Opposition Brief — Samayoa v. Chicago Board of Education

: : . ) Supreme Court, U.S.

8 6 1509 FILED

NO. MAY 1 1987

IN THE JOSEPH F. SPANIOL, JR.

SUPREME COURT OF THE UNITED STATESLERK

OCTOBER TERM, 1986

MARCO SAMAYOA, et al.,

Petitioners,

vs.

CHICAGO BOARD OF EDUCATION, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

RESPONDENTS' BRIEF IN OPPOSITION

ROBERT C. HOWARD

55 E. Monroe Street

Suite 4005

Chicago, IL 60603

(312) 372-6475

Counsel for Respondents

Of Counsel:

HUGH R. MCCOMBS, JR. ROBERT M. WEISSBOURD

DENISE L. JARRARD CLAIRE T. HARTFIELD

ISHAM, LINCOLN & HARTUNIAN, FUTTERMAN

BEALE & HOWARD, CHTD.

Three First National 55 E. Monroe St.

Plaza ; Suite 4005

Suite 5200 Chicago, IL 60603

Chicago, IL 60602

|

PAGE

TABLE a ee a Sl a wing Ge eee & iii

STATEMENT OF THE CC Ee ee ee 2

REASONS FOR DENYING THE WRIT.......... 15

I. THE ISSUES STATED IN THE

PETITION WITH RESPECT TO THE

3 IMPLEMENTATION OF PRE-DESEG-

REGATION PLAN ENROLLMENT PROPOR-

TIONS AT DISNEY ARE INAPPROPRIATE

et SS se 15

A. Plaintiffs’ Arguments Are

Based On Erroneous State-

ee 17

B. Plaintiffs’ Claim Is Moot... 20

2. Plaintiffs’ Claim Is Fact

Bound And Presents No

Important Legal Issues...... 24

II. ALI, REMAINING ISSUES RAISED IN

THE PETITION CONCERNING THE

DESEGREGATION PLAN ARE ALSO

INAPPROPRIATE FOR REVIEW......... 26

Plaintiffs Lack Standing

To Challenge Any Aspect

Of The Desegregation Plan...

Plaintiffs’ Fourth Amended

Complaint Was Correctly

Di ami seat. «<+06 Maes su x

1.

The District Court And

The Seventh Circuit

Had No Jurisdiction To

Adjudicate Plaintiffs’

Claims Concerning The

Desegregation Plan.....

Dismissal of Plaintiffs’

Claims Directed At The

Desegregation Plan Was

Correct Under The

Rationale Of Johnson v.

Board Of Education Of

III. IN THE CONTEXT OF ITS SYSTEM-WIDE

DESEGREGATION PLAN, THE BOARD’S

USE OF UNIFORM ENROLLMENT RANGES

AT DISNEY AND ALL OTHER MAGNET

SCHOOLS WAS CONSTITUTIONALLY

PERMISSIBLE... .ccccccccccccccccce

ee eet Ph reer te ee

APPENDIX

PAGE

28

32

33

40

47

56

ecccecce ----(Separately Bound)

2 aman Eller eee

-iii-

TABLE OF AUTHORITIES

CASES PAGE

Adams v. United States, 620

F.2d 1277 (8th Cir. 1980)......42

Arthur v. Nyquist, 473 F.Supp.

830 (W.D.N.Y. 1979) esccceescce- 42

Black and White Children

Of the Pontiac School System

v. School District of the

City of Pontiac, 464 F.2d

oo ee er eS 5) rr be

Boa issi s

v. Jacobs, 420 U.S. 128,

95 &,. Ce. 849 (1975) ccccccccccee dl, 22

Booker v. Special School

District No. 1, 585 F.2d

347 (8th Cir. 1978),

cert. denied, 443 U.S.

915, 99 S.Ct. 3106 (1979)......51

Brookins v. South Bend

Co j fe) fe) ls

95 F.R.D. 407 (N.D.

Ind. 1982), aff’d, 710

F.2d 394 (7th Cir. 1983),

cert. denied, 466 U.S.

926, 104 S.Ct. 1707 (1984).....37, 38

PAGE

Bur Vv (2)

pee Te oe . Cit :

Indianapolis, 437 F.2d 1143

(7th Cir. 1971) ree eee eee eee La 38

Davis v. Board of Education of

Little Rock, 674 F.2d 684

(8th Cir. 1982), cert. denied,

459 U.S. 881, 103 S.Ct.

L7G TA oo 6 iis ee rs 40 0 0 1 42

Davis v. Board of School

Commissioners of Mobile,

393 F.2d 690 (5th Cir.

ROE ee rr er ks oe SR

Davis v. East Baton Rouge

’

721 F.2d 1425 (5th Cir.

19B3) cccsccccscccesccccccsccces D3

DeFunis v. Odegaard, 416

U.8. 332, 94 S.C. 17064

C197E) cccvrccecccvesscceseccccecddy 29

Fisher v. Tucson School Dist.

No. One, 625 F.2d 834

(9th Cir. 1980) .-ccccccccceceee 30

Hayes v. McMillan, 418

F.Supp. 116 (N.D. Tex.

1976), aff’d, 560 F.2d

ei. Se ere .37

-V=

PAGE

teil 1 of Educati

of Grand Rapids, 508 F.2d

779 (6th Cis , 1974) eeeeeee#ee#eee?#e¢ ~42

Hines v. Rapides Parish

School Board, 479 F.2d

FOR . COG Gas BOTS bon hin 655438, 36, 3D

Johnson v. Board of Education,

567 F.Supp. 290 (N.D. Ill.

ROOD) a 6 Hh Shc sc EEE ce Lehi ec 000038, 40,

passim

Keyes v. h istri °

One, 521 F.2d 465 (10th

Cir. 1975), cert. denied,

423 U.S. 1066, 96 .

te oy. RO ee ne > me > |

731 F.2d 1294 (8th Cir.

1984), cert. denied, 469

U.S. 816, 105 S.Ct. 82

(1968) 5 6x cd theseuswes eo ksk.n 88

McDaniel _v. Barresi, 402 U.S.

39, 91 S.Ct. 1287 (1971).......50

Mi Vv

, 667 F.2d 946

(10th cir. ee ee

——— ee

PAGE i

i

Morgan v. Kerrigan, 530 F.2d |

401 (1st Cir. 1976),

cert. denied, 426 U.S.

935, 96 S.Ct. 2648 (1977)......53

National Association v.

Board of Public Education,

497 F.Supp. 471 (N.D.

Pa. 1980) ccccccccccccccccccccceds

North Carolina State Board

of Education v. Swann, 402

U.S. 43, 91 S.Ct. 1284

(1971) wcccccccccccvscccccescee ec DO

Norwalk Core v. Norwalk

Board of Education, 298

F.Supp. 213 (D. Conn. 1969),

aff’d, 423 F.2d 121 (2d Cir.

REPOS 0.6:6:66464064440rES CROs Riwae

ti ’

427 U.S. 424, 96 S.Ct.

2697 (1976) .cccddacdtveccccocccceshs 22

Safir v. Dole, 718 F.2d 475

(D.C. Cir. 1983),

cert. denied, 467 U.S. 1206,

104 S.Ct. 2389 (1984) ....0.02-.29

-vii-

PAGE

Spangler v. Pasadena City

Board of Education, 552 F.2d

eo el we a ey

W —

Board of Education, 402

U.S. 1, 91 8.Ct. 1267

(1971) ~cccccccccccccccccce *eeeee 50, 52, 54,

55

Tasby v. Wright, 585 F.Supp

453 (N.D. Tex. 1984),

aff’d, 771 F.2d 849

(5th Cir. 19SS) cccccccccccccee c42Z

Tasby v. Wright, 542 F.Supp.

134 (N.D. Tex. 1982),

remanded, Tasby v. Wright,

713 F.2d 90 (5th Cir.

RAS! Sat ee > |

t, 520 F.Supp.

683 (N.D. Tex. 1981)...........53

United States v. Board of

Ed ¥ F ti nit ;

Chicago, 554 F.Supp. 912

(N.D. ; oe 19S3S) wccccccces *eee#e#es > em ase

-viii-

PAGE

Unite ississippi,

622 F.Supp. 622 (S.D.

Miss. 1985) cer en Oren ob 6666660 0 6 Oe

United States Department of

Treasure v. Galiato

v cco

U.S. , 106 S.Ct. 2683

a e*eee#e 20

Warth v. Seldin, 422 U.S.

490, 95 S.Ct. 2197 (1975)...... 29, 30

STATUTES

20 United States Code Section

DPE NAthehachees eee eebancdasaica cast

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

No. 86-1503

MARCO SAMAYOA, ET AL.,

Petitioners,

CHICAGO BOARD OF EDUCATION, ET AL.,

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Respondents the Board of Education of

the City of Chicago, et al., respectfully

request that this Court deny the Petition

for a Writ of Certiorari seeking review of

the decision of the United States Court of

Appeals for the Seventh Circuit in this

case. That opinion is reported at 798 F:2d

1046, and is set forth in the Appendix to

the Petition.

Statement of the Case

Disney School (”Disney”) was one of the

first magnet schools established in the City

of Chicago. (R.App. la).1 It was opened

pursuant to an agreement with the United

States in 1968, which donated the land for

Disney to the Board of Education of the City

of Chicago ("Board”). The school operated

according to this agreement, selecting by

lottery a student body reflecting the

racial, ethnic and socioeconomic composition

1 The following abbreviations for

citations are used in this brief; ”R.App.”

refers to Respondents’ Appendix; ”Pet.App.”

refers to Petitioners’ Appendix; ”Petition”

refers to the plaintiffs’ Petition fora

Writ of Certiorari.

ee ase

of a designated area located on the north

side of Chicago which was the Disney atten-

dance zone. (R.App. 507a).

Plaintiffs’ claim, in its present

incarnation, is an attack on that admission

system as it operated in 1981. It has

evolved into its present form, as set forth

in the Fourth Amended Complaint, through a

series of unsuccessful arguments by plain-

tiffs. With the failure of each argument,

new complaints containing slightly modified

allegations have been spawned.

This case was initially brought in

1980 on behalf of black and white students

in the Disney attendance area. The first

Complaint alleged various wrongs in matters

of school administration, such as layoffs of

bus aides, which equally affected all stu-

dents of all races. The admissions system

at Disney was not mentioned or attacked.

(R.App. 185a). On August 31, 1981, this

original Complaint was dismissed. (R.App.

208a).

Following this dismissal, plaintiffs

filed on September 11, 1981 their First

Amended Complaint. This complaint chal-

lenged the racial/ethnic proportions and

admissions policy as implemented at Disney

for school year 1981-82, and was based on

facts which form the underpinnings of all

_subsequent complaints in this case. (R.App.

236a).

Student selection at Disney for school

year 1981-82 was by lottery that was imple-

mented pursuant to a 1973 Board Report which

pertained solely to selection for attendance

at Disney. (R.App. 507a). That Report

implemented the agreement between the Board

and the United States, set a racial/ethnic

enrollment composition for the year 1973,

and called for annual revisions in incoming

classes at Disney to reflect changes in the

racial/ethnic composition of the Disney

attendance zone. (R.App. 507a). However,

for reasons not of record, the enrollment

composition at Disney set in 1973 was. not

annually revised and continued unchanged

until 1981. (R.App. 519a).

In June 1981, the Board reviewed the

racial/ethnic enrollment composition for

Disney and found that the racial/ethnic

composition in its attendance zone varied

significantly from the 1973 proportions

still in effect. (R.App. 520a). As a

result, a revision in the racial/ethnic

composition at Disney was recommended to

conform with the 1981 racial/ethnic composi-

tion of the Disney attendance zone. (R.App.

520a-521a). Subsequently, racial/ethnic

adjustments were made in the composition of

the 1981 incoming pre-kindergarten class at

Disney to reflect the demographic changes

which had occurred in the Disney attendance

zone between 1973 and 1981.

However, prior to implementation of the

revised racial/ethnic enrollment composition

at Disney for school year 1981-82, accep-

tance letters based upon the 1973 enrollment

proportions had been sent to students who

had applied for September 1981 classes.

(R.App. 420a). Plaintiffs, all 3 and 4

|

years of age in 1981, had received letters

of acceptance for the pre-kindergarten

program under the 1973 racial/ethnic propor-

tions. After the 1981 revisions were made

they were not, however, admitted to Disney.

They were notified of this fact and the

reasons for it. (R.App. 422a). Plaintiffs

were informed that they could reapply for

admission to Disney in following years.

(R.App. 422a). But the record contains no

evidence that plaintiffs made any subsequent

attempts to apply for admission at Disney.

The sole basis for the challenge of the

Disney admissions system in the First

Amended Complaint was the fact that plain-

tiffs had initially received acceptance

letters to attend Disney. (R.App. 236a).

Plaintiffs did not challenge the lottery

admissions system at Disney per se or even

the 1981 enrollment compositions per se.

Plaintiffs claimed that they had a right to

attend Disney because of the acceptance

letters they had received prior to the 1981

changes in enrollment composition. They

challenged only the specific eee

acceptance, pre-enrollment modification

which resulted in their exclusion from

Disney in 1981. (R.App. 268a).

Analyzing the new claims in plaintiffs’

complaint, the district court concluded

that, even if the allegations were true, the

only available remedy would be a due process

hearing from the Board. The court informed

plaintiffs that unless the admission system

itself were attacked, they could obtain no

other relief. (R.App. 268a-270a).

On October 21, 1981, plaintiffs amended

their complaint a second time and challenged

the 1981 racial/ethnic enrollment composi-

tion at Disney.2 (R.App. 278a). Again,

plaintiffs stated that the Disney admissions

system and enrollment composition per se

were not objectionable. (R.App. 364a).

However, after a series of unsuccessful

motions for preliminary injunction, plain-

tiffs were given leave to amend their con-

plaint to challenge the 1981 system per se.

(R.App. 369a). On February 2, 1982, the

2 A Third Amended Complaint was

suhsequently filed to show that the 5 and 6

yea. old plaintiffs, who had been included

in the First Amended Complaint, had been

admitted to Disney and no _ longer had any

legally cognizable interest in the lawsuit.

Accordingly, they were, at that time, re-

moved as plaintiffs. (R.App. 313a). No

other relevant changes appeared in this

pleading.

-10-

Fourth Amended Complaint, which is presently

before this Court, was filed. (R.App.

374a).

In 1982, after the events forming the

basis of plaintiffs’ various complaints had

occurred, the Board developed and began

implementing a systemwide Desegregation

Plan. The Plan was adopted following exten-

sive findings of unlawful segregation in the

Chicago Public Schools, first by the United

States Department of Health, Education and

Welfare (R.App. 5a), and then by the Depart-

ment of Education’s Office for Civil Rights.

(R.App. 26a, 43a). These findings

culminated in the filing of a complaint by

the United States against the Board on

September 24, 1980 alleging unlawful

systemwide segregation. (R.App. 136a). On

the same date, the United States and the

-11-

Board entered into a Consent Decree (R.App.

150a), pursuant to which the Board agreed to

develop, adopt and implement a

constitutional Desegregation Plan.

The Desegregation Plan consists of two

major components: a student assignment plan

under which students voluntarily transfer

from their neighborhood schools to other

schools within the system; and the educa-

tional components designed to compensate for

the effects of past segregation in those

schools which remain racially identifiable.

e + sv qd

City of Chicago, 554 F.Supp. 912, 916, 926

(W.D. Ill. 1983). The numerous programs

comprising this Plan were approved by the

-12-

district court as "clearly... constitution-

ally acceptable”. Id. at 928. The district

court retained jurisdiction over the Board’s

implementation of the Plan, and will do so

until the Board has remedied the past segre-

gation in the Chicago Public Schools. Id.

at 3928.

The Board has successfully implemented

the Plan systemwide for the past five years.

However, because it is subject to the con-

tinuing jurisdiction of the district court,

each year the Board must conduct reviews and

submit reports to the Justice Department and

the court detailing the results of these

programs, to ensure further desegregation of

the Chicago Public Schools. Id. at 918.

As part of the student assignment plan,

the Board has designated 45 schools as

-13=-

magnet schools. These schools offer special

educational programs, are intended to draw

students from all areas of Chicago, and are

designed to result in cooperative and volun-

tary desegregation. (R.App. 487a). The

Plan requires that all magnet schools main-

tain a racial/ethnic composition of between

15-35% white, without excluding students

already enrolled. (R.App. 506a). As a

magnet school, Disney’s student

racial/ethnic composition must now fall

within these uniform guidelines.

For school year 1982-83, in compliance

with its Desegregation Plan, the Board

replaced the admissions system at Disney

which was in effect in 1981 when plaintiffs

applied for admission. At that time, the

-14=-

—EEEEEE

Board instituted at Disney the Plan’s uni-

form magnet school racial/ethnic composition

requirements. (R.App. 525a). This new

magnet school enrollment system has not been

changed since 1982, and will continue as

part of the Desegregation Plan. (R.App.

528a, 531a).

Plaintiffs’ Fourth Amended Complaint

was dismissed on January 28, 1985.

(Pet.App. A37). That dismissal was

affirmed by a Seventh Circuit panel

(Pet.App. Al), and plaintiffs’ motion for

rehearing en banc was denied. (Pet.App.

Al6). Plaintiffs then petitioned this Court

for review of that dismissal.?3

3 Except for an intervention at-

tempt, the Board was represented throughout

the prior proceedings in this case by dif-

ferent counsel than in the desegregation

case.

-15-

ASON e) G

b's

The Issues Stated In The Petition With

Respect To The Implementation Of

Pre-Desegregation Plan Enrollment

Proportions At Disney Are

Inappropriate For Review

Though seeking. review of the Seventh

Circuit’s affirmance of the dismissal of

their Fourth Amended Complaint, in their

Petition for Certiorari plaintiffs have

relied on factual assertions which are not

found in that complaint and go far beyond

its face. The Fourth Amended Complaint

alleges facts consisting solely of the

events surrounding plaintiffs’ efforts to

be admitted to Disney in 1981. However, as

each of plaintiffs’ arguments in the lower

courts reached a dead end, plaintiffs groped

for new, unpleaded theories to keep their

-16-

case alive. They continue to do so. The

present result is a convoluted, internally

inconsistent Petition which makes reference

to the Desegregation Plan and various other

“facts” outside the Fourth Amended Com-

plaint, which are irrelevant to the issue on

this appeal from the judgment dismissing

that complaint. However, when these extra-

neous layers are recognized and peeled away,

it is obvious that plaintiffs have no valid

clain.

Simply stated, plaintiffs’ claim is

moot. Plaintiffs’ 1981 exclusion from

Disney’s pre-kindergarten program, based

upon the post-acceptance, pre-enrollment

revision of Disney’s racial/ethnic enroll-

ment proportions, was a one-time aberration

which will not be repeated. And if not

-17-

moot, plaintiffs’ claim is bound by facts

peculiar to the circumstances existing in

1981, and does not present any important

legal issue which would merit this Court’s

consideration.

A. Plaintiffs’ Arguments Are Based On

Erroneous _Statements __of __ Fact

Plaintiffs’ arguments obscure the

single most important fact in this case:

the admissions system which affected plain-

tiffs was a pre-Desegregation Plan system

unique to Disney. It was superseded by the

Desegregation Plan in 1982. The 1981

racial/ethnic proportions plaintiffs com-

plain about were not implemented as part of

the Desegregation Plan, but pursuant to a

1973 Board Report relating solely to admis-

sions for Disney. This 1981 admissions

system has long since been replaced by the

-18-

Desegregation Plan’s comprehensive magnet

school admissions system. According to the

Plan, racial/ethnic composition is only

reviewed in terms of whites and minorities

(without any subgrouping). It is also

governed by a racial/ethnic percentage range

which is not subject to revision and which

is applied, without excluding students

already enrolled, uniformly to all magnet

schools, including Disney.

Plaintiffs’ exclusion from Disney’s

pre-kindergarten program in 1981 was thus an

aberration due to a one-time, post-accep-

tance, pre-enrollment revision of the

school’s racial/ethnic composition pursuant

to the pre-Desegregation Plan admissions

system. It is simply not true, as plain-

tiffs have argued in their Petition, that

et te nian a OL, a, CO OL OE

-19-

plaintiffs were affected by an annual revi-

sion of a Desegregation Plan quota. To the

contrary, they were affected solely by the

original 1973 Board Report and, although

that Report called for annual revisions, it

resulted only ina 1981 change in the en-

rollment composition at Disney. That was

the first, last, and only revision ever made

to the enrollment proportions initially

established by the 1973 Board Report.

In 1982, the admissions system at

Disney was made to conform with the Desegre-

gation Plan. The Plan requires that all

magnet schools comply with one set of

racial/ethnic enrollment proportions.

Because the Plan requires that all magnet

schools meet a racial/ethnic attendance

range which has_ been unchanged since the

-20-

Plan’s inception, and because Disney has

complied with this requirement since 1982

and has made no revisions in attendance

ranges since then, the situation faced by

plaintiffs in 1981 will never be repeated.

Their claim is thus limited to a single

occurrence and is based upon a long obsolete

Board Report.

B. Plaintiffs’ Claim Is Moot

Stripped of its incorrect arguments and

viewed in the context of the facts alleged

in the Fourth Amended Complaint, plaintiffs’

claim is clearly moot. A case is moot where

the allegedly illegal action ceases, United

States Department of Treasury v. Galiato,

a * * , 106 S.Ct. 2683, 2686 (1986)

(case moot where statute amended to eradi-

cate offending provision). This is true in

the case of voluntary cessation where there

is no reasonable expectation that the al-

leged wrong will be repeated. e is v.

Odegaard, 416 U.S. 312, 318, 94 S.Ct. 1704,

1706-07 (1974).

A claim is also moot where plaintiffs

can no longer be affected by the actions

complained of. S a °

Education v. Spangler, 427 U.S. 424, 430, 96

S.Ct. 2697, 2702 (1976) (appeal in school

desegregation case moot as to students who

had graduated and as to their parents);

Board ° issione

Indianapolis v. Jacobs, 420 U.S. 128, 129,

95 S.Ct. 849, 850 (1975) (suit challenging

school board regulations moot as to students

who had graduated). This is true in suits

-22- —

brought as class actions unless a class has

been certified. Id.4

Here, the 1981 admissions system

was superseded in 1982 by the Desegregation

Plan enrollment ranges applicable uniformly

to all magnet schools. The 1981 change in

racial/ethnic proportions at Disney affected

only a few students during a single year.

The original magnet program under which this

one-time change occurred was experimental

and the first magnet program in the Chicago

Public Schools. Its replacement, the Deseg-

regation Plan, was designed to be, and has

4 Moreover, although plaintiffs’

complaints allege that they were brought as

class actions, they were never certified as

class actions. More importantly, plain-

tiffs’ counsel has conceded that this case

is not a class action, and that he repre-

sents plaintiffs only in their individual

capacities. (Pet.App. 40).

-23-

been, a lasting program which is being

implemented throughout the system. Given

that the racial/ethnic ranges set by the

Desegregation Plan and applied at Disney are

not subject to revision but will remain

unchanged, any 1981 “practice” of excluding

previously admitted students cannot be

repeated in the future. On this ground,

plaintiffs’ claim is moot.

Moreover, plaintiffs’ claim is moot

because they can no longer be affected by

the 1981 admissions process for pre-kinder-

garten classes at Disney. This is the

only purportedly illegal conduct asserted in

the Fourth Amended Complaint. According to

this Complaint, all plaintiffs were

allegedly 3 and 4 years old in 1981. Thus,

they are now 9 and 10 years old, and are

clearly ineligible for admission to Disney’s

pre-kindergarten program under any set of

circumstances.

fl Plaintiffs’ Claim Is Fact

Bound And Presents No

important Legal Issues __

Because plaintiffs’ challenge to the

1981 admissions process in their Fourth

Amended Complaint fails to raise legal

issues of sufficient importance to merit

consideration by this Court, the Petition

should be denied. As plaintiffs concede in

their Petition, they are not attacking the

Disney admissions system per se. (Pet. 16).

Rather, plaintiffs’ entire clain, as

pleaded, is based on a purported one-time

error in implementation of Disney’s 1973

admissions system, which is no longer in

effect, resulting in plaintiffs being

-25-

accepted but not admitted to Disney’s pre-

kindergarten progran.

In sum, this claim is unique to these

few plaintiffs. It is based on an aberra-

tion concerning implementation of a super-

seded selection process at Disney which can

not recur or affect other members of the

public. Quite simply, plaintiffs’ only

claim in the Fourth Amended Complaint is

bound by facts peculiar to them at a single

place and time and does not raise issues of

sufficient importance for consideration by

this Court.

-26-

Il.

All Remaining Issues Raised In The Petition

Concerning The Desegregation Plan

Are Also Inappropriate For Review ____

The several courts which have consid-

ered plaintiffs’ claims since implementa-

tion of the Desegregation Plan have wrongly

assumed that the claims also encompass the

magnet school enrollment ranges imposed by ©

the Plan. The perplexing question is how

these courts ever reached such a conclusion,

and how this case ever reached this Court

under that theory.> The Fourth Amended

5S Plaintiffs’ assertions concerning

the Plan or its enrollment ranges appear to

have first been expressed orally and by

motion in November 1983 (see and compare

R.App. 443a and 482a), and in their November

1983 Motion to Intervene in the independent

proceeding concerning the constitutionality

and implementation of the Plan. (R.App.

439a, 447a). This occurred long after the

(Footnote continued on next page)

=-27=

Complaint remains focused upon 1981 pre-Plan

enrollment proportions. It asserts only

that in 1981 plaintiffs applied for, were

admitted to, and were then excluded from

Disney by operation of these superseded

enrollment proportions. (R.App. 374a).

Nothing in this complaint or the Petition

provides a legal basis for recasting this

moribund claim concerning displaced, Disney

specific enrollment proportions into a

constitutional attack upon the Board’s

Desegregation Plan and its use of magnet

(Footnote continued from previous page)

Fourth Amended Complaint was filed in Febru-

ary 1982, and long after the Plan had been

approved in January 1983. Based upon plain-

tiffs’ present complaint, the issue of Plan

enrollment controls is not even properly

before this Court and should not be consid-

ered by it.

-28-

school enrollment controls generally or

their use at Disney in particular. ®

A. Plaintiffs Lack Standing To

Challenge Any Aspect Of The

Desegregation Plan

Nothing in the Fourth Amended Conm-

plaint, however liberally construed, alleges

or suggests that plaintiffs have the requi-

site standing to challenge the Board’s

Desegregation Plan and its use of enrollment

6 As noted before, plaintiffs have

never amended their Fourth Amended Con-

plaint. That complaint focuses upon the

1981 pre-Plan proportions. Plaintiffs have

made belated and post-complaint assertions

about the Plan and the Plan’s magnet schools

enrollment ranges solely in motions or

briefs. Thus, they managed to confuse the

district court and the Court of Appeals into

believing that the complaint, and their

case, involved in some manner the Board’s

1982 and ongoing Desegregation Plan. Like a

compass error in navigation, this misguiding

has caused the case to arrive in this Court

under a theory never pleaded, and not

legally cognizable.

-29-

ranges at Disney or its other magnet schools

as. a technique for desegregating the Chicago

public schools.” As the Court has recog-

nized, plaintiffs must assert facts demon-

strating that they have been personally

harmed by the practices which they are

challenging. It is not sufficient that

these practices may have or will in the

future harm any class of which plaintiffs

are a member or purport to represent. Warth

7 Standing is, of course, a consti-

tutional limitation upon the jurisdiction of

all federal courts. Since it is the predi-

cate for the power of a court to act, it

must exist at all stages of a proceeding.

It may be raised at any time. See e.g.,

DeFunis v. Odegaard, 416 U.S. 312, 319, 94

S.Ct. 1704, 1707 (1974); Safir v. Dole, 718

P.26:. 478, . :604:..40.C: .-¢h2. 1983), cert.

denied, 467 U.S. 1206, 104 S.Ct. 2389

(1984). Hence, it is not relevant that

neither the district court nor the Court of

Appeals considered this issue, nor that the

Board raises it for the first time in this

Court.

-30-

v. Seldin, 422 U.S. 490, 498-508, 95 S.Ct.

2197, 2205-2210 (1975); see also, Fisher v.

Tucson School Dist. No. One, 625 F.2d 834,

837 (9th Cir. 1980) (parents of school

children had no standing to challenge “Phase

aa” of desegregation plan where there was

no allegation that their children would be

affected by that phase).

Plaintiffs here have never asserted

that they applied or reapplied for admission

to Disney or any other magnet school after

1981. Thus their claims, or alleged harms,

date from prior to the time that the uniform

Desegregation Plan enrollment ranges at all

magnet schools superseded the Disney-

specific racial/ethnic proportions which are

the subject of the Fourth Amended Complaint.

-3l1l-

Nor do plaintiffs allege that they were

excluded from Disney, or any other magnet

school or Chicago public school, because of

the enrollment ranges established by the

Board’s Desegregation Plan. Moreover,

plaintiffs do not claim that they sustained

any harm whatsoever after the Plan was

implemented, or as a result of its implemen-

tation. In fact, it is not alleged that

these plaintiffs have even resided in the

Chicago public school district since school

year 1981-82, and after the Plan was imple-

mented. (R.App. 374a).

Plaintiffs plead no facts showing that

they were affected by the Desegregation Plan

or any practices related to it. Absent

allegations that they were injured by the

=-32-

enrollment ranges established by the Deseg-

regation Plan in 1982, and first applied in

school year 1982-83, plaintiffs lack the

standing necessary to challenge the Board’s

use of the uniform magnet school enrollment -

ranges generally since that date. They also

lack standing to challenge their use at

Disney in particular.

B. Plaintiffs’ Fourth Amended

Complaint Was Correctly

Dismissed

Any claims in the Fourth Amended Com-

plaint relating to the constitutionality of

the Board’s Desegregation Plan were properly

dismissed for two reasons. First, the

district court and the Seventh Circuit

lacked subject matter jurisdiction to con-

sider, in this case, any issues concerning

the Desegregation Plan. Those questions

heel

-33-

were already before a different court with

continuing jurisdiction over the Plan’s

implementation. Second, even if the exer-

cise of jurisdiction over plaintiffs’

collateral action was correct, the district

court and the Court of Appeals rightly

concluded that the plaintiffs’ claims should

be dismissed under the rationale of Johnson

v. Board of Education, 567 F.Supp. 290 (N.D.

Ill. 1983) (*Johnson III”).

1. The District Court and The

Seventh Circuit Had No

Jurisdiction To Adjudicate

Plaintiffs’ Claims Concerning

The Desegregation Plan

Since 1980 and to the present, continu-

ing jurisdiction over the development,

approval, and implementation of the Board’s

Desegregation Plan has resided in a district

court other than the court presiding over

-34-

this case. 8 By challenging the constitu-

tionality of the Board’s Plan, or particular

aspects of it in their Petition, plaintiffs

boldly ignore the judgments and continuing

jurisdiction of that different court. Any

judgment entered in plaintiffs’ favor would

have overruled or interfered with the juris-

diction of the court retaining control over

the Plan, and seriously disrupted the imple-

mentation of the Plan itself.

It is well established that a separate

suit seeking to attack a desegregation plan

8 The Board does not wish to belabor

the point, but it is an important one. AS

stated before, the Fourth Amended

Complaint’s allegations are based solely

upon a pre-Desegregation Plan admissions

systen. Plaintiffs’ arguments relating to

the Desegregation Plan or any aspect of it

are raised only in their November 1983

Motion to Intervene, their briefs in support

of that motion, their appellate briefs and

their Petition to this Court.

-35-

committed to the jurisdiction of a different

court should be dismissed. Courts have

consistently recognized that one school

district cannot be subjected to competing

desegregation plans or imperatives, and that

administration over any desegregation plan

must be centralized in a single court. They

have also held that the court with prior and

continuing jurisdiction over the desegrega-

tion plan is the only proper forum with the

power to entertain objections to the plan.

In one leading case, Hines v. ides

Parish School Board, 479 F.2d 762 (5th Cir.

1973), the court upheld the lower court’s

dismissal of an independent class action

suit which challenged pupil assignments made

in compliance with the desegregation orders

-36-

of a separate court. According to that

court

In resolving this appeal, this

court must attempt to set out a method

which allows parent groups’ to present

their complaints about the school

system which results from a desegrega-

tion order without fostering a multi-

plicity of new lawsuits over the same

complicated and emotional issues which

have already once been fought out in an

all too lengthy court battle.

kkkkkkkee

[Tjhe proper course of parental groups

seeking to question current deficien-

cies in the implementation of desegre-

gation orders. is for the group to

petition the district court to allow it

to intervene in the prior action.

479 F.2d at 765.

To avoid contradictory results, and the

implicit invitation to critics of a desegre-

gation plan to seek a new court to undermine

all or part of that plan, courts have re-

peatedly followed this principle. They have

-37=

dismissed independent suits and required

plaintiffs to intervene in the main desegre-

gation case. i Vv fe) ducatio

of Topeka, 667 F.2d 946 (10th Cir. 1982);

Burns v a fe) choo ommissioner

City of Indianapolis, 437 F.2d 1143 (7th

Cir. 1971); a nd i Children of the

Pontiac School System v. School District of

the City of Pontiac, 464 F.2d 1030 (6th Cir.

1972); Spangler v. Pasadena City Board of

Education, 552 F.2d 1326 (9th Cir. 1977);

Hayes _v. McMillan, 418 F.Supp. 116 (N.D.

Tex. 1976), aff’d, 560 F.2d 204 (5th Cir.

1977); Brookins vv. South Bend Community

School Corp., 95 F.R.D. 407 (N.D. Ind.

1982), e££°4, 710 F.2d 394 (7th Cir. 1983),

cert. denied, 466 U.S. 926, 104 S.Ct. 1707

-38-

(1984) (treating separate lawsuit challeng-

ing aspects of desegregation plan as motion

to intervene).

In this case, neither the district

court nor the Court of Appeals had the power

to entertain plaintiffs’ independent, col-

lateral suit purporting to attack the

Board’s Plan. While plaintiffs did move to

intervene before Judge Shadur in the main

desegregation case (R.App. 439a), that

motion was denied (R.App. 485a). Plain-

tiffs’ sole recourse at that point was’ to

appeal the denial of intervention. Burns v.

Board of School Commissioners of Ine ianapo-

lis, 437 ¥:2@ 23343, 2344 (7th Cie: 2972) 3

Hines Vv. Rapides Parish School Board, 479

F.2d 762, 765-766 (5th Cir. 1973).

<7 api ial

oe

-39-

—

“After their Motion to Intervene was

denied, the district court should have

dismissed those separate and collateral

claims in which plaintiffs purported to

attack the Desegregation Plan, and forced

them to appeal the denial of intervention in

the main desegregation case. Concomitantly,

the Seventh Circuit erred in reviewing

plaintiffs’ collateral attack on the Plan,

and not dismissing this case for lack of

subject matter jurisdiction.

Since this Court similarly lacks juris-

diction over those aspects of the Fourth

Amended Complaint challenging the Plan

itself, the Petition should be denied on

that ground alone.

-40-

ae Dismissal of Plaintiffs’ Claims

Directed At The Desegregation

Plan Was Correct Under The

Rationale Of Johnson v. Board Of

- a >¢ The cit sf Chi

This case was also dismissed by the

district court on the ground that plain-

tiffs’ challenge to the present enrollment

system at Disney constituted a piecemeal

collateral attack on one component of the

Desegregation Plan which was barred by the

reasoning of Johnson III. In affirming that

dismissal, the Seventh Circuit also adopted

the rationale in Johnson III.

Contrary to plaintiffs’ contentions in

their Petition, no court has held that

plaintiffs were collaterally estopped from

attacking the enrollment system at Disney

established by the Desegregation Plan.

Johnson III is not about collateral estoppel

ee

-41=-

at all. Rather, Johnson III is a careful,

thoughtful decision concerning the nature of

desegregation plans and how they work. As

Judge Shadur recognized in Johnson III, an

effective and constitutionally adequate

desegregation plan is always comprised of

numerous interrelated race conscious

techniques. As an integrated whole, these

techniques are intended to achieve the

purpose of systemwide desegregation. It is

not constitutionally significant that one

technique at one school, viewed alone,

involves a racial classification so long as

the plan, as a whole, does not burden imper-

missibly any particular racial group. ?

9 This proposition is so well estab-

lished that it is axiomatic in considering

the constitutionality of a desegregation

plan. Implicit in this analysis is that a

(Footnote continued on next page)

-42-

Because the Board’s desegregation plan,

as a whole, had previously been found

“clearly... constitutionally acceptable”,

554 F.Supp. at 928, the court in Johnson III

dismissed a claim, much like that of these

plaintiffs, attacking controlled enrollment

policies at two schools only. It held that,

in the context of a constitutionally

(Footnote continued from previous page)

plan cannot be parsed to a technique-by-

technique, school-by-school, or student-by-

student analysis to determine constitutional

acceptability. See e.g., Keyes v. School

District No. One, 521 F.2d 465, 479 (10th

Cir. 1975), cert. denied, 423 U.S. 1066, 96

S.Ct. 806 (1976); Higgins v. Board of

Education of Grand Rapids, 508 F.2d 779, 794

(6th Cir. 1974); Davis v. Board of Educa-

tion of Little Rock, 674 F.2d 684, 687 (8th

Cir. 1982), cert. denied, 459 U.S. 881, 103

S.ct. 178 (1982); Adams v. United States,

620 F.2d 1277, 1296 (8th Cir. 1980) ;

Tasby v. Wright, 585 F.Supp. 453, 455 (N.D.

Tex. 1984), aff’d, 771 F.2d 849 (5th Cir.

1985); Arthur v. Nyquist, 473 F.Supp. 830,

840 (W.D. N.Y. 1979). Viewed microcosmical-

ly, few if any plans could ever pass such

constitutional muster.

ee

-43-

approved plan, a challenge to one facet of

the plan could not state an equal protection

violation.

[Tjhis Court’s approval of the Plan in

the Opinion and the Judgment must

preclude attacks on separate facets of

the Plan, taken in isolation. Approval

of the Plan as a whole implicates

rejection of the notion each and every

element of the Plan must pass strict

constitutional scrutiny ina vacuun,

isolated from the other aspects of the

Plan. That is because the whole really

is more than the sum of its parts: The

whole Plan desegregates the _ school

system by techniques that individually

Classify by race and that individually

(that is, if a particular technique

were the only ingredient in the game

plan) might be impermissible under the

Constitution.

567 F.Supp. at 296 (emphasis in original).

The court in Johnson thus’ concluded

that challenges to individual aspects of the

plan alone constituted “collateral attacks”

upon a plan that had already been found

constitutional. Id. Its reasoning was

-44=-

straightforward and sensible: since only

from the perspective of the whole plan can a

court determine whether one of a multitude

of techniques is constitutional and contrib-

utes to desegregating an entire school

system, individualized attacks must neces-

sarily implicate a challenge to the entire

plan, all of its techniques and its overall

distribution of racial burdens.

Given the systemwide nature of desegre-

gation plans and their various techniques

and components, no other approach could be

constitutionally proper or feasible because

most components involve racial classifica-

tions. Extracting for analysis a_ single

plan component means nothing constitution-

ally. Where a desegregation plan as a whole

is constitutionally acceptable, a particular

-45-

technique operating in combination with

other techniques presumptively contributes

to achieving the purpose of systemwide

desegregation.

This conclusion makes good sense and is

good law. If constitutional violations

could be shown because of racial classifica-

tions on a technique-by-technique, or

school-by-school basis, a constitutionally

permissible desegregation plan would be

constuntly subject to court challenge and

possible erosion. Thus, individuals like

these plaintiffs could overturn by piecemeal

attack at a later date the whole of a con-

stitutionally acceptable desegregation plan

by selectively attacking each component.

In this case, plaintiffs’ assertions

concerning magnet school enrollment’ ranges

-46-

established by the Desegregation Plan at

Disney and other schools are nothing more

than a collateral attack on an isolated

component of a constitutionally acceptable

desegregation plan. Stripped from the Plan

and viewed in isolation, whether a particu-

lar race conscious remedy contributes to the

purpose of the Plan as whole cannot be

determined. As in Johnson III, because the

attack in this case is piecemeal and does

not consider the whole Plan, no cause of

action exists. Any other result would

cripple effective implementation of even the

most unintrusive desegregation plan.

:

:

b |

-47-

IIl.

In The Context of Its System-Wide Desegrega-

tion Plan, The Board’s Use of Uniform

Enrollment Ranges'At Disney And All Other

Magnet Schools Was Constitutionally

Permissible

Since 1982, the Board has’ been imple-

menting a systemwide desegregation plan to

eliminate the wide-spread effects of past

segregation in its schools. Plaintiffs have

asserted in their Petition that they and all

other Chicago public school students are

entitled to admission at any magnet school,

including Disney, heseetine to a race neu-

tral selection process. This argument

ignores that magnet schools are well ac-

cepted desegregation techniques and that

magnet school enrollment controls are an

often used and essential device to ensure

-48-

that such schools become and remain inte-

grated. The propriety of student enrollment

controls at magnet schools is’ so well set-

tled and in accord with this Court’s prior

desegregation decisions that it does not

merit this Court’s review.

As presented to and approved! by the

district court, the Desegregation Plan

incorporated the use of several interrelated

student assignment techniques, including

10 The district court’s approval of

the Plan was not appealed by the United

States nor any other person or organization.

In the approval process, the district court

considered not only the Board’s position,

but also considered thoroughly the conten-

tions of the United States and several amici

curiae organizations representing diverse

interests. 554 F.Supp. at 915 and 915 n.3.

This unappealed approval reflects the sound-

ness of the Plan and the court’s decision

and includes, of course, the magnet school

provisions in the Board’s Plan. Id. at

917.

‘ Ce i ae yt

-49-

magnet schools with enrollment ranges, to

maximize stably integrated education in the

heavily minority Chicago public schools, and

to attract white children to predominantly

minority schools in minority neighborhoods.

In approving the Plan, the district court

necessarily concluded that, in this case,

the Board’s magnet school enrollment ranges

were a legitimate and constitutional method

of achieving desegregation. 554 F.Supp. at

928.

For the Board, use of a magnet school

component is essential to the success of its

Desegregation Plan. Its magnet schools are

intended to stimulate voluntary, desegregat-

ive student transfers. (R.App. 487a).

Magnet school components are, moreover, a

well-recognized technique for desegregating

-50-

a public school system. Liddell v. State Of

Missouri, 731 F.2d 1294, 1310-11 (8th Cir.

1984), cert. denied, 469 U.S. 816, 105

S.Ct. 82 (1984) (stating that magnet tech-

niques are used in “at least eighteen

cities” and noting ten desegregation deci-

sions approving the use of magnet tech-

niques); 20 U.S.C. § 1713(f).

Legal justification for the use of

magnet schools with attendant enrollment

ranges, such as the Board’s, is clearly

found in Swann v. Charlotte-Mecklenberg

Board of Education, 402 U.S. 1, 27-28, 91

S.Ct. 1267, 1281-82 (1971), its companion

cases!1 and their progeny.12 Swann and its

11 North Carolina State Board of

Education v. Swann, 402 U.S. 43, 45-46, 91

S.Ct. 1284, 1286 (1971); McDaniel _ vv.

Barresi, 402 U.S. 39, 40-41, 91 S.Ct. 1287,

(Footnote continued or next page)

-51-

progeny teach that inthe context of a

systemwide desegregation plan, no student

has a right to attend any particular school

or to be admitted to a school absent consid-

eration of the school’s racial composition

and whether that admission will advance or

(Footnote continued from previous page)

1288-89 (1971) (applying Swann principles in

the context at a voluntary desegregation

plan).

12 Lower court decisions are uniforn-

ly in accord with this Supreme Court prece-

dent. See e.g., Keyes v. School Dist. No.

One,” Sai F.2d: 465, 476 (€i0th Cir. 1975)

cert. pola 423 U.S. 1066, 98 S.Ct. 806

(1976) ; a Vv. a oa °

Education, 298 F.Supp. 213, 223-225 (D.

Conn. 1969), aff’d, 423 F.2d 121, 124 (2d

Cit. 1970) ; iation v. Board

of Public Education, 497 F.Supp. 471, 477-

478, (N.D. Pa. 1980); Vv oa °

School Commissioners of Mobile, 393 F.2d

690, 694 and 694 n.5 (5th Cir. 1968); Tasby

v. Wright, 542 F.Supp. 134, 136-138 (N.D.

Tex. 1982), remanded, Tasby v. Wright, 713

F.2a@ S36, °97 €3th Cir. 1963)? Eookar yv.

Special School District No. 1, 585 F.2d 347,

354 (8th Cir. 1978), cert. denied, 443 U. S.

915, 99 S.Ct. 3106 (1979).

=-52<

te

retard desegregation of the school and of

the system as a whole. Because the Board is

implementing a court approved, systemwide

desegregation plan, the preference of these

plaintiffs to attend Disney or any other

school with a particular racial balance, or

to be seletted or assigned without regard to

race, must yield to the overall purpose of

desegregation.

Several courts have also recognized

that Swann principles apply to magnet

schools. They have held that enrollment

ranges, like those imposed by the Board’s

plan, are necessary to ensure that

“voluntary” transfers to magnet schools do

not create a segregated magnet school or a

dual system of elite schools. The First

Circuit, for example, specifically approved

-53=-

the use of racial quotas in admissions to

magnet schools.

Fundamentally, the magnet schools, in

order to prove of value to the desegre-

gation plan, had to be carefully cir-

cumscribed [by enrollment quotas] to

ensure that they would not serve as a

haven for those seeking to attend a

school predominantly composed of those

of their own race.

Morgan v. Kerrigan, 530 F.2d 401, 423 (1st

Cir. 1976), cert. denied, 426 U.S. 935, 96

S.Ct. 2648 (1977)13.

These decisions thus’ state the

obvious. No student has a right to attend a

magnet school of “special quality.” Rather,

a student has a right only to attend a

13 vis v. Eas , u

Parish School District, 721 F.2d 1425, 1440

(Sth Cir. 1983) (following Morgan Ve.

Kerrigan); United States v. Mississippi,

622 F.Supp. 622, 628 (S.D. Miss. 1985);

Tasby v. Wright, 520 F.Supp. 683, 745 (N.D.

Tex. 1981).

-54-

school of adequate quality. When magnet

schools are used as a part of a systemwide

plan to encourage voluntary desegregation,

the purpose of desegregation, rather than

providing a specialized curriculum, is the

paramount objective. Swann principles

concerning student assignments apply equally

to all schools ina desegregating school

district, including magnet schools. They

must do so to ensure that magnet schools

work as effective desegregation devices.

Under Swann, no student in the context of a

desegregation plan has a right to attend a

magnet school based on race neutral

criteria. To accept plaintiffs’ contrary

proposition would require this Court to

overrule Swann, and exempt from

desegregation principles one of the most

effective means to engender cooperative

-55-

desegregation in public schools.

There is nothing novel, peculiar, or

discriminatory about the Board’s magnet

school enrollment ranges or their use at

Disney. The standard enrollment ranges

established at Disney and the other magnet

schools by the Board’s desegregation plan

are clearly in accord with the types of

ranges uniformly approved by the courts in

other school desegregation cases. Given

this court’s established precedent in Swann,

and consistent lower court approval of

enrollment ranges at magnet schools, plain-

tiffs’ contentions concerning a “right” to

attend Disney, without regard to race, state

no unsettled issues which merit this Court’s

review.

-56-

CONCLUSION

For the foregoing reasons, the Petition

for a Writ of Certiorari ought to be de-

nied.

Respectfully submitted,

HUGH R. MCCOMBS, JR. ROBERT C. HOWARD

Three First National 55 E. Monroe Street

Plaza Suite 4005

Chicago, IL 60602 Chicago, IL 60603

(312) 558-7500 (312) 372-6475

Counsel for Respondents

Of Counsel:

DENISE L. JARRARD ROBERT M. WEISSBOURD

ISHAM, LINCOLN & CLAIRE T. HARTFIELD

BEALE HARTUNIAN, FUTTERMAN

Three First National & HOWARD CHTD.

Plaza 55 East Monroe St.

Suite 5200 Suite 4005

Chicago, IL 60602 Chicago, IL 60603