Petition for Writ of Certiorari — Webb v. United States

Reis Oc Sonia Cou US.

LipRART B. & Pes :

. e court r AUG 20 1965

ent aati ;

IN THE

Supreme Court of the United Bates

OCTOBER TERM, . 1965,

| a a ah 2

RE J. ADDABBO, individually, ete.

- * and others, etc.,

v. .

- JAMES B. DONOVAN and tine, constituting the

Board of Education—of the City of New York, and

others, m,

- Respondents,

‘Petitianers,

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF NEW.YORK

( 3 eh

Berwarp Kessizr, ~

Attorney for Petitioners,

277 Broadway,

‘New York, N. Y. 10007.

212 RE 2-1238

“

Sopa ws red A aS

IN PHE

age deas isi uf the 3 ited States a

OCTOBER TERM, 1965

¢

“No.

ties J. Kou: individually, ete,

and others, etc., : |

: wt NS ers. etree,

JAMES B. Semin and others, senetiiuting the Board of.

Education of the City of New York, amt others, ete,

"Respondents.

“PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF NEW YORK

Petitioners herein respectfully pray that a Writ ‘of

| Certiorari issue to review an order of the Court of

Appeals of the State of Hen. 7 entered July 29th,

———

‘Opinions Below

The Court of Appeals of the. State of New York

(reported at 16 N. ‘Y. 24 619) affirmed the order of the

Appellate Division, Second Department. The judgment of.

_the New York Court of Appeals was entered on July

29th, 1965 and is reprinted as Appendix. B. Decision was

rendered May 27, 1965.by the New York Court of Appeals. —

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- ‘The respective opinions of the Appellati Divisioa, Sec-

‘ond Départment (reported at 22 A.D. 2d 383, 256 N. Y. 8."

2d 178) and of Special Term, Queens. County (reported at

- 43 Mise. 2d 621, 251 N. Y. S. 2d $58), appear in the cer-

‘tified record. ,

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: Jurisdictigin 7 “ ee ee oe sf

_—

_- The Jurisdiction . of this Court is invoked ander 98

U..S. C. Section 1257(3),' since. the City and State of New

York have deprived “petitioners of the. rights, privileges

- and immunities provided by U. S. Constitution, Amend-

ment XIV and 42 U.S. Code, Sections 20006¢, et 860,

a ) re Question Presented,

_~ Are the petitioners deprived of equal protection of the |

ed laws, or of liberty without due process of law by a plan oust

_ the respondents, which:

: ohn, their children. from their ngiabborhood schools.

which they would otherwise attend, ’

'- and requires - them to transfer to a more distant ‘pied

, and: Tequires ‘them to travel past their nearest school

which they. previously. attended,

by reason of the racial composition of their neighbor-

hood?

- Statutes. Involved

B. S. Coristitation, Amendment, XIV.

-. “No state shall ‘make or enforce any law which

shall abridge the privileges or immunities of citi-

zens of the United States; nor shall any state de-

prive any person of life, liberty or property, without

‘due process of law; nor. dény to any person within —

. its jurisdiction the’ ‘équal protection of the laws.”

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42 U. S. Code Section: 20000 (ciwi Rights A Ac of 1964, :

Section 401)

Ks used i in this title (b) ‘Desogieiatioat” means the -

mais assignment of students to public schools ‘and within

such schools without regard to their race, color, re-

-ligion, ‘or national origin, but ‘desegregation’ shall

not ‘mean the assignment of students to —

schools i in order. to overcome racial imbalance. cs

}

° | Sinteahent

Public School No. 149 is. Jocated in the stidniiaaile known

as J. ackson Heights, New York. This part of the com-

munity is comprised mostly of white inhabitants. ‘The

school, at one time, had as its students all White pupils.

> ashkerhood changed, and, as of September, 1964,

approximately 87% White students, -— 13% N egro

Puerto Rican students. _—_ mi

‘Public School No. 92 is located in’ the aiisiieiie known

~ as Corona, New ‘York. This part of the- ‘community is

comprised mostly of Negro inhabitants. At one time the

student body was rather mixed, but due ‘to shifting popula--

tions as of September, 1964, the school. had 97 o N “ero

. children attending it. : :

The respondents made an * administrative delieutie:

tion to.“balance” the races between these’. schools. As a *

3 " subterfuge, scheme’ and device, they introduced certain

alleged additional. educational facilities to cloak - ad-

| mitted real reason for the determination.

| The Special Term, Queens County, had found that “ « &

is clear that a: very important, probably the most hsloct:

ant factor in the respondents’ determination was the

reduction of. racial imbalance”. There is no question but

that race was-the most important consideration for the |

_ determination.. Prior to the determination, children at-

tended their schools without er to race considerations ,

of any degree. | ba 7

The ‘Tespondents’ determination requires * a@ilaren of

~~ tender. years to walk. "past their nearest... school, cross)

heavily. trafficked thoroughfares, sustain inconvenience,

hardship*and deprivation of freedom of hele, and be.

deprived of constitutional guarantees. |

No hearing on the matter was ever held before the Com-

missioner of Education of the State of New York.

The respondents had, at one time, suggested some 42.

schools to be involved in their accra praeamn, but

reduced this to 8 en.

Reasons for Granting the Writ '

One of the most crucial, if not the most crucial, of the

problems facing this nation’ ‘today is the preservation of

the rights of all persons, without regard to race, color,

religion or ethnic origin. An American must be free to

proceed through life, and attain the fruits of our society ©

unencumbered by. his color: or race. He must not be ac-

corded a particalar encanta or détrimental sruatonent

before the law.

Here,. the respondents have up-rooted children, both:

_ Negro and White, based on their color, because the re-

spondents attempt to accord beneficial treatment to a race.

’ The .respondents directive destroys the value of a neigh-

‘borhood: school. The respondents apparently: are not ©

satisfied by the racial composition of the neighborhood

feeding the schools. The respondents desire to ‘balance’

the races, that is, White and Negro race. Nothing in the —

| a determination refers to Orientals or Indians.

The petitioners children are subjected to the ieniade

of . bei », transferred from their existing neighborhood

school | a more distant one because sas are White.

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| Pupil assignments founded anen racial Cotisidera: |

tions are repugnant to the requirements of equal

protection and due process. ~~ pe

This Court has’ held that assignments of public. school |

pupils, solely onthe basis of their race, amounts ‘to S...

‘

deprivation of equal proteefion of the laws. Brown Ve

- Board of Education, 347 . 438, 74 S. Ct. 686, 98 L. Kad.

-

583 (1954): inde

Similarly, this Court has held that pupil assignment *

predicated upon racial considerations: constitutes an un-

constitutional deprivation of due process of ‘law. Bolling: |

v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L.Ed. 591

(1954): Rhaee Mundrea 3 ae

Sa (“Classifications based solely upon race ‘must be: sctu- |

tinized with particular care, since they are contrary to

our traditions and hence constitutionally. suspect.”) |.

See also, Goss v. Board of Education of Knoxville, 373-

U. S. 683 at 686, 83 S. Ct. 405, 10 L. Ha.-2d 632 (1963).

(“We note that if the transfer provisions were made

- available to. all students regardless of their race and

regardless of the racial composition of the school to which

they requested transfer, we would have an entirely differ-

- ent case? Pupils could then at their option (or that of —

their parents) choose entirely free of any imposed racial

- considerations. to remain in the school of their zone, or to ©

transfer to another.

“Classifications basedzon race for purposes of transfer

between public schools, as here, violate. the Equal Protec-. °

» tion clause of the Fourteenth Amendment. “As the Court |

said in an earlier case * * * (racial classifications’ are:

obviously irrelevant and invidious).

ee

tai State and Federal asians on the ques- ,

tion of desired racial quotas makes a resolution of the

present case of vital importance. 4

. - American life today .i@ rife with senthitiog contentions,

by majority-—and minority—groups, to. the effect that

restrictions should be imposed upon the one, or that

‘special privileges should be accorded to the-other, on the ©

basis of racial or etinic considerations. ;

It is éssential in cases of this area of our national life

that the’ state : adhere strictly to the principles of objective

constitutional neutrality.

To subject out Constitution on . the one. hand’ to the de-

mands of segregationists, who seek a compulsory separa-

tion of the races; or, on the other hand, to the demands

: ‘of those: who ‘seek an across-the-board system of racial

quotas, is in each instance to surrender the _ of objec-

_ tive laws to that of subjective men. -

_. This Court, and some lower courts, aave consistently

setsguiond that the concept of compulsory racial quotas is

repugnant to the overriding interest of constitutional

neutrality. ;

_. Hughes v.. California; 339 U. S. 460, 4 L.Ed. 985, 70.

S, Ct. (1950) (petitioners held not entitled to picket, to.

secure compliance with demand that’ store employees be in

proportion to the racial origin of its customers). ander

Downs v. Kansas City Board of Education, 336 F. 2d

988 (10th Cir. 1964), cert. den. 380 U. S. 914, 85 8, Ct. °

898, 13 L. Ed. 2d'800 (1965).

+ See also Collins v. Walker, 329 F. 24 100, 105 (5th Gin)

AONE), geet. dem, 379.0. 8. 901, 85 8. ion eee ide-

liberate inclusion of Negroes in a grand jury held as

“much a deprivation of equal protection as their deliberate |

, exclusion)”. ° © .'. * eee :

_ Swain v. Alabama, 380.U: 8. 202, 85 S.Ct. , 13 L

Ed. 2d. 759 (1965) (defendant, convicted of felony, held

not entitled of right to a racially balanced jury). |

Wright v. Rockefeller, 376 U.-8. 52, 84 8. Ct. 603, 11 L.

Hid. 2d 512, reh. den. 376 U. S. 959, 84 8. Ct. 964 (1964)

" (petitioners held-not entitled to a. racially balanced Con-

gressional election district), Site eee |

However, the ‘Federal Courts of Appeals, as well as eens

State Courts of last resort, have been unable to. agree:

-“even upon the basic concepts which should apply in this ’

area of legal ‘controversy. Consequently, the law is un-

settled, and should be‘reconciled, — .

Bell v. School City of Gary, Indiana, 213 F. Supp. 819,

aff'd 324 F.2d 209 (7th Cir. 1963), cert. den; 84 S. Ct. 1223,

377 U. 8. 924, 12 L. Ed. 24-216 (1964) (petitioners held not

entitled of: right to racially “balanced” public schools).

_” Jackson v. Pasadena, 31 Cal. Rept. 606, 382 P. 2d 878

(1963) (petitioners held entitled to racially balanced

schools), ©. i | 7

Taylor v. Board of Education of New Rochelle, 191 F.

| Supp. 181, aff’d.294 F. 2d 36 (2d Cir. 1961) cert. den. 368

‘U.S. 940, 82 8. Ct. 382, 7 L; Bd. 24 339 (1961) (racial

“imbalance” in public schools held a deprivation of equal ©

protection). — oe eas > ph ae

+ Rippy v. Borders, 250 F. 2d 690 (5th Cir. 1957) (peti-

~ tioners held not entitled to racially “balanced” schools).

The f i“ en the Respondents are authorized by

‘law to administer the schools does not dispose of their

The Court of Appeals relied upon Matter of Vetere, 15

‘N. Y. 2d 259 in the instant case. In the latter matter, the

majority of the Court held that it could not interfere with

an administrative determination which the Education Com- _

missioner has power to make.

Matter of Vetere, supra, is now before this Court under |

.. Docket No. 246, 1965.

_ However, this Court has made clear the rule that admin-

istrative actions of school officials, even if otherwise

proper, are nevertheless unconstitutional if founded upon

racial considerations.

Grifin vy. County School Board of Prince Edward

County, 377 U. 8. 218, 12 L. Ed. 2d 256, 84 S. Ct.-1226

(1964) (“Whatever nonracial grounds might support a

state’s allowing a county to abandon public schools, the ©

object must be a constitutional one, and grounds of race

'* * *do not qualify as constitutional”). :

It is for the Court, and not the Administrative agency

to determine what action is within or without the law.

wary v. O’Conmell, 303 N. Y. 46.

The violation by the respondents, of their own criteria,

has further deprived the petitioners of their constitutional :

rights. «

- No other similar case, with the exception of Matter of

_ Vetere (U. 8. Supreme Court Docket No. 246—1965), has

reached the U. 8S. Supreme Court for decision. Involved ©

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_ here is a “pairing plan” for. racial placement. The .

factual situation in Matter of Balaban v. Rubin (14 N. Y.

2d 193, cert, denied 379 U. S. 881) is not ee to

the case at bar.

Here, constitutional rights are deeply involved. This

et should review the ve below. Sars

CONCLUSION

This petition for a Writ of Certiorari shoud be

granted.

| _ Respectfully gubmitted,

Attorney for’: Petitioners,

| 277 Broadway,

"New York City, N.Y.

212 RE 2.1238 ©)

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_ APPENDIX. A

Decision of the Court Below

In the wsliiee of Remo J. ‘Addabbo, individually and as _— .

parent and natural guardian of Raymond Addabbo, ete,

and others, . |

a | Petitioners, — ° |

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James B. Donovan, ete, and others, constituting the Board

of. Education of the City of New —_ etc., and others,

Respondents.

ae aflirmed; without costs. (See Matter of Balaban

v. Rubin, 14 N. Y. 2d 198, cert. den. 379 U.S. 881; Matter

of Vetere v. Allen, 15 N. Y. 2d 259; Matter of Van Blerkom , Bae

v. Donovan, 15 N. Y. 24 399). No-opinion. All coneur;—— 9 me

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APPENDIX B

Judgment of the Court Below

At a Special Term, Part II of the Mens

Court of the State of New York, held in

the County of Queens, at the General

< Courthouse, 88-11 Sutphin Boulevard,

_ Jamaica, New York, on 1 the 29th day of

July, 1965.

Present—Hon. Lester Hetiintie J ustice if -

ee

- ———————— ae

In ‘THE: Marrer OF

The Application of Remo J. Appasso, individually and as

the parent and natural guardian of RayMonp AppABBo, an —

infant; Perer J. Bauipes, individually and as the parent

and natural guardian of RicHarp GrorcEe BaLIvEs, an

_ infant; ALBert Biumstern, individually and as the parent _

and natural guardian of Lisa SHart BLUMSTEIN, an infant;.

Watrer Yactvk, individually and as the parent and natural

guardian of WattTer Yaciuk,-an infant; Bernarp Fisten,

individually and as the parent and natural guardian of

MicuaeL Ray Fisten, an infant; Jerome Kann, individu-

‘ ally-and as the parent and natural guardian of Martin.

Davip Kann, an infant; Artaur KavurMan, individually

and as the parent and natural guardian of Cyntuia Lynn

‘ Kavrman, an infant; Ase Parker, individually and as the

parent and natural guardian of SHery. Parker, an infant; -

Axsert TuREK, individually and as the parent and natural

guardian: of Excen Susan Turek, an infant; Seymour

WasseRMan, individually and as the parent and natural

guardian of. Barry Sreven WasserMAN, an infant; and

Harotp Zap, individually and as the parent and natural

guardian of Epwarp Marx Zap, an infant, and on behalf.

of other children similarly situated, and as residents and_ .-

- taxpayers of of the County. of ‘Queens i in the area of Jack- |

son Heights, serviced by Public School #149, Jackson.

Heights, Queens County, City and State of New York, ae

: Petitioners,

'. for an order under -Arficle 78 “ofthe Civik Practice Law ~

and Rules, to review the determinations, orders and plans.

of the Board of Education, : 7

against =e

JAMEs B. Dosovas, Luoyp K. Garrison, Josep G. Baran,

_Aazon Brown, Morris lusnewrrz, Mary Conway Kouzes, .

‘CuarENcE Senior, Rose-SHapmo, anp AuFrep A. GraRDANO,

pense micdty 3 Board of Education of the City of New

---York; Carvin E. Gross, Superintendent of Schools, City of

New York; and Bernarp E. Donovan, Executive Deputy

Superintendent of Schools, City of. New —_—

A petition and supplemental’ petition havhig been filed

by the above named petitioners as parents and natural

guardians of the respective above named infants, for’ an

order under Article 78. of the Civil Practice Law and

Rules, to review and set aside the determination of the =

; respondents to take certain action in relation to the assign-

ment of pupils to schools within a newly established com-.

munity zone, and said petition and supplemental petition

_ having duly come on to be heard at a Special Term of the

Supreme Court, Queens County, and after due delibera-

tion said Court having ‘rendered its decision dismissing,

the petition and the Supplemental petition, and an appeal .

having been taken by the petitioners from the judgment

of the Supreme Court aforesaid to the Appellate Division,

Second Department, and said appeal having duly come on

to be argued before the said Appellate Division of the

Supreme Court and that Court having affirmed the deci-

sion of the Supreme Court, Queens County, and petitioners

herein having appealed to the Court of Appeal from the

judgment of the Appellate Division, Second Department,

‘ and said appeal having come on to be heard before the |

“eres ot ok at Chis. ve nell stee clpet hase es be kee Sere TS ee aoe .~ =.

4a

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~ Court of Apjicale, and after isin by Bernard Kessler, :

Esq., for: the: petitioners, and by Sidney P. Nadel, Esq.,

of Counsel for the respondents, and due deliberation hav-

ing been had thereon, and ‘said Court having rendered

' its decision, that the judgment of the Appellate Division

te .

— of the Supreme Court, Second Department do be affirmed

without costs, and having further ordered that the records

and the proceedings i in the Court of Appeals be remitted

to the Supreme Court of the State of New York, there

to be proceeded upon according | to law.

~ Now, on motion of Bernard Kessler, Esq. m diternny for

the petitioners, |

Ir 1s ORDERED, that the oudes of the Court of Appeals in

the above entitled matter which affirmed the judgment of -

the Appellate Division, Second Department herein which

‘said order of.the Appellate Division, Second Department —

affirmed the judgment of the Supreme. Court, Queens -

County, be and the same hereby i is made the order of-this

Court, and it is further,

OnvERED, that respondents have judgment dismissing the

petition. and supplemental petition herein.

ENTER

LESTER HoitzMan

J usti¢e of the Supreme Court

Game: a j - Filed: 7/80/65

~“Faly 29, 1965

Pavt Livort oa 7 , a

Clerk at ;