Petitioners Reply Brief — Holloway v. Valley

oMtice Supreme Court, U.S, |

FILED

| OCT AL Igg3

In the Supreme Court of the an States

OcToBER TERM, 1983 AULMANDIER L STEVAS,

CLERK

Nos, 83-129

83-289

CLypDE HOLLoway, ET AL., PETITIONERS

v.

VirGie LEE VALLEY, ET AL.

RAPIDES PARISH SCHOOL BOARD, ET AL., PETITIONERS

vu.

VirGiE LEE VALLEY, ET AL.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

REPLY TO BRIEFS IN OPPOSITION

PAuL R. BAIER

Paul M. Hebert Law Center

Louisiana State University

Baton Rouge, Louisiana 70803

CHRISTOPHER J. Roy

711 Washington Street

Alexandria, Louisiana 71309

Counsel for Petitioners

Clyde Holloway, et al.

JOHN F. WARD, JR.

RoBert L. HAMMONDS

1111 South Foster Drive, Suite C

Baton Rouge, Louisiana 70896

Counsel for Petitioners

Rapides Parish School Board, et al.

ARGUMENT .

CONCLUSION

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ii

TABLE OF AUTHORITIES

CASES: Page

Carr v. Montgomery County Board of Education,

377 F.Supp. 1123 (M.D. Ala. 1974) .........4.. 4n.2

Carr v. Montgomery County Board of Education,

511 F.2d 1874 (5th Cir. 1975), cert. denied 423

is HOEY duwabevocwaset inti dbvenceses 4n.2

Firefighters Local Union v. Stotts, Oct. Term 1983,

FO GG hv cabowvsvvnenensaveadanbencaces 5n.3

Flax v. Potts, 464 F.2d 865 (5th Cir. 1972), cert.

denied 409 U.S. 1007 (1972) ...... ccc eee eee 1

Lee v. Macon County Board of Education, 616 F.2d

GOS GU GI BI ov de kde sv unecteedscecses 2,4n.2

Memphis Fire Department v. Stotts, Oct. Term

SOUR, Fes Be eae ccevbesetevniessavecdess 5n.3

South Park Independent School District v. United

States, Oct. Term 1983, No. 82-2014, cert.

denied, October 3, 1983 ........ceeeeeeeeeees 4

Stout v. Jefferson County Board of Education, 537

P28 GOO GA CE TAG sh oisivcecvecccsucevcces 4n.2

Swann v. Board of Education, 402 U.S. 1(1971).... 1,4n.2

Tasby v. Wright, 520 F.Supp. 683 (N.D. Tex. 1981) .. 4

Tasby v. Wright, No. 82-1121 (5th Cir. 1983) ........ 4

Thompson v. Newport News School Board, 363

F.Supp. 458 (E.D. Va. 1973) «0... 6. cece ee eens 3

Thompson v. Newport News School Board, 498 F.2d

195 (4th Cir. 1974) (en banc) ....... eee eens 3

1

In the Supreme Court of the United States

OcTOBER TERM, 1983

Nos. 83-129

83-289

C: + © HoLioway, ET AL., PETITIONERS

v.

ViRGIE LEE VALLEY, ET AL.

RAPIDES PARISH SCHOOL BOARD, ET AL., PETITIONERS

v.

VirRGIE LEE VALLEY, ET AL.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

REPLY TO BRIEFS IN OPPOSITION

Pursuant to Rule 22.5, petitioners CLYDE HOLLOWAY, et

al. (No. 83-129), and RAPIDES PARISH SCHOOL BOARD,

et al. (No. 83-289), file this joint reply to respondent Valley's

and the United States Government's Briefs in Opposition.

First. Respondent Valley's Brief in Opposition materially

misstates the law. Nothing in Flax v. Potts (Br. Op. 11)

approves the busing of five-year-olds two hours a day. And this

Court's opinion in Swann makes it clear that remedial power in

desegregation cases is not wholly boundless. As Chief Justice

Burger declared for a unanimous Court in Swann, 402 U.S. at

28, “it must be recognized that there are limits.”

2

Second. Two material misstatements of fact taint the Gov-

ernment’ Brief in Opposition.

A. The Government contends (Br. Op. &) that the district

court did not err in rejecting the other desegregation plans

that were submitted on remand as alternatives to closing Lin-

coln Williams and Forest Hill Schools. The Solicitor General

says (Br. Op. 8): “the [district] court considered each of those

plans carefully.”

The record shows precisely the opposite.

When this case was remanded to the district court, the

private plantiffs proposed that Lincoln Williams and Forest

Hill remain open as K-3 schools, a proposal that was supported

by petitioners herein.! But the district court rejected this

proposal peremptorily, not carefully, saying only “We cannot

allow K-3 schools ....” On appeal to the Fifth Circuit, the

United States conceded that the district court had misstated

the law of the Fifth Circuit in this regard. U.S. Brief [Fifth

Circuit], pp. 28-29 n.33. See Lee v. Macon County Board of

Education, 616 F.2d 805, 812 (5th Cir. 1980). The decision of the

panel majority below not only departs from prior Fifth Circuit

case law, but is squarely at odds with the law of the Fourth

Circuit:

“If certain proper circumstances may justify an entire

! Transcript of hearing of June 30, 1981, at 7-8:

{Counsel for plaintiffs): “We would submit that Lincoln Williams and

Forest Hill be K through 3 schools... . The only reason why we pro-

pose that is because somewhere in the Fifth Circuit's order, I believe

mention was made of the fact that the schools in the urban area were

given the privilege of keeping their small children close to home;

whereas this privilege was not extended to the children in the rural

areas. For that reason we said if the court feels that there must be

another plan, then that is the proposal.

THE COURT: “Well, the court did make that statement, that is right.”

3

school remaining of one race then, a fortiori, the same

circumstances will justify the two lowest grades and kin-

dergarten remaining predominantly of one race,

especially considering the time of travel and age of the

children.”

Thompson v. Newport News School Board, 363 F.Supp. 458,

463-64 (E.D. Va. 1973), aff'd 489 F.2d (4th Cir. 1974)(en banc).

B. The Solicitor General says (Br. Op. 7 n.6) that there is no

record evidence showing that the district court's order requires

five-year-olds “to take a 40-mile, two hour bus trip.”

To the contrary, the bus driver route sheets introduced into

evidence as Forest Hill Exhibit 14 show that 181 former Forest

Hill School students must be bused past Forest Hill School en

route to Lecompte. These students are picked up as early as

6:45 a.m. and they are on buses nearly an hour en route to

Lecompte. With respect to kindergarteners through third-

graders, the uncontradicted testimony of Parks Sansing (Tr.

June 30, 1981 Proceedings, p. 57) establishes that these pupils

are bused an additional 2.2 miles and twenty to twenty-five

minutes within the city limits of Lecompte as buses move from

Lecompte Elementary to Carter C. Raymond and thence to

Rapides High School before beginning the trip back to Forest

Hill and beyond. Mary Miles, a black seamstress and mother of

a five-year-old, testified (Tr. Sept. 17, 1980 Proceedings, pp.

30-31) that her son must be bused 30 miles round-trip under the

district court's plan. And the School Board objected to busing

“in some instances, busing kids forty miles, not just right next

door.” Tr. August 27, 1980 Proceedings, p. 27.

Chief Judge Clark in his dissent categorically states (Pet.

App. 17a-18a):

“These children, ranging in age from kindergarten

through early elementary grades, must rise early, board

4

buses, drive past their community school houses and go to

a distant town and then reverse the journey in the even-

ings. Some will spend two hours a day on the school bus.”

With all respect to the Government, Chief Judge Clark did not

pull his two-hour figure out of the air.

Third. In opposing certiorari in this Court in South Park

Independent School District v. United States, No. 82-2014,

cert. denied October 3, 1983, the Government emphasized (Br.

Op. 5, 7-8) that the district court excluded grades K-3 from its

desegregation plan because (Br. Op. 7a):

“It is constitutionally permissible for the Court to allow

children in grades K through three to remain in neighbor-

hood schools.”*

And as recently as August 11, 1983, the Fifth Circuit affirmed

a desegregation plan for Dallas that exempted children in

grades K-3 from bus rides longer than 30 minutes. See Tasby v.

Wright, 520 F.Supp. 683, 714-733 (N.D. Tex. 1981), affd No.

82-1121 (5th Cir. 1983). Yet the panel majority in the instant

case says (Pet. App. 12a):

“This constitutionally erected barrier to the operation of

segregated schools applies to all children within the school

system, including those in elementary grades.”

Plainly the law is being unequally applied in these cases, and

lower courts are sorely in need of guidance from this Court

2 Citing Stout v. Jefferson County Board of Education, 537 F. 2d 800 (5th

Cir. 1976); Carr v. Montgomery County Board of Education, 377 F.Supp. 1123

(M.D, Ala. 1974), aff'd 511 F.2d 1374 (5th Cir. 1975), cert. denied 423 U.S. 986

(1975); Swann v. Board of Education, 402 U.S. 1, 26, 31 (1971); Lee v. Macon

County Board of Education, 616 F.2d 805, 812 (5th Cir. 1980). These are the

very same cases we rely on in urging this Court to grant certiorari in the

instant case. See especially No. 83-129 Pet. 28-30.

5

regarding the proper interpretation of Swann, particularly as

it affects children of tender years.

Fourth. The Solicitor General says (Br. Op. 7) this case

“presents no novel legal issues.” We disagree. No federal court

has ever closed a perfectly good school, much less a rural

community's only school, as a remedy in a desegregation case.

And the district court acted alone in this case, wholly outside

the submissions of the parties. There is in this case, we

respectfully submit, a question of remedial authority worthy of

a hearing in the Nation’s last resort of equal justice under law.*

’ This Court has already agreed to hear Memphis Fire Department v.

Stotts, No. 82-229, and its companion Firefighters Local Union v. Stotts, No.

82-209, which also raise troubling questions regarding the scope of federal

judicial authority in an analogous context. See Brief of Petitioners, Memphis

Fire Department, et al., v. Stotts, No. 82-229, especially at 36-38.

6

CONCLUSION

For the above additional reasons, it is respectfully submitted

that the petitions for a writ of certiorari should be granted.

Respectfully submitted,

PauL R. BAIER

Paul M. Hebert Law Center

Louisiana State University

Baton Rouge, Louisiana 70803

CHRISTOPHER J. Roy

711 Washington Street

Alexandria, Louisiana 71309

Counsel for Petitioners

Clyde Holloway, et al.

JOHN F. Warp, JR.

RoBert L. HAMMONDS

1111 South Foster Drive, Suite C

Baton Rouge, Louisiana 70896

Counsel for Petitioners

Rapides Parish School Board, et al.

OcTOBER 4, 1983