# Amicus Curiae Brief — Board of Ed. of Oklahoma City Public Schools v. Dowell > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0700%3A16 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1991 - **Citation:** 498 U.S. 237 ## Text 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 3nnxi 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0700%3A16. Public record. Not legal advice.