Opposition Brief — Board of Education v. Brown

— | FILED

No. mel O, ; ay 24 1380

— OSE SeEMOL. ue

CLERK

IN THE os

Supreme Court of the United State

OCTOBER TERM, 1989

>

BOARD OF EDUCATION OF TOPEKA,

SHAWNEE COUNTY, KANSAS,

Petitioner,

OLIVER BROWN, ef a/.,

Respondents.

ON PETITION FOR WRIT OF CERTiORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

Charles Scott, Jr. Christopher A. Hansen

106 W. 11th Street, Suite 1800 (Counsel of Record)

Kansas City, Missouri 64105 John A. Powell

(816) 474-3722 American Civil Liberties Union

Foundation

Joseph Johnson 132 West 43 Street

112 S.W. 8th Street

Topeka, Kansas 66603

(913) 232-6933

New York, New York 10036

(212) 944-9800

Richard Jones

Jones & Jones

1503 S.E. Quincy

Topeka, Kansas 66612

(913) 235-3961

TABLE OF CONTENTS

Page

py ° ee BF oy 8g || een ee ill

Sy os aa a a0 ea oe ae We l

Sipe Gr tee CASS i ee a es l

I oe ig oe 4-4 be RC Pos 2

A eer a Sas 3

ey IIIS 056 Gea ke oa Wee ee 3

Optional attendance zones................ 4

PU esa ene oe ed Rie ee ae 4

a ee eer ee 4

og 8 a ree 5

gp a err eer 5

REASONS FOR DENYING THE WRIT ....... 10

I. THE DECISION BELOW REPRE-

SENTS A STRAIGHTFORWARD

APPLICATION OF WELL-SETTLED

PRINCIPLES AND THEREFORE

RAISES NO NEW ISSUES OF LAW .... 10

A. The Legal Standard Applied By

The Court Below Was Derived

Verbatim From This Court’s

BE ooo ts rea bee ews 10

B. The Legal Standards An-

nounced By This Court Were

Correctly Applied By The Court

ar ee aera re ee 13

Il. THE PETITION IN THIS CASE CAN

BE DENIED WITHOUT AWAITING

A DECISION IN BOARD OF EDUCA-

TION v. DOWELL, NO. 89-1080,

WHICH RAISES ENTIRELY DIF-

FESENS LECJAL See 66sec k se swes 15

COPIWLEARAINS oc 6) G5 ee 17

i

TABLE OF AUTHORITIES

Page

Cases

Adams v. School Dist. No. 5,

444 F.2d 99 (4th Cir.),

re mee, ee , PAZ CIDT1) ww ee we ee 11

Anizu v. Waco Ind. School Dist.,

eT in 1]

Brown v. Board of Education,

ES |) 2

Brown v. Board of Education,

kk se ee ee ee Oe 1,9

Brown v. Board of Education,

rr 1, 10

Columbus Bd. of Ed. v. Penick,

re 6, 10

Davis v. Bd. of School Comm.,

rr 10, 13

Davis v. East Baton Rouge

Parish School Bad.,

Bee ae Bee Gee Gt. TFBS) 0 ww ee ee 1]

Dayton Bad. of Ed. v. Brinkman,

Te 8, 13, 14

Dowell v. Board of Ed.,

890 F.2d 1483 (10th Cir. 1989),

cert. granted, No. 89-1080 (Mar. 26, 1990) ..... 14, 15

Evans v. Buchanan,

| ee | 2g) rr 11

ill

Flax v. Potts,

ee FG kk a 6

Green v. School Bad.,

Pe Gt MD gc 6s 6 ces ween ee ys 13, 14

Harrington v. Colquitt Cty. Bd. of Ed.,

460 F.2d 193 (Sth Cir.),

Core. Gane, Sir GI FES CTRIE) ows hee ee eee 11

Jacksonville Branch NAACP v.

Duval Cty. School Bad.,

883 F.2d 945 (11th Cir. 1989) .............0.... 12

Kelley v. Metropolitan Cty. Bd. of Ed.,

463 F.2d 732 (6th Cir.),

cont. demted, GOP U5. 1001 (197Z) . 2. wc ee ees 11

Keyes v. School Dist. No. 1,

$21 F.2d 465 (10th Cir. 1975),

cor. dented, 425 US. 1006 (1970) .. 2... ek ee ee ees 11

Keyes v. School Dist.,

6 i Oe EOE nk 6 a bee Cu SO 6, 7, 13, 14

Liddell v. Caldwell,

Pee Wee Pe Ce Ge ESE) gece ence cceases 1]

Liddell v. Caldwell,

Tae Wee De CU GE. EPPO) nc ew ch eee ease 1]

Medley v. School Bd. of City of Danville,

482 F.2d 1061 (4th Cir. 1973),

OM ee, Se UB TEFE CIP) oo oo eis 1]

Morgan v. Nucci,

cg ee OR Te ae. 2) Rr eo ere ae eee ae

Northcross v. Bd. of Ed.,

ee ame BET e Cee ly BPP ED 5 che oS oo She 1]

iV

Pitts v. Freeman,

887 F.2d 1438 (11th Cir. 1989),

petition for cert. filed,

POD. tae Ce. bey SP ha hoe ed a ee 10

Price v. Denison Ind. School Dist.,

ae Bb Bo ae +. re ree re 11

Stell v. Savannah-Chatham Cty. Bd. of Ed.,

Soe Wd ee CO Ge SOD 0 6A a ie eee de GEO 11

Swann v. Charlotte-Mecklenburg Bd. of Ed.,

Ge Soak ERUPTED oon cnc hb hens cane 6, 7, 10, 13

Tasby v. Estes,

$17 F.2d 92 (Sth Cir.),

curt, Goren, 4S TID. FFP CIGTOS | owe oe ee es 1]

U.S. v. Scotland Neck City Bd. of Ed.,

GBF Gia GR CUPTRD 6 ook + 4 Oe eee 10

United States v. Pittman,

ewe eB Fe kt Af) rrr ee 1]

United States v. South Park Ind. School Dist.,

$66 F.2d 1221 (Sth Cir.),

cert. denied, 439 U.S. 1007 (1978) ............... 11

United States v. Texas Educ. Agency,

S67 FBG GAG (50 Cit, FETE) ol i oko ie wae e en 11

Valley v. Rapides School Bd.,

702 F.2d 1221 (Sth Cir.)

cert. denied, 464 U.S. 914 (1983) ............... 1]

Statutes and Regulations

34 CF.R. §100.3(b)(3) .... 0c cece eee eee eee. 8

CER 000)... 26655. ee S

INTRODUCTION

This is an historic case. It was in this case, in 1954,

that this Court declared state-imposed school segregation

to be unconstitutional. Brown v. Board of Education, 347

U.S. 483 (1954). The following year, the Topeka Board

of Education was ordered to desegregate its schools with

"all deliberate specu." Brown v. Board of Education, 349

U.S. 294, 301 (1955).

Thirty-five years later, in 1989, the court of appeals

held that the Topeka School Board had still not com-

pleted its task of desegregating its schools. This decision

did not break new ground, either legally or historically.

Rather, it represented a straightforward application of

the repeated and unanimous holdings of this Court to

the factual findings of the district court. Moreover, the

question of whether a school system that has never had a

court-imposed desegregation plan has sufficiently deseg-

regated on its own is, as the court of appeals noted, a

"rare" one today. App. 36b. Respondents respectfully

submit that the application of settled principles to idio-

syncratic facts hardly merits review by this Court.

STATEMENT OF THE CASE

Prior to 1954, Kansas law permitted the state’s

larger cities to maintain segregated elementary schools.

App. 2a, 4b. Topeka chose to exercise that option and

provided segregated elementary schools, busing black

children from all over the city to four all-black schools.

App. 2a, 4b. In 1951, this case was filed, challenging

that practice as unconstituiional. App. 2a, 4b.

Both in anticipation of and in response to this

Court’s decision, the Topeka School Board began to

allow some black children to attend previously all-white

schools. App. 9a, Sb. By 1956, each school had its own

geographic attendance boundary. App. 9a, 9b. At the

end of this process, three of the four previously all-black

schools "remained all- or virtually all-black" and two

other schools "became more than 20% black in a school

district with a black elementary student population of

less than 10%." App. 9b. No faculty was desegregated

and indeed, "in the years immediately following the

Supreme Court decisions the district discriminated in the

hiring and placement of minority staff." App. 40a. The

district court, in 1955, found that “complete desegre-

gation has not been accomplished ...." App. Sa; Brown

v. Board of Education, 139 F.Supp. 468, 470 (Kansas

195S5).' In 1989, the court wrote: "One thing is abun-

dantly clear: Creating neighborhood schools in 1954 did

not integrate the Topeka schools." App. 42b n.49 (em-

phasis in original).

This case was reopened in 1979 by new named

plaintiffs’ who asserted that Topeka had never com-

pleted the process of desegregating its schools. App. Sa,

6b-7b. Trial was held in October 1986. App. 2a. In the

trial, and the opinions that ensued, every action taken or

not taken by the Topeka School Board from 1951 until

1986 was reviewed. The factual findings of the district

court were largely affirmed by the court of appeals.

Those factual findings (largely undisputed, App. 44b)

included:

School closings. All four all-black schools have been

closed. App. 9a, 10b. The district court found that

when they were closed, the School Board assigned most

or all of the students to the "nearby schools with higher

' The district court made that holding even though its interpretation

of the law at the time did not require that segregation be eliminated

“root and branch" and excused the continued existence of the all-black

schools. App. 4a-Sa.

* The original first named plaintiff was Oliver Brown on behalf of his

daughter Linda. The first named intervenor was Linda Brown Smith

on behalf of her children Charles and Kimberly. App. 7b n.3.

2

than average minority populations," making them dispro-

portionately black. This "aggravated the imbalance of

nearby schools." App. 37a, 39b. The court of appeals

affirmed. It found that during the 1950’s and 1960's,

"school closings of highly segregated schools were not

desegregative in practice because the school district

simply reassigned the students at those schools en masse

to a nearby school which then took over the segregated

status of the school closed." App. 80b.°. Highland Park

North, Lafayette, and Quinton Heights are all dispropor-

tionately black as a result of reassignment of students

from previously disproportionately black schools that

were closed. App. 34a-36a, 83b-86b.

School openings. The district court found that "the

construction of [new] schools, particularly on the west

side of this district, appears to have promoted racial

separation... ." App. 27a, 39b. The court of appeals

affirmed, noting that school construction "had a signifi-

cant segregative effect on the district . . . [T]he school

district did nothing to diminish the segregative effect of

those schools .. . [S]chool openings . . . worked to in-

crease segregation." App. 78b-79b, 10b, 13b.

School boundaries. The district court found that

"{t]}he boundaries set around the former de jure black

elementary schools after this case was remanded by the

Supreme Court appear to have perpetuated the racial

identity of those schools." App. 29a, 39b. The court of

appeals affirmed. App. 75b. The district court found

that the Lowman Hill school was and had been since

before 1954 a disproportionately minority school with

attendance boundaries drawn to encompass the only

"historically black residential areas" in the area, bounded

by disproportionately white schools. App. 30a-3la. The

court of appeals affirmed. App. 58b n.62, 76b-77b. The

* The court found that in the 1970's, school closings were neither

segregative nor desegregative. App. 80b.

3

district court found that Quinton Heights was a dis-

proportionately minority school next to a much whiter

school. App. 5la-S2a. The court of appeals affirmed.

App. 75b. The court of appeals also noted that the

School Board’s expert had testified to at least one

boundary change that had an inexplicably segregative

effect. App. 61b, 76b. The court of appeals concluded

that "in the past, the school district drew boundaries with

Significantly segregative effects," App. 75b, "which the

school district has never undone." App. 77b.

Optional attendance zones. The district court found

that optional attendance zones used by the school district

had a "slight" segregative effect. App. 23a. The court of

appeals affirmed. App. 61b.

Additions. The district court found that in some

cases, additions were made to white schools to add ca-

pacity at a time when space was available at black

schools. App. 24a. The court of appeals affirmed. App.

61b, 40b.

Alternatives. The district court found that the

School Board could have made school siting decisions

that would have achieved greater desegregation, but

chose not to. App. 28a-29a, 40b. The district court also

found that the district had refused to adopt several

building plans that would have enhanced desegregation.

App. 52a-53a, 40b. The district court concluded that

"[aJt any time, more could have been done to achieve

racial balance in the schools." App. 54a. The court of

appeals affirmed these findings and strongly emphasized

the district’s failure to take advantage of opportunities to

desegregate. App. 89b-94b, 58b-72b, 81b-89b. It said:

What Topeka did not do is actively

Strive to dismantle the system that exist-

ed. It opened and closed schools with

little or no thought given to the effect of

such actions on segregation, and ob-

served the segregative or desegregative

effects of such actions with indifference.

App. 94b.

Faculty and staff. The district court found that

faculty were disproportionately assigned by the School

Board on the basis of race. It held that black and mi-

nority staff have been and are disproportionately as-

signed to schools that are disproportionately black and

minority by student assignment. App. 40a-43a. The

court of appeals affirmed. App. 72b-74b, 49b-57b. It

found a "long-standing pattern of imbalances coupled

with the tracking of student assignment percentages .. ."

App. 73b.

Present Conditions. In addition to examining the

actions and inactions of the School Board over the last

30 years in Topeka, both courts examined the present

student and faculty assignment patterns to determine

whether segregation persists in the Topeka schools. In

that regard, the district court found that there remain

schools in Topeka that are racially identifiable as either

black or white by student assignment using any of the

generally accepted methods of analysis. App. 16a. The

court of appeals affirmed. App. 47b-49b.“ The district

court also found and the court of appeals affirmed, as

previously noted, that minority faculty are disproportion-

ately assigned to schools identifiable as minority by stu-

dent assignment. App. 40a-43a, 72b-74b, 49b-S7b. On

the basis of these findings, the court of appeals observed

that where student assigninent and faculty assignment

* By the most common measure, approximately half of the schools are

racially identifiable by student assignment. Compare App. 47b-49b

(standard of plus or minus 15%) with App. 12b n.8 and 15b n.13

(school populations). “Even under the most generous of these numer-

ical standards, proposed by the school board’s expert, there are six

elementary and three secondary schools that are racially identifiable

by student assignment.” App. 49b.

5

"vary [by race] together, as they do in Topeka, leading to

schools that are noticeably more white or more minority

in both students and faculty, it is difficult to posit a

neutral explanation. The school district has not attempt-

ed to provide one." App. 54b-56b (footnote omitted).

Finally, the court of appeals summarized its conclusions

by noting that "schools [in Topeka] that are marked as

white or minority by their students and faculty/staff are

also so marked by their geography, the residential popu-

lation in their attendance areas, and by their history."

App. 56b.’

Notwithstanding their general agreement on facts,

the district court and the court of appeals reached dra-

matically different legal conclusions. The district court

found that "[t]he district has a unitary system of educa-

tion.” App. 61a. The court of appeals found that "there

is a current condition of segregation in Topeka." App.

94b.

These different conclusions can be explained by two

of the district court’s legal rulings, which the court of

appeals later found erroneous. First, the district court

ruled that Topeka’s failure to desegregate was excused

because, in the early 1950’s, the school district adopted a

* Because of these factual findings, it is not accurate to argue, as the

School Board does, that this is a case of a school board that did eve-

rything it could to desegregate but was overwhelmed by demographic

trends outside its control. Pet. 14-15. To the contrary, the district

court found, and the court of appeals agreed, that demographic trends

in Topeka have been desegregative and the most that can be said of

the School Board is that it "has not bucked the demographic forces

that have improved the racial balance of schools.” App. 54a, 8b, 59b,

62b, 64b-65b. In any event, a school district that has not been de-

clared unitary has a continuing obligation to respond to segregative

demographic changes. App. 65b-66b; Swann v. Charlotte-Mecklenburg

Bd. of Ed., 402 U.S. 1, 20-21, 28 (1971); Keyes v. School Dist., 413 US.

189, 201-204 (1973); Columbus Bd. of Ed. v. Penick, 443 U.S. 449, 459-

61, 465 n.13 (1979); Flax v. Potts, 464 F.2d 865 (Sth Cir.), cert. denied.

409 U.S. 1007 (1972).

neighborhood schools system. See e.g., App. 18a. Thus,

the district court excused use of additions to over-

crowded white schools that contributed to segregation in

the name of "neighborhood" schools. App. 24a. It ex-

cused the siting, opening and maintenance of all-white

schools as "consistent with the race-neutral neighborhood

school concept." App. 27a. It excused a dispropor-

tionately black school surrounded by disproportionately

white schools because the boundaries of the schools "for

two decades have been consistent with the neighborhood

school concept." App. 3la. It excused the reassignment

of black students from disproportionately black schools

being closed to other disproportionately black schools,

rejecting redistribution to adjacent white schools, on the

rationale that this would "diminish the advantages of

neighborhood schools." App. 32a. And it repeatedly ex-

cused the failure to take actions that would have de-

segregated the schools, even without busing, as inconsist-

ent "within the framework of smaller neighborhood

schools." App. 52a. In short, the district court believed

that the school district had fulfilled its duty to desegre-

gate when it had adopted and adhered to a neighbor-

hood schools policy. App. 40b and n.48.

The court of appeals disagreed. App. 39b-43b, 31b-

33b. Citing this Court’s holding in Swann v. Charlotte-

Mecklenburg Bd. of Ed., 402 U.S. 1, 28 (1971), that "‘ra-

cially neutral’ assignment plans proposed by school au-

thorities to a district court may be inadequate," App.

41b, the court of appeals held that "[mJere adherence to

a race-neutral but ineffective neighborhood school plan

is insufficient." App. 43b. Keyes v. School Dist., 413 U.S.

189, 212 (1973).

Second, the district court found that plaintiffs had to

show that actions taken by the School Board between

1951 and the time of trial were intentionally segregative.

See App. 24a ("it has not been shown that space

additions were intentionally used to promote segre-

gation. . ."); App. 27a ("the court does not believe that

the district’s school construction policy was intended to

maintain or promote segregation"); App. 53a ("[n]o evi-

dence established that... the failure to implement the

plans was racially motivated"); App. 60a-6la ("[t]he

racially imbalanced schools are not the product of overt

or covert intentional segregative conduct")(emphases

added).

The court of appeals again disagreed. App. 38b-43b,

23b-31b. It held that the district court "focused too

greatly on the school district’s lack of discriminatory in-

tent,” App. 38b, and quoted this Court’s opinion in Day-

ton Bd. of Ed. v. Brinkman, 443 U.S. 526, 538 (1979),

that "the measure of the post-Brown I conduct of a

school board under an unsatisfied duty to liquidate a

dual system is the effectiveness, not the purpose, of the

actions in decreasing or increasing the segregation

caused by the dual system." App. 43b. As explained by

the court of appeals, "[a] lack of intent is therefore insuf-

ficient" to meet the school district’s constitutional obliga-

tion. App. 43b. See also 34 C.F.R. §100.3(b)(3), (6)(i)

(under Title VI regulations, the applicable standard is

the effect of the school board’s actions).

Based upon these legal errors, the court of appeals

reversed. It found that the findings of the district court

concerning the actions and inactions of the school dis-

trict led to the "definite and firm conciusion that the

district court erred when it found the Topeka school

system to be unitary." App. 95b.

REASONS FOR DENYING THE WRIT

I. THE DECISION BELOW REPRESENTS A

STRAIGHTFORWARD APPLICATION OF WELL-

SETTLED PRINCIPLES AND THEREFORE

RAISES NO NEW ISSUES OF LAW

A. The Legal Standard Applied By The

Court Below Was Derived Verbatim

From This Court’s Decisions

The School Board does not defend the erroneous

legal conclusions of the district court. Instead, it com-

plains that the court of appeals improperly considered

whether the School Board had made "every effort to

achieve the greatest possible degree of actual desegrega-

tion, taking into account the practicalities of the situa-

tion." Pet. 18. As even petitioners recognize, however,

that standard is taken verbatim from this Court’s unani-

mous decisions on school desegregation and has been

consistently applied by the lower courts in school deseg-

regation cases for the past twenty years.

The School Board attempts to distinguish those deci-

sions by arguing that "[t]his is a liability case, not a rem-

edy case." Pet. 23 n.20 (citation omitted). However, the

notion that the Topeka School Board has never been

found liable for segregating its schools must rank as one

of the most unusual and meritless arguments presented

to this Court. This Court need hardly be reminded of its

decision holding the Topeka School Board liable for in-

tentionally segregating its schools. Brown v. Board of

Education, 347 U.S. 483 (1954). As the court of appeals

noted: "This is not a liability case in which plaintiffs

must prove that the school board has committed uncon-

Stitutional acts; that was established in 1954." App. 27b,

42b n.49 (emphasis in original).°

° As the School Board concedes, even if this were a liability case, it

(continued...)

9

More than a generation later, the dispute between

the parties focuses on whether or not the schools of

Topeka have been effectively desegregated in compli-

ance with this Court’s historic mandate. Brown v. Board

of Education, 349 U.S. 294 (1955); App. 26b-27b. It was

in exactly that context that this Court unanimously ruled

that "[h]aving once found a violation, the district judge

or school authorities should make every effort to achieve

the greatest possible degree of actual desegregation,

taking into account the practicalities of the situation."

Davis v. Bd. of School Comm., 402 U.S. 33, 37 (1971)’ In

particular, the Davis Court held that "neighborhood

school zoning,’ whether based strictly on home-to-school

distance or on ‘unified geographic zones’ is not the only

permissible remedy; nor is it per se adequate to meet the

remedial responsibilities of local boards." 402 U.S. at

af.

The holding in Davis, which was followed by the

court below, has been reaffirmed by this Court on at

least two occasions. See U.S. v. Scotland Neck City Bad.

of Ed., 407 U.S. 484, 490 (1972); Swann v. Charlotte-

Mecklenburg Bd. of Ed., 402 U.S. at 26. In addition, the

Davis language criticized by petitioners has been applied

by at least 8 circuit courts in a manner virtually indistin-

guishable from the decision of the court below in this

case. Pitts v. Freeman, 887 F.2d 1438, 1446, 1448 (11th

° (...continued)

would be proper for the court to consider whether the School Board

had made efforts "to achieve the greatest possible actual desegrega-

tion, taking into account the practicalities of the situation,” Pet. 19

n.18, as one factor from which the inference of intentional discrimina-

tion could be drawn. Columbus Bd. of Ed. v. Penick, 443 U.S. at 461.

” The School Board’s petition fails to cite Davis. In addition, where

the petition quotes the use of the cited language by the court of ap-

peals, it notes that the court of appeals is itself quoting another

source, but fails to identify that source as a unanimous opinion of this

Court. Pet. 18.

10

Cir. 1989), petition for cert. filed, No. 89-1290 (Feb. 12,

1990); Stell v. Savannah-Chatham Cty. Bd. of Ed., 888

F.2d 82, 83 (11th Cir. 1989); United States v. Pittman, 808

F.2d 385, 390 (Sth Cir. 1987); Davis v. East Baton Rouge

Parish School Bd., 721 F.2d 1425, 1434 (Sth Cir. 1983);

Valley v. Rapides School Bd., 702 F.2d 1221, 1229 (Sth

Cir.) cert. denied, 464 U.S. 914 (1983); Price v. Denison

Ind. School Dist., 694 F.2d 334, 354, 356-57 (Sth Cir.

1982); United States v. South Park Ind. School Dist., 566

F.2d 1221, 1225 (Sth Cir.), cert. denied, 439 U.S. 1007

(1978); Evans v. Buchanan, 555 F.2d 373, 379 (3d Cir.

1977); Liddell v. Caldwell, 553 F.2d 557 (8th Cir. 1977);

Liddell v. Caldwell, 546 F.2d 768, 773 (8th Cir. 1976);

Morgan v. Kerrigan, 530 F.2d 401, 412 (1st Cir.), cert.

denied, 426 U.S. 935 (1976); Keyes v. School Dist. No. 1,

$21 F.2d 465, 477-78, 480 (10th Cir. 1975), cert. denied,

423 U.S. 1066 (1976); Tasby v. Estes, 517 F.2d 92, 103

(Sth Cir.), cert. denied, 423 U.S. 939 (1975); Arvizu v.

Waco Ind. School Dist., 495 F.2d 499, 503 (Sth Cir.

1974); Medley v. School Bd. of City of Danville, 482 F.2d

1061, 1064 (4th Cir. 1973), cert. denied, 414 U.S. 1172

(1974); United States v. Texas Educ. Agency, 467 F.2d

848, 871 (Sth Cir. 1972); Kelley v. Metropolitan Cty. Bd. of

Ed., 463 F.2d 732, 744 (6th Cir.), cert. denied, 409 U.S.

1001 (1972); Harrington v. Colquitt Cty. Bd. of Ed., 460

F.2d 193, 196 (Sth Cir.), cert. denied, 409 U.S. 915

(1972); Adams v. School Dist. No. 5, 444 F.2d 99, 100

(4th Cir.), cert. denied, 404 U.S. 912 (1971); Northcross v.

Bd. of Ed., 444 F.2d 1179, 1183 (6th Cir. 1971).°

* The School Board cites four cases to argue that there is a conflict in

the circuits concerning use of the cited language. One of those cases

is Morgan v. Nucci, 831 F.2d 313 (1st Cir. 1987). The School Board

then acknowledges that the Morgan court did apply the cited language

and describes its appropriate use as follows: "[B]ecause in Morgan the

district sought a determination of unitariness without having fulfilled

the specific goals of a court-supervised desegregation plan, the court

considered whether maximum practical desegregation had been

(continued...)

1]

Finally, although the court of appeals emphasized

the School Board’s failure to make every effort to

achieve the greatest possible degree of desegregation,

that was not the sole basis for the court’s decision. The

court affirmed numerous findings of the district court

that the School Board took actions in the areas of school

opening, school closing, attendance boundary setting,

optional attendance zones, school additions, and faculty

and staff assignment that had the effect of perpetuating

segregated schools. See pp.2-5, supra. Given these find-

ings, the court could not have found the Topeka School

Board had completed the process of desegregation even

if it had not applied the "greatest possible degree" lan-

guage of this Court.

For all these reasons, petitioner's Question I does

not merit review by this court.

B. The Legal Standards Announced By

This Court Were Correctly Applied By

The Court Below

Consistent with decisions from this Court, the court

of appeals first found that the "plaintiff bears the burden

of showing the existence of a current condition of segre-

gation." App. 18b. The School Board does not object to

this legal principle, but does argue that in applying it,

the court of appeals relied solely on the student and fac-

* (...continued)

achieved, despite such failure." Pet. 19 n.18. In other words, the

Morgan court, like the court of appeals in this case, considered wheth-

er maximum practical desegregation had been achieved in determining

whether the school district had fulfilled its mandate to desegregate.

Not only does Morgan not conflict with the holding in this case, it is

identical. 831 F.2d at 322-25. None of the other cases is inconsistent

with the court of appeals’ decision in this case. See e.g., Jacksonville

Branch NAACP v. Duval Cty. School Bd., 883 F.2d 945, 950 (11th Cir.

1989)(discussing alternatives not taken as a factor in determining uni-

tary status).

12

ulty assignment statistics. Pet. 22. The short answer to

that contention is that the court of appeals did not rely

solely on student and faculty assignment statistics, even

though it did find those statistics incapable of a neutral

explanation. App. 55b.° The court also examined all of

the facis outlined above and those suggested by the

opinions of this Court to determine the current degree

of segregation. App. 22b, 58b-94b. Green v. School Bad.,

391 U.S. 430, 442 (1968); Keyes v. School District, 413

U.S. at 196, 201-22; Swann v. Charlotte-Mecklenburg Bad.

of Ed., 402 US. at 18.

Next, the court of appeals found that "[once] a plain-

tiff has proven the existence of a current condition of

segregation, the school district bears the substantial bur-

den of showing that that condition is not the result of its

prior de jure segregation." App. 23b. This time, the

School Board concedes, as it must, that this burden shift-

ing is required by this Court. Pet. 23. Green v. School

Board, 391 U.S. at 439; Dayton Bd. of Ed. v. Brinkman,

443 U.S. at 537-38; Keyes v. School Dist., 413 U.S. 189,

209-11 (1973).

The School Board nonetheless argues that the bur-

den established by this Court for all school desegregation

cases should not be applied in this case for three rea-

sons. First, the current condition of segregation is, in

the school district’s opinion, not "significant." Pet. 24.

* This Court has often examined statistics concerning student assign-

ment and faculty assignment as one measure of the effectiveness of a

school district’s desegregation plan. See e.g., Swann v. Charlotte-

Mecklenburg Bd. of Ed., 402 U.S. 1; Davis v. Bd. of School Comm.,

402 U.S. 33 (1971). It is true that “any particular degree of racial bal-

ance or mixing" is not required "as a matter of a substantive constitu-

tional right," Swann, 402 U.S. at 24, but that does not mean that sta-

tistics may not be used as the court of appeals did in testing the ade-

quacy of the School Board’s efforts to desegregate.

13

. However, the court of appeals found to the contrary.

~ 45b-S7b.

Second, the School Board argues that the burden

shifting is inappropriate here because so much time has

passed. Pet. 24-25. However, this Court has explicitly

rejected this argument. Dayton Bd. of Ed. v. Brinkman,

443 U.S. at 537; Keyes v. School District, 413 U.S. 189,

210 (1973); App. 29b. See also Green v. School Bd., 391

US. at 438.

Finally, the School Board argues that the burden

shifting is inappropriate because the court of appeals, in

determining whether the School Board had met its bur-

den, considered whether the school district had made

"every effort to achieve the greatest possible degree of

actual desegregation, taking into account the practicali-

ties of the situation." Pet. 25-28. In other words, the

School Board’s second Question Presented turns out, on

careful reading, to be no more than a restatement of the

first Question Presented and is unpersuasive for the

Same reasons. Section IA, supra. It does not merit

review by this Court.”

Il. THE PETITION IN THIS CASE CAN BE DENIED

WITHOUT AWAITING A DECISION IN BOARD

OF EDUCATION v. DOWELL, NO. 89-1080,

WHICH RAISES ENTIRELY DIFFERENT LEGAL

ISSUES

This Court has granted a petition for certioran in

Board of Ed. v. Dowell, No. 89-1080. The School Board

'° The third Question Presented by the School Board suggests that the

court of appeals gave insufficient weight to the factual findings of the

district court. But, as noted above, the court of appeals largely af-

firmed the factual findings of the district court. It reached a different

result because of errors of law by the district court that the School

Board here does not even attempt to defend.

14

concedes that Dowell raises different issues than those

raised by this case and the decision in Dowell wiil have

no effect on this case. Pet. 14. That concession is cor-

rect.

In Dowell, the school district put in place a plan that

desegregated the schools. Dowell, 890 F.2d 1483, 1486

(10th Cir. 1989). The district court then declared the

district unitary. /d. Seven years later, the school district

sought to alter the plan. The question presented by

Dowell is what standards should be used to measure

school board actions that resegregate the schools after a

finding of unitariness. Here, by contrast, the question is

whether the Topeka school district is unitary in the first

place, not what latitude it has to take actions after hav-

ing been found unitary. Thus, the decision in Dowell will

not affect the holding in this case and there is no reason

to hold this petition until the ruling in Dowell.

Topeka’s black children have been waiting for more

than 35 years for complete desegregation. The wait

should end. The petition should be denied so that the

parties and the district court can devise a remedy that

will finally comply with the order this Court issued 35

years ago.

15

CONCLUSION

For all these reasons, respondents respectfully ask

that the petition be denied.

Respectfully submitted,

Christopher A. Hansen

(Counsel of Record)

John A. Powell

American Civil Liberties Union

Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

Richard Jones

Jones & Jones

1503 S.E. Quincy

Topeka, Kansas 66612

(913) 235-3961

Charles Scott, Jr.

106 West 11th Street, Suite 1800

Kansas City, Missouri 64105

(816) 474-3722

Joseph Johnson

112 S.W. 8th St.

Topeka, Kansas 66603

(913) 232-6933

Dated: May 24, 1990

16