Amicus Brief — Johnson v. Board of Education

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No. 79-1356

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In the Supreme Court of the Hnited States

OCTOBER TERM, 1980

KATHY SUE JOHNSON, ET AL., PETITIONERS

V.

BOARD OF EDUCATION OF THE CITY OF CHICAGO,

ET AL.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

MEMORANDUM FOR THE UNIIED STATES AS

AMICUS CURIAE IN RESPONSE TO

SUGGESTION QF MOOTNESS

WADE H. MCCREE, JR.

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

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TABLE OF AUTHORIIIES

Page

Cases:

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Board of School Commissioners v. Jacobs,

Ec. SI igre is si obec hdaecehdligdaniialetiigrnisdeneinenen 5

Copy. H, Pipes, S55 UB. BGT isvciecsesssincisessesssese 3

County of Los Angeles v. Davis, 440 U.S.

RR doncigatsclas cab elpibiateladehiisnnvpckianderehndienenncnsatees 2, 3

Davis v. Village Park II Realty Co., 578 F. 2d

GD cnisnsivicnatnnitin Tides th ialaisicant clad pieia bepencebnninp vanish dodeah 3

DeFunis v. Odegaard, 416 U.S. 312 wccccccccccccceees 2

Lake Country Estates, Inc. v. Tahoe Planning

SES, TE SE. TIPE dacepssndasiesnueprcinnebennidannievens 3

Owen v. City of Independence, No. 78-1779

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Preiser v. Newkirk, 422 U.S. 395 ...sscccccccccceeeseees 5

United States v. Munsingwear, Inc., 340 U.S.

TUN scds~ sditeian <idh - selioas hchbe ei tentaridnnddiabadaheiathbenieaidis 5

Watts ¥. Brewer, SEB F. 2d GAG .ccccecersccsccscccsecesees 2

Weinstein v. Bradford, 423 U.S. 147 ccccccccsssesseees 5

Wood v. Strickland, 420 U.S. 308 .....ccccccsceseeeeees 3

Constitution and statute:

United States Constitution, Fourteenth

Amendment, Equal Protection Clause ............. 4

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In the Supreme Court of the United States

OCTOBER TERM, 1980

No. 79-1356

KATHY SUE JOHNSON, ET AL., PETITIONERS

V.

BOARD OF EDUCATION OF THE CITY OF CHICAGO,

ET AL.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

MEMORANDUM FOR THE UNIIED STATES AS

AMICUS CURIAE IN RESPONSE TO

SUGGESTION OF MOOTNESS

On October 2, 1980, the Board of Education of the City

of Chicago filed its Suggestion of Mootness based upon

the entry of a consent decree in United States v. Board of

Education of the City of Chicago, No. 80 C 5124 (N.D.

lll.) (S.M. A-3)! and the Board’s decision of October 1,

1980 (S.M. A-18) to discontinue, at the end of the 1980-

1981 school year, the Student Racial Stabilization Quota

\“S.M.” refers to respondent's Suggestion of Mootness. [he United

States, by letter of September 30, 1980, informed the Court of the

entry of the consent decree and provided the Court copies of the

complaint and the consent decree.

2

Plan (hereinafter referred to as “the Plan”) at issue in this

case. In our judgment the case is not now moot.

1. Neither the consent decree nor the decision to

discontinue the Plan affects the operation of the schools

during the current school year. Thus, the case is “ ‘live’ ”

and the parties do not “ ‘lack a legally cognizable interest

in the outcome.’ Powell v. McCormack, 395 U.S. 486, 496

(1969).” County of Los Angeles v. Davis, 440 U.S. 625,

631 (1979).

2. The question remains whether the case may become

moot (cf. DeFunis v. Odegaard, 416 U.S. 312 (1974)) and

whether the possibility of future mootness warrants

dismissal of the writ of certiorari. In our view, dismissal is

not warranted.

The compiaints in this case challenged the Plan because

it resulted in the exclusion of the plaintiffs from

integrated neighborhood high schools and their

assignment to segregated and more distant high schools.

The complaints sought declarations that the Plan was

unconstitutional and injunctive relief forbidding further

implementation of the Plan and requiring that excluded

black students be allowed to enroll in Gage Park and

Morgan Park. The complaints did not seek comprehensive

changes to overcome the effects of past discrimination in

Chicago’s student assignment system. While they did not

explicitly seek damages, they were brought under 42

U.S.C. 1983 and sought “such other and further relief,

including costs and reasonable attorneys’ fees, as this

Court shall deem just and proper.” Whatever the

disposition of the plan, any damage claim would not

become moot. Watts v. Brewer, 588 F. 2d 646, 648 (8th

3

Cir. 1978); Davis v. Village Park Il Realty Co., 578 F. 2d

461, 463 (2d Cir. 1978).?

In order for the injunctive claims to become moot, two

conditions must be satisfied: (a) it must be possible to say

with assurance that there is no reasonable expectation

that the kind of discriminatory assignments challenged

here will recur; and (b) events must “have completely and

irrevocably eradicated the effects of the alleged violation,”

i.e., the previously excluded students must receive relief.

County of Los Angeles v. Davis, supra, 440 U.S. at 631.

The consent decree and prospective rescission of the

Plan could satisfy those conditions in the future, but we

are unable to state with certainty that they will. The

consent decree itself is silent with respect to the disputed

enrollment quota plan. It obligates the Board to develop a

comprehensive student desegregation plan for

implementation in the 1981-1982 school year following

approval of the plan by the United States and the court.

The Board is to present its comprehensive plan to the

Court and the Justice Department by March 11, 1981,

“except as [the time schedule is] modified by agreement

between the Board and the Department of Justice or as

extended by leave of Court” (S.M. A-17). If the parties do

not agree on the contents of the plan, “the disagreement

2Petitioners were not required to allege specifically any claim they

might have for nominal damages. Basista v. Weir, 340 F. 2d 74, 87

(3d Cir. 1965). See Carey v. Piphus, 435 U.S. 247, 266 (1978). Of

course, the individual Board members would enjoy at least a qualified

immunity from liability in damages where their actions were taken in

good faith (Wood v. Strickland, 420 U.S. 308 (1975)), and an

absolute immunity if they were deemed to have acted in a legislative

capacity. See Lake Country Estates, Inc. v. Tahoe Planning Agency,

440 U.S. 391 (1979). The Board would not enjoy the same

immunities, and a damage remedy could be available, unless this is a

case in which “countervailing considerations” militate against such a

remedy. Owen v. City of Independence, No. 78-1779 (Apr. 16, 1980),

slip op. 28.

4

will be submitted to the court for resolution” (S.M. A-11).

While we expect the content of the plan to be resolved

expeditiously, the decree does not provide certainty as to

when a fully acceptable plan will be in place.

The Board quotes “[t]he four ‘Basic Objectives’ of the

desegregation plan” contemplated by the consent decree

(S.M. 2). Because, in our view, the enrollment quotas here

at issue violate the Equal Protection Clause (U.S. Brief

12-14), the United States would be unable to approve a

desegregation plan incorporating their segregative

features. We are unable to represent, however, that the

district court would not approve such a plan.’ Nor can we

predict the impact of the comprehensive plan on those

plaintiffs who have already been excluded from Gage

Park and Morgan Park. This question is substantial, in

light of Section 5.2 of the Consent Decree. If Gage Park

and Morgan Park are treated as “already stably

integrated,"* “the plan may exclude [them] from

reassignment of students if the extent of integration is

within a reasonable range of that to be achieved in the

schools referred to in Sec. 2.1” (S.M. A-7).5

The rescission of the Student Racial Stabilization

Quota Plan (S.M. A-18) increases the chances that the

injunctive claim may become moot. However, it does not

state how students are to be assigned in September 1981,

3The decisions below could have a stare decisis effect if they are left

standing.

*We do not view them as stably integrated, because the Board has

already resorted to mandatory reassignment to maintain their racial

composition.

SSection 2.1 states: “Desegregated Schools. The plan will provide

for the establishment of the greatest practicable number of stably

desegregated schools, considering all the circumstances in Chicago”

(S.M. A-5).

5

except by reference to the consent decree in United States

v. Board of Education of the City of Chicago, supra.

3. The judgment below should be vacated if this Court

determines that circumstances render it inappropriate to

decide the case on the merits. By vacating the judgment

and remanding the case to the court of appeals, the Court

would be acting in accord with its normal practice in cases

in which developments subsequent to the grant of

certiorari make it inappropriate for the Court to decide an

issue thought worthy of review. County of Los Angeles v.

Davis, supra; Weinstein v. Bradford, 423 U.S. 147 (1965);

Preiser v. Newkirk, 422 U.S. 395 (1975); Board of School

Commissioners v. Jacobs, 420 U.S. 128 (1975). Cf. United

States v. Munsingwear, Inc., 340 U.S. 36 (1950).

It is therefore respectfully submitted that the case is not

moot, but that if this Court decides not to reach the

merits of this case, the judgment of the court of appeals

should be vacated.

WADE H. MCCREE, JR.

Solicitor General

OCTOBER 1980

DOJ-1980-10