# Amicus Brief — Johnson v. Board of Education

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2207%3A07

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1980
- **Citation:** 448 U.S. 910

## Text

—

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

CRE DUR UE ii cid cndnasenaurienesedustibeubinintiienmnunsss 3
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
Oe Tees II itrentatcncncnctidsinidinntinisenanatinatneesicescdae 2

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2207%3A07. Public record. Not legal advice.