Opposition Brief — Kromnick v. School District of Philadelphia

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IN THE NOER L. srey

SUPREME COURT OF THE UNITED STATES cise"

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ate ta i

October Term, 1984

No. 84-606~7

LORRAINE KROMNICK, LORRAINE BRANCATO,

GLADYS HIRSH and REGINA KATZ,

Petitioners

Vz.

SCHOOL DISTRICT OF PHILADELPHIA

and BOARD OF EDUCATION OF THE

SCHOOL DISTRICT OF PHILADELPHIA,

: Respondents

On Petition For a Writ of Certiorari

To The United States Court of

Appeals for the Third Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

GERMAINE INGRAM

UNIVERSITY OF PENNSYLVANIA

LAW SCHOOL

3400 Chestnut Street

Philadelphia, PA 19104

(215) 898-1097

Counsel for Respondents

PACKARD PRESS / LEGAL DIVISION, 10th & SPRING GARDEN STREETS, PHILA., PA. 19123 (215) 236-2000

JA

INDEX

Page

eG HEE SR EIN o-b c ak ev oh a aKa deen’ ii

COUNTER-STATEMENT OF THE CASE ....... l

REASONS FOR DENYING THE WRIT......... 8

1. This Case Presents No Important Constitu-

tional or Statutory Issue ................. 8

2. The Decision of the Circuit Court Conflicts

With Neither The Holdings Of This Court

Nor Decisions Of Other Circuit Courts.... 11

3. This Is Not An Appropriate Case To Resolve

The Issue Of The Standard For Determining

The Constitutionality Of Benign Race-

ST IIR a hos dws in wees cane 14

4. The Circuit Court Properly Reversed The

District Court’s Findings That 75/125 Was

Not Remedial And That Only “Sheer Spec-

ulation” Supported The School District’s Be-

lief That Abandonment Of The Policy Would

Lead To Reversion To Prior Levels Of Fac-

£7 EE re ene 15

Rs eG a SEEK NAO se OSG 17

ees ne

TABLE OF CITATIONS

Cases: Page

Balbaugh v. Rowland, 447 Pa. 423, 290 A.2d 85

¢) ) re rr re ese ye ay 3

Board of Education v. Harris, 444 U.S. 130

¢ 7, |) reer cre te ae 11

Firefighters Local Union No. 1784 v. Stotts,

U.S. , 104 S. Ct. 2576 (1984)......... 11, 12

Fort Bend Independent School District v. City of Staf-

ford, 651 F.2d 1133 (5th Cir. 1981).......... 13

Fullilove v. Klutznick, 448 U.S. 448 (1980)....... 8

Kromnick v. School District of Philadelphia, 555 F.

Sump. 900, (9. Pe. Bild as sess ke aa ene 10

Kromnick v. School District of Philadelphia, 739 F.2d

O04 (36 Cir. BGRS) kk sect eee passim

Oliver v. Kalamazoo Board of Education, 706 F.2d

757 (Get: Cie. TGR cs ak eee eee 13

Pennsylvania Human Relations Commission v.

Chester School District, 427 Pa. 157, 233 A.2d

280 (1G67) . onsen sxinass Gone eee 3

Pennsylvania Human Relations Commission uv.

School District of Philadelphia, 23 Pa. Common-

wealth Ct. 312, 352 A.2d 200 (1976)......... 5

Pennsylvania Human Relations Commission uv.

School District of Philadelphia, 66 Pa. Common-

wealth Ct. 154, 443 A.2d 1343 (1982)..... 24 7

Porcelliv. Titus, 431 F.2d 1254, 1257 (3d Cir. 1970),

cert. denied, 402 U.S. 944 (1971)............ S)

ii

TABLE OF CITATIONS— Continued )

Cases: Page

Regents of University of California v. Bakke, 438

Ss ohn sk eka Waa kg ee a 11, 12

Swann v. Charlotte-Mecklenburg Board of Educa-

aL oe a Ee | eae 9,10, 15

United States v. Montgomery County Board of Ed-

ucation, 395 U.S. 225 (91969). ............... 10

United States v. United States Gypsum Co., 333 U.S.

aie aa Cee ea kbs ceases ve 4's i6

United Steelworkers of America v. Weber, 443 U.S.

i ees iw sw a aes CASK AER CLR OR KOS 8

Statutes:

20 U.S.C. §3191-3207 (Repealed effective October

Ne ee hye aed Rkw ek 6 BOWS OR bw ab be Ske 2

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

No. 84-606

LORRAINE KROMNICK, LORRAINE BRANCATO,

GLADYS HIRSH and REGINA KATZ,

Petitioners

Vv.

SCHOOL DISTRICT OF PHILADELPHIA

and BOARD OF EDUCATION OF THE

SCHOOL DISTRICT OF PHILADELPHIA,

Respondents

On Petition For a Writ of Certiorari

To The United States Court of

Appeals for the Third Circuit

COUNTER-STATEMENT OF THE CASE

This case deals with the constitutional and statutory

validity of a race-conscious teacher transfer policy 6

adopted and maintained by a public school district in or-

der to remedy judicially-recognized and ongoing de facto

segregation, and to insure to children within every school

in the district the educational benefits of racially diverse

faculties. The policy, known as “75/125”, prefers no ra-

cial group over another, neither on its face nor in appli-

]

2

cation; it requires the firing or lay-off of no teacher; it

affects no monetary benefit; and it allows teachers who

are involuntarily transferred pursuant to the policy to re-

tain accumulated “building seniority” in their new

schools and preference with respect to future vacancies

at their former schools. Furthermore, the policy has been

repeatedly adopted by petitioners’ collective bargaining

unit in biennial contract negotiations.

The 75/125 policy is but one part of a 20-year effort

by the School District of Philadelphia (“School District”)

to eradicate the earmarks of de facto segregation from its

school system. The policy’s purpose and impact extend

beyond the narrow objective of integrating school facul-

ties: by achieving and maintaining faculty integration

within the numerous schools in the system, the School

District has eliminated the role which racially segregated

school faculties formerly played in perpetuating the im-

plication that particular schools were intended for stu-

dents of a particular race. Thus, 75/125 has become one

of several devices employed by the School District in a

continuing program to satisfy directives from state judi-

cial and administrative authorities to r imedy the racial

isolation of black public school students.

Petitioners seek to obscure the breadth of the con-

text in which 75/125 was adopted and maintained. They

would have it appear that once the school faculties were

desegregated, there was no reasonable basis for the

School District to continue to employ the policy. Peti-

tioners therefore begin their statement of the history of

this policy in June, 1982, when the Office of Civil Rights

of the United States Department of Education (“OCR”)

determined that the School District was “substantially in

compliance” with regulations which required the School

District as a condition of eligibility for federal aid under

the Emergency School Aid Act (ESAA), 20 U.S.C. §3191-

3207 (repealed effective October 1, 1982), to undertake

remedial action to correct a policy or practice of “racially

identifiable” teacher assignments. While relieving the

3

School District of any further obligation under Depart-

ment regulations to comply with the 75/125 policy, OCR,

in a June, 1982 letter, stated that the School District was

“free to continue to maintain [the policy] if it so chooses,”

and admonished the School District of its continuing ob-

ligation to use nondiscriminatory policies. On August 2,

1982, consistent with OCR’s advice, the School District

chose to continue the 75/125 policy. It is the subsequent

period of voluntary adherence to 75/125 which petition-

ers contend offends Title VII and the 14th Amendment

to the Constitution.

In fact, a more accurate exposition of the history of

this case would begin substantially earlier than 1982, and

even earlier than 1978, when 75/125 was adopted by the

School District in order to obtain federal funding to sup-

port its desegregation effort. It would begin as eariy as

1965 when the School District began utilizing race as

one factor in determining assignments of newly hired

teachers in order to attain integrated faculties in all

schools throughout the school system. In 1968, the Penn-

sylvania Human Relations Commission (“PHRC”), a

state agency invested with authority to require school dis-

tricts to take corective measures to overcome both de jure

and de facto segregation,' initiated proceedings to com-

pel the School District to eliminate racially identifiable

schoois in Philadelphia.

i. Balbaugh v. Rowland, 447 Pa. 423, 438, 290 A.2d 85, 93

(1972); Pennsylvania Human Relations Commission v. Chester

School District, 427 Pa. 157, 233 A.2d 290 (1967).

2. The Third Circuit Court succinctly summarized the pro-

tracted history of PHRC’s litigational efforts to compel the School

District to adopt measures which PHRC felt would be most effective

in remedying the intractible pattern of de facto segregation within

the Philadelphia public school system. Kromnick v. School District

of Philadelphia, 739 F.2d 894, 897, 904-905 n.10. (3d Cir. 1984).

The numerous court decisions which have been rendered in the

state litigation, while acknowledging good faith efforts on the part of

the School District, see, e.g., Pennsylvania Human Relations Com-

misison v. School District of Philadelphia, 66 Pa. Commonwealth

4

Integral to the School District’s response to PHRC's

desegregation demand was a contract provision agreed

upon by the School District and the teachers’ union which

prescribed that the faculty in each elementary school shall

consist of at jeast 20% of the race in the minority, and in

each secondary school, shall consist of at least 10% of the

race in the minority. In order to implement this numer-

ical goal, the Schoo! District and union agreed that newly

hired teachers would be assigned race-consciously to in-

tegrate racially identifiable faculties. They also agreed to

encourage voluntary teacher transfers which would aid

racial balance and to restrict voluntary transfer options if

the transfers would delay elimination of or create racially

identifiable faculties. The provision prescribed both lim-

iting the placemeiit choices of involuntarily transferred

teachers so that their choices would not create or exac-

erbate racial identification, and deviating from the use of

strict seniority to determine transfers out of a school when

adherence to seniority ranking would adversely affect the

racial balance of the school. In 1969, this so-called

“80/20-90/10” standard was incorporated into a consent

decree between the School District and PHRC. The pol-

icy remained in effect until, in 1978, it was supplanted by

75/125. Thus, for more than a decade prior to the adop-

tion of 75/125, the School District employed race-

NOTES (Continued)

Ct. 154, 178, 443 A.2d 1343, 1352 (1982), have consistently sup-

ported PHRC’s findings that the Philadelphia school system con-

tinues to be racially polarized. For example, in 1982, the Common-

wealth Court of Pennsylvania wrote:

Thus today as in 1977 over two-third of all the black public school

students in Philadelphia attend schools that are racially isolated

containing proportions of black students in excess of

90%. . . . [W]e decide, as have other courts faced with the same

issue and comparable facts, that a desegregation plan which

leaves unaffected a substantial number of racially identifiable

schools containing a high proportion of black students is insuf-

ficient. . . .

Id, 66 Commonwealth Ct. at 174, 179-180, 443 A.2d at 1352, 1354.

5

conscious assignment procedures—procedures which

petitioners concede were reasonable and appropriate’—

in order to move toward its goal of a unitary school sys-

tem.*

In 1978, pursuant to the School District’s application

for federal funds for desegregation, OCR concluded that

the School District’s adherence to the numerical goals

imposed under the consent decree with PHRC was in-

sufficient to excuse the fact that many schools were ra-

3. Petitioners have contended throughout this litigation that the

School District should have pursued its integrational objective

through other race-conscious means. See Kromnick, 739 F.2d at 908;

Certiorari Petition at p. 21.

4. Contrary to petitioners’ assertion that the 1969 consent order

reached by the School District and PHRC was “completely inde-

pendent of the protracted efforts by the PHRC and the state courts

of Pennsylvania to achieve stucent desegregation, “Certiorari Peti-

tion at p.4, it is clear that both the School District and PHRC en-

visaged faculty integration as a tool and a benchmark in the broader

quest for a unitary system. Each collective bargaining agreement

between the teachers union and the School District from 1965 on-

ward contained language attesting to the link between district pu-

pils’ right to educational equality and racial balance within school

faculties. From 1968 onward each contract contained the following

statement of policy: “The Board and the Federation agree that all

children are entitled to an equal opportunity to obtain quality inte-

grated education. This goal includes the presence of a meaningful

number of experienced teachers in all schools and racial balance in

faculties.”

Meanwhile, PHRC’s perspective on the relationship between

faculty integration and school desegregation ~’as reflected in a doc-

ument prepared by it and the Pennsylvania Department of Public

Instruction (now the Department of Education) entitled “Recom-

mended Elements of a School Desegregation Plan.” The document,

which was prepared in 1968 and thereafter used as a guide for school

authorities, identified as one of eleven factors which should be ad-

dressed when developing a desegregation plan, “Does the desegre-

gation plan include procedures to affirmatively and effectively re-

cruit and assign an integrated staff at all levels for all schools?” Penn-

sylvania Human Relations Commission v. School District of Phil-

adelphia, 23 Pa. Commonwealth Ct. 312, 317, 352 A.2d 200, 203

(1976).

6

cially identifiable by their student populations. OCR also

found that many schools, in addition to having racially

lopsided student populations, were readily identifiable by

racial composition of their teaching staffs as intended for

students of a particular race. Furthermore, OCR inti-

mated that the School District, by continuing to allow

teacher choice to determine teaching assignments, was

engaged in a conscious policy of racial segregation. In a

letter addressed to the School District’s Superintendent,

the Associate Commissioner for Equal Educational Op-

portunity Programs within the Department of Health, Ed-

ucation and Welfare charged:

[I]t is clear that compliance with the [PHRC con-

sent] order ... was not sufficient to overcome the

persistent pattern of racial identification of schools

by faculty assignment. Moreover, the district tcok no

action to remedy that pattern beyond the minimal

compliance with the PHRC order. In fact, the district

has continued to allow teacher choice to determine

teaching assignments even though, as the district

representatives admitted, residential areas in the city

are de facto segregated and teachers tend to choose

schools nearest to their homes. Thus it is our view

that the natural, probable and foreseeable result of

your district’s teacher assignment policies was to

maintain the racial identifiability of schools by the

composition of their teaching staffs. (Emphasis

added. )

See Kromnick, 739 F.2d at 898. Against this backdrop,

the School District adopted 75/125, and as a result, re-

ceived federal funds for desegregation.

When, in 1982, the Philadelphia School Board con-

vened to consider whether to continue implementation

of 75/125, the backdrop had changed to the extent that,

as a result of 75/125, the faculties throughout the school

system were racially integrated. In other regards, how-

ever, circumstances were unaltered: in 1982, as in 1977,

7

over two-thirds of all black public schvol students in the

system attended school where blacks represented more

than 90% of the student population;5 the School District

was still under directives from PHRC and the Pennsyl-

vania courts to redouble its efforts “to achieve more com-

prehensive desegregation,” Pa. Human Relations Com-

mission v. School District of Phila., supra, 66 Pa. Com-

monwealth Ct. at 179-180, 443 A.2d at 1355; the resi-

dential areas encompassed by the School District were

still de facto segregated, see id. at 66 Pa. Commonwealth

Ct. at 178, 443 A.2d at 1354; and, according to a report

prepared by the School District’s Executive Director of

Personnel and Labor Relations, there continued to be both

a limited number of open positions in the system, mak-

ing race-conscious initial assignments an ineffective

means of maintaining faculty integration, and a procliv-

ity on the part of teachers to choose schools where the

race of the majority of the students is the same as their

own. Thus, the very same factors which led OCR, in 1978,

to prescribe implementation of 75/125 still existed when

the School Board in 1982 determined to continue the pol-

icy voluntarily.

In the Fall of 1983, the School District reached a

new agreement with PHRC under which it undertook to

desegivgate 50 targeted schools by the 1988-89 school

year. A critical factor in the School District's plan io

achieve this goal—a plan which relies on voluntary stu-

dent transfers rather than forced busing—is its ability to

ensure to each parent and pupil in the system that the

faculty at his or her school will be both qualified and in-

tegrated. Contrary to petitioners’ assertion, the lengthy

student desegregation proceedings discussed by the court

of appeals have not terminated. See Certiorari Petition at

pp. 13-14. The Commonwealth Court of Pennsylvania

5. Pennsylvania Human Relations Commission v. School Dis-

trict of Philadelphia, 66 Pa. Commonwealth Ct. at 174, 443 A.2d at

1352.

8

retains jurisdiction over the case. Furthermore, should

PHRC conclude in June, 1987 that the School District

has not accomplished maximum feasible desegregation,

PHRC will, under the terms of the agreement, petition

the state court for evaluation of the School District’s de-

segregation efforts by a court-appointed expert panel, and

for an order enjoining the School District to take the nec-

essary steps to achieve maximum feasible desegregation.

REASONS FOR DENYING THE WRIT

1. This Case Presents No Important Constitutional Or Stat-

utory Issue.

Despite petitioners’ attempts to make it appear oth-

erwise, this case presents no novel or compelling issues

of federal constitutional or statutory significance. The

challenged policy is a modest one; it creates no racial

preference, abrogates no seniority rights, affects no vested

interest of the petitioners, imposes no stigma; and it is

substantially related to the legitimate governmentai ob-

jective of achieving and maintaining a desegregated

school system. Race-conscious measures having far

greater impact on individual interests and expectations

have been validated by this Court. See e.g., Fullilove v.

Klutznick, 448 U.S. 448 (1980); United Steelworkers of

America v. Weber, 443 U.S. 193 (1979).

Petitioners, nevertheless, assert that this case

presents the Court “. . . with its first oportunity to deter-

mine whether traditional prohibitions on governmental

consideration of race should take effect once the reme-

dial objectives of race-based employment policies are sat-

isfied.” Certiorari Petition at p. 12. By misrepresenting

the issue in this fashion, petitioners seek to inflate the

legal significance of this case. Petitioners focus exclu-

sively on OCR’s 1982 finding that the School District’s

faculties were racially balanced in order to argue that

faculty integration was an end in itself, unrelated to the

9

School District’s efforts to remedy a stubborn pattern of

de facto segregation in all aspects of the system. They

ask the Court toignore published PHRC guidelines which

measure the efficacy of a system-wide desegregation plan,

in part, on the basis of the steps taken by a school district

to assign and maintain integrated faculties and staff. They

would have the Court overlook biennially-adopted policy

statements attesting to the School District’s and the

teachers’ union’s acknowledgement of the importance of

integrated faculties to providing a quality education to

each child in the school system. They would obscure the

fact that an explicit basis for OCR’s insistence on the

School District’s adoption of 75/125 was that racially iden-

tifiable faculties were a means of identifying schools as

intended for students of a particular race. These facts

undermine petitioners’ attempts to deny the continuing

remedial significance of 75/125 after 1982.° Moreover,

since petitioners predicate their argument of this case’s

importance on the alleged absence of a remedial purpose

behind 75/125, these facts constitute a thorough rebuttal

to petitioners’ claim that this case warrants Supreme

Court review.

6. The School District believes that remediation of past discrim-

ination or unlawful racial segregation is not the only purpose that

will justify its adoption of a carefully designed race-conscious policy.

No case has impaired the validity of the Court’s statement in Swann

v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971)

that “School authorities . . . might well conclude. . . that in order to

prepare students to live in a pluralistic society each school should

have a prescribed ratio of negro to white students reflecting the pro-

portion for the district as a whole. To do this as an educational policy

is within the board discretionary powers of school authorities. .. .”

403 U.S. at 16. Integration of school faculties is as legitimate and

important a governmental objective as integration of the student

population. Porcelli v. Titus, 431 F.2d 1254, 1257 (3d Cir. 1970),

cert. denied, 402 U.S. 944 (1971). Thus, the School District submits

that 75/125 would be permissible even in the absence of a determi-

nation that its purpose was remedial.

10

Petitioners contend that unless the Court grants the

writ, the School District can permanently insulate 75/125

from judicial review by merely invoking fear of the con-

sequences of any alternative measure; they assert that

the School District will be encouraged to justify a race-

conscious assignment policy on the basis of an illogical

link between 75/125 on the one hand, and student

integrational objectives on the other—objectives which

petitioners claim the School District itself has abandoned.

Certiorari Petition at p. 13. These arguments are without

- merit.

First, it could not be clearer that the circuit court

scrupulously reviewed the record to determine whether

the School District’s concern that its faculties would re-

vert to their previous level of racial imbalance was a ra-

tional one. See Kromnick, 739 F.2d at 908. Nor could it

be clearer that the circuit court’s decision was limited to

the factual circumstances before it. The court explicitly

declined to express an “opinion as to whether continued

application of the 75%/125% plan would create an un-

constitutional discrimination if there is a substantial

change in facts.” Id., 739 F.2d at 908-909.

Furthermore, petitioners are alone in ascribing some

inherent illogic to tying faculty integration to student de-

segregation goals. Even the district court acknowledged

that “. . . the governmental objective of maintaining de-

segregated school faculties in order to enhance the ed-

ucational opportunities of the school children is indeed a

legitimate and important objective. ...” Kromnick v.

School District of Philadelphia, 555 F. Supp. 249, 254

(E.D. Pa. 1983). Of course, this Court has long recog-

nized the significance of faculty assignments as indicia

of a segregated system, see Swann v. Charlotte-

Mecklenburg Board of Education, 402 U.S. 1, 18 (1971),

and the appropriateness of faculty integration as a rem-

edy for de jure segregation. See United States v. Mont-

gomery County Board of Education, 395 U.S. 225, 235-36

(1969) and other cases cited at Kromnick, 739 F.2d at

11

905-906. This Court has also upheld congressional en-

actments prescribing faculty integration as a response to

de facto segregation. See Board ef Education v. Harris,

444 U.S. 130, 142-44 (1978). Thus, the circuit court’s

recognition that 75/125 played an appropriate role in the

ongoing effort to desegregate the Philadelphia school sys-

tem is completely consistent with the holdings of this

Court.

Whatever important questions regarding the permis-

sible uses of race-conscious measures remain to be ad-

dressed by the Court, see, e.g., Firefighters Local Union

No. 1784 v. Stotts, U.S.__, 104 S.Ct. 2576, 2590

(1984), petitioners have identified none which is squarely

presented by this case.

2. The Decision Of The Circuit Court Conflicts With Nei-

ther The Holdings Of This Court Nor Decisions Of Other

Circuit Courts.

Petitioners contend that in validating a _ race-

conscious policy which was not necessary to remediate

past discrimination in teacher assignments, the circuit

court offended holdings of this Court in Regents of Uni-

versity of California v. Bakke, 438 U.S. 265 (1978), and

Stotts. Petitioners contend that those cases hold that

“|. . governmental race-conscious measures employed

for ‘benign’ purposes .. . ” are invalid unless they are

‘“custom-tailored to satisfy specific remedial objectives.”

Certiorari Petition at p.15. This attempt to fabricate a con-

flict between the circuit court’s opinion and the opinions

of this Court again hinges on petitioners’ unsustainable

argument that 75/125 was, and could have been em-

ployed in furtherance of a remedial purpose no broader

than elimination of segregated faculties. It also assumes

a nonanalytical approach to the Bakke and Stotts deci-

sions.

Of course, Bakke addressed a policy which estab-

lished a clear and rigid racial preference, as contrasted

12

with 75/125, which sets a 50 percentage point range

within which the integrational goal can be met and af-

fects blacks and whites equally. While the absence of an

Opinion of the Court forecloses any affirmative reliance

on Bakke as an expression of court doctrine, a survey of

the opinions of the various Justices evidences a majority

viewpoint that benign race-conscious measures do not

necessarily offend the Constitution. Furthermore, there

is a conspicuous absence within the various opinions of

support for the proposition that benign race-conscious

measures may only be justified by application of a strict

scrutiny standard.

Stotts too is readily distinguishable on its facts from

the circumstances in this case. Whereas in Stotts, the

district and circuit courts compromised bona fide sen-

iority rights of white employees for the benefit of blacks

over the opposition of both the governmental employer

and the affected union, in this case, 75/125 was agreed

to by the School District and the Union, and it neither

creates a racial preference nor abrogates any seniority

right. Furthermore, the issue addressed in Stotts was the

limits of judicial power to prescribe remedies which are

racially preferential and override protected seniority

rights. Nothing in that decision even addresses, let alone

conflicts with the proposition that the Constitution or Ti-

tle VII pei mits a voluntary race-conscious policy which is

nonpreferential, does not override contractual seniority

rights, and is substantially and reasonably related to a

governmental remedial goal. Indeed, the Court expressly

declined in Stotts to decide whether the racially prefer-

ential measure challenged there, had it been voluntarily

adopted by the City of Memphis, would have run afoul of

Title VII. Stotts, | U.S.____,104S. Ct. at 2590. There

can, therefore, be no colorable merit to petitioners’ claim

that the Court’s opinion in Stotts interdicts a policy such

as 75/125 which is nonpreferential and was voluntarily

adopted by a competent governmental authority.

13

Just as petitioners have failed to identify conflicting

Supreme Court holdings, they also have failed to marshal

cases to support their argument that the circuit court’s

decision is in conflict with the holdings of other circuit

courts. The two cases which they cite, Oliver v.

Kalamazoo Board of Education, 706 F.2d 757 (6th Cir.

1983) and Fort Bend Independent School District v. City

of Stafford, 651 F.2d 1133 (5th Cir. 1981), dealt with the

limits of judicial authority to interfere with the decision-

making power of local school authorities, not with the

power of school authorities to voluntarily adopt limited

race-conscious measures for legitimate and substantial

reasons. The very first sentence of the Oliver decision

defines the issues the court was addressing: “The issues

presented in this proceeding involve the scope of the dis-

trict court’s remedial powers in a school desegregation

case once aconstitutional violation has been determined.”

706 F.2d at 758 (emphasis added). Nowhere in the opin-

ion is there even the suggestion that the Sixth Circuit

Court undertook to determine the limits of a school

district’s discretion to adopt benign race-conscious edu-

cational policies.

Similarily, in Fort Bend, the issue concerned the lim-

its on a federal district court to interfere in the political

and administrative decision-making of local school au-

thorities. The unusual circumstances in Fort Bend were

that Fort Bend School officials sued to enjoin the merger

of its district with another school district. The injunction

was sought on the grounds that the proposed merger

would interfere with efforts by the school district to erad-

icate the effects of past discrimination. The Fifth Circuit

Court held that, as the Fort Bend School District had, by

establishing a unitary school system, already remedied

any past discrimination, the district court had no author-

ity to enjoin the merger. It cannot reasonably be argued

that this holding—that the absence of evidence of con-

tinuing vestiges of discrimination forecloses a federal

14

court from enjoining racially neutral attempts to alter or

divide a school district—in some way conflicts with the

ability of a school district to adopt voluntary non-

preferential measures to serve remedial ends.

The circuit court’s decision, rather than generating

conflict, amply demonstrates through careful and thor-

ough analysis of the relevant case authority, that the hold-

ing in this case is wholly consistent with the decisions of

this Court and pertinent decisions in the other circuits.

See Kromnick, 739 F.2d at 900-902, 903, 905-906, 906,

909.

3. This Is Not An Appropriate Case To Resolve The Issue

Of The Standard For Determining The Constitutional-

ity Of Benign Race-Conscious Measures.

The uniqueness and narrowness of the policy in-

volved in this case makes it a poor vehicle for resolution

of the complexities associated with determining the

standard for judging the constitutionality of benign race-

conscious measures. Policy 75/125 creates no racial pref-

erence; under this policy, blacks are equally likely as

whites to be transferred involuntarily or have their place-

ment options limited in order to preserve faculty integra-

tion. Therefore, review of this case would not afford the

Court the opportunity to address the issue which is at the

heart of the vast majority of affirmative action cases,

namely the issue of the standard for determining the con-

stitutional validity of benign race-conscious measures

which benefit one race at the expense of another.

The absence of racial preference, moreover, makes it

at least questionable whether this case is one of consti-

tutional dimension. See Kromnick, 739 F.2d at 903. Pe-

titioners heighten this doubt by their concession that

other race-conscious measures, such as the School

District’s “. . . offering incentives to encourage teachers

of a particular race to teach in schools where that teacher’s

race is in the minority” would be constitutionally per-

15

missible. See Certiorari Petition at p.21. It would thus

appear that petitioners’ grievance is not that the School

District chose to employ a race-conscious device, but

rather that it chose a race-conscious device which peti-

tioners would not have chosen. Undoubtedly, the School

District is vested with primary authority to determine

which among an array of permissible devices best serves

its legitimate educational objectives. See Swann, 402 U.S.

at 16. Furthermore, as the circuit court observed, the

School District chose 75/125 on the basis of a fund of

knowledge and experience which amply supports the ra-

tionality of its choice of remedial device. See Kromnick,

739 F.2d at 908. The place for any further debate over

the efficacy of this policy is the School District board room

and the collective bargaining table—not the federal

courts.

4. The Circuit Court Properly Reversed The District Court’s

Findings That 75/125 Was Not Remedial And That Only

“Sheer Speculation” Supported The School District’s Be-

lief That Abandonment Of The Policy Would Lead To

Reversion To Prior Levels Of Faculty Segregation.

As their final basis for urging the Court to grant cer-

tiorari, petitioners contends that review is necessary in

order to vindicate the fact-finding competence of the dis-

trict court. However, it is clear that the circuit court prop-

erly reversed the district court’s findings that 75/125 had

no remedial purpose and that no more than “sheer spec-

ulation” supported the School District’s belief that aban-

donment of 75/125 would lead to reversion to prior levels

of faculty segregation.

It is significant that the circuit court determined as

a matter of law that the district court’s concept of reme-

dial was too narrow in light of the history of the deseg-

regation effort in Philadelphia and the plethora of federal

court decisions recognizing the remedial significance of

faculty integration in pupil desegregation plans. See

16

Kromnick, 739 F.2d at 904-906. Furthermore, the circuit

court properly found that the district court’s “sheer spec-

ulation” finding was clearly erroneous in light of over-

whelming and unrebutted evidence that the School Dis-

trict exercised its competence on the basis of years of

experience with using race-conscious measures to

achieve faculty integration, as well as on the advice of

school officials who had responsibility for teacher assign-

ments and who had studied the potential impact of chang-

ing the transfer policy. See Kromnick, 739 F.2d at 908.

Moreover, the School District had the benefit of OCR’s

findings that the prior use of less restrictive race-

conscious transfer policies had allowed teacher choice to

perpetuate the existence of numerous racially identifia-

ble school faculties within the system. Under these cir-

cumstances, the circuit court was well-justified infeach-

ing a “definite and firm conviction that a mistake ha[d]

been committed.” United States v. United States Gyp-

sum Co., 333 U.S. 364, 395 (1948).

17

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari to review the Judgment and Opinion of the

Third Circuit Court of Appeals should be denied.

Respectfully submitted,

GERMAINE INGRAM

UNIVERSITY OF PENNSYLVANIA

LAW SCHOOL

3400 Chestnut Street

Philadelphia, PA 19104

(215) 898-1097

Counsel for Respondents,

The School District of

Philadelphia and Board of

Education of The School

District of Philadelphia

Dated, November 29, 1984