# Petition — Adams v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2340%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 446 U.S. 949 ## Text IN THE SUPREME COURT OF THE UNITED S October Term, 1979 ay 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 B 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.), ii Education, Tenn., Education, 1969), 1971 ’ ’ 19, 23, 19, 19, 25 36 26 24 24 26 29 36 25 19 26 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, 35 28 35 28 35 26 33 29 26 28 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) . ° iv 13, 36 35 31 31 31 31 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, 36 33 32 32 32 33 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. 10 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 ll 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 12 .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, 13 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 14 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. 15 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. 16 On April 21, 1980, these Petitioners filed their Motion for a Stay with the Circuit Court. REASONS FOR GRANTING WRIT I 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. II 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. Iv Certiorari should be granted _ to resolve the appropriateness of attorneys' fees awards in Civil Rights Cases. i CERTIORARI SHOULD BE GRANTED TO RESOLVE WHETHER THE ACTIONS OF THIRD PARTIES, WHICH RESULT IN DE FACTO RESEGRE- 17 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 18 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 19 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, 20 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 21 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) 22 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 23 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 24 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. 25 430, 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 26 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. II 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 27 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. 28 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." 29 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- 30 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 31 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. 32 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. 33 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. IV 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; 34 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 35 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. 36 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. (c) An applicable program means a pro- 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. (c) "Public school" means any elemen- 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; (c) To examine, qualify and employ 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; (c) To prepare and administer the an- 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. (c) Defendants deny all of the 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 t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2340%3A1. Public record. Not legal advice.