Petition — Board of Education of Jefferson County v. Haycraft

' urt, UL &

FILED

JAN 18 1979

MICHAEL -RODAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No.

78-1131

BOARD OF EDUCATION OF JEFFERSON

COUNTY, KENTUCKY and

ERNEST C. GRAYSON, Superintendent - Petitioners

versas

JOHN E. HAYCRAFT, Et Al. - - Respondents

(Addition Respondents Inside Cover)

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOHN A. FULTON

WILL H. FULTON

2510 First National Tower

Louisville, Kentucky 40202

Counsel for Petitioners, Board of

Education of Jefferson County,

Kentucky, and Ernest C. Gray-

son, Superintendent

WESTERFIELD-BONTE CO., 619 W. KENTUCKY—P.O. BOX 3251, LOUISVILLE, KY.

Additional Respondents:

Lyman Johnson, Richard Miller, Aaron Howard, John R.

Hughes, Theresa Black, John Schmidt, Earl Alluisi,

American Federation of Teachers, Louisville and Jeffer-

son County Federation of Teachers, Local 672, Newburg

Area Council, Inc., and Kentucky Human Relations

Commission

PAGE

PU Pica b eve wi veces cccccccccuns iii-iv

Petition for Writ of Certiorari.................... 1

Opinions and Orders Below....................005. 1- 2

eee 3

Statement of Questions Presented.................. 3

Constitutional Provision Involved.................. 4

Statement of the Case............... cc cece ences 4- 8

Reasons for Granting the Writ................... 9-24

I. The Method Used by the Court of Appeals to

Determine the Existence of a Violation is in

Conflict With Washington v. Davis and Dayton.11-12

II. Where No Finding of a Systemwide Incremental

Effect on Racial Distribution Has Been Made,

a Systemwide Remedy, Particularly for Very

Young Children, Cannot be Imposed Under This

Court’s Mandate in Dayton..............0005 13-16

III. Busing First Grade Children From 30 to 75

Minutes When First Grades are Presently Sub-

stantially Desegregated Raises Racial Balance

to the Level of a Substantive Constitutional

Right Contrary to Swamn................005: 16-20

IV. The Court of Appeals Has Disregarded the Self-

Limiting Nature of Busing Described in Swann

By Requiring Cross-District Transportation

That “Would Significantly Jeopardize the

ee dle 20-22

V. To Require an Additional Remedy Without

Reversing as Clearly Erroneous the Finding

*Findings of Fact and Conclusions of Law, Separate Appen-

dix, p. 14.

ii

PAGE

That Such Remedy Would Adversely Affect

Children Disregards the Proper Allocation of

Judicial Functions Required in Swann and

Dayton viccvccccdvvessecccsvceseecsseves 23-24

| PPT TVPTIPTTTLER EC 25-26

Certificate of Bervicd...........c cece ceeccccceeees 27

DERI. 6 oo dvsccc(uavesnccveocectadeccecesve 29-31

TABLE OF AUTHORITIES

Federal Cases: PAGE

Arlington Heights v. Metropolitan Housing Dev.

Corg., GP U.. &, BG (1GTT) os icsNiveesesveunvin 9

Austin Independent School Dist. v. United States,

429 U. S. 990, 991 (1976) (Powell, J., concur-

WEES oi cd sa bee nubebese eee ineieae ed eens 9, 12, 22

Brinkman v. Gilligan (Dayton I), 503 F. 2d 684 (6th

BENS BOEEES wba Kes iS avade surekel sabe eienced sees 13, 15

Brinkman v. Gilligan (Dayton II), 518 F. 2d 853

CORR AE, GRO) sion binv eid vae/edank eiebasteeend 13, 15

Brinkman v. Gilligan (Dayton III), 539 F. 2a 1084

(6th Cir. 1976), vac. and remanded, 433 U.S. 406

6 Ee Pea ree Tee rere e Porn 12, 15, 25

Brinkman vy. Gilligan (Dayton IV), 583 F. 2d 243

(6th Cir. 1978), stay denied, Stewart, Cir. J., No.

A-212, U.S. (1978), 99 S. Ct. 27, stay

denied, Rehnquist, J., No. A-212, _.. U. S.

—_— (1978), 99 S. Ct. 28, cert. granted,

U.S, —— (1979), 47 U.S.L.W. 3463 (1-8-79)...10, 12,

15, 16, 25, 26

Brown v. Allen, 344 U.S. 443 (1953). ...........4. 15

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

CE EE ir do ednwdel » Vas b0cnehawes ds kskaes 4

Columbus Board of Education v. Penick, __. U.. 8.

—__.. (1978), 99 S. Ct. 24, No. A-134, Rehnquist,

, ee rete CrP ey rere 9, 10, 25

Cunningham v. Grayson, 541 F. 2d 538 (6th Cir.

1976), cert. den, 429 U. S. 1074 (1977), pet. reh.

den., 430 U. S. 941 (1977), motion to file second

pet. reh. den., U.S. (1977), 98 S. Ct.

Ses = ree 2, 12, 14, 15, 16, 22, 25

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

. of). eee 9, 10, 12, 13, 14, 15, 21, 24, 25

Green v. County School Board, 391 U.S. 430 (1968). 22

Hanover Shoe, Inc. v. United Shoe Machinery Corp.,

392 U. S. 481 (1968).......... jini suviabeties 15

iv

Federal Cases: (Cont’d)

Haycraft v. Bd. of Ed. of Jeff. Co., Ky., 585 F. 2d

ee | Benny res,” 2, 6, 8, 15, 16,

18, 19, 20, 21, 22, 24, 25

Hollenbach v. Haycraft, cert. den., ___ U. 8S. ~~

PAGE

eo OR Re a enor eae oe 12, 15

Hughes Tool Company v. Trans World Airlines,

ee eS Oe) ny erry oP 15

Keyes v. School District No. 1, Denver, Colorado,

SAS: UE FOR Clos hathassvsouipcbadee saa 14

Maryland v. Baltimore Radio Show, 338 U. 8S. 912

(ZEIGE) 6:0 p bis b0h 06 hha saedne ee eesaeeanee 15

Mercer v. Theriot, 377 U. S. 152 (1964).......... 15

Milliken v. Bradley (Milliken I), 418 U. S. 717

COT OD 's <0 50a 00.0.0 p0b be GN Wien aes eos ae 2, 10, 20

Newburg Area Council v. Bd. of Ed. of Jeff. Co.,

Ky., 489 F. 2d 925 (6th Cir. 1973), vac. and re-

manded at 418 U. S. 918 (1974) for reconsidera-

tion in light of Milliken v. Bradley, 418 U. 8. 717

(1974) (Milliken I), opinion reinstated, 510 F.

2d 1358 (6th Cir. 1974), cert. den., 421 U. S. 931

CUTIE dit we e5b-nccia An oreo ocean 2, 4, 5, 6, 8, 11, 24

Newburg Area Council v. Gordon, 521 F. 2d 578

(0th Cle. OTE 63 oc si Hae teiedy eee ees 2

Pasadena City Board of Education v. Spangler,

457 U..'B. Gb. GA ia cine eh ee PRs 17

Penick v. Columbus Bd. of Ed., 583 F. 2d 787 (6th

Cir. 1978), stay granted, Columbus, supra, 99

S. Ct. 24, cert. granted, U. S. —— (1979),

47 U.S.L.W. 3463 (1-8-79).........00eee 10, 12, 15, 25

Spencer v. Kugler, 404 U. S. 1027 (1972)......... 10, 20

Swann v. Charlotte-Mecklenburg Board of Educa-

tion, 402 U. S. 1 (1971)...... 8, 9, 10, 11, 20, 21, 22, 24

United States v. Carver, 260 U. S. 482 (1923)...... 15

Washington v. Davis, 426 U. S. 229 (1976)..... 9, 14, 25

Constitutional Provisions:

U. S. Constitution, Amendment XIV, §1........ 4, 11,12

United States Statute:

Judicial Code, 28 U.S.C. 1254(1)........c cece eee 3

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No.

Boarp OF EDUCATION OF JEFFERSON

County, KENTUCKY and

Ernest C, Grayson, Superintendent - Petitioners

Vv.

JOHN E. HAycrart, Et Al. - - - Respondents

PETITION FOk WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioners, Board of Education of Jefferson County,

Kentucky, and its Superintendent, Ernest C. Gray-

son, respectfully pray that a writ of certiorari issue to

review the decision rendered in this case on October 20,

1978 by the United States Court of Appeals for the

Sixth Cireuit, aud the decision rendered by the Court

of Appeals on August 23, 1976.

OPINIONS AND ORDERS BELOW

The Courty of Appeals on December 28, 1973, re-

versed the District Court’s dismissal of these consoli-

dated desegregation actions, This Court vacated the

2

decision of the Sixth Circuit. Newburg Area Council

v. Board of Education of Jefferson County, Ky., 489

F. 2d 925 (6th Cir. 1973), vacated and remanded at

418 U. 8. 918 (1974) for reconsideration in light of

Milliken v. Bradley, 418 U. 8. 717 (1974) (Milliken I).

Six weeks after the entry of an order of mandamus

by the Court of Appeals, Newburg Area Council v.

Gordon, 521 F. 2d 578 (6th Cir. 1975), the District

Court entered a plan of desegregation on July 30, 1975.

That unreported opinion is contained in the separate

Appendix to this Petition at pp. 31-71.

The District Court, by its Order of April 19, 1977,

exempted certain first grade children from that aspect

of the overall plan of desegregation which requires

reassignment and cross-district transportation during

certain years in school. The Order and Findings of

Fact of the District Court are not reported. They are

contained in the separate Appendix to this Petition at

pp. 9, 10-16.

The Opinion of the United States Court of Appeals

for the Sixth Circuit to which this Petition is directed

with respect to the first grade issue was decided and

filed on Oetber 20, 1978 and is reported as Haycraft

v. Board af Education of Jefferson County, Ky., 585

F. 2d 803 (6th Cir. 1978). The decision to which this

petition is directed commanding systemwide transpor-

tation is reported as Cunningham v. Grayson, 541 F. 2d

538 (6th Cir. 1976),

3

JURISDICTION

The Judgment of the United States Court of Ap-

peals for the Sixth Circuit was entered on October 20,

1978. This Petition for Writ of Certiorari directed

to such Judgment was filed within nintey days thereof.

This Court’s jurisdiction is invoked under 28 U.S.C.

1254(1).

STATEMENT OF QUESTIONS PRESENTED

A. Where a Comprehensive Plan of Desegregation

Substantially Desegregates First Grade Classes,

Can the Court of Appeals Require an Additional

Remedy of Systemwide Busing to Increase the

Degree of Racial Balance in Such Classes?

B. Can the Court of Appeals Impose a Systemwide

Remedy for First Graders or Other School Chil-

dren in a Neighborhood School System in the

Absence of a Finding of Any Incremental Impact

on Racial Distribution Where the District Court

Specifically Found that the Neighborhood Schools

Merely Reflected the Racial Composition of the

Geographic Areas They Served?

C. When the Findings of the District Court That Ad-

ditional Cross-District Transportation Would Ad-

versely Affect the Educational Process Are Not

Reversed as Clearly Erroneous, Can the Court of

Appeals Nevertheless Require the Imposition of

Such a Remedy?

4

CONSTITUTIONAL PROVISION INVOLVED

The Constitutional provision relevant to the issues

in this case is Amendment XIV, Sec. 1, United States

Constitution :

‘*. . . nor shall any such state . . . deny to

any person within its jurisdiction the equal pro-

tection of the law.’’

STATEMENT OF THE CASE

This consolidated desegregation case involves the

metropolitan school system operated by the Board of

Education of Jefferson County, Kentucky, one of the

largest public school systems in the country. When this

matter was first before the United States Court of

Appeals for the Sixth Circuit in Newburg Area Council

v. Board of Education, supra, the Court of Appeals

reversed the determination by the District Court that

the school systems then serving the present metropoli-

tan area were unitary.

The Court of Appeals based its determination that

the school systems were not unitary solely on the fact

that numerous schools in both systems were ‘‘racially

identifiable’’ in the context of pre-Brown de jure racial

segregation. 489 F. 2d 925, 928. Brown v. Board of

Education of Topeka I, 347 U.S. 483 (1954).

In its dismissal of the consolidated desegregation

actions the District Court made a specific finding that

the racial compositions of the neighborhood schools

operated by the systems merely reflected that degree

5

of racial isolation found in the geographic areas which

they served. The Court of Appeals did not reverse this

finding in making its determination of the nature of

the violation, as it simply held that the mere existence

of racially identifiable schools in and of itself consti-

tuted a violation in school systems with a history of

mandatory segregation by law, even though such segre-

gation has long since ceased.

A large number of racially identifiable schools in

a school district that formerly practiced segrega-

tion by law gives rise to a presumption that all

vestiges of state-imposed segregation have not been

eliminated. Newburg Area Council v. Board af

Education, supra, 489 F. 2d 925, 930.

As the Court of Appeals determined the existence

of a constitutional violation solely on the basis of the

existence of racially identifiable schools in a school

system with a history of de jure segregation, the un-

controverted fact that the racially identifiable schools

noted by the Court of Appeals simply reflected the

racial composition of the geographic areas they served

was determined to be of little consequence.

The Louisville, Kentucky metropolitan area is a

racially mixed community with rather marked geo-

graphie racial isolation in the northwest quadrant of

the metropolitan area. As the vast majority of black

youngsters living within the geographic area served by

only one of the two major school systems involved at

that time, the Court of Appeals directed the District

Court to disregard the district boundaries if those

6

boundaries impeded in any way the elimination of

‘‘racial identifiability’. Newburg Area Council v.

Board of Education, supra, 489 F, 2d 925, 932, vac. 418

U. 8. 918 (1974).

The District Court formulated a desegregation plan

which was designed to eliminate ‘‘racial identifi-

ability’’ in every school in the system. All schools in

the system were required to have a substantial white

majority. The racial composition of the entire metro-

politan area at that time was approximately 80 percent

white and 20 percent black. As the Court of Appeals

had determined that racial identifiability was to be

eliminated, the District Court required that 80 percent

of the 171 schools operated by the system reflect a racial

composition from 15 to 25 percent black youngsters.

The balance of the schools were required to have a racial

composition of no less than 124% percent and no more

than 40 percent black children. See the separate Ap-

pendix to this Petition at pages 31-71.

The primary issue involved in Haycraft v. Board

of Education, supra, was whether or not an additional

remedy must be imposed with respect to first grade

children. The original desegregation plan utilized the

tools of redistricting, graded centers, school closings

and clusters. Approximately one-third of all first

graders under that plan attend schools which were ex-

empted from the cross-district reassignment provisions

of the plan because they were sufficiently ‘‘desegre-

gated’’ by the use of the remedial tools in the plan

which did not involve clustering of schools. First grade

children in attendance at the clustered schools were to

7

be treated differently from all other youngsters at the

clustered schools in the regular program.

Under the original plan first graders in clustered

schools were to attend their neighborhood school for the

first third of the school year and for the balance of the

school year, they were to be transported to their re-

assigued school as a classroom unit in some manner not

defined by the District Court.

When it became apparent, among other things, that

the school system did not have the transportation fa-

cilities to implement the plan with respect to first

graders, the District Court on December 15, 1975 waived

the implementation of that portion of the order per-

taining to first graders in clustered schools for the bal-

ance of the school year. The District Court, however,

required the implementation of an extensive cross-cul-

tural human relations program. The District Court

later waived the implementation of the original first

grade plan for the 1976-77 school year for children in

clustered schools, ordering the continuation of the cross-

cultural human relations program.

In addition, the District Court directed that first

grade children who were retained in the first grade at

the end of the school year would nevertheless be bused

under the transportation reassignment provisions of

the plan for children attending clustered schools if they

would have been reassigned in the second grade. This

latter provision resulted in substantial desegregation

in first grades throughout the school system, even

though children in the first grade for the first time who

8

attended clustered schools are not subject to cross-dis-

trict reassignment.

In April, 1977 the District Court, on motion of the

petitioners, exempted first grade children attending

clustered schools from cross-district reassignment until

such time as a systemwide kindergarten program was

available. On May 10, 1977, the District Court found

that the time of travel and distances which would actu-

ally be involved in the cross-district transportation of

first grade pupils attending clustered schools would

‘significantly jeopardize the educational process for

such children’’. Separate Appendix, page 14.

When the Court of Appeals considered the District

Court’s Findings of Fact of May 10, 1977, in Haycraft

v. Board of Education, supra, it did not reverse as

clearly erroneous any of the findings of fact directed

to the educational impact on five and six year old chil-

dren of daily bus rides in excess of one hour, one way.

The Court of Appeals ignored the self-limiting nature

of cross-distriect busing of very young children specifi-

cally identified in Swann vy. Charlotte-Mecklenburg

Board of Education, 402 U. 8. 1, 30-31 (1971) on the

ground that the District Court’s order would impede

the total irradication of racial identifiability in first

grade classes throughout the system. Haycraft v.

Board of Education, supra, 585 F., 2d 803, 805. The

Court of Appeals had previously determined in New-

burg Area Council v. Board of Education, supra, that

the vestiges of state-imposed segregation to be elimi-

nated by the District Court were racially identifiable

schools. 489 F, 2d 925, 931.

REASONS FOR GRANTING THE WRIT

The treatment of first grade children by the deseg-

regation order, as amended, imposes a remedy which

is more than sufficient in light of the violations in-

volved. The Sixth Cireuit’s requirement that an addi-

tional remedy be imposed for first grade children

demonstrates ‘fan unduly grudging application’’ of the

principles enunciated by this Court for the determina-

tion at the outset of a constitutional violation, as well

as the principles for the proper determination of the

scope of a judicial remedy in the event a violation is

determined. Columbus Board of Education v. Penick,

— U. 8S. —— (1978), 99 S. Ct. 24, 25, No. 4-134,

J. Rehnquist, Cir. J., grant of stay.’

The Sixth Cireuit’s analysis of the remedy for chil-

dren in the first grade is clouded by its ‘‘questionable

use of legal presumptions’’ relied upon when it deter-

mined the nature of the violation and the scope of the

overall remedy in this ease. Columbus Board of Edu-

cation v. Penick, supra, 99 8, Ct. 24, 25.

When the additional remedy required for first grade

children in elustered schools is viewed in the context

of the overall plan of desegregation, it is clear that

the Court of Appeals has treated racial balance as a

substantive constitutional right in disregard of the de-

cisions of this Court. Swann, supra, 402 U, 8. 1, 24;

' 18ee also Washington v. Davis, 426 U. 8. 229, 239 (1976),

Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. 8.

252 (1977), Dayton Board of Education v. Brinkman, 433 U. 8S.

406, 417; Dayton, supra, 433 U. 8S. 406, 420, Swann, supra, 402

U.S. 1, 16. See also, Austin Independent School District v. United

States, 429 U. 8. 990, 991 (1976) (Powell, J., concurring).

10

Spencer v. Kugler, 404 U. S. 1027 (1972), Milliken I,

supra, 418 U.S. 717, 740-741.

Most significantly, the Court of Appeals’ insistence

on a pre-determined degree of racial balance completely

overlooks the repeated warnings of this Court that the

remedial tool of student transportation is by its very

nature a limited tool. Swann, supra, 402 U.S. 1, 30-31.

The requirement of an additional remedy in the ab-

sence of a reversal as clearly erroneous of the finding

that any such remedy would ‘significantly jeopardize

the educational process for such children’’ (Findings

of Fact, Separate Appendix, p. 14) disregards the de-

cisions of this Court concerning the ‘proper allocation

of functions between the district courts and the courts

of appeals within the federal judicial system’’.

Dayton, supra, 433 U. 8. 406, 409.

Certiorari must issue in this case to the Sixth Cir-

cuit because that Court ‘‘has misinterpreted the man-

date of this Court’s Dayton opinion’’, Columbus

Board of Education v. Penick, supra, 99 8, Ct, 24, 25,

A contemporaneous grant of certiorari in this case

would offer an additional opportunity for the Court to

review the Circuit Court’s undue reliance on presump-

tions in both the determination of a violation and the

fashioning of a remedy.’

*Penick v, Columbus Bd, of Ed., 583 F, 2d 787 (6th Cir, 1978),

stay granted, Columbus, supra 99° 8. Ct. 24, cert. granted,

U. 8. (1979), 47 US..W. 3463 (1-879), Dayton IV,

Brinkman v, Gilligan, 5683 F. 2d 248 (6th Cir. 1978), sta denied,

Stewart, Cir, J., No, A-212, U. 8. (1978), 99 8. Ct, 27,

stay denied, Rehnquist, J., No, A-212, _.. U. S, (1978),

99 8, Ct, 28, cert. granted, | 4 ee (1979), 47 1 47 U.S.L.W.

$463 (1 8-79),

11

I. The Method Used by the Court of Appeals to Determine

the Existence of a Violation Is in Conflict With Wash-

ington v. Davis and Dayton.

The essential question raised by the Court of Ap-

peals’ holding that first graders must be subject to

cross-district reassignment and transportation involves

the equation that the nature of the violation determines

the scope of the remedy. Swann, supra, 402 U. 8. 1, 16.

The initial determination that a violation existed was

not made in accordance with the decisions of this Court.

As a result, the determination of the need for an addi-

tional first grade remedy is inherently suspect.

The evaluation of the requirement that an additional

remedy must be imposed for first grade children ‘‘to

eliminate ‘all vestiges of state-imposed segregation’ ”’

has to start with an analysis of the method by which the

Sixth Circuit determined the existence of a constitu-

tional violation. Newburg Area Council v. Board of

Education, supra, 489 F., 2d 925, 932.

In reversing the District Court, the Court of Ap-

peals based its determination of a violation solely on

the presumption that the mere existence of ‘‘racially

identifiable’ schools in a system which had previously

practiced de jure segregation constituted a violation of

the Equal Protection Clause. Newburg Area Council

v. Board of Education, supra, 489 F. 2d 925, 930. The

appellate court used the same analysis in this case to

reach its holding of the existence of a constitutional

violation in 1973 that was not only questioned by this

12

Court in Dayton Board of Education v. Brinkman,

supra, but specifically reversed. 433 U. 8. 406, 413-14.

The presumption of a violation based solely upon

the mere existence of racially monolithic schools effee-

tively eliminates the ‘“‘State Action’’ requirement of

the Fourteenth Amendment in our urban society char-

acterized by segregated housing patterns. In Austin,

supra, Justice Powell, concurring, specifically warned

of the difficulties inherent in the fashioning of a sys-

temwide plan of desegregation based upon a violation

determined in this way. 429 U. 8. 990, 991.

For this Court to adequately review the use of pre-

sumptions by the Court of Appeals in Penick v. Co-

lumbus Bd, of Ed., supra, and Dayton IV, supra,

certiorari must issue to contemporaneously review the

Sixth Circuit’s decision in this case in Cunningham v.

Grayson. It should be noted that Mr. Justice Powell

has already suggested further consideration of Cun-

ningham in light of Dayton. Hollenbach v. Haycraft,

cert. den., _— U. S. —— (1977), 98 S. Ct. 418.

Mr. Justice PoWELL would grant certiorari, vacate

judgment and remand case to the Court of Appeals

for further consideration in light of Dayton Board

of Education v. Brinkman, 433 U.S. 406, 97 S. Ct.

2766, 53 L. Ed. 2d 851 (1977). 98S. Ct. 418.

13

II. Where No Finding of a Systemwide Incremental Effect

on Racial Distribution Has Been Made, a Systemwide

Remedy, Particularly for Very Young Children, Can-

not Be Imposed Under This Court’s Mandate in

Dayton.

In Dayton, as here, the Court of Appeals failed to

realistically address the question of the existence of

impermissible state action. There, as here, the appel-

late court relied on a presumption to prove the violation,

The presumption that one-race schools were constitu-

tionally impermissible resulted in the imposition of

sweeping systemwide plans of desegregation for both

Dayton and Louisville, although the times of travel re-

quired in Dayton were minimal compared to those in-

volved in this ease.

In Dayton, this Court recognized that the inappro-

priate use of presumptions to determine a violation of

necessity resulted in the imposition of a disproportion-

ate systemwide remedy. Thus, this Court directed the

Court of Appeals, on remand, to re-examine its rulings

in Brinkman v Gilligan, Dayton I, 503 F. 2d 684 (6th

Cir. 1974) and Brinkman vy. Gilligan, Dayton IT, 518

I’, 2d 853 (6th Cir, 1975).

The duty of both the District Court and the Court

of Appeals is a case such as this, where mandatory

segregation by law of the races in the schools has

long since ceased, is to first determine whether

there was any action in the conduct of the business

of the school board which was intended to, and did

in fact, discriminate against minority pupils, teach-

14

ers, or staff. Dayton, supra, 433 U. 8S. 406, 420,

citing, Washington v. Davis, supra, (Kmphasis

added).

For the additional guidance of the lower courts in

fashioning the scope of a desegregation remedy, this

Court directed the Court of Appeals in Dayton, not only

to reevaluate its determination of the existence of a

constitutional violation, but also to reexamine the scope

of the remedy imposed.

. . The District Court in the first instance, sub-

ject to review by the Court of Appeals, must de-

termine how much incremental segregative effect

these violations had on the racial distribution of

the Dayton school population as presently consti-

tuted, when that distribution is compared to what

it would have been in the absence of such consti-

tutional violations. Dayton, supra, 433 U. 8S. 406,

420 (Emphasis added).

This specific inquiry is required to assist the courts

in the fashioning of an overall remedy. ‘‘The remedy

must be designed to redress that difference [in racial

distribution] and only if there has been a systemwide

impact may there be a systemwide remedy.’’ Dayton,

supra, 433 U. 8. 406, 420 (Emphasis added) citing

Keyes v. School District, No. 1, Denver, Colorado,

413 U. 8. 189, 213 (1973).

The District Court fashioned a systemwide desegre-

gation remedy resulting in strict racial balance in every

school in the metropolitan Louisville area (approved in

Cunningham vy. Grayson) in the presence of the same

15

‘*nuances’’ imposed by the Court of Appeals in Dayton

I, Dayton II, and Dayton III, Brinkman vy. Gilligan,

539 F, 2d 1084 (6th Cir. 1976). 483 U.S. 406, 418. It is

equally understandable that the District Court here has

produced a district-wide pian of desegregation, the only

hallmark of which is its imposition of strict racial bal-

ance in every school in the system. As suggested by

Justice Powell previously, the Court of Appeals’ re-

quirement in this case that racial balance be imposed

on a systemwide basis must be re-examined in light of

the mandate of this Court in Dayton requiring specific

proof of an incremental impact on racial imbalance in

housing patterns as a strict prerequisite to the imposi-

tion of a systemwide remedy. Hollenbach, supra, 97

S. Ct. 418; Dayton, supra, 433 U. 8. 406, 420. The

power of this Court to review Cunningham v. Grayson,

supra, in the context of the Court of Appeals’ recent

decision in Haycraft v. Board of Education of Jefferson

County, Ky. is unquestioned.’

The confusion resulting from the Sixth Circuit’s

interpretation of the mandate of this Court in Dayton

(resulting in the grant by this Court of certiorari in

both Dayton IV, and Penick v. Columbus Bd. of Ed.),

demands a contemporaneous grant of certiorari here.

In reaching its recent decision in this matter in Hay-

craft v. Bd, of Ed., the Sixth Circuit has specifically

relied on both of the opinions in which certiorari was

. 8United States v. Carver, 260 U. 8. 482, 480 (1928); Mary-

land v. Baltimore Radio Show, 338 U.S. 912, 917 (1950) ; Brown v.

Allen, 344 U. 8. 443, 492 (1953) ; Mercer v. Theriot, 377 U. 8. 152

(1964) ; Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392

U. 8S. 481, 488, Fn. 6 (1968); Hughes Tool Company v. Trans

World Airlines, Inc., 409 U. 8. 363, 364, Fn. 1 (1973).

16

recently granted by this Court. 585 F. 2d 803, 805.

Accordingly, this Court should consolidate these mat-

ters for a hearing on the merits, or hold this matter in

abeyance pending review of Dayton IV.

III. Busing First Grade Children From 30 to 75 Minutes

When First Grades Are Presently Substantially De-

segregated Raises Racial Balance to the Level of a

Substantive Constitutional Right Contrary to Swann.

When the requirement of additional cross-district

transportation of first grade children is reviewed in the

context of the systemwide plan of desegregation pres-

ently under implementation in the Louisville metro-

politan area, it is clear that the Court of Appeals has

impermissibly raised a pre-conceived degree of racial

balance to the level of a substantive constitutional right.

The systemwide plan of desegregation fashioned by

the District Court was approved in Cunningham v.

Grayson, That plan was based on a systemwide racial

composition of 80 percent white youngsters and 20 per-

cent black youngsters. The plan required every school

in the system to have a substantial white majority,

limiting the acceptable range of racial composition to

12% to 40 percent black children.

Although that range was set, fully 80 percent of the

schools in the system were required to have a racial

composition within 15 percent to 25 percent, even

though the undisputed evidence establishes that very

severe geographical racial isolation is present in the

Louisville metropolitan geographic area. Separate

Appendix, pp. 31-71.

17

When the District Court remanded this matter

from its active docket, the racial composition of the

school system had risen from approximately 22 percent

to nearly 30 percent black youngsters. Even though

this significant demographic change had occurred, only

a handful of the schools reflected pupil racial composi-

tions which were not within the mandatory ‘‘guide-

lines’’ for racial composition. In remanding this matter

from its active docket, the District Court indicated that

it found no proof whatsoever that the racial composi-

tion of those schools lying outside its ‘‘guidelines’’ was

affected in any way by a policy or action of the school

system or its administration, citing in support of its

remand Pasadena City Board of Education v. Spangler,

427 U.S. 424 (1976). No appeal was taken from the

remand order.

The Addendum at the end of this Petition lists the

present elementary school clusters in the school system.

Each cluster shows the racial composition of the first

grade and in addition, the racial composition of the

balance of each school. An asterisk has been placed

next to the racial composition of each clustered school

which, at the present time, without the additional

remedy required by the Court of Appeals is within the

guidelines for racial composition mandated in the orig-

inal desegregation order in its first grade classes. Over

half of the clustered schools have first grades which

at the present time are within 10 to 40 percent black in

pupil racial composition.

Virtually all of the clustered schools are located in

neighborhood school districts which are monolithic in

18

racial composition. The first school listed in each

cluster serves a geographic area which, in each instance

is in excess of 95 percent black youngsters in racial

composition. All other schools in each cluster serve

neighborhood geographic area which are in each in-

stance from 90 to 100 percent white in racial com-

position.

The District Court’s exemption from cross-district

transportation only applies to those children in the

first grade for the first time. Prior to the start of the

second school year of busing the District Court, in con-

junction with its limited exemption of first grades,

required that all those first graders who were retained

in the first grade each year would be required to par-

ticipate in cross-district reassignment and transporta-

tion if they would have been bused in the second grade

had they not been retained. The District Court also

ordered that any first grade child wishing to make a

voluntary majority-to-minority transfer in the first

grade may do so at the school system’s expense.

Consequently, instead of leaving first graders in the

system ‘‘without redress’’ (Haycraft, supra, 585 F, 2d

803, 805), the limited exemption of first graders from

cross-district busing by the district court in conjunc-

tion with those other orders of the District Court re-

lating to first grade children has resulted in nearly half

of all first grades in clustered schools falling within

the strict racial guidelines of the court’s overall de-

segregation plan.

Only seven out of the 70 schools in clusters have

first grades with less than five percent of the minority

19

race. Six of those seven schools are former predomi-

nantly white schools to which access is guaranteed by

the majority-to-minority transfer provision of the de-

segregation plan.

The primary concern of the Court of Appeals in

Haycraft v. Board of Education, supra, apparently

stems from its determination that the district court’s

exemption of first grade students in clustered schools

from cross-district transportation would leave them

without any redress for the violation of their constitu-

tional rights.

Although a federal district court has broad discre-

tionary authority in exercising its equitable powers

in formulating a remedy for violations of constitu-

tional rights in a school desegregation case, cer-

tainly a district court would be abusing its au-

thority by not ordering any remedy at all. Nor

may a district court order a remedy of limited

scope which leaves many who have suffered vio-

lations of their constitutional rights without re-

dress. To exempt first grade students from busing

would leave vestiges of segregation intact contrary

to this Court’s mandate. 585 F. 2d 803, 805.

The requirement by the Sixth Circuit that first

graders without prior formal educational experience

be bused a minimum of 30 minutes one way (up to one

hour and fifteen minutes one way) where first grade

classes are already substantially desegregated without

such busing, conclusively demonstrates the Court of

Appeals’ elevation of racial balance, per se, to the level

20

of a substantive constitutional right in disregard of

the decisions of this Court.

If we were to read the holding of the District

Court to require, as a matter of substantive con-

stitutional right, any particular degree of racial

balance or mixing, that approch would be dis-

approved and we would be obligated to reverse.

The constitutional command to desegregate schools

does not mean that every school in every commun-

nity must always reflect the racial composition of

the school system as a whole. Swann, supra, 402

U.S. 1, 24.

Here the Court of Appeals has even gone one step

further and required a particular degree of racial bal-

ance as a substantive constitutional right in every

grade within a school system. Contra, Spencer v. Kug-

ler, supra, Milliken I, supra. Certiorari should issue

from this Court to review the decision of the Court of

Appeals in Haycraft v. Board of Education, to recon-

cile the decision in this case with the principles enumer-

ated in this Court’s leading decision on the ramifica-

tions of the use of busing as a remedial tool. Swann,

supra, 402 .U. 8. 1, 24.

IV. The Court of Appeals Has Disregarded the Self-Limit-

ing Nature of Busing Described in Swann by Requir-

ing Cross-District Transportation That Would “Sig-

nificantly Jeopardize the Educational Process.”

This Court has repeatedly emphasized the authority

of the district courts to grant appropriate relief when

a constitutional violation is properly demonstrated,

21

See cases cited at Dayton, supra, 433 U. S. 406, 410.

Nevertheless, when this Court first recognized the

viability of student reassignment and transportation as

a remedial tool in school desegregation cases, it clearly

recognized the self-limiting nature of the remedy.

An objection to transportation of students may

have validity when the time or distance of travel

is so great as to either risk the health of the chil-

dren or significantly impinge on the educational

process . . . It hardly needs stating that the

limits on time of travel will vary with many fae-

tors, bus probably with none more than the age of

the students. Swann, supra, 402 U.S. 1, 30-31.

Here, the additional remedy for first grade children

will require in each instance one way bus trips of from

somewhat less than thirty minutes to in excess of one

hour and ten minutes. These times, of course, are based

on normal traffic conditions and would substantially

increase in the event of rainy or snowy weather or

unusual traffic conditions created by some other cause

(Depo. William Blankenbaker, Separate Appendix,

pp. 17-30). Over one-third of the children involved

would be required to make one way trips of at least

45 minutes. Some children would have to make one

way trips in excess of one hour and ten minutes.

To insure the elimination of the preceived violation

of “racial identifiability,”’ the Court of Appeals, how-

ever, has chosen to ignore these practical limitations on

the remedial tool of cross-district busing. Haycraft v.

Board of Education, supra, 585 F. 2d 803, 804, 805-806,

22

The Court of Appeals has required that a degree of

racial balance be imposed for first graders. Certiorari

should issue to the Court of Appeals’ decision in Hay-

craft v. Board of Education, supra, for that reason.

Certiorari should also issue, however, because the Sixth

Circuit’s insistence on racial balance reflécts an over-

reliance by the circuit courts of appeals on decisions

of this Court involving small school systems of very

limited geographic size such as Green v. County School

Board, 391 U. 8. 480 (1968).

Green involved a school system with only two

schools. The school system operated by the Petitioners

has over 150 schools with a total pupil population in

excess of 100,000 children. The over-reliance on Green

is clearly evident here. Indeed, Green is cited as one

of the primary authorities both in Cunningham vy.

Grayson and in the more recent decision of Haycraft v.

Board of Education.

The undue reliance on Green by the lower courts

has already been severely criticized. Austin, supra,

429 U. S. 990, 992, fn. 2. This record reveals an addi-

tional misapplication of this Court’s decisions in Green

and Swann in the context of a large metropolitan

school system, and certiorari should issue to correct the

confusion in the lower courts caused by such misappli-

cation of the leading decisions of this Court.

—-

23

V. To Require an Additional Remedy Without Reversing

As Clearly Erroneous the Finding That Such Remedy

Would Adversely Affect Children Disregards the

Proper Allocation of Judicial Functions Required in

Swann and Dayton.

When the District Court first dismissed the consoli-

dated desegregation actions, it made a specific finding

of fact that the neighborhood schools merely reflected

the racial compositions of the geographic areas served

by those schools. The District Court appropriately

relied heavily on that determination in its dismissal of

the desegregation actions.

When the District Court considered the necessity

of requiring first grade children attending clustered

schools to participate in cross-district reassignment

and transportation, it made numerous specific findings

of fact concerning the impact of such transportation

on those young children.

The additional time of travel involved in such

cross-district transportation, of first grade pupils

and the actual transportation itself would add an

additional risk of failure for what is already a

very high risk population educationally. Such

transportation involves both extended time and

distance of travel which this Court finds would

significantly jeopardize the educational process

for such children of tender years who have not had

- the benefit of prior formal educational experience.

Findings of Fact and Conclusions of Law, Sep-

arate Appendix, p. 14. (Emphasis by the Court.)

24

When the Court of Appeals reversed the District

Court’s dismissal of the Complaints in these consoli-

dated desegregation actions, it ordered a systemwide

remedy. Newburg Area Council vy. Board of Educa-

tion, 489 F’, 2d 925, 930. The Court of Appeals did not,

however, reverse as clearly erroneous the finding of

fact that the schools merely reflected the racial com-

positions of the neighborhoods they served.

The Court of Appeals’ reversal of the District

Court’s continued limited exemption of first grade chil-

dren from cross-district transportation in Haycraft v.

Board of Education failed to reverse as clearly erro-

neous the finding by the District Court that such a

remedy would adversely affect the educational process

for the children involved. 585 EF’. 2d 803, 806. Under-

standably, Judge Engle, dissenting, respectfully ob-

jected to the majority’s substitution of its own views

for the ‘“‘informed judgment of the district court.’’

Haycraft v. Board of Education, supra, 585 F, 2d

803, 807.

As in Dayton, the Court of Appeals in this case has

failed to set aside as clearly erroneous those findings

of fact by the lower court which are crucial to the

proper appellate determination of these cases. Certio-

rari should issue to review the decisions of the Sixth

Circuit in light of the substantial issues raised ‘‘as to

the proper allocation of functions between the district

courts and the courts of appeals within the federal

judicial system.’’ Dayton, supra, 433 U. S. 406, 409,

417-418. See Swann, supra, 402 U. 8S. 1, 28.

25

CONCLUSION

The requirement by the Sixth Circuit that first

grade children with no prior formal educational ex-

perience be bused cross-district involving one way trips

of from 30 to 75 minutes merely to achieve a pre-

determined degree of racial balance is indicative of its

misunderstanding of the rationale of this Court’s deci-

sion in Washington v. Davis and the clear mandate of

this Court in Dayton. |

This Court has granted certiorari in Dayton IV

and Penick v. Columbus Bd. of Ed. to review the Sixth

Circuit’s use of presumptions in those cases, both in

the determination of a constitutional violation and in

tailoring an appropriate remedy once the violation has

been shown. Columbus Bd. of Ed. v. Penick, supra,

99 S. Ct. 24, 25. In Cunningham v. Grayson, the Sixth

Circuit employed the same presumption of law utilized

in Dayton III. Those presumptions were specifically

struck down by this Court in Dayton and are now

before this Court again by way of writ of certiorari

in Dayton IV.

Both Dayton IV and Penick v. Columbus Bd. of Fd.

were specifically relied upon by the Sixth Circuit in

this case, to support its decision in Haycraft v. Board

of Education to require additional cross-district trans-

portation of first grade children. This Court must

issue contemporaneous writs of certiorari in this case

to insure not only a just resolution of this matter, but

26

also uniform application of this Court’s forthcoming

decision on the merits in Dayton IV.

Respectfully submitted,

Jonwn A. FULTON

Witt H. Futon

2510 First National Tower

Louisville, Kentucky 40202

Counsel for Petitioners, Board of

Education of Jefferson County,

Kentucky and Ernest C. Gray-

son, Superintendent

Of Counsel:

Woopwarp, Hopson & FULTON

January 18, 1979.

27

CERTIFICATE OF SERVICE

I hereby certify that on the Pin day of January,

1979 three copies of this Petition for Writ of Certiorari

and accompanying separate Appendix were mailed, postage

prepaid, to Mr. Thomas Hogan, First National Tower,

Counsel for Respondents. ar f

Joun A, Fuutén

Wi. H. Futton

2510 First National Tower

Louisville, Kentucky 40202

Counsel for Petitioners

ADDENDUM

29

ADDENDUM

The following chart lists all elementary schools now in

clusters, by cluster grouping. The school listed first in each

cluster was formerly predominantly black in racial com-

position. The other schools in each cluster were previously

predominantly white in pupil racial composition.

The first three columns show the present racial composi-

tions of first graders in each school. The last column shows

the racial composition of the balance of each school. First

graders which are within the mandatory “racial guide-

lines” of the desegregation plan, even though cross-district

busing is not used, are noted with an asterisk in Column

No. 3.

ELEMENTARY SCHOOL CLUSTERS

First

No. No. Grade

Black White % Black School

Cluster #1

Schools

ns . ese bcesneetsues 82 12 87.2 28.7

SE ED cisdbecscccsedens 7 117 5.6 14.5

Dh. acces cechweaaan 12 98 10.9 19.5

RIN TPP rT ere 20 60 *25.0 25.6

DAD 60s ceescdeveveves 8 122 6.1 19.0

ET + 65 a08ec se binvwes 14 93 *13.0 18.9

Cluster #2

Schools

BEES Sivluccdcrtbecusindeseus 80 33 70.7 16.2

EE Pe rer re err 16 50 *24.2 30.5

A .. sudeesoedees spe 4 38 9.5 16.0

ME a s-5 hs bead beebseentes 10 91 9.9 22.9

ls Si co vebacerineéonees 6 38 *13.6 29.0

Cluster #3

Schools

Coleridge-Taylor ............ 180 5 96.2 21.1

CE F2 cusdedenses veneers ee 15 60 *20.0 30.7

FS See Peer 15 94 *13.7 18.5

ML oss dedvedicacet tens ti 43 113 *27.5 33.3

Th DN vecotcedccceeses 7 39 *15.2 13.1

Wilder ... .cccsecccvevescens 12 74 13.9 20.0

80 31

ELEMENTARY SCHOOL CLUSTERS (Cont’d.) ELEMENTARY SCHOOL CLUSTERS (Cont’d.)

First First

No. No, Grade a a),

Cluster #4 aics Cluster #9

Schools Schools

ae ae 83 4 95.4 95.3 WUE 6 6 © cocccecececceces 92 8 99.2 25.5

ED 64 bsbbE 0 0kb 6 ore ceee ~ 62 114 29.7 Auburndale... .........5055- 9 lll 7.5 19.9

AE Bae Serge ae 12 61 *16.4 26.8 PE 6 b's cccccccesseccece 2 81 2.4 15.3

| ia ate le 19 65 °996 998 SRR Rea eaarE 14 7% °15.7 269

NGS. ccca Vedkvcedees 5 66 70 215 Rutherford ... ..........0055 35 122 °222 29.0

s Dees ge ie 16-29 #35.5 36.9

lites ts le te nn 16.3 222

; F, Kennedy 164 «18 ~—S—si0.tié27LD —

BE ici ecccés cic ccs et ee ee — oo ie

Re ae igabdney 21 109 «499161285 1 BEET is corsteepneaceeess . Bb 2

GL de tadasdeanebua 19 101 °158 261 Serer she aeuseensesss ora:

Stonestreet 6 99 57 178 a RES Le ee . 7 “<a: aa

ee No ae ey : I DT ho 6 6660006 ¢s006008 t J

Watson Lane ...........+.+0 80 187 918.8 28.1 ME oss, coicress. 2 68 «38 210

Sg eRe peaeet 2 57 33 235

Cluster #6 GINO BO gc cccccccccccccs 23 103 *18.2 22.5

Schools

Us. olbak ised ces'ewes 128 8«=6 117i!’ Cluster #11

TS]. <.eetctsececeas 2 68 2.8 21.8 Schools

ML... cidvastanctaves 9 64 123 229 ss caedeanses 108 10 915 15.5

MR. fod 22 106 17.1 27.0 ND on tc seu ndbecews 8 9.7 252

oie co ae 5 = 68 73 29.1 cent cawnvene 14 8 142 281

st cy Seah caves 10 127 72 19.4 Jeffersontown ... ............ 30 127 °191 25.8

Re Le ee 7 144 5.7 ©. 22.5 Alex Kennedy .............+: 20 108 °156 238

RRS re peat 14 103 £119 200

Cluster OY Cluster #12

Schools

a ae eta 81 63 56.2 9.0 Schools

I Fn. ae 9 102 °255 200 Se oot teeeeeeeeseeeeeees ~ p. ty: oy

ee Dee Goldamith .....iivscccscss 16 88 9807 IT

Johnsontown Road ........... ll 80 12.0 21.7

Cluster #8 ee ao. osc uages 10 51 163 240

Schools are ok cic caneee 1 3% 28 22.9

SI a Suck punvadekous 128 «8616 0=— 88.8 ~—s 84 SMYTMA . .. vsssseeeeeevevess 15 106 «(912.3 (24.5

MRL o> kina dauetniaes 146660 «78 «= *17.0-—s—s« 28.8

OY See ge 8 99 14 231

SAR Riper petra: seats 13 188 86 28.8

BNR Ss ( avvcestiesbabial 11 140 72 214