro-

politan Housing Development Corp., _

429 U.S. 257 (1977). - - - + + «passim

Washington v. Davis, 426 U.S. 229

Ce e686 <-o ee es ee

Wood v. Strickland, 420 U.S. 309

[eewae ats. «es o «et ob d8, 4a 68

-zi-

Other Authorities:

ALI Model Penal Code §2.02

(Prop. Official Draft) (1962)... .38

Bucklo, The Supreme Court Attempt

to Define Scienter Under Rule

T0b-5: Ernst & Ernst v. Hochfelder,

29 Stan. L. Rev. 213(1977}) . . . 12,48

Brest, Palmer v. Thompson: An Approach

to the Problem of Unconstitutional

Legislative Motive. 1971 Sup.Ct.Rev.95

aoe

Christensen, and Svanoe, Motive and

Intent in the Commission of Unfair

Labor Practices: The Supreme Court

and the Fictive Formality, 77 Yale

L. J. 1269 (1968). ~~ - - » - - « -13

Cleary, Presuming and Pleading: An

Essay on Juristic Immunity, 12 Stan.

Ls wees OS Canoe). «4 se eh ee ee

Comment, Scienter and SEC Injunctive

Suits, 90 Harv. L. Rev. 1018 (1977) -12

Ely, Legislative and Administrative

Motive in Constitutional Law 779 Yale

L. J. 1205 (1970)- + + + + + + + + +52

Goodhart, Liability for Innocent but

Negligent Misrepresentations ,74 Yale

bs Oa ee Cee 8s ele we oe 8 -44

Gross, A Theory of Criminal Justice

O76) «ot 8 4k er. ae eS eae

Hart, H. L. A., Punishment and

Responsibility (1968). - - - -13,38,39

-xii-

Other Authorities:

Hawk, Attempts to Monopolize -

speci fic Intent as Anti-Trust's

Ghost in the Machine, 58

Cornell L. Rev. 1121 (1973)+ + + 44,52

James, Burdens of Proof

47 Va. L. Rev. 51 (1961) - +--+ - -14

Keeton, Fraud: The Necessity or

Intent to Deceive 5 U.C.L.A.

L. Rev. 585 (1958) 13,44

McBaine, Burdens of Proof:

Degrees of Belief, 32 Cal L.

Rev. 242 (1944) res se «ib

McNaughton, Burden of Production

of Evidence: A Function of the

Burden of Persuasion, 68 Harv.

L. Rev. 138 Z (1955) 56

Note, Reading the Minds of the

School Board: Segregative

Intent the De Facto/De .

Jure Distinction 86 Yale

L. J. 317 (1976) 57

Note, Scienter's Scope and

Application in Rule 10b-5

Actions: An analysis in

Light of Hochfelder,

52 Notre Dame Lawyer

S25 terre ee Foe 6 © © © © 6 ow saa

Note, The Scienter Requirement

on SEC Injunctive Enforcement

or Section 10b After Ernst &

Ernst v. Hochfelder 77 Colum.

ED. Rev. 419 (1977).

-xiii-

Other Authorities:

Packer, Mens Rea and the Supreme

Court, 1962 Sip. Ct. Review 109 .38,39

Perkins, The Criminal Law (1957)... 38

Pitovsky, The Sylvania Case; Antitrust

Analysis of Non-Price Vertical

Restrictions, 78 Colum. L. Rev.

*. * > 7 . . . * * 7 . . 7 . 38

Prosser, The Law of Torts §107. . .13,44

Report to the President and the

Attorney General of the National

Commission for the Review of

Antitrust Laws and Procedures

(1979), Printed in BNA Antitrust

and Trade Regulations Reporter

Jan 18, 1979. ile Rebitds te er cca » 44

Schwemm, From Washington V. Davis

to Arlington Heights and Beyond:

Discriminatory Purpose in Equal

Protection Peron 1977 U.

Of Tile LOW FORUM SOL « « 2 « « « « 58

Smith, Attempt to Monopolize: Its

Elements & Their Definition 27

Geo. Wash. L. Rev. 227 (1958) ... 44

Trubeck, Allocating the Burden of

Environmental Uncertainty: The

N.R.C. Interpretation of NEPA's

Substantive Mandate, 1977 Wisc.

L. Rev. 747 reo wasttisoe ¢ e « 68

-xiv-

Other Authorities:

Underwood, The Thumb on the Scales

of Justice: Burdens is of Persuasion

in Criminal Cases, 86 Yale L. J.

ie WERE RS TS eee

oe ome

U. S. Comm. Civil Rights, papier

Teese in the Public Schoo

7) ‘eS oe oe eer er eee

Wechsler, Codification of the

Criminal Code in the United

States: The Model Penal Code

68 Col. L. Rev. 1425 *1068).... .38

J. Wigmore, § 2685-6 . .'. « o ce «'« ei

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

Nos. 78-610, 78-627

COLUMBUS BOARD OF EDUCATION, et al.,

Petitioners,

at. =

GARY L. PENICK, et al.,

Respondents.

DAYTON BOARD OF EDUCATION, et al.,

Petitioners,

oe «

MARK BRINKMAN, et al.,

Respondents.

On Writs of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF THE

AMERICAN CIVIL LIBERTIES UNION

AND THE

INTERNATIONAL UNION OF ELECTRICAL,

RADIO AND MACHINE WORKERS

AMICI CURIAE

o2e

Interest of the Amici*

The American Civil Liberties Union

is a nationwide, non-partisan organization

of more than 200,000 members dedicated to

defending the personal rights of the

people guaranteed by the Constitution.

Central among the constitutional

rights of the people is the fundamental

right to equal treatment under law. No

component of that right is more precious

than the right of minority children to

receive an education in school systems

that are not segregated. The ACLU be-

lieves, as this Court recognized twenty-

five years ago, that "[sJeparate educa-

tional facilities are inherently unequal"

because they deprive minority children of

"the benefits they would recieve in a

racially integrated school system."

Brown v. Board of Education of Topeka,

347 U.S. 483, 495 (1954).

Because of our strong belief that

separate educational facilities are in-

* Letters from the parties consenting to

the filing of this brief have been filed

with this Court pursuant to Rule 42.2.

=3e

herently unequal, the ACLU has consistent-

ly pursued enforcement of the right to a

non-segregated education. For example, in

Crawford v. Board of Education of the City

of Los Angeles, 17 Cal.3d 280 (1976), we

successfully urged under the California

Constitution that a current state of

school segregation is unconstitutional

regardless of its causes, and that it must

be remedied through system-wide desegrega-

tion. In Evans v. Buchanan, 393 F.Supp.

428 (D.Del. 1975) (three-judge court) ;

aff'd, 423 U.S. 973 (1975), reh. denied,

423 U.S. 1080 (1976), remedy imposed on

remand, 416 F.Supp. 328 (D.Del. 1976),

appeal dismissed, 429 U.S. 973 (1976),

aff'd, 555 F.2d 373 (3d Cir. 1977), cert.

denied, 434 U.S. 880 (1977), reh. denied,

434 U.S. 944 (1977), we successfully urged

that urban vs. suburban school segrega~

tion resulting from state contributions

to segregated housing is unconstitutional

and that it must be remedied through

inter-district school desegregation.

Our belief in effective school

desegregation also has resulted in our

frequent appearance before this Court in

-4-

school desegregation cases. For example,

we represented the minority school child-

ren before this Court in Pasadena Board

of Education v. Spangler, 427 U.S, 424

(1976). And we have appeared amicus

curiae, on behalf of the minority school

children in such cases as Dayton Board of

Education v. Brinkman, 433 U.S. 406

(1977), and Keyes v. School District No.

1, 413 U.S, 189 (1973).

The International Union of Electrical,

Radio and Machine Workers, AFL-CIO-CLC

(IUE) has over 285,000 members throughout

the Nation, 100,000 of whom are women, and

many of whom are members of disadvantaged

minority groups. The IVE represents over

20,000 employees in the Dayton and Colum-

bus, Ohio, areas.

The IVE is a leader among unions in’

championing the civil rights of its mem-

bers. The IVE, as an affiliate of the

AFL-CIO, fully supports the AFL-CIO policy,

restated by President George Meany on

March 19, 1979 “to support and share

responsibility for the development of

workable school desegregation programs."

The IVE has instituted numerous suits

«Se

under federal and state fair employment

laws, and has filed many charges of dise

crimination with administrative agencies.

The IVE believes in full educational

opportunities for all Americans, and

supports the establishment of a single

public school system that will make

quality integrated education available to

all childcen, regardless of race, color,

creed, sex or national origin.

Because the ACLU and the IVE believe

that the arguments raised by the school

boards in the instant two cases, if

adopted even in part by this Court, would

severely undermine the rights established

by Brown and its progeny, we urge in this

brief that those arguments be rejected

and that the right of minority children

to a non segregated education be reaffirmed

by this Court.

SUMMARY OF ARGUMENT

As Respondents have pointed out in

their briefs, the Dayton and Columbus

school districts operated racially segre-

gated school systems at the time of Brown

v. Board of Education of Topeka, 347 U.S.

483 (1954), and thereafter engaged in

numerous segregative practices which

maintained and increased the level of

actual segregation. As Respondents have

argued, on the basis of settled school

desegregation law, the Dayton and Columbus

school districts were properly found to

have engaged in unconstitutional system-

wide segregation and thus were constitu-

tionally required to implement systemwide

desegregation. The propriety of these

findings and obligations with regard to

Dayton, in No. 78-627, are required by

Brown v. Board of Education of Teopka,

347 U.S. 483 (1954), Green v. County

School Board of New Kent County, 391 U.S.

430 (1968), and Swann v. Charlotte-Meck-

lenburg Board of Education, 402 U.S. 1

(1971). The propriety of these findings

and obligations with regard to Columbus,

in No. 78-610, are similarly required by

= &

Brown, Green, and Swann, and by Keyes v.

School District No. 1, 413 U.S. 189 (1973).

Amici agree entirely with the argu-

ments advanced in Respondents' briefs in

this Court. Like Respondents, we believe

that settled school desegregation law

compels the conclusion that the Columbus

and Dayton school districts were properly

found to have engaged in unconstitutional

system-wide segregation and thus were

constitutionally required to implement

system-wide desegregation.

While we agree with Respondents’

arguments, we believe that the same con-

clusions must be reached under other

evidentiary and legal approaches to these

cases. It is these other approaches

which form the focus of this brief.

First, we believe that, having been

found to have operated an intentionally

segregated school system at the time of

Brown v. Board of Education, 347 U.S.

483 (1954), defendants were under an

affirmative duty to root out racial segre-

gation in the schools' “root and branch,"

Green v. County School Board of New Kent

County, 391 U.S. 430 (1968). Having failed

to do so, defendants should bear all eviden-

tiary burdens on facts necessary to estab-

lish an excuse for non-compliance.

Second, we believe that, even in the

absence of the affirmative duty imposed

by Green, defendants should bear the per-

suasion burden on the issue of culpable

scienter in an equal protection case seek-

ing prospective relief from racial segrega-

tion, so long as plaintiffs have produced

sufficient evidence of culpable scienter to

satisfy a traditional production burden.

We also believe that the requirement of

culpable scienter in an equal protection

case seeking prospective relief from racial

segregation may be satisfied by a showing

of recklessness or deliberate indifference

to the rights of racial minorities.

Finally, aside from the evidentiary

matters that form the major portion of our

argument, we believe that this Court must

recognize as it did in Brown through Swann,

that the Fourteenth Amendment imposes an

affirmative constitutional obligation on

school districts to operate racially inte-

grated schools to the maximum extent feas-

ible. In this context, racial segregation

may be distinguished from racial discrimina-

tion. While discrimination is offensive,

segregation especially offends the Fourteenth

=Qa

Amendment. This Court has never held that

the Fourteenth Amendment permits a state

to be in the business of operating racially

segregated facilities. To the contrary, if

the Fourteenth Amendment prohibits anything,

it prohibits the maintenance of racially

segregated state facilities, including of

course racially segregated public schools.

As Justice Powell pointed out in

Keyes v. School District No. l, 413 U.S. 189,

227 (1973) (concurring opinion), the genesis

of segregation provides no grounds for

the adoption of variable equal protection

principles. Whether segregation is caused

by state law, by the manipulation of a

neighborhood school policy, or by imposition

of a neighborhood school policy upon seg-

regated neighborhoods, the relevant intent

is the same: that intent is to operate

racially segregated schools and to compel

black children and white children to attend

those separate schools. From a Fourteenth

Amendment standpoint, such a condition

unequivocally violates the Brown mandate

that "[s]Jeparate educational facilities are

inherently unequal." 347 U.S. at 495.

=10-

ARGUMENT

Recent decisions of this Court have

placed a substantial premium on decipher-

ing the mental states of defendants

alleged to have violated a variety of

legal norms. E.g., Castaneda v. Partida,

430 U.S. 482 (1977) (racial discrimination

in the selection of juries); Village of

Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 229 (1977)

(racial discrimination in the construction

of public housing); Washington v. Davis,

426 U.S. 252 (1976) (racial discrimination

in employment); Keyes v. School District

No. 1, 413 U.S. 189 (1973) (public school

segregation); Ernst & Ernst v. Hochfelder,

425 U.S. 185 (1976) (Rule 10b-5 violation) ;

United States v. United States Gypsum Co.,

92 S.Ct. 2864 (1978) (criminal anti-trust

violation); United States v. Grinnell

Corporation, 384 U.S. 563 (1966) (viola-

tion of Section 2 of the Sherman Act);

United States v. LaSalle National Bank,

437 U.S. 298 (1978) (IRS information

demands); National Labor Relations Board

v. Great Dane Trailers, 388 U.S. 26 (1967)

-jl-

{unfair labor practices under Section 8

(a) (3)]. See also, Mullaney v. Wilbur,

421 U.S. 684 (1975) and Patterson v. New

York, 432 U.S. 197 (1977).

In requiring significant legal con-

sequences to turn on the culpability of a

defendant's mental state, this Court has

launched courts and litigants alike on a

frustrating, expensive and, often, fictive

search for culpable scienter. Especially

in the area of constitutional law, where

defendants are generally public entities

whose policies have evolved over time as

the net product of many, often conflicting,

individual views, the fictive search for

scienter has resulted in a jurisprudence

of equality which is unpredictable, enor-

mously expensive to administer and arbi-

trary in result. However, whatever the

wisdom of seeking to build a constitutional

theory of equality on culpable scienter,

this Court seems firmly bent upon an at-

tempt. If such an attempt is to have an

opportunity to succeed, two issues which

are central to any scienter-based juris-

prudence must be resolved. First, it is

necessary to define with precision the

-12-

contours of those mental states which are

deemed sufficiently culpable to warrant

the issuance of prospective and/or retro-

spective relief. Second, it is necessary

to formulate evidentiary rules governing

proof of the required culpable mental

state which are both fair and capable of

uniform administration.

Amici will urge in Point IIA, infra,

that this Court, in defining the requisite

degree of culpable scienter necessary to

trigger prospective relirf in favor of

racial minorities under the equal protec-

tion clause, should adopt a negligence, or,

at most, a recklessness standard. This

Court has explicitly reserved judgment on

analogous issues in the area of securities

regulation. Ernst & Ernst v. Hochfelder,

425 U.S. 185, 194 n.12 (1976) .+

1. See generally, Bucklo, The Supreme Court

Attempts to Define Scienter Under Rule 10b-5:

Ernst & Ernst v. Hochfelder, 29 Stan.L.Rev. 213

(1977); Note, Scienter's Scope and Application in

Rule 10b-5 Actions: An Analysis in Light of Hoch-

felder, 52 Notre Dame Lawyer 925 (1977); Comment,

Scienter and SEC Injunctive Suits, 90 Harv.L.Rev.

1018 (1977); Note, The Scienter Requirement in

SEC Injunctive Enforcement of Section 10(b) After

Ernst & Ernst v. Hochfelder, 77 Col.L.Rev. 419

=] 3~

Amici will also urge in Point IIB,

infra, that once a member of a racial

minority has produced sufficient evidence

from which a reasonable finder of fact

may infer the existence of culpable scien-

ter, the governmental defendant should

bear all evidentiary burdens on the scien-

ter issue.

As a pre-condition to a discussion

of the appropriate burden of proof rules,

a consistent terminology must be adopted.

Understandably, attempts by the lower

federal courts to formulate evidentiary

(1977). Similar issues have arisen in the law of

torts, Prosser, Law of Torts § 107 at pp.700-710;

Keeton, Fraud: The Necessity of Intent to Deceive,

5 UCLA L.Rev. 585 (1958); and have been the sub-

ject of substantial comment in the criminal law

area. E.g., United States v. Dixon, 419 F.2d 288

(D.C. Cir. 1969) (discussing authorities). See

generally, H.L.A. Hart, Punishment and Responsibi-

lity (1968) at 136-157. For similar issues in the

areas of labor and anti-trust law, see generally,

Christensen and Svanoe, Motive and Intent in the

Commission of Unfair Labor Practices: The Supreme

Court and the Fictive Formality, 77 Yale L.J. 1269

(1968); Report to the President and the Attorney

General of the National Commission for the Review

of Anti-Trust Law and Procedures (1979) (repro-

duced in B.N.A. Anti-Trust and Trade Regulation

Reporter (Jan. 18, 1979).

=Len

ground rules in the wake of Washington v.

Davis have resulted in substantial varia-

tions in terminology which impede careful

analysis. For example, the term "presump-

tion" has been variously used to mean

permissible inference, compulsory infer-

ence, artificial inference, and shift in

the burden of production. The concept of

"prima facie case" has been loosely used

to mean at least three things: a set of

facts which, if unrebutted, would permit

(but not compel) a finder of fact to find

intentional racial discrimination; a set

of facts which, if unrebutted, would compel

a finder of fact to find intentional ra-

cial discrimination; and a set of facts

from which racial discrimination must be

inferred, regardless of rebuttal.

Orthodox evidentiary analysis divides

the burden of proof into two parts: pro-

duction burden and persuasion burden.

E.g., James Burdens of Proof, 47 Va.L.Rev.

51 (1961); 9 Wigmore, §§2485-2486 (3d ed.

1940). The production burden is that

quantum of evidence needed to permit a

reasonable finder of fact to infer the

existence of the fact at issue--in this

-15-

case the presence or absence of culpable

- scienter. Most courts have followed an

assumption that plaintiffs bear the

inertial production burden on significant

factual aspects of their case. Most

courts have also recognized that a plain-

tiff may introduce highly persuasive

evidence which, if unrebutted, would com-

pel a reasonable finder of fact to infer

the existence of the fact at issue. Under

such circumstances, the production burden

may be said to have shifted to the defen-

dant. Thus, it is possible for a plain-

tiff saddled with an initial production

burden on the issue of culpable scienter

to (a) fail to meet it and suffer a

directed verdict; (b) satisfy it and pass

to a decision by the finder of fact under

a defined persuasion burden; or (c) shift

it and gain a directed verdict in the

absence of rebuttal evidence. Once a

plaintiff has satisfied an initial produc-

tion burden, a defendant may (a) rest and

take his chances that the finder of fact

will rule in his favor; or (b) introduce

evidence designed to persuade the finder

of fact of the non-existence of the fact

a16=

at issue. If a plaintiff has shifted the

production burden, a defendant must in-

troduce evidence or suffer a directed

verdict. Once such a defendant has

rested, the court must determine whether

the shifted production burden has been

satisfied. If a judge finds that the

production burden has been satisfied, he

or she must remit the issue to the finder

of fact under an appropriate persuasion

burden. Production burdens, thus, are

nothing more than judge-operated tools to

determine when a factual issue is suffi-

ciently in doubt to warrant remission to

the formal fact-finding process.

Persuasion burdens exist because in

law, as in baseball, no ties are possible.

It is, therefore, necessary to decide how

ties should be broken when the finder of

fact is in doubt about the existence of

the fact at issue. The degree of certain-

ty which a finder of fact must experience

in order to return a finding is called the

persuasion burden. While the initial

production burden has been routinely al-

located to proponents of a given fact,

courts have demonstrated considerably

-17=

greater flexibility in allocating the risk

of a tie after an initial production bur-

2 The question of

den has been satisfied.

whether a member of a racial minority

seeking prospective relief or the govern-

ment should bear the risk of a tie on the

issue of culpable scienter in a case in

which the plaintiff has initially satis-

fied a production burden was resolved in

favor of minority plaintiffs in Keyes v.

School District No. 1, 413 U.S. 189 (1973),

and Castaneda v. Partida, 430 U.S. 482

(1977).

Finally, once the persuasion burden

has been allocated, its size must be

selected from among three traditional

alternatives: preponderance of the evi-

as Davis v. United States, 160 U.S. 469 (1895);

Leland v. Oregon, 343 U.S. 790 (1952) (insanity

defense); Patterson v. New York, 432 U.S. 197

(1977) (affirmative defense of extreme emotional

disturbance); N.L.R.B. v. Great Dane Trailers,

388 U.S. 26 (1967) (employer has burden of per-

suasion on business justification for unfair

labor practice); United States v. Grinnell Corp.,

23€ F.Supp. 244 (D.R.I. 1964), aff'd except as to

decree, 384 U.S. 563 (1966) (monopoly). See also

Speiser_ v. Randall, 357 U.S. 513, 525 (1958) ;

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

(1973); 9 Wigmore §§2485, 2486 (3d ed. 1940).

~l18-

dence; clear and convincing evidence; or

proof beyond a reasonable doubt. Thus,

whatever the precise contours of culpable

scienter, orthodox evidentiary analysis

provides this Court with the tools to

fine-tune the mechanism of proof in order

to advance the policies of racial fairness

which lie at the core of the equal pro-

tection clause without tumbling down the

Slippery slope described by Mr. Justice

White in Washington v. Davis, 426 U.S.

229, 248 (1976). By careful definition

of the quantum of evidence needed to

satisfy an initial production burden on

the issue of culpable scienter and sensi-

tive allocation of the resulting persua-

sion burden, this Court may have both

racial fairness and a jurisprudence of

equality which is not uncontrollably

overbroad. Moreover, such an analysis

permits the Court to enunciate fair and

efficient ground rules for proving scienter

in equal protection cases without resorting

to questionable concepts such as ill-

defined prima facie cases and fictional

presumptions.

-19-

Although amici believe that it would

be desirable to begin the task of defining

culpable scienter in an equal protection

context and setting forth the ground rules

for its proof as quickly as possible, this

case may be resolved without considering

the broader issues. This Court has long

noted the existence of an affirmative duty

to dismantle dual school systems which

were operated on an intentionally segre-

gated basis at any time on or after the

date of this Court's decision in orem V:

Board of Education, 347 U.S. 483 (1954)

(Brown I). E.g., Green v. Board of Ed.,

391 U.S. 430 (1968). Whatever the defini-

tion of culpable scienter and whatever the

allocation of burdens of proof as a gener-

al matter, in the narrow context of a

failure to have carried out the affirmative

duty to dismantle an intentionally main-

tained dual school system, all evidentiary

burdens must be borne by the defendants.

See Point I, infra.

=20-

I, DEFENDANTS HAVE BREACHED THEIR

AFFIRMATIVE DUTY TO DISMANTLE SCHOOL

SYSTEMS FOUND TO HAVE BEEN INTEN-

TIONALLY OPERATED ON A SEGREGATED

BASIS AT THE TIME OF THIS COURT'S

DECISION IN BROWN V. BOARD OF EDU-

CATION. THE ISSUANCE OF SYSTEMWIDE

RELIEF WAS BOTH NECESSARY AND

APPROPRIATE TO COMPEL COMPLIANCE

WITH DEFENDANTS' AFFIRMATIVE OBLI-

GATION TC DISMANTLE THEIR DUAL

SYSTEMS OF PUBLIC EDUCATION.

In the years which followed Brown v.

Board of Education, 347 U.S. 483 (1954),

this Court confronted a series of issues

raised by the attempt to make the promise

of Brown a reality for black children.

Initial response to Brown in many commu-

nities took the form of violence and

defiance under the pretext of interposi-

tion. This Court responded with Cooper

v. Aaron, 358 U.S. 1 (1958). More sophis-

ticated opposition to Brown succeeded in

closing certain public schools rather than

desegregating them. This Court responded

with Griffin v. County School Board of

Prince Edward County, 377 U.S. 218 (1964).

Yet more sophisticated opposition to Brown

resulted in pupil transfer plans which

permitted individual white parents to

=~21-

frustrate school desegregation. This

Court responded with Goss v. Board of

Education, 373 U.S. 683 (1963). Finally,

when freedom of choice plans hindered the

full implementation of Brown, this Court

responded with Green v. County School

Board, 391 U.S. 430 (1968). With the

enunciation in Green of an affirmative

duty to dismantle pre-existing dual

systems “root and branch," this Court

provided the doctrinal basis for genuine

implementation of Brown. See also, Raney

v. Board of Education, 391 U.S. 443

(1968), and Monroe v. Board of Commission-

ers, 391 U.S. 450 (1968). As Mr. Justice

Brennan noted for the Court in Keyes v.

School District No. l, 413 U.S. 189 (1973):

,- [W]e have held that where

plaintiffs prove that a current

condition of segregated school-

ing exists within a school

district where a dual system

was compelled or authorized by

statute at the time of our

decision in Brown v. Board of

Education, the State automatic-

ally assumes an affirmative

duty 'to effectuate a transi-

tion to a racially non-discrim-

inatory school system,' that

is, to eliminate from the public

-22-

schools within their school

system ‘all vestiges of state-

imposed segregation.'" 413 U.S

at 200 [citations omitted].

In the instant cases, plaintiffs

have proven that a dual system of educa-

tion was intentionally imposed upon black

children by defendants on or about the

date on which Brown was decided. ?

Accordingly, under Green and its progeny,

defendants automatically assumed an

affirmative duty to eliminate racial

segregation "root and branch" from the

schools under their direction and control.

Although defendants have labored under

3. To be sure, the dual systems operating in

both Dayton and Columbus in 1954 were not compelled

by statute. Rather, they were imposed by the

administrative decisions of school officials

No distinction of legal consequence may, however

be drawn between public school segregation mandated

by statute and public school segregation mandated

by administrative fiat. Nor is there any serious

question as to the existence of the intentionally

maintained dual systems in 1954. Assuming an al-

location of the evidentiary burdens most favorable

to the defendants, intentionally maintained dual

systems have been clearly established. Pennick

v. Columbus Board of Education, 583 F.2d 787

798-99 (6th Cir. 1978); Brinkman v. Gilligan,

583 F.2d 243, 247-49 (6th Cir. 1978).

«23%

Such an affirmative duty for a quarter of

a century, the schools under their direc-

tion and control remain substantially

segregated. This case raises the question

of whether defendants' failure to have

integrated the public schools in Dayton

and Columbus constituted a breach of the

affirmative duty to root out the vestiges

of the dual systems which existed in 1954

and whether, once a breach of duty is

found, federal courts possess power to

grant relief compelling defendants to

carry out their duty after twenty-five

years of failure.

A. The Nature of the Affirmative Duty

To Eliminate Dual Systems Imposed

Upon Defendants by Green v. County

School Board

Having been found guilty of operating

an intentionally segregated school system

in 1954, defendants are under an affirma-

tive duty to integrate. Such an affirma-

tive duty may take one of three forms.

First, defendants may be under an

absolute duty to succeed in integrating

the schools in question. Under such an

"absolute" definition of the affirmative

-24-

duty imposed by Green, defendants only ex-

cuse for non-performance would be a showing

of impossibility. Given the formulation of

the successful desegregation plan which is

in effect in Dayton this year and given the

formulation of a plan which, but for this

Court's stay, would have successfully deseg-

regated the Columbus schools, no claim of

impossibility may be seriously advanced.

Second, defendants may be under a

duty to do nothing more than to refrain

from intentionally hindering the desegrega-

tion of the schools in question. Such a

limited definition of the affirmative duty

imposed by Green would, however, add nothing

to the already existing duty imposed by

Brown I. Thus, while defendants’ affirma-

tive duty may not rise to the "absolute"

level suggested by the Sixth Circuit,?

neither does it sink to the level of

4. The Sixth Circuit in Pennick suggested

that the Columbus defendants' failure to have

produced a unitary system was itself a violation

of Green, without any necessity for additional

proof. Pennick v. Columbus Board of Educ., supra

at 800. However, the Sixth Circuit did not rest

its decision on such a broad reading of Green.

Rather, it considered defendants' conduct and

found it both purposive and reckless in failing

to carry out duties imposed by Green.

-25-

redundancy suggested by defendants.

Rather, a third possible definition

of the affirmative duty exists which

imposes meaningful obligations on the

defendants short of imposing an absolute

duty to succeed. Under such a definition,

defendants would be obliged under Green to

utilize due care in evolving and implement-

ing plans to eliminate the vestiges of a

dual system. Failure to conform to

reasonable standards of competence in

formulating desegregation remedies would

3 Measuring

constitute a breach of duty.

the conduct of defendants in perpetuating

segregation against the standard of a

hypothetical reasonable Board bent on

eliminating segregation, it is clear

beyond doubt that defendants' feeble

gestures toward integration fell far below

an acceptable level of competence and

commitment.

De Cases in the lower federal courts which seek

to apply the Green standard appear, at a minimum,

to impose a duty of active care and minimum com-

petence in formulating effective integration plans.

E.g. Adams v. Matthews, 403 F.2d 181 (5th Cir.

1968); Hall v. St. Helena Parish School, 417

F.2d 801 (5th Cir.) (cert. denied, 396 U.S. 904

(1969).

«36a

B. The Procedural Ground Rules for

Proving Breach of Defendants’

Affirmative Duty To Eliminate

Vestiges of Dual Systems of

Public Education

If defendants' affirmative duty under

Green is defined as a duty of due care in

eliminating segregation, no substantial

issue of proof would exist, since defen-

dants' breach of such a duty of due care

(whether defined as negligence or reckless-

ness) is so flagrant that under any system

of proof its existence must be found.

However, if defendants' duty under Green

is defined narrowly to encompass merely a

duty to refrain from purposeful activity

designed to frustrate the elimination of

a dual system, serious issues of proof may

arise.° As this Court noted in Green,

6. Given the record in both the Dayton and Colum-

bus cases, even if one assumes (incorrectly, amici

believe) that plaintiffs bear both the production

and persuasion burdens on the issue of purposeful

failure to dismantle pre-existing dual school sys-

tems, plaintiffs have clearly met their evidentiary

burdens. By engaging in a series of actions, in-

cluding site selection, attendance zone design,

staff assignment and pupil transfers, defendants

took action which they knew would perpetuate the

very dual system they were under an affirmative

duty to dismantle. Plaintiffs' proof of such

-27=

proof of the maintenance of a dual school

system on or after the date of Brown I,

coupled with proof of a continuing pattern

of segregated schools, satisfies plaintiffs'

production burden and shifts the production

burden to the defendants. 391 U.S. at 439.

Defendants in both the Dayton and Columbus

cases have attempted to satisfy their

shifted production burdens by arguing that

the continuing pattern of segregated

schooling in both cities is attributable

to a combination of residentially segre-

gated housing patterns and uniform adher-

ence to a neighborhood school policy. [In

effect, defendants argue, first, that they

acted in good faith in failing to desegre-

gate the schools in question and, second,

that the current segregation of the Colum-

bus and Dayton schools has not been caused

by their actions. Plaintiffs have coun-

tered by demonstrating a series of actions

knowing activity taken in the teeth of an affirma-

tive duty to erase all vestiges of the pre-existiry

dual system would compel any reasonable finder of

fact to conclude that defendants had purposefully

breached their duty under Green. Compare, United

States v. United States Gypsum Co., 98 S.Ct. 2864

(1978).

= Ga

tending to perpetuate racial segregation

which run counter to (or are not compelled

by) a neighborhood school policy. In

effect, plaintiffs argue that proof of 4a

series of acts tending to perpetuate

segregation which run counter to (or are

not compelled by) a neighborhood school

policy negates any inference that defen~

dants were motivated by a neutral desire

for neighborhood schools. Given plain-

tiffs' proof, defendants' attempt to

satisfy their shifted production burden

is perilously weak, even if one assumes

the persuasion burden remains with the

plaintiff. Cf., Castaneda v. Partida,

430 U.S. 482 (1977). Moreover, since

defendants are attempting to explain their

failure to have carried out the terms of

an affirmative constitutional duty man-

dated by Green, they should bear the risk

of non-persuasion as well. Whenever 4

party appears to have engaged in unconsti-

tutional activity, but seeks to escape

liability by establishing one or another

excusing condition, this Court has uni-

formly placed both the production and

persuasion burdens on the party seeking

=29=

to avoid the consequences of putatively

unconstitutional behavior. E.g., Mt.

Healthy School District Board of Education

Vv. Doyle, 429 U.8, 274, 2867 (1977); Carey

v. Piphus, 435 U.S. 247 (1978); see also,

Wood v. Strickland, 420 U.S, 308 (1975),

Defendants' attempt to avoid liability

for ignoring the mandate of Green by al-

leging lack of any purposeful intent to

frustrate integration is precisely analo-

gous to the good faith defense routinely

recognized by this Court in constitutional

cases. E.g., Scheuer v. Rhodes, 416 U.S.

232 (1974); Wood v. Strickland, 420 U.S.

308 (1975). It is, of course, clear that

a defendant asserting such a good faith

defense bears both the production and

persuasion burdens on the issue of "sub-

jective" scienter. Moreover, it is

equally clear that an "objective" duty of

due care is placed upon such a defendant.

Wood v. Strickland, 420 U.S. 308, 321

(1975). Defendants in the instant case

are unable to satisfy a persuasion burden

on either the "subjective" or "objective"

elements of their attempt to assert a good

faith defense to a charge of having

-30-

breached their affirmative duty under

Green. Subjectively, the proven commis-

sion of segregative acts running contrary

to a neighborhood school policy precludes

any reasonable finder of fact from deter~-

mining that defendants have proved "good

faith" by a preponderance of the evidence,

Objectively, the failure to have evolved

a plan to reduce segregation in the

schools despite the passage of twenty-five

years causes defendants’ acts to fall well

below the minimal level of competence

discussed in Wood v. Strickland, supra.

Thus, defendants' attempt to avoid Green

by alleging good faith must fall.’

In addition, defendants attempt to

avoid the entry of systemwide relief by

7. Courts consistently have limited the use of

the good faith defense to pp opto Rigen sagt

tive relief. E.g., Wood v. Strickland, supra;

Scheuer v. Rhodes, 416 U.S, 232 (1974). The good

faith defense has never been recognized where the

relief requested was solely injunctive. O'Connor

v. Donaldson, 422 U.S. 563, 577 n.12 (1975);

National Treasury Employees Union v. Nixon, 492

622 F.2d 720 (7th Cir. 1975); Sostre v. McGinnis,

442 ¥.24 178 (24 Cir. 1971). Since plaintiffs in

this case request only prospective, equitable

relief, serious doubt exists as to whether a good

faith defense is available.

«31<

alleging that their acts did not actually

cause the current segregation of the Day-

ton and Columbus schools, Rather, they

argue, factors such as economics, resi-

dential segregation and individual choice

have "caused" the schools in Dayton and

Columbus to remain segregated, Such a

defense is precisely analogous to a cau-

sation defense articulated by this Court

in recent years. E.g., Mt, Healthy School

District Board of Education v. Doyle,

Supra; Carey v. Piphus, supra; Village of

Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252, 270-271

n.21 (1977), See also, Chapman v. Cali-

fornia, 386 U.S. 18 (1967). A defendant

asserting such a causation defense bears

both the production and persuasion burden

with respect to its application. ‘Thus,

parties seeking to avoid the consequences

of a constitutional flaw in a criminal

case under the rubric of harmless error

are required to prove beyond a reasonable

doubt that the constitutional flaw did

not affect the outcome of the case, Chap-

man v. California, 386 U.S. 18 (1968).

=32=

Parties seeking to avoid liability for a

dismissal based partially on protected First

Amendment activity are required to prove

that the dismissal would have occurred even

in the absence of the First Amendment activ-

ity. Mt. Healthy School District Board of

Education v. Doyle, 429 U.S. 274, 287

(1977). Parties seeking to avoid lia-

bility for actions which failed to comply

with standards of procedural due process

are required to prove that a hearing could

not have altered the outcome. Carey v.

Piphus, supra. Finally, parties seeking

to avoid liability after being found

guilty of purposeful racial discrimina-

tion in violation of the equal protection

clause are required to prove that the iden-

tical activity would have taken place in

the absence of defendants' racially moti-

vated conduct. Village of Arlington

Heights v. Metropolitan Housing Development

Corp., 429 U.S. 252, 270-271 n.21 (1977).

The legal status of the defendants in

this case tracks the hypothetical defendant

described by the Court in Arlington Heights.

In Arlington Heights, the hypothetical

defendant violated a constitutional norm,

but sought to avoid liability by arguing

that his violation did not cause plaintiff's

~ }

injury. This Court, quite properly,

assigned both the production and persua-

sion burden to the defendant. In the

instant cases, defendants violated a

constitutional norm by maintaining dual

school systems in violation of Brown I

and Green. They seek to avoid liability

by arguing that their violation did not

cause plaintiffs' current injury. Rather,

they argue, plaintiffs' injury was caused

by demographic patterns beyond the defen-

dants' control. In the instant cases, as

‘in Arlington Heights, the burdens of pro-

duction and persuasion on defendants'

exculpatory theory should be borne by

defendants. See also, Keyes v. School

District No. l, 413 U.S. 189 (1973);

Evans v. Buchanan, 582 F.2d 750, 764-766

(3d Cir. 1978). Given defendants’ numer-

ous segregative acts demonstrated by

plaintiffs, defendants have clearly failed

to prove by a preponderance, much less by

a clear and convincing evidence, that the

continued segregation of the Dayton and

Columbus schools is not attributable to a

failure to carry out affirmative obliga-

tions under Green. Accordingly, the

-34- -35-

issuance of systemwide relief designed to II. DEFENDANTS ARE GUILTY OF CULPABLE

BEHAVIOR IN KNOWINGLY OPERATING

RACIALLY SEGREGATED PUBLIC SCHOOLS.

system was entirely appropriate. FEDERAL COURTS POSSESS UNQUESTIONED

POWER TO ORDER SYSTEMWIDE RELIEF TO

REDRESS THE CONSEQUENCES OF

DEFENDANTS! CULPABLE BEHAVIOR.

effectuate the dismantling of the dual

In Washington v. Davis, 426 U.S. 229

(1976) and Village of Arlington Heights

v. Metropolitan Housing Development Corp.,

429 U.S. 252 (1977), this Court ruled that

the disproportionate racial impact of a

governmental act, standing alone, is not

sufficient to constitute a violation of

the equal protection clause. In addition

to disparate racial impact, this Court

ruled, a degree of mental culpability must

accompany the challenged act in order to

trigger a finding that the equal protection

clause has been violated. However, in

identifying a culpable mental state as an

element of equal protection violation,

this Court has taken merely the first

step toward a scienter-based jurisprudence

of equality. At least two additional

issues remain for the Court's considera-

tion:

(1) What is the precise degree of

~ 36<

mental culpability which will give rise to

a violation of the equal protection clause?

Does reckless or negligent activity which

causes disproportionate injury to members

of a racial minority violate the equal

protection clause?

(2) How are the burdens of proof on

the issueof mental culpability to be al-

located?

A. The Nature of the Culpable Mental

State Required To Justify Prospective

Relief Under the Equal Protection

Clause.

In Washington v. Davis and Arlington

Heights this Court considered only two

possible mental states: purposeful malice

and inadvertent innocence. While such a

bi-polar analysis is helpful in deciding

whether a defendant's mental state is at

all relevant to the decision of an equal

protection case, it is far too rigid to

serve as a guide for determining the pre-

cise point on a continuum of culpability

which should justify a grant of relief.

Since, ordinarily, mental states (espe-

cially the complex of attitudes which

coalesce into the "mental state" of a

=37=

goyernment entity-defendant) do not

neatly divide into the extremes of the bi-

polar model, it is necessary to identify

and to consider intermediate or equiva-

lent culpable mental states, such as

recklessness and negligence, which

encompass neither purposeful malice

nor inadvertent innocence. [In con-

ducting such an inquiry into interme-

diate forms of mental culpability, this

Court would not be engaged in a task

unique to constitutional law. Indeed,

wherever significant legal consequences

turn on the culpable mental state of a

defendant, it has proven necessary to

explore the effect of a finding of an

intermediate culpable mental state,

such as recklessness or negligence.

In the area of the criminal law,

courts, legislators and academics have

grappled with the appropriate legal

consequences which should flow from

reckless or negligent, as opposed to

purposive or knowing, behavior by a

criminal defendant. E.g. United States

v. United States Gypsum Co., 98 S. Ct.

-38-

2864 (1978); United States v. Dixon,

419 F.2d 288 (D.C. Cir. 1969); ALI

Model Penal Code § 2.02 (Proposed

Official Draft) (1962); H.L.A. Hart,

Punishment and Responsibility, 136-157

(1968); Packer, Mens Rea in the Supreme

Court, 1962 Sup. Ct. Rev. 109; Perkins,

The Criminal Law 61 (1957); Michael

and Wechsler, A Rationale of the Law of

Homicide, 37 Col. L. Rev. 701 (1937);

Wechsler, Codification of the Criminal

Law in the United States: The Model

Penal Code, 68 Col. L. Rev. 1425 (1968).

Although substantial controversy con-

tinues over the role of negligence in

tre criminal law, a discernible ten-

dency exists to uphold the imposition

of criminal sanctions on individuals

(especially government officials) whose

conduct has recklessly or negligently

caused harm of a constitutional dimen-

sion, without regard to the purely sub-

jective state of mind of the actor.

Compare, United States v. Ehrlichman,

546 F.2d 910 (D.C. Cir. 1976) with

United States v. Barker, 546 F.2d 940

~39—-

(D.C. Cir. 1976). See also, United

States v. McLean, 528 F.2d 1250 (2d

Cir. 1976). As H.L.A. Hart has argued,

even in the context of the criminal .

law, negligent or reckless behavior

by a defendant which inflicts unneces-

sary suffering on individuals may be

a culpable mental state warranting

the imposition of criminal sanctions.

H.L.A. Hart, Negligence, Mens Rea and

Criminal Responsibility in Punishment

and Responsibility (1968) at pp. 136-

157; see also, Gross, A Theory of

Criminal Justice (1978) at pp. 419-

423; Packer, Mens Rea in the Supreme

Court, 1962 Sup. Ct. Rev. 109.

Similarly, in the area of secur-

ities regulation, this Court has ex-

plicitly reserved judgment on the re-

lated questions of whether reckless

conduct constitutes sufficient "scien-

ter" to give rise to a retrospective

liability for violating Rule 10b-5

and whether negligent conduct can

justify prospective injunctive relief.

Ernst & Ernst v. Hochfelder, 425 U.S.

w4Q=

185, 194 n. 12 (1976). The lower

federal courts have been virtually u-

nanimous in finding recklessness to

be a sufficiently culpable mental state

to give rise to retrospective sanctions

under Rule 10b-5. E.g., Sundstrand

Corp. v. Sun Chemical Corp., 553 F.2d

1033 (7th Cir. 1977); Coleco v. Berman,

567 F.2d 569 (3d Cir. 1977); Rolf v.

Blyth, Eastman Dillon & Co., Inc., 570

F.2d 38 (2d Cir. 1978); S.E.C. v. Com-

monwealth Chemical Securities, 574

F.2d 90 (2d Cir. 1978); Nelson v.

Serwold, 576 F.2d 1332 (9th Cir. 1978);

Cook v. Avien, Inc., 573 F.2d 685 (1st

Cir. 1978); Berdahl v. S.E.C., 572

F.2d 643 (8th Cir. 1978); see generally,

S.E.C. v. Texas Gulf Sulphur Co., 401

F.2d 833, 868 (2d Cir. 1968) (en banc)

(Friendly, J. concurring). But see,

S.E.C. v. American Realty Trust, 429

F.Supp. 1148, 1171 n. 8 (E.D.Va. 1977);

Utah State University v. Bear Stearns

& Co., 549 F.2d 164 (10th Cir. 1977).

For perceptive discussions of the issue

at the district court level, see,

wi}«

Steinberg v. Carey, 439 F. Supp. 1233

(S.D.N.Y. 1977) (Weinfeld, J.); Valente

v. Pepsico, Inc., 454 F. Supp. 1228

(D. Del. 1978). Moreover, the lower

federal courts have also generally held

that negligence constitutes a sufficient-

ly culpable mental state to give rise to

prospective injunctive relief under

Rule 10b-5. S.E.C. v. Aaron, F.2d _

(2d Cir. 1979); S.E.C. v. Arthur Young

& Co., F.2d (9th Cir. 1979); S.E.C.

v. Universal Major Industries Corp.,

546 F.2d 1044 (2d Cir. 1976); S.E.C.

v. World Radio Mission, Inc., 544 F.2d

535 (lst Cir. 1976); Nassar & Co. »v.

S.E.C., 566 F.2d 790, 794 (D.C. Cir.

1977) (Leventhal, J. concurring). But

see, S.E.C. v. Blatt, 583 F.2d 1325”

(Sth Cir. 1978). Thus, in securities

regulation, as in criminal law, our

courts have recognized that a failure

to exercise due care constitutes a

sufficiently culpable mental state

to warrant the imposition of scienter-

based liability.

Ir. the area of constitutional

often ~43-

gent or reckless failure to consider

the foreseeable consequences of an

employer's actions on employee rights

| constitutes a sufficiently culpable

mental state to impose liability. For

the history of this Court's treatment of

culpable mental state in the labor law

area see, NLRB v. Jones & Laughlin

Steel Corp., 301 U.S. 1, 45-46 (1937);

Radio Officers Union v. NLRB, 347 U.S.

17, 55 (1954) (Prankfurter, J. concurring) ;

Teamsters Local 357 v. NLRB, 365 U.S,

667 (1961) (Harlan and Stewart, JJ. con-

curring); NLRB v, Erie Resistor Corp.,

373, U.8. 221 (1963); NLRB v. Burnup &

Sims, Inc, 379 U.S. 21 (1964); Amer-~

ican Shipbuilding Co, v. NLRB, 380

U.S. 300 (1965); NLRB v, Brown, 380

U.S. 278 (1965); Textile Workers v,

Darlington Mfg. Co., 380 U.S. 263 (1965);

NLRB v. Great Dane Trailers, 388 U.S,

26 (1967); NLRB v. Fleetwood Trailer

Co., 369 U.8, 375 (1967),

Por similar issues in the anti-

trust area, see, @.g. United States v,

United States Gypsum Co., 98 6, Ct,

litigation, in mapping the contours |

of the good faith defense available to

government officials sued for retro-

spective damages, this Court has been

carciul to identify a mental state

consistent with recklessness or neg~

ligence and to predicate liability upon

it. E.g. Wood v. Strickland, 420 U.S,

308 (1975).’ See also, Estelle v.

Gamble, 429 U.S. 97 (1976); Monroe v,

Pape, 365 U.S. 167, 187 (1961).

In the labor law area, since this

Court's decision in NLRB v. Great Dane

Trailers, 388 U.S. 26 (1967), reckless

or negligent employer conduct which is

"inherently destructive" of employee

rights exhibits a sufficiently culpable

mental state to give rise to an unfair

labor practice under Sections 8(a) (1)

and 8(a) (3) of the National Labor

Relations Act. E.g. Kaiser Engineering

v. NLRB, 538 F.2d 1379 (9th Cir. 1976);

Knuth Bros. Inc., 229 N.L.R.B. No, 176

(1977); W.R. Grace & Co., 230 N.L.R.B,

No. 037 (1977). Both the courts and

the NLRB have recognized that a negli-

“hie

2864 (1978); Otter Tail Power Co. v.

United States, 410 U.S. 366 (1973);

United States v. Grinnell Corporation,

384 U.S. 563 (1966), aff'g, except as

to decree 236 F. Supp. 244 (D.R.1I. 1964)

(Wyzanski, J.). fee generally, Hawk,

Attempts to Monopolize ~ Specific Intent

as Anti-Trust's Ghost in the Machine,

58 Cornell L. Rev. 1121 (1973); Smith,

Attempt to Monopolize: Its Elements

and Their Definition, 27 Geo, Wash. L.

Rev. 227 (1958); Report to the President

and the Attorney General of the National

Commission for the Review of Anti-Trust

Laws and Procedures (1979),

Por similar issues in the general

law of torts, see @.g. Ultra Mares Corp.

v. Touch, Niven & Co,, 255 N.Y. 170,

174 N.E. 441 (1931); State Street Co,

v. Ernst, 278 N.Y. 104, 112, 15 N.E.2d 416,

418-19 (1938). See alse, Keeton, Fraud:

The Necessity of an Intent to Deceive,

5 U.C.L.A. L. Rev, 585 (1958); Goodhart,

Liability for Innocent but Negligent

Misrepresentations, 74 Yale L.J, 286

(1964); see generally, Prosser, The Law

-45-

of Torts at pp. 700-10,

In each of the areas of the law

in which scienter has been deemed a pre-

condition to liability, our courts

have held that prospective relief may

be granted upon a showing of negligent

or, at most, reckless behavior, In- :

deed, recklessness and negligence have

often been deemed a sufficiently cul-

pable mental state to warrant the im-

position of retrospective (even criminal)

sanctions. As the Chief Justice noted

in United States v. United States

Gypsum Company, 98 S&S, Ct, 2864 (1978),

the decision to recognize a negligence-

recklessness definition of scienter

or to insist upon a purposive defini-

tion turns on the primary end of the

law in question. Those legal norms

which are principally designed te punish

or to stigmatize persons for engaging

in morally reprehensible conduct require

4a showing of evil purpose, Those

legal norms which are principally de-

signed to regulate rather than punish

require merely a showing that a defendant

has dropped below an acceptable standard

cf behavior. 98 S. Ct. at 2875-76.

Since attempts to obtain prospective

relief will almost always involve "reg-

ulation" as opposed to "punishment",

the consistent acceptance of negligence-

recklessness as sufficiently culpable

scienter to warrant prospective relief

is hardly surprising. Especially in.

the context of a request for prospective

relief under the equal protection clause,

this Court's emphasis should be on

stimulating an acceptable standard of

official behavior, as opposed to im-

posing punishment. Accordingly, while

strict adherence to a subjectively

oriented requirement of purposive activ-

ity may be appropriate in cases seeking

to impose retrospective sanctions for

morally repugnant behavior, no juris-

prudential basis exists to insist upon

purposive - as opposed to reckless or

negligent - conduct in cases seeking

prospective relief in an Equal Pro-

tection context. No basis exists for

tolerating the reckless or negligent

"eee ts

ee ee -

re Peek ot

ee eee

~~)

infliction of inwfury on vulnerable

members of a racial minority by a govern-

ment entity which, if not purposively

malicious, is culpably indifferent.

Moreover, given the records below, no

reasonable finder of fact could fail to

find that defendants acted with reck-

less disregard for and deliberate indif-

ference toward black children confined

to ghetto schools in Columbus and ~

Dayton.

B. The Burdens of Proving Culpable

Mental State.

If this Court properly determines

that the equal protection clause is

violated by negligent or reckless

infliction of disproportionate harm on

members of racial minorities, the task

of evolving equitable and efficient

ground rules for proving culpable scienter

would be substantially eased. While

difficult questions would, no doubt,

arise in evolving and applying a stan-

dard of care designed to minimize the

negligent or reckless infliction of

harm on members of racial minorities,

wh De

the task of applying reasonableness

in an Equal Protection context should

prove no more difficult than similar

tasks undertaken by this Court in other

areas of the law. E.g. Continental

T.V. Inc. v. G.T.E. Sylvania Inc.,

433 U.S. 36 (1977), overruling

United States v. Arnold, Schwinn, & Co.,

388 U.S. 365 (1967); Pitofsky, The

Sylvania Case: Antitrust Analysis of

Non-Price Vertical Restrictions, 78

Colum. L. Rev. 1, 2-3, 37-38 (1978);

Bucklo, The Supreme Court Attempts to

Define Scienter Under Rule 10b-5, 29

Stan. L. Rev. 213 (1977). Indeed, in

insisting upon an objective standard

as a check on the "good faith" defense,

this Court has already committed itself

to defining the contours of a reason-

able standard of care applicable to

virtually all government officials.

Estelle v. Gamble, 429 U.S. 97 (1976);

Wood v. Strickland, 420 U.S. 308 (1975);