Amicus Curiae Brief — Board of Ed. of Oklahoma City Public Schools v. Dowell

No. 89-1080 =

yyy 339

IN THE JUN 1 ,

Siytreme Court of thie United MrATeH SPAvOL. o*

LERK a

OCTOBER TERM, 1089 —

THE BOARD OF EDUCATION OF OKLAHOMA CITY

PUBLIC SCHOOLS, INDEPENDENT SCHOOL DISTRICT

No. 89, OKLAHOMA COUNTY, OKLAHOMA,

y>

Petitioner,

ROBERT # Dow} .. ft @

On Writ of Certiorari to the

United States Court of Appeals

for the Tenth Cirevit

BRIEF AMICI] CURIAE OF THE

COUNCIL OF THE GREAT CELY SCHOOLS,

THE AMERICAN ASSOCIATION Of}

SCHOOL ADMINISTRATORS AND

THE NATIONAL ASSOCIATION OF

SECONDARY SCHOO! PRINCIPALS

!

DAVID S. TATE!

WALTER A. SMITH, JR.

PATRICIA A. BRANNAN

JOHN W. BorkowskK!

PATRICIA M. Wrici!

HOGAN & HARTSON

555 Thirteenth St reet, N.W

Washington, D.C. 20004

(202) 637-5787

Cownsel for

The Couneil of the Great (ity

Schools, the American

Association of Sehaol

Admivistrators and the

National 4A ‘sacral YT) of

Ny condary Ne] nol P, mmecipals

* Counsel of Record

ER ee ee 8 ee eee

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

SE HR IIE sidnrsenisccabsismssisnacesnavscanienanes

INTEREST OF AMICI CURIAE ....WWW000000...

SUMMARY OF ARGUMENT .......... seieticdalatadies nachisdanas

I satire aieli hand cacscsiaarelticeematenesinesicibasaiaasunscioanaas

-

Il.

The Standard For Dissolving An Injunction

Against A School District Declared Unitary

Cannot Be Fairly Resolved Without Addressing

The Standard By Which A District May Ap-

propriately Be Declared Unitary .............. anaes

A. The Meaning of Unitariness Is Logically

Encompassed in the Question on which This

Court Has Granted Review ...................00.00.....

B. If the Court Declines to Address the Unitary

Standard in this Case, Detrimental, Con-

flicting Results in the Lower Courts Will

EER LO a

Desegregation Injunctions Should Be Dissolved

And Full Operating Control Returned To A

Defendant School District Only When It Has

Substantially Complied With All Outstanding

Court Orders, Eliminated The Vestiges Of Seg-

regation To The Maximum Extent Practical

And Demonstrated A Good-Faith Commitment

To Protecting The Constitutional Rights Of All

ERNST EE nO en RN

TIDY sasatccensininrcsneeniniionntaciensinniens ais aeunianalabanianaten

Page

ii

TABLE OF AUTHORITIES

Cases: Page

Blonder-Tongue Laboratories, Inc. v. University

of Illinois Foundation, 402 U.S. 313 (1971)........ 7

Bradley v. Baliles, 639 F. Supp. 680 (E.D. Va.

1986), aff'd, 829 F.2d 1308 (4th Cir. 1987) ....... 9

Brown v. Board of Education, 347 U.S. 483

CBG E) once ccccccccccceccsncnsssnusessnsuseneseeeeeneen passim

Brown v. Board of Education, 349 U.S. 294

§ | } Rn 12, 13

Columbus Board of Education v. Penick, 443 U.S.

PY Oh: | aE 13

Cuyler v. Sullivan, 446 U.S. 335 (1980) -................ 7

Davis v. Board of School Commissioners, 402 U.S.

Th |, 4) ene cnnS 14

Dayton Board of Education v. Brinkman, 433 U.S.

BOB CRBTED 3nnx<coccececsssensecnnensnshenssaunenanenennnenne 13

Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) .... 7

Georgia State Conf. of Branches of NAACP v.

Georgia, 775 F.2d 1403 (11th Cir. 1985) 0... 8

Green v. County School Board, 391 U.S. 430

I scannacuuiidigee passim

Keyes v. School District No. 1, 4138 U.S. 189

CRITB) oaeeeeccneenesna+nscnnencendsnsmsmennneaienenanaianaannnann 13

Milliken v. Bradley, 418 U.S. 717 (1974) ............. 13

Milliken v. Bradley, 433 U.S. 267 (1977) ............. 14, 16

Monteilh v. St. Landry Parish School Board, 848

ye ft i ee ee ee 9

Morgan v. Nucci, 831 F.2d 313 (1st Cir. 1987)... 9,14

Pasadena City Board of Education v. Spangler,

437 UB. BG CROGGD ceccccitecersseemeneee 12

Pitts v. Freeman, 755 F.2d 1423 (11th Cir. 1985).. 9

Raney v. Board of Education, 391 U.S. 443

CODE) nncccececencccscecnssssccsesncnssnnsnsenssnnnnleinnennnnnnn 13

Swann v. Charlotte-Mecklenburg Board of Educa-

Gio, 408 U.F. 2 CROTED cecccceccscccuee passim

Swift v. Tyson, 41 U.S. 1 (1842) ............................ 7

United States v. Mendenhall, 446 U.S. 544

CRBD) nc cceccccnnocccesecoucsssnctcunssnnneneneenninnennnn 7

United States v. Swift & Co., 286 U.S. 106

CTI)... .cnceccs.c0secesceseeessnsennennunsnseeeienennnnnnnnnnnnnn

iii

TABLE OF AUTHORITIES—Continued

United States v. United Shoe Machinery Corp.,

391 U.S. 244 (1968) ................... A 50 OE

Vance v. Terrazas, 444 U.S. 252 (1980) ae

Vaughns v. Board of Education, 758 F.2d 983 (4th

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-1080

THE BOARD OF EDUCATION OF OKLAHOMA CITY

PUBLIC SCHOOLS, INDEPENDENT SCHOOL DISTRICT

No. 89, OKLAHOMA COUNTY, OKLAHOMA,

Petitioner,

Vv.

ROBERT L. DOWELL, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

BRIEF AMICI CURIAE OF THE

COUNCIL OF THE GREAT CITY SCHOOLS,

THE AMERICAN ASSOCIATION OF

SCHOOL ADMINISTRATORS AND

THE NATIONAL ASSOCIATION OF

SECONDARY SCHOOL PRINCIPALS

INTEREST OF AMICI CURIAE

The Council of the Great City Schools (‘the Council’)

is a coalition of 45 of the largest urban public school

districts in the United States.' Council members educate

!The members of the Council are: Anchorage, Atlanta, Balti-

more, Boston, Buffalo, Chicago, Cincinnati, Cleveland, Columbus,

Dade County, Dallas, Dayton, Denver, Detroit, East Baton Rouge,

El Paso, Fresno, Houston, Indianapolis, Jacksonville, Long Beach,

Los Angeles, Memphis, Milwaukee, Minneapolis, Nashville, New

2

12 percent of the nation’s schoolchildren and one-third

of the nation’s minority children. The Board of Direc-

tors, the Executive Committee and other committees of

the Council are comprised of superintendents and school

board representatives from member districts. The Coun-

cil was organized in 1961 to help large urban school dis-

tricts develop and implement programs designed to en-

sure quality education and equality of educational oppor-

tunities for urban students. The Council represents

major school districts before the federal legislative and

executive branch officials who determine national educa-

tional law and policy.

The American Association of School Administrators

(“A ASA”) is the national professional organization for

school district administrators and other educators in

our nation’s public schools. AASA’s members include

approximately 18,000 school district superintendents,

other school district administrators, school principals

and other building level administrators, and educational

administrators from other local, regional, stzte, and

national educational agencies. Thus AASA’s members

are resypnsible for the daily operation of our nation’s

diverse public school systems, many of which have im-

plemented desegregation plans.

The National Association of Secondary School Princi-

pals (“NASSP”) is a voluntary association of approxi-

mately 42,000 administrators of public and private sec-

ondary schools throughout the United States. It was

organized in 1916 to provide a voice for secondary school

principals and assistant principals in the formulation

of all aspects of educational policy in the United States.

Many NASSP members are thus deeply involved in

the day-t#day implementation of desegregation remedies

throughout the nation.

Orleans, New York City, Norfolk, Oakland, Omaha, Philadelphia,

Phoenix. Pittsburgh, Portland, Rochester, St. Louis, St. Paul, San

Diego, San Francisco, Seattle, Toledo, Tucson, Tulsa and Washing-

ton, D.C.

3

The Council, AASA and NASSP file a brief in this

case for three reasons. First, these amici have con-

siderable experience bearing upon the issues presented

by the case. For example, 13 of the Council’s 45 member

(districts are currently under active federal court super-

vision and eight of these districts have been under fed-

eral court order for more than ten years. Seven mem-

ber districts have been declared unitary, but the status

of 17 districts is unclear because although they have

been under federal or state desegregation orders in the

past, the active supervision of these orders has ceased,

without a declaration of unitariness. Another eight

Council member districts, while not under court order,

have undertaken desegregation efforts to comply with

what they see as their obligation to provide equal educa-

tional opportunity and their desire to be in all respects

a unitary school system.

Second, the Court’s resolution of the central issue in

this case—the nature and duration of federal-court su-

pervision of desegregation programs—will have a dra-

matic impact on these amici and their members. It was

36 years ago, in Brown v. Board of Education, 347 U.S.

483 (1954), that a unanimous Supreme Court committed

this nation to eliminating the scourge of official segrega-

tion in our public schools. We have made an enormous

amount of progress toward that goal, but the job is

not yet done. The school districts and the adminis-

trators who are members of amici are fully committed

to completing the task and to ensuring that the constitu-

tional rights of minority children are fully protected.*

As the same time, they are also fully committed to acting

in their respective capacities in such a manner as to

restore local autonomy to their school districts and end

the need for further federal court involvement. Their

“The minority student populations in Counci! member districts

range from 21.7 percent to 96.5 percent, and AASA and NASSP

members similarly serve in dozens of diverse schoo] districts.

4

efforts to achieve these two goals have been hampered

because the lower federal courts have developed a variety

of uncertain, sometimes conflicting standards to deter-

mine when a school system is desegrated and when

judicial oversight should terminate. As we enter the last

decade of the Twentieth Century, amici believe it is

important for this Court to clarify these issues so that

the nation’s effort to eliminate the vestiges of its history

of segregation can be completed and its schools returned

to appropriately elected and appointed school officials who

have demonstrated the commitment necessary to ensure

the rights of minority children.

Finally, these amici have a view of these issues that

they believe is different from that of either party.

Specifically, the Council, AASA and NASSP contend that

the central question presented—whether the dissolution

of desegregation decrees must meet the standard enun-

ciated in United States v. Swift & Co., 286 U.S. 106

(1932)—tturns on two important considerations. First,

where violations of the rights of minority students have

been found, those violations must be fully remedied and

the interests of those students judicially protected during

that remedial process. Second, there must come a time

in each school desegregation case when court supervision

ends and the operation of local schools is returned fully

to local school district officials. As explained in this

brief, amici believe that the best way to achieve both of

these important goals—complete vindication of minority

children’s constitutional rights and restoration of local

autonomy—is for this Court to (1) determine in this

ease the standards that must be met to prove that a

unitary school district has been established; and (2)

hold that once such a district has been established, out-

standing federai-court injunctive decrees must be dis-

solved.

5

SUMMARY OF ARGUMENT

The question whether all federal-court injunctive de-

crees must be dissolved upon the finding of unitariness

cannot be fully and fairly considered apart from the

standard by which unitariness was found. The purpose

of injunctive decrees in all desegregation cases should

be to ensure that the harm of segregation has been fully

remedied. In our view, the standard for unitariness

should in substance mirror that purpose. Where such a

standard is applied and met, it follows that any out-

standing injunctive decrees should be dissolved. But

until the content of that standard has been established,

the Court cannot know whether the standard ensures

that the purpose of the injunctive decrees has been met

and the decree therefore may be appropriately dissolved.

For that reason, and because the lower courts have in

practice been applying conflicting unitariness standards,

this Court should address and determine the correct

standard in this case.

A declaration of unitariness should be issued only

after the district court has made findings on three is-

sues: (1) whether the defendants have substantially com-

plied with all outstanding desegregation orders; (2)

whether the desegregation plans and orders have been

effective in remedying the violations found by the court,

i.e., Whether they have eliminated segregation and its

vestiges to the maximum extent practical; and (3)

whether the defendants have demonstrated sufficient

good faith in the desegregation effort that the court

expects the schoo: district to afford full protection to

the constitutional rights of minority school children. The

parties should be offered the opportunity for a full evi-

dentiary hearing on each of these issues and, where a

defendant school district meets these three requirements,

unitariness should be declared and judicial supervision

should end.

6

ARGUMENT

I. The Standard For Dissolving An Injunction Against

A School District Declared Unitary Cannot Be Fairly

Resolved Without Addressing The Standard By Which

A District May Appropriately Be Declared Unitary.

A. The Meaning of Unitariness Is Logically Encom-

passed in the Question on which this Court Has

Granted Review.

The Petitioner itself recognized in seeking review by

this Court that ‘|t}he question of when a desegregation

decree should be lifted is an important unsettled ques-

tion, intertwined with the meaning of uwunitariness it-

self. . . .”* This intertwining results from the fact.

long made clear by this Court, that “unitariness” is the

goal of all judicial supervision of school district detend-

ants that have been found liable for unconstitutional

segregation. Thus, as the Court recognized in Green +.

County School Board, 391 U.S. 430, 436 (196! ', “Itlhe

transition to a unitary, nonracial system of public educa-

tion was and is the ultimate end to be brought about”

in the desegregation cases. Accord, Swann v. Charlotte-

Mecklenburg Board of Education, 402 U.S. 1, 31 (1971).

Mandatory injunctions have been the near-universal

means by which the federal courts have attempted to

bring about unitary status. If the purpose of a deseg-

regation injunction is to bring about unitary. status,

consideration of whether an injunction survives a declar-

ration of unitariness, under the Swift’ standard or any

other approach, is incomplete without a common under-

Pet t y \ t ft Certiora t the | ted Stat (ourt of

Vy { f } j ‘ } of (>i F

noma t }? CU? : 4 ! ed J | yi } re inaufte)

*Do .

| ‘ ‘ | - ive '

7

standing of what unitary status means.’ An injunction

is only the means to the goal of desegregation. To amici,

it is not logical to separate the issue of when an in-

junction should be lifted from the issue of. whether that

injunction has achieved its goal and cured the condition

that was found te violate the Constitution. Put another

way, it puts the cart before the horse to consider how

ung an injunction endures without weighing whether

it has done the job of creating a desegregated school

system.

In our view, it makes no sense to talk of a school

district being “unitary” unless the constitutional viola-

tion has been cured, just as in Swift, the Court expressed

reluctance to release defendants from an injunction until

their unlawful monopoly was cured. There would be no

need, however, to apply the precise verbal formulation of

the Swift rule in school desegregation cases if a tough

but workable requirement for unitariness determinations

were uniformly applied, because the purpose of the Swift

rule—to ensure that a remedy has fully cured the viola-

tion found by the court—-would be fully satisfied. The

Swift issue and the unitariness issue are therefore fun-

damentally (he same: has the condition necessitating

judicial intervention been fully cured? If it has, judicial

supervision should end; but unless the content of the

This Court hee held that enestions not direertly precented in a

petition for certiorari but “fairly comprised” in it should be de-

cided where their resolution is essential to the correct disposition

of other issues in the case. See, o.g., United States vo Mend nhall,

bib Los. fbb, 552 wd -t9GRb Accordingly, where a given issue is

“predicate to an intelligent resolution” of a question on which

certiorari was granted, this Court has felt ¢ mpelled to address it

Cwute fran, AMG ULS. 3855, 342 n.6 (1980); Vance v. Terrazas.

11] { h 2° 4 2S yo neo }Qs0 Nee alse Blondes Toned ‘ Lahe i

Din University of linvis Foundation, 402 U.S. 313. 320

n.6 (1971): Brie RR. Co Tompkins, 304 U.S. 64. 66. 68-69

LGN Court reached issue of whether Sviift Tuson, AV US. 1

kil) was still yoo? law although parties agreed on that issue

8

unitariness standard ensures that the constitutional vio-

lation has in fact been fully remedied, there can be no

assurance that the judicial task is complete. For this

reason alone, the Court should address the appropriate

content of the unitariness standard in this case.

B. If the Court Declines to Address the Unitary Stand-

ard in This Case, Detrimental, Conflicting Results

in the Lower Courts Will Inevitably Continue.

If the standards and procedures for unitariness were

clear and uniform, the Court could restrict itself to the

narrow issue whether a desegregation decree survives a

declaration of unitariness. Unfortunately, the lower fed-

eral courts have articulated a variety of standards of

unitariness. Indeed, members of the Council, AASA and

NASSP now function under widely different substantive

standards for achieving unitariness depending on the

federal judicial circuit in which they are located. Fur-

thermore, member districts may or may not have an

opportunity for an evidentiary hearing, depending on

the court that considers the issue.

The courts below have used the word “unitary” in a

variety of inconsistent ways. For example, the Eleventh

Circuit, relying on Fifth Circuit precedent, draws a

distinction between a “unitary school district” and a dis-

trict that has achieved “unitary status.” In Georgia

Siate Conf. of Branches of NAACP v. Georgia, 775 F.2d

1403 (11th Cir. 1985), the court explained that a dis-

trict that meets the requirements of Green and Sivanin

and has not operated segregated schools “for a period of

several years” is unitary, but that a school district can-

not be said to have achieved “unitary status’ unless it

“has eliminated the vestiges of its prior discrimination

and has been adjudicated as such through the proper

judicial procedures.” 775 F.2d at 1413 n.12. The court

held that a district that is “unitary” but has not achieved

“unitary status” retains its affirmative obligation to elim-

inate the vestiges of prior unconstitutional conduct and

9

that a challenge to school district action may be success-

ful without proof of segregative intent. Jd. at 1414.

It is also unclear what standard of actual desegrega-

tion must be reached for a district to be considered

unitary. Some courts have relied heavily on mathemati-

cal evidence of racial balance where further desegrega-

tion may be possible, Vaughns v. Board of Education. of

Prince George’s County, 758 F.2d 983 (4th Cir. 1985),

while others have recognized circumstances in which it

is appropriate to allow one-race schools to remain. Mor-

gan v. Nucci, 831 F.2d 313 (1st Cir. 1987). Some courts

have even suggested that the mere passage of time can

lead to unitary status. See, e.g., Bradley v. Baliles, 639

F. Supp. 680, 691 (E.D. Va. 1986) (court noting, “the

longer the time since a school system has been segre-

gated, the less likely it would be that the vestiges of such

segregation remain in the system”), aff'd, 829 F.2d

1308 (4th Cir. 1987).

Furthermore, most of the circuits have not addressed

the question of the specific procedures to be conducted

by a district court in deciding whether a school district

is unitary. The Fifth Circuit, however, has fairly de-

tailed procedural requirements, including an opportunity

for a hearing, for evaluating the achievement of unitary

status. See Youngblood v. Board of Public Instiuction

of Bay County, 448 F.2d 770 (5th Cir. 1971) The

Eleventh Circuit generally has followed the approach of

the Fifth Circuit. Thus, in Pitts v. Freeman, 755 F.2d

1423 (llth Cir. 1985), the court reversed a district

court’s finding of unitariness because it failed to hold

a hearing prior to its determination, /d. at 1426 (“[i]n

"See Monteidh ov. St. Landry Parish School Board, 848 F.2d 625,

629 (5th Cir. 1988) (“because our procedures had not been fol-

lowed before the court in 1971 declared St. Landry to be unitary,

we find neither the district court ner the panel affirming its order

intended to declare that the district was unitary, in the sense of

having eliminated all vestiges of past discrimination”).

10

order to conclude a school desegregation case, a district

court must hold a hearing to determine if the schooi sys-

tem indeed has achieved unitary status’’).

Of greatest importance here, courts have made state-

ments about “unitary status’ on the assumption that

their orders nonetheless would continue in force. It is

not clear that those statements would have been made

if the law were clear that desegregation decrees do not

survive a finding of unitariness. For example, Petitioner

relies on ‘a 1977 reference by the District Court calling

the Oklahoma City Public Schools “unitary.” Petition at

3. But the order also makes clear that the court assumed

the termination of its jurisdiction would not result in

any “dismantlement of the Plan... .”

This disarray among the lower federal courts has a

dramatic adverse impact on school districts operating

under court-ordered desegregation plans, including Coun-

cil member districts and those in which AASA and

NASSP members work. A major problem for such

school districts is extended litigation over whether they

are unitary and what continuing obligations, if any,

uniteriness entails. Some school districts have sought

to establish that they are unitary, only to find upon

reaching court that they have prepared to litigate under

one standard, while the court imposed another. Other

districts remain for extended periods under court juris-

diction without raising the unitariness issue for fear

that they will incur new court-ordered obligations through

the process. Still others have not had any aciive involve-

ment by the district court for years, but feel completely

unclear about their ability to take steps that would be

inconsistent with old court orders.

This Court would only exacerbate the confusion and

create unintended results by ruling on the «ffec/s of uni-

’ Brief in Opposition to Petition for Certiorari of Robert L.

Dowell, ¢f al, at 2a (filed March 5, 1990).

11

tary status without providing guidance as to how a

proper determination of unitariness may be made in the

first instance. To conclude, for example, that no further

court supervision or injunctive relief may continue in a

schoo! district that has been labeled “unitary,” without

ensuring that a tough, workable standard for unitariness

has been applied, could leave minority schoolchildren

without ever having a full remedy for the constitutional

wrong they have suffered. On the other hand, to hold

that the streng language of Swift governs even after

the vestiges of segregation have been eliminated might

result in failures to return schools to local control in a

timely manner. In addition, for this Court to hold that

all judicial supervision of a school district must end

upon the finding of unitariness—irrespective of the

standard for that finding—will inevitably produce con-

flicting judicial supervision owing to varying staudards

of unitariness. The tough but workable requirements for

achieving unitariness that we propose would minimize

these unwanted results. We urge the Court to adopt

them in this case.

II. Desegregation Injunctions Should Be Dissolved And

Full Operating Control Returned To A Defendant

School District Only When It Has Substantially Com-

plied With All Outstanding Court Orders, Eliminated

The Vestiges Of Segregation To The Maximum Extent

Practical And Demonstrated A Good-Faith Commit-

ment To Protecting The Constitutional Rights Of All

Students.

The Council, AASA and NASSP urge the Court to

make clear that unitariness requires an opportunity for

a full evidentiary hearing to determine whether: (1) the

defendants have substantially complied with all outstand-

ing court orders; (2) the identified vestiges of segrega-

tion have been eliminated to the maximum extent prac-

tical; and (3) the defendants have demonstrated suffi-

a

12

cient good faith to indicate that further court oversight

is not needed to assure vindication of constitutional

rights. After a school district has satisfied this stand-

ard, court jurisdiction should end, injunctive orders

should cease, and full operating autenomy should be

restored to the school system.

We recommend this standard because we believe that

there must come a point when each school desegregation

case ends. We believe that this is the fair implication of

the Brown IT decision, in which district courts were au-

thorized to retain jurisdiction only during a “| period of |

transition to . .. a racially nondiscriminatory school

system.” Brown v. Board of Education, 349 U.S. 294,

301 (1955). This also was the meaning of the Court’s

extended discussion in Swann of the limits on federal

equitable power:

At some point, these school authorities and others

like them should have achieved full compliance with

this Court’s decision in Brown J. The systems would

then be “unitary” in the sense required by our deci-

sions in Green and Alewvander.

It does not follow that the communities served

by such systems will remain demographically stable,

for in a growing mobile society, few will do so.

Neither school authorities nor district courts are

constitutionally required to make year-by-year ad-

justments of the racial composition of student bodies

once the affirmative duty to desegregate has been

accomplished and racial discrimination through offi-

cial action is eliminated from the system. This does

not mean that the federal courts are without power

to deal with future problems; but in the absence of a

showing that either the school authorities or some

other agency of the State has deliberately attempved

to fix or alter demographic patterns to affect the

racial composition of the schools, further interven-

tion by a district court should not be necessary.

402 U.S. at 31-32. Accord, Pasadena City Board of kd-

veation «. Spangler, 427 U.S. 424, 435-37 (1976).

13

Full control ultimately should be returned to local

school authorities because, as the Court also has recog-

nized, “local autonomy of school districts is a vital na-

tional tradition.” Dayton Board of Education v. Brink-

man, 433 U.S. 406, 410 (1977). Accord, Milliken +.

Bradley, 418 U.S. 717, 741-42 (1974) (“[nJo single

tradition in public education is more deeply rooted than

local control over the operation of schools’). Amici rec-

ognize, however, that school districts found to have vio-

lated the Constitution must meet meaningful standards

to earn the trust that they can once again operate the

schools consistent with the Constitution and free from

continuing court orders.

The first prong of the three-part test that we recom-

mend is whether the defendant school district has sub-

stantially complied with all outstanding court orders.

This standard is intended to ensure that the remedial

plans developed by the parties and the court have been

implemented. It also provides school districts with clear

guidance on what their first priority should be in seeking

to attain unitary status.

But compliance alone should not become the basis for

a determination of unitary status. This Court has held

repeatedly that effectiveness in eliminating vestiges of

discrimination is the standard to be employed in judging

school desegregation remedies.* This constitutes the see-

ond prong. The Court held early on in Raney v. Board

of Education, 391 U.S. 443 (1968), that a release of

jurisdiction upon a showing merely that a school district

adopted a remedial plan would “ordinarily be inconsist-

ent with the responsibility imposed on the district courts

by Brown II.” 391 U.S. at 449 (citation omitted). It

still is true today that effectiveness in implementation

must he considered as well, because a plan initially ap-

proved and faithfully followed may turn out to need ad-

*See Columbus Board of Education v. Peniel:. 443 U.S. 449

(1979) ; Keyes v. School District No. 1, 4123 U.S. 189 (1973): Swann

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

14

justment or enhancement before it is successful in re-

moving the lingering vestiges of segregation. It is not

realistic to expect the parties in desegregation cases or

the district courts to arrive in the first instance at a

totally sufficient plan.

As this Court directed in Davis v. Board of School

Commissioners, 402 U.S. 33 (1971), school districts un-

der court order are bound to achieve “the greatest pos-

sible degree of actual desegregation, taking into account

the practicalities of the situation.” 402 U.S. at 37 ‘em-

phasis added). Similarly, Swiff and its progeny teach

that a decree may be modified if necessary to achieve its

original purpose. See United States v. United Shoe Ma-

chinery Corp., 391 U.S. 244, 248 (1968). Accordingly,

vestiges that have been found causally related to unconsti-

tutional segregation should be required to be removed.

These vestiges can include segregative student or faculty

assignments, disproportionate racial representation in

extracurricular activities, or other discriminatory place-

ment and teaching practices; segregated housing pat-

terns; unequal facilities; or inadequate educational pro-

grams. See Milliken v. Bradley, 433 U.S. 267 (1977);

Sivann, 402 U.S. at 18: Green, 391 U.S. 430.

The parties also should have the opportunity to address

the good faith of the defendants. Therefore, the third

prong is the district court’s test of the defendants’ good

faith: a district court should find a secheol district uni-

tary only if it is confident that the school district de-

fendant is aware of its constitutional obligations and will

continue to fulfill them.’ Where a court has reason to

believe that racial animus taints local decision-making, it

may be appropriate to retain jurisdiction temporarily

after the other two standards have been met. This third

prong is an unexceptional application of traditiona!

equitable principles.

"See Morgan v. Nueci, 851 F.2d 313, 321 (1st Cir. 1987

15

The standards that we propose lend clarity and give

direction, but are intentionally quite general. This rec-

ognizes the different circumstances existing in schooi dis-

tricts throughout the country and permits the district

courts to fashion their orders to reflect the unique condi-

tions of each school district.

Finally, the parties should have the opportunity to

probe all three of these issues at a full and fair eviden-

tiary hearing. If a hearing is requested, the school dis-

trict should have an opportunity to present its evidence,

and the plaintiffs and other parties should have an op-

portunity to present evidence in support or opposition.

A holding by the Court now that there will be an op-

portunity for a hearing serves several positive purposes.

First, it avoids the risk to all parties in these cases that

a trial court will make pronouncements about unitary

status issues without hearing from all concerned parties

and weighing all of the relevant evidence. Second, it en-

courages full and faithful constitutional compliance by

school districts because they will be on notice that their

conduct may be aired in a public forum, Finally, it pro-

tects the due process interests of the plaintiffs, who are

entitled to a hearing if they so request before their rights

in the injunction are terminated.

CONCLUSION

Thirty-six years after Brown we remain firmly com-

mitted to its principles and believe this Court should not

back away from them. There may be no single issue that

has been as dominant a concern for AASA, NASSP and

the Council in recent years as how to provide equal edu-

cational opportunity for minority students. Amici rec-

ognize that this challenge requires that we not limit our

concerns for students to those matters comfortably fall-

ing within the confines of our classrooms. We know as

educators that where our schools are built on the legacy

of segregation, remedial measures must be directed spe-

cificaliy at the imbalanced racial compositions of schools,

16

faculty and staff, the reduced expectations that adults

often bring to their contacts with minority children, and

the vesource deprivations that were the product of schools

—or even school districts—being viewed as fit only for

minority children. This Court has so taught for decades

in its cases from Brown v. Board of Education, 347 U.S.

483 (1954), through Milliken v. Bradley, 433 U.S. 267

(1977). The approach outlined in this brief will best

help us to fulfill the promise of Brown and to regain full

control of our schools when the vestiges of segregation

have been eliminated.

For the foregoing reasons, this Court should hold that

mandatory injunctive relief in schoo! desegregation cases

ends where it has been established, after an opportunity

for an evidentiary hearing, that the school district de-

fendant has substantially complied with all outstanding

court orders, eliminated the vestiges of segregation to the

maximum extent practical, and exhibited a good-faith

commitment to protecting the constitutional rights of its

students.

Respectfully submitted,

DAVID S. TATEL *

WALTER A. SMITH, JR.

PATRICIA A. BRANNAN

JOHN W. BorkKOWsKI

PATRICIA M. WRIGHT

HoGAN & HARTSON

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5787

Counsel for

The Couneil of the Great City

Schools, the American

Association of School

Administrators and the

National Association of

Secondary School Principals

* Counsel of Record