Petition — Adams v. United States

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IN THE

SUPREME COURT OF THE UNITED S

October Term, 1979

JANICE ADAMS and JACK ADAMS, JR.,

Minors, by JERRIANNE ADAMS, their

Natural Guardian and Next Friend, and

JERRIANNE ADAMS; CATHERINE N. NEEL and

CAMILLE A. NEEL, Minors, by CATHERINE

NEEL, their Natural Guardian and Next

Friend, and CATHERINE NEEL; MARY

EDDINGTON and SUSAN EDDINGTON, Minors,

by HORACE EDDINGTON, their Natural

Guardian and Next Friend, and HORACE

EDDINGTON,

Petitioners,

vs.

UNITED STATES OF AMERICA,

and

THE BOARD OF EDUCATION OF THE

CITY OF ST. LOUIS, DANIEL L. SCHLAFLY,

FREDERICK E. BUSSE, GORDON L. BENSON,

MALCOLM W. MARTIN, ANITA L. BOND,

JOYCE BOWEN, HENRY M. GRICH, JR.,

JAMES L. CUMMINGS, ERMA J. LAWRENCE,

DONALD E. MAYER, LAWRENCE MOSER,

CHARLES HARRIS, JULIUS C. DIX,

BENJAMIN M. PRICE, ROBERT W. BERNTHAL,

DAVID J. MAHAN, CHARLES BRASFIELD, and

ROBERT E. WENTZ,

Respondents.

‘ PETITION FOR WRIT OF CERTIORARI

To The United States Court of Appeals

for the Eighth Circuit

ANTHONY J. SESTRIC

1015 Locust Street, Suite 601

ih St. Louis, Missouri 63101

(314) 241-8600

Attorney for Petitioners

INDEX

Opinions Below . ° °

Jurisdiction . ° °

Questions Presented . °

Statutes Involved ° °

Statement of Case ° °

Reasons for Granting Writ

Conclusion ‘ ° °

APPENDIX

Constitutional and

Statutory Provisions °

Original Petition ° °

Consent Judgment and

Decree ° ° ° °

Cross Petition in

Intervention ‘ ‘ P

Answer to Cross Petition .

Judgment of District Court

Decision of Court of Appeals

TABLE OF CASES

Austin Independent School

District vs. United States,

429 U.S. 990 (1976) . ‘

Brown vs. Board of Educa-

tion, 347 U.S. 483 (1954).

ui oe Ww N nN

Appendix 1

Page A-1l

Appendix 2

Page A-12

Appendix 3

Page A-24

Appendix 4

Page A-30

Appendix 5

Page A-36

Appendix 6

Page A-41

Appendix 7

Page A-241

Brown vs. Board of Educa~

tion, 349 U.S. 294 (1955).

Brown vs. Sielaff,

F.2d 826 (3 C.A., 1973)

Calhoun vs. Cook, 525 F.2d

1023 (5 C.A., 1975) .

Columbus Board of Educa-

474

tion vs. Penick, U.S.

61 L.Ed.2d 666 (1979)

Dayton Board of Education

’

vs. Brinkman, U.S.

61 L.Ed.2d 720 (1979)

Ellis vs. Board of Public

Instruction, 423 F.2d 203, (5

Cae 1970) a .

Evans vs. Buchanan, 416

F.Supp. 328 (D. Del., 1976);

555 F.2d 373 (3 C.A., 1977);

447 F.Supp. 982 (D. Del., 1978);

582 F.2d 750 (3 C.A., 1978)

General Finance Loan Co. vs.

General Loan Co., 163 F.2d 709

(8 C.A., 1947) . °

Green vs. New Kent County

Board of Education, 391 U.S.

430 (1968) . °

Goss vs. Board of

320 F.Supp. 549 (E.D.

1970) ‘ ° .

Goss vs. Board of

406 F.2d 1183 (6 C.A.,

444 F.2d 632 (6 C.A.),

Education,

Tenn.,

Education,

1969),

1971

’

19,

23,

19,

International Society of

Krishna vs. Anderson, 569

F.2d 1027 (8 C.A., 1978) . °

Milliken vs. Bradley,

418 U.S. 717 (1974) . ° °

Nebraska Penal and Correc-

tional Complex vs. Greenholz,

S67 V.4@ 2208 te. Gao Zee

Newburg Area Council, Inc.

vs. Board of Education, 489 F.2d

925 (6 C.A., 1973); 418 U.S. 918

(1974); 510 F.2d 1358 (6 C.A.,

1974); 421 U.S. 931 (1975) °

Newman vs. Piggie Park

Enterprises, Inc., 390 U.S. 400

(1968) e * « . ca

Pasadena City Board of Edu-

cation vs. Spangler, 427 U.S.

424 (1976) ° ° . ‘

Rabinowitz vs. Board of

Junior College District No.

506, S07 F.24 i235 (7 Chee

1974) ‘ P “ ° ‘

Regents of the University

of California vs. Bakke, 438

U.S. 265 (1978) - : ° °

Swann vs. Charlotte-

Mecklenburg, 402 U.S. 1 (1971)

United States vs. Board

of School Commissioners, 541

F.2d 1211 (7 C.A., 1976); 429

U.S. 1068 (1977); 573 F.2d

400 (7 C.A., 1978); 439 U.S.

824 (1978); 456 F.Supp. 183

(6.0. indice ite = ‘ .

iii

26,

25,

Virginians for Dulles vs.

Volpe, 541 F.2d 442 (4 C.A.,

1976)

Wharton vs. Knefel, 562

F.2@ 550 (8 C.A., i977)

STATUTES CITED

20 U.S.C. §1601

20 U.S.C. §1618 °

20 U.S.C. §1651 °

20 U.S.C. §1652 .

20 U.S.C. §1654

20 U.S.C. §1656 °

20 U.S.C. §1704

20 U.S.C. §1705

20 U.S.C. §1706

28 U.S.C. §1254(1) .

42 U.S.C. §1981 .

42 U.S.C. §1983 °

42 U.S.C. §1985(3) .

42 U.S.C. §1988 .

42 U.S.C. 2000C °

42 U.S.C. 2000C-8 .

2 U.S.C. 2000C-9 .

F.R.C.P. 52(a) . °

13,

F.R.A.P. 28(a) . ° .

MISCELLANEOUS CITED

Civil Rights Attorneys'

Fees Award Act of 1976 ° .

First Amendment, U.S.

Constitution ‘ ‘ . °

Fourteenth Amendment,

U.S. Constitution, Sections l

and 5 ‘ . . °

Missouri Constitution,

Article IX, Section l(a) . ‘

9 Wright & Miller, Federal

Practice and Procedure, 2579 .

31,

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No.

JANICE ADAMS and JACK ADAMS, JR.,

Minors, by JERRIANNE ADAMS, their

Natural Guardian and Next Friend, and

JERRIANNE ADAMS; CATHERINE N. NEEL and

CAMILLE A. NEEL, Minors, by CATHERINE

NEEL, their Natural Guardian and Next

Friend, and CATHERINE NEEL; MARY

EDDINGTON and SUSAN EDDINGTON, Minors,

by HORACE EDDINGTON, their Natural

Guardian and Next Friend, and HORACE

EDDINGTON,

Petitioners,

vs.

UNITED STATES OF AMERICA,

and

THE BOARD OF EDUCATION OF THE

CITY OF ST. LOUIS, DANIEL L. SCHLAFLY,

FREDERICK E. BUSSE, GORDON L. BENSON,

i ee

MALCOLM W. MARTIN, ANITA L. BOND,

JOYCE BOWEN, HENRY M. GRICH, JR.,

JAMES L. CUMMINGS, ERMA J. LAWRENCE,

DONALD E. MAYER, LAWRENCE MOSER,

CHARLES HARRIS, JULIUS C. DIX,

BENJAMIN M. PRICE, ROBERT W. BERNTHAL,

DAVID J. MAHAN, CHARLES BRASFIELD, and

ROBERT E. WENTZ,

Respondents.

ee ee ee ee ee ee ee ee ee

PETITION FOR WRIT OF CERTIORARI

To The United States Court of Appeals

for the Eighth Circuit

The Petitioners, Janice Adams, et al.,

pray that a Writ of Certiorari issue to

review the judgment and opinions of the

United States Court of Appeals for the

Eighth Circuit entered on March 3, 1980

reversing in part and affirming in part the

judgment of the United States District

Court for the Eastern District of Missouri

entered on April 12, 1979.

OPINIONS BELOW

The Opinion of the District Court is

reported at 469 F.Supp. 1304 (E.D. Mo.,

1979) and is printed in Appendix 6.

The Opinion of the Court of Appeals is as

yet unreported, but is printed in Appendix 7.

JURISDICTION

The judgment and mandate of the Court

of Appeals was filed on March 3, 1980. The

nN)

jurisdiction of the Supreme Court is

invoked under 28 U.S.C. 1254(1) which pro-

vides:

"Cases in the Courts of

Appeal may be reviewed by the

Supreme Court by the following

methods: (1) By writ of certio-

rari granted upon the petition of

any party to any civil or crimi-

nal case, before or after rendi-

tion of judgment or decree;"

QUESTIONS PRESENTED

l. Whether the Court of Appeals prop-

erly adopted a new test to determine the

effectiveness of a voluntary desegregation

Plan by comparing the number of de jure

segregated schools prior to 1954 to the

number of schools which were more than 85%

one race in 1962 and by requiring a minimum

number or percentage of students in both

races in each school building.

2. Whether the Court of Appeals can

Order a desegregation plan limited to a

Single school district after making a

specific finding of interdistrict collabo-

ration to insure the maintenance of segre-

gated schools.

3. Whether the Court of Appeals can

attribute segregative actions of third

parties, including the United States of

America, to the Board of Education.

4. Whether the Court can consider post

trial extrajudicial documents to determine

whether Federal discrimination has irrevo-

cably ceased.

5. Whether the Court of Appeals can

award attorneys' fees when none were asked.

6. Whether the Court of Appeals can

deny attorneys' fees to the prevailing

Party under the Civil Rights Attorneys'

Fees Awards Act of 1976.

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

A. First Amendment to the United

States Constitution. (Full text reprinted

in Appendix 1.)

B. Fourteenth Amendment to the United

States Constitution, Sections 1 and 5.

(Pull text reprinted in Appendix 1.)

C. United States Code, Title 20. (Full

texts reprinted in Appendix l.)

§1601

§1618

§1651

§1652

§1654

§1656

§1704

§1705

§1706

D. United States Code, Title 42.

(Full texts reprinted in Appendix 1.)

§1981

§1983

§1985

§1988

§2000C

§2000C-8

§2000C-9

E. Missouri Constitution, Article IX,

Section l(a). (Full text reprinted in

Appendix 1.)

STATEMENT OF THE CASE

A. NATURE OF CASE.

This matter arises from a decision of

the Eighth Circuit Court of Appeals, filed

on March 3, 1980, reversing, in part, the

decision of the United States District

Court for the Eastern District of Missouri

entered on April 12, 1979. Your Peti-

tioners originally intervened in the Dis-

trict Court on the basis that the original

Plaintiffs were not adequately representing

the interests of these Plaintiffs in a class

action filed in 1972. A Cross-Complaint in

Intervention was then filed against the

Defendants, Board of Education of the City

of St. Louis, and its members and certain

officers, as well as the United States of

America, seeking a declaratory judgment

that requirements for admission to certain

schools operated by the Board of Education

with Federal funds discriminated against

white parochial students on the basis of

their race and religion, that the school

assignment policy was contrary to Federal

statutes, and seeking attorneys' fees.

B. COURSE OF PROCEEDINGS.

The cause was originally filed in the

United States District Court for’ the

Eastern District of Missouri in 1972 by a

group of individuals headed by Craton

Liddell and others, seeking a declaratory

judgment that the then Defendants, Board of

Education of the City of St. Louis, the

Board members, and the officers of the Board

of Education were operating a de jure dis-

Criminatory school system. On December 24,

1975, after discovery and negotiations, a

Consent Judgment was entered into between

the original Plaintiffs and the Defendants.

Janice Adams, et al. successfully sought to

intervene, alleging lack of adequate repre-

sentation. The United States of America,

which by that time had also intervened as a

party Plaintiff, was then named along with

the School Board Defendants as a Cross-

Complaint Defendant in the Complaint in

Intervention filed by your Petitioners on

August 12, 1977. The Cross-Complaint

sought a declaratory judgment that admis-

sion criteria to certain schools operated

by Defendant, Board of Education, and

funded by Defendant, United States, were

unconstitutional and illegal. Complaint

was also made that, because the St. Louis

Public Schools had been constitutionally

desegregated in 1954, the student assign-

ment and transportation policies of the

Board, which policies were imposed by the

United States as a condition for the Board

to receive financial assistance, were

unconstitutional and illegal. The Defen-

dant, United States of America, chose not to

file a responsive pleading to the Cross-

Complaint, while the Defendants, Board of

Education, its members and officers,

responded on October 4, 1977. The original

Complaint, Complaints in Intervention, and

the Cross-Complaint were consolidated for

trial. After thirteen (13) weeks of trial

and briefing, the case was submitted to the

United States District Court.

C. DISPOSITION IN COURT BELOW.

On April 12, 1979, a judgment was

entered by the United States District Court

for the Eastern District of Missouri,

which, amongst other things, denied the

prayer of these Appellants, Adams, et al.,

concluding that the Cross-Complaint was

moot. The Court also denied the prayer for

attorneys’ fees and costs. The Court also

ordered the Defendant, Board of Education,

its members and officers, to continue to

implement the provisions of a Consent

Decree approved by the Court in 1975, but

specifically found, against the original

Plaintiffs, that there had been no de jure

racial segregation or segregative intent on

the part of any of the School Board Defen-

dants and that the school system of the City

of St. Louis had been desegregated by action

of the Board of Education in 1954 and 1955.

After separate appeal to the Eighth

Circuit Court of Appeals by all Plaintiffs,

the Court of Appeals ruled that the 1954-55

voluntary desecoregation perpetuated the

pre-1954 segreyated school system and that

the dual school system had been maintained

and strengthened subsequently. The Court

of Appeals additionally found that the St.

Louis suburban school districts collabo-

rated with each other and with the City of

St. Louis to insure the maintenance of

segregated schools. Further the Court of

Appeals ruled that the original Plaintiffs

be awarded attorneys' fees, but your Peti-

tioners not, and that although Plaintiff

Intervenors, NAACP, had not asked for

attorneys’ fees, it should receive them.

The Court, lastly, affirmed the District

Court's finding that the issues of racial

and religious discrimination practiced by

the United States and the Board of Education

and the illegal assignment and transporta-

tion policies were moot.

D. STATEMENT OF FACTS.

Prior to 1954, the Missouri Constitu-

tion required that "Separate schools shall

be provided for white and colored children,

‘except in cases otherwise provided for by

law."

In 1954, the St. Louis Board of Educa-

tion, in anticipation of Brown vs. Board of

Education, 347 U.S. 483 (1954), began prep-

aration of its desegregation plan. In its

multi-stage plan, it consolidated’ the

separate teacher colleges and schools for

handicapped children into one school. The

two racially separate teachers’ colleges

were merged into one, with all students

attending the same school. The special edu-

cation schools for the physically handi-

capped students were similarly merged into

a single school. The plan provided for the

desegregation of elementary and secondary

schools by dividing the City into atten-

dance zones. The zones for each school were

drawn using building capacity, population,

and distance from the school. The indi-

viduals who drew the attendance zones were

supplied with data only as to the number of

children living on each City block who were

then attending the public schools in St.

Louis City. No data as to name, age, race,

Or sex was used or supplied. Each block was

represented by a card which contained the

number of children by grade who lived on the

block and who attended a public school in

St. Louis. The new attendance zones

were approved by the Board and implemented

with the beginning of the following semes-

ter of school. The only exception to the

Plan was that students could continue to

attend their former schools, if different

from the school in their new zone, but only

if there was sufficient available space in

the former’ school. Any student not

attending his neighborhood school had to

provide his own transportation. Students

starting in the St. Louis Public Schools for

the first time and students attending high

schools after graduating from elementary

school were required to attend the neigh-

borhood elementary or secondary school.

All reference to the race of the chil-

dren was obliterated from all school

records to avoid any possibility of admin-

istrative chicanery. Examination of demo-

graphic data for the period indicates that

most previously segregated schools attained

various degrees of racially mixed student

bodies. After the implementation of the

plan, there were a very few schools that

were one race schools. An informal poll of

parents as to the schools they preferred

their children to attend, if they were given

a choice, indicated that of the 83 formerly

white elementary schools, 37 of them would

have black students ranging from 56% to less

than 1% enrolled. Similarly parental pref-

erences indicated that 13 of tne 40 formerly

black elementary schools would have white

students ranging from 18% to less than 13%

enrolled. As the school year progressed,

more and more parents changed their prefer-

ence towards attending their neighborhood

school. The result was that more than 2/3

of elementary school children were

attending racially mixed schools. Of the

seven formerly white high schools, six had

racially mixed student bodies immediately

after the plan was implemented. As students

graduated from grade school, they were

required to attend the high school in whose

zone they lived, which resulted in a higher

degree of racial mixture in the _ high

schools.

According to the 1950 Census, of the

155,460 school age children living in St.

Louis, 121,460, or 78%, were white, while

34,000, or 22%, were black. In 1953, how-

ever, only 58,595 white children and 30,880

black children were attending the St. Louis

Public Schools. By 1960 the total number of

school age children living in St. Louis had

risen to 203,453, of which 143,357 (70.5%)

were white and 60,096 (29.5%) were black.

In 1962, the Board of Education again began

to keep track of the race of its students.

Their records disclosed that of its 108,245

students 48,277 (44.6%) were white while

59,968 (55.4%) were black. Census data and

School Board statistics disclose the fact

that historically proportionately more

black students attend St. Louis Public

Schools than their white counterparts.

Between 1950 and 1960, St. Louis

experienced a population loss of 227,857

whites moving out of the City, while a total

of 20,474 blacks moved:in. Of the 667,873

persons over the age of 5 years living in

St. Louis in 1960, 340,652, more than one-

half, had moved at least once since 1955. A

portion of the population movement was

caused by urban renewal projects, construc-

tion of low income housing projects, and

interstate highway construction.

By August 1963, because of the popula-

tion shifts in the metropolitan St. Louis

area, a number of City public schools were

overcrowded and the Board of Education

transferred large numbers of its students

to less crowded schools. The attendant

bussing was met with general protests by

both the black and white parents. Litiga-

tion ensued in August, 1963 between the

NAACP and the Board of Education, alleging,

amongst other things, that the St. Louis

public schools were illegally segregated.

In October, 1964, by means of separate affi-

davits and motions, the parties agreed that

the Board had taken the necessary actions to

cease and eliminate the alleged segregative

acts, and the litigation was dismissed by

the Federal District Court. Of the approxi-

mately 150 schools operated by the Board in

1963, only 19 were uniracial, the remaining

131 schools housed student bodies of

various racial mixture.

Between 1960 and 1970, the City of St.

Louis experienced an additional loss of

167,604 whites moving out of the City, while

the black population increased by more than

41,000. Of the total 1970 City population

Of 627.236 persons, 336,000, more than

half, had moved at least once between 1965

and 1970. Of the 114,284 children between 5

and 14 years old living in St. Louis in

1970, 51,630 (45.2%) were white and 62,654

(54.8%) were black. Of the 111,233 students

attending St. Louis public schools in St.

Louis, 38,241 (34.4%) were white, while

72,992 (65.6%) were black. Thus between

1953 and 1970, the public schools lost

20,354 white students, while gaining 42,112

black students.

Mrs. Minnie Liddell, in early 1972,

was a member of a parent group which resided

in North St. Louis, which had been actively

working to improve the public schools which

their children attended. Because of a popu-

lation shift, one of the schools, which some

of her children attended, was becoming

overcrowded. Mrs. Liddell, and the group of

parents with whom she was associated,

sought to find additional classroom space

in their immediate area so that her children

would not be transported to other schools

more distant from their home. She dealt

aggressively and actively with the Defen-

dant, Board of Education, suggesting

a a

several alternatives to transporting her

students away from the neighborhood

schools. When the Board of Education

decided that her children were to be trans-

ported away from her neighborhood school,

she and several other parents filed this

initial action in the United States Dis-

trict Court for the Eastern District of

Missouri, alleging that the Board of Educa-

tion was operating a segregated school

system, and asked to have the school system

declared as violating the United States

Constitution and several statutes.

After slightly more than three (3)

years of discovery and negotiations by the

attorneys for Mrs. Liddell and the attor-

neys for the Board of Education, the parties

entered into a detailed stipulation of

facts, with a number of exhibits attached.

On December 24, 1975 they entered into a

Consent Decree seemingly disposing of the

case without a full trial. The Consent

Decree was approved by the District Court

Judge, and the implementation of the decree

ensued. On January 16, 1976, the NAACP,

representing another parent group, sought

to intervene in the underlying cause,

Claiming that Mrs. Liddell and her attor-

neys no longer represented the interests of

all of the class. The attempted interven-

tion was opposed by the Liddell parent

group. Ultimately the NAACP was allowed to

intervene, and on July 13, 1977, Adams, et

al. were also allowed to intervene. On

August 10, 1977, the United States also

became an Intervening Plaintiff. All of the

Intervening Plaintiffs claimed that’ the

Original Plaintiffs no longer represented

adequately the interests of the class, the

class being school children and their

parents. On August 12, 1977, Petitioners'

Complaint in Intervention, naming as Defen-

dants the United States of America, the

.Board of Education of the City of St. Louis,

the members of the Board, and various

officers of the Board, was filed. The

Cross-Complaint alleged that the St. Louis

school system had been constitutionally

desegregated in 1954. In 1977 the Board of

Education established a system of Magnet

Schools. In an effort to obtain financial

assistance, the Board filed an application

with the United States for funds. The

Cross-Complaint claimed that the Defen-

dants, United States of America and the

Board of Education of the City of St. Louis

and its members and officers unconstitu-

tionally, and wrongfully, conspired to

discriminate against white parochial stu-

dents on the basis of their religion and

race, in that the United States of America

and the Board of Education had created a

restrictive admissions requirement’ for

éfitrance into the Magnet Schools, operated

by the Board of Education and funded by the

United States. Under the complained of

admissions requirements, before each white

student would be admitted to the magnet

schools from aé_e religiously affiliated

school, five black students would have to be

admitted coming from any _ school. The

Complaint in Intervention further alleged

that, despite the 1954 voluntary desegrega-

tion of the St. Louis Public Schools,

students were being assigned to _ schools

farther than the .school next closest to

their homes for the purpose of racial

balance at the insistence, direction, and

coercion of the United States, all in

violation of 20 U.S.C. 1618, 1651, 1652, and

1656.

The United States did not file a

response to the allegations of the Com-

plaint in Intervention, but the Board of

Education, its members and certain of its

officers filed their answer on October 4,

1977, which answer denied the allegations

of racial and religious discrimination.

The Board admitted that, although it had

successfully desegregated its schools in

1954, it had adopted a policy which assigned

students to schools farther from the

pupil's home than the next closest schools

for the purpose of achieving racial

balance.

All of the correspondence between the

Defendants, United States of America and

the St. Louis Board of Education, offered by

Adams, et al., was admitted into evidence

during a trial which began on October 17,

1977. During the course of the trial,

testimony was offered concerning the nego-

tiations and discussions between the Defen-

dants, Board of Education and the United

States. Ernest Jones and Robert Wentz, both

of whom participated in discussions with

representatives of the United States, were

questioned about the details of their

discussions. MThe District Court sustained

objections to this questioning. An offer of

proof was made to the effect that the

proffered testimony would disclose that the

United States refused to approve funding to

the Board of Education with which to operate

its Magnet Schools unless and until the

Board of Education agreed to establish a

formal policy of limiting the number of

white students transferring from parochial

schools and establishing a formal policy of

assigning and transferring students’ to

schools farther away than the next closest

to their homes for the purpose of racial

balance. Under the required Magnet School

admissions policy, applications from public

school students would be processed first.

If room was available after these applica-

tions were processed, applications from

students moving into the City were

processed. Students from these two groups

would be admitted on the basis of not more

than three black children for each white

child. When all such applications were

processed, if room was still available,

applications from parochial students would

be processed. Parochial school students,

however, were to be admitted on the basis of

not more than one white student for every

five black students. The complained of

transfer and assignment policy required

that if a student was to be transferred

because his home school is overcrowded, he

was to be reassigned to a school which was a

majority of the opposite race, rather than

to the next closest school with available

space.

The trial concluded on May 26, 1978.

After all of the briefs had been filed, the

Oral arguments of the parties were pre-

sented to the District Court on February 2,

1979. As a part of their post trial briefs,

the United States and the Board of Education

filed Affidavits which purported to par-

tially amend the Magnet School admissions

requirement by treating the white parochial

students as transferring from the neighbor-

hood public school if the student attended

the public school within the past three

years. The requirement was not changed as

to parochial students being processed after

all other applications or the five to one

limitation. Nor was the reassignment

policy of overcrowded schools claimed to

have been amended. On April 12, 1979 the

United States District Court entered its

Order, Judgment and Memorandum Opinion,

finding amongst other things that’ the

Defendant, Board of Education of the City of

St. Louis had voluntarily constitutionally

desegregated the schools within the City of

St. Louis by their actions in 1954 and 1955.

The Court specifically found that the de

facto resegregation which exists in the St.

Louis public schools was caused by factors

beyond the control of the Board of: Educa-

tion. The Court also held that the Cross-

Complaint of Petitioners was moot, even

though there was no testimony or evidence

offered during the course of the pro-

ceedings to indicate that either the Board

of Education or the United States had

altered its requirement of the limitation

on white students coming from religiously

affiliated schools or its’ policy for

reassignment for overcrowding. The United

States District Court denied the applica-

tion of these Plaintiffs for attorneys'

fees and costs. On June 7, 1979, these

Appellants filed their Notice of Appeal and

Designation of Record and Statements of

Issues in the United States District Court

and this appeal was thereafter perfected.

On March 3, 1980, the United States

Court of Appeals for the Eighth Circuit

issued. its opinion reversing the District

Court's opinion of the effectiveness of the

1954 voluntary desegregation. The Court of

Appeals found that at least until 1954, the

Suburban St. Louis School Districts "col-

laborated with each other and with the City

of St. Louis to ensure the maintenance of

segregated schools." The Court did not note

the difference between the Board of Educa-

tion of the City of St. Louis and the City

of St. Louis. which are two separate govern-

ments. The Court, without additional com-

ment, sustained the District Court opinion

as to the mootness of the special admissions

requirement. The Court of Appeals also

ruled that the NAACP should be awarded

attorneys’ fees, if they desired them,

although the NAACP did not appeal the Dis-

trict Court's denial of fees. The Court

ordered the Board to file with the District

Court within 60 days a system-wide desegre-

gation plan affecting only the _ schools

within the City of St. Louis.

On April 21, 1980, these Petitioners

filed their Motion for a Stay with the

Circuit Court.

REASONS FOR GRANTING WRIT

Certiorari should be granted to

resolve whether the actions of third

parties, which result in de facto resegre-

gation, can be sufficiently impuned to

School Boards so as to allow a comparison of

the number of uniracial schools in 1954 to

the number of schools which are more than

85% one race in 1962 as the test of the

effectiveness of a voluntary desegregation

plan.

Certiorari should be granted to

resolve whether an intradistrict remedy can

be ordered and limited after a specific

finding of interdistrict violation.

III

Certiorari should be granted to

resolve whether post-trial Affidavits may

form the sole basis for judicial determina-

tions.

Certiorari should be granted _ to

resolve the appropriateness of attorneys'

fees awards in Civil Rights Cases.

CERTIORARI SHOULD BE GRANTED TO

RESOLVE WHETHER THE ACTIONS OF THIRD

PARTIES, WHICH RESULT IN DE FACTO RESEGRE-

GATION, CAN BE SUFFICIENTLY IMPUNED TO

SCHOOL BOARDS SO AS TO ALLOW A COMPARISON OF

THE NUMBER OF UNIRACIAL SCHOOLS IN 1954 TO

THE NUMBER OF SCHOOLS WHICH ARE MORE THAN

85% ONE RACE IN 1962 AS THE TEST OF THE

EFFECTIVENESS OF A VOLUNTARY DESEGREGATION

PLAN.

Since the Petitioners' Cross-Complaint

is based, in part, on the effectiveness of

the voluntary 1954 desegregation accom-

plished by the Board, the issue of that plan

is discussed first. If the 1954 plan was

constitutionally effective, then the

assignment policy from overcrowded schools

of 1977 was clearly illegal.

Prior to 1954, the Board of Education

of the City of St. Louis, a separate

governmental body from the City of St.

Louis, operated a State mandated de jure

segregated school system. Prior to this

Court's ruling in Brown vs. Board of Educa-

tion, 347 U.S. 483 (1954), the Board began

preparations for the establishment of a

desegregated system. Following the sugges-

tions of Brown, the Board set about to

establish neighborhood school boundaries.

The Board reduced all of its student infor-

mation to computer cards. The information

was then assembled in such a way that the

number of students attending public schools

and living on each city block was shown by

grade on separate cards. The capacity of

each school building was determined by

multiplying the number of classrooms in the

building by 30, which was the district-wide

pupil-teacher ratio. In this way, none of

the schools would be overcrowded, and all

schools would have the same pupil-teacher

ratio. Using the student location cards,

Students were assigned, by block of resi-

dence, to the nearest school until that

school's capacity was reached, and then the

next school was used. Every child on a

given block was, in this way, assigned to

the same school. A block would not be

divided. Both the elementary and secondary

school assignments were made the same way.

This is the kind of neighborhood assignment

system approved in Brown vs. Board of Educa-

tion, 349 U.S. 294, 300-301 (1955), Ellis

vs. Board of Public Instruction, 423 F.2d

203, 207-208 (5 C.A., 1970); Goss vs. Board

of Education, 406 F.2d 1183 (6 C.A., 1969),

444 F.2d 632, 636-637 (6 C.A., 1971); Goss

vs. Board of Education, 320 F.Supp. 549,

551 (E.D. Tenn., 1970).

Prior to 1954, the Board operated two

teachers colleges, Harris College for

Whites and Stowe College for Blacks. The

two schools were desegregated by merging

the two of them into one, and all students

attending the same building, subsequently

named Harris-Stowe Teachers College. All

the special schools were similarly merged,

so that all of the orthopedically handi-

capped students, black and white, attended

the same building. The implementation of

the plan began in September, 1954 and was

concluded in September, 1955.

The black population, prior to 1954,

was widely dispersed throughout the City of

St. Louis, although in many areas there were

very few black families. The 1950 Census

reflects that the highest concentrations of

black families were on the immediate north

and west sides of the downtown business dis-

trict. Even in these areas, there was a

racial mixture of population.

Immediately after the implementation

of the Board's plan, there were very few

schools which did not contain a racially

mixed student population. The community

acceptance of the plan was evidenced by a

survey of parent preferences. The parents

were asked their vreference as to the school

they would prefer their children to attend.

This preference poll reflected that the

vast majority of parents preferred the

children to attend the racially mixed

neighborhood schools, so that if the

parents' preferences had governed, 37 of

the 83 formerly white elementary schools

would have black enrollments ranging from

56% to 1%, while 13 of the 40 formerly black

schools would have white enrollments of

from 18% to less than 1%. The preference

poll reflected that over two-thirds of the

entire student population was attending

racially mixed schools. As the school year

went on, these preferences changed more and

more to the neighborhood school, which

would have produced more racial mixture.

While these figures reflect a high degree of

racial mixture, the actual mixture was

higher. The preference poll would imply

that those not preferring the racially

mixed neighborhood schools were applying to

their former uniracial school. . These

applications were approved only if there

was sufficient room in these schools, and if

the students provided their own transporta-

tion. Realizing that there would not be

room in most of these schools, or that the

transportation would be too prohibitive,

many students were attending their neigh-

borhood schools even though they may have

"preferred" otherwise. This limited option

was not available to students who were

either starting in the public school for the

first time or were starting high school

after graduating from elementary school.

Since the Board maintained no racial

data on their students between 1955 and

1962, we do not know the exact racial mix-

ture in each school for this’. period.

Because of information from other sources,

we do know that the resident populations in

many school attendance zones were racially

mixed between 1954 through 1962. ‘the St.

Louis Housing Authority maintainea statis-

tical data on the race of the residents

living in public housing projects. Use of

the 1950 and 1960 Census tract data also

provided a reasonably accurate representa-

tion of the racial configuration of the

attendance zones. In almost’ every

instance, we saw a racially mixed student

population in 1954 and 1955 become resegre-

gated by population shifts. We know that by

1962, 11 of the 80 formerly white elementary

schools and 1 of the 7 formerly white high

schools had become 90% black in student

enrollment. The District Court, in dis-

cussing the rapidly changing racial compo-

sition of school enrollments attributed

these changes to population movements into,

out of, and within the City of St. Louis.

The Court of Appeals concluded that this was

the evidence that the Board of Education had

maintained segregated schools.

The Court of Appeals found the Dis-

trict Court was in error in determining that

the 1954 desegregation plan met the Consti-

tutional requirements as well as the effec-

tiveness of the plan. In commenting on the

effectiveness of the 1954 plan, the Circuit

Court said:

"An examination of the maps

and population statistics in this

record makes it clear that the

Board could have, without sacri-

ficing the neighborhood concept,

drawn the boundaries so as to

include numbers of white students

in the formerly all-black

schools. A reading of the record

also makes clear, however, that

strong community opposition has

prevented the Board from inte-

grating the white children of

south St. Louis with the black

children of north St. Louis."

In its opinion, the District Court

described the physical, social, and govern-

me tal forces which caused the racial com-

position of various areas and schools in St.

Louis to change subsequent to 1954. Amongst

the causes listed for de facto resegrega-

tion of the public schools were the building

of expressways and widespread automobile

ownership, abundance of land in suburban

areas suitable for home’ construction,

increase of employment opportunities in

suburban areas, migration of blacks within

the City of St. Louis, demolition of slum

areas within the area, and subsequent con-

struction of low income housing projects,

physical abandonment of neighborhoods by

property owners and housing segregation

practiced by the United States Department

of Housing and Urban Development. The Dis-

trict Court found that these forces acted in

such a way to cause the student racial com-

position in schools to change so rapidly

that, for instance, in the central section

of St. Louis, the public schools lost 35% of

their population in six months, while a

nearby section gained as much as 25% new

students in the same amount of time. The

District Court noted:

"The eventual result of the

massive population shifts and

changing school enrollments was

the resegregation of many schools

that were previously integrated."

The Court of Appeals acknowledged:

"We do recognize that many of

the factors cited by the (District)

Court, including actions of the

state and federal governments,

have intensified racial segre-

gation in north St. Louis. We

have taken this fact into con-

sideration in determining’ the

appropriate remedy in this case."

The issue was raised, at both the Dis-

trict and Circuit Court levels, that the

establishment of the neighborhood assign-

ment system had the foreseeable conse-

quences of maintaining the pre-1954 segre-

gated schools. The District Court con-

Cluded that the 1954 plan did not have the

foreseeable effect of maintaining segrega-

tion because "The massive changes in the

racial make up of the City in the late

1950's and 1960's were not foreseeable by

the Board." Austin Independent School

District vs. United States, 429 U.S. 990,

994 (1976). In ruling that this conclusion

was clearly erroneous, the Circuit Court

found that:

"The Board knew that when

its plan was implemented, the -

white schools in south St. Louis

would remain white and the black

schools in the ‘'core' area of the

City would remain black."

The portions of the District Court and

Circuit Court opinions quoted above dis-

Close the disparate conclusions reached by

the two courts as to the findings of fact.

The Circuit Court gave little, if any,

deference to the District Court's factual

adjudication, as it should have. Columbus

Board of Education vs. Penick, Uebe

; 61 L.Ed.2d 666, 684-685, and 718

(1979); Dayton Board of Education vs.

Brinkman, U.S. , 61 L.Ed.2d 720,

731, and 737 (1979). In its haste to apply

a new standard to test the effectiveness of

the 1954 desegregation plan, the Circuit

Court declined to examine the events taking

place between 1954 and 1962. The Circuit

Court declined to give the required defer-

ence to the District Court in applying the

Clearly erroneous rule. In view of this

lack of deference by the Circuit Court, it

becomes incumbent on this Court to review

the evidence and testimony to apply the

Clearly erroneous rule. Dayton Board of

Education vs. Brinkman, U.S.

; 61 L.Ed.2d 720, 731, and 737 (1979) ;

Columbus Board of Education vs. Penick,

U.S. ; 61 L.Ed.2d 666,

686, 687, and a 658. (1979).

In determining whether the 1954 plan

was effective in disestablishing the pre-

1954 dual school system, the Court of

Appeals chose to compare the pre-1954

racial composition of schools to the number

of schools that were predominantly uni-

racial in 1962. The Court made no examina-

tion of the data and evidence introduced at

trial as to the condition of schools between

1955 and 1962. This data discloses that

during this period only a few schools were

uniracial. The Court found that by 1962,

all of the pre-1954 black schools still in

existence were all or virtually all black.

The Court did not discuss that of these 28

pre-1954 black schools, 12 of them had white

Students in 1962. Neither did the Court

discuss the fact that of the 80 pre-1954

white schools, 55 of them contained blacks

in 1962. In addition, the Court of Appeals

did not comment on the fact that 12 of the

pre-1954 white schools had become at least

90% black by 1962. Nor did the Court con-

sider the natural consequences of the

29,061 additional black students enrolled

in 1962 over the number enrolled in 1954.

The Court concluded that the 1954 plan was

ineffective because eight years later, in

1962, 16 of 28 pre-1954 black schools had no

white students, 38 other schools were more

than 90% black, 81% of the black students

attended schools that were at least 90%

black, and 67% of the white students

attended schools that were at least 90%

white. Putting aside the racial changes in

the individual schools' enrollment between

1954 and 1962, the Court of Appeal's conclu-

sion is based on the fact that of the 131

schools operated by the Board, 37 had the

Same racial composition in 1962 as they did

in 1954. Of these 37 schools, most, if not

all, had some varying degrees of racial mix

between 1954 and 1962.

The Court of Appeals has thus estab-

lished a new criteria for determining the

effectiveness of a voluntary desegregation

plan. The Court of Appeals has in effect

stated that the test is the number of one

race schools prior to the implementation of

a plan and the number of one race schools

eight years after the implementation of the

plan. Intervening events and the fact that

many of the schools have reversed their

racial composition are to be treated as

foreseeable by and therefore impunable to

the Board. The Circuit Court's opinion

would seem to be a departure from previous

rulings that school boards do not have a

continuing obligation to make = annual

adjustments after creating a unitary and

desegregated school system. Pasadena City

Board of Education vs. Spangler, 427 U.S.

424, 434-435 (1976).

Prior to this decision, it was accept-

able to use the neighborhood assignment to

disestablish a dual attendance and school

system. Brown vs. Board of Education, 349

U.S. 294, 300-301 (1955); Green vs. New

Kent County Board of Education, 391 U.S.

430, 442 (1968); Swann vs. Charlotte-

Mecklenburg, 402 U.S. 1, 28 (1971); Goss vs.

Board of Education, 406 F.2d 1183, (6 C.A.,

1969); Ellis vs. Board of Public Instruc-

tion, 423 F.2d 203, 207-208 (5 C.A., 1970).

There has not been any particular minimum

racial mixture required at each school in

the system to have a unitary system. Swann

vs. Charlotte-Mecklenburg, 402 U.S. 1, 24

(1971); Milliken vs. Bradley, 418 U.S. 717,

740-741 (1974); Austin Independent School

District vs. United States, 429 U.S. 990,

995 (1976). Similarly, a plan is not defec-

tive merely because a higher degree of

racial mixture is theoretically possible

than provided in a particular plan. Calhoun

vs. Cook, 525 F.2d 1203 (5 C.A., 1975); 20

U.S.C. §1704.

The use of comparing a school system in

years several years apart has not been pre-

viously judicially approved as a proper

test. The reasons are that urban areas are

in a constant state of flux and not suscep-

tible to stability over any particular

period of time. Pasadena vs. Spangler, 427

U.S. 424, 436 (1976).

The Circuit Court of Appeals. has

established a new test for reviewing the

effectiveness of desegregation efforts.

Unless this Court grants its Writ of Certio-

rari, every school district in the Eighth

Circuit which voluntarily desegregated sub-

sequent to 1954 is at risk of having a chal-

lenge to their school system if the school

system is not racially balanced at least

eight years later. This will not only chill

the voluntary desegregation efforts, but

will increase litigation in school cases

and establish separate Constitutional

criteria amongst the circuits. Because the

Circuit Court's opinion uses and estab-

lishes a new test not previously used or

approved, the opinion should be reviewed by

this Court to determine whether the test is

a proper measure of the effectiveness of

voluntary desegregation plans. In order to

insure a uniform rule of law amongst the

Circuits and encourage voluntary compliance

with the Constitution, this Court should

issue its Writ of Certiorari.

CERTIORARI SHOULD BE GRANTED - TO

RESOLVE WHETHER AN INTRADISTRICT REMEDY CAN

BE ORDERED AND LIMITED AFTER A SPECIFIC

FINDING OF INTERDISTRICT VIOLATION.

As a part of its findings, the Circuit

Court concluded and noted that "some subur-

ban communities in Missouri continue to try

to enforce discriminatory housing restric-

tions against blacks." The Court also found

that "St. Louis County suburban school

districts collaborated with each other and

with the City of St. Louis to insure the

Maintenance of segregated schools." Among

the practices cited by the Court was the

assignment and transportation of black

students living in the suburbs to black

schools in the City. For the purposes of

this petition, we assume that the Court mis-

construed the difference between’ the

government of the City of St. Louis and the

Board of Education of the City of St. Louis

and that it presumed the two governmental

units were the same governmental unit. The

Court also found that actions of the State

and Federal governments enforced racial

housing discrimination in the Metropolitan

St. Louis area.

Having found these interdistrict and

intergovernmental violations were amongst

the causes for what the Court determined was

a de jure segregated school system, the

Circuit Court concluded that the remedy

would be limited to the confines of the City

of St. Louis. In limiting the remedy for

interdistrict violations to an _ intra-

district remedy, the Court admitted that

the interdistrict remedy would have the

best chance of permanently integrating the

schools in the metropolitan St. Louis area.

The court quoted the "expert" proffered by

the United States on potential remedies.

Dr. Orfield testified:

"(T]he most stable kind of

plan is a metropolitan-wide pro-

portional enrollment plan...

"Anything that can be done

to involve the suburban districts

should be done.”

In directing the scope of the remedy it

ordered, the Court limited the remedy to the

City of St. Louis.

"The Board is, therefore, to

be required to develop a system-

wide plan for integrating the

elementary and secondary schools

of the district."

In most prior cases before this Court,

the issue has been whether an interdistrict

remedy can be ordered in the absence of an

interdistrict violation. Milliken vs.

Bradley, 418 U.S. 717, 744-745 (1974). In

some cases, where an interdistrict viola-

tion has been found, an interdistrict

remedy has been ordered. United States vs.

Board of School Commissioners, 54l F.2d

1211 (7 C.A., 1976), vacated and ~emanded

429 U.S. 1068 (1977); reconsidered 573 F.2d

400 (7 C.A., 1978) cert. denied 439 U.S.

824 (1978), on remand 456 F.Supp. 183 (S.D.

Ind., 1978); Newburg Area Council, Inc. vs.

Board of Education, 489 F.2d 925 (6 C.A.,

1973), vacated and remanded 418 U.S. 918

(1974), reconsidered 510 F.2d 1358 (6 C.A.,

1974), cert. denied 421 U.S. 931 (1975);

Evans vs. Buchanan, 416 F. Supp. 328 (D.

Del., 1976); 555 F. 2d 373 (3 C.A., 1977),

447 F.Supp 982 (D. Del., 1978), aff'd. 582

P.20. 750 (3 C.A., 1976).

This poses the heretofore unique con-

verse of previous decisions. Where in the

past the Courts have limited intradistrict

remedies to those cases where no inter-

district violations were found, in this

case, the Circuit has limited the cor-

recting of the interdistrict violation to

an intradistrict remedy. The Circuit

Court's opinion unequivocally stands as

precedent that Federal Courts have

seemingly unguided discretion to remedy

interdistrict violations by either inter-

district or intradistrict remedies. Under

this precedent, it would appear that the

remedies for violations need not _ be

tailored to fit the violation. Such a rule

is a departure from previous rulings of this

Court. Regents of the University of

California vs. Bakke, 438 U.S. 265, 300-301

(1978). The Circuit Court unequivocally

took this interdistrict collaboration into

account in fashioning the ordered remedy.

"We do recognize that many

of the factors cited by the

Court, including actions of the

State and Federal governments,

have intensified racial segrega-

tion in north St. Louis. We have

taken this into consideration in

determining the appropriate

remedy in this case. We have no

alternative but to require a

system-wide remedy for what is

clearly a system-wide violation."

If the remedy is to be limited to the

City of St. Louis and is to be imple-

mented by the Board of Education, then it

would seem that the interdistrict violation

had no effect on the conditions in the City

of St. Louis. If that is true, then there

would be no need to fashion a system-wide

remedy to overcome these violations. If

there was no interdistrict violation, then

the remedy ordered by the Circuit Court

would be too severe. However, if there were

interdistrict violations, then limiting the

remedy to the City of St. Louis would be too

restrictive. The Circuit Court appears to

be saying that an interdistrict violation

should be cured by an intradistrict remedy.

Unless this Court issues its Writ of

Certiorari, there will be a clear,

unresolved conflict within the circuits as

to whether an intradistrict is constitu-

tionally acceptable after a judicial deter-

mination and finding of an interdistrict

violation.

Iif

CERTIORARI SHOULD BE GRANTED TO

RESOLVE WHETHER POST-TRIAL AFFIDAVITS MAY

FORM THE SOLE BASIS FOR JUDICIAL DETERMINA-

TIONS.

The Petitioner had filed a Cross-

Complaint in Intervention against the

United States and the Board of Education,

its members, and administrative officers,

in which they alleged that the Defendant,

United States, coerced and conspired with

Defendant, Board, its members and officers,

to establish discriminatory entrance

requirements and assignment policies subse-

quent to April 22, 1977. The Cross-

Complaint alleged that the public schools

were desegregated in the school year 1954-

1955, and remained de jure desegregated

until April 22, 1977. It was on or about

April 22, 1977 that the unlawful transpor-

tation and Magnet School policies were

approved by the United States and the Board

of Education. In order to fund the opera-

tion of its Magnet Schools, the Board of

Education applied to the United States,

through the Department of Health, Educa-

tion, and Welfare, for financial grants and

assistance. The Defendant, United States,

conditioned its funding of the Magnet

Schools on the Board accepting and adopting

these two assignment and admission

policies. In order to obtain the funds from

the United States, the Board, after origi-

nally objecting to the requirements, ulti-

mately acceded to the demands of the United

States. The Board thereafter complied with

the requirements of the United States. The

Cross-Complaint sought a declaratory judg-

ment declaring the policies unconstitu-

tional and illegal and attorneys' fees

under the provisions of 42 U.S.C. 1988.

There are two categories of unlawful

acts involved. The first was the reassign-

ment of students in overcrowded schools to

schools more distant than the next closest

school with available space. The assign-

ments were made to accomplish a higher

degree of racial mixture. The practice was

in violation of the 14th Amendment of the

United States Constitution, 20 U.S.C.

§§1618, 1651, 1652, 1656, and 42 U.S.C.

§§1981, 1983, 1985(3), and 2000-C. The

second violation dealt with the federal

funding of the Magnet Schools operated by

the Board. The Magnet Schools were special-

ized elementary and secondary schools con-

centrating curricula in designated areas.

Admission to these schools was by applica-

tion, with the racial limitation that each

school had to be at least 50% but not more

than 75% black in its student enrollment.

In determining which applications would be

approved, the Board acceded to several

restrictions, which- included (1) applica-

tions from public school students would be

reviewed first; (2) students would be

admitted on the basis of not more than 3

black public school students for every one

white public school student; (3) students

moving into the City for the first time

would be treated as applying from the City

public schools; (4) after these applica-

tions are processed, if there is still space

available, applications from non-public

school students would be processed; and (5)

white students applying from religiously

affiliated schools would be admitted on the

basis of one such student for every five

black students. This admission criteria

was in violation of the First and Fourteenth

Amendments to the United States Constitu-

tion, 42 U.S.C. §§1981, 1983, 1985(3), and

Article IX, Section l(a) of the Missouri

Constitution.

The United States denied none of the

allegations of the Cross-Complaint. At the

trial, the District Court barred any oral

testimony as to conversation between repre-

sentatives of the Board and the United

States on the allegations of the Cross-

Complaint, but accepted into evidence the

correspondence between them. An offer of

proof was made that if oral testimony had

been permitted, it would have disclosed

that the United States imposed an absolute

prerequisite that the Board would have to

accept and adopt all of the complained of

policies or the United States would deny the

funding for the Magnet Schools. The corres-

pondence between these parties, which was

accepted into evidence, disclosed the major

part of the United States' pre-conditions.

Some eight months after the close of

the trial, as a part of the post-trial

briefing, the Board and the United States

contended that they had modified a portion

of their magnet school admission criteria

and that the Cross-Complaint was therefore

moot. The alleged modification provided

that if a white parochial school student had

not attended a public school within the

three prior years, he or she would be

treated as applying from the public

schools. The modification had no effect on

the reassignment for overcrowding policy,

nor did it alter the situation for white

parochial students' applications being

processed after those of public’ school

students, nor did it alter the 5-1 limita-

tion on students who had attended any public

school within the three prior years.

The District ruled that the Cross-

Complaint was nevertheless moot, and denied

attorneys' fees. The Court of Appeals

affirmed this part of the District Court

Judgment. While the District Court found

the policies to have no rational basis,

neither Court made any specific findings of

fact or conclusions of law as to why the

case was treated as moot. Federal Rule of

Civil Procedure 52(a); 9 Wright & Miller,

Federal Practice and Procedure, §2579. In

the absence of any evidence of mootness at

trial, the only intimations that the com-

plained of policies do not remain unabated

were the representations of the Defendants

after the trial concluded. The opinions of

the District and Circuit now stand as prece-

dent that parties may offer “evidence”

after trial without reopening the case, and

that if this "“evidence" indicates any

change in the circumstances of the case,

however slight, the case can be dismissed as

moot.

Petitioners admit that they can find

no authority for such precedent prior to

this case, and, indeed, neither the Dis-

trict nor the Circuit Courts cited any such

authority. This judicial policy is unique

in American Jurisprudence. Unless this

Court grants its Writ of Certiorari, a new

rule of law will be established which would

provide an effective device to thwart all

civil rights actions. Parties accused of

civil rights violations could. slightly

modify their misdeeds after the trial and be

assured that the Plaintiff's cause would be

dismissed.

CERTIORARI SHOULD BE GRANTED ‘TO

RESOLVE THE APPROPRIATENESS OF ATTORNEYS'

FEES AWARDS IN CIVIL RIGHTS CASES.

The District Court denied attorneys'

fees for all Plaintiffs. The Plaintiffs

requesting the award of fees were the origi-

nal Plaintiffs, Craton Liddell, et al; your

petitioners, Janice Adams, et al.; and,

arguably, the NAACP. Only the original

Plaintiffs and your Petitioners appealed

this portion of the District Court's Order.

Although the NAACP did not appeal the denial

of attorneys' fees to it, the Court of

Appeals reversed the District Court on fees

for the original Plaintiff and the NAACP,

but affirmed as to fees for Petitioners.

Prior to the decisions in this case,

attorneys' fees were awarded under 42

U.S.C. 1988, to the prevailing Plaintiff.

As to Petitioners' Cross-Complaint, the°

Plaintiff was considered to have prevailed

if judgment was entered in his favor, or if

Defendants terminated the complained of

practice before judgment. Wharton vs.

Knefel, 562 F.2d 550, 557 (8 C.A., 1977;

International Society of Krishna _ vs.

Anderson, 569 F.2d 1027, 1029 (8 C.A.,

1978); Nebraska Penal and Correctional

Complex vs. Greenholz, 567 F.2d 1381, 1384

(8 C.A., 1977). It must also appear that

the voluntary cessation of unlawful conduct

must be such that there is no reasonable

possibility that the wrong can be reiniti-

ated. Rabinowitz vs. Board of Junior

College District No. 508, 507 F.2d 1255,

1256 (7 C.A., 1974). Petitioners urge that

they were the prevailing parties. The

uncontroverted evidence unequivocally dis-

closes that the discriminatory practice

continued unabated until after the trial

concluded on May 26, 1978. All the evidence

discloses that there was no educational or

administrative basis for the two complained

of policies. On this basis, Petitioners

should have prevailed. Wharton vs. Knefel,

562 F.2d 550, 557 (8 C.A., 1977), citing

Newman vs. Piggie Park Enterprises, Inc.,

390 U.S. 400, 402-403 (1968). Even if the

Claimed cessation by the Board and the

United States had in fact totally and

irrevocably terminated the unlawful and

discriminatory policies, Petitioners should

have been treated as the prevailing

parties.

Unless this Court issues its Writ of

Certiorari, the Civil Rights Attorneys'

Fees Award Act of 1976 (42 U.S.C. §1988)

will have become judicially amended, if not

repealed. There does not appear to be any-

thing in the legislative history of this Act

or in prior judicial decisions to indicate

that this is the desire of the Congress.

The Circuit Court also concluded that

it was “unclear” whether the NAACP had

requested attorneys' fees at the District

Court level, but most assuredly, the denial

of fees to it by the District Court was not

appealed. Nevertheless, the Circuit Court

ordered that, if the NAACP had requested

attorneys' fees in the District Court, the

District Court should, on remand, determine

a reasonable attorneys' fee for them.

This part of the Circuit Court deci-

sion presents two unique aspects. The first

is that the Circuit Court has awarded attor-

neys' fees when it was doubtful whether any

had been requested. The second is that the

Circuit Court has reversed that part of the

judgment from which no appeal was taken.

We are unable to locate any cases which

hold that a Court can award attorneys' fees

when it is doubtful that any were requested.

Unless this Court issues its Writ of Certio-

rari, the Circuit Court's opinion will

stand for authority that attorneys' fees

will be awarded automatically and as a

matter of course, regardless of whether any

are requested.

The second issue, the failure of the

NAACP to appeal, is more serious in its con-

sequences to the judicial process. Rule

28(a) Federal Rules of Appellate Procedure

required the Appellant to set out the issues

which it is appealing. Regarding any issue

not set out in the brief, the point has not

been preserved for appeal, and the Circuit

Court may not consider the question.

General Finance Loan Co. vs. General Loan

Co., 163 F.2d 709, 711 (8 C.A., 1947); Brown

vs. Sielaff, 474 F.2d 826, 828 (3 C.A.,

1973); Virginians for Dulles vs. Volpe, 541

F.2d 442, 444 (4 C.A., 1976). The Circuit

Court specifically noted that the NAACP did

not appeal the denial of attorneys' fees to

it. Nevertheless, the Court gratuitously

reversed the District Court and ordered the

District Court to determinine a reasonable

fee, if the NAACP had asked for one.

Unless this Court issues its Writ of

Certiorari, this case would make a shambles

of the orderly process of Federal Judicial

Appellate Procedure. The Circuit Courts

should speculate as to what issues might be

reviewable. The Courts would be granted a

roving commission to roam through the

records of proceedings and to create issues

when none are presented for their decision.

Unbridled and perhaps arbitrary discretion

would be vested in Circuit Courts, and no

judgment of a District Court would be safe

from collateral attack.

CONCLUSION

For all these reasons, it is respect-

fully urged that this Court order and issue

its Writ of Certiorari and that the Court

take jurisdiction to hear the appeal.

Respectfully submitted,

ANTHONY J. SESTRIC

1015 Locust Street, Suite 601

St. Louis, Missouri 63101

(314) 241-8600

Attorneys for Petitioners

APPENDIX 1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

CRATON LIDDELL, et al.,

Plaintiffs,

vs.

THE BOARD OF EDUCATION

OF THE CITY OF ST. LOUIS,

STATE OF MISSOURI, et al.,

Defendants.

UNITED STATES CONSTITUTION

AMENDMENT 1

Religious and Political Freedom.

Congress shall make no law respecting

an establishment of religion, or prohib-

iting the free exercise thereof; or abridg-

ing the freedom of speech, or of the press;

or the right of the people peaceably to

assemble, and to petition the Government

for a redress of grievances.

AMENDMENT 14

Section 1. Citizens of the United States.

All persons born or naturalized in the

United States, and subject to the jurisdic-

tion thereof, are citizens of the United

States and of the State wherein they re-

side. No State shall make or enforce any

law which shall abridge the privileges or

immunities of citizens of the United States;

nor shall any State deprive any person of

life, liberty, or property, without due

process of law; nor deny to any person

within its jurisdiction the equal protec-

tion of the laws.

Section 5. Power to Enforce Amendment.

The Congress shall have power to en-

force, by appropriate legislation, the

provisions of this article.

TITLE 20 UNITED STATES CODE

§ 1601. Findings and Purpose

(a) The Congress finds that the proc-

ess of eliminating or preventing minority

group isolation and improving the quality

of education for all children often in-

volves the expenditure of additional funds

to which local educational agencies do not

have access.

(b) The purpose of this title [20

USCS §§ 1601 et seq.] is to provide finan-

cial assistance-

(1) to meet the special needs in-

cident to the elimination of minority group

segregation and discrimination among stu-

dents and faculty in elementary and secon-

dary schools;

(2) to encourage the voluntary

elimination, reduction, or prevention of

minority group isolation in elementary and

secondary schools with substantial propor-

tions of minority group students; and

(3) to aid school children in

overcoming the educational disadvantages

of minority group isolation. .

§ 1618. Neighborhood Schools

Nothing in this title [20 USCS §§ 1601

et seq.] shall be construed as requiring

any local educational agency which assigns

students to schools on the basis of geo-

graphic attendance areas drawn on a racial-

ly nondiscriminatory basis to adopt any

other method of student assignment.

§ 1651. Limitation

No pravision of this Act shall be con-

strued to require the assignment or trans-

portation of students or teachers in order

to overcome racial imbalance.

§ 1652. Prohibition Against Use of Appro-

priated Funds for Bussing

(a) No funds appropriated for the pur-

pose of carrying out any applicable program

may be used for the transportation of stu-

dents or teachers (or for the purchase of

equipment for such transportation) in order

to overcome racial imbalance in any school

or school system, or for the transporta-

tion of students or teachers (or for the

equipment for such transportation) in order

to carry out a plan of racial desegregation

of any school or school system, except on

the express written voluntary request of

appropriate local school officials. No such

funds shall be made available for transpor-

tation when the time or distance of travel

is so great as to risk the health of the

children or significantly impinge on the

educational process of such children, or

where the educational opportunities avail-

able at the school to which it is proposed

that any such student be transported will

be substantially inferior to those oppor-

tunities offered at the school to which

such student would otherwise be assigned un-

der a nondiscriminatory system of school

assignments based on geographic zones es-

tablished without discrimination on account

of race, religion, color, or national ori-

gin.

(b) No officer, agent, or employee of

the Department of Health, Education and

Welfare (including the Office of Education),

the Department of Justice, or any other Fed-

eral agency shall, by rule, regulation, or-

der, guideline, or otherwise (1) urge, per-

suade, induce, or require any local educa-

tion agency, or any private nonprofit agen-

cy, institution, or organization to use any

funds derived from any State or local

sources for any purpose, unless constitu-

tionally required, for which Federal funds

appropriated to carry out any applicable

program may not be used, as provided in

this section, or (2) condition the receipt

of Federal funds under any Federal program

upon any action by any State or local pub-

lic officer or employee which would be pro-

hibited by clause (1) on the part of a Fed-

eral officer or employee. No officer, a-

gent, or employee of the Department of

Health, Education, and Welfare (including

the Office of Education) or any other Fed-

eral agency shall urge, persuade, induce,

or require any local education agency to

undertake transportation of any student

where the time or distance of travel is so

great as to risk the health of the child or

significantly impinge on his or her educa-

tional process; or where the educational op-

portunities available at the school to w.ich

it is proposed that such student be trans:

ported will be substantially inferior to

those offered at the school to which such

student would otherwise be assigned under a

nondiscriminatory system of school assign-

ments based on geographic zones established

without discrimination on account of race,

A- 4

religion, color or national origin.

gram to which the General Education Provi-

sions Act [20 USCS §§ 1221 et seq.] applies.

§ 1654. Intervention in Court Orders

A parent or guardian of a child, or

parents or guardians of children similarly

situated, transported to a public school in

accordance with a court order, may seek to

reopen or intervene in the further implemen-

tation of such court order, currently in ef-

fect, if the time or distance of travel is

so great as to risk the health of the stu-

dent or significantly impinge on his or her

educational process.

§ 1656. Construction of Proviso Prohib-

iting Use of Bussing to Achieve

Racial Balance

The proviso of section 407(a) of the

Civil Rights Act of 1964 [42 USCS § 2000c-6]

providing in substance that no court or of-

ficial of the United States shall be empow-

ered to issue any order seeking to achieve

a racial balance in any school by requiring

the transportation of pupils or students

from one school to another or one school

district to another in order to achieve such

racial balance or otherwise enlarge the ex-

isting power of the court to insure compli-

ance with constitutional standards shall ap-

ply to all public school pupils and to every

public school system, public school and

public school board, as defined by title IV

[42 USCS §§ 2000c et seq.], under all cir-

cumstances and conditions and at all times

in every State, district, territory, Common-

wealth, or possession of the United States

regardless of whether the residence of such

public school pupils or the principal of-

fices of such public school system, public

school or public school board is situated

in the northern, eastern, western, or

southern part of the United States.

§ 1704. Balance Not Required

The failure of an educational agency

to attain a balance, on the basis of race,

color, sex, Or national origin, or stu-

dents among its schools shall not consti-

tute a denial of equal educational oppor-

tunity, or equal protection of the laws.

§ 1705. Assignment on Neighborhood Basis

Not a Denial of Equal Educational

Opportunity

Subject to other provisions of this

part [20 USCS §§ 1701 et seq.], the assign-

ment by an educational agency of a student

to the school nearest his place of resi-

dence which provides the appropriate grade

level and type of education for such stu-

dent is not a denial of equal educational

opportunity or of equal protection of the

laws unless such assignment is for the pur-

pose of segregating students on the basis

of race, color, sex, or national origin,

or the school to which such student is as-

Signed was located on its site for the pur-

pose of segregating students on such basis.

§ 1706. Civil Actions

An individual denied an equal educa-

tional opportunity, as defined by this part

[20 USCS §§ 1701 et seq.] may institute a

civil action in an appropriate district

court of the United States against such par-

ties, and for such relief as may be appro-

priate. The Attorney General of the United

States (hereinafter in this title [20 USCS

§§ 1701 et seq.] referred to as the "Attor-

ney General"), for or in the name of the

United States, may also institute a civil

action on behalf of such an individual.

TITLE 42 UNITED STATES CODE

§ 1981. Equal Rights Under the Law

All persons within the jurisdiction of

the United States shall have the same right

in every State and Territory to make and

enforce contracts, to sue, be parties, give

evidence, and to the full and equal benefit

of all laws and proceedings for the securi-

ty of persons and property as is enjoyed by

white citizens, and shall be subject to

like punishment, pains, penalties, taxes,

licenses, and exactions of every kind, and

to no other.

§ 1983. Civil Action for Deprivation of

Rights

Every person who, under color of any

statute, ordinance, regulation, custom, or

usage, of any State or Territory, subjects,

or causes to be subjected, any citizen of

the United States or other person within

the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities se-

cured by the Constitution and laws, shall be

liable to the party injured in an action at

law, suit in equity, or other proper pro-

ceeding for redress.

§ 1985. (3) Depriving Persons of Rights

or Privileges.

If two or more persons in any State or

Territory conspire, or go in disguise on the

highway or on the premises of another, for

the purpose of depriving, either directly

or indirectly, any person or class of per-

sons of the equal protection of the laws,

or of equal privileges and immunities un-

der the laws, or for the purpose of pre-

venting or hindering the constituted au-

thorities of any State or Territory from

giving or securing to all persons within

such State or Territory the equal protec-

tion of the laws; or if two or more per-

sons conspire to prevent by force, intim-

idation, or threat, any citizen who is

lawfully entitled to vote, from giving

his support or advocacy in a legal man-

ner, toward or in favor of the election

of any lawfully qualified person as an

elector for President or Vice-President,

or as a member of Congress of the United

States; or to injure any citizen in per-

son or property on account of such sup-

port or advocacy; in any case of conspir-

acy set forth in this section, if one or

more persons engaged therein do, or cause

to be done, any act in furtherance of the

object of such conspiracy, whereby another

is injured in his person or property, or

deprived of having and exercising any

right or privilege of a citizen of the

United States, the party so injured or de-

prived may have an action for the recovery

of damages, occasioned by such injury or

deprivation, against any one or more of

the conspirators.

§ 1988. Proceedings in Vindication of

Civil Rights

The jurisdiction in civil and crimin-

al matters conferred on the district courts

by the provisions of this Title, and of Ti-

tle "CIVIL RIGHTS," and of Title "CRIMES,"

for the protection of all persons in the

United States in their civil rights, and

for their vindication, shall be exercised

and enforced in conformity with the laws

of the United States, so far as such laws

are suitable to carry the same into ef-

fect; but in all cases where they are not

adapted to the object, or are deficient

in the provisions necessary to furnish

Suitable remedies and punish offenses a-

gainst law, the common law, as modified

and changed by the constitution and stat-

utes of the State wherein the court having

jurisdiction of such civil or criminal

cause is held, so far as the same is not

inconsistent with the Constitution and

laws of the United States, shall be ex-

tended to and govern the said courts in

the trial and disposition of the cause,

and, if it is of a criminal nature, in the

infliction of punishment on the party

found guilty. In any action or proceeding

to enforce a provision of sections 1977,

1978, 1979, 1980, and 1981 of the Revised

Statutes [42 USCS §§ 1981-1983, 1985,

1986], title IX of Public Law 92-318 [20

USCS §§ 1681 et seq.], or in any civil ac-

tion or proceeding, by or on behalf of the

United States of America, to enforce, or

charging a violation of, a provision of

the United States Internal Revenue Code

[26 USCS §§ 1 et seq.[, or title IV of the

Civil Rights Act of 1964 [42 USCS §§ 2000d

et seq.], the court, in its discretion,

may allow the prevailing party, other than

the United States, a reasonable attorney's

fee as a part of the costs.

§ 2000c. Definitions

As used in this title [42 USCS §§

2000c, 2000c-2-2000c-9] -

(a) "Commissioner" means the Commis-

sioner of Education.

(b) "Desegregation" means the assign-

ment of students to public schools and

within such schools without regard to their

race, color, religion, sex or national ori-

gin, but "desegregation" shall not mean the

assignment of students to public schools in

order to overcome racial imbalance.

tary or secondary educational institution,

and "public college" means any institution

of higher education or any technical or vo-

cational school above the secondary school

level, provided that such public school or

public college is operated by a State, sub-

division of a State, or governmental agen-

cy within a State, or operated wholly or

predominantly from or through the use of

governmental funds or property, or funds or

property derived from a governmental source.

(ad) "School board" means any agency or

agencies which administer a system of one

or more public schools and any other agency

which is responsible for the assignment of

students to or within such system.

§ 2000c-8. Right of Individual to Bring

Suit

Nothing in this title [42 USCS §§

2000c, 2000c-2-2000-9] shall affect adverse-

ly the right of any person to sue for or ob-

tain relief in any court against discrimin-

ation in public education.

§ 2000c-9. Nonprohibited Classification

or Assignment

Nothing in this title [42 USCS §§

2000c, 2000c-2-2000c-9] shall prohibit clas-

sification and assignment for reasons other

than race, color, religion, sex or national

origin.

A- 10

CONSTITUTION OF THE STATE OF MISSOURI

Article Ix

§ l(a). Free Public Schools-Age Limit

Section l(a). A general diffusion of

knowledge and intelligence being essential

to the preservation of the rights and lib-

erties of the people, the general assembly

shall establish and maintain free public

schools for the gratuitous instruction of

all persons in this state within ages not

in excess of twenty-one years as prescribed

by law.

A- ll

APPENDIX 2

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

CRATON LIDDELL, et al.,

Plaintiffs,

vs.

THE BOARD OF EDUCATION

OF THE CITY OF ST. LOUIS,

STATE OF MISSOURI, et al.,

Defendants.

COMPLAINT

Come now the Plaintiffs in the above

entitled cause and state to the Court as

follows:

1. That this Court has jurisdiction

of this cause of action pursuant to 28

U.S.C. 1343 (3), (4); 28 U.S.C. 2201; and

42 U.S.C. 1983, 1988 and 2000d, and the

Fourteenth Amendment to the Constitution

of the United States;

2. That Plaintiffs are black chil-

dren and their parents who reside in the

City of St. Louis, State of Missouri, and

are served by public schools maintained

and operated by the Board of Education of

the City of St. Louis, Missouri; and that

the children are eligible to attend, and

do attend, the public schools of the City

of St. Louis.

3. Plaintiffs further state that

they have filed this action on behalf of

themselves and all other school age chil-

A- 12

dren and their parents similarly situated

in the City of St. Louis; and that Plain-

tiffs satisfy the requirements of Rule 23,

Federal Rules of Civil Procedure, partic-

ularly, in that the class represented is

so numerous that joinder of all members

is impracticable, the questions of law

and fact are common to the class, the

Claims of Plaintiffs are typical of the

Claims of the class, and Plaintiffs will

fairly and adequately protect the inter-

est of the class.

4. Plaintiffs further state that

the Board of Education of the City of St.

Louis, by the laws of Missouri, is a sin-

gle metropolitan school district, a body

corporate, and its geographical bounda-

ries are conterminous with the political

geographical boundaries of the City of

St. Louis;

5. That the said Board of Education

of the City of St. Louis has the super-

vision and government of public schools

and public school property within said

district; and in the name of said Board

of Education may sue and be sued, pur-

chase, receive, hold and sell property,

and do all things necessary to accomplish

the purposes for which the school dis-

trict is organized.

6. That by said laws of Missouri,

all titles to property granted to the

City of St. Louis by the United States

or the State of Missouri for school pur-

poses, and the title to all school lands

and other property of every kind within

the City of St. Louis is vested in the

Board of Education of the City of St.

Louis.

A - 13

7. Plaintiffs further state that the

laws of Missouri require the Board of Edu-

cation of the City of St. Louis to organize

annually by electing a president, vice-

president and secretary from its members,

and to appoint a superintendent of schools;

and that should the superintendent of

schools be unable to perform his duties

as required by law, or if the office of

superintendent becomes vacant, the Board

shall appoint an acting superintendent to

serve during the period of disability of

the superintendent or the vacancy in the

said office;

8. That the laws of Missouri vest

the Board of Education of the City of St.

Louis with general and supervising control,

government and management of the public

schools and public school property in said

City of St. Louis, and generally, all pow-

ers in the administration of the public

school system in said City, inter alia,

the following: the power: (a) to appoint

the officers, agents and employees it deems

necessary and proper and fix their compen-

sation;

(b) To make, amend and repeal rules

and by-laws for the government, reg-

ulation and management of the public

schools and school property in said

City;

teachers;

(d) To levy taxes authorized by law

for school purposes;

(e) To purchase and hold all prop-

erty, real and personal, deemed by

it necessary for the purpose of

public education;

A- 14

(f) To build and construct improve-

ments for such purposes, and sell the

same; and

(g) To provide for the gratuitous

transportation of pupils to and from

schools in cases where by reason of

special circumstances pupils are re-

quired to attend schools at unusual

distances from their residences.

9. Plaintiffs further state that pur-

suant to the laws of the State of Missouri,

the Board of Education of the City of St.

Louis appointed a Superintendent of Schools;

and during his leave of absence, an Acting

Superintendnet of Schools (Defendant Earnest

Jones), was appointed for the year 1971 to

1972, with statutory authority (subject to

the approval of the Board of Education of

the City of St. Louis, or under regulations

made by the said Board of Education) inter

alia, as follows:

(a) To appoint a Treasurer;

(b) To appoint Associate and assis-

tant superintendents;

nual budget of the school system;

(d) To have general supervision of

the school system, including its vari-

ous departments and physical proper-

ties, courses of instruction, disci-

pline and conduct of schools, the in-

troduction and changes of textbooks

and apparatus, and studies;

(e) To have general supervision of

all school buildings, including their

construction, repair, care and main-

tenance.

A- 15

10. Plaintiffs further state that De-

fendants:

Daniel L. Schlafly, Mrs. Adele Smiley,

Frederick E. Busse, Rev. James L. Cummings,

Mrs. Garnell DeRamus, AndrewM. Doyle,

Malcolm W. Martin, James E. Hurt,

Mrs. A. W. Scheetz, ElmerwW. Pounds,

Mrs. Gilbert Harris, Wallace D. Schoenbeck,

are all of the duly elected, qualified and

acting members of the Board of Education of

the City of St. Louis; that the statutory

officers of the said Board are:

President: Daniel L. Schlafly

Vice-President: Mrs. Adele Smiley

Secretary:

and that they are joined in their official

Capacities as members of said Board.

11. Plaintiffs further state that on

the recommendation of the Superintendent of

Schools and approval of the Board of Educa-

tion of the City of St. Louis, the area

contained within the political geographical

boundaries of the City of St. Louis was di-

vided into five school districts with fixed

geographical boundaries, each containing

high schools and feeder elementary schools

within the district; and that school age

children living within the districts are

assigned to the elementary and high schools

by the district superintendents under the

general supervision of the Superintendent

of Schools of the Board of Education of the

City of St. Louis;

12. That Defendants:

Julius C. Dix

Benjamin M. Price

Wilmar R. Schneider

A - 16

R. W. Janning

Charles Brasfield

are the district superintendents of the fol-

lowing school districts within the metro-

politan school district of the Board of Ed-

ucation of the City of St. Louis and serve

under, and are responsible to the Superin-

tendent of Schools of the Board of Educa-

tion of the City of St. Louis:

Julius C. Dix:

Benjamin M. Price:

Wilmar R. Schneider:

R. W. Janning:

Charles Brasfield:

Bannecker: Central-

Vashon District Two

(2) high schools and

28 elementary schools

Beaumont-Sumner Dis-

trict Two (2) high

schools, one (1)

middle school, and

33 elementary schools

Cleveland-Southwest

District Two (2)

high schools and 28

elementary schools

McKinley-Roosevelt

District Two (2)

high schools and 32

elementary schools

Northwest-Soldan

District Two (2)

high schools and 30

elementary schools;

one (1) middle school

and that all Defendants are situated in, re-

side in, or perform their official duties in

the Eastern Judicial District of Missouri,

Eastern Division.

A- 17

13. Plaintiffs further state that De-

fendants, the Board of Education of St.

Louis and its individual members, the Su-

perintendent and Acting Superintendent of

Schools of said Board, and the District

Superintendent of the districts within the

metropolitan school district of the City

of St. Louis in the exercise of the func-

tions of the state which have been dele-

gated to them by the laws of Missouri, are

required to conduct and superintend the

business relating to the public schools of

the City of St. Louis in a manner consis-

tent with the requirements of the Consti-

tution and laws of the United States, and

to implement the legitimate public policy

of the State of Missouri to provide, fur-

nish, and make available equal racially

non-segregated, racially non-discrimina-

tory educational opportunities for all

regardless of race, creed, natural origin,

color or sex, and to eliminate and pro-

hibit segregated or separate schools or

school districts on the basis of race,

creed, or color; that the said Defendants

are further obliged to report and recom-

mend to the legislative body of the State

or of the City remedies to rid the system

of the observed imperfections in the op-

eration of the schools in their district;

and that the said Defendants are proper

parties Defendants to this action.

14. Plaintiffs further state that by

the past and present methods of maintain-

ing and operating the metropolitan City of

St. Louis school system, particularly

through the five (5) district setup, the

Defendants and their predecessors in of-

fice have effected and perpetuated racial

segregation and discrimination in the op-

eration of the public school system and

public schools of the City of St. Louis

A- 18

in violation of the rights secured to Plain-

tiffs by the Fourteenth Amendment to the

Constitution of the United States, and Ar-

ticle One, Section 2 of the Constitution

of Missouri;

15. That Defendants and their prede-

cessors in office in the exercise of the

delegated educational functions of the

State of Missouri, have engaged in acts,

practices, customs and usages which have

had the natural, probable, foreseeable,

and actual effect of incorporating into

the public schools and the public school

system of the metropolitan district of the

City or St. Louis, the public and private

residential racial segregation and dis-

crimination practices of the State of Mis-

souri and of the City of St. Louis in vio-

lation of the right of Plaintiffs not to

be segregated on the basis of race in pub-

lic schools and the school districts es-

tablished and maintained by Defendants in

the metropolitan school district of the

City of St. Louis.

16. That Defendants and their prede-

cessors in office, in the exercise of the

delegated educational functions of the

State of Missouri, have allocated and per-

mitted to be allocated educational re-

sources, including, but not limited to,

funds, teachers, buildings, textbooks, ma-

terials and supplies, in a manner that has

had the natural, probable, foreseeable and

actual effects in the metropolitan school

district of the City of St. Louis, of:

(a) Discriminating on the basis of

race against black children attending

the public schools within the City of

St. Louis; and

(b) Establishing and maintaining the

pattern of racially separate schools

and a segregated school system in vi-

Olation of the rights secured to Plain-

tiffs by the Fourteenth Amendment to

the Constitution of the United States

and the Constitution and laws of Mis-

souri.

17. Plaintiffs further state that

for years prior to 1954, the State of Mis-

souri, through its Constitution and laws,

the customs, policies, and practices of

its instrumentalities, including, but not

limited to, its school districts, mandated

and enforced both public and private ra-

cial segregation, including, but not lim-

ited to, public school education, the ef-

fects of which persist in the affairs of

Defendants in administering the public

school system of the metropolitan district

of the City of St. Louis, all of which had

and continue to have the purpose and effect

of denying equal educational opportunities

and equal Opportunities based on education,

to black citizens and students by compel-

ling the attendance of black students in

segregated schools, and which denies to

Plaintiffs and the class on whose behalf

they sue, the equal protection of the laws

guaranteed to them by the Fourteenth

Amendment of the Constitution of the United

States.

18. That Defendants and their prede-

cessors in office since 1954, pursuant to

a policy, practice, custom, and usage of

racial discrimination denying Fourteenth

Amendment rights, have by the devices, in-

ter alia, of separate and racially discrim-

inatory curriculum within the schools and

school district boundaries, new school lo-

cations and construction, the assignment

A - 20

of all children to schools within the met-

ropolitan district of the City of St.

Louis, and the assignment of teachers in

the school system, have acted affirmative-

ly to create, support, maintain and con-

tinue to support and maintain a dual bira-

cial school system in the Metropolitan

School District of the City of St. Louis

which denies to black children equal edu-

cation opportunities; and that Defendants

have failed to fulfill their affirmative

duty to establish and maintain unitary

public schools.

19. Plaintiffs further state that the

school boundaries and district boundaries

within Defendants' school districts have

resulted in excluding black children from

the educational resources and facilities

which would otherwise be available to

them; that the school boundaries and dis-

trict boundaries serve no bona fide educa-

tional goals, policies or practices which

would not be served equally well by dis-

trict configurations which do not result

in the pattern of racial segregation in

the public schools of the City of St.

Louis; and

20. That the maintenance of the

present school district boundaries and

school boundaries, and other discrimina-

tory policies and practices, customs and

usages have the effect of denying to

black children within the geographical

boundaries of the metropolitan school

district of the City of St. Louis their

Fourteenth Amendment rights to equal ed-

ucational opportunities and are supported

by no compelling state interest in their

continuation.

WHEREFORE, Plaintiffs pray that De-

A- 21

fendants, their agents, employees, and all

persons in active concert or participation

with them be preliminarily and permanently

enjoined and restrained to take forthwith

all steps reasonably necessary to secure

to Plaintiffs their rights to attend ra-

cially non-segregated and non-discrimina-

tory schools in a non-segregated and non-

discriminatory school system, including,

but not limited to, the adoption and im-

plementation by all Defendants of such

goals, policies, practices, customs, and

usages with respect to the operation of

the public school system of the metropol-

itan district of the City of St. Louis as

will secure to Plaintiffs equal opportuni-

ties in non-segregated and non-discrimina-

tory schools in a non-segregated and non-

discriminatory school district.

Plaintiffs further pray that this

Court require the Defendants to prepare

and submit for approval of this Court a

plan for the operation of all the public

schools within the Defendant Board of Ed-

ucation School system in conformity with

the requirements of the Fourteenth Amend-

ment, including, but not limited to, the

non-discriminatory allocation of finan-

cial and physical resources; the estab-

lishment of school geographical bounda-

ries and district geographical boundaries

which are not racially identifiable, the

location, construction and utilization of

new buildings and the utilization of ex-

isting school buildings in a manner which

are not racially identifiable; the as-

signment of pupil populations, staffs,

faculties, transportation routes and ac-

tivities which are not racially identifi-

able; and that the plan be effective at

the earliest possibie date.

A = 22

Plaintiffs further pray that this Court

allow them their costs herein, reasonable

attorneys' fees, and such other, further or

additional relief as to the Court may appear

just and necessary.

Minnie Liddell

Barbara Goldsby

Samuel Yarber

Louise Moore

Lois LeGrande

Joseph S. McDuffie

and

William P. Russell

Attorneys for Plaintiffs

508 North Grand Boulevard

St. Louis, Missouri 63103

Telephone: 535-4242

A= 23

APPENDIX 3

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

CRATON LIDDELL, et al.,

Plaintiffs,

vs.

THE BOARD OF EDUCATION

OF THE CITY OF ST. LOUIS,

STATE OF MISSOURI, et al.,

Defendants.

CONSENT JUDGMENT AND DECREE

on this 24th day of December, 1975,

the parties hereto having appeared by coun-

sel, and having consented, in the interest

of the settlement of this litigation, as

well as in the interest of saving the time,

burden and expense of further hearings,

subject to the approval of the Court, to

the making and entering of this Judgment,

as per memorandum filed herein under the

date hereof, it is hereby

ORDERED, ADJUDGED AND DECREED

that:

1. This Court has jurisdiction of the

subject matter of this class action and of

the parties hereto.

2. This Judgment and Decree is made

and entered upon the Stipulation of Facts

as amended and supplemented and upon the

consent of the parties.

A - 24

3. Nothing herein contained shall be

deemed to be an admission on the part of

Defendants that the charges contained in

Plaintiffs' Complaint, as amended, are

true. However, notwithstanding the ac-

tions taken by the Board subsequent to

Brown vs. Board of Education of Topeka,

347 U.S. 483, as Of this date hereof, seg-

regation is present, as a matter of fact,

in the Public School System of the City of

St. Louis, in the particulars itemized in

said Stipulation of Facts.

4. Defendants, their agents, offi-

cers, employees and successors, and all

those in active concert and participation

with them shall be enjoined and prohibited

from discriminating on the basis of race

or color in the operation of the School

District of the City of St. Louis, and

shall be required to take affirmative ac-

tion to secure unto Plaintiffs their right

to attend racially nonsegregated and non-

discriminatory schools, and Defendants

will afford unto Plaintiffs equal opportu-

nities for an education ina non-segregated

and non-discriminatory school district,

and shall be required to take the affirma-

tive action hereinafter set forth.

5. With regard to the personnel of

the St. Louis public schools, the Defen-

dants are directed and ordered to take the

following measures which are necessary or

proper in order to reduce racial segrega-

tion:

a) Effective before the begin-

ning of the 1976-77 school year, defen-

dants shall have planned, developed and

carried ovt a program through volunteers

and, if necessary, through mandatory ap-

pointments and assignments, to provide a

minimum of two regular classroom teachers

A = 25

and no less than 10% of the minority teach-

ers and other staff of either race in each

school of the system.

b) The minimum percentages pro-

vided for in the preceding paragraph shall

be increased by Defendants to no less than

20% of the minority teachers and other

staff of either race in each school of the

system before the beginning of the 1977-

1978 school year, and to 30% of the teach-

ers and other staff before the beginning

of the 1978-1979 school year.

6. The measures required to be taken

by the Board under the provisions of para-

graph 5 hereof shall be taken notwithstand-

ing any already signed and approved con-

tract; and the tenure or seniority of

teachers or other certified personnel shall

not be used to excuse or justify any lack

of compliance with the provisions hereof.

7. Employees of the Board, whether

certificated or not, shall not be discrim-

inated against as to hiring, rehiring,

promotion, dismissal, suspension or as-

Signment on the ground of race or colcr,

all subject to the procedural provisions

of Title VII of the Civil Rights Act of

1964, as amended.

8. To the extent which is consistent

with the proper operation of the school

system as a whole, Defendants shall locate

any new schools, lease new classroom facil-

ities or substantially expand existing

schools with the objective of eradicating

the effects of past and present segregation

in the public schools of the City of St.

Louis.

9. Before the beginning of the 1977-

A - 26

1978 school year, Defendants shall make a

study of realignments of all elementary

feeder schools to the academic hich schools

for the purpose of reducing racial isola-

tion and segregation at the said high

schools, and shall submit a report thereon

to the Court, on or before January 15,

1977, with implementation to begin Septem-

ber 1977.

10. The Defendants are hereby or-

dered to make a study and report to the

Court on or before May 1, 1976 as to

whether or not the following items will

assist in eliminating or reducing segre-

gation:

a) Establishing elementary

magnet schools with specialized curricu-

lum, having an open enrollment by appli-

cation.

b) Establishing high schools

for the study of the visual and perform-

ing arts, for the study of mathematics

and physical and natural sciences, and

other subject areas, such schools having

open enrollment by city-wide application.

c) Recognizing that the above

measures are basically experimental in na-

ture, a study of the feasibility of curric-

ulum improvements or other changes that

should be instituted in the system as a

whole shall be undertaken for the purpose

of increasing the quality of education

throughout the system, all within the con-

text of reducing racial isolation in the

schools and with the goal of desegregating

the school system. A report shall be made

to the Court by May 1, 1976, with imple-

mentation beginning with the school year

1976-1977.

A - 27

11. Defendants are required to file

with the Court, within sixty days from the

Opening day of the 1976-1977 school year a

report setting forth the following infor-

mation:

a) Tabulation by race of the

enrollment in each school of the district.

b) List of each student, by

name and address, who applied for trans-

fer stating whether the application was

granted, or, if not, the reason for the

denial.

c) Tabulation of teachers by

race for each school, listing the as-

Signed grade or grades, and the vacancies

which have been filled by the hiring of

teachers from outside the system at each

of the schools.

12. Defendants shall simultaneously

mail copies of all reports filed with the

Court to counsel for the Plaintiffs.

Plaintiffs' counsel shall be advised as to

actions undertaken by the Defendants in

compliance with this Judgment.

13. Costs shall be taxed against the

Defendant Board of Education of the City

of St. Louis and a reasonable attorneys'

fee and expenses will be allowed against

it and in favor of counsel for the Plain-

tiffs.

14. Jurisdiction is retained for the

purpose of enabling any of the parties to

this Judgment to apply to this Court at any

time for such further orders and direc-

tives as may be necessary or appropriate

for the construction or carrying out of

this Judgment.

A= 28

I RARE RIE ATL TS ~ — :

Dated this 24th day of December, 1975.

Judge James H. Meredith

A=- 29

APPENDIX 4

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

CRATON LIDDELL, et al.,

Plaintiffs,

vs.

THE BOARD OF EDUCATION

OF THE CITY OF ST. LOUIS,

STATE OF MISSOURI, et al.,

Defendants.

COMPLAINT IN INTERVENTION

Come now Intervening Plaintiffs,

Adams, et al., and for their Complaint in

Intervention against Defendant, Board of

Education of the City of St. Louis, et al.

and United States of America, allege as

follows:

1. This Court has jurisdiction of

this action pursuant to 28 U.S.C. 1343(3);

1346; and 1361.

2. Venue is appropriate in this

Court based on 28 U.S.C. 1391 and 1402.

3. The Defendants are: the United

States of America; the Secretary of

Health, Education, and Welfare of the

United States of America; Board of Educa-~-

tion of the School District of the City of

St. Louis, Missouri; the individual mem-

bers of the Board of Education of the

School District of the City of St. Louis,

Missouri; the Superintendent of the School

District of the City of St. Louis, Mis-

A - 30

souri; the District Superintendents of the

City of St. Louis, Missouri.

4. Defendant, Board of Education of

the School District of the City of St.

Louis, Missouri, the individual members of

the said Board, the Superintendent of the

said School District, and the District Su-

perintendents of the School District (here-

inafter jointly referred to as "Board of

Education") operate, pursuant to the laws

of the State of Missouri, a school system

within the geographic confines of the City

of St. Louis.

5. The United States of America,

through the Department of Justice and the

Department of Health, Education, and Wel-

fare, is charged, by statute, with certain

responsibilities to insure and guarantee

that school districts within the United

States are operated by a nondiscriminatory

method.

6. That between June 30, 1954 and

January 1, 1977, Defendant, Board of Edu-

cation, operated a school system which was

constitutionally unitary and nondiscrimi-

natory.

7. That subsequent to January l,

1977, Defendant, Board of Education, at-

tempted, and is currently attempting, to

assign pupils attending the schools oper-

ated by the Board of Education to specific

elementary, secondary, and special schools

based upon their race.

8. That on April 22, 1977 Defendant

Board of Education was authorized and or-

dered to "proceed with the development of

its Magnet School Program and Specialized

High Schools as set forth in its proposal

A- 31

and this may be effective with the begin-

ning of the September, 1977 school year."

9. That subsequent to April 22,

1977, Defendant, Board of Education, sub-

mitted an application to Defendant, United

States of America, specifically to the De-

partment of Health, Education, and Welfare,

for funding of said Magnet Schools and oth-

er Specialized High Schools under the pro-

visions of the Emergency School Aid Act, 20

U.S.C. 1601, et seq., for financial assis-

tance in the expansion and maintenance of

said schools.

10. That subsequent to the applica-

tion of Defendant, Board of Education, of-

ficials, officers, employees, and represen-

tatives of the United States of America,

specifically those associated with the De-

partment of Health, Education, and Welfare,

advised the Defendant, Board of Education,

that the said application would not be

granted unless and until the Defendant,

Board of Education, agreed to unlawfully

and unconstitutionally discriminate against

certain citizens residing within the geo-

graphic boundaries served by the Defendant,

Board of Education.

ll. That the illegal and unconstitu-

tional acts of discrimination required by

Defendant, United States of America, in-

Cluded the following:

a) Students applying for admis-

sion to Magnet Schools who had previ-

ously been attending nonpublic schools

would not be processed until all ap-

plications from students previously

attending public schools had been pro-

cessed and approved. |

A= 32

b) Students applying for admis-

sion to Magnet Schools who had previ-

ously been attending nonpublic schools

would be limited in their admission on

a basis of one white student for every

five black students.

c) That students applying for

admission to Magnet Schools from the

regular public schools would be al-

lowed on a basis of one white student

for every one to three black students.

d) That students who are to be

reassigned to a school other than the

school closest to their residence to

relieve overcrowding would be relocated

to a school where the opposite race of

the reassigned student was in the ma-

jority to the extent that space was

available in such school, and only

when all such space has been utilized

May students be transported or reas-

Signed to schools closer to the place

of their residence of predominantly

the same race.

12. That the acts of the United States

concerning separate treatment of students

applying for enrollment to Magnet Schools

and Specialized High Schools is in viola-

tion of the First and Fourteenth Amendments

of the United States Constitution; 42 U.S.C.

1981, 1983, and 1985(3); 42 U.S.C. 2000C;

42 U.S.C. 2000C-(6) and 2000C-(8); 20 U.S.C.

1601, et seq., particularly sections 1618,

1652, and 1656.

13. That the actions of the United

States of America constitute a conspiracy

and an attempt to coerce the Defendant,

Board of Education, to violate Article IX,

Section l(a) of the Missouri Constitution,

A - 33

which requires, "free public schoois for

the gratuitous instruction of all persons

in this state..."

14. That the actions of the United

States of America constitute an attempt

and conspiracy to thwart, subvert, and

violate the lawful order of this Court,

dated April 22, 1977 directing Defendant,

Board of Education, to maintain, expand,

and implement its program of Magnet

Schools and Specialized High Schools.

WHEREFORE, Intervening Plaintiffs,

Adams, et al., pray an order of this Hon-

orable Court:

1. Declaring that subsequent to

1954, Defendant, Board of Education, op-

erated a constitutionally unitary and

nondiscriminatory school system.

2. That the Defendant, Board of Ed-

ucation's, attempts to assign pupils to

specific schools to "improve racial bal-

ance" is discriminatory in that it at-

tempts to assign pupils to specific

schools based upon their race.

3. That the actions of the United

States in withholding funds from Defen-

dant, School Board, are in violation of

the First and Fourteenth Amendments of

the United States Constitution, Sections

1981, 1983, 1985(3), 2000C, 2000C-(6),

2000C-(8) of Title 42 U. S. Code, and

Sections 1601, et seq., particularly

Sections 1618, 1652, and 1656 of Title

20 of the United States Code.

4. That the Intervening Plaintiffs'

attorneys be allowed a reasonable attor-

ney's fees.

A - 34

5. Such other orders as are appropri-

ate.

FORDYCE & MAYNE

By Anthony J. Sestric

and

Leo V. Garvin, Jr.

120 South Central, Suite 1100

St. Louis, Missouri 63105

(314) 863-6900

Attorneys for Intervening

Plaintiffs, Adams, et al.

A = 35

APPENDIX 5

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

CRATON LIDDELL, et al.,

Plaintiffs,

vs.

THE BOARD OF EDUCATION

OF THE CITY OF ST. LOUIS,

STATE OF MISSOURI, et al.,

Defendants.

DEFENDANTS' ANSWER TO PLAINTIFFS'

ADAMS, ET AL. COMPLAINT IN INTERVENTION

Comes now Defendants, Board of Educa-

tion of the City of St. Louis, et al., and

for their answer to Plaintiffs' Adams, et

al. Complaint in Intervention states as

follows:

1. Defendants make no answer to the

allegations contained in paragraph 1 of

Plaintiffs' Adams Complaint In Intervention

for the reason that said allegations ex-

press legal conclusions.

2. Defendants make no answer to the

allegations contained in paragraph 3 of

Plaintiffs' Adams Complaint In Intervention

for the reason that said allegations ex-

press legal conclusions.

3. These Defendants admit that Board

of Education of the City of St. Louis, the

individual Bodrd members of the Board of

A - 36

Education of the City of St. Louis, Super-

intendent of Schools of the School District

of the City of St. Louis and the various

District Superintendents of the City of St.

Louis are defendants to this action.

4. Defendants admit the allegations

contained in paragraph 4 of Plaintiffs'

Adams Complaint In Intervention.

5. These defendants make no answer to

the allegations contained in paragraph 5 of

Plaintiffs' Adams Complaint In Intervention

for the reason that said allegations are

not directed to these defendants but are

directed to the alleged defendant United

States of America which was made a party

plaintiff to this action by Order of this

Court dated August 10, 1977.

6. For their answer to the allegations

contained in paragraph 6 of Plaintiffs'

Adams Complaint In Intervention, defendant,

Board of Education, admits that from June

30, 1954 to the present it has operated a

school system which is constitutionally uni-

tary and non-discriminatory.

7. Defendants deny each and every al-

legation contained in paragraph 7 of Plain-

tiffs' Adams Complaint In Intervention.

8. Defendants admit the allegations -

contained in paragraph 8 of Plaintiffs'

Adams Complaint In Intervention.

9. Defendants admit the allegations

contained in paragraph 9 of Plaintiffs'

Adams Complaint In Intervention.

10. Defendants make no answer to the

allegations contained in paragraph 10 of

Plaintiffs' Adams Complaint In Intervention

A- 37

for the reason that said allegations are

not directed to these defendants but are

directed to the alleged defendant United

States of America which was made a party

plaintiff to this action by Order of this

Court dated August 10, 1977.

ll. Defendants make no answer to the

conclusory allegations found in paragraph

ll of Plaintiffs' Adams Complaint In In-

tervention and deny each and every alle-

gation except as specifically stated in

these defendants answers to subparts

li(a), 11(b), 11(c), and 11(d):

(a) Defendants deny all of the

allegations contained in paragraph ll(a).

Defendants further state that applica-

tions of previously non-public school

students are processed simultaneously

with public school students according to

the date upon which the various applica-

tions have been filed with defendants.

(b) Defendants deny all of the

allegations contained in paragraph 11(b).

Defendants further state that only those

previously non-public school students

who, having been processed simultaneously

with public school students, are not el-

igible for enrollment in the magnet

schools according to agreed upon criteria

may nevertheless be enrolled in the mag-

net schools on the ratio of one white non-

public school student for every five black

students.

allegations contained in paragraph ll(c).

Defendants further state that the goal of

the magnet school system is to achieve a

racial balance at each magnet school of

fifty percent black and fifty percent

A - 38

white but that a ratio of up to seventy

percent black/thirty percent white is ac-

ceptable under the program.

(d) Defendants admit the alle-

gations contained in paragraph 11(d).

12. Defendants make no answer to the

allegations contained in paragraph 13 of

Plaintiffs' Adams Complaint In Interven-

tion for the reason that said allegations

are not directed to these defendants but

are directed to the alleged defendant

United States of America which was made a

party plaintiff to this action by Order

of this Court dated August 10, 1977, and

for the reason that the allegations con-

tained therein express legal conclusions.

13. Defendants make no answer to the

allegations contained in paragraph 13 of

Plaintiffs' Adams Complaint In Interven-

tion for the reason that said allegations

are not directed to these defendants but

are directed to the alleged defendant

United States of America which was made a

party plaintiff to this action by Order

of this Court dated August 10, 1977, and

for the reason that the allegations con-

tained therein express legal conclusions.

14. Defendants make no answer to the

allegations contained in paragraph 14 of

Plaintiffs' Adams Complaint In Interven-

tion for the reason that said allegations

are not directed to these defendants but

are directed to the alleged defendant

United States of America which was made a

party plaintiff to this action by Order

of this Court dated August 10, 1977, and

for the reason that the allegations con-

tained therein express legal conclusions.

A= 39

15. Except for those matters specif-

ically admitted herein, defendants deny

each and every allegation contained in

Plaintiffs' Adams Complaint In Interven-

tion.

WHEREFORE, having fully answered de-

fendants pray that the Complaint In. Inter-

vention filed by plaintiffs, Adams, et al.,

be dismissed and for its costs herein ex-

pended.

LASHLY, CARUTHERS, THIES, RAVA

& HAMEL,

A professional corporation

By John H. Lashly

and

Paul B. Rava

Attorneys for Defendant,

‘ Board of Education of

the City of St. Louis

818 Olive Street

St. Louis, Missouri 63101

(314) 621-2939

A - 40

APPENDIX 6

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

Craton Liddell, et al.,

Plaintiffs,

vs. 72-100C (1)

of the City of St.

Louis, State of

)

The Board of Education )

)

Missouri, )

)

Defendants.

TABLE OF CONTENTS

I. CASE HISTORY AND PROCEDURAL POSTURE.

II. FINDINGS OF FACT.

A. Stipulation of Facts.

B. The Board of Education.

C. State of Missouri and the

State Board of Education.

D. Pre-Brown Conditions.

1. Dual school system.

2. Discriminatory laws.

3. Demographics.

4. Board activities.

E. 1954-56 Desegregation Plan.

F. Resegregative Factors.

1. Socio-demographic changes

in St. Louis. -

2. Housing segregation.

3. Title f.

A- 41

Resulting De Facto

Resegregation.

l. Transitions in the schools.

2. Changing pattern in

school enrollment

(excluding Harris

Teacher's College).

3. Racial imbalance in

the St. Louis public

schools.

4. Schools referred to as

vestiges.

Actions of the Board.

1. Adoption of the neigh-

borhood school system.

2. Student transfers.

a. Transfers con-

comitant to

desegregation.

b. Permissive

transfers.

c. Special

transfers.

3. Boundaries and feeder

patterns.

4. Redistricting.

5. Transportation.

a. Intact busing.

b. Busing 1964-78.

6. School construction.

7. School closings.

8. Schools with city-wide

enrollment.

a. The Technical

high schools.

A- 42

Itt.

IV.

>. . Bears.

a. Faculty.

b. Non-certificated

personnel.

c. Administrators.

d. Pupil-teacher

ratio.

10. Curriculum and facilities.

a. Curriculum.

b. Facilities.

c. Retentions and

withdrawals.

ill. Magnet schools.

a. Admissions to the

magnet schools.

CONCLUSIONS OF LAW.

A. Governing Constitutional

Principles.

B. Effectiveness of the 1954-56

Desegregation Plan.

C. Burden of Proof.

D. Racial Imbalance in the

St. Louis Schools.

POSITIONS AND PLANS OF THE PARTIES.

APPENDIX.

A. Racial Composition of the

Enrollment in the St. Louis

Elementary and Secondary

Schools by District.

l. Year 1972-73.

2. Year 1975-76.

3. Year 1978-79.

A - 43

.B. Consent Judgment and

Decree, December 24,

1975.

A~ 44

MEMORANDUM

This matter was tried to the Court.

The Court makes the following findings of

fact and conclusions of law:

I. CASE HISTORY AND PROCEDURAL POSTURE

This is a school desegregation case

involving the public schools of the City of

St. Louis, Missouri. On February 18, 1972,

plaintiffs, who are representatives of the

Concerned Parents of North St. Louis, filed

their initial complaint. Plaintiffs repre-

sent school age children and their respec-

tive parents and next friends residing in

the metropolitan school district of the

City of St. Louis. Plaintiffs (hereinafter

Liddell, et al.), each of whom is black,

brought this action as a class action on

behalf of themselves and all other school

age children and their parents in that area.

Plaintiffs named as defendants the Board of

Education of the City of St. Louis, State of

Missouri, and its members’ (hereinafter

Board), in their official capacities, as

well as the then Acting Superintendent of

Schools and the District Superintendents of

the Board of Education of the City of St.

Louis, all in their official capacities.

In their initial complaint, Liddell,

et al., alleged jurisdiction under 28

U.S.C. §§1343(3) and 1343(4), 28 U.S.C.

§2201, 42 U.S.C. §§1983, 1988, and 2000d,

and the Fourteenth Amendment to the Consti-

tution of the United States.

Liddell, et al., alleged that the

defendants, by their methods of maintaining

and operating the school system, have per-

petuated racial segregation and discrimina-

tion in the St. Louis City School system.

Liddell, et al., further alleged that the

A- 45

defendants have so acted as to incorporate

segregated residential patterns into the

schools, to allocate educational resources

in a discriminatory manner, and to perpetu-

ate a dual biracial school system, thus

failing in their affirmative duty to estab-

lish and maintain unitary public schools.

Liddell, et al., prayed that defen-

dants be enjoined to take all steps reason-

ably necessary to establish a nonsegre-

gated, nondiscriminatory school system, and

be required to submit a plan for the alloca-

tion of educational resources, geographical

boundaries and transportation routes, as

well as staff and pupil assignments which

will satisfy the Fourteenth Amendment

requirements. In addition, Liddell, et

al., asked for costs, attorneys' fees, and

other relief.

Defendants answered this complaint,

denying the material allegations, on

April 19, 1972.

On October 3, 1973, after discovery

proceedings by the parties, the Court

allowed this action to be maintained as a

class action pursuant to Rules 23(a) and

(b) (2) of the Federal Rules of Civil Proce-

dure, and notice of the pendency of the

Class action was duly published. The Court

also, by public notice, invited other

interested parties to intervene on or

before December l, 1973.

On October 30, 1973, defendants filed

a motion to join as additional parties

defendant the Governor, the Attorney

General, the Commissioner of Education of

the State of Missouri, the State Board of

Education of Missouri, the St. Louis County

Superintendent of Education, and the twenty

school districts in St. Louis County which

A - 46

constitute the first two tiers of school

districts adjoining the defendant school

district of the City of St. Louis. The

motion was denied on December l, 1973.

On February 28, 1974, the Court

requested that the parties file a written

Stipulation of Facts. This was done on

June 7, 1974. Exhibits filed with the

stipulation have been supplemented to

provide statistical material for the school

years up to 1975-76.

On June 21, 1974, after proper pub-

lishing of notice to prospective members of

the class and other interested parties, the

Court, noting that no party had requested

intervention, ordered that the cause might

continue as a class action.

On December 24, 1975, the parties to

this action entered into a consent judgment

and decree which the Court approved. (The

consent decree is set out in full in Appen-

dix B.) The consent decree was based on a

denial by the Board of Education that plain-

tiffs' charges were true, and a recognition

that there was. racial imbalance in the

school system despite the Board's efforts

to integrate the system.

The Board agreed to take further

affirmative action in order to overcome the

effect of residential patterns and to alle-

viate racial imbalance in the City schools.

The Board agreed to progressively increase

the percentage of minority teachers in

every school, so that, in 1976-77, 10%, in

1977-78, 20%, and in 1978-79, 30% of the

teachers at each school would be of the race

that was in the minority at that particular

school. This was to be done by voluntary

transfers if possible, but otherwise by

mandatory assignment despite any contracts,

A - 47

tenure, Or seniority agreements to the con-

trary. This goal has been substantially met

even though all parties did not agree to the

continuation of the program.

In addition, defendants agreed to

strive to increase integration by their

manner of providing classroom space, to

study realignments of feeder schools, to

consider elementary magnet schools’ and

special subject high schools, both with

city-wide enrollments, and to attempt to

improve the curriculum, all in an effort to

relieve the residence-based racial

imbalance in the City schools.

On December 24, 1975, the Court

ordered publication of the consent decree

and notice was ordered to all interested

parties that they might object to the con-

sent judgment by filing a statement before

Friday, January 16, 1976.

On January 16, 1976, objections to the

consent decree were filed by the Missouri

State Teachers Association, St. Louis

District; the St. Louis Teachers Union,

Local 420, American Federation of Teachers;

and the St. Louis Teachers Association.

A group of black students and their

parents and next friends, together with the

National Association for the Advancement of

Colored People, Caldwell, et al. (herein-

after NAACP), also filed their objections

and applied to intervene as representatives

of the class.

Both plaintiffs2/ and defendants

objected to the intervention of the NAACP

and moved to dismiss the objections and

motion to intervene.

A - 48

Liddell, et al., further argued that

because of their intimate knowledge of the

particulars of the St. Louis City Schools

situation, they were better able to struc-

ture solutions on a local level than a

bureaucratic national organization like the

NAACP would be.

After a hearing on January 23, 1976,

all objections and applications for inter-

vention were denied by this Court. Only the

NAACP appealed from that order.

On December 13, 1976, the U.S. Court

of Appeals for the Eighth Circuit reversed

the order of this Court and allowed the

appellants' motion to intervene. Liddell

vs. Caldwell, 546 F.2d 768 (8th Cir., 1976).

The only issue before the Eighth Circuit was

the right of the NAACP to intervene. As the

appeal was interlocutory, the Court of

Appeals did not consider the merits of the

consent decree.

On January 28, 1977, the appeals court

denied the defendants' motion for a stay of

mandate pending petition for certiorari,

and said that the consent decree, although

interlocutory as to remedy, still obliged

the parties to go forward with implementa-

tion of a desegregation plan and to make

""every effort to achieve the greatest

possible degree of actual desegregation,

taking into account the practicalities of

the situation.'" Davis vs. Board of School

Comm'rs. of Mobile County, 402 U.S. 33, 37

(1971).

On February 25, 1977, this Court

granted leave to Caldwell, et al., or the

NAACP, to intervene and made them parties to

this cause, “adopting the original com-

plaint as filed February 18, 1972, and the

stipulation of fact, filed by the original

A - 49

parties herein on June 7, 1974, in the same

manner and with like effect as if named as

Original parties to this cause."

By submission of reports on

February 28 and March 10, 1977, the defen-

dants filed their plan for desegregation,

pursuant to the requirements of the consent

decree. The measures proposed in these

reports include (i) the establishment of

fully integrated junior high schools, (ii)

expansion of the magnet school program,

including the establishment of a new magnet

high school, (iii) expansion of the inte-

grated enrollment in two alternative high

schools, Metro and O'Fallon Technical, (iv)

emphasis on permissive transfers to improve

desegregation, (v) adjustment in transpor-

tation to improve desegregation, (vi) in-

service training and other collateral ser-

vices, (vii) an educational park, and

(viii) a metropolitan remedy. A financial

report, filed on March 15, 1977, set forth

the estimated costs for the programs con-

templated, and the projected cost alloca-

tion between the Board and the Department of

Health, Education and Welfare (HEW).

On March 28, 1977, the United States

Department of Justice was allowed to inter-

vene as amicus curiae, having declined to

intervene as a party. Subsequently two

groups of parents and pupils representing

white students in the St. Louis public

schools, identified as the Involved Citi-

zens Committee (and also as Puleo, et al.)

and the Concerned Parents for Neighborhood

Schools (Adams, et al.), and the City of St.

Louis were allowed to appear as amici

curiae.

In May, 1977, Liddell, et al., the

NAACP, and the United States Department of

Justice submitted their separate alterna-

A - 50

tive plans for desegregation under the con-

sent decree. The NAACP also moved to enforce

its own desegregation plan by an injunc-

tion.

In its order of July 13, 1977, the

Court noted that the only part of the

Board's plan to which all parties agreed was

the magnet school program. Therefore the

defendants proceeded with that program. As

it would be inconsistent with due process to

direct that the contended portions of the

plan be implemented immediately, without a

hearing, the remainder of the plan could not

be implemented in 1977. The Court ordered a

July 25, 1977, hearing on the _ proposed

plans. Therefore, the motions of inter-

vening plaintiffs NAACP and of amicus

curiae United States Department of Justice,

requiring immediate implementation of their

own plans, were denied, and the subsequent

reversal of position and plans, were

denied, the subsequent reversal of position

and separate motions by intervening plain-

tiffs NAACP and the United States Depart-

ment of Justice requesting immediate imple-

mentation of the Board's plan were denied so

that an orderly hearing might be held. The

defendants’ motion to dismiss the alternate

plans of Liddell, et al., the NAACP, and the

United States was denied.

At that time, in the light of the

recent Supreme Court cases, Milliken vs.

Bradley, 433 U.S. 267 (June 27, 1977);

Dayton Board of Education vs. Brinkman, 433

U.S. 406 (June 27, 1977), and School

District of Omaha vs. U.S., 433 U.S. 667

(June 29, 1977), it became necessary for

this Court to determine whether, in fact,

there had been any constitutional violation

by the defendants. There was no determina-

tion of a constitutional violation made in

A- 51

the Stipulation of Facts or in the consent

decree.

A trial to this Court was to determine

the following: whether there has been any

constitutional violation on the part of

defendants, and, if so, what is its nature

and extent. If a constitutional violation

were found, the Court would consider imple-

menting remedies, matching the extent and

scope of any remedies found necessary to the

extent and scope of any violation which may

be found.

By order of July 14, 1977, the trial

date was postponed to October 17, 1977, in

order to permit the State defendants to pre-

pare for trial.

Before commencement of the trial, the

United States Departme t of Justice (here-

inafter Department), Puleo, et al., or

the Involved Citizens Committee, Adams, et

al., or the Concerned Parents for Neighbos>

hood Schools, and the City of St. Louis

were allowed to intervene as parties plain-

tiff. The State of Missouri, the Missouri

State Board of Education, and the State Com-

missioner of Education were made parties

defendant.

This case was tried to the Court in

thirteen trial weeks at five different

settings between October 17, 1977, and

May 26, 1978. During the 13 weeks of trial,

39 witnesses testified in person and one by

deposition. About 1,200 exhibits were

received in evidence. The trial pro-

ceedings covered 7,115 pages of transcript.

The trial addressed both issues of liabil-

ity and remedy.

A=- 52

II, FINDINGS OF FACT.

A. Stipulation of Facts.

The Stipulation of Facts was filed by

the original parties, Liddell, et al., and

the Board, on June 7, 1974, pursuant to a

February 28, 1974, request by the Court.

This request came after the Court had, by

public notice, invited any interested

parties to intervene in this class action.

The Stipulation of Facts consists of

50 pages of description and facts con-

cerning the St. Louis public schools to

which the original parties agreed and are

bound.

Subsequent to the filing of the Stipu-

lation of Facts, other parties have inter-

vened as parties plaintiff.

When Caldwell, et al., (NAACP), sought

to intervene in the class action, they did

not attempt to "assert a right to relitigate

Or undo the factual stipulations of the

parties." Liddell vs. Caldwell, 546 F.2d

766, 770: (GER Cie. i976). The Eighth

Circuit described the Stipulation of Facts

in the following manner: "the stipulation

appears to fairly set forth the basic

history and statistics of the St. Louis

school system." Id. at 770.

The February 25, 1977, order of this

Court granting the application for

intervention of Caldwell, et al., (NAACP),

specifically provided that the intervenors

adopt the Stipulation of Facts "in the same

manner and with like effect as if named as

Original parties." This Court also held in

the order of July 13, 1977, that all parties

are bound by the Stipulation of Facts.

A - 53

B. The Board of Education.

The original defendants are the Board

of Education of the City of St. Louis, which

is a metropolitan school district, a body

corporate, created and governed by the

Statutes of the State (hereinafter referred

to as the Board), and the following persons

who are sued in their respective official

Capacities at the time the suit was filed:

the twelve members of the Board, the Acting

Superintendent of Schools, and the five

District Superintendents of the districts

into which the school system of the City is

administratively divided.

The Board has the supervision and

government of the public schools and public

school property within said district; and

in its name the Board may sue and be sued;

purchase, receive, hold and sell property,

and do all things necessary to accomplish

the purpose for which the school district is

organized.

Under the laws of Missouri, all titles

to property granted to the City of St.

Louis by the United States or the State of

Missouri for school purposes, and the title

to all school lands and other property of

every kind within the City of St. Louis are

vested in the Board.

The laws of Missouri require the Board

to organize annually by electing a presi-

dent, vice-president, and secretary from

its members, and to appoint a superinten-

dent of schools; and that should the super-

intendent of schools be unable to perform

his duties as required by law, or if the

office of superintendent becomes vacant,

the Board shall appoint an acting superin-

tendent to serve during the period of dis-

ability of the superintendent or _ the

vacancy in the said office.

A - 54

The laws of Missouri vest the Board

with general and supervising control,

government and management of the public

schools and public school property in said

City of St. Louis, and generally with all

powers in the administration of the public

school system in said City, inter alia, the

following:

(a) to appoint the officers, agents

and employees it deems necessary and proper

and fix their compensation; (b) to make,

amend and repeal rules and bylaws for the

government, regulation and management of

the public schools and school property in

said City; (c) to examine, qualify and

employ teachers; (da) to purchase and hold

all property, real and personal, deemed by

it necessary for the purpose of public edu-

cation; (e) to build and construct improve-

ments for such purposes, and sell the same;

(£f) to levy taxes authorized by law for

school purposes; and (g) to. provide for the

gratuitous transportation of pupils to and

from schools in cases where by reason of

special circumstances pupils are required

to attend schools at unusual distances from

their residences.

Furthermore, as provided by statute,

the Board is subject to rules promulgated by

the State Board of Education on a number of

subjects, including accreditation, classi-

fication and requirements for the schools

of each class, and is supervised by the

State Board in some respects.

Pursuant to the laws of the State of

Missouri, the Board appointed a Superinten-

dent of Schools, and during his leave of

absence in the school year 1971-72, an

Acting Superintendent of Schools’ was

appointed for that year. These officials

have statutory authority (subject to the

A - 55

approval of the Board of Education of the

City of St. Louis, or under regulations made

by the State Board of Education), inter

alia, as follows:

(a) to appoint a treasurer;

(b) to appoint a commis-

sioner of school buildings;

and assistant superintendents;

(d) to prepare and adminis-

ter the annual budget of the

school system;

(e) To have general super-

vision of the schools’ system,

including its various departments

and physical properties, course

of instruction, discipline and

conduct of schools, textbooks and

studies; and

(£) to have general super-

vision of all school buildings,

apparatus, equipment and school

grounds and of their construc-

tion, installation, operation,

repair, care and maintenance.

The boundaries of the School District

of the City which is administered by the

Board are coterminous with those of the City

of St. Louis itself. These boundaries,

which comprise 61.37 square miles, have

remained the same since their establishment

by the legislature in 1876. Compare §5271,

R.S.Mo. 1879 with §46.145, R.S.Mo. 1969.

The City of St. Louis is also a county but

separate and distinct from St. Louis County

which adjoins the City of St. Louis.

A - 56

Ca State of Missouri and the State

Board of Education.

Prior to 1954, the Missouri Constitu-

tion provided separate schools for black

and white pupils. Art. IX, §l1(a), Mo. Con-

stitution, 1945. Several state statutes

served to implement that provision by pro-

viding for the distribution of separate

school moneys (§161.020, R.S. Mo.),

separate enumerations and the transfer of

black pupils between districts (§§163.130,

164.030, 165.117, 165.297, R.S.Mo.). The

legislature acted promptly in response to

Brown vs. Board of Education of Topeka, 347

U.S. 483 (1954). State funding for

separate black and white schools’ was

repealed at the next regular session of the

General Assembly. Laws of 1955 at 520. The

remaining statutes were repealed in 1957.

Laws Of 1957 at 452.

In 1961, laws were enacted prohibiting

discrimination in housing (Chapter 213,

R.S.MO.), employment (Chapter 296,

R.S.Mo.), and public accommodations (Chap-

ter 314, R.S.Mo.). The latter chapter by

its terms is applicable to- schools.

Enforcement of these laws was vested in the

Missouri Commission on Human Rights. No

other laws were enacted, nor were any laws

amended which expressly or by implication

required or permitted school districts to

make distinctions between black and white

pupils, or which encouraged districts to

resist the removal of vestiges of the dual

system within their districts.

The Missouri State Board of Education

has constitutional and statutory authority

to “supervise instruction" in the public

schools of Missouri (Art. IX, §2(a), Mo.

Constitution, 1945), and to otherwise

effectuate the educational policies of the

A - 57

State. §161.092, R.S.Mo. 1969 (as amended,

Cum. Supp. 1975). The State Board dis-

tributes state aid on an annual basis to

local school districts pursuant to a

formula taking into account, inter alia,

numbers of pupils served and local tax

effort. §163.031, R.S.Mo. 1969 (as

amended, Supp. 1977).

State aid may be withheld only if a

school district fails to: (a) operate its

schools for a minimum number of days, (b)

maintain adequate financial records, (c)

levy a minimum property tax, or (d) compute

average daily attendance as prescribed by

law. §163.021, R.S.Mo. 1969 (as amended,

Cum. Supp. 1975).

The State Board has statutory power to

provide state aid in the transportation of

Students and to approve all school bus

routes traveled by school buses. §163.16l,

R.S.Mo. 1969 (as amended, Supp. 1977).

St. Louis, as a “metropolitan dis-

trict," is empowered to transport pupils to

and from schools "where by reason of special

circumstances pupils are required to attend

schools at unusual distances from their

residences." §162.621(8), R.S.Mo. 1969.

All other districts are subject to

Statutory mileage criteria. §167.231,

R.S.Mo. 1969 (as amended, Supp. 1977).

The determination of pupil assignments

and transfers, the drawing of attendance

zones and feeder patterns, the selection of

sites for schools and additions, and the

assignment of faculty are within the dis-

cretion of local school officials, and are

not shown to be routinely reported to the

State.

A - 58

The State Board is responsible for

approving applications from the St. Louis

Board for aid under Title I of the Elemen-

tary and Secondary Education Act of 1965 and

such aid is also subject to final approval

by the Department of Health, Education and

Welfare (HEW).

The evidence shows that the State of

Missouri effectively removed all barriers

at the state level to the desegregation of

the schools. There is no showing that any

actions of the State, the State Board of

Education, or the Commissioner of Education

of the State of Missouri had a segregative

effect or in any way hindered desegrega-

tion.

D. PRE-BROWN CONDITIONS.

1. Dual school system.

Prior to the decision in Brown vs.

Board of Education of Topeka, 347 U.S. 483

(May 17, 1954), the public schools of the

State of Missouri were segregated pursuant

to state constitutional and statutory law.

As of that time the public schools main-

tained and operated by the Board had a total

enrollment of 90,327 pupils, comprising the

following:

White Black

17,216 High 11,921 5,295

Schools

72,259 Elementary 46,674 25,585

Schools

852 College 547 305

90,327 Total 59,142 31,185

Over 30,000 children in St. Louis attended

private and parochial schools, a relatively

low percentage of that number being black.

A - 59

Prior to 1954 the Board operated seven

(7) high schools limited to white students.

These schools were Beaumont, Central,

Cleveland, McKinley, Roosevelt, Soldan, and

Southwest high schools. There were two (2)

high schools limited to black students.

These schools were Sumner and Vashon. There

were also two vocational or technical

schools, one black, and one white.

Under the dual school system white

students were assigned to schools on the

basis of proximity to their homes. Black

children did not have neighborhood schools,

but were instead bused to the black schools

at the core of the City. Separate, over-

lapping attendance zone lines were main-

tained for black schools and white schools.

This resulted in some extremely large

attendance zones for black schools.

2. Discriminatory laws.

Segregation was eliminated in the

following public facilities and community

services in the indicated years. The

Catholic schools were desegregated in 1947.

Nondiscrimination was made the law in City

employment in April, 1946. White teachers

were employed in black segregated schools

prior to 1955. The St. Louis area ball

parks were desegregated and St. Louis

University was integrated in 1944,

Washington University was integrated in

1947. The St. Louis theaters were desegre-

gated in 1951. The St. Louis recreational

facilities were desegregated in 1950, and

the public transit system was desegregated

in 1953.

In 1918 an attempt was made to impose

segregated housing on the City's popula-

tion. Over the opposition of City

officials, a segregated housing ordinance

A - 60

was passed by initiative petition. This

ordinance was immediately struck down by

the courts and was never enforced. Never-

theless, as of 1954, segregation in housing

existed due to private discriminatory prac-

tices and actions and policies of the

Federal Housing Administration.

3. Demographics.

A quick review of St. Louis demo-

graphics prior to 1954 reveals a tendency of

certain groups of common race, national

Origin, religion, and economic means to

settle in certain areas of the City. This

tendency has resulted in some homogeneous

residential patterns despite the hetero-

genity of the population of St. Louis as a

whole. Although grouping in homogeneous

residential patterns was evident prior to

1954, all groups remained highly mobile.

Pockets of blacks were residing throughout

St. Louis, although much of the black popu-

lation lived in the area immediately north

of the downtown area. The tremendous

mobility of the St. Louis population was to

be shown in demograhic changes after 1954.

The population of St. Louis grew until

1950, when the population was 856,796. The

racial composition in St. Louis was then

82.1% white and 17.9% black. In 1950, the

white population in St. Louis had declined

by 4,253 from 707,283 whites in 1940. White

attendance in the St. Louis public schools

had also declined as of 1950.

4. Board activities.

The St. Louis Board of Education

anticipated the outcome of the Brown deci-

sion and in 1953 began to prepare for

desegregation.

A - 61

By the time the Brown decision was

handed down a number of steps had been taken

by the Board, including: interracial

activities for principals, teachers, and

students; introduction of teaching

materials portraying contributions of

different ethnic groups to American life;

comprehensive programs to improve’ the

teaching of human relations in the schools;

working with church groups, civil rights

groups and other community organizations to

prepare the community for desegregation and

to obtain community support for desegrega-

tion; and arrangements to familiarize Board

members, school officials and community

leaders with the experience of a desegre-

gated public school system. The pre-Brown

activities of the Board also included the

preparation of plans for the desegregation

of the school system. The administrative

staff of the Board began preparing a

desegregation plan for implementation as

soon as the Supreme Court acted.

This anticipatory work by the Board

was praised at the time of Brown in that it

made possible an early completion of the

integration program for St. Louis. Irving

Dilliard, chief editorial writer for the

St. Louis Post-Dispatch, made the following

comments on the Board's efforts in his

editorial of May 19, 1954:

"Ready acceptance in St.

Louis is indicated by the recep-

tion of the [Brown I] decision

here. Much to its credit, the

Board of Education has antici-

pated the result and has in hand

Plans for developing a_ single

school system. It can be hoped

that this program is already far

enough along on paper that it can

be completely worked out and put

A =- 62

into effect next September.

Three months is a_=e substantial

period. Accommodation of the

ruling through the summer

vacation season would be a

splendid achievement for’ the

second largest city in_- the

country (after Baltimore) with a

segregated school system."

E. 1954-56 Desegregation Plan.

On June 30, 1954, the Attorney General

of the State of Missouri ruled that the pro-

visions of the Constitution and laws of

Missouri requiring segregation were super-

seded by Brown and were unenforceable. By

that time, to wit, on June 22, 1954, the

Board had already adopted a three step

program for desegregation of the St. Louis

public schools. The first step provided for

desegregation at the junior college,

teachers college level and in those classes

which provided services on a city-wide

basis. This first step was completed by

September 1954.

The second step provided for desegre-

gation of all high schools (except for the

technical high schools) and also. for

desegregation of the adult education pro-

gram. The third step provided for desegre-

gation of the two existing technical high

schools and all regular elementary schools.

The plan was implemented | sia a two year

period, from 1954 to 1956.

The three point program eliminated

race as a required criterion in determining

eligibility to enroll in any public school

of the system. After the adoption of this

program, students were assigned to the

schools in accordance with the following

general principles to govern the integra-

A - 63

tion process for students, which were

adopted by the Board at the said meeting of

June 22, 1954: |

a. The areas to be served by

each elementary and each

secondary school will be estab-

lished by new boundaries. In

drawing these boundaries, the

purpose will be to provide the

best use of the facilities of a

given school by the students

living in the area of that

school.

b. These boundaries will

provide each school with a

district which it will serve.

Students must attend school in

the district in which they live,

with the following exceptions:

(1) The proper

school authorities may

transfer students from

one district to another

to relieve over-

crowding.

(2) Students

already enrolled in a

school, but not resi-

dents in its new

district may, but are

not required, to con-

tinue at that school

until they graduate.

This privilege will be

granted, however, only

if the particular

school is not over-

crowded.

A - 64

For the accomplishment of these objectives,

IBM cards were prepared for city blocks

showing the number of students without any

consideration of. race or color. All

reference to race or color was eliminated in

the records of the St. Louis Pu lic School

System from 1954 until 1962, when the

first racial count was taken pursuant to the

recommendation of the U. S. Commission on

Civil Rights.

The new attendance boundaries’ for

elementary schools were drawn by a high

level black administrator, James Armstrong

Scott, who used the following procedure:

a. All principals of all

elementary schools were required

to send the grades and residence

addresses of each of their stu-

dents to a central office, where

the information was reduced to

IBM cards, which were then sorted

by the city block on which each of

the students resided.

b. Mr. Scott was’ then

supplied with a separate sheet of

paper for each city block, on

which sheet was’ printed the

number of public school students

residing on that block and the

grades which they attended.

There was no other information on

the sheet. The names, ages,

race, and home addresses of the

children were all deleted.

Cc. Attendance boundaries

were then drawn for each school,

using as the criteria only proxi-

mity to the school building and

building school caracity, giving

consideration for natural

A - 65

barriers such as major thorough-

fares and distance.

Mr. Scott was instructed "to do the

whole job" and to rely on the following

factors alone:

"To draw the lines

objectively by the use of IBM

cards and to decide each district

on the - in terms of building

Capacity, that is if it's a five

hundred school which would hold

five hundred children. And on

distance, so that the children

would not have to go too far. And

on the basis of safety, so that

they wouldn't have to cross

dangerous spots. And in the case

of some, on the basis of trans-

portation because even with the

best districting, some children

did have to ride to school."

(Scott deposition, pp. 8-9.)

Subsequent to the establishment of the

new boundaries, there was ae series of

meetings and communications with parents,

and the new boundaries were publicized in

the newspapers in advance of their imple-

mentation. The new elementary boundaries

were approved by the Board in its meeting of

March 8, 1955.

One of the effects of the _ redis-

tricting in 1954 was to bring about equali-

zation of students in attendance at the

various schools. As Scott testified:

"In some schools, especially

toward the edge of the black

area, there were schools of white

children that had some empty

A - 66

rooms and they were redistricted

to take down the numbers from the

black schools. For years’ the

black schools, the teachers had

about forty-five children to a

room; whereas, in most of the

white schools there were about

thirty-five children. But when

we redistricted in 1954-55, we

tried to have every school in the

city, black or white, average the

Same number of pupils per room."

(Scott Deposition, pp. 49-50.)

The high school boundaries were

redrawn by Mr. Sellman, using the same

method as Mr. Scott’ used. The new

boundaries were publicized and interested

groups and organizations, including the

NAACP, the Urban League, PTA and other civic

and religious groups were invited to

inspect and comment on them. No complaints

were received and the boundaries were

approved by the Board on December 14, 1954.

The plan formulated by the Board,

described above, succeeded in Gesegreating

the previously dual school system. The

level of desegregation achieved through the

plan was substantial and _ system-wide.

Almost 60% of the black high school students

chose to attend the previously all white

school in their new district attendance

area, with the result that six of the seven

previously all white high schools had a

racially mixed enrollment. At the elemen-

tary school level about two-thirds of the

total engot iment were attending interracial

schools.

The Board's desegregation plan

encompassed desegregation of the faculty,

discussed infra, the administration, and

A - 67

the Board itself. Since April 18, 1955,

there has been no time when the 12-member

Board did not include at least one black

member, two since the school year 1960-61,

three since the school year 1962-63, and

four since the school year 1970. There have

been four black presidents elected by their

colleagues on the Board.

Special committees were appointed by

the Board to deal with desegregation

policies and procedures. The first was a

staff committee of three members, of which

James A. Scott, a black assistant superin-

tendent, was chairman from the establish-

ment of the committee on November 14, 1961.

The second was a continuing committee on

integration, consisting of four members of

the Board, which was created on Septem-

ber 10, 1963, and was first chaired by the

Reverend John J. Hicks, one of the black

Board members.

The Board's desegregation plan

received widespread support in 1954 from

Civil rights supporters. Wylie Davis, in

his study on St. Louis which was a Report to

the Civil Rights Commission in 1962,

praised the effectiveness of the Board's

plan:

"The 1954-56 transitions,

then, were solidly conceived and

brilliantly carried off. They

represented a signal breakthrough

in human relations, and every-

where those who prize mans dig-

nity were properly impressed."

As a result of the Board's 1954-56

desegregation plan, a unitary public school

system was achieved in St. Louis.

A - 68

F. Resegregative Factors.

After the 1954-56 desegregation plan

was implemented, several forces, outlined

below, which are beyond the Board's con-

trol, impeded further integration and

caused resegregation in the St. Louis public

schools.

Ae Socio-demographic changes in St.

Louis.

In its origin and for many decades

thereafter the population of the City was

predominantly white. The more recent

decades, however, show a sizeable and con-

sistent increase in the black population of

the City, with a large loss of white popu-

lation and a significant loss of the total

population. Since no issue is raised in

this case as to any race or ethnic group

other than black, and since the aggregate of

all such other minority groups is negli-

gible in itself, they are combined with

“whites.”

The census data show the extent of this

transition over the years since 1940:

Total ; a

Year Population Black Black

1940 816,048 108,765 143.3%

1950 856,796 153,766 17.9%

1960 750,026 214,377 28.6%

1970 622,236 254,191 40.9%

1977* 523,000 229,980 44.0%.

*The 1977 figure is an estimate.

During the perio from 1950 to 1970 the

"net out-migration" of whites from the

City amounted to over 400,000 while blacks

showed an overall increase of over 100,000.

A - 69

The exodus of whites and affluent

blacks from the City to St. Louis County was

caused and accelerated by a variety of

mutually reinforcing factors; combination

of widespread automobile ownership and

building of expressways; abundance of land

in the County which could be developed with

modern homes, contrasted with the nonavail-

ability of such land in the City and the age

of the City's buildings which were found

less desirable to satisfy the life-style of

a post-war affluent society; and the pull of

jobs in the County due to the very sizeable

growth of employment oportunities provided

by large manufacturers and businesses which

became located in the County.

This movement from the City to St.

Louis County is reflected in the following

statistics of the United States census with

regard to the racial composition of the

County's population:

Total +

Year Population White Black

1940 274,230 261,840 4.5%

1950 406,349 389,336 4.1%

1960 703,532 683,652 2.7%

1970 951,353 902,002 4.8%

The white exodus to the suburbs in the

1950's and 1960's was accompanied, and

partially caused or accelerated by the

movement of the blacks from the inner-city

area to the central west end and later to

the northwest areas of the City and into the

County. Factors in this black migration

from the inner-city were the economic

upgrading of former poverty and low income

level families, and the impact of razing

Slum areas in preparation for new housing

developments such as the Mill Creek area

(declared blighted in 1953), J. J. Cochran

A - 70

(1953), Capt. N. O. Pruitt (1955), Wm. L.

Igoe (1956), G. L. Vaughan (1957, 1963),

J. M. Darst (1956), and A. M. Webbe Apart-

ments (1961). The slum razing resulted in

large-scale displacement of black residents

of the inner-city, the majority of whom

migrated to the west end.

Intra-city movement and dislocation of

blacks was also produced by the clearance

required for the development of the highway

system, including Highways 55, 44, 70, and

40. These displacements resulted in a major

intra-city migration of blacks from the

traditional inner-city to the central west

end and to the northwest areas of the City

and into the County.

Prior to the 1960 census only 2% of the

blacks in St. Louis lived west of Kingshigh-

way. By April, 1963, over 25% of the black

population lived west of Kingshighway.

The west end area of St. Louis (Union

to Hodiamont and Delmar to Page) went from

about 60% black in 1962 to almost 100% black

today.

The black out-migration from_ the

inner-city to the west end and northwest St.

Louis has resulted in high population

density in the receiving areas. In many

instances the shifting of blight, as

dwellings became unprofitable to the land-

lords and unlivable for the tenants,

resulted in the downgrading and the

eventual abandonment of neighborhoods,

which caused a continuous search by blacks

for a better neighborhood.

Another result was the depopulation of

previously heavily occupied areas. During

the westward, northward and northwestward

expansion of the black population of the

A - 71

City between 1950 and 1970, fifty percent of

the blacks moved out of the older black

areas. This is reflected in the following

statistical analysis by the 26 health dis-

tricts into which the City has been divided

since before 1950:

Black Population of

the St. Louis Health

Districts as a % of

the City's Total

Health Districts Black Population

1950 1960 1970

- Carondelet 0.3% 0.2% 0.1%

- Gardenville - - -

- Southwest - - -

- Oakland

5. West End

6. Sherman Park

7. Northwest

8. Baden

9. O'Fallon Park

10. Fairgrounds

ll. Garfield

12. Forest Park

13. Fairmount

14. Southampton

15. Cleveland

16. Tower Grove

17. Compton

18. Ranken

19. Lindell

20. Yeatman

21. Beaumont 3

22. Mill Creek

23. Soulard

24. Cherokee

25. Downtown

26. Hyde Park

NO WW

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A - 72

The number of health districts with

10% or more black population (of all ages)

increased from 8 in 1950 to 15 in 1970 and

during the same period the number of health

districts with more than 40% black popula-

tion increased from 4 to 12. The percen-

tages of blacks computed from the total

population of each health district in 1950,

1960,

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