Reply Brief — Metropolitan School District v. Buckley

Mii i x

SEP 10 1980

MICHAEL RODAK JR. CLERK

r=

No. 79-1975

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

THE METROPOLITAN SCHOOL DISTRICT

OF PERRY TOWNSHIP,

MARION COUNTY, INDIANA,

Petitioner

US.

DONNY BRURELL BUCKLEY and ALYCIA MARQUESE

BUCKLEY, by their parent and next friend, Ruby L.

Buckley, on behalf of themselves and all Negro school age

children residing in the area served by the original

defendants herein; UNITED STATES OF AMERICA: the

BOARD OF SCHOOL COMMISSIONERS OF THE

CITY OF INDIANAPOLIS, INDIANA; et al.,

Respondents

On Petition For Writ Of Certiorari To The

United States Court of Appeals

For the Seventh Circuit

REPLY BRIEF FOR PETITIONER.

DONALD A. SCHABEL,

One Indiana Square, Suite 3300,

Indianapolis, Indiana 46204,

(317) 632-2670,

Attorney for Petitioner.

Central Publishing Company, Inc., Indianapolis, IN 46206

TABLE OF AUTHORITIES

Cases

Page

Evans v. Buchanan, 393 F.Supp. 428 (D.Del.

1975), aff'd 423 U.S. 963 (1975) ........... cece eens 3

Hills v. Gautreaux, 425 U.S. 284 (1976).............. 6

Milliken v. Bradley, 418 U.S. 717 (1974) ......... 2,3,4,6,7

Spencer v. Kugler, 404 U.S. 1027 (1972), affirming

ooo F .pupp. 12386 (D.N.J. 1971) ......ccccccccecces 4

Swann v. Charlotte-Mecklenburg Board of Education,

eM oa, or Us cav'nns cdc. cdcdvcseceee 5

United States v. Scotland Neck City Board of Education,

ee i ae vcd-o's «vd bac'a doesn 000 08 4

Wright v. Council of the City of Emporia, 407 U.S.

I AeA a Ne i ee ai ce oe 4

Statutes

Delaware Educational Advancement Actof 1968 .... 3

The School Corporation Reorganization Act of 1959,

ARG id CES. oes ee 3

No. 79-1975

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

THE METROPOLITAN SCHOOL DISTRICT

OF PERRY TOWNSHIP,

MARION COUNTY, INDIANA,

Petitioner

v8.

DONNY BRURELL BUCKLEY and ALYCIA MARQUESE

BUCKLEY, by their parent and next friend, Ruby L.

Buckley, on behalf of themselves and all Negro school age

children residing in the area served by the original

defendants herein; UNITED STATES OF AMERICA; the

BOARD OF SCHOOL COMMISSIONEFs; OF THE

CITY OF INDIANAPOLIS, INDIANA; et al.,

Respondents

On Petition For Writ Of Certiorari To The

United States Court of Appeals

For the Seventh Circuit

REPLY BRIEF FOR PETITIONER.

This reply brief by petitioner The Metropolitan School

District of Perry Township, Marion County, Indiana

(hereinafter called “Perry”), is addressed to arguments

first raised in the briefs in opposition filed by respondents

2

Buckley, The Board of School Commissioners of the City of

Indianapolis, Indiana (hereinafter called the “Indianapolis

Public Schools” or “IPS”), and the United States of

America. The common theme of the three briefs is that

Perry’s petition for certiorari does not challenge the

correctness of the constitutional standards applied by the

courts below but seeks no more than to have this Court

review concurrent findings of fact by the two courts below.

Nothing could be further from the truth. Of the three

questions presented for review by Perry’s petition, only the

first question challenges the sufficiency of the record

evidence to sustain the findings made, and a very obvious

and exceptional showing of error can be made. On the other

hand, the second and third questions stated challenge the

constitutional standards applied by the courts below in

imposing an interdistrict remedy as a cure for a single

district de jure segregation problem.

That an interdistrict remedy is not warranted in this case

is clear from Milliken v. Bradley, 418 U.S. 717 (1974). Inthe

opening paragraph of the Court’s opinion in that case it was

said:

“We granted certiorari in these consolidated cases to

determine whether a federal court may impose a

multidistrict, areawide remedy to a single district de

jure segregation problem [1] absent any finding that

the other included school districts have failed to

operate unitary school systems within their districts,

[2] absent any claim or finding that the boundary lines

of any affected school district were established with

the purpose of fostering racial segregation in public

schools, [8] absent any finding that the included

districts committed acts which effected segregation

within the other districts, and [4] absent a meaningful

opportunity for the included neighboring school

districts to present evidence or be heard on the

propriety of a multi-district remedy or on the question

of constitutional violations by those neighboring

i al (Bracketed numerals supplied) (418 U.S. at

3

Of the missing factors noted by the Court in Milliken,

only factor [4], procedural due process, has been supplied in

the case at bar. The three substantive factors are also

absent here.

With respect to factor [1], the district court in its 1979

opinion stated that “there is no evidence that any [suburban

school district] has operated anything other than a unitary

school system.” (Joint Appendix, p. A114)

With respect to factor [2], there could be no finding that

the boundary lines of Perry and the other Marion County

school districts were originally established with the

purpose of fostering racial segregation in the public

schools. The School Corporation Reorganization Act of

1959, IC 20-4-1, pursuant to which the eleven Marion

County school corporations were created and their

boundaries fixed, was not one of the statutes attacked in the

amended complaint of respondents Buckley as unconstitu-

tional. Nor did respondents Buckley make an attack on the

validity of the proceedings by which the Marion County

school corporations were created under the said statute.

Respondents Buckley conceded that the Marion County

school corporations were validly created pursuant to a

valid statute.

The claim of respondent IPS that Evans v. Buchanan,

393 F. Supp. 428 (D. Del. 1975), aff'd 423 U.S. 963 (1975),

presented “an almost identical situation” is without merit.

(Brief, pp. 20-21) In Evans a three-judge district court held

that the provisions of the Delaware Educational

Advancement Act of 1968 excluding the Wilmington school

district from eligibility for consolidation were unconstitu-

tional. This Court summarily affirmed. The comparable

Indiana legislation is The School Corporation Reorganiza-

tion Act of 1959, IC 20-4-1, which contained no such

exception to its applicability. Both the district court and

the court of appeals, in denying motions to convene a three-

judge court in the case at bar, have held that the

4

constitutionality of the Indiana school reorganization

statute is not involved in this case.

Nor is this a case like Wright v. Council of the City of

Emporia, 407 U.S. 451 (1972), and United States v.

Scotland Neck City Board of Education, 407 U.S. 484

(1972), where it was attempted to create new school

districts out of portions of de jure segregated school

districts that had not yet completed desegregation. The

suburban school districts involved in the case at bar, and

their predecessors, have never been a part of the IPS

district, or its predecessors. The township school districts

in Marion County have been in existence as long as the IPS

district, 7.e., since 1852.

The majority of the court of appeals held that this case

fits squarely within the rule of Milliken that an

interdistrict remedy is appropriate “where district lines

have been drawn on the basis of race.” (Joint Appendix, p.

A21) On the other hand, Circuit Judge Tone, in his 1975

dissenting opinion, observed that “[f]ailing to redraw the

school district lines does not seem to me to be ‘redrawing

school district lines’” (Supplemental Appendix, p. A3l, n.

7), and the district judge agreed in his 1979 opinion. (Joint

Appendix, p. 109) Be that as it may, failing to redraw school

district lines would be a constitutional violation only if the

General Assembly of Indiana had an affirmative

constitutional duty to expand the boundaries of IPS, the

only dual-school system in the county, to include the

territory of the other ten unitary school systems once it

decided to reorganize civil government in the county so that

IPS could have desegregated its schools by spreading its

black school population throughout the area of the county.

(Joint Appendix, pp. A64-A65) But the existence of such an

affirmative constitutional duty was rejected by this Court

in Spencer v. Kugler, 404 U.S. 1027 (1972), affirming 326 F.

Supp. 1235 (D.N.J. 1971).

5

With respect to factor [3], there has been no finding that

‘the suburban Marion County school districts committed

acts that effected segregation within IPS. Among the

issues of fact considered by the district court in its 1973

opinion was whether or not any of the suburban Marion

County school corporations had acted to promote

segregation either within IPS or within their own

boundaries. (IPS Appendix, p. 16a) The court found that

there was no evidence that any of them had committed acts

of de jure segregation directed against Negro students living

within their respective borders. (Ibid., p. 29a) Although the

court noted that the suburban Marion County school

districts had resisted countywide consolidation when it was

proposed in 1960, the court conceded their right to do so

under existing law. (Jbid., p. 30a) Toward the end of the

opinion, the court observed that it “was pleased to learn

from the evidence of the recognition giving to Negro

students by their fellow white students in the few suburban

schools which they attended, and of the honors, both

scholastic and otherwise, which such Negro students have

earned in such schools.” (Ibid., p. 48a) Included in such

evidence was the fact that during the 1971-72 school year at

petitioner Perry’s Southport High School a black girl had

been elected home-coming queen by the student body.

Although the suburban Marion County school districts

committed no acts that effected segregation within IPS, the

courts below held that the action of respondents The

Housing Authority of the City of Indianapolis and the

Metropolitan Development Commission of Marion County

in locating all public housing projects within the

boundaries of the Indianapolis Public Schools, without any

discriminatory action by the school authorities, was a

constitutional violation requiring remedial action by an

interdistrict school desegregation decree. While respondents

IPS and United States concede that this precise question

was expressly left undecided in Swann v. Charlotte-

Mecklenburg Board of Education, 402 U.S. 1, 22-23 (1971),

6

they, nevertheless, argue that the Court should not decide it

in this case for various specious reasons. It is highly

significant that not one of the respondents opposing Perry’s

petition for certiorari mentions the discussion in the

petition (pp. 19-20) to the effect that the remedy most

closely tailored to fit the constitutional violation would have

been a remedial decree against the authority and the

commission directing them, in accordance with Hills v.

Gautreaux, 425 U.S. 284 (1976), to locate public housing in

the authority’s area of operation lying outside the

boundaries of IPS, whereas the remedy approved by the

courts below impermissibly restructures and displaces the

authority of school districts that have not been implicated

in the constitutional violation.

In sum, this case, contrary to the contentions of the

respondents opposing certiorari, presents for review far

more than purely factual matters. As stated in Milliken,

418 U.S. at 746, the constitutional right of the black pupils

represented by the respondents Buckley is to attend a

unitary school system in IPS. The interdistrict remedy

ordered by the district court and approved by the court of

appeals “can be supported only by drastic expansion of the

constitutional right itself, an expansion without any

support in either constitutional principle or precedent.”

Ibid., at 747. This case surely merits review so that this

Court can examine the constitutional standards applied by

the courts below.

Additionally, as already stated, a very obvious and

exceptional showing of error can be made in the findings,

approved by the court of appeals, that the actions of the

Indiana General Assembly—in failing to expand the

boundaries of IPS to the county limits when in 1969 it

reorganized and consolidated various but not all city and

county civil governmenial functions in Marion County—

and of the Housing Authority of the City of Indianapolis

and the Metropolitan Development Commission of Marion

County—in locating all public housing projects within the

7

boundaries of IPS—were done, at least in part, with a

racially discriminatory intent and purpose. The three

dissenting opinions of Circuit Judge Tone amply

demonstrate such error. (Joint Appendix, pp. A28-A53,

A81-A83; Supplemental Appendix, pp. A26-A35)

The basic difficulty with this case is that the courts below

have ignored the controlling principle “that the scope of the

remedy is determined by the nature and extent of the

constitutional violation.” Milliken, supra, 418 U.S. at 744.

The nature and extent of the constitutional violation

necessarily must be determined first before a remedy of

proper scope can be fashioned. But as observed by Judge

Tone (Joint Appendix, pp. A29-A30), the reason why this

case has had such a checkered history and pended for so

many years is that the district court, ignoring the

controlling principle, first settled on an interdistrict

remedy for the de jure segregation in IPS and then

commenced a search for a constitutional violation to

support it. Consequently, in this case the nature and extent

of the constitutional violation has been determined by the

scope of the remedy previously selected.

Respectfully submitted,

DONALD A. SCHABEL,

One Indiana Square, Suite

3300,

Indianapolis, Indiana 46204,

(317) 632-2670,

Attorney for Petitioner.