Opposition — Dayton Board of Education v. Brinkman

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MICHAEL RODAK, JR..CLERR

Supreme Court of the United Sales. ae,

OCTOBER TERM, 1978

No. 78-627

DAYTON BOARD OF EDUCATION, et al.,

Petitioners,

VS.

MARK BRINKMAN, et al.,

Respondents.

BRIEF IN OPPOSITION TO CERTIORARI

RoBerRT A. MURPHY NATHANIEL R. JONES

NORMAN J. CHACHKIN NAACP General Counsel

Lawyers’ Committee For Civil 1790 Broadway

Rights Under Law New York, New York 10019

520 Woodward Building ae :

788 Fifteenth Street, N.W. 9 PAUL. DIMOND cake

Washington, D.C. 20005 320 North Main Street

RICHARD AUSTIN Ann Arbor, Michigan 48104

Suite 1500 m saa is

First National Bank Bldg. W —y E. ( — ELL

Dayton, Ohio 45402 Louis R. Lucas

RATNER, SUGARMON, LUCAS

AND HENDERSON

525 Commerce Title Building

Memphis, Tennessee 38103

Attorneys for Plaintiffs-Respondents

Mark Brinkman, et al.

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

Page

Fe I eteaiaiesarcnbeishahneeisqrienssmsbaselchiaiiadensiibionbiensionaie ii

PP TI Sais essa tise cectcciinttatessintetinscstescsessiannen 1

Counterstatement of Question Presented ........................ 2

Counterstatement of the Case ..................:.ccsseseseeeeeeeeeeeee 3

I I I a na ic ieescatabreseansonnin 3

I arenas tkeslciecacaaitensistocowasbestimnncinianedcantndeperesioniiennisnes 6

Reasons for Denying Certiorari ............................sccesseeee 10

RINNE, ich cccstescicanhioniehnseeneiocsicles NIA, setlielimestctonhosieibionibds 17

Appendix: The Dayton School District ...........0............. la

General Geography and Demography easilcbdiatahcanmaies la

The Pre-Brown Dual System .....................cc000--ee000- 2a

Continuation of the Dual System after Brown ...... 18a

1. Faculty and Staff Assignments .................. 18a

2. Optional Zones and Attendance Bound-

RCAC UDA a RE SC ee oT 23a

8. School Construction, Closing and Site

RTE WR pec A PIES eee ean 30a

4. Grade Structure and Reorganization .......... 34a

5. Pupil Transfers and Transportation .......... 35a

6. The Board’s Rescission of its Affirmative

BIE ickiotbisbkcnaninchcdeed dace aitndui ain laaseds bacuideets 40a

TABLE OF CASES

Page

Arthur v. Nyquist, 573 F.2d 134 (2d Cir. 1978)... 14

Bigelow v. RKO Pictures, Inc., 327 U.S. 261

A FRESE NE RE SAI ROPER SRNR CR ee ce FEIT 16

Brinkman V. Gilligan, 6th Cir. No. 78-3060 (July

27, 1978) (Brinkman [V) ...............000....0....... 1, 5-6, 8-16

Brown V. Board of Education, 347 U.S. 488 (1954)

NG 5 RN TE ae Le laden eae 2,11

Brown V. Board of Education, 349 U.S. 294 (1955)

ERY ae PRR SUT Pr eee eee ee TRS 2,11

Columbus Bd. of Education v. Penick, 47 U.S.L.W.

ns NNN IUD oaks cceretteciciccnaisdcennnidchnnins 1,11

Dayton Bd. of Education v. Brinkman, 483 U.S.

ED sais ovaliaceeceteehacgabledictaapaonctunnaones 2-4, 6, 14

Ford Motor Co. v. United States, 405 U.S. 562

| __ OERISSRR AR CeeA ISPS Cee SEAT RE Se tier oan 16

Franks v. Bowman Transportation Co., 424 U.S.

| EERSTE IRB RANA SOT MOLL ROME 16

Green Vv. County School Bd., 391 U.S. 480 (1968)... 1,2

Keyes v. School District No. 1, 418 U.S. 189

I oi gags 1, 2, 11-16

Mt. Healthy City School District Bd. of Educ. v.

pi ORF OD ED: . y 2 enon unneOn ae 16

NAACP v. Lansing Bd. of Educ., 559 F.2d 1042

(6th Cir. 1977), cert. denied, 484 U.S. 1065

RII eh cic ashok" ha. coldhasecahincseasdeticimemantanichdalpiadaiintbonne 14

Story Parchment Paper Co. v. Paterson Paper Co.,

ee ee Ot idicn 16

Swann v. Charlotte-Mecklenburg Bd. of Educ.,

Se ls I cst icine cases 1, 2, 12, 16

United States v. Board of School Commr’s of In-

dianapolis, —— F.2d —— (7th Cir. 1978) ........ 14

United States v. Johnston, 268 U.S. 220 (1925)...... 6

United States v. Oregon State Med. Soc., 348 U.S.

MEE RAT ie Se i AE CE a ee OO 12

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

127 (8th Cir. 1977) (en banc), cert. denied,

er SIE ID ities odaceccteesdusesniiesiegraamnnbicbates 14

Ill

TABLE OF CASES—Continued

Page

United States v. Texas Educ. Agency, 564 F.2d

162 (5th Cir. 1977), rehearing denied, 579 F.2d

ee IE IIL, TIFIED. sccscsapsciuticoianleanincatansnsiossintnosirdnaininis 14

Village of Arlington Heights v. Metropolitan Hous-

ing Dev. Corp., 429 U.S. 252 (1977) .........0.0..... 2, 14, 16

Washington Vv. Davis, 426 U.S. 229 (1976) ............ 2,14

Zenith Radio Corp. v. Hazeltine Research, Inc., 395

Re SEIT UREN stccinicbdchchdbeenbenes -cudibebladaienselinsibhasiesin 16

Saas Spud.

| IN THE 2

Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-627

DAYTON BOARD OF EDUCATION, et al.,

Petitioners,

Vs.

MARK BRINKMAN, et al.,

Respondents.

BRIEF IN OPPOSITION TO CERTIORARI

PRELIMINARY STATEMENT

Petitioners predicate their application for certiorari on

hyperbole and erroneous dictum about this case in Colum-

bus Board of Education v. Penick, 47 U.S.L.W. 3089

(U.S. Aug. 11, 1978) (Rehnquist, J., in Chambers). The

truth of the matter is that petitioners seek the substantia]

overruling of, at least, Keyes v. School Dist. No. 1, 413

U.S. 189 (1973) ; Swann v. Charlotte-Mecklenburg Bd. of

Educ., 402 U.S. 1 (1971); and Green v. County School

Bd., 391 U.S. 430 (1968).

In its careful and comprehensive opinion in Brinkman

v. Gilligan, 6th Cir. No. 78-3060 (July 27, 1978) (Brink-

man IV) (Pet. App. 189a-217a), the court below engaged

in a straightforward application, to largely undisputed

evidence, of Keyes; Dayton Bd. of Educ. v. Brinkman,

433 U.S. 406 (1977); Village of Arlington Heights v.

Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977);

Washington v. Davis, 426 U.S. 229 (1976); Swann;

Green; Brown v. Board of Educ., 349 U.S. 294 (1955)

(Brown II); Brown v. Board of Educ., 347 U.S. 483

(1954) (Brown I). The court of appeals concluded that

plaintiffs had overwhelmingly proved their case that, as of

the time of initial trial, the Dayton public schools had long

been and still were intentionally segregated by race on a

systemwide basis necessitating a systemwide remedy. The

court found that the district court’s contrary findings

were not supported by the evidence but instead were

clearly erroneous. While acknowledging that the Dayton

schools, unlike their “southern” counterparts, were not

segregated by state statutory and constitutional law, the

court below found that the evidence unmistakeably showed

that deliberately segregative policies and practices of Day-

ton school authorities had accomplished the same system

of racially dual schooling as the “southern” segregation

laws. Accordingly, the court held petitioners to the re-

medial obligations imposed by the “southern” cases (e.g.,

Swann and Green) and made binding on such de jure

segregated systems by Keyes. A fair reading of the court

of appeals’ opinion reveals nothing more. The writ of

certiorari should therefore be refused.

COUNTERSTATEMENT OF QUESTION PRESENTED

The issue in this case always has been and is:

Whether the systemwide racial segregation of

pupils in the Dayton public schools existing at the

time of initial trial was caused by the intentionally

segregative policies and practices of the Dayton

Board of Education?

* ot OSSP OETA HS

Wo Kat OS :

COUNTERSTATEMENT OF THE CASE

The Relevant Opinions

In its June 27, 1977, opinion in this case, Dayton Bd.

of Educ. v. Brinkman, 483 U.S. 406 (1977), this Court

focused on the “proper allocation of functions between the

district courts and the courts of appeals within the federal

judicial system” (id. at 409), rather than review the

entire record evidence of racial discrimination in order to

determine its legal significance. For purposes of its

analysis, the Court accepted the limited and ambiguous

findings of the district court, which the Court determined

related only to optional zones for three high schools, a

violation “only with respect to high school districting.” Jd.

at 413. Recognizing the as yet not fully reviewed but

extensive record evidence of alleged intentional segrega-

tion, the Court noted that “this is not to say that the last

word has been spoken as to the correctness of the District

Court’s findings as to unconstitutionally segregative ac-

tions on the part of the’ Dayton Board. 7d. at 418. The

Court therefore remanded to the district court “for the

making of more specific findings” (id. at 419), but di-

rected the systemwide plan to remain in operation in order

to permit appropriate judicial review by the district court

and the court of appeals. Jd. at 421.

In arriving at this result, the Court was critical of

the ambiguity and lack of specificity in the previous find-

ings and conclusions of the district court (id. at 412-13,

419); and the Court was even more critical of the limited

appellate review accorded by the court of appeals in its

previous opinions, which “neither” held “that the findings

of the District Court [were] clearly erroneous” nor “that

the District Court . . . misapprehended the law.” Id. at

417-18. Thus, the Court noted that the court of appeals in

Brinkman I (503 F.2d 683 (6th Cir. 1974) ) “did discuss

at length what it described as ‘serious questions’ as to

whether Board conduct relating to staff assignment, school

construction, grade structure and reorganization, and

transfers and transportation, should have been included”’

in the violation determination, but that in reserving deci-

sion on these issues the court of appeals had “neither up-

set the factual findings of the District Court nor...

reversed the District Court’s conclusions of law.” Id. at

416. The Court also noted that Brinkman I “considered

at somewhat greater length than had the District Court

both the historical instances of alleged racial discrimina-

tion by the Dayton School Board and the circumstances

surrounding the Board’s [more recent desegregation]

resolutions and the subsequent rescission of those resolu-

tions.” Jd. at 415-16. But “this consideration was in a

purely descriptive vein: no findings of fact made by the

District Court were reversed as having been clearly

erroneous, and the Court of Appeals engaged in no fact-

finding of its own based on evidence adduced before the

District Court.” Jd. at 416.

Pursuant to this Court’s mandate, the court of appeals

remanded the case to the district court for further pro-

ceedings. 561 F.2d 652 (6th Cir. 1977). The District

Court conducted an additional evidentiary hearing and,

on December 15, 1977, issued its ‘Findings of Fact and

Conclusions of Law.” Pet. App. 142a-88a. The District

Court began its opinion by correctly noting: “The course

of this protracted litigation has been marked by con-

ceptual differences not only as to the facts, but as to the

legal significance of those facts.” Pet. App. 143a. The

court then proceeded to perpetuate the dichotomy by mak-

ing clearly erroneous fact findings, applying the wrong

legal standards for intent and causation, and misallocating

the burdens of proof. The court resolved all ultimate

factval issues against plaintiffs in argumentative fashion

and conclusory terms; subsidiary findings on many im-

portant factual issues were omitted entirely or were am-

biguous. The facts were compartmentalized into rigid

BH S08! ’

categories, and each category was analyzed in isolation

from the record as a whole. In the many instances in

which it would have been a palpable falsehood to hold even

that plaintiffs had failed to prove subjective racial animus

on the part of the school authorities, the court refused

to find racial intent at all, holding instead that such per-

vasive actions had “no incremental segregative effect’’

(e.g., Pet. App. 154a), or that plaintiffs “failed to meet

the remedial portion of their burden of proof.” EF.g., Pet.

App. 149a. The district court thus concluded that there

were no constitutional violations requiring correction and

dismissed the complaint in its entirety. Pet. App. 188a.

Obedient to this Court’s mandate in Dayton, the court

of appeals fully reviewed (for the first time) all major

factual and legal disputes between the parties. Brinkman

IV, supra, Pet. App. 189a-217a. The court reversed all

aspects of the district court’s judgment. The court found

that the trial judge had both misapprehended and misap-

plied the law. See, e.g., Pet. App. 192a, 194a, 199a-205a,

210a-21la, 214a-16a. Moreover, as a review of Chief

Judge Phillips’ careful and thoughtful opinion reveals,

calm scrutiny of the record evidence convinced the court

of appeals that the trial court’s dispositive findings of

both subsidiary and ultimate fact were not just the by-

products of fundamental legal blunders, they were also

clearly erroneous standing alone. See, e.g., Pet. App. 194a,

196a, 199a, 202a, 210a, 21la, 21la-12a, 213a. That

eritical, sustained look at the record, combined with the

reasoned application of settled law, caused the court of

appeals to reach the following conclusions: at the time

Brown I was decided the Dayton Board was operating

an explicitly dual school system (Pet. App. 194a-205a) ;

that thereafter the Board, instead of dismantling the

across-the-board impact of its deliberately segregative

policies, intentionally continued, compounded, perpetuated

and expanded the dual system so that, at the time of

initial trial in 1972, the entire system was de jure segre-

gated (Pet. App. 195a-96a, 197a-200a, 206a-14a); that

the only meaningful remedy for this intentional system-

wide segregation is a plan of systemwide desegregation.’

Pet. App. 214a-17a. Accordingly, the court of appeals

ordered continuation of the systemwide desegregation

plan which has been in operation since September 1976.

Pet. App. 217a.

The Facts

Between 1912 and 1951-52, the Payton Board devised

and carried out a number of racially discriminatory poli-

cies and practices which both mistreated black students

and faculty and caused them to be confined to segregated

black schools; concomitantly, white teachers and pupils

received favored treatment, and they were accommodated

in reciprocally-maintained segregated white schools. These

policies and practices included:

* the humiliating operation of all-black classrooms

within, and in an outbuilding in back of, the Gar-

field school; the refusal to allow black students

to attend white classes at Garfield, and the ulti-

mate overnight conversion of Garfield into an

officially-designated blacks-only school ;

* the racially dual policy of never allowing black

teachers to teach white pupils, always assigning

such teachers only to all-black classes and/or

1The court of appeals properly performed its normal appellate

function to review the evidence and factual findings pursuant to

the “clearly erroneous” standard of Rule 52(a), Fed.R.Civ.P., as

enunciated for school cases by this Court’s decision in Dayton, 433

U.S. at 409-10, 417-18. This Court, of course, normally “do[es]

not grant a certiorari to review evidence and discuss specific facts.”

United States v. Johnston, 268 U.S. 220, 227 (1925). In the event,

however, that any member of this Court wishes to evaluate the con-

trasts between the court of appeals’ exposition of record evidence

and that of the district court, we attach as an appendix to this

brief a detailed comparison of the largely undisputed facts with

the district court’s opinion. That comparison demonstrates that the

trial court’s opinion is incredible, and that Chief Judge Phillips’.

opinion for the court of appeals is sound beyond doubt.

schools, accompanied by “free transfer” policies to

keep all nearby white pupils and all white teachers

out of blacks-only classes and schools;

the overnight conversions, in response to a grow-

ing black population, of Willard and Wogamon

schools into official blacks-only schools and the

concomitant transfer of white students and

teachers out of these designated black schools;

* the construction and operation on a city-wide basis

of Dunbar as a blacks-only high school with, of

course, an all-black staff, accompanied by pupil-

assignment and counselling techniques designed to

channel black students into Dunbar;

* cooperation by contract with public housing au-

thorities to have children educated on a completely

segregated basis in public housing space officially

and explicitly earmarked according to race;

* the transportation of black orphanage children

past white schools across town to the blacks-only

schools;

a variety of within-school racially discriminatory

practices—requiring black children to sit in the

back of the class, not letting them participate in

“white” activities (e.g., being an angel in a school

play), segregated athletic competition, segregated

showers, locker rooms and swimming pools, and

the like—which further branded black people as

unfit for association with whites in the public

schools.

These facts, and supporting citations to the undisputed

record, are detailed in the appendix hereto, pp. 2a-10a,

infra, and the court of appeals found the facts essentially

as set forth above, Pet. App. 195a-201a.

By 1951-52, the last year before Brown for which pupil

racial data were made available by the Board, about 54%

of the black children and all of the black teachers were

in the four official blacks-only schools; 83% of the white

children were in virtually all-white (90% or more)

schools taught entirely by white teachers. It was not

against the law for blacks and whites to go to school

together in Dayton, but it clearly was the official educa-

tional policy that learning in all of the public schools

should take place on a racially segregated or otherwise

racially discriminatory basis.* At the time of Brown the

Dayton Board was operating a dual school system. Pet.

App. 201a-205a.

2 From 1951-52 through the time of Brown, the “explicit segrega-

tion policy” (Pet. App. 195a) was “effectively continued in prac-

tice” (Pet. App. 196a) by the Board, although in somewhat different

garb in view of the continuing protests from the black community.

For example, the Board adopted a “new but equally unacceptable

policy” (Pet. App. 195a n.11) for teacher assignment that told black

teachers they could teach white children only if white parents were

willing, and told white teachers not te worry, that they would not

be assigned against their will to black schools. Jd. Simultaneously,

the Board added black portions of the attendance areas of the

three blacks-only elementary schools to the adjacent “mixed” schools

(which already had substantial black enrollments); the Board

unmistakably converted these adjacent schools into “colored” schools

by (a) creating intentionally segregative optional zones (Pet. App.

209) in the white residential areas of these adjacent schools (as

a substitute for the former “free transfer” policy) to allow whites

to avoid these newly designated blacks-only schools; and (b) the

traditional means for earmarking schools according to race (Pet.

App. 196a-197a), i.e., the assignment of black teachers for the first

time to these adjacent schools but not to the white schools of the

system. See also pp. 1la-12a, infra. Pursuant to the Board’s in-

tentionally segregative policies with respect to school construction

and site selection (Pet. App. 210a-212a), the Board built a new ele-

mentary school on the same site as a blacks-only public housing

project and assigned a virtually all-black student body and staff

(Pet. App. 195a-196a). See also pp. 1lla-12a, infra. And the

Board, of course, maintained Dunbar as a city-wide blacks-only

high school with respect to both students and staff. Pet. App. 200a.

As of the time of Brown, then three-fourths of all black pupils in

Dayton attended these schools officially designated by the Board for

blacks-only, and an even greater percentage of white students at-

tended virtually ail-white schools. See pp. 9a-10a, 15a-17a, infra.

In the post-Brown era the Board perpetuated and ex-

panded the segregated system it had created. The racially

dual faculty policy continued in raw form and substantial

practice until HEW intervention in 1969 resulted in an

agreement requiring faculty desegregation over a two-

year period; but even under that agreement remnants of

the old policy were still present at the time of trial. Pet.

App. 195a-96a, 206a-07a; pp. 18a-21a, infra. The Board

expanded the use of optional attendance zones—which

had their race-oriented origins as a substitute for the

“free transfer” policies previously used to “protect”

whites from the designated black schools (see note 2,

supra)—into a number of new areas which had substan-

tial segregative impact. Pet. App. 209a-10a; pp. 23a-27a,

infra. In addition, the Board resorted to a variety of

other deviations from “geographic zoning” or the “neigh-

borhood school” concept—grade reorganization; curricu-

lum, hardship and disciplinary transfers; tuition assign-

ments; “intact” busing; and Freedom of Enrollment

transfers—virtually whenever the need arose for perpetu-

ation of the segregated system. Pet. App. 212a-18a; pp.

34a-39a, infra. The Board’s brick-and-mortar practices

‘had an even more devastating segregative impact. Almost

without exception, under the Board’s intentionally segre-

gative policies all new schools and additions to existing

schools were constructed on a uniracial basis, literally

sealing up the dual system extant at the time cf Brown.

Pet. App. 210a-12a; pp. 30a-32a, infra. One of the more

blatant examples of official racial discrimination in the

areas of school construction, location and utilization in-

volves the events attending the “closing” of the old blacks-

only Dunbar High School in 1962: the old Dunbar build-

ing was converted into an elementary school (renamed

McFarlane) with attendance boundaries drawn to take

in most of the black students previously attending the

blacks-only Willard and Garfield schools, which were

simultaneously closed; McFarlane opened with an all-

. 10

black faculty and an all-black pupil population; at the

same time, the Board constructed a new Dunbar High

School, located in a black neighborhood far from white

residential areas, opened with a virtually all-black stu-

dent body and faculty. Pet. App. 207a, 210a-12a; pp.

31a-32a, infra. All in all, of 24 new schools constructed

between 1950 and the time of trial, 22 opened 90% or

more black or 90% or more white; 78 of some 86 addi-

tions of regular classroom space were made to schools

90% or more one race at the time of expansion (only 9

additions were made to schools less than 90% black or

white) ; and, the intentionally segregative nature of these

practices was highlighted by the coordinate assignment

of staffs to these new schools and additions tailored to

the racial composition of the pupils. Pet. App. 210a; p.

3la, infra. These policies and practices were supple-

mented by segregative grade structure reorganization and

creation of five middle schools. Pet. App. 212a-13a; pp.

34a-35a, infra. This history culminated with the 1972

rescission of a 1971 Board-adopted plan of systemwide

desegregation; the rescission undid operative administra-

tive action to dismantle the dual system and reimposed

segregation on a system-wide basis. See pp. 40a-44a,

infra.

The Board was operating a dual system at the time of

_ trial. Pet. App. 213a-14a. This intentional segregation

extended throughout the system, and could only be eradi-

cated by an across-the-board plan of desegregation. Pet.

App. 214a-17a.

REASONS FOR DENYING CERTIORARI

The petition for certiorari is understandably long on

rhetoric and short on substance. The only reason this

case has been around for so long is because plaintiffs-

respondents have heretofore been unable to obtain a full

review by the court of appeals of the district court’s

mishandling of the case. In its 1977 opinion, this Court

directed a cure for that defect, and the court of appeals

has obeyed that directive. As the sound opinion below

demonstrates, it is the facts which prevent petitioners

from winning this case, and no amount of inflated dis-

course (Pet. 8, et seg.) about the use of “legal presump-

tions of intent to extrapolate system-wide violations from

... ‘isolated’ instances,” Columbus Bd. of Educ. v. Penick,

47 U.S.L.W. 3089, 3090 (Aug. 11, 1978) (Rehnquist, J.,

in Chambers), can change this conclusion. Because one

member of this Court already has been induced into a

misreading of the opinion below, however, we respond to

each of the arguments advanced by petitioners in support

of certiorari.

1. The Board argues that the court below attached

pivotal significance to the situation extant in 1954, and

that it penalized the Board in the present for isolated

discrimination of the distant past for which, petitioners

imply, the Board long ago repented. Pet. 9-10. In con-

trast, as we have shown in the Statement of the Case,

pp. 6-8, supra, and as revealed in detail in the opinion

below, the pre-1954 acts of discrimination were not mere

anecdotes: they were systemic in nature, they directly

segregated three-fourths of the pupils and virtually all

of the teachers pursuant to explicit policies of apartheid,

and they infected the entire system with the message of

official racial discrimination. The court of appeals held

that these facts, virtually all of them undisputed, con-

stituted a dual school system in Dayton at the time of

the Brown I decision and that thereafter the Board was

under the same constitutional duty to eradicate all ves-

tiges of state-imposed segregation which Brown II and

its progeny imposed upon Dayton’s “southern” counter-

parts. Pet. App. 194a-205a. If Keyes (which held that

the case for finding a “northern” dual system could be

made out on the basis of inferences drawn from inten-

tionally segregative conduct affecting a considerably

smaller portion of the system than that involved here)

means anything, it means that the court of appeals merely

applied settled precedent in making this determination.

But neither plaintiffs’ case nor the court of appeals’

opinion stopped here. The court below was explicitly

cognizant of its duty to determine the degree of inten-

tional segregation in the Dayton system at the time of

trial. See Pet. App. 205a-14a. The court of appeals did

not close its eyes with the last page of the pre-Brown

record; it did not leap from the 1954 facts to a present-

day systemwide remedy. Rather, the court looked to the

past for the simple reason that, in Justice Jackson’s

words, “present events have roots in the past, and it is

quite proper to trace currently questioned conduct back-

wards to illuminate its connections and meanings.” United

States v. Oregon State Med. Soc., 348 U.S. 326, 332

(1952). This is what Keyes (413 U.S. at 211-12) and

Swann (402 U.S. at 20-21, 28) are all about. The pre-

Brown record in this case was resorted to by the court

of appeals only because “‘it illuminates or explains the

present and predicts the shape of things to come.” United

States v. Oregon State Med. Soc., supra, 343 U.S. at 333.

With that understanding, the court reviewed the evidence

of what happened in Dayton following Brown and found

only one permissible conclusion: the Board effectively

continued its explicit policy of segregation to perpetuate

and augment the dual system right up to the time of

trial. Pet. App. 205a-214a. There is, therefore, no merit

to petitioners’ contention that “historical background .. .

[was] transmogrified into a determinative focus in order

to produce a desired result through artificiai presump-

tions and shifting burdens.” Pet. 10.

2. The Board argues, in a related fashion, that the

court of appeals misapprehended the legal significance of

the Brown violation. Pet. 11-13. This argument is based

almost entirely on the Board’s description of its pre-

Brown conduct as consisting only of “isolated and long-

abandoned segregative practices... .” Pet. 12. As we

have shown, and as the court of appeals held, this descrip-

tion is invalid; the Board’s intentionally segregative pre-

Brown policies extended to all reaches of the school system.

The evidence of systemwide intentional segregation—a

dual system resulting from practices of the Board imple-

menting its explicit policy of segregation—is overwhelm-

ing. As the Attorney General told the Court when this

case was last here: “This case presents as clear an

example of pervasive discrimination prior to Brown as

the Court is likely to find in a State in which discrimi-

nation was not required by statute.” Brief Amicus Cu-

riae for the United States at 23. It is these overpower-

ing facts, not the use of reasonable presumptions, which

compel the judgment below. In the face of these facts

the Board could not and did not present any evidence to

rebut the conclusion that the Board operated a dual school

system in 1954.° The court of appeals’ decision was no

more than a literal application of Keyes.*

8 Without citation to any opinion below or any part of record,

petitioners nevertheless make the naked assertion that “the record

contains evidence indicating that the distribution of students that

existed in the system when suit was filed would have been the same

even if every action of the Board in the last seventy-eight years

had been racially neutral by 1978 standards.” Pet. 13. One need

only review the specific acts of systemwide discrimination detailed

in the court of appeals’ opinion to recognize the absurdity of the

argument that the segregation in the Dayton schools at the time of

Brown adventitiously came about. Petitioners have not come for-

ward with one bit of credible evidence showing that any school in

the system in 1954 was not infected by the Board’s pervasive policies

of intentional segregation.

*It is thus difficult to comprehend the Board’s assertions that the

court below “rendered ‘effect’ synonymous with ‘intent’ insofar as

determining constitutional violations is concerned.” Pet. 11; see

also id. at 12. The court did no such thing. The court’s holding

that “at the time of Brown I, defendants were intentionally operat-

ing a dual school system .. .” (Pet. App. 194a (emphasis added) ),

was based on the numerous repeated, undenied and system-wide

policies of intentional segregation reflected by the record.

3. Petitioners next argue that the court of appeals

“premised its findings of segregative intent upon a pre-

sumption of segregative purpose arising from a natural,

probable and foreseeable result test.” Pet. 14. This also

is inaccurate. While the court did make passing refer-

ence to the so-called “natural, probable and foreseeable

result” test (Pet. App. 203a-04a),° the court’s judgment

rests independently and firmly on the direct record evi-

dence of explicit discrimination. This is not a case in

which any part of the judgment is based on circumstan-

tial evidence alone. The court found as fact that the

Board operated a dual system in 1954 and that thereafter

the Board intentionally expanded that system (Pet. App.

218a) :

Upon consideration of the record, the conclusion is

inescapable that, rather than eradicate the system-

wide effects of the dual system extant at the time of

Brown I, defendants’ racially motivated policies with

respect to the assignment of faculty and students,

use of optional attendance zones, school construc-

tion and site selection, and grade structure and re-

organization perpetuated or increased public school

segregation in Dayton. Thus, defendants have ut-

terly failed to comply with their ongoing 24 year ob-

ligation to desegregate the Dayton public schools

. and, in addition, have committed affirmative

5 The presumption of segregative intent arising from school board

actions that naturally, probably and foreseeably result in segre-

gated schools is evidentiary only and is rebuttable upon a showing

that such segregation stems from the consistent application of

racially neutral policies. The test has been utilized by every circuit

that has considered the question in light of Keyes, Washiy#ton v.

Davis, Arlington Heights and Dayton. See, e.g., Arthur v. Nyquist,

573 F.2d 134 (2d Cir. 1978); United States v. Board of School

Comm’rs of Indianapolis, ——- F.2d —— (7th Cir. 1978); United

States v. School Dist. of Omaha, 565 F.2d 127 (8th Cir. 1977)

(en banc), cert. denied, —— U.S. —— (1978); United States v.

Texas Educ. Agency, 564 F.2d 162 (5th Cir. 1977), rehearing

denied, 579 F.2d 910 (5th Cir. 1978); NAACP v. Lansing Bd. of

Educ., 559 F.2d 1042 (6th Cir.), cert. denied, —— U.S. —— (1977).

acts that have exacerbated the existing racial

segregation.

4. Finally, petitioners argue (Pet. 15-20) that the

court of appeals imposed a systemwide remedy without

properly determining the “incremental segregative effect’’

of the Board’s constitutional violations. The quoted phrase

has become a talismanic cry for the Dayton Board in its

efforts to justify the current segregation without regard

for its causes and the Board’s choice not to come forward

with any affirmative evidence to show that its systemwide

segregative purpose has had lesser impact than intended.

In assessing the appropriate scope of remedy, however,

the court of appeals correctly understood its precise duty

under the decisions of this Court. “The purpose of the

remedy,” said the court, “is to eliminate the lingering

effects of intentional constitutional violations and to re-

store plaintiffs to substantially the position they would

have occupied in the absence of these violations.” Pet.

App. 214a. Petitioners do not contend, nor could they,

that this is not the law.

What really aggrieves petitioners, then, is the refusal

of the court below to approve, in the teeth of the system-

wide violation found, the “two errors [committed by the

district court] in its approach to this inquiry.” Pet. App.

215a. The first error corrected by the court of appeals

was the fact that, contrary to the explicit holding in

Keyes,® the district court “individually examined each

alleged constitutional violation as if it were an isolated

occurrence and sought to determine the incremental segre-

gative effect of that occurrence.” The second error—

“allocating the burden of proof on the issue of incre-

mental segregative effect to plaintiffs, requiring them to

establish both racial discrimination and the specific in-

6 “We have never suggested that plaintiffs in school desegregation

cases must bear the burden of proving the elements of de jure

segregation as to each and every school or each and every st»dent

within the school system.” 413 U.S. at 200.

cremental effect of that discrimination” (Pet. App. 216a)

—also was correctly found by the court to be in conflict

with Keyes’ explicit holding that the wrongdoer bears the

burden of proving that his illegal conduct caused no

harm, or caused less harm than intended. See 413 U.S.

at 211 n.17, 213-14.’ Petitioners were given the oppor-

tunity to show that their systemwide violations had less

than systemwide impact, but the court found that they

had not made such a showing. Pet. App. 216a-17a. And

the Board’s petition for review here similarly fails to

identify a single school which the Board suggests has

not been affected by its systematic policies of racial dis-

crimination. Throughout this litigation we have chal-

lenged petitioners to come forward with such proof, but

they have knowingly declined the challenge, preferring in-

stead to take an all-or-nothing approach in the hope that

this Court will abandon precedent and require plaintiffs

to shoulder the burden of proving each specific element

of constitutional injury at each school at each moment in

time. Petitioners have the right to select this factic, but,

having so elected, petitioners’ refusal to submit evidence

and argument on their remedial burden should not re-

dound to their benefit.

Unless the Court is inclined to overrule prior decisions,

the petition for certiorari herein presents no issue worthy

of review.

‘This is the ordinary rule. See, e.g., Mt. Healthy City School

Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 286-87 (1977) ; Arlington

Heights, 429 U.S. at 270-71 n.21; Franks v. Bowman Transp. Co.,

424 U.S. 747, 771-73 (1976); Ford Motor Co. v. United States, 405

U.S. 562, 575 (1972)) ; Swann, 402 U.S. at 26; Zenith Radio Corp.

v. Hazeltine Research, Inc., 395 U.S. 100, 123-25 (1969); Bigelow

v. RKO Pictures, Inc., 327 U.S. 251 (1946); Story Parchment

Paper Co. v. Paterson Paper Co., 282 U.S. 555 (1981).

CONCLUSION

The Petition for a Writ of Certiorari should be denied.

ROBERT A. MURPHY

NORMAN J. CHACHKIN

Lawyers’ Committee For Civil

Rights Under Law

520 Woodward Building

733 Fifteenth Street, N.W.

Washington, D.C. 20005

RICHARD AUSTIN

Suite 1500

First National Bank Bldg.

Dayton, Ohio 45402

Respectfully submitted,

NATHANIEL R. JONES

NAACP General Counsel

1790 Broadway

New York, New York 10019

PAUL R. DIMOND

O’BRIEN, MORAN AND DIMOND

320 North Main Street

Ann Arbor, Michigan 48104

WILLIAM E. CALDWELL

Louis R. LUCAS

RATNER, SUGARMON, LUCAS

AND HENDERSON

525 Commerce Title Building

Memphis, Tennessee 38103

Attorneys for Plaintiffs-Respondents

Mark Brinkman, et al.

APPENDIX

The Dayton School District: General Geography

and Demography

As reflected in the report (A.106-07)* of the Master

previously appointed by the district court, the city of

Dayton has a population of 245,000 and is located in the

east-central part of Montgomery County in the south-

western part of the State of Ohio, approximately 50

miles due north of Cincinnati. The Dayton school district

is not coterminus with the city; some parts of the school

district include portions of three surrounding townships

and one village, while some portions of the city are in-

cluded in the school district of three adjacent townships.

The total population residing within the Dayton school

district boundaries is 268,000; the school pupil population

is 45,000, about 50% of whom are black. Prior to im-

plementation of the desegregation plan now in effect, the

vast majority of black and white pupils had separately

attended schools either virtually all-white or all-black in

their pupil racial composition. E.g., A.25-26; S.Ct.A.311-

' Appendix Citations. “A.—” citations are to the Appendix filed

in the court of appeals, which consists of four photocopied volumes

(I-IV) of consecutively paginated materials (pp. 1-1128) (numbered

in the bottom right-hand corner of each page) specifically designated

for this appeal, cited herein in the form “A.000,” and one printed

volume (V) (which is the exhibit volume of the appendix used in

this Court when the case was last here) paginated 311-606, which is

cited herein in the form “S.Ct.A.000.” (A few relevant documents

are contained in the Appendices to Plaintiffs-Appellants’ Motion For

Stay and Injunction Pending Appeal, filed in the court below, which

will be referred to as “Stay App.’”’)

Original Record Citations. Plaintiffs’ trial exhibits are designated

in the form “PX——” and defendants’ trial exhibits in the form

“DX .” Original transcript citations are in the following forms:

“R.I. 000” refers to the 20-volume transcript of the November 1972

trial; “R.II. 000” to the February 1975 remedial hearing; “R.III.

000” to the December 1975/January 1976 remedial hearing; and

“R.IV 000” to the 4-volume transcript of the November 1977 remand

hearing.

315 (PX 2A-2E), 502-506 (PX 100A-100E), 588-589

(DXCU).

The Dayton District is bisected on a north/south line

by the Great Miami River. Historically, the black popu-

lation has been concentrated in the south-central and

southwest parts of the city, primarily on the west side of

the Miami River and south of the east-west Wolf Creek.

See §.Ct.A.577-79 (1940, 1950 and 1960 census tract

maps). The black population continues to be concentrated

in the southwest quadrant, but there is now also a sub-

stantial black population in the northwest quadrant across

Wolf Creek. Extreme northwest Dayton and most of the

city east of the Miami River are and have been heavily

white in residential racial composition. See S.Ct.A.580

(1970 census tract map).

Geographically and topographically there are no major

obstacles to complete desegregation of the Dayton school

district. A.61. The Master determined that where pupil

transportation is necessary, the maximum travel time

would be about twenty minutes. A.108. As found by the

Board’s experts, due to the compact nature of the system,

“the relative closeness of the Dayton Schools makes long-

haul transportation[,] an issue in many cities[,] moot

here.” R.III. 111.

The Pre-Brown Dual System

In 1887 the state of Ohio repealed its school segregation

law and attempted to legislate the abolition of separate

schoois for white and black children. 85 Ohio Laws 34.

That statute was sustained the foliowing year by the

Supreme Court of Ohio. Board of Education vy. State,

45 Ohio St. 555, 16 N.E. 373 (1888). The laudable goals

of that legislation were not attained in Dayton until im-

plementation of the desegregation plan now in effect at

the start of the 1976-77 school year.

The facts of racial segregation in the Dayton public

schools, as revealed by the record before the Court, begin

in 1912.° In that year school authorities assigned Louise

Troy, a black teacher, to a class of all-black pupils just

inside the rear door of the Garfield school; all other

classes in this brick building were occupied by white

pupils and white teachers. About five years later, four

black teachers and all of the black pupils at Garfield were

assigned to a four-room frame house located in the back

of the brick Garfield school building with its all-white

classes. Shortly thereafter, a two-room portable was

added to the black “annex” making six black classrooms

and six black teachers located in the shadow of the white

Garfield school. A four-room “permanent” structure was

later substituted (about 1921 or 1922), and eight black

teachers were thus assigned to the eight all-black class-

rooms in the Garfield annex. A.320-25.°

About 1925 school authorities learned that two black

children, Robert Reese and his sister, had been attending

the Central school under a false address, even though they

2 Many of the facts set forth in this Appendix were admitted by

all Dayton Board defendants in their responses to plaintiffs’ pre-trial

Requests for Admissions, served on October 18, 1972. The Superin-

tendent afd three Board members filed responses separate from

those of the Board and its four “majority” members. See A.109-

38. These facts were also the subject of extensive and largely un-

controverted evidence at trial.

8In 1917 the black classes in the black annex at Garfield con-

tained about 50 black children per room. A.322. Thereafter, Mrs.

Ella Lowrey, a black teacher for several decades in the Dayton sys-

tem, taught a class of 42 black children when white teachers inside

the brick building had classes of only 20 white pupils. A.325-26.

Mrs. Lowrey’s service began in 1916 and continued through 1963,

with several years’ interruption at various times. In her words,

“doing 40 years service in all in Dayton, . . . I never taught a white

child in all that time. I was always in black schools, black children,

with black teachers.” A.333. (At one time during this early history

prior to 1931, one black teacher, Maude Walker, taught an ungraded

class of black boys at the Weaver school. All other black teachers in

the system were assigned to the black annex at Garfield. A.259.)

lived near the Garfield school. They had accomplished

this subterfuge by walking across a bridge over the Miami

River. A.281.* The Reese children were ordered by school

authorities to return to the Garfield school, but their

father refused to send them to the black Garfield annex.

Instead, he filed a lawsuit in state court seeking a writ

of mandamus to compel Dayton school authorities to ad-

mit children of the Negro race to public schools on equal

terms with white children. A.280-83. In a decision

entered of record on December 24, 1925, the Court of

Appeals of Ohio denied a demurrer to the mandamus

petition, This decision was affirmed by the Ohio Supreme

Court and Dayton school authorities were specifically re-

minded that state law prohibited distinctions in public

schooling on the basis of race. Board of Education of

School District of City of Dayton v. State ex rel. Reese,

114 Ohio St. 188, 151 N.E. 39 (1926).

* During this time, there apparently were some other black chil-

dren also in “mixed” schools. For example, Mrs. Phyllis Greer at-

tended “mixed” classes at Roosevelt high school for three years prior

to 1933. A.252-53. But even when they were allowed to attend so-

called “mixed” schools, black children were subjected to humiliating

discriminatory experiences within school. At Roosevelt, for exam-

ple, black children were not allowed to go into the swimming pool

and blacks had separate showers while Mrs. Greer was there

(A.253) ; while Robert Reese was at Roosevelt, there were racially

separate locker rooms and blacks were allowed to use the swimming

pool, but not on the same day whites used it. A.284. At Steele High

School, black children were not allowed to use the pool at all during

this period. A.886-87. Even in the “mixed” classrooms black chil-

dren could not escape the official determination that they were

inferior beings because of the color of their skin. Mrs. Greer vividly

remembers, for example, “when I went to an eighth grade social

studies class I was told by a teacher, whose name I still remember,

... that even though I was a good student I was not to sit in front

of the class because most of the colored kids sat in the back.” A.254,

And she remembers with equal clarity that, while in the second

grade at Weaver, she “tried out for a Christmas play and my teacher

wanted me to take the part of an angel and the teacher who was

in charge of the play indicated that I could not be an angel . . . be-

cause there were no colored angels.” A.251.

Following this state court decision Robert Reese and a

few of his black classmates were allowed to ‘ina school

in the brick Garfield building, but the black annex and

the white brick building were otherwise maintained.

Black children were allowed to attend classes in the

brick building only if they asserted themselves and spe-

cifically so requested. A.327-28. Otherwise, they “were

assigned to the black teachers in the black annex and the

black classes.” A.328.°

The black pupil population continued to grow at Gar-

field, and another black teacher was hired and assigned

with an all-black class placed at the rear door of the brick

building. A.328-29. In 1932 or 1933, Mrs. Lowrey (see

note 8, p. 3a, supra), was also placed in the brick

building, again with an all-black class “in a little cubby-

hole upstairs,” making ten black teachers with ten black

classes at Garfield. A.329-31. Finally, around 1935-36,

after most of the white children had transferred out of

Garfield, school authorities transferred all the remaining

white teachers and pupils in the brick building to other

schools and assigned an all-black faculty and student

body to Garfield. A.260-61, 329-31; S.Ct.A.524 (PX

150 I); PX 155 (faculty directories) .°

5 During the pendency of the Reese case, the eight black teachers

assigned to the Garfield annex were employed on a day-to-day basis

because school authorities did not know whether the black teachers

were going to be in the Dayton system after the lawsuit. Black

teachers would not be needed if the courts required the elimination

of all-black classes, since the Board deemed black teachers unfit to

teach white children under any circumstances. A.326-27.

6 Throughout this period and until 1954, black children from a

mixed orphanage, Shawen Acres, were assigned across town to the

black classes in the black Garfield school, while the white orphan

children were assigned to nearby white classes and white schools.

A.215-16, 250, 1034, 1036-37. This practice was terminated follow-

ing the Brown decision in 1954 at a time when the black community

in Dayton was putting pressure on the school administration to stop

mistreating black children. S.Ct.A.483 (PX 28).

But the black pupil population was growing during

these years, and even the conversion of Garfield into a

blacks-only school was not sufficient to accommodate the

growth. So, with the state court decision in the Reese

case now eight years old, the Dayton Board -onverted

the Willard school into a black school. The conversion

process was as degrading and stigmatizing as had been

the creation and maintenance of the Garfield annex and

the ultimate conversion of the brick Garfield into a black

school. In the 1934-35 school year, six black teachers

(who were only allowed to teach black pupils) and ten

white teachers had been assigned to the Willard school.

In September of 1935, all white teachers and pupils were

transferred to other schools, and Willard became another

school for black teachers and black pupils only. A.260-61;

S.Ct. A.524 (PX 150 I) ; PX 155 (faculty directories).

At about this same time, the new Dunbar school, with

grades 7-9, opened with an all-black staff and an all-black

student body. S.Ct.A.524 (PX 150 1).’ The Board reso-

lution opening Dunbar stated that grades 7 and 8 were

to be discontinued at Willard and Garfield* and “that

attendance at the .. . Dunbar School be optional for all

junior high school students of the 7th, 8th, and 9th grade

levels in the city.” A.429; S.Ct.A.539 (PX 161A). Of

course, this meant only all black junior high students,

since Dunbar had an all-black staff who were not per-

7 Mr. Lloyd Lewis, who was present at its inauguration, testified

that the Dunbar school “was purposely put there to be all black the

same as the one in Indianapolis [the Crispus Attucks school, see

United States v. Board of School Comm'rs, 332 F. Supp. 655, 665

(S.D. Ind. 1971)] that I had left.” A.546, 1048-50, 1083-86. Dunbar

was also excluded from competition in the city athletic league until

the late 1940’s, thereby requiring Dunbar teams to travel long dis-

tances to compete with other black schools, even those located out-

side the state. A.254, 297-98, 316.

* These two black elementary schools served grades 7 and 8,

whereas the system prior to 1940 was otherwise generally organized

on a K-6, 7-9, 10-12 grade-structure basis. A.811.

mitted by Board policy to teach white children. A.260,

429; PX 155 (faculty directories).

Within a very short time, grades 10, 11 and 12 were

added to the black Dunbar school. Then in 1942, just two

years after the Dayton school authorities had reorganized

to a K-8, 9-12 grade structure, the Board again assigned

the seventh grades from the all-black Willard and Gar-

field schools to the all-black Dunbar school. A.429;

S.Ct.A.520 (PX 161B). Black children from both the far

northwest and northeast sections of the school district

traveled across town past many all-white schools to the

Dunbar school. A.268, 478-79, 632-33. Many white chil-

dren throughout the west side of Dayton were assigned

to Roosevelt high school past or away from the closer but

all-black Dunbar high school.’® Although some black chil-

dren were allowed to attend Roosevelt, those who became

“behavior problems” were transferred to Dunbar. A.255-

56. And other black children from various elementary

® Prior to 1940, no high schools had attendance boundaries. A.824.

The black Dunbar school was located in close proximity to the

Roosevelt high school which, although it always had space, appar-

ently had too many black children. Along with Steele and Stivers,

these high schools were located roughly in the center of the city

and served high school students throughout the city. (In addition,

the Parker school had been a city-wide single-grade school which

served ninth graders. A.855-56. In 1940 attendance boundaries

were drawn for the high schools with the exception of Dunbar and

a technical school (whoe name varied), both of which long there-

after remained as city-wide schools. See p. 25a n.20, infra, and

accompanying text.

Dunbar continued until 1962 as a city-wide all-black high school.

In that year the Dunbar building was converted into an elementary

school (renamed McFarlane) with attendance boundaries drawn to

take in most of the students previously attending the all-black

Willard and Garfield schools, which were simultaneously closed.

McFarlane opened with an all-black faculty and all-black pupil pop-

ulation. At the same time, a newly-constructed Dunbar high school

opened with both assigned faculty and students over 90% black.

S.Ct.A.315 (PX 2E), 316 (PX 4), 508 (PX 130C); A.139-42

(PX 3), 574-75.

schools were either assigned, channeled, or encouraged to

attend the black Dunbar high school. A.547-49; R.I. 573.”

Even these segregative devices were not sufficient to

contain the growing black population. So between 1943

and 1945, the Board, by way of the same gross method

utilized to convert the Willard school into a black school,

transformed the Wogaman school into a school officially

designated unfit for whites. White pupils residing in the

Wogaman attendance zone were transferred by bus to

other schools, to which all-white staffs were assigned. By

September 1945 the Board assigned a black principal and

an all-black faculty with an all-black student population

to the Wogaman school. A.255, 298; S.Ct.A.524 (PX 150

I); PX 155 (faculty directories).

Still other official devices were used to keep blacks

segregated in the public schools. One such device, resorted

to regularly during the 1940’s and early 1950’s, was to

cooperate with and supplement the discriminatory activi-

ties of Dayton public housing authorities. Throughout

this period, racially-designated public housing projects

were constructed and exparded in Dayton. A.194-95,

198-203; S.Ct.A.510 (PX 148 B). In 1942, the Board

transferred the black students residing in the black De-

Soto Bass public housing project to the Wogaman schol

(S.Ct.A.540 (PX 161 B)), and a later overflow to the

all-black Willard school, rather than other schools that

% The most effective means of forcing black children to attend

_ the blacks-only Dunbar, of course, was the psychological one of

branding them unsuited for association with white children. See

note 4, supra. As Mr. Reese testified, he “chose” Dunbar over

Roosevelt after suffering the humiliation of being assigned to

separate Iccker rooms, separate showers, and separate swimming

pools at Roosevelt: “I wanted to be free. I felt miore at home at

Dunbar than I did at Roosevelt . . . You couldn’t segregate me at

Dunbar.” A.284. Similarly, Mrs. Greer testified: “I went to Dunbar

because I felt that if there was going to be—if we were going to be

separated by anything, we might as well be separated by an entire

building as to be separated by practices.” A.253.

were equally close (A.257-58), while transferring white

students from the white Parkside public housing project

to the McGuffey and Webster schools and the eighth

grades from those schools to the virtually all-white Kiser

school. S.Ct.A.540. Then in the late 1940’s and early

1950’s, the Board leased space in white and black public

housing projects for classroom purposes, and assigned

students and teachers on a uniracial basis to the leased

space so as to mirror the racial composition of the public

housing projects. A.202-03; S.Ct.A.513-23 (PX 143 J).

By the 1951-52 school year (the last year prior to

1964 for which enrollment data by race is available), the

Dayton Board was operating what any informed person

would immediately recognize as a dual school system.

During that year there were 35,000 pupils enrolled in

the Dayton district, 19% of whom were black. There

were four all-black schools, officially designated as such:

Willard, Wogaman, Garfield and Dunbar. These schools

had all-black faculties and (with one exception, an assign-

ment made that school year) no black teachers taught in

any other schools. A.139 (PX 3). In addition, there were

22 white schools with all-white faculties and all-white

student bodies. And there was an additional set of 23

so-called “mixed” schools, 7 of which had less than 10

black pupils and only 11 of which had black pupil popu-

lations greater than 10% (ranging from 16% to 68%).

S.Ct.A.506 (PX 100E). These latter schools were gener-

ally located in the area surrounding the location of the

four designated all-back schools. These few schools with

substantial racial mix, however, were marked by patterns

of racially segregative and discriminatory practices with-

in the schools, and, with the one exception noted above, none

had any black teachers. Eighty-three percent of all white

pupils attended schools that were 90% or more white in

their pupil racial composition. Of the 6,628 black pupils

in the system, 3,602 (or 54%) attended the four all-

black schools with all-black staffs; and another 1,227 (or

10a

19%) of the system’s black pupils were assigned to the

adjacent schools which were about to be converted into

“black” schools (see note 11, infra, and accompanying

text). Thus, 73% of all black students attended schools

already or soon to be designated “black.” S.Ct.A.312

(PX 2B), 506 (PX 100E).

[DISTRICT COURT’S OPINION

(Pet. App. 147a-49a, 151a-52a, 153a, 158a-59a, 169a-71a)

The subsidiary facts set forth above are not in dispute.

Many of them are the subject of findings below, and while

others (e.g., the Reese litigation, the conversion of Gar-

field, Willard and Wogaman into blacks-only schools, and

the specifics of the Board’s entanglement with public

housing discrimination) were ignored by the district

court, the district court’s opinion does not conflict with

these undisputed facts. Thus, the district court finds that

“public housing was strictly segregated according to race”

(Pet.App. 147a-48a); that the Board segregated many

black children and discriminated against the few others

who attended predominantly white schools in accordance

with “an inexcusable history of mistreatment of black

students” (Pet.App. 149a); that “until 1951 the Board’s

policy of hiring and assigning faculty was purposefully

segregative”’ (Pet.App. 153a); that the discriminatory

transfer of black children from Shawen Acres Orphanage

to the blacks-only Garfield School was “arguably ... a

purposeful segregative act” (Pet.App. 159a);* and that

“the first Dunbar High School was intended to be and

was in fact a black high school.” Pet.App. 170a. To the

extent that the court’s failures to mention some of the

other uncontradicted facts set forth above might be read

as adverse findings on these points, then such findings are

clearly erroneous. But the district court’s principal error

is its refusal to view the facts set forth above in the

lla

aggregate (rather than pepper them throughout the opin-

ion as though they were each unrelated to the other) and

conclude that the Board was operating a basically dual

school system. That conclusion is compelled by these facts;

the court’s refusal to draw that conclusion was clearly

erroneous, **] .

* To the extent that the phrasing of this finding might be read to

imply that these facts “arguably” do not show purposeful segrega-

tion, the implication is plainly erroneous. The only facts and conclu-

sions permissible on the record are those set forth in note 6, p. 5a,

supra.

** The court’s conclusions about the post-Brown history of Dun-

bar high school (Pet. App. 170a-7la) which are inconsistent with

those set forth in note 9, p. 7, supra, at dealt with at pp. 3la-

32a, infra.

In December 1952 the Dayton Board confronted its

last pre-Brown opportunity to correct the officially-

imposed school segregation then extant. Instead, the

Board acted in a manner that literally cemented in the

dual system and promised racially discriminatory public

schooling for generations to come. What the Board did is

referred to in the record as the West-Side reorganization,

and it involved a series of interlocking segregative ma-

neuvers,

At this time, the Board was under pressure, as its

records reflect, from “the resistance of some parents to

sending their children to school in their district because

it is an all negro [sic] school.” S.Ct.A.499 (PX 75). In

response, the Board constructed a new all-black school

(Miami Chapel) located near the all-black Wogaman

school and adjacent to the black DeSoto Bass public hous-

ing project; Miami Chapel opened in 1953 with an all-

black student body and an 85% black faculty. S.Ct.A.316

(PX 4). The Board altered attendance boundaries so that

some of the children in the four blacks-only schools were

reassigned to the four surrounding schools with the next

12a

highest black pupil populations; and, through either at-

tendance boundary alterations or the creation of optional

zones, it reassigned white students from these mixed

schools to the next ring of whiter schools. A.589-91,

609-24, 732-34; PX 123." And the Board began to assign

black teachers to these formally mixed schools, thereby

confirming their identification as schools for blacks rather

than whites. A.613-14, 139-42 (PX 3).

11 The boundaries of the black Garfield and Wogaman schools were

retracted, thereby assigning substantial numbers of black children

to the immediately adjacent ring of “mixed” schools with the high-

est percentage of black pupils: Jackson (already 36% black in the

1951-52 school year), Weaver (68% black), Edison (43% black),

and Irving (47% black). S.Ct.A.506 (PX 100E).

Jackson and Edison were re-zoned to include more black students,

and their outer boundaries were effectively contracted through the

creation of “optional zones” (Jackson/Westwood and Edison/Jeffer-

son) so that white residential areas became effectively detached

from Jackson and Edison and, for all practical purposes, attached

to the next adjacent ring of “whiter” schools. Thus, the Board

brought blacks in one end and allowed whites to escape out the

other in these “transition” schools. The Board also created optional

zones (Willard/Irving, Willard/Whittier and Wogaman/Highview,

as well as an option between the new Miami Chapel and Whittier)

in white residential areas contained within the boundaries of the

original four schools for blacks only, so that whites could continue

to transfer out of these all-black schools. A.589-91, 609-24. Prior to

1952 whites had been freely allowed to transfer to “whiter” schools,

but such transfers were abolished in 1952. A.618; S.Ct.A.482 (PX

28). Optional zones were thus substituted for the prior segregative

transfer practice. (The optional-zone technique is discussed in

greater detail at pages 23a-27a, infra.)

During this period the Board also created another optional at-

tendance zone affecting Jackson; this zone was instituted in an area

of the Jackson zone containing the Veteran’s Administration Hos-

pital, and allowed whites to attend Residence Park, which at that

time was all-white. A.585-87; S.Ct.A.506 (PX 100E). This option

is discussed further at note 22, infra. Additionally, the Board dur-

ing this period created the optional zone between Roosevelt (31.5%

black) and Colonel White (100% white A.592-93; S.Ct.A.506 (PX

100E). The immediate and long-range racial significance of this

option is discussed in greater detail at pp. 25a-26a, infra.

13a

[DISTRICT COURT’S OPINION

(Pet.App. 155a-57a)

Incredibly, the district court concluded that the West-

Side reorganization “was an experiment in integration”

and, inconsistently, that “{ijts purpose was to enable

black students to go to an integrated rather than an

all-black school if they chose to do so.” Pet.App. 155a.

These conclusions are clearly erroneous, arrived at only

through the most selective and argumentative reading

of the record imaginable. For example, the district court

cites the testimony from the latest hearing of former

Superintendent Wayne Carle in support of the proposition

that the West-Side reorganization was an “experiment in

integration.” While Dr. Carle’s testimony is not abso-

lutely free of ambiguity, taken as a whole it is impossible

to characterize his views as being that the events of

1952 were integration-oriented. But the district court

does not take the testimony as a whole; rather, the court

relies on five pages of the transcript (A.938-42) which

the court obviously selected as being most supportive of its

desired version of events. The court ignores altogether

the very next two pages (A.943-44) in which Dr. Carle

emphasizes that “you can’t operate part of the system

on a segregated basis without signalling that the rest of

the system is on a segregated basis” (A.933) ; ‘The action

that was taken there was that nothing was done to elimi-

nate the segregation that already existed in the three

schools whose boundaries were changed” (A.944); and

that if the Board had truly adopted a policy of real de-

segregation and “that were communicated to the com-

munity, I suspect it might have a much different effect

than minor boundary changes involving schools that re-

main all black” (A.944). These points are unassailable,

but by ignoring them the district court had just begun to

err. These basic errors were compounded three-fold: first,

by ignoring *urther testimony from Dr. Carle pointing

l4a

out that a central part of the West-Side reorganization

was its use of supportive segregative devices such as

assigning black teachers to the schools adjacent to the

four blacks-only schools (A.1011-12), accompanied by the

creation of optional attendance zones (A.1014-15) ; second,

by concluding that “[t]he events of 25 years ago, I sus-

pect, would not affect any student in schocl at the mo-

ment and might not even have affected his parents”

(A.1013) (statement of the court)*; and third, by re-

fusing to allow Dr. Carle to answer the question, “In

light of those two factors [assignment of black teachers

and creation of optional zones], Dr. Carle, do you have a

view as to the intention of the Board insofar as whether

or not there was an intention to establish these [schools

adjacent to the blacks-only schools] as the next black

schools in Dayton” (A.1016). The court refused to allow

the testimony (A.1016-17). Thus, the court relies on the

testimony of a witness to support a conclusion drawn by

the court but with respect to which the court would not

allow the witness to testify! The court made other com-

parable errors in drawing its conclusions about the West-

Side reorganization.** Its treatment of this issue, insofar

as inconsistent with the facts and conclusions we have set

out above, should be disregarded as clearly erroneous. ]

* The court’s quoted view seems to be that the only harm in segre-

gation occurs at the time of initial imposition, and that subsequent

generations have nothing to complain about—a view that is fore-

closed by Brown.

** For further example, the court cited Dr. Gordon Foster’s testi-

mony for the proposition that the West-Side reorganization was

intended as an “experiment in integration .. . to enable black stu-

dents to go to an integrated rather than an all-black school if they

chose to do so.” Pet. App. 155a, citing A.625. This is not an

accurate representation of Dr. Foster’s testimony, but rather a

highly selective reading which distorts both the sum and the sub-

stance of the record. For the twenty-five previous pages of tran-

script, Dr. Foster had detailed, as summarized above (see note 11

and p. 12a, supra), the large numbers and variety of segregative de-

l5a

vices utilized by the Dayton Board in the West-Side reorganization.

At A.624 Dr. Foster concluded this testimony as follows:

the effect was clearly one of locking in and freezing this con-

figuration including these schools into an all-black situation.

There can be no mistake as to the objective meaning of this

twenty-five pages of testimony, and of Dr. Foster’s conclusion, or the

objective fact that the Board’s actions in this reorganization were

intentionally segregative, whatever the Board’s stated intent.

Thereafter, at A.624-29, the court engaged Dr. Foster in a col-

loquy ranging from “tipping points” to the “alternatives” to the

West-Side reorganization available to the Board. At several points

in this colloquy, it is clear that Judge Rubin is not satisfied, for

example, when Dr. Foster debunks “tipping points” (A.626-29), or

suggests limited actions which the Board might have taken to show

that its actual purpose was at least racial nondiscrimination, rather

than segregation, in a difficult situation of a school district with a

prior history of segregation and a community undergoing racial

change. A.626. But what apparently peeved the district judge the

most was Dr. Foster’s evaluation of the ineffectiveness of even

such limited alternatives (which the Board, of course, eschewed in

its segregative reorganization) in the context of a dual school sys-

tem (A. 625, 628-29) :

The problem, as I [perhaps the most experienced and respected

professional with respect to accomplishing actual school desegre-

gation in the country] see it in this type of situation, is essen-

tially one of diddling around piecemeal with desegregation in-

stead of attacking the problem wholesale and making clear

that you are desegregating the entire system.

* mu * *

I think the only secure solution and the only safe solution is

to dissestablish a dual structure in the entire system so that

whites [who may wish to] flee . . . meet the same situation

wherever they go.

Viewing Dr. Foster’s testimony as a whole, therefore, the district

court engaged in much more than just a clearly erroneous selective

reading of the record in suggesting that this expert believed the

Board’s purpose was integrative rather than segregative; it is also

a gross misrepresentation, both of Dr. Foster’s opinion and the un-

controverted, objective evidence.

The staff aspect of state-imposed segregation—i.e.,

assignments of Board employees on a racial basis “pur-

suant to an explicit segregation policy of the Board,”

16a

Brinkman I, 503 F.2d at 697—also underwent a slight

change in policy. Prior to this time, as previously noted,

the Board would not allow black teachers to teach white

children under any circumstances; black teachers were

assigned only to all-black schools, and white teachers were

assigned only to white and “mixed” schools. Accordingly,

in the 1951-52 school year, the Board substituted a

new, but equally demeaning, faculty assignment policy

(S.Ct.A.481 (PX 21)):

The school administration will make every effort to

introduce some white teachers in schools in negro

[sic] areas that are now staffed by negroes [sic],

but it will not attempt to force white teachers,

against their will, into these positions.

The administration will continue to introduce negro

[sic] teachers, gradually, into schools having mixed

or white populations when there is evidence that such

communities are ready to accept negro [sic] teachers.

This faculty policy, incredibly, was contained in a state-

ment of the Superintendent disavowing the existence of

segregated schools in the Dayton district.” :

12.In 1954 the Superintendent made a further statement, which

included the following: “All elementary schools have definite bound-

aries and children are obliged to attend the school which serves the

area in which they reside. The policy of transfers from one school

to another was abolished two years ago when the boundaries of

several westside elementary schools were shrunken, permitting a

larger number of Negro children to attend mixed schools.” S.Ct.A.

482 (PX 28). As we have seen (see note 11, supra), however, the

elimination of free transfers was accomplished by a new device,

optional zones, which served the same purpose of allowing whites

to avoid attendance at black or substantially black schools.

The Superintendent’s 1954 statement also contains the following

(S.Ct.A.483) :

About two vears ago we announced a policy of attempting to

introduce white teachers in our schools having negro [sic]

Cctaeen eS Petes

17a

[DISTRICT COURT’S OPINION

(Pet.App. 151a-53a)

The district court correctly concluded that “until 1951

Board’s policy of hiring and assigning faculty was pur-

posefully segregative.” Pet.App. 153a. But the court

attempts to ameliorate the harsh racism of the 1951-52

policy change by characterizing it as a “policy of dynamic

gradualism” (id.) which “was substantially implemented

during the 1950’s and 1960’s.” Jd. at 152a. The policy

itself, quoted above, speaks louder and clearer than the

district court’s ameliorative efforts, which are clearly

erroneous. The court also erred in not recognizing the

Board’s faculty policies as the hallmark of the Dayton-

style dual system. (The court’s continuing errors, with

respect to post-Brown faculty-assignment practices, are

treated at pp. 18a-21la, infra.) ]

At the time of the Supreme Court’s May 17, 1954 de-

cision in Brown v. Board of Education, therefore, Dayton

school officials were operating a racially dual system of

public education. This segregation had not been imposed

by state law; indeed, it was operated in open defiance of

state law.

population. We have not been too successful in this regard and

at the present time have only 8 full or part-time teachers in

these situations. There is a reluctance on the part of white

teachers to accept assignments in westside schools and up to

the present time we have not attempted to use any pressure to

force teachers to accept such assignments. The problem of

introducing white teachers in negro [sic] schools is more diffi-

cult than the problem of introducing negro [sic] teachers into

white situations. There are several all-white schools which in

the near future will be ready to receive a negro [sic] teacher.

As we shall also show (see pp. 18a-2la, infra), this race-based

assignement of faculty continued for almost two more decades as

a primary device for earmarking schools as intended for blacks or

whites.

18a

[DISTRICT COURT’S OPINION:

The district court did not specifically speak to this con-

cluding point, but obviously would have reached the

clearly erroneous conclusion that the Board was not

operating a basically dual system. The facts and their

meaning are as we have described them. ]

Continuation of the Dual System After Brown

1. Faculty and Staff Assignments

The Board continued to make facuity and staff assign-

ments in accordance with the racially discriminatory

policy announced in 1951 (see pp. 16a-17a, supra) at least

through the 1970-71 school year. A.901-03, 909-12, 1006-

9, 1010-11, 1060-61, 1099-1112. For example, in the 1968-

69 school year, the Board assigned 633 (85%) of the

black teachers in the Dayton system to schools 90% or

more black in their pupil racial compositions, but only

172 (9%) of the white teachers to such schools. The

Board assigned only 72 (9%) of the black teachers to

schools which were 90% or more white, but 1,299 (70%)

of the white teachers were assigned to such schools.

S.Ct.A.3820 (PX 5D).

Prior to the 1968-68 school year, the Board maintained

teacher applications on a racially separate basis. Once

teachers were hired, their records were kept on various

racial bases which were used to segregate teachers and

schools. Substitute teacher files were color-coded by race

and substitutes assigned on a racially dual basis. And

the Board restricted the hiring, transfer, and promotion

of black teachers primarily to black or “changing” schools

while white assignments or transfers to these schools

were discouraged. A.223-30, 261-66, 139-42 (PX 8),

337-53, 286-92, 362-66, 368-76, 377-84. Principals, as-

+2 te

19a

sistant principals, counselors, coaches and other clerical

and classified personnel were assigned on an even more

strictly segregated basis. A.540-41; S.Ct.A.486 (PX 42).

Thus, from at least 1912 through 1968 the assignment of

personnel in the Dayton school system fit perfectly the

classical mold of state-imposed segregation: such assign-

ments mirrored the racial composition of student bodies

at new schools and additions,** and continued to corre-

spond to the racial identity of those schools already all-

black or in transition."* White teachers similarly were

assigned in disproportionate numbers to the predomi-

nantly white schools.** It was therefore possible at any

13 The Board assigned faculty members to these new schools and

additions so as to reflect the pupil racial composition at opening,

thereby tailoring them as “black” or “white” in accordance with the

Board’s policy. A.644, 800: S.Ct.A.316-17 (PX 4).

14In the 1963-64 school year, for example, the Board assigned 40

of 43 new full-time black teachers to schools more than 80% black

in their racial compositions. S.Ct.A.319 (PX 5A). Although some-

what less obvious, this practice was equally effective in identifying

the formerly mixed schools as changing cr black by assigning more

than token black faculty only to these schools and thereafter assign-

ing increasing numbers of black teachers only to these schools.

A.139-42 (PX 3), 234-46, 407. As articulated by Mrs. Greer, a long-

time black student, teacher and administrator in the system (see

note 4, supra, p. 4a), the assignment of staff to go along with

the neighborhood change was the kind of thing that gave the

impression of the schools being designed to be black, because black

staff increased as black student bodies increased.” A.271. As Board

member Leo Lucas put it, race-oriented faculty-assignment practices

“manifest the intent of the Board” and have a “spill-over” effect on

all aspects of school ope. ution. A.1061.

15 Thus, for example, in the 1968-69 school year, the Board con-

tinued to assign new teachers and transfers according to the fol-

lowing segregation practice (S.Ct.A.319 (PX 5A)):

Schools with Schools with

predominantly predominantly

white student black student

enrollment enrollment

Black Teachers 40 95

White Teachers 223 64

[Footnote continued }

20a

time during this period to identify a “black” school or a

“white” school anywhere in the Dayton system without

reference to the racial composition of pupils.

In November of 1968 the United States Department of

Health, Education and Welfare [hereinafter, “HEW’”’]

began an investigation of the Dayton public schools to

determine whether official policies and practices with re-

spect to race were in compliance with Title VI of the

Civil Rights Act of 1964. By letter of March 17, 1969,

the acting Director for the Office of Civil Rights of HEW

notified the Dayton Superintendent (and the chief state

school officer) that “[a]n analysis of the data obtained

during the [compliance] review establishes that your dis-

trict pursues a policy of racially motivated assignment of

teachers and other professional staff.” S.Ct.A.415 (PX

11A). Following this determination the Dayton Board

agreed with HEW to desegregate all staff so “that each

school staff throughout the district will have a racial

composition that reflects the total staff of the district as

a whole” (S.Ct.A.416 (PX 11F)), in aceodance with the

principles set forth in United States v. Montgomery

County Board of Education, 395 U.S. 225 (1969). At

that time, the Dayton professional staff was approxi-

mately 70% white and 30% black; the Board-HEW

agreement required complete staff desegregation by Sep-

tember 1971. S.Ct.A.417. Nevertheless, by the time of

trial in November 1972, it was still possible to identify -

many schools as “black schools” or “white schools” solely

by the racial pattern of staff assignments.”

15 [Continued]

As the former Superintendent testified, “it is obvious in terms

of the new hires and transfers for that year the predominating

pattern was the assignment of black teachers to black schools and

white teachers to white schools.” A.540.

16 The manner in which the Board’s assignment of its professional

staff at the high school level, for example, still served to racially

identify schools, although considerably less dramatically than prior

to the 1971-72 school year, is demonstrated by a table set out in

UG Sede Atiecs uw ditucs -—

2la

No non-racial explanation for the Board’s long history

of assigning faculty and staff on a racial basis is possi-

ble.’ Nor can the impact of this manifestation of state-

imposed segregation on student assignment patterns be

minimized. While that effect is not precisely measurable,

it is so profound that it could not have been eliminated

merely by desegregating faculties and staffs.’* Such racial

assignment of staff is also “strong evidence that racial

considerations have been permitted to influence the de-

termination of school policies and practices... .” Kelley

v. Guinn, 456 F.2d 100, 107 (9th Cir. 1972), cert. denied,

413 U.S. 919 (1973).

[DISTRICT COURT’S OPINION

(Pet.App. 151a-54a)

The district court conceded that ‘remnants of the old

[explicitly racial] policy [of assigning black teachers only

Brinkman I, 503 F.2d at 698. Moreover, classified personne! (e.g.,

secretaries, clerks, custodians and cafeteria workers) continued to

be assigned on a racially segregated basis. A.541.

17 School officials, of course, had absolute control over the place-

ment of their employees. Consequently, the Board’s historic race-

oriented assignments of faculty members intentionally earmarked

schools as “black” or ‘‘white.” A.642-43.

18 Dr. Robert L. Green, Dean of the Urban College and Professor

of Educational Psychology at Michigan State University, described

how such faculty-assignment practice “facilitates the pattern of

segregation” (A.246) in these terms (A.234):

When there has been historical practice of placing black teach-

ers in schools specified as being essentially black schools and

white teachers in schools that are identified or specified as

being essentially white schools, even though faculty desegrega-

tion occurs, be it on a voluntary basis or under court order,

the effect remains that school is yet perceived as being a black

school or white school, especially if at this point in time the

pupil composition of those schools are essentially uni-racial or

predominantly black or white.