Petition — Metropolitan School District v. Buckley

Supreme Court of the Ee] ct

OCTOBER TERM, 1979

no. %9=206%

THE METROPOLITAN SCHOOL DISTRICTS OF LAW-

RENCE, WARREN anD WAYNE TOWNSHIPS, MARION

COUNTY, INDIANA; THE METROPOLITAN SCHOOL

DISTRICT OF DECATUR TOWNSHIP, MARION COUN-

TY, INDIANA, THE FRANKLIN TOWNSHIP COMMUN-

ITY SCHOOL CORPORATION, MARION COUNTY,

INDIANA, Petitioners,

VS.

DONNY BRURELL BUCKLEY ano ALYCIA MARQUESE

BUCKLEY, BY THEIR PARENT AND NEXT FRIEND, Ruy L.

BUCKLEY, ON BEHALF OF THEMSELVES AND ALL NEGRO

SCHOOL AGE CHILDREN RESIDING IN THE AREA SERVED BY THE

ORIGINAL DEFENDANTS; UNITED STATES OF AMERICA;

THE BOARD OF SCHOOL COMMISSIONERS OF THE

CITY OF INDIANAPOLIS, INDIANA, ET AL.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

LEWIS C. BOSE, WILLIAM O. SCHRECKENGAST,

WILLIAM M. EVANS, KITLEY & SCHRECKENGAST,

DAVID R. DAY, 380 Main Street,

BOSE McKINNEY & EVANS, Beech Grove, Indiana 46107,

1100 First Federal Building, (317) 787-5389,

Indianapolis, Indiana 46204,

(317) 637-5353,

CHARLES W. HUNTER,

810 King Cole Building,

7 North Meridian Street,

Indianapolis, Indiana 46204,

(317) 637-2411,

Attorneys for Petitioners.

Gunthorp-Warren Printing Company, Chicago e Financial 6-6565

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1979

THE METROPOLITAN SCHOOL DISTRICTS OF LAW-

RENCE, WARREN AnD WAYNE TOWNSHIPS, MARION

COUNTY, INDIANA; THE METROPOLITAN SCHOOL

DISTRICT OF DECATUR TOWNSHIP, MARION COUN-

TY, INDIANA, THE FRANKLIN TOWNSHIP COMMUN-

ITY SCHOOL CORPORATION, MARION COUNTY,

INDIANA, Petitioners,

vs.

DONNY BRURELL BUCKLEY anp 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; UNITED STATES OF AMERICA;

THE BOARD OF SCHOOL COMMISSIONERS OF THE

CITY OF INDIANAPOLIS, INDIANA, ET AL.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

il

Petitioners pray that a writ of certiorari issue to review the

judgment of the United States Court of Appeals for the Seventh

Circuit entered on April 29, 1980, in this case.’

QUESTIONS PRESENTED

1. (a) Did the Court of Appeals, Judge Tone dissenting,

correctly conclude that the 1969 Indiana General Assembly

in reorganizing the splintered and overlapping units of civil

government in Indianapolis and Marion County had an af-

firmative Fourteenth Amendment duty, as defined in Milliken

v. Bradley, 418 U.S. 717 (1974), to black students attending

the Indianapolis Public School district to remedy de facto

racial differences between that school district and the other

school districts in Marion County, even though all Indiana

school corporations are organized and operated as separate

governmental entities independent of both local civil govern-

ment and each other and the legislation effected no school

boundary change?

(b) In determining that the General Assembly acted with

a discriminatory racial purpose in adopting its 1969 legislation,

did the Court of Appeals, Judge Tone dissenting, fail to follow

Washington v. Davis, 426 U.S. 229 (1976) and Village of

1. Parties to the proceeding in the United States Court of

Appeals not listed in the caption are: The Metropolitan School

District of Perry Township, Marion County, Indiana; The Metro-

politan School District of Pike Township, Marion County, Indiana;

The Metropolitan School District of Washington Township, Marion

County, Indiana; School City of Beech Grove, Marion County,

Indiana; School Town of Speedway, Marion County, Indiana; The

Housing Authority of the City of Indianapolis, Indiana; The Metro-

politan Development Commission of Marion County, Indiana; Otis

R. Bowen, as Governor of the State of Indiana; Theodore L. Sendak,

as Attorney General of the State of Indiana; Harold H. Negley, as

Superintendent of Public Instruction of the State of Indiana; The

Indiana State Board of Education, a public corporate body; and The

Indiana State Teachers Association.

iii

Arlington Heights v. Metropolitan Development Corporation,

429 U.S. 252 (1977), by finding a purported change in a legi-

slative policy requiring coterminous Indianapolis school and

civil boundaries, even though that policy was substantially

abandoned or limited by 1959 and 1961 legislation mandating

establishment of school boundaries on considerations of financial

and administrative efficiency, and Marion County school boun-

daries were established on that basis since 1961 and by 1969

were no longer coterminous with civil boundaries?

2. (a) Is the Court of Appeals majority opinion, Judge

Tone dissenting, correct in determining that a purported Four-

teenth Amendment violation by the Housing Authority of the

City of Indiarapolis—i.e., placing its units of public housing

within the more demographically black Indianapolis than in the

surrounding suburban areas in Marion County—must be cured

by transferring students across school district lines rather than

by an affirmative housing remedy against HACI?

(b) Does it make any difference in establishing discrimina-

tory intent or a significant interdistrict segregative effect in

the location of public housing that it was located in both

black and white demographic areas and did not increase the

number of black students in the Indianapolis public school

district, or under Personnel Administrator of Massachusetts v.

Feeney, ............ ie ieee , 60 L. Ed. 870, 888 n. 25 (1979)

and James v. Valtierra, 402 U S. 137 (1971), that the Housing

Authority had no ability under Federal law to locate public

housing in the other districts because Marion County civil

government officials with jurisdiction over the suburban areas

outside Indianapolis were unwilling or unable to enter into the

cooperation agreements necessary to Federal financing?

iv

TABLE OF CONTENTS

PAGE

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ee ee errr ee eee Vv

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Constitutional Provisions and Statutes Involved......... 2

oe gain wcbleis cb be ewe Cab ase 3

IG o's aes Gn BWa 6a Woke 660 oh es 3

Summary of Subsequent Proceedings............. 5

SET are a ee eee 7

Uni-Gov—The Majority Rationale and Its Deficiencies 16

HACI—Mgiority Rationale .................... 20

Reasons for Allowance of the Writ..............+.... 21

Uni-Gov and the 1969 Annexation Amendment.... 21

Siting of Public Housing Projects................ 24

Rs i ee ne eds cc oka ewe Core 26

TABLE OF AUTHORITIES

Cases

Armour v. Nix, Civil No. 16708 (N. D. Ga., September 24,

1979), aff'd., 48 U.S. L. W. 3732 (No. 79-6108, May

| Pe are ree eo ee ee 24

Bradley v. Milliken, 484 F. 2d 215 (6th Cir. 1973), rev’d.,

a a . ree eee 5

Bryant v. Whitcomb, 419 F. Supp. 1290 (S. D. Ind. 1970) 13

Buchanan v. Evans, 439 U. S. 1360 (1978) (Brennan, J.) 22

Cantwel! v. Hudnut, 566 F. 2d 30 (7th Cir. 1977), cert.

peel, 499-GS. 19048 CIGAR). oc osc isceencsccccs 13

City of Mobile v. Bolden, ............ lee ,- €U.3 L. W.

WEE CRUE Bas CPEs Crea iow cus ees seige de 23

Dayton Bd. of Ed. v. Brinkman, .......... 5 Gee , 61

MR & Bi. | eae Oe aero 21

Evans v. Buchanan, 393 F. Supp. 428 (D. Del. 1975),

ra: Se ie a CPs oo or os Seiden suwceosas 22

Evans v. Buchanan, 582 F. 2d 750 (3d Cir. 1978)..... 22

Green v. Board of Education of New Kent County, 391

oN @ 9: | Sveeeete es ee ree 4, 20, 23

James v. Valtierra, 402 U.S. 137 (1971)............. 25

Keyes v. School District No. 1, Denver, Colorado, 413

ee eran oy eee reer, a 21

Milliken v. Bradley, 418 U.S. 717 (1974)..... 16, 18, 21, 22

Oliver v. Michigan State Bd. of Education, 508 F. 2d 178

Sh - C, b wh nhs eer ankcekcus esmueawnen 21

Personnel Administrator of Massachusetts v. Feeney,

i er ~~ FS © Fy. Ft: ) eee eee 23

Vi

Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1

8g | | SRR e aarti eer ry 2 a a er en 21, 24

Village of Arlington Heights v. Metropolitan Development

Corporation, 429 U.S. 252 (1977)............05. 6, 23

Washington v. Davis, 426 U.S. 229 (1976)........... 6, 23

Wright v. City of Emporia, 407 U.S. 451 (1972)....... 21

Constitutional Provisions

U. S. Const., Fourteenth Amendment.................

ica aah ab tabs La ee wk Oe

Federal Statutes

re Ds 5G 0's wo's'e'b. u's Wawadis eecekae> o 1

ee eee ree 3

42 U.S. C. $§ 2000c-6(a) and (BD)... cc eccnccccvens 3

Indiana Session Laws

LD oad ruc y wb tbs dos ow eed ewweu 15

Acts 1905, Ch. 129, as amended by Acts 1955, Ch. 269 2,19

RT I re ae 2

ae sop peck ek Lees eed ee OA O4 3

rer err rey ree 15

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ES Es 6 95 dn hoes ceed bonesee bens Canned 2

PE SO CS vo sne ceeeacan 2, 4, 11, 16, 18, 19, 20, 21

pa Se . A ere 2, 4, 12, 13, 16, 18, 21

ey NO II ra: 605-35 .6ck Sb o 066.0 bh Pw wea 2

Ic:

Vii

Indiana Code

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RO eels Cate tae ts ae ke a 13

0 US DARREN Ei a he Sree et a 12

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MONET, oo reas, BR ua epic tinsth eves 12

RAMI MME CC ert hoa gh Sete eb ee, 12

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MN ee rs ty Te dp on ak Kowa 13

1

OPINIONS BELOW

The opinions below on which this appeal is based are in

chronological order, as follows:

Opinion of the United States District Court for the Southern

District of Indiana (“District Court’), dated August },

1975. (419 F. Supp. 180; SA 36)?

Majority and dissenting opinions of the United States

Court of Appeals for the Seventh Circuit (“Court of Ap-

peals”), dated July 16, 1976, affirming the District Court,

which were appealed to this Court or subject to petitions

for certiorari and were remanded by this Court, 429 U. S.

1068 (1977). (541 F.2d 1211; SA 1)

Principal, concurring and dissenting opinions of the Court

of Appeals, dated February 14, 1978, remanding the case

to the District Court. (573 F. 2d 400; JA 54-83)

Opinion of the District Court on remand, dated July 11,

1978 (456 F. Supp. 183; JA 84-100).

Opinion of the District Court on additional limited re-

mand related to remedy, dated April 24, 1979, as yet un-

reported. (JA 101-129)

Majority and dissenting opinions of the Court of Appeals,

dated April 29, 1980, as yet unreported, which are the

subject of this appeal. (JA 1-53)

JURISDICTION

The judgment and opinion of the Court of Appeals sought to

be reviewed by this petition were dated and entered April 29,

1980. No petition for rehearing was filed. The jurisdiction of

this Court in invoked under 28 U.S.C. § 1254(1).

2. Petitioners hereby adopt the separately bound Joint Appendix,

previously filed in this Court with petitions for certiorari to the

United States Court of Appeals for the Seventh Circuit from the

same judgment entered April 29, 1980, by The Metropolitan School

District of Perry Township, Marion County, Indiana, and Otis R.

Bowen, Governor of Indiana, and other State officials. A separately

bound Supplemental Appendix is filed with this petition. These

appendices will be cited as “JA” and “SA”, respectively.

CONSTITUTIONAL PROVISION AND

STATUTES INVOLVED

This case involves the Equal Protection Clause of the Four-

teenth Amendment to the Constitution of the United States,

which reads as follows:

Section 1. * * * 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 protection of the laws.

The statutes of the State of Indiana involved in the Court

of Appeals holding that the failure to expand the boundaries

of the Indianapolis Public Schools in 1969 was a constitu-

tional violation warranting an interdistrict school desegregation

remedy are: Acts 1961, Ch. 186 (JA 138-151), Marion County

School Annexation Act, Acts 1969, Ch. 52, School Annexa-

tion Amendment (JA 151-153), and Acts 1969, Ch. 173,

Marion County Civil Government Reorganization Act often

referred to as “Uni-Gov” (JA 154-167).

The statutes involved in showing the existing legislative policy

as respects school and civil boundaries are: Acts 1959, Ch. 202,

School Corporation Reorganization Act, (SA 63), Acts 1961,

Ch. 186, Marion County School Annexation Act, supra. The

statutes involved indicating the impediments to civil boundary

change prior to and after 1969 are: Acts 1905, Ch. 129, as

amended by Acts 1955, Ch. 269 (SA 55), and Acts 1969,

Ch. 239 (SA 47).

The statutes involved in the Court of Appeals holding that the

locating of all public housing projects within the area served

by the Indianapolis Public Schools was a constitutional violation

warranting an interdistrict school desegregation remedy are:

Indiana Acts 1937, Ch. 207, pp. 1034-1055 (Housing Authority

Act), as amended by Indiana Acts 1965, Ch. 384, pp. 1185-

3

1192 (JA 168); Indiana Acts 1937, Ch. 209, pp. 1058-1063

(Housing Cooperation Act) (JA 168-169); and the United

States Housing Act of 1937, as amended, 42 U.S.C. § 1415

(JA 169-170).

The statutes cited above are set out in pertinent part in the

Joint Appendix or the Supplemental Appendix at the pages

indicated.*

STATEMENT OF THE CASE

First Two Hearings

The United States commenced this action in the United

States District Court for the Southern District of Indiana, in

May, 1968, under §§ 407(a) and (b) of the Civil Rights

Act of 1964, 42 U.S.C. §§ 2000c-6(a) and (b), against The

Board of School Commissioners of the City of Indianapolis,

Indiana (IPS), an independent governmental entity as the only

defendant. The “sole issue” was racial segregation within the

IPS schools, and after hearing, the District Court entered an

order in 1971, finding that IPS was “. . . operating a segregated

school system wherein segregation was imposed and enforced

by operation of law, .. .” (332 F. Sup. 655, at 677-78). This

judgment was affirmed by the Court of Appeals for the Seventh

Circuit (474 F.2d 81 (1974)); certiorari was denied (413

U.S. 920 (1974)).

In its 1971 opinion, the District Court postulated a theme

relating to remedy which recurs in and is the heart of each of its

subsequent orders. It notes its undoubted authority to order a

“massive fruit basket scrambling” of IPS students which it re-

3. Through 1969, Indiana session laws are printed and cited by

the year adopted as a “chapter”. Permanent statutes were codified as

of the beginning of Indiana’s 1971 legislative session as “Indiana

Code, 1971”. The 1971 Code, as amended through 1975, was

readopted in 1976 as a restatement of Indiana law entitled “Indiana

Code” and cited “IC ........ ”. Session laws are set out in both

Appendices to reflect the applicable wording in 1969 and prior years.

4

fused to impose because “in the long haul it won’t work,” as

required of any remedy in Green v. Board of Education of New

Kent County, 391 U.S. 430 (1968), and would cause “white

flight” and resegregation.* The District Court, however, evinced

an interest in using Uni-Gov (Acts 1969, Ch. 173; JA 154), the

1969 civil government reform in Marion County, to avoid these

problems, noting that if the IPS Board’s jurisdiction were coter-

minous with that of Uni-Gov, the resegregation problem would

“pale into insignificance” and would be minimized still further

if extended to Beech Grove, Speedway City located in Marion:

County, and parts of certain adjoining counties (332 F. Supp.

at 679).

The Court then ordered the United States to add as defendants

other school districts in the metropolitan area, including all the

petitioners herein, for consideration of the appropriateness of

the metropolitan remedy. The United States complied without,

however, filing any complaint against the added school defend-

ants. The Buckley Plaintiffs, representing a class of black stu-

dents, were granted permission to intervene, joining as addi-

tional defendants several State officials and certain additional

school districts, filing a complaint against all defendants chal-

lenging the constitutionality of Uni-Gov, the 1961 School

Annexation statute (Acts 1961, Ch. 186, JA 138) and its 1969

amendment (Acts 1969, Ch. 52, JA 151).

In 1973, the District Couxt held a second hearing with all the

additional parties on the issues suggested for later determination

in its own 1971 order and the intervening complaint. The Dis-

trict Court in its opinions, however, never reached the questions

of constitutionality but concentrated primarily on the questions

of remedy (368 F. Supp. 1191 (1973)). It found (1) that a

meaningful, permanent desegregation plan for IPS could not be

accomplished within its boundaries based on evidence that

4. 332 F.Supp. at 676, 678 (1971); 368 F.Supp. at 1197,

1205 (1973), 419 F. Supp. 180, 184 (1975); 456 F. Supp. 183,

191 (1978); SA 42.

5

“white flight,” resulting in resegregation, accelerates when any

given school approaches 25%-30% black (Jd. at 1198-99),

and (2) that the State of Indiana and its officials promoted

segregation within iPS principally by their approval of school

sites and, accordingly, had an affirmative duty to desegregate

IPS (/d. at 1202). The District Court ordered an interim intra-

district plan within IPS making all elementary schools no less

than 15% black (/d. at 1223-24) and, following the reasoning

of the Court of Appeals opinion in the Sixth Circuit in Bradley

v. Milliken, 484 F. 2d 215 (1973), reversed in 418 U.S. 717

(1974), ordered a broad interim remedy transferring IPS black

students to surrounding school corporations in numbers neces-

sary to increase their black enrollment to 5%, and suggested

choices to the Indiana General Assembly for alternative inter-

district remedies (Jd. at 1208-09, 1228 ef seq.).

The District Court’s 1973 opinion was appealed, and on

August 21, 1974, the Court of Appeals entered its decision

affirming the judgment against the State for contributing to

segregation within IPS, reversed the District Court’s findings as

they pertained to a metropolitan remedy beyond the “Uni-Gov

boundaries” and remanded the case to the District Court for

further hearing as t the remaining defendants, stating:

The District Court should determine whether the establish-

ment of the Uni-Gov boundaries without a like reestablish-

ment of IPS boundaries warrants an interdistrict remedy

within Uni-Gov in accordance with Milliken. 503 F.2d

at 86.

A petition for certiorari with respect to this opinion was denied

(421 U.S. 929 (1974)).

Summary of Subsequent Proceedings

The subsequent proceedings commenced with the 1975 re-

mand hearing and opinion by the District Court and were based

(1) on the effect of Uni-Gov, as required by the Court of

Appeals mandate, and (2) for the first time on whether there

6

was a constitutional violation by The Housing Authority of the

City of Indianapolis (HACI) in locating all its housing projects

in the period prior to 1970 within the boundaries of the City of

Indianapolis prior to Uni-Gov, which were substantially the IPS

boundaries. The District Court found a segregative interdistrict

effect for both violations but made no specific finding that the

siting of public housing constituted an interdistrict school viola-

tion, nor was this issue addressed by the subsequent Court of

Appeals determination.® The 1975 hearing and opinion culmi-

nated in a District Court judgment that each Marion County

school corporation outside IPS enroll black IPS students equal

to 15% of its enrollment, excepting, however, Pike and Wash-

ington,® whose percentages of black students had been con-

tinuously increasing, and that HACI was enjoined from locating

any further housing projects within the boundaries of IPS (419

F. Supp. 180; SA 36).

This opinion was affirmed by the Court of Appeals in an

opinion to which Judge Tone dissented in 541 F.2d 1121

(1976) (SA 1). On appeals and petitions for certiorari, this

Court vacated and remanded the Court of Appeals judgment for

further consideration in the light of Washington v. Davis, 426

U. S. 229 (1976), and Village of Arlington Heights v. Metro-

politan Development Corporation, 429 U.S. 252 (1977).

Following this remand, the Court of Appeals rendered three

opinions—a principal opinion by Judge Swygert in parts I and

II of which Judge Fairchild concurred, and a dissenting opinion

by Judge Tone (573 F. 2d 400; JA 54-83). The plurality deter-

mined that discriminatory intent, the issue on remand, could

not be determined as a matter of law from the existing record

and ordered the case remanded for further consideration of intent

5. In the judgments subsequent to this Court’s remand in 1976,

both “violations” are found to require an inierdistrict school remedy.

6. Reference to the Marion County township school corporations

and city or town school corporations other than IPS will be by their

distinguishing name, e.g. “Lawrence” or “Speedway”.

7

by the District Court (573 F.2d 414 (1978); JA 79). The

plurality portions of Judge Swygert’s opinion (e.g., JA 61) rely

on certain findings in his pre-remand and vacated 1976 opinion,

which are also relied on by the Court of Appeals majority

opinion here in issue (JA 2, 7).

On the basis of the 1975 record, without hearing further

evidence, the District Court then found the requisite discrimina-

tory intent and reinstated its 1975 judgments (456 F. Supp.

183 (1978); JA 84). By a subsequent remand order, the

Court of Appeals directed the District Court to hold a hearing

on remedy. This hearing, held in 1978, also involved findings

of fact, relevant to the question of violation, set out in an

unreported opinion (JA 101 et seq.)'

By this 1979 opinion and accompanying judgment, the Dis-

trict Court reaffirmed its 1978 opinion, modified only to

decrease the number of IPS black students transferred to Law-

rence because of its rapidly increasing black enrollment, and

to require certain ancillary actions by the defendants relating

to such matters as “in-service” training.

On appeal, this judgment was affirmed by the Court of

Appeals, by a majority opinion and order with a dissenting

opinion by Judge Tone, both as yet unreported, dated April

29, 1980, to which this petition relates. An analysis of the

majority Court of Appeals opinion described above depends

on the pertinent facts found by the District Court and the Court

of Appeals. A statement of these facts follows.

Statement of Facts

Demographics of Marion County. Marion County and the

metropolitan area surrounding it is similar to many other metro-

politan areas in the United States. It has a central city core

with more black citizens and students than the surrounding

areas which vary in black/white ratio but are predominantly

7. For a determination as to the relevance of these findings on

violation, see Maj. Op. JA 17, n. 20.

8

white (Maj. Op., JA 6). In the school year 1968-69, 36%

of IPS students were black, a percentage which has increased

gradually to over 47% in the 1978-79 school year (IPS Ex. 64).

The black population and students are not located in the

center of Marion County or IPS, however, but in the north

half of each (541 F.2d 1215; SA 8-9). This includes Pike,

Washington and Lawrence bordering .PS on the north with

steadily increasing black enrollments, 19.28%, 19.01% and

9.0%, respectively, in the 1978-79 school year (D.C. Op.,

JA 118). Further, the total enrollment of black students in

Indianapolis has decreased since 1968 by 1600 students; while

the Marion County area outside has an increased enrollment of

almost 4400 black students, an increase over this period of

360%, and a decrease in white enrollment of more than 1200

students. (D. C. Op., JA 109-112) Further, during this period,

while the enrollment of all Marion County schools has de-

creased, the enrollments in the school districts surrounding

Marion County continue to grow with almost entirely white

students. (Ibid.)

History of School Boundaries. School districts are organized

and operated in Indiana as corporate political entities separate

from local civil government pursuant to Art. 8, §1 of its

1851 Constitution.

After 1852, a series of statutes provided that the school

boundaries would generally be coterminous with civil boun-

daries of towns and cities and with the unincorporated town-

ships outside those boundaries. These statutes were, however,

eroded over a number of years by statutes permitting abandon-

ment of school cities and towns and permitting consolidation of

school corporations which, once formed, operated without

reference to city or town boundary changes. (Dis. Op., JA 41-

43)

The continued inadequacy of this system, however, was the

subject of The School Corporation Reorganization Act of 1959

(SA 63), which mandated a reorganization plan for each county

9

redetermining the boundaries of all school corporations and

governance of each by a board of school trustees, either elected

or appointed, but without ex officio officers. The reorganization

could take the form of consolidating, subdividing or transferring

territory from existing districts or any combination of these

methods (SA 65).

The legislative purpose of this Act, set out in Section 1, was

to provide a more effective use of public funds for school sup-

port, to modify the statutory provisions for school reorganiza-

tion to assure the maintenance of a uniform and efficient public

school system, and to give local electors a voice in establishing

an efficient and economical plan best suited to local conditions

(SA 64).

Mechanically, the reorganization plan of each county was to

be estat.ished by county committee with the direction to incor-

porate all areas of the county into one or more school corpora-

tions with boundaries and school board structure which can

“provide an adequate educational program in grades one through

twelve.” (SA 66.) Each county plan then required approval by

a state commission and was put into effect by a petition signed

by a majority of voters or by a referendum election in each

corporation, except that this approval was unnecessary where

there was no change in boundaries or board organization of the

proposed corporation (SA 72). Because of this Act, the bound-

aries of 70% of the school corporations in Indiana are not

coterminous with any civil government and many cross county

lines (573 F.2d 407; JA 61).

Once school corporation boundaries were determined under

this action, they became fixed (541 F.2d at 1218, SA 14)..

With respect to Marion County, however, a degree of flexibility

was afforded reorganized school corporations by Acts 1961,

Ch. 186 (JA 138). This Act provided, first, for a transfer of

territory by agreement between two school corporations subject

to a court remonstrance by taxpayers in the transferred territory

10

(JA 139),® and second, the right of any former city or town

school corporation to annex territory unilaterally (JA 141),

subject, however, to a similar remonstrance by taxpayers, and in

addition, by the school corporation losing territory (JA 142-43).

In each case, the remonstrance depended upon a judicial deter-

mination of whether the benefits of the proposed transfer out-

weighed its detriments, taking into account the interests of the

schools and the pupils in both school corporations and in the

territory to be transferred (JA 143). The Act, by Section 9,

also permitted a third right—the boundary extension of a school

corporation which had formerly been a school city or town with

any annexation of territory for civil purposes by the city or town

(JA 147-50). This right was, however, more limited than, and

was not comparable to, the former statutes applicable in Marion

County, and much of Indiana, where school boundaries auto-

matically extended with civil annexations, and the section, be-

cause of its limitations, was consistent with the purposes of

maintaining fiscal and educational efficiency for each corpora-

tion required by The Reorganization Act of 1959. Under the

limits of Section 9, first, the two involved school corporations

could agree not to go along with the extension of territory (JA

149). Second, the school corporation losing territory was en-

titled to remonstrate in court to the civil annexation in the same

manner as taxpayers in the annexed territory under civil annexa-

tion statutes—a right theretofore non-existent (JA 148). Third,

and more important, the grounds of remonstrance afforded the

school were not limited to civil matters as in a taxpayer remon-

strance—e.g., whether the city is able to provide municipal

services or whether the area is needed for development of the

city (SA 61)—but depended on whether the benefits of the

annexation outweighed the detriments, taking into consideration

the interests of the residents of the civil city, each involved

8. This provision was extended to other counties by Acts 1963,

Ch. 296; IC 20-4-4,

11

school corporation and the annexed territory (JA 148-49; Dis.

Op., JA 44, n. 33).

The current school boundaries were substantially established

in Marion County under The Reorganization Act by local and

state hearings terminating in 1961, with the plan made effective

on January 2, 1962 (541 F. 2d at 1218, SA 14). It provided

for the absorption by IPS of Center Township schools, and

Woodruff Place which was surrounded by IPS and operated no

schools (/bid; 368 F. Supp. 1203). Otherwise boundaries re-

mained intact subject to change under the 1961 School Annexa-

tion Act described above (573 F. 2d 406, JA 61; 368 F. Supp.

1204), with each corporation governed by a school board estab-

lished in accordance with the provisions of the School Reorgani-

zation Act (SA 66). During the subsequent period until 1969,

there were a number of instances under the 1961 School Annexa-

tion Act in which IPS boundaries were separated from the civil

boundaries (Dis. Op., JA 44, n. 33). There were, however, few

civil annexations during this period, and annexation by 1970

had become impossible because of suburban taxpayer opposition

(Maj. Op., JA 8; 541 F. 2d 1218, SA 14).

In 1967, before Uni-Gov was conceived, a public discussion

took place among the Marion County school corporations as to

the desirability of boundary change. IPS at that time adopted a

resolution that further expansion was not in its interests, finan-

cially or educationally (Maj. Op., JA 10), and the Marion

County school corporations, including IPS, collectively drafted

and supported a bill in the 1967 General Assembly repealing

Section 9 of the School Annexation Act. This bill passed both

legislative houses but was vetoed by the Governor (Dis. Op.,

JA 39, n. 19). It was reintroduced with the same support as in

the previous legislative session in 1969, passed both houses and

was signed as Acts 1969, Ch. 52 (School Annexation Act

Amendment). The Act became ineffective and without function

with the passage of Uni-Goy.

12

Uni-Gov. As is evident from a map of pre-Uni-Gov Indian-

apolis with its “truncated” shape (573 F. 2d 403; JA 56; 368

F. Supp. 1211), described in 332 F.Supp. 635, 636, as re-

sembling the shape of a “trussed fowl”, and the substantial popu-

lation in Marion County outside the boundaries of the City of

Indianapolis, the City had been unable by annexation to keep

pace with the area’s metropolitan problems, Because annexa-

tion by the Indianapolis Civil City had become impossible, an

alternative method of handling local civil government problems

developed over the years with the creation of a series of inde-

pendent agencies, some a part of the Indianapolis civil govern-

ment with boundaries extending beyond the City limits, and

others as independent, countywide government entities, each

created to solve specific problems.® The result was a splintering

of governmental responsibility into loosely controlled agencies

with overlapping jurisdictions (541 F.2d at 1220; SA 10).

This was the problem Uni-Gov was designed to remedy, and it

was accomplished by sidestepping the civil annexation problem

(Maj. Op., JA 8).

The Uni-Gov Act created a new entity, a Consolidated City,

into which the old city was merged (JA 157) with boundaries

extending to the County line, exclusive, however, of the terri-

tories in the Towns or Cities of Speedway, Beech Grove,

Lawrence and Southport (JA 154-57). This was accom-

plished, however, without extending Indianapolis’ more costly

services with their correlative taxes, such as fire, police and

sewer, on the theory that, “He who gets the service pays.” (JA

9. Flood Control, IC 19-4-21-3 (1937); Health and Hospital,

IC 16-12-21 (1951); Building Authority, IC 19-8-4-1 (1953);

Metropolitan Plan Commission, IC 18-7-2 (1955); Park District,

IC 19-7-30-2 (1919); Airport, IC 19-6-2-1 (1961); Thoroughfare,

IC 19-5-4 (1963); Public Library, IC 20-13-1-10 (1947); Capital

Improvements, IC 18-4-17-1 (1965); Mass Transportation, IC

19-5-2-1 (1965); Public Utilities, IC 19-3-24-3 (1929); Sanitary

District, IC 19-2-14-7 (1917).

13

160-65) This fracturing of city service, unrelated to a public

improvement, was an innovation in Indiana municipal law

inapplicable to any other city or town, creating a new type of

city unit by statute.

Uni-Gov then centered budget control of county and city

officials and of all civil agencies except certain ones specifically

exempted in a combination City-County Council (JA 155,

165-66). The budgets of the more limited fire and police service

districts, however, were controlled by the representatives serving

in the Council from those areas (IC-18-4-4-5). Further, the

Act centralized the administration of non-judicial city and most

county employees in the Mayor and in the Directors of depart-

ments set up under the Act, appointed by the Mayor with the

Council’s consent (IC 18-4-4-1). !

Certain independent agencies, unnecessary to centralized con-

trol, were eliminated either from the budget control or from

both the budgetary and administrative control (Maj. Op., JA 8;

Dis. Op., JA 40, n. 20; JA 158-159). Schools were exempted

(JA 159); they had never been a part of the civil government,

are independent separate structures under Indiana’s Constitution

and statutes (sees e.g. I. C. 20-5-1 thru 5), were unnecessary

to the purpose for which Uni-Gov was designed, and had in

the recent past vigorously defended their independence (Maj.

Op., JA 10; Dis. Op., JA 33-35; nn. 11-12).

Both in this case and in others, the courts have recognized

that “Uni-Gov was a neutral piece of legislation on its face

with its main purpose to efficiently restructure civil govern-

ment within Marion County.” (541 F.2d at 1220; SA 18.)

See also, Cantwell v. Hudnut, 566 F. 2d 30, 38 (7th Cir. 1977),

cert. denied, 439 U.S. 1114 (1979) and Bryant v. Whitcomb,

419 F. Supp. 1290, 1299 (S. D. Ind. 1970).

Had the Marion County school corporations been consoli-

dated as an additional provision of Uni-Gov, the legislation

could not have been adopted (D.C. Op., JA 109).

14

Public Housing. It is superfluous here to set out more than the

most essential facts relating to the siting of public housing as

these subjects have been extensively treated in both the majority

opinion (JA 11-16) and in the dissent (JA 45-51).

HACI is an independent civil city authority. In the period

prior to 1969, it had jurisdiction to locate public housing projects

within the boundaries of the City of Indianapolis and in an

area five miles beyond these boundaries (Maj. Op., JA 13).

During this period it erected ten public housing projects de-

signed for families other than the elderly, all in the City of

Indianapolis (Maj. Op., JA 13). A majority of these were

located in white demographic areas (Maj. Op., JA 14), and

were integrative to the extent that black families tended to

locate in their vicinity (Maj. Op., JA 22). All locations were

approved both by HUD and HACI.

Many of the sites for public housing were chosen by the

developers as “turn key” projects—a project where the site is

initially selected by the developer, the project built, and turned

over as a completed project to HACI (Dis. Op., JA 45). Some

of the sites were recommended by a Mayor’s task force com-

posed of members of the staff from the Metropolitan Plan Com-

mission, the Uni-Gov predecessor to The Metropolitan Develop-

ment Commission (/bid.). This task force established a strategy

for selecting sites for all types of multi-family dwellings in each

section of the County (/bid.). In fact, a substantial amount of

federal subsidized housing now occupied by black residents

has been located outside the original Indianapolis boundaries

(D.C. Op., JA 106-10).

In the course of its duties, the task force contacted the legis-

lative and administrative officials of Marion County, the Com-

missioners and County Council, who stated they could not

furnish the municipal services required by cooperation agree-

ments with the Federal government (Dis. Op., JA 49). Such an

agreement is essential to Federal financing and without such an

15

agreement a public housing project cannot, as a financial

matter, be constructed (Maj. Op., JA 15; Dis. Op., JA 47-8).

Accordingly, the task force recommended no sites for public

housing outside the City of Indianapolis and all ten projects

were located within its pre-Uni-Gov limits. Several projects

were located adjacent to Indianapolis Civil City boundaries,

and in some cases these boundaries were altered by annexation

so that public housing projects then built would be located in

the City of Indianapolis. (Maj. Op., JA 15).

As a result of compliance with HUD regulations, black

persons constituted 98% of those applying for public housing

project units. Although the projects opened with a lower per-

cent black residents, they reflect this percentage on a permanent

basis. Public housing projects are subject to substantial va-

cancy (19.2%) (D.C. Op., JA 106) and residents moving out

of the projects returned to the original Indianapolis area. There

were, in the 1978-79 school year, 2,586 school age children

living in these projects (/bid.). There was no evidence that the

location of housing projects entirely within the City of Indianap-

olis increased the black population located there (Dis. Op.,

JA 51).

Discrimination in Indiana. Indiana, as most states in the

Union, had by private acts, and to a lesser extent by public

acts now repealed, discriminated against black citizens (456

F. Supp. 186-7; JA 88-9).

With respect to schools: separate schools for black and white

students are prohibited by Acts 1949, Ch. 186, p. 503, but

prior to that time had been permitted on an optional basis

under Acts 1877, Ch. 81, p. 124. There is no showing that,

after 1877, separate schools were established for blacks in any

of the Marion County school corporations other than IPS. Ex-

cept for IPS, all Marion County school corporations have always

operated unitary schools even with a substantial influx of black

students (368 F. Supp. 1203).

16

Uni-Gov—The Majority Rationale and Its Deficiencies.

The most pertinent fact relied on by the Court of Appeals

majority is that absent some affirmative action by the Indiana

Legislature in 1969, or thereafter, IPS boundaries would not

have changed. The pre-remand 1976 Court of Appeals decision

notes specifically:

The annexation powers of the city, however, proved to be

illusory, for they were effectively frustrated by remon-

strance litigation,

and finds, in addition, that this inability to annex was one of

the reasons why Uni-Gov was adopted (541 F.2d 1218; SA

14, n. 7).

This is even more clearly noted in the Court of Appeals

1980 decision where the majority states (JA 8):

Civil, as well as school annexations had become all but

impossible to achieve because of opposition from the sub-

urban areas which would be affected.

Again the Court of Appeals majority finds that this condition

was a necessity for Uni-Gov by “sidestepping” the problems

of direct annexation (Maj. Op., JA 8). In other words, had

the Legislature done nothing, there.would have been no expan-

sion in IPS boundaries.

But this means that the segregative impact of the 1969

Legislative Acts (Uni-Gov and the 1969 School Annexation

Amendment) on which the majority depends in finding a sig-

nificant interdistrict segregative effect under Milliken (418

U.S. at 744-45), is the failure of the Legislature to expand

IPS boundaries. The Court of Appeals majority has, accord-

ingly, created a right in each black child in a segregated central

school system under the process of desegregation to have its

boundaries expanded to cure the segregation occurring solely

within that district.

This is explicit in the majority’s pre-remand 1976 decision:

The General Assembly, under both federal law . . . and

Indiana law . . . had an obligation to alleviate the segre-

17

gated condition in iPS. The record fails to show any com-

pelling state interest that would have justified the failure

to include IPS in the Uni-Gov legislation. The desirability

for a unitary civil government should not have precluded

the General Assembly from considering the needs of the

school system in its decision to enact Uni-Gov. As we

noted earlier, the most substantial reasons advanced

against the consolidation of the schools in Marion County

when it was under consideration in 1959 were that a con-

solidated school district would be large, with consequent

loss of citizen participation, and that it would increase

taxes. These considerations, although apparently not ra-

cially motivated, cannot justify legislation that has an ob-

vious racial segregative impact.

541 F.2d 1211, 1220 (1976), (SA 19) (emphasis added;

citations omitted )

In the first decision after remand (573 F. 2d 406-7 (1978);

JA 62-65) the majority similarly found the significant inter-

district segregative effect in a failure to expand IPS, under

somewhat different legal analysis but without any change in

underlying premise—that the legislature had a duty to expand

the boundaries of IPS:

Under prevailing Indiana law prior to 1969, the expansion

of the City of Indianapolis to the Marion County lines

carried out by the Uni-Gov Act would have automatically

caused the concomitant expansion of IPS. But sixteen days

before final passage of the Act, the General Assembly

repealed Section 9 of the 1961 Act. This repeal for the first

time separated the boundaries of IPS and the City of

Indianapolis. This action had the effect of preventing the

expansion of IPS boundaries. But for the repeal of the 1961

Act, IPS would now be coextensive with Marion County

and this case would have a far different cast.

573 F. 2d 401, 406 (1978); JA 63 (emphasis added)

It found further that the adoption of the 1969 School Annexa-

tion Amendment, separating school and civil annexation, not

only “had the effect of preventing the expansion of IPS bound-

aries’ but thereby caused “significant segregation districtwide

18 ta

effects . . . curtailing the power of IPS to remedy its own viola-

tions.” (573 F. 2d at 407; JA 64-65).

Here again, the Court of Appeals established a duty on the

Legislature to adopt an interdistrict remedy, expanding IPS

boundaries, to remedy segregation occurring solely within IPS

—a doctrine inconsistent with Milliken because that duty is

not based on a constitutional violation with significant imer-

district segregative effect.

The 1980 Court of Appeals majority opinion adopts that

premise and reasoning flowing from it without further discussion

(Maj. Op., JA 2)."°

In addition to premising its decisions on the duty to expand

IPS boundaries, the Court of Appeals majority in both its

remand decisions erroneously assumed that Section 9 of the

School Annexation Act, had it not been amended, would have

provided for an expansion of IPS, either by civil annexation

under existing statute or by merger of the City of Indianapolis

into a new type of Consolidated City under Uni-Gov with

extended boundaries but without an extension of its municipal

services.

Judge Swygert in his 1978 plurality opinion makes this bald

conclusion without analysis, stating that Section 9 would have

operated under Uni-Gov to expand IPS to the County line

(573 F. 2d 407; JA 63).™

10. This conclusion as set out in the pre-remand 1976 Court of

Appeals majority decision was also accepted without discussion as

a premise for the conclusions by the District Court in its 1978

decision (456 F. Supp. 183, 185; JA 87), a conclusion from which

the District Court retreats in its 1979 opinion (D.C. Op., JA 109).

11. Even the Consolidated City excludes the Town and City of

Speedway and Beech Grove in which there are school districts and

the Cities of Southport and Lawrence which are part of the larger

metropolitan school districts of Lawrence and Perry.

19

Judge Fairchild, writing for the majority in the 1980 Covxt

of Appeals opinion states only that such an interpretation “may

be appropriate” (Maj. Op., JA 9). He relies on a definitional

section of the 1961 Annexation Act (§ 1(e), JA 138) which

states that civil annexation means “any action whereby the

civil boundaries of any civi! city are extended.” He disregards

entirely, however, the provisions of Section 9 which is the only

section of the 1961 School Annexation Act relating to the

effects of a civil annexation on school boundaries. Under this

section a school extension (in addition to the limitations set out

on page 10, supra) “will become finally effective” solely after

a final action, administrative or judicial, in a civil annexation

proceeding under Acts 1905, Ch. 129, § 243, as amenced (JA

149-150). An annexation under this 1905 Act can only be

initiated, howe’ zr, through a City Council proceeding subject

to a taxpayer remonstrance (SA 57, 60).

Since Section 9 becomes operative only by complying with

the provisions of the 1905 Act, annexation under this Act had

become “impossible.” Uni-Gov, by contrast, avoided the limita-

tions of the 1905 Act by creating a new form of municipal

government by statute, enlarged in size, totally outside and

adopted to avoid the 1905 Act and its impediments. Neither the

adoption of Uni-Gov nor the adoption of the 1969 school annex-

ation amendment, repealing Section 9 (which had its historical

basis in 1967 before Uni-Gov) therefore, had any impact on

school boundaries except to leave the situation where it was

before 1969 (Dis. Op., JA 39).

The dissenting opinion makes an even more detailed, analy-

tical and penetrating analysis than this text of the absence of any

effect on school boundaries, or a change in the legislative policy

regarding how school boundaries are set, by the adoption of

either Uni-Gov or the 1969 Amendment to the 1961 School

20

Annexation Statute, and necessarily reaches the same result

as this text (JA 36-40, 43-45).

Discriminatory intent in the enactment of the 1969 legisla-

tion is then based in the majority opinion on (1) a purported

impact which does not exist, (2) a purported change in policy

in the relation between school and civil boundaries under the

repeal of Section 9 by the 1969 School Annexation Amendment,

which, as the dissenting opinion and this text point out, has not

occurred (see pp. 19-20 supra), and (3) the adoption of the

1969 legislation a few months after this suit was filed and long

before a finding of IPS segregation and before interdistrict relief

had become either a local or national issue’* (Maj. Op., JA

10-11).

HACI—Majority Rationale. The Court of Appeals majority

finds an impact on school enrollments resulting from the siting of

housing projects “by keeping black students within IPS and out

of the surrounding school districts’ (Maj. Op., JA 13)—a

failure in substance by HACT to act with maximum interdistrict

integrative effect. Findings of intent by the District Court, which

the Court of Appeals found sufficient, were based,

“

.

. . On the history of racial discrimination, both public

and private, in housing in Marion County; on the natural

and foreseeable results of the site selection practices; on the

absence of convincing no-racial justifications for HACI’s

failure to locate projects outside of IPS; and on other

actions by the Commission not directly related to housing,

12. The suit had been on file for only a few months and was not

tried for three years. Green v. Board of Education of New Kent

County, 391 U.S. 430 (1968) had just been decided, and the

metropolitan cases of Swann vy. Charlotte-Mecklenburg Bd. of Ed.,

402 U.S. 1 (1971); Wright v. City of Emporia, 407 U.S. 451

(1972); Keyes v. School District No. 1, Denver, Colo., 413 U.S.

189 (1972) and the interdistrict case in Milliken v. Bradley, 418

U.S. 717 (1974) had yet to be enunciated.

21

which led the court to conclude that “the separation of the

races, both in housing and in schools, has been an un-

spoken, but intentional, policy of the Commission.””*

(Maj. Op., JA 14) (emphasis added)

HACT’s failure to obtain a cooperation agreement with county

officials was held to be immaterial since according to the Court

of Appeals majority, the evidence

“ , . disclosed no serious attempts by HACI to obtain those

agreements.”

REASONS FOR ALLOWANCE OF THE WRIT

Uni-Gov and the 1969 Annexation Act Amendment.

1. The Court of Appeals majority’s determination that the

adoption of these Acts constituted a significant segregative in-

terdistrict school act (Maj. Op., JA 4-5) decides important

questions of federal law in conflict with the applicable decisions

oi this Court.

First, with respect to impact, the majority opinion is premised

on the assumption that the 1969 amendment to the 1961 School

Annexation Act prevented an expansion of IPS boundaries

which would otherwise have occurred with the adoption of the

1969 Uni-Gov civil government reform. As set out above in the

analysis of the majority opinion rationale, this is a patent

misstatement of the clear language of the 1961 Act (see, pp.

19-20, supra). The adoption of Uni-Gov was irrelevant to the

operation of the 1961 Annexation Act, amended or otherwise

(Dis. Op., JA 38-40).

13. In arriving at these conclusions, the District Court relied on

Oliver v. Michigan State Bd. of Education, 508 F. 2d 178, 182 (6th

Cir. 1974) in shifting the burden of proof to defendants—an incor-

rect doctrine as determined by this Court in Dayton Bd. of Ed. v.

Brinkman, ........ Bey cttcenis , 61 L. Ed. 2d 720, 733, n.9 (1979).

(D.C. Op., JA 94. See, Dis. Op., JA 35, n. 13.)

22

Even if the majority’s assumption were correct, however, the

1969 legislation constitutes a segregative act only if the State has

an obligation to correct segregation occurring in a single district,

here IPS, by an interdistrict remedy. The Court of Appeals was

not, however, dealing with a situation where the legislature

in 1969 changed a statute under which IPS boundaries continued

to expand along with those of the Civil City. Both boundaries

had become substantially fixed. Nor did the Legislature adopt

a statute to redraw boundaries; nor is this a situation where de

jure inte1district segregation resulted from a cooperative effort

between IPS and the surrounding school districts."

In contrast, the Indiana legislature in the course of effecting

a very necessary reform of civil government did not, and could

not effectively, undertake in addition to remedy the segregation

occurring within a single district—IPS, by expansion of the

IPS school boundaries or otherwise. The Court of Appeals,

however, has affirmed and mandated an interdistrict school

transfer to remedy the segregation occurring solely within a

single district—an obvious conflict with Milliken v. Bradley,

418 U.S. 717, 744-747 (1974).”

2. Second, aside from the absence of supporting violation,

the majority has failed to establish the invidious discriminatory

14. This is not a case such as Evans v. Buchanan, 393 F. Supp.

428 (D. Del. 1975) aff'd., 423 U.S. 963 (1975), where the 1968

Delaware legislation in question was directed to consolidating school

corporations, but excluded the City of Wilmington which was de jure

segregated—a segregation which had been mandated by statute prior

to 1954 and was a cooperative effort between Wilmington and the

defendant suburbs. See, 393 F. Supp. at 437; 582 F.2d 750, 763

(3rd Cir. 1978) (the subsequent proceedings on remedy), and 439

U.S. 1360, 1362-3 (Brennan, J., denying stay).

15. If the simple failure to expand the boundaries of a school

system guilty of de jure segregation is a significant interdistrict seg-

regative act under Milliken, then the limits placed on interdistrict

relief by that opinion are illusory since the same failure is present in

many major metropolitan areas throughout the country, e.g., Detroit.

23

purpose of the legislature in its 1969 enactments as required by

Washington v. Davis, 426 U.S. 229 (1977) and the principles

established under Village of Arlington Heights v. Metropolitan

Development Corporation, 429 U.S. 252 (1977).

The adoption of the 1969 legislation not only had no adverse

racial impact on IPS boundaries, but neither the 1961 School

Annexation Act, its 1969 Amendment nor Uni-Gov changed

the policy for the establishment of boundaries for Marion County

School Corporations consistent with the 1959 School Reor-

ganization Act applicable to all Indiana schools (supra, pp.

8-11).

The only other evidences of intent are: (1) the adoption of

the 1969 legislation within a few months after this case was

filed at a time just after Green had been decided and before

the trial and decision of the major large city desegregation

cases or the cases involving interdistrict metropolitan relief

had reached this Court (see p. 20, supra), and (2) the

existence in the past of private and public discriminatory prac-

tices in Indiana which are common to many states in the

country.’®

These minimal showings, in the absence of impact, or a

change of legislative policy “strongly favoring” a decision con-

trary to that reached in the course of a legitimate and exemplary

reform of civil government, do not establish discriminatory

intent. The opinion of the majority to the contrary is in conflict

with Washington v. Davis, supra, Village of Arlington Heights

Vv. Metropolitan Development Corp., supra, and Personnel Ad-

ministrator of Massachusetts v. Feeney, ............ | Oh. , 60

L. Ed. 2d 870, 888, n.25 (1979).

16. Cf. City of Mobile v. Bolden, ........ Pee sitccese , 48 U.S.L. W.

4436, 4441 (April 22, 1980).

24

Siting of Public Housing Projects

1. The Court of Appeals majority determination that the

siting of public housing projects inside the pre-1970 City of

Indianapolis constituted a significant segregative interdistrict

school violation decides an important question of federal law

which has not been, but should be, clearly settled by this Court.

This Court has rendered an opinion that a Fourteenth Amend-

ment violation by a public authority with responsibility for

providing public housing cannot be remedied by a transfer

of students.'’ Armour v. Nix, Civil No. 16708 (N.D. Ga.,

September 24, 1979) (three-judge court), aff'd., 48 U.S. L. W.

3732 (No. 79-6108; May 12, 1980), holds that no such remedy

is available where the involved school corporations all operate

unitary school systems or are operating under court-ordered

desegregation plans and where none of the plaintiffs alleged

that they had been excluded from living in any particular

residential area in metropolitan Atlanta (Armour, Slip Op., p.

32).

The application of a school remedy to a housing violation

adds a new requirement to every housing law and presents

unnecessarily difficult judicial problems. Adjustments to the

remedy would have to occur yearly under the annual current

Federal block grant and other aid systems yet to be devised.

The degree of student transfer will always be uncertain;’* housing

17. See, Swann vy. Charlotte-Mecklenburg Board of Education,

402 U.S. 1, 23 (1971).

18. The District Court in this case determined the number of

students to be transferred to adjoining school corporations under the

HACI “violation” should be 4958, although only 2586 students live

in the housing projects, all on the theory that the 10 housing units

built by HACI would be fully occupied, that the remedy should

include the projected number of children who would have lived in

the housing project built by the federal government in 1936 and

that no students in housing projects should be transported to IPS,

Washington or Pike (D.C. Op., JA 106, 117).

25

remedies (e.g. anti-redlining) are created despite their aid to

residential areas populated by black citizens; and, other housing

remedies are amply available to remedy a housing violation.

2. Even if a violation of a housing law also constitutes a

school violation requiring the transfer of children, the Court of

Appeals majority in finding the requisite racially discriminatory

purpose in this case has decided an important question of

federal law in conflict with applicable decisions of this Court.

The majority opinion justifies this intent “on the natural

and foreseeable results of site selection practices” and “on the

absence of convincing nonracial justifications for HACI’s failure

to locate projects outside of IPS.” (Maj. Op., JA 14; See

D. C. Op., JA 94) But HACT’s inability to locate public housing

projects outside the City of Indianapolis was its inability to

enter into a cooperation agreement with the County Council

and the County Commissioners, the governing officials in the

County outside incorporated areas.'® The question is not whether

the siting was rational from HACI’s standpoint but whether

the County was willing to absorb the costs, including a loss of

taxes, and was able to perform the services required under a

cooperation agreement.*® The task force that assisted HACI in

selecting sites approached the county officials about the possi-

bility of placing projects in their jurisdiction (541 F. 2d 1216;

SA 11), but their response was negative since they could not

provide the municipal services required by federal law (Dis.

Op., JA 49, n. 44). Without any finding of an invidiously dis-

criminatory intent on the part of the county officials, their

failure to execute such an agreement, substantially obligating

their community, is not, under James v. Valtierra, 402 U.S.

137 (1971), a Fourteenth Amendment violation. The majority

19. The majority opinion recognizes such an agreement is a

prerequisite to federal financial aid, the sole method by which a

public housing project can be financed (Maj. Op., JA 15, n. 19).

20. See, the extensive discussion of these obligations in the

dissenting opinion, JA 47, n. 38 and JA 48-49, n. 40).

26

opinion finds a violation in HACT’s failure to make any serious

attempt to obtain a cooperation agreement; but as Judge Tone

said, “I assume the Housing Authority was not required by

the Fourteenth Amendment to engage in a futile repetition of

the request” (Dis. Op., JA 50).

CONCLUSION

The determination of the District Court and the Court of

Appeals majority to order an interdistrict plan to remedy the

segregation within Indianapolis has not wavered. For the reasons

given, however, they have committed error justifying the grant-

ing of this petition for writ of certiorari.

Respectfully submitted,

LEWIS C. BOSE, WILLIAM O. SCHRECKENGAST,

WILLIAM M. EVANS, KITLEY & SCHRECKENGAST,

DAVID R. DAY, 380 Main Street,

BOSE McKINNEY & EVANS, Beech Grove, Indiana 46107,

1100 First Federal Building, (317) 787-5389,

Indianapolis, Indiana 46204,

(317) 637-5353,

CHARLES W. HUNTER,

810 King Cole Building,

7 North Meridian Street,

Indianapolis, Indiana 46204,

(317) 637-2411

Attorneys for Appellants.