Memorandum — Samayoa v. Chicago Board of Education

(5 —

6) Supreme Court, U.S.

FEB 22 1988

In The JOSEPH F. SPANIOL, JR.

CLERK

Supteme Court of the United States

October Germ, 1987

MARCO SAMAYOA, et al.,

Petitioners,

US.

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’ MEMORANDUM

ON MOOTNESS

RoBert C. HowarpD

122 South Michigan Avenue

Suite 1850

~ Chicago, IL 60603

(312) 427-3600

Counsel for Respondents

Of Counsel:

Hua R. McComss, JR. RoBERT M. WEISSBOURD

Mayer, Brown & PLATT CLAIRE T. HARTFIELD

190 So. LaSalle St. HARTUNIAN, FUTTERMAN &

Suite 3900 HOWARD, CHTD.

Chicago, IL 60603 122 So. Michigan Ave.

Suite 1850

Chicago, IL 60603

Pandick Technologies, Inc., Chicago @ (312) 236-0200 ‘ a’

oOo \

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......s.. .

STATEMENT OF THE CASE RELATING TO

MOOTNES S se . . ° . * ° ° e + .

A. Facts Concerning Whether The

Issues Presented Remain Live

B. Facts Concerning Whether

Plaintiffs Have A Legally

Cognizable Interest...

REASONS WHY PLAINTIFFS’ CLAIM IS MOOT

I. The issues Presented In The

Fourth Amended Complaint

Are No Longer Live .....

II. The Parties No Longer Have A

Legally Cognizable Interest

In The Outcome ..... -

CONCLUSION . ... +. « « «

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15

18

TAB S

Board o ho issioners of th

Ci ° ndi olis v. Jacobs,

420 U.S. 228 Ceeeee 4 es ee

DeFunis v. Odegaard, 416 U.S. 312

(1974) > > . > . . >. — a 7 J . =

Iron Arrow Hono oci v. Heckler,

464 0.8. 67 (3088) « 4 25s 5

Pasadena Cit fe) ° ation v.

Spangler, 427 U.S. 424 (1976).

Princeton University v. Schmid, 455

U.S. 100 (1982) s «4 ‘Sr See

United States v. Munsingwear, Inc.,

340 U.8. 36 (30 2 eee

United States t Treasu

.. Se U.S. ’

106 S.Ct. 2683 (1986) .....

United States e Commission v.

Geraghty, 445 U.S. 388 (1980) .

Weinstein v. Brasta ar, 423 U.S. 147

8970) c¢ «a . ee ee eee

16

16

12

11

19

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

NO. 86-1503

MARCO SAMAYOA, ET AL.,

Petitioners,

vs.

CHICAGO BOARD OF EDUCATION, ET AL.,

Respondents.

RESPONDENTS’ MEMORANDUM ON MOOTNESS

Respondents, the Board of

Education of the City of Chicago, et. al

(the “Board"), at the request of the

Court, submit this supplemental memoran-

dum on the issue of mootness.

STATEMENT OF THE CASE RELATING TO MOOTNESS

This case is before the Court

on plaintiffs’ appeal of the dismissal of

Count I of the Fourth Amended Complaint

("Complaint"), the only Count which has

not previously been finally disposed.

Count I alleges claims based on constitu-

tional and statutory rights of freedom of

association, due process and equal

protection.

The Board has’ previously

addressed the mootness of these claims as

part of its Brief in Opposition to the

Petition for a Writ of Certiorari. This

Memorandum provides limited further

discussion of the two principal circun-

stances which make this claim moot: (1)

the Complaint concerns a one-time aber-

ration which cannot be repeated, and (2)

plaintiffs are no longer eligible for the

program to which they seek admission

because they are now older than pre-

kindergarten age.

A. Facts Concerning Whether The Issues

Presented Remain Live

The factual allegations of the

Complaint (accepted as true for these

_ purposes) relate solely to the disposi-

tion of plaintiffs’ applications for

admission to Disney School under the

system in effect in 1981. (R.App.

374a) .1 That admissions process ended

when, in 1982, a new systemwide enroll-

ment plan was developed as part of the

Board’s Desegregation Plan. (R.App.

526a).

Student selection at Disney for

school year 1981-82 was conducted

lfhe 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 for a Writ of

Certiorari.

pursuant to a 1973 Board Report. (R.App.

507a). That report set a racial/ethnic

- enrollment composition for the year 1973,

based on the racial, ethnic and socio-

economic composition of the limited

Disney attendance area on the north side

of Chicago. The 1973 report called for

annual revisions for future classes to

reflect changes over time in the area’s

racial/ethnic composition. (R.App.

507a).

Under this admissions systen,

plaintiffs applied for admission to the

pre-kindergarten program at Disney for

school year 1981-82. (R.App. 377a). For

reasons not of record, the enrollment

composition set in 1973 had not been

annually revised and was still in effect

in 1981. (R.App. 519a). Plaintiffs

received letters of acceptance based on

the 1973 enrollment proportions.

However, in June 1981, the

Board reviewed the 1973 enrollment

proportions and revised them to conform

with the 1981 racial/ethnic composition

of the Disney attendance area. (R.App.

520a-521a). Plaintiffs were notified of

the 1981 revisions, the reasons for then,

and that as a result of the revisions

they would not, in fact, be admitted.

(R.App. 422a).

Plaintiffs were also informed

that they might be eligible for admission

to Disney in following years. (R.App.

422a). However, the record contains no

evidence, and the Complaint does not

allege, that plaintiffs made any further

attempts to apply for admission to

Disney.

The only subject of the

Complaint is this 1981 admissions system.

(R.App. 374a). Plaintiffs complain about

the determination of enrollment composi-

tion based on local demographics, the

revision, and the procedures which

resulted in acceptance letters but not

admission. (R.App. 374a).

In 1982, after these events

which are the subject of the Complaint

had occurred, the 1981 admissions system

Was replaced. (R.App. 526a). The Board

developed and began implementing a

Systemwide Desegregation Plan which

included designation and operation of

magnet schools, including Disney.

(R.App. 487a, 500a, 526a). In compliance

with the Desegregation Plan, the Board

replaced the 1981 admissions system

particular to Disney with the systemwide

enrollment guidelines applicable to all

magnet schools. (R.App. 526a). Under

the Desegregation Plan, the enrollment

guidelines establish a range (rather than

a fixed percentage), are not subject to

annual revision, and are not directly

tied to the racial/ethnic composition of

any local attendance area, the school

system, or any other population (instead

reflecting several Desegregation Plan

considerations). (R.App. 506a). of

course the implementation procedures are

different, and have not repeated the

acceptance but non-admission phenomenon. 2

2Even under the 1981 system, the

events complained of were a one-time

aberration. The post-acceptance, pre

The magnet school enrollment system has

not been changed in the six years since

1982 and will continue unchanged as part

of the Desegregation Plan. (R.App. 528a-

543a).

B. Facts Concerning Whether Plaintiffs

Have A Legally Cognizable Interest

The allegations of the Con-

plaint relate solely to plaintiffs’

exclusion in 1981 from Disney’s pre-

kindergarten program. At that time,

plaintiffs were all allegedly 3 and 4

admission change in Disney’s’ racial/

ethnic proportions was a unique

occurrence. It did not happen in any

other year, even under the 1981 system

mss gy happen under the

egregation Plan presently i

(R.App. 519a). . ee

years old.3 (R.App. 376a). Thus, they

are now 10 and 11 years old, not eligibte

for pre-kindergarten. Further, there is

no allegation that they would still be

attending Disney now if they had been

admitted to the pre-kindergarten progran.

REASONS N : 0

Mootness occurs under either of

two circumstances: (1) the issues

presented are no longer "live"; or (2)

the parties lack a legally cognizable

interest in the outcome. United States

Pa ommission v. Gera , 445 U.S.

3aAlthough the Fourth Amended

Complaint alleges that the action is

being brought on behalf of a class, there

never have been any proceedings to have a

class certified. In fact, plaintiffs’

counsel has conceded that this case is

not a class action and that he represents

plaintiffs only in their individual

capacities. (Pet. App. 40)

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388, 396 (1980). Both these circum-

stances are present here.

I.

The Issues Presented In The Fourth

Amended Complaint Are No Longer Live

Plaintiffs’ exclusion from

Disney’s pre-kindergarten program in 1981

was an aberration due to a one-time,

post-acceptance, pre-enrollment revision

of the school’s racial/ethnic propor-

tioys. That one-time change took place

under an admissions system which was

Olly superceded in 1982 by the

Desegregation Plan. Thus, the alleged

offending 1981 Board conduct permanently

ceased long ago: plaintiffs’ claim is no

longer live.

A case becomes moot where the

allegedly illegal action ceases, includ-

-ll1l-

ing particularly where the guidelines

under which the illegal action is

authorized have been repealed or modified

so that the offending provisions are no

longer effective. United States

Department of Treasury v. Galiato,

U.S. __, 106 S.Ct. 2683, 2686 (1986)

(case moot where statute amended to

eradicate offending provision); Princeton

University v. Schmid, 455 U.S. 100, 103

(1982) (case moot where university

regulation amended to eliminate the

provision upon which the claim was

based) .4 This is true even where

4tmhere is a limited exception to

this rule where the action is "capable of

repetition, yet evading review."

However, to come within this exception

(1) the challenged action must have been

too short in duration to be fully

litigated prior to cessation and (2)

there must be some reasonable expectation

that the same complaining party will be

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cessation is voluntary, if there is no

reasonable expectation that the alleged

wrong will be repeated. Iron Arrow Honor

Socie Vv. Heckler, 464 U.S. 67, 72

(1983).

Here, plaintiffs complain about

the details of implementation of a 1981

admissions system which was replaced in

1982. The new enrollment plan, as part

of the Desegregation Plan, entirely

differs in its development and justifica-

tion, in its requirements, and, conse-

quently, in its implementation. It does

not have the implementation details

present in the 1981 admissions process

subjected to the same action again.

Weinstein v. Bradford, 423 U.S. 147, 149

(1975). As is clear from the discussion

herein, plaintiffs’ claim does not

Satisfy these criteria.

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about which plaintiffs complain. ° For

example, the new plan includes enrollment

ranges applicable uniformly to all magnet

schools, which are not directly tied to

racial/ethnic composition of population

and are not subject to change from year

to year.

This Desegregation Plan was

developed in response to extensive

findings by the United States (R.App.

26a, 43a) which culminated in the filing

of its complaint against the Board

alleging systemwide segregation. (R.App.

136a). The required enrollment plan

which superceded the 1981 system at

Disney has been in effect without change

for six years, implemented throughout the

Splaintiffs did not later apply, and

so were not subjected to, the new

enrollment plan.

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system, pursuant to a binding Consent

Decree (R.App. 150a), under’ court

supervision.

Plaintiffs complain about the

peculiar details of a one-time adjustment

to the admissions system at Disney in

1981 that occurred after acceptance but

before admission, that affected only a

few students during a single year, and

that has not and cannot recur.

Plaintiffs have admitted that had they

not been accepted they would have no

clain. (Petition 24) Since the admis-

sion process about which plaintiffs

complain has been permanently replaced by

an entirely different system under which

post-acceptance, pre-admission changes

cannot occur (and to which plaintiffs

have not subjected themselves), the

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allegedly offensive conduct has ceased,

and plaintiffs’ claim is moot.

Il.

The Parties No Longer Have A Legally

Cognizable Interest In The Outcome

Plaintiffs, who were 3 and 4

years old in 1981, are now ages 10 and

ai. They cbviously no longer wish to

attend the pre-school programs. ‘Thus,

since they are no longer eligible for

admission to Disney’s pre-kindergarten

program, they lack a legally cognizable

interest in the outcome of their claims.

A claim is moot where plain-

tiffs can no longer be affected by the

actions complained of, Pasadena _ City

Board of Education v. Spangler, 427 U.S.

424 (1976) (appeal in school. desegrega-

tion case moot as to the students who had

-16-

graduated from the school system and

their parents); B : S fe)

Commissioners of the City of Indianapolis

Vv. Jacobs, 420 U.S. 128 (1975) (suit

challenging school board regulations moot

as to students who had graduated from the

school system); DeFunis v. Odegaard, 416

U.S. 312 (1974) (case moot as to student

who was in his last semester of law

school and would never again go through

the law school admissions process). With

regard to suits brought as class actions,

if the named plaintiffs can no longer be

affected, a claim is moot unless the

Class has been certified. Jacobs, 420

U.S. at 129.

In this case, plaintiffs’

Complaint only raises issues about the

1981 admissions process for pre-

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kindergarten classes at Disney, and

plaintiffs can no longer be affected by

that process. The factual allegations do

not address the effect of the new

enrollment plan on current applicants to

pre-kindergarten or the effect of the

1981 program on applicants to any grade

above pre-kindergarten. The Complaint is

“void of any attempt to represent these

concerns.

Finally, the Complaint’s class

allegations do not save this case from

mootness. The original Complaint in this

case was filed in 1980, reaching its

final form as the Fourth Amended

Complaint in 1982. Never in the past

seven years have plaintiffs even

attempted to have a class certified.

Thus, under Jacobs, since the individual

-18=-

plaintiffs no longer have an interest,

the claim is moot. Further, plaintiffs’

counsel has affirmatively stated that

this action is being brought only on

behalf of the plaintiffs in their

individual capacities. (Pet.App. at 40).

Since these individuals no

longer have a legally cognizable interest

in, and can no longer be affected by, the

outcome of this litigation, their claim

is moot.

CONCLUSION

For the foregoing reasons,

plaintiffs’ claim is moot. In keeping

with the established practice of this

Court in disposing of civil cases which

have become moot, the opinion of the

Court of Appeals for the Seventh Circuit

should be vacated and this case should be

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remanded to the District Court with a

direction to dismiss. See United States

v. Munsingwear, Inc., 340 U.S. 36, 39

(1950).

Respectfully submitted,

HUGH R. MCCOMBS, JR. ROBERT C. HOWARD

190 So. LaSalle St. 122 So. Michigan

Suite 3900 Suite 1850

Chicago, IL 60603 Chicago, IL 60603

(312) 782-0600 (312) 427-3600

Counsel for Respondents

Of Counsel:

MAYER, BROWN & PLATT ROBERT M. WEISSBOURD

190 So. LaSalle St. CLAIRE T. HARTFIELD

Suite 3900 HARTUNIAN, FUTTERMAN

Chicago, IL 60603 & HOWARD, CHTD.

(312) 782-0600 122 So. Michigan Ave.

Suite 1850

Chicago, IL 60603

(312) 427-3600

nie