Opposition Brief — Estes v. Metropolitan Branches of Dallas NAACP

SEP 19 1978

IN THE

Supreme Court of the United

OctoserR TERM, 1978

No. ~2-8 -253

NoLaNn Estes, et al.,

|

|

ODAK, JR., CLERK |

Petitioners.

—versus—

Oak Curr Brancu, South Dauuas Brancu fa *)

AND JOHN F’. KENNEDY BRANCH OF THE @ S oad 8 2

METROPOLITAN BRANCHES OF Datuas, NAACP,

Respondents,

and

Raupu F. Broveear, et al.,

Petitioners,

—versus—

Oak Curr Brancu, SoutH Dauuas BRaNcH

AND JOHN F. KENNEDY BRANCH OF THE

METROPOLITAN BRANCHES OF Dauias, NAACP, @ 'e) may $ 3

Respondents,

and

DonaLp R. Curry, et al.,

Petitioners,

—versus—

Oak Curr BrancH, SoutH Dauuas Branco

AND JOHN F. KENNEDY BRANCH OF THE

METROPOLITAN BRANCHES oF Dauias, NAACP,

Respondents.

BRIEF IN OPPOSITION TO CERTIORARI

NATHANIEL R. JONES

1790 Broadway

New York, N. Y. 10019

E. Brice CUNNINGHAM

Cunningham, Greenidge & Gaines

2606 Forest Ave., Suite 216-219

Dallas, Texas 75215

Of Counsel:

Louis R. Lucas

Ratner, Sugarmon, Lucas,

Salky & Henderson

625 Commerce Title Bldg.

Memphis, Tenn. 38103

TABLE OF CONTENTS

PAGE

SD RRP RRC E LET IL Ee TE LORS SLE BORE eT PO 2

I aire Sc 2

UN I i os ae as 2

TN 6c aaah seabed 3

* Reasons Why the Writ Should Be Denied—

A. The ‘Seane Mandate: i308 5

B. Petitioners Misread Milliken IT as Mandating

Ancillary Relief in Lieu of Desegregation ........ 8

C. Piecemea! Appeals: The Remand Below Was

a Correct Exercise of Jurisdictional Power of

ode ae |”) Sai Eas LEA 11

D. Fear of “White Flight” Not a Proper Basis for

Maintaining One-Race Schools .........0000000000.0....... 13

CORFE AIMMOIE 5 sani aiehicvnasedsncevgebiathedaends lotecedasleigilbaurcbinsecsnce 14

TABLE oF AUTHORITIES

CasEs:

Board of Education of City School District of the City

of New Rochelle v. Taylor, 82 S.Ct. 11 (1961) ........ 12

Brown v. Board of Education, 349 U.S. 294 (1955° ...... 3,7

Brown v. Swann, 10 Pet. [U.S.] 497 (1836) 000000000... 10

Brown Shoe Co. v. U.G., 370 U.S. .escseccosesesscesesoessessoeeseeeenee 12

Brunson v. Bd. of Trustees, 429 F.2d 820, 823-827 (CA

P(N Gate ah OR ARE et ae bNNe WA, ROR he aa 14

PAGE

Davis v. Board of School Commissioners of Mobile Co.,

GOR Us, SE CAG TR) eercinisecessarnisstacveendvgiaiieananciehiatl ‘weuaady 13

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

6, 7, 12n

Evans v. Buchanan, 393 F.Supp. 428, aff’d 423 U.S.

963 (1975) pet. denied, 423 U.S. 1080 (1975) stay

denied, Brennan, J., (in chambers) 1978 ........ Sadar 10

Green v. County School Board of New Kent County,

S01 UB: C00: (USGS inci i ie 8,13

Hills v. Gautrauax, 425 U.S, 284 (1976) occ. 11n

Hobson vy. Hensen, 269 F.Supp. 401 (D.D.C. 1967),

appeat dismissed, 393 U.S. 801 (1968) ooo. 14

Milliken v. Bradley, 418 U.S. 717 ooccccccccccccccccceee. aceeeehQ, 13

Milliken v. Bradley, 419 U.S. 815, 42 L.Ed. 2d 41, 95

B.C. SO: GE CIGD ee Sleek: 9,10

Monroe v. Bd. of School Comm.,, 391, 429 F.2d 820 (CA

4) (en banc) (Sobeloff, Jr., Coneurring) 0.00.00... 13, 14

Morgan v, Kerriqan, 530 F.2d 401 (1st Cir, 1976), cert.

denied sub nom.; White v. Morgan, 426 U.S. 935

CRW P sepiaapsssndudvcocdinnqupiivassouiet sebluse ria Piel aweshdsladit ines ears tials 13, 14

Swann v. Charlotte-Mecklenburg Board of Education,

3° U.S. 2 397 S)- a ae 2, 3,5, 10,13

Tasby v. Estes, 412 F.Supp. 1192 (N.D. Tex. 1976) ...... 3

Tasby v. Estes, 517 F.2d 92 (5th Cir. 1975), cert. de-

hed, 494. U.6.. 900: (ISTO) be eesti ie. 3

Tasby v. Estes, 572 F.2d 1010 (5th Cir. 1978) ...........2, 4,8

Taylor v. Board of Education of New Rochelle, 288

WF ee GOD CRED sina ccisntensnceaperunplicbceadaiccietiea cuenta tae 12

U.S. v. Louisiana, 389 U.S. 145 (1956)

In THE

Supreme Court of the United States

Ocroner Term, 1978

Nouan Estes, et al.,

Petitioners,

—versus—

Oax Curr Brancu, Sourn Datuas Brancn

AND Joun F. Kennepy Brancn or THE

Merrovourran Brancues or Darias, NAACP,

Respondents,

and

Rauenu F. Brrnecar, et al.,

Petitioners,

—versus—

Oak Curr Branen, Sourm Darias Branow

AND Joun EF. Kennepy Brancn or THE

Merrovonran Branoues or Datnas, NAACP,

Respondents,

and

Donatp R. Curry, et al.,

Petitioners,

—versus—

Oak Cruer Brancu, Sourn Danas Brancn

| AnD Joun F. Kennepy Brancn or THE

Merropouttan Brancues or Dauias, NAACP,

Respondents.

BRIEF IN OPPOSITION TO CERTIORARI

Opinions Below

The remand opinion of the United States Court of Ap-

peals for the Fifth Circuit now at issue appears as the

Appendix C to the Petition of Nolan Estes, et al., at pages

130a-146a, and reported at 572 F.2d 1010, Other opinions,

orders and judgments of the District Court are found in

Appendix B to Petition of Estes, pp. 4a-129a.

For a full listing of other opinions, rulings and judg-

ments, see 512 F.2d 92, 95 (Sth Cir.), cert. denied, 423 U.S,

939 (1975).

Jurisdiction

The Court of Appeals’ judgment remanding the pupil

assignment portion of a school desegregation plan for the

elimination of de jure segregation to the District Court,

was entered on April 21, 1978, This court’s certiorari ju-

risdiction is invoked under 28 U.S.C, 1254.

Question Presented

Whether any issue warranting this Court’s review is

presented by the Court of Appeals’ remand of the case to

the District Court for the formulation of a new student

assignment plan for an unremedied statutory dual system,

along with instructions to consider the feasibility of adopt-

ing Swann v, Charlotte-Mecklenburg Bd. of Education, 402

U.S. 1 (1971) desegregation tools or to make specific find-

ings of facts in connection therewith.

3

Statement

Negro children and their parents have sought the de-

segregation of the Dallas Independent School District

(DISD) sinee July, 1955 when an action was brought to

desegregate the facilities of DISD.' After extensive liti-

gation, including appeals, the law of this case is that DISD

is a state-imposed dual school system.’ Remedial steps to

dismantle the segregated condition were ordered by the

Fifth Cireuit, Tasby v. Estes, 517 F.2d 92 (5th Cir. 1975),

cert, denied, 424 U.S. 939 (1975). On remand this respon-

dent was allowed to intervene on behalf of the Metropolitan

Branches of the Dallas NAACP and individual parents

and children to participate in the remedial phase. Tasby

v. Estes, 412 F.Supp. 1192 (N.D. Tex. 1976). From the

district court’s approval of a plan respondents appealed

on the ground the “plan” approved by the district court

did not meet minimum constitutional standards.’ Swann

v. Charlotte-Mecklenburg Board of Educ., 402 U.S. 1

(1971); Green v. Co. School Bd. of New Kent Co., 391 U.S.

403 (1968); Davis v. Bd. of School Commissioners of

Mobile, 402 U.S. 33 (1971).

The Court of Appeals found that the plan divided DISD

into six subdistricts, one of which is nearly all black and

contains only one-race schools. It has 27,500 students at-

tending sixteen schools. (A one-race school was defined as

' For a chronology of this litigation, see Tasby v. Estes, 517 F.2d

92, 95 (5th Cir.), cert. denied, 423 U.S. 939 (1975).

2 As the Court of Appeals noted at fn. 18, “Even after the

Supreme Court’s decision in Brown v. Board of Education, 349

U.S. 294 (1955), Texas laws required segregation. The penalties

for violaving the statutes included loss of funding and accredita-

tion. 412 F. Supp. at 1189.

*Under the present plan in operation since 1975 seventy-three

(73) one-race schools remain segregated. Of these fifty-nine (59)

are elementary schools, six 4-8 schools and eight 9-12 high schools.

Tasby, 572 F.2d 1010 at 1012.

4

one with a student body with approximately 90% or more

of the students being either Anglo or combined minority

races.) In the other five subdistricts, containing some 16(

schools, over fifty are still essentially one-race schools.

Furthermore, the Court of Appeals found that the dis-

trict court’s order leaves high school students in the neigh-

borhood schools. Within three of the four integrated sub-

districts (exclusive of East Oak Cliff, the black subdistrict,

and Seagoville, the one predominately Anglo subdistrict),

this results in high schools that are still one-race schools.

Moreover, contrary to Swann, 402 U.S. at 26-27, the

district court’s order placed the burden of transporting

children participating in the majority to minority transfer

option, on students and parents rather than on the school

board.

After a thorough analysis of the components of the

desegregation plan adopted by the district court, the Fifth

Cireuit again remanded the student assignment portion

for further consideration. The remand order required the

district court to modify the student assignment plan only

if the continued existence of one-race schools is not jus-

tified by findings of facts. Tasby v. Estes, 572 F.2d 1010

(5th Cir. 1978), Petitioners applied for a rehearing and

rehearing en banc. Both were denied by the Fifth Circuit

on May 22, 1978. Defendants’ Appendix D. Estes Peti-

tioners moved for a stay of mandate pending certiorari

and same was denied by the Court of Appeals on August

14, 1978. A Petition for Certiorari together with an Ap-

plication for Stay were filed with this court. The latter

was referred to Mr. Justice Powell who denied same in

Chambers.‘

_* Two other issues were appealed by respondents, i.e. the exelu-

sion of Highland Park Independent School District from the de-

segregation plan and the acquisition and sale of certain property.

Reasons Why the Writ Should Be Denied

A. The Swann Mandate

All of the petitioners’ are attempting an end run to this

court around the clear and common-sense remand direction

of the Court of Appeals. That court held that a remand

was necessary because:

“We cannot properly review any student assignment

plan that leaves many schools in a system one-race

without specific findings by the district court as to the

feasibility of these techniques .... There are no ade-

quate time-and-distance studies in the record in this

case. Consequently, we have no means of determining

whether the natural boundaries and traffic considera-

tions preclude either the pairing and clustering of

schools or the use of transportation to eliminate the

large number of one-race schools still existing. 572

F.2d at 1014. (Other citations omitted)

Such a remand was required by this court’s holding in

Swann v. Charlotte-Mecklenburg Board of Education, 402

U.S. 1 (1971), that where de jure segregation is found to

exist one-race schools are subject to strict scrutiny be-

cause:

{[W]here the school authority’s proposed plan for

conversion from a dual school system to a unitary

system contemplates the existence of some schools that

are all of predominately one-race, they have the bur-

den of showing that such school assignmerits are gen-

uinely non-diseriminatory. The court should scruti-

nize such schools, and the burden upen the school

authorities will be to satisfy the court that their racial

°The issues raised by Brinegar petitioners and the Curry peti-

tioners in their petitions for certiorari will be treated in this

section.

6

composition is not the result of present or past dis-

criminatory action on their part. Swann, 402 U.S. at

26.

The Court of Appeals found as a fact that the DISD

acknowledged the harmful effect of one-race schools upon

“the finding of a unitary system.” It also noted that the

district court had failed to make the specific findings as to

why these schools could not be desegregated using and

adopting the techniques approved in Swann. This failure

by the district court impaired the ability the reviewing

court to properly evaluate the plan. Consistent with the

holding in Dayton Board of Education v. Brinkman, 433

U.S. 406 (1977), 53 L.Ed.2d 851, 97 S.Ct. 2766 the Court of

Appeals remanded for the findings of appropriate facts.

As Mr. Justice Rehnquist wrote in Dayton, a basic sig-

nificance of Dayton was its holding with respect to the

proper allocation of functions for factual determination

by district courts and their review by appellate courts.

The Court of Appeals was the appropriate tribunal in

position to determine whether a fact circumstance was in

sufficient posture for an appellate evaluation. Also, the re-

mand here must be read in the context of the history of this

21 year old litigation. On several occasions during the life

of this case the district court has been advised to invoke

the Swann inquiry with respect to one-race schools with

respect to this statutorily created dual system and to as-

say the feasibility of the assignment methods which should

be considered, or, in the alternative, to make appropriate

findings.

Once again, the district court has neither made those

specific feasibility findings, nor has it ordered the utiliza-

tion of the Swann desegregative tools. It is clear that with-

out such findings of fact by the district court, the Court of

7

Appeals is unable to review the judgment or ascertain

whether the school district has met the Swann burden of

justification, i.e. lack of feasibility in assigning children so

as to eliminate the dual system, or that the segregation was

not, the ‘result of present or past discriminatory action.

"The only justification advanced by the petitioners and

which they implore this court to adopt are (1) there is a

majority of minority students in the system, and that (2)

the system is large, (3) that they have devised “innovative”

plans, and (4) “white flight” will result if total desegrega-

tion is ordered.

Petitioners submit that such assertions do not rise to

the level of Swann-required justification. They are con-

stitutional irrelevancies, At this point, to the extent that

facts have not been found, they cannot be reviewed. To

the extent they are unreviewed by the Court of Appeals

they are not in a posture for consideration by this Court,

Dayton v. Brinkman, 433 U.S. 407. To the extent the peti-

tioners assert legal principles which run contra to the

unanimous holdings of this Court the Court of Appeals has

no duty to adopt them. Indeed it is dutybound to reject

them. ;

Petitioners argue as though Brown v. Board of Educa-

tion had never been decided and that Cooper v. Aaron’s

lesson has no application today. Brinegar petitioner, for

instance, suggest that popular acceptance of a plan some-

how relaxes the constitutional imperative to eliminate de

jure segregation from the Dallas school system. Brown

and Cooper v. Aaron have been reaffirmed time and again

as controlling, i.e. that disagreement with desegregation

is no justification for thwarting it.

Brinegar petitioners, in grabbing at every straw, argue

that the district court should be required to make Davis,

8

Austin and Brinkman findings on the subject of intent.

The simple fact is that the law of the case is that DIDS

is a de jure segregated system, which has never rid itself

of the unconstitutional duality.

Segregation in Texas, unlike in Ohio, was mandated by

law until after 1954. The Court of Appeals and the Dis-

trict Court have already found that segregation is state

imposed, that the segregated schooling in Dallas has never

been eliminated and that there still exists a current con-

dition of racial segregation. The lower courts have held

that this dual system has been perpetuated through con-

stitutional violations. This constitutes the law of the case.

In such a situation where explicit findings of de jure segre-

gation exists and there is as here, an explicit finding that

the de jure system has not been dismantled, “root and

branch” is mandated.

B. Petitioners Misread Milliken II as Mandating Ancillary

Relief in Lieu of Desegregation

But as a substitute for eliminating that which offends

the Constitution, the petitioners’ claims of “innovations”

do bear close scrutiny. Magnet schools, alternative schools

and the like have been found to be singularly ineffective

desegregation devices for systems with system-wide segre-

gation, although their use as educational programs in con-

junction with actual desegregation has been found unex-

ceptional.

In Dallas, the experience with such plans as the primary

tool of desegregation nas been, like its predecessor pupil

placement plans of the 1950's, totally inadequate to elim-

inate the dual system.‘

* The NAACP’s brief cites a statement to the press by Dr. Nolan

Estes, Superintendent of the DISD, that the magnet school concept

has not been effective in desegregating the school system in Dallas.

_ Tasby, supra, 572 F.2d at 1015, and n. 15.

—_—_- oo

9

The Court of Appeals ordered:

“The district court is again directed to evaluate the

feasibility of adopting the Swann desegregation tools

for these schools and to reevaluate the effectiveness

of the magnet school concept.”

In their attempt to suggest a conflict between the hold-

ing of this Court in Milliken II infra and the remand action

of the Fifth Circuit Court of Appeals, petitioners imply

that the reviewing court questioned the propriety of ancil-

lary relief. Even a casual reading of the opinion demon-

strates that the Court of Appeals specifically deferred to

the judgment and widest possible discretion of local educa-

tors. In language most clear the court stated: “We defer

to the DISD’s expertise in establishing suitable programs

for the school children of Dallas.” Emphasis added.

While the Court did caution, that on remand the district

court should reconsider the other provisions of its plans in

the light of the relief it ultimately orders, it allowed in

Note 8, that:

“Because we wish to grant the district court enough

latitude on remand to devise a plan that will be work-

able, we are not binding it to the present non-student-

assignment portions of its orders.”

Tasby 1017

Considering that de jure segregation is the law of the

case, Milliken II permits a federal court to compel the

various ancillary programs as a part of the remedy. Here,

an imposition of those programs was not necessary: the

school authorities and community affirmatively developed

their own. The only problem they encounter, constitution-

ally, is in seeking to implant them in lieu of pupil “root

and branch” desegregation. For sure, the lack of necessity

10

for the court to impose those programs can not logically

be convoluted, as petitioners seek to do, into a disregard-

ing by the Court of Appeals of the traditional equitable

authority and duty of the federal courts to root out the

violation by rendering “a decree which will so far as pos-

sible eliminate the discriminatory effects of the past as

well as bar like discrimination in the future,” United States

v. Louisiana, 380 U.S. 145, 154, 156 (1956), for it is “the

historic purpose of equity to ‘secur[e] eomplete justice.’

Brown v. Swann, 10 Pet. [U.S.] 497, 503 (1836).” This

principle has been reiterated over and over again by this

court. Swann v. Charlotte Mecklenburg, 402 U.S. 1, Keyes

15 (1971), Dayton v. Brinkman, 403 U.S. 406, Milliken I,

418 U.S. 717 and Milliken IT, 419 U.S. 815. Also see: Evans

v. Buchanan, 423 U.S. 1080, and Stay Denied, J. Brennan,

in Chambers, 1978.

The district court having left a large number of children

locked into segregated one-race schools, Swann renders

them suspect. The Court of Appeals properly remanded

to the district court for it to require the DISD to justify

their continued existence. So long as this burden has not

been met, and the other Swann techniques, i.e. pairing and

clustering, untried and time and distance facts absent, the

Court of Appeals is not in a position to responsibly dis-

charge its reviewing functions.” It is thus clear that no

conflict exists between the remand here, and Swann, Milli-

ken and Dayton.

Not until the Court of Appeals has an opportunity to

fully evaluate the “plan” of desegregation will it be able

to reach a judgment with respect to its squaring with the

Constitution. The granting of certiorari at this stage would

7“TT)he case is every bit as important for the issues it raises

as to the proper allocation of functions between the District Court

and the Court of Appeals within the federal system.” Dayton p.

857, supra.

11

be premature, subversive of the authority and responsibility

of the district court to make factual findings, in the first

instance.‘

C. Piecemeal Appeals; The Remand Below Was a Correct

Exercise of Jurisdictional Power of the Court of

Appeals

We have made it abundantly clear that this is a par-

ticularly inappropriate case, and this is a particularly in-

appropriate juncture for the exercise of this Court’s

certiorari jurisdiction in view of the fact that piecemeal re-

view is particularly unsuited to school desegregation cases.

The legal arguments of petitioners are not only unconvine-

ing and contradictory, they are clearly wrong. On the one

hand they argue for Dayton, which affirms Swann, and on

the other, they are challenging the Daytcn-type remand to

the district court for the purpose of engaging in fact-

finding to supplement a deficient record. Thus, respondents

deem it advisable to discuss the issue of piecemeal appeals,

which this court discourages, but which petitioners seek

here.

When the record is supplemented and reviewed, peti-

tioners will have an opportunity to test those conclusions

which will emanate from that review. The course of action

sought here by petitioners, on issue unreached and un-

resolved by the Court of Appeals, would result in effect,

in a direct review of those matters directly from district

court. See Rule 20 of the Supreme Court Rules. This

would, indeed be judicial leap frogging of the most un-

seemly type.

*“The District Court, in the first instance, subject to review by

the Court of Appeals, must make new findings. .. . It must then

’ fashion a remedy in the light of the rule laid down in Swann,

supra, and elaborated upon in Hills v. Gautreauz, 425 U.S. 284,

(1976).” Dayton, supra.

12

There can be no justifiable reason for such an exceptional

exercise of this court’s certiorari jurisdiction. Clearly,

then, logie and precedent argue loudly against review of

these matters at this time.

And there are the practical considerations set forth by

Judge Friendly in Taylor v. Board of Education of New

Rochelle, 288 F.2d 600 (1961) which apply with increased

force to the determination whether to utilize an extraor-

dinary procedure which “deprives ... this Court of the

benefit of consideration by a Court of Appeals.” Brown

Shoe Co. v. United States, 370 U.S. at 355. The vital role

which the Court of Appeals could play in resolving factual

disputes and narrowing the issues is apparent from the

nature of this case and of the primarily factual deficiencies

noted by the Court of Appeals.

This court sits principally to correct legal, not factual

errors.

While there may be occasions when the importance of an

issue merits dispensing with intermediate appellate review

(see cases cited in Rule 20 Supreme Court Rules), it is

hardly conceivable that this court could render anything

but advisory pronouncements if it is to interpose its

power between the intermediate and district courts, there-

by barring the development of a full factual record.®

* On appeal, the task of a Court of Appeals is defined with rela-

tive clarity; it is confined by law and precedent, just as are those

of the district courts and of this court. If it concludes that the

findings of the District Court are clearly erroneous, it may reverse

them under Fed. Rules Civ. Prac. 52(b). If it decides that the

District Court has misapprehended the law, it may accept that

court’s findings of fact but reverse its judgment because of legal

errors. Dayton, supra.

13

D. Fear of “White Flight” Not a Proper Basis for Main-

taining One-Race Schools

The remedy for a system-wide violation is “all out de-

segreation” Keyes, 413 U.S. at 214. And in Davis v. Board

of Education. Commissioners, 402 U.S. 33, 37, this court

stated that having once found a violation, which was done

here, “the district judge or school authorities should make

every effort to achieve the greatest degree of actual de-

segregation, taking into account the practicalities of the

situation.” Of course “desegregation” ean be neither more

nor less than the elimination of racial discrimination and

all of its lingering effects, “root and branch.” Swann, supra,

Green, supra, Davis, Morgan, infra, Milliken I, supra.

Petitioners totally misapprehend the foregoing and in-

stead contend that the Court of Appeals,'in insisting upon

a factual record sufficient to permit proper appellate re-

view, is acting with judicial audaciousness. In so doing

petitioners unleash a number of reasons as to why the

schools of DISD should continue segregated, including

fear of “white flight.” They invite a ruling from this court

that would permit the Constitution to have a different

meaning in the urban areas than it has in a rural setting.

The justification for such a new rule is the so-called urban.

education crisis.

The inappropriateness of such a call in the context of

and the posture of these proceedings is obvious. This is

not to say that a district court or Court of Appeals can be

absolutely insensitive to the reality of and variety of

private reactions to desegregation plans. Most courts are

extremely alert to this possibility and accordingly, select

plans that promise to cause the least adverse private ref

action and yet transform a dual system into one of “just

schools.” Green, supra.

Where so-called “white flight” is a concern, as petitioners

insist that it is here, courts are free to address that prob-

14

lem by the inclusion of programs that will address the

perception of some schools being “inferior.” Under no

circumstance can fear of private reaction be the basis for

perpetuating the condition which offends the Constitution,

or for otherwise abandoning, even so slightly, the goal of

eliminating racial discrimination and all of its lingering

effects. See: Morgan v. Kerrigan, 530 F.2d 401, C.A. 1,

cert, denied sub nom.; White v. Morgan, 426 U.S. 935;

Hobson v. Hansen, 269 F.Supp. 401 (D. D.C.) appeal dis-

missed 393 U.S. 801; Cooper v. Aaron, 358 U.S. 1; Monroe

v. Bd. of School Comm., 391, 429 U.S. 450, 459; Brunson

v. Board of Trustees, 429 F.2d 820, 823-827 (CA 4) (en

banc) ; (Sobeloff, J. concurring). Also see Milliken I, swpra.

CONCLUSION

Wuenrerorg, for the foregoing reasons, these Respondents

respectfully pray that the petition for a Writ of Certiorari

be denied.

NATHANIEL R. Jones

1790 Broadway

New York, New York 10019

K. Brick CunNINGHAM

Cunningham, Greenidge & Gaines

2606 Forest Ave., Suite 216-219

Dallas, Texas 75215

Of Counsel:

Louis R. Lucas

Ratner, Sugarmon, Lucas, Salky

& Henderson

625 Commerce Title Bldg.

Memphis, Tenn. 38103

15

Certificate of Service

I, Nathaniel R. Jones, one of the counsel for the Re-

spondents, certify that a copy of the foregoing Brief was

served upon the following counsel of record by regular

mail by postage prepaid, this 18th day of Sentember, 1978.

Mr. Edward B. Cloutman, III

8204 Elmbrook Drive, Suite 200

P. O. Box 47972

Dallas, Texas 75247

Mr. Mark Martin

1200 One Main Place

Dallas, Texas 75250

Ms. Vilma S. Martinez

Mexican-American Legal Defense

and Educational Fund

28 Geary Street

San Francisco, Calif. 94108

Mr. Lee Holt, City Attorney

New City Hall

Dallas, Texas 75201

Mr. John Bryant

8035 East R. L. Thornton

. Dallas, Texas 75228

Mr. James G. Vetter, Jr.

555 Griffin Square Building

Suite 920

Dallas, Texas 75202

NATHANIEL R. Jones

Mr. Thornton FE. Ashton, IIT

Dallas Legal Services

Foundation, Ine.

912 Commeree, Street,

Rm. 202

Dallas, Texas 75202

Mr. Robert H. Mow, Jr.

Mr. Robert L. Blumenthal

3000 One Main Place

Dallas, Texas 75250

Mr. James A. Donohoe

1700 Republic National Bank

Building

Dallas, Texas 75201

Mr. Martin Frost °

777 South R. L. Thornton

Freeway, Suite 120

Dailas, Texas 75203

Mr. James T. Maxwell

4440 Sigma Road, Suite 112

Dallas, Texas 75240