Opposition Brief — Michael Vetere v. James E. Allen Jr.

-

LI SrKAL + Y

SUPREMO COURT, f. Og Serene Curt Us.

FILED

i oe eee AUG 9 1965

eee

| IN THE -" Aandi. GAVES, CLERK

Supreme Court of the United States

No. ta. ~ ‘am CY 5

, Us Ss

MICHAEL VETERE,

v.

JAS E. ALLEN, JR., Commissioner of Education a the State of New

York;; BOARD OF EDUCATION OF UNION FREE SCHOOL

DISTRICT NO: 12 OF THE TOWN OF HEMPSTEAD, NEW

YORK; PATRICIA ANN MITCHELL, et al.; and THE NATIONAL

ASSOCIATION FOR: . THE ADVANCEMENT OF COLORED

rt.

oo Respondents.

Petittoner,

LEWIS HUMMEL and HERMAN ABRAMS, 4 ;

Ph Petitioners,

. ‘ t , v.

JAMES E. ALLEN, JR., Commissioner of Education of ‘the State of New

York, and BOARD OF EDUCATION OF UNION FREE SCHOOL

DISTRICT NO. i2 OF THE TOWN OF HEMPSTEAD, NEW

aes . Respondents. :

- BRIEF EN OPPOSITION TO PETITION FOR A WRIT OF

| CERTIORARI TO THE COURT OF APPEALS

OF THE STATE OF NEW YORK |

CHARLES A. BRIND’

Attorney for Respondent,

James E. Allen, Jr.

_ Commissioner of Education

State Education Building

Albany, New York

Joun P. Jenu ; “

EvizasetH .M. EAstMAN

Louts H. J. Wetcu

. Donato O. MESERVE

. of Counsel ' ;

— III >>>>>>>>>*{[>*]*]_____—_—_—_—_—___—_—_—_—_======—=—

BATAVIA forma os "ae : <—p-

4 : PAGE

Opinions Below ......... Ei vind cuss Vb inte eae eeeReERS 1

Jurisdiction ......:.........006- dada oe

es Peed... oi bois ech cosddcicciciiven 9

Statutes Involved ...... OE a het GORY OE eM TEM Senay

Statement ...... BROS eee Meet emer guteeee Om

Argument ............ Eeneuanes cass oasees eae 5

I. There is No Substantial Federal Question .. 5

II. There is No ‘Substantial Conflict in the Deci-

7 sions of the State and Federal Courts on the

Issues Involved in this Case .............. oe

III. The Decision Below is Correct ...........:... 8

Conclusion ....:.......... ivereea pees SPECT TTT TRE

saaatieanaaen tt

Cases:

44665) 0.x. Donovan, 92 A. D. od 383 (N. Y. 2 Dept. .

Balaban v. Rubin, 14 N. Y. 2d 193, cert. den. 379 U.

bosses dene caer ey saan ck conc eue waves 7,9

Barksdale v. Springfield School Committee, 237 F.

- Supp. 543 (D. Mass. 1965) ....... 0. cei ee ote -.6,7,9. .

Blocker v. Board .of Education, .226 F. Supp. 208, °. |

229 F. Supp. 709 (E. D. N. Y. 1964) ..... See 6, 7,9

Board of Education v. Allen, 6 N. Y: 24127 ........ he

Bolling v. Sharpe, 347 U.S. 497 ................. ig,

y ‘ea v. Board of Education, 347 U. S. 483 ...... 6, 9, 10

Jackson v. Pasadena City School District, 59 Cal. 2a

. 876, 382 P. 2d 878 (1963) ..... 2... ee ete ete 6, 7

~ Morean v. Board of Education, 42 N. J. 937, 500 A.

WEE ES xia 060s cots a os 0 n5ssca aaa e scene 5 7,9

Van Blerkom v. Donovén, 15 N. Y. 2d 399... awake 7

Statutes : :

Civil Rights Act of 1964, 42 U. S. Code 2000¢ .... ~2, 3,

New York State Education Law, Section 310 ...... 3,

. a

IN THE.

Supreme Court of the United States :

‘No. BC |

MICHAEL VETERE,

Petitioner,

> . Uv, >

JAMES E. ALLEN,” R., Commissioner of Education of the State of New

York; BOARD OF EDUCATION OF UNION FREE SCHOOL.

DISTRICT NO. 12 OF THE TOWN OF HEMPSTEAD, NEW

YORK; PATRICIA ANN MITCHELL, et al.; and THE NATIONAL

ASSOCIATION FOR THE ADVANCEMENT OF COLORED

PEOPLE

Respondents.

LEWIS HUMMEL and HERMAN ABRAMS,

; "Petitioners,

4 v i

\ JAMES E. ALLEN, Commissioner of Education of the State of New .

York, and BOAR YOF EDUCATION OF UNION FREE SCHOOL

DISTRICT NO. 12: “OF THE TOWN OF’ HEMPSTEAD, NEW

YORK,.

‘ Respondents.

BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF

" CERTIORARI TO THE COURT OF APPEALS

OF THE STATE OF NEW YORK.

Respondent J ames E. Allen, Jr., as Commissioner of *

Edueation of the: State of New York ‘respectfully prays

that the petition herein for writ of certiorari to the Court

of a of the State of New York be denied.

‘

Opinions Below

‘The decision of the New York State Court of Appeals

is. reported in 15 N. -Y. 2d 259, 206 N. E. 2d 174, and is

. : \

\

\

2 :

<>

reprinted i in Appendix A at pages 19-38 of the Petition for

ae Certiorari.. The majority opinion is printed therein at

page-27 and: the dissenting opinions at pages 29 and 33.

The judgment is printed in said petition in Appendix B

at page 39. The opinion of the Appellate Division, Third.

Department is reported in 21 A. D. 2d 561, 251 N. ¥.S. 2d.

480 and appears at page 12 of the Record of the Court of

- Appeals. The opinion of the Supreme Court, County of Al- ©

_ bany is reported in 41 Misc. 2d 200, 245 N. Y. S. 2d 682 and

appears in the record on — to the Court of Pci tte at .

page 38. ‘

The asserted basis of jurisdiction is an alleged depriva-

tion of petitioner’s rights, privileges and immunities under

the 14th Amendment of the United States Constitution ‘and

42 U.S. —— Sections 2000e, et seq.

(]

~ Question Presented

Has petitioner been deprived of the equal seticlion of

the law or of liberty without due process of the law by a

decision of the Commissioner of Education directing a

‘ gehool. district to eliminate the educational disadvantages

resulting from de facto segregation by centralizing the

elementary grades?

‘Statutes Involved

U.S. "Constitution; Amendment XIV.

' “No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any —

of life, liberty, or property, without due process 0

law; nor deny to any person within its jurisdiction the -

equal protection of the laws."

3

42 U.S. Code Sesiliiin 2000¢ (wi Rights Act of 1964,

Section 401) :

“As. used in this vac ea ‘8 e

(b) ‘Desegregation’ means _ the assignment of

students to public schools and within: such schools |

without regard to their race, color, religion, or national * De

. origin, but ‘desegregation’ shall not mean the assign-

ment of students to public schools in: order to over-*.

come racial imbalance.”

New York State |

Education Law Section: 310 |

Any person conceiving himself ‘sical may ap-

peal or petition to the Commissioner of Education _

who is hereby authorized and required to examine

and. decide. the same. 7

_ Statement

In November, 1962, the Commissioner of Education,

hereinafter referred to as the Commissioner, acting under

the authority conferred in him by Section 310 of the Educa-

tional Law, heard an appeal brought by parents of children

attending elementary schools in the. respondent school dis-

trict from the refusal of the Board of Education of said

district to take action to alleviate racial imbalance therein. _

- The Commissioner referred the matter to a three man ad-

visory committee for an exhaustive study of the situatior.

After receiving their report, the ‘Commissioner rendered

his decision, which appears at ‘page 73 of the Record, in ©

which he held that although there was no evidence of

‘deliberate segregation, nevertheléss racial imbalance did

exist in the respondent district, and the existence of such

' imbalance was. detrimental to the. education of the children .

affected ware a the. Comsnissioner ordered

a © 7 @

the Board of Education to iii a ‘tee which would ©

eliminate the educational disadvantages and alleviate the —

racial imbalance. ‘This plan carefully avoided the more

questionable elements present in some other plans. Pupils

in previously. existing classes are not to be split up and

‘sent to different schools in order to conform to an arbitrary

‘racial quota, and no additional transportation is required.

Groups of children of one race are not’ being moved into °

a distant school serving a neighborhood of children of an-

other race. The unique facts in this school district made »

it possible to avoid any form of segregation by centralizing

grades four and five in one school and by centralizing

’ kindergarten and. grades one through three in two schools,.

instead of dividing all of: these grades among the three

elementary schools. Under. this.plan each pupil, regardless

of race, is sent ,to the school serving his grade, and the

‘racial balance will be determined by a the racial population

es . of the whole district. . 1

| “An application by the’Board of Education for a reopen-

‘ing off, the appeal was denied by the Commissioner. This

-action was. then commenced by the petitioners-appellants

who were parents of white children in the district. The

‘Supreme: Court ofthe State of New York,-: County of Al-

_ hany, reversed the Cémmissioner’s decision upon the ©

grounds’ that Section 3201 of ‘the Education Law of’ the

State: of ‘New York providing that “no person shall. be re-

- . fused admission into or be excluded from any public school ©

‘in the State of New York on account of race, creed, color _

or national origin” prevented any action by the Commis-

‘sioner of Education assigning pupils to schools because of i.

- ‘their race, and that such assignment was illegal whether

intended to-promote segregation or to alleviate it.

~ Upon appeal by the Commissioner to the Appellate Di-

vision, Third Department, State of New York, the decision

>

re |

ee

s:

oftine Supreme Court was reversed. The silly

pellants thereupon affirmed the decision of the ‘Commission-

er and of the Appellate Division by a vote of five to two.

The opinion of the Court of Appeals. settled the ques-

‘tion of the application of Section 3201 of the Education

Law \and determined that under New York State Law the

Commissioner. had the power in the proceeding brought

before him to order the respondent Board of Education

to accept this particular plan of pupil assignment.

The essential question at this’time is whether or not

this particular plan of pupil assignments violates the Fed-

eral Constitutional rights* of the petitioners-appellants.

We contend that this is not a substantial Federal question |

and that there is no conflict in the existing law on the point.

Bax

_ There is no substantial Federal question.

Although problems of racial imbalance or de facto, seg-

regation have arisen in a number of cases which presented

serious constitutional: questions, there are no such ques-

tions involved in this case. .The order appealed from con-

cerns one school district with a unique factual situation,

in which the Commissioner has, in effect, centralized the

elementary schools, in order to eliminate .the educational

consequences. of - one predominately Negro school. The

* Commissioner’s action was based not on the Federal Con-

stitution or Federal law, but on State law, and has 7“

upheld by the highest State court. Pes

The petitioners-appellants argue that any action by a

State which takes into account the race of a pupil in de-

° = ets g

termining assignments to schools is unconstitutional, and

that it does not matter whether the purpose of the State

action is to-improve the educational system, or to promote

segregation, or integration. -This argument would refute

or negate all of the progress which has been made since the

' decision in the Brown case in eliminating segrega-

- tion in the public schools and indeed in any other

area. This Court has recognized that segregated schools

are, by their very nature, educationally inferior. It

would make no difference in this respect whether the

| segregation was deliberate or arose as the result of residen-

tial or other factors beyond the control of the school board.

Brown v. Board of Education, 347 U. S. 483; Blocker v.

Board of Education, 226 F.Supp. 208, 229 F. Supp. 709,

(E. D. N. Y. 1964); Jackson v. Pasadena City School Dis-

trict, 59 Cal. 2d 876, 382 P. 2d 878 (1963); Barksdale v.

Springfield School Committee, 237 F. Supp. 543 (D. Mass.

1965). Although this court has not, as yet, decided that

affirmative action is required by federal law or by the Fed-

eral Constitution to correct de facto segregation, no such

decision is necessary in this case. To justify the granting

of tertiorari, petitioners must show that this particular

‘ ‘order of the Commissioner violated their constitutional

rights. The constitution does not, as petitioners argue,

prohibit the consideration of racial factors, On the con-

trary, where such factors have been taken into account in

the past, and segregation has resulted, the constitution im-

poses a duty on the State authorities to continue to take.

_ such factors into account and correct the situation. Brown

v. Board of Education, supra; Bolling v. Sharpe, 347 U. 8.”

497. What ‘‘equal protection’’ of the law does mean in

this respect is that children of all races be given the same

educational opportunities. The children of petitioners and

the children of the Negro parents in this particular school

q

". district will be treated in exactly the same manner. No

special transportation will be required, and no groups of

children will be shuffled about like cards, solely to achieve

~ a better racial balance. No racial. quota is to be arbitrarily

‘ imposed. This school disttict is so small thet the adoption

of this plan, centralizing the elementary grades, solves —

the problem. No child has a.constitutional right to attend

_ any particular neighborhood school. Van Blerkom v..

Donovan, 15 N. Y. 2d 399; Blocker v. Board of Edu-

cation, supra;, Jackson Vv. Pasadena City School Dis-

trict, supra. School districts have of necessity the

right to alter patterns of pupil assignments so long as

such action is reasonable, and race is one of the factors

which may be taken into account. Under. the cireumstan-

ces, the order of the Commissioner to change the pupil as-.

signments so as to eliminate the educational disadvantages

accompanying de facto segregation is not unconstitutional.

Balaban v. Rubin, 14 N.Y. 2d 193, cert. ‘den. 379 U. S. 881;

-Morean v. Board of Education, 42 N. J. 237, 200 A. 2d° 97;

Jackson v. Pasadena City School District, supra; Blocker

v. Board of Education, supra; Barksdale v. Springfield .

_ School Committee, supra.

- here is no substantial conflict in the decisions of the

State and Federal Courts: on the issues involved in this

case. edie.

.

5

It is settled law that in New York State school districts

~ may be required to correct de facto segregation. Decision

appealed from, Appendix A to petition; Balaban v. Rubin,

supra; Van Blerkom v. Donovan, supra. Whether other

states may differ on this point is irrelevant, as this i is a

matter of State law.

8

Since thé Commissioner’s decision is based upon State

law, it is not necessary to reach the question whether such

action would also be required by the Federal Constitution

or Federal Law, and the decisions of other courts on that

issue are not relevant 1 in this case..

_ Also irrelevant in this case is the definition of “desegre-

gation” in the Civil Rights Act of 1964, 42 U.S. Code 2000c,

and cited by petitioners. That definition merely states

.. that “desegregation under that act does* * * not mean the

assignment of students to public schools in order to. over- -

- come racial imbalance.” This in no way indicates or im-

plies that such action under State law is unconstitutional.

Addabbo v. Donovan, 22 A. D, 2d 383 (N. Y. 2nd Dept.

1965).

; ; 2 | Ill

' The decision below is correct.

Although this is a brief on the jurisdictional, question, I

‘believe a few words of summation will also show that the

determinations of the Commissioner and of the Court below

were correct.

The laws of the State of New York, as interpreted by its

-highest Court, give the°Commissioner the power to super-

vise the administration of the public school system by local

boards of education. Where’ such a local board is remiss

‘in an educational matter, and an appeal is brought before

the Commissioner, he can order that appropriate action be

taken, and ‘his: determination is “final and conclusive and

not subject to review in any Court or. place whatever.” |

‘New York State Education Law, Section 310. The Court

’ | of Appeals has interpreted this statute to mean that the

- Commissioner’s determnation cannot be disturbed unless

9

it is “purely arbitrary”. Matter: of Reavd of Education

v. Alien, 6.N. Y. 24 127; Balaban v. Rubin, supra. © |

_ In this ‘case, after an exhaustive study of the facts in

this school district, the Commissioner found that de facto

segregation existed, and .that it was educationally harm-

ful. Although petitioners and others disagree with the lat-

. ter conclusion, it was in no sense arbitrary, and it repre-

. sents the trend of judicial thought since this Court found |

segregated schools inherently unequal-in the. Brown case.

- Segregated schools have consistently been found to be

- educationally inferior whether the segregation be de jure

or de facto. Brown.v. Board of Education, supra; Blocker

v. Board of Education, supra; Morean v. Board of Educa-

tion, supra; Barksdale vy. Springfield School Committee,

supra; Balaban v. Rubin, supra.

Having found that the local board refused to act ei re-

move the educational disadvantages of de facto segregation,

the Commissioner ordered it to proceed in accordance with —

‘the attendance plan already discussed. The order and.

plan have been sustained'by the Court of Appeals against

the arguments that they were beyond the Commissioner’s

powers; arbitrary, and illegal. All these assertions, as

well as the claims now made that they infringe the peti-

tioner’s constitutional rights, are clearly contradicted by

both the facts and the law in this case. The petitioners seek

to characterize this as a case in which they are denied ad-

mission to a school because of their race, and in which an-

arbitrary racial quota is imposed solely to achieve a de- |

sired racial mixture. The facts are very different. Under

the plan adopted by the Commissioner the neighborhood

school attendance zones which resulted in de facto segrega-

tion are replaced by more centralized attendance zones for

the different grades, but the children can still walk to

10

school. . The assignments are based on the grade pupils.

attend, and not on their race.. The racial population of the .

district as a whole, and not that of just a small portion —

thereof, or any arbitrary quota, determines the racial popu-

- lation of each class.

' If the harmful effects of de facto segregation in a oni

school system cannot be corrected in this manner, then the

educational authorities are powerless to remedy a common

failing which both they and the courts have found to be

er harmful.

>

CONCLUSION

The decision sought to be appealed is based upon the

fact, recognized by this Court since the Brown case, that

‘segregated schools. are inherently unequal, and on the

broad general powers of the Commissioner of Education -

granted by the laws of the State of New. York. . Having

found that the schools in this particular school district were |

in fact segregated, as a result of residential patterns, the

Commissioner ‘ordered the school district to adopt a rea-

sonable plan to correct the situation. Neither the requiré-

ment of the State of New York that de facto segregation or |

racial imbalance be eliminated in this school district, nor

the facts of the particular plan by which this is to be done

* raise any substantial federal question. —

i)

au

For all of the ‘Sint reasons the petition for a writ

of certiorari should be denied.

Respectfully submitted,

CHARLES A. BRIND

_ Attorney for Respondent,

James E. Allen, Jr. as ~

Commissioner of Education

_ Joun P. JEHU ee

ExizasetH M. Eastman |

Louis H, J. WEtsH

DonaLp 0. MESERVE

of Counsel