Opposition Brief — Arkansas State Board of Education v. Little Rock School District

a

ms Supreme Court, U.S.

es, FILED

JUL 8 1988

No. 87-2085 wacn i

JOSEPH F, SPANIOL

She

In The

Supreme Court of the United States

October Term, 1987

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<Deses

ARKANSAS STATE BOARD OF EDUCATION, ET AL.,

Petitioners,

V.

LITTLE ROCK SCHOOL DISTRICT, ET AL.,

Respondents.

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ws

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

ray

. Seles

BRIEF IN RESPONSE TO

PETITION FOR WRIT OF CERTIORARI

4.

Vv

RicHarp W. RoacHELL

MITCHELL and ROACHELL

1014 West Third Street

P. O. Box 1510

Little Rock, AR 72203-1510

501-378-7870

Counsel for Respondents

Knight, et al., Intervenors

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

QUESTIONS PRESENTED

I

WHETHER THE COURT OF APPEALS CORRECTLY

DIRECTED THE STATE TO FUND PART OF A LO-

CAL SCHOOL DISTRICT’S DESEGREGATION REM-

EDY WHEN THE STATE WAS ORIGINALLY FOUND

TO BE A CONSTITUTIONAL VIOLATOR.

II

WHETHER THE EIGHTH CIRCUIT CORRECTLY

REQUIRED THE STATE TO FUND VARIOUS COM-

PENSATORY AND REMEDIAL EDUCATION PRO-

GRAMS FOR THE LITTLE ROCK SCHOOL DIS-

TRICT.

Iii

WHETHER THE EIGHTH CIRCUIT’S IMPOSITION

OF FUNDING REMEDIAL AND COMPENSATORY

EDUCATION PROGRAMS UPON THE STATE IS A

REASONABLE REMEDY CONSISTENT WITH THE

SCOPE OF THE STATE’S CONSTITUTIONAL VIO-

LATION.

il

TABLE OF CONTENTS

Questions Presented

Table of Contents

Table of Authorities

Reasons for Denying the Writ

Conclusion

lil

TABLE OF AUTHORITIES

Kelley v. Board of Ed. of Nashville and Davidson

County, 836 F.2d 986 (6th Cir. 1987)

Little Rock School Dist. v. Pulaski County Special

School Dist., 778 F.2d 404 (8th Cir. 1985) oo

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

Swann v. Charlotte-Mecklenburg Board of Ed.,

402 U.S. 1, 16 (1971)

REASONS FOR DENYING THE WRIT

The State asserts that the Eighth Circuit’s directive

to it is merely to pay money. This overlooks the initial

district court and Court of Appeals’ findings that the

State was a primary constitutional wrongdoer with deseg-

regative obligations both financial and otherwise. Little

Rock School Dist. v. Pulaski County Special School Dist.,

778 F.2d 404, 411-17, 423, 426, 433, 436 (8th Cir. 1985).

The Court of Appeals’ decision does not conflict with

the recent Sixth Circuit decision in Kelley v. Board of Ed.

of Nashville and Davidson County, 836 F.2d 986 (6th Cir.

1987). There the state was brought in by a third party

action after liability had been assessed against the county.

Here the State was an initial party found by the court

to have contributed to segregation. Pursuant to Milliken

v. Bradley, 433 U.S. 267 (1977), the State of Arkansas was

required to spend money ancillary to its obligation to end

segregation. There is no conflict among the circuits by the

Eighth Circuit’s decision here and Kelley.

Nor is there a conflict on the issue of the local dis-

trict’s ability to pay the costs of desegregation. The dis-

tinction, again, is that the State here is a constitutional

violator. In Kelley, the State of Tennessee was added

merely to obtain benefit of its ‘‘deep pocket’’. No liability

determination was made against the State of Tennessee in

Kelley.

Moreover, a segregation victim’s (Little Rock School

District) ability to pay for its own remediation is not rel-

evant. It is the responsibilit: of the constitutional vio-

lator to pay the costs of remedying its segregative wrongs.

The State correctly points out that the nature of a

desegregation remedy is determined by the nature of the

constitutional violation, citing Milliken, 433 U.S. at 280,

and Swann v. Charlotte-Mecklenburg Board of Ed., 402

U.S. 1, 16 (1971). The Eighth Circuit’s requirement that

the state pay for compensatory and remedial education

programs is consistent with the State’s constitutional vio-

lation. The violation has not been cured, hence the State’s

obligation continues. The Eighth Circuit has not depart-

ed from the law of the case and there is no call for an

exercise of this Court’s supervisory power.

CONCLUSION

The Eighth Cireuit’s decision presents no conflict

among the circuits in school desegregation cases. Nor

does this case possess any important issues justifying this

Court’s consideration. The Petition for a Writ of Cer-

tiorari should be denied.

Respectfully submitted,

Ricuarp W. RoacHeii

MITCHELL and ROACHELL

1014 West Third Street

P. O. Box 1510

Little Rock, AR 72203-1510

501-378-7870

Knight, et al., Intervenors