Opposition Brief — Board of Public Instruction v. Harvest

Supreme Ceurt, US,

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IN THE ERG :

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Supreme Court of the United State

October Term, 1970

No. 745

THe Boarp or Pusuiic INstrucTION or MANATEE CouNTY,

Fiori, et al.,

Petitioners,

Vy

CaroLine Harvest, e¢ al.

ON PETITION-FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION TO CERTIORARI

Jack GREENBERG

James M. Nasrit, III

Norman J. CHACHKIN

Drew S: Days, III

10 Columbus Circle

New York, New York 10019

Eart M. Jonnson

625 West Union Street.

Jacksonville, Florida 32202

Attorneys for Respondents

1|

TABLE OF CONTENTS

PAGE

Opinions Below .... 1

Jurisdiction . 1

Questions Presented ................ 2

Constitutional Provisions and Statutes Involved ........ 2

RT AGUTIIOINE, | on cessncisecaicesesseses ae

ARGUMEDT ............- 9

CONCLUSION .......... 12

TaBLE oF AUTHORITIES

Cases:

Alexander v. Holmes County Board of Education, 396

ip. 5p: Be | Seeeneraenmman 9

Brown v. Board of Education, 347 U.S. 483 (1954)........ 9

Brown v. Board of Education, 349 U.S. 294 (1955)........ 9

Carter v. West Feliciana Parish School Board,¥26 U.S.

DRG SOE nice . 4,9

Carter v. West Feliciana Parish School Board, 396 U. S.

226 (1969) ...... 3

Davis v. Board of School Commissioners of Mobile

County, No. 436, O.T. 1970 .. . 3

Ellis v. Board of Public Instruction of Orange County,

Florida, 423 F.2d 203 (5th Cir. 1970) 8

PAGE

Green v. County School Board, 391 U.S. 430 (1968)... 2, 9,

10, 11

Harvest v. Board of Public Instruction of Manatee

County, 421 F.2d 136 (Sth Cir, 1969)... 3

Louisiana v. United States, 380 U.S. 145, 154 (1965)... 11

Raney v. Board of Education, 391 U.S. 443, 449 (1968) 11

Singleton v. Jackson Municipal Separate School Dis-

trict, 419 F.2d 1211 (5th Cir, 1969)... 3,5

Swann v. Charlotte-Mecklenburg Board of Education,

Nos. 281 and 349, O.T. 1970 ...............--++++ oe io. oe

United States v. Jefferson County Board of Education,

380 F.2d 385 (Sth Cir. 1967)...............c.ccscsscseccesessrersneees 2

Statutes:

28 U.S.C. 1254(1) ..

oe ie OU a ene 8

Supreme Court of the United States

IN THE

OcToser TERM, 1970

No. 745

Tue Boarp or Pusuic INstruction or MaNnaTEE County,

Fiorina, et al.,

Petitioners,

—

Carotine Harvest, et al.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION TO CERTIORARI

Opinions Below

The opinion of the Court of Appeals (Pet. App. A.1)

is reported at 429 F.2d 414 (5th Cir. 1970). The decision

of the district court is unreported.

Jurisdiction

The decision of the Court of Appeals was entered on

June 26, 1970. The petition for certiorari was filed on

September 23, 1970. The jurisdiction of this Court rests

on 28 U.S.C. 1254 (1). |

2

Questions Presented

Whether the Court of Appeals was correct in ruling that

the District Court did not abuse its discretion by approv-

ing an HEW-prepared plan that totally desegregated a

previously dual school system.

Constitutional Provisions and Statutes Involved

Pertinent excerpts from the Fourteenth Amendment to

the Constitution of the United States and the Civil Rights

Act of 1964 are set forth at pages 2-3 of the petition.

Statement

This school desegregation case was commenced in Jan-

uary of 1965 as a class action seeking injunctive relief

against the continued operation of a dual, racially segre-

gated school system in Manatee County, Florida. The

board (petitioners herein) initially adopted a freedom of

choice plan which was subsequently altered by district

court decree of May 15, 1967 to comply with a then-recent

decision in United States v. Jefferson County Board of

Education, 380 F.2d 385 (5th Cir. 1967). In October, 1968,

plaintiffs (respondents here) filed a motion for further

relief in accord with this Court’s decision in Green v.

County School Board, 391 US. 430 (1968). At that time,

the Manatee County school system operated 29 schools of

which 5 were all-black or virtually all-black (90%—99.9 %

black). Seventy-six percent of black school population at-

tended these five facilities and over 50% of the black teach-

ers in the system taught at these all-black or virtually all-

black schools.

In response to this motion, the district court required

the board to submit a plan for the conversion of Manatee

County schools to a unitary, non-racial system. The

board’s geographic zoning plan, submitted in February,

3

1969, left four schools—three elementary and one middle

school (grades 6-8)—all-black. With respect to faculty

desegregation, the board proposed to establish a minimum

ratio of 51% white teachers in all schools in the system. In

April, 1969 the district court rejected the board’s plan to

the extent that it permitted the continued existence of

several all-black schools. It instructed the board to revise

zone lines in order to achieve some desegregation in the

three all-black elementary schools, thereby desegregating

as well the all-black middle school into which the elemen-

tary schools were to feed. The board moved for a new

trial which was denied in June, 1969. An appeal was taken

from that denial in July, 1969; plaintiff filed a notice of

cross-appeal in August, 1969. On that appeal, the board

argued, in essence, that the district court erred in requir-

ing desegregation of the four all-black schools. Plaintiffs,

on the other hand, contended on cross-appeal that the

lower court’s order, requiring only alteration of zone lines

to desegregate the four all-black schools and approving the

faculty provisions, did not go far enough under existing

constitutional doctrines. In December, 1969, the court of

appeals, acting on the cross-appeal, reversed and remanded

the order of the district court for compliance with the re-

quivements of its decision in Singleton v. Jackson Municipal

Separate School District, 419 F.2d 1211 (5th Cir. 1969).

It found that the plan proposed by the school board and

later amended by the district court did not establish a

racially unitary school system. Harvest v. Board of Public

Instruction of Manatee County, 421 F.2d 136 (5th Cir.

1969). On January 7, 1970, in response to a motion by

plaintiffs, the court of appeals recalled and amended its

mandate to conform with the decision of this Court in

Carter v. West Feliciana Parish School Board, 396 U.S.

226 (1969).

4

On January 26, 1970, subsequent to this Court’s deci-

sion in Carter v. West Feliciana Parish School Board, 326

U.S. 290 (1970), the district court held a hearing in order

to consider alternative plans of desegregation—three for-

mulated by the Florida School Desegregation Consulting

Center (H.E.W.), two formulated by the board, and one

other plan presented to the court by intervenors.

The three plans presented to the court by H.E.W. were

denominated as Plans A, B, and OC, all directed in differ-

ing degrees toward achieving desegregation of three vir-

tually all-black elementary schools, one all-black middle

school, and with achieving faculty desegregation so that

all schools in the system had ratios of black to white

teachers in accordance with the ratio of black to white

teachers employed in the system as a whole. Plan A rec-

ommended the pairing of each of the three predominantly

black elementaries with three adjacent, predominantly

white schools. The effects of the implementation of Plan

A would be, according to the H.E.W. report, to decrease

the percentage of black students in the three black ele-

mentaries from 98.3% to 65.6%, from 98.2% to 60.4% and

from 100%. to 66.5%, respectively. The second alterna-

tive, Plan B, involved the clustering of the three black

elementaries respectively with separate groups of three,

four and two adjacent predominantly white elementaries.

The implementation of Plan B would have the effect of

reducing the percentaze of black students in the first black

elementary from 98.2% to 17.8%, in the second elementary

from 98.3% to 36.2%, and in the third elemcatary from

100% to 24.4%. The final plan prepared by H.E.W., Plan

C, recommended pairing one black school with an adjacent

predominantly white school, and clustering the second and

third black elementaries with two adjacent predominantly

white schools each. Under this plan the third black ele-

mentary would serve as a fifth and sixth grade center for

5

all children in its zone, in the second black school’s zone

and in the zones of the white schools with which they were

clustered (six schools in all). Plan C would reduce the

percentage of black students in the three black elemen-

taries from 98.2% to 38.9%, from 98.3% to 48.9% and

from 100% to 49.3% respectively. All three plans pre-

sented to the court by H.E.W. contained identical recom-

mendations for desegregating the all-black middie school

and for faculty desegregation. H.E.W. recommended pair-

ing the all-black middle schools with a nearby predomi-

nantly white middle school. And it proposed the achieve-

ment of the system-wide ratio of black and white faculty

in each school in the county.

In addition to the plans submitted by H.E.W., two other

plans, denominated No. 1 and No. 2, were presented by

the board for the court’s consideration. Plan No. 1 was

a classic freedom-of-choice plan. Plan No. 2 envisioned

a partial implementation of H.E.W.’s Plan C. Students

would spend one-half their day in the schools to which

they were already assigned and the other half in the

schools to which they would be assigned under Plan C.

The last of the six plans submitted to the court, that of

intervenors, was a modified freedom-of-choice plan in which

any child might select any school to attend, school offi-

cials were to urge students to transfer and notify their

parents of this right to do so, and all students electing to

transfer were to be provided with transportation. Like

the plans submitted by H.E.W. and the board, faculties

were to be desegregated according to a system-wide for-

mula. In the “Notification of Compliance” filed on January

26, 1970, to which frequent reference is made in the peti-

tion (pp. 4-5), the board indicated that it had met the

requirements of Singleton, supra, with regard to faculty

desegregation and, on that basis alone, sought the dis-

6

trict court’s approval of the Manatee County school sys-

tem as unitary.

In its order of January 29, 1970, prior to the ruling on

the alternative plans of desegregation submitted to it, the

district court found with regard to the Manatee County

school system that:

As to faculty, the system is not unitary. Teachers

are not assigned so that the percentage of black teach-

ers at each school is substantially the percentage of

black teachers throughout the system at that level, as

is required by Singleton. As to students, the system is

unitary as to secondary schools, with the exception of

Lincoln Middle School, which is all-black. The elemen-

tary schools are segregated; it is the elementary

schools \.hich most fall short of the law of the land

and which account overwhelmingly for Manatee’s

status as a dual system. Three elementary schools

(Bradenton, Memorial and Tillman) are virtually all-

black. Ten elementary schools (Anna Maria, Duette,

Myakka, Bayshore, Daughtrey, Ellenton, Miller, Palma

Sola, Prine, Samoset) are virtually all-white. (Petition

A. 7)

Turning to a consideration of the alternative plans of

desegregation recommended by H.E.W., the district court

rejected alternative Plan A and alternative Plan C. The

court indicated in rejecting Plan A that its result would

be to increase unconscionably the percentage of black stu-

dents at presently desegregated schools and to decrease

inadequately the percentage in predominantly black schocls

leading, therefore, inevitably to resegregation. Plan C was

rejected by the court first, because many schools continued

as all-white facilities, secondly, because under such a plan

the percentage of black students in already desegregated

7

predominantly white schools would be altered so as to

invite resegregation and, finally, because the predomi-

nantlv black schools would not be satisfactorily desegre-

gated.

With regard to the plans proposed by the board, the

court rejected Plan No. 1 because freedom-of-choice had

traditionally failed to disestab.ish dual systems and because

such methods shifted the affirmative duty of abolishing the

dual system from the shoulders of the school boards, where

it belonged, to the students and their parents. Plan No. 2

was rejected by the court for the same reasons that H.E.W.’s

Plan C was rejected. The plan submitted by the intervenors

was rejected on the same grounds given by the court for

rejecting the board’s Plan No. 1. Having considered five

of the six plans presented to it, the district court indicated

its approval of Plan B, stating as follows:

Plan B effectively desegregates Manatee County

schools and establishes a unitary system as to students.

All but three elementaries, all of which are distantly

located, are effectively integrated and the nature of the

desegregation is such that no resegregation will result.

(Petition A. 5)

As to the desegregation of the all-black middle school, the

court accepted the H.E.W. proposal of pairing it with a

nearby predominantly white middle school as the only way

to end its segregated status. On the matter of faculty de-

segregation, the board was ordered to assign teachers so

that the faculty composition of each and every school con-

tained a ratio of black to white teachers substantially the

same as the ratio of black to white teachers in the school

system as a whole at the educational level. The board was

ordered to implement Plan B on or before April 6, 1970 to

establish a unitary system in Manatee County.

8

On February 24, 1970, the board filed notice of appeal,

seeking review of the district court’s January 29, 1970 order.

No stay was granted pending appeal. However, as a re-

sult of several] ancillary proceedings in the district court,

the court of appeals and this Court involving opposition by

the Governor of Florida to the proposed desegregation of

Manatee County schools,’ Plan B was implemented on April

13, 1970, one week later than the deadline required by the

lower court’s order.

By order of April 15, 1970, the court of appeals, acting

pursuant to 28 U.S.C.A. § 2106, directed the district court

to supplement its findings of fact in the instant case with

respect to the following matters: (1) the present racial

composition of the student population in every schocl in

Manatee County school system; (2) the number of white

students who could be assigned to the predominantly black

schools if an Ellis? type neighborhood assignment plan were

implemented in Manatee County; (3) maps showing loca-

tion of each school in the system and the attendance area

served; (4) a description of the school transportation sys-

tem; (5) a description of present or proposed construction

or expansion of school facilities; and (6) the existence of a

bi-racial advisory committee. After hearing both parties

and permitting them to file proposed findings of fact, the

district court submitted its supplemental findings of fact on

April 24, 1970.

On June 26, 1970, the 5th Circuit unanimously affirmed the

district court’s ruling stating:

1 Details of these proceedings can be found at 425 F.2d 1224

(5th Cir. 1970), 90S. Ct. 1254 (1970) and 312 F. Supp. 269 (M.D.

Fla., 1970).

2 Ellis v. Board of Public Instruction of Orange County, Fla.,

423 F.2d 203 (Sth Cir. 1970).

9

The issue on this appeal is not whether the district

court selected the best possible plan for unitizing the

Manatee County School System but rather whether that

couri abused its discretion by adopting an unworkable

plan or one based on an incorrect legal standard [cita-

tions omitted]. Expressed in other terms the appellate

question is: Did the district court invoke a remedy so

extreme as to constitute an abuse of its discretion?

However put, the answer clearly is: No. (Petition A.

1-2).

In affirming, the court of appeals indicated that its action

was “without prejudice to further consideration by the dis-

trict court of the present student assignment plan in light

of the experience gained since its implementation.” (Peti-

tion A. 2). In accordance with this directive, the lower court

has subsequently approved two board-suggested modifica-

tions of Plan B in orders of August 24, 1970 and January 4,

1971.

ARGUMENT

Petitioners seek review by this Court of the same issue

presented to the Court below, namely, whether the district

court abused its discretion by ordering a plan implemented

that totally desegregated a formerly dual school system.

The district court was obligated by rulings of this Court in

Brown v. Board of Education, 347 U.S. 483 (1954) ; 349 U.S.

294 (1955), Green v. County School Board, supra, Alexan-

der v. Holmes County Board of Education, 396 U.S. 19

(1969) and Carter v. West Feliciana Parish School Board,

326 U.S. 290 (1970) to disestablish immediately the dual

school system in Manatee County.

Specifically, Green, supra established that:

The obligation of the district courts, as it always has

been, is to assess the effectiveness of a proposed plan

CALPE FOR eo MENT ON

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10

in achieving desegregation. There is no universal an-

swer to complex problems of desegregation; there is

obviously no one plan that will do the job in every case.

The matter must be assessed in light of the circum-

stances present and the options available in each in-

stance. It is incumbent upon the school board to estab-

lish that its proposed plan promises meaningful and

immediate progress toward disestablishing state im-

posed segregation. It is incumbent upon the district

court to weigh that claim in light of the facts at hand

and in light of any alternatives which may be shown

as feasible and more promising in their effectiveness.

391 U.S. 4380, 439

In accordance with this responsibility, the district court

considered three plans prepared by educational experts

from an H.E.W. Center, two plans prepared by the board

and one other prepared by intervenors to determine which

plan would most effectively disestablish the dual school

system in Manaiee County. Notable vestiges of the dual

system were four all-black schools and continuing segrega-

tion of faculty.

The court’s rejection of the two fredom-of-choice plans

propused by the board and by intervenors was clearly in

line with this Court’s holdings in Green, supra. Nor did it

act improperly in disapproving the half-and-half modifica-

tion proposed by the board of H.E.W. Plan C. After evalu-

ating the three remaining plans, the court chose Plan B as

the most effective since it clearly reduced to the lowest level

the percentage of black children in the formerly all-back

schools. Plan B, contrary to petitioners’ assertions, was

prepared by educational experts who considered it as a

feasible and workable plan of desegregation. H.E.W. pre-

ferred Plan C to Plan B solely because it regarded the lat-

ter as “more extensive than necessary and would meet with

11

considerable adverse community reaction.” In reviewing

the district court’s order, the court of appeals found noth-

ing to indicate that Plan B was infeasible or unworkable.

To the extent that petitioners claim that the courts below

erred in considering the prospects of resegregation in order

to determine the most feasible plan, that argument is fore-

closed as well by decision of this Court. Since Brown II,

supra, this Court has pressed district courts to exercise

their broad powers in order to eliminate segregated schools

“root and branch” and has declared that a district court has

not only the power, but in fact “the duty to render a decree

which will so far as possible eliminate the discriminatory

effects of the past as well as bar like discrimination in the

future.” Green, supra, at 488; Louisiana v. United States,

380 U.S. 145, 154 (1965) ; and Raney v. Board of Education,

391 U.S. 443, 449 (1968). Green, supra, indicated that the

question of desegregation must be assessed by the district

court “in light of the circumstances present” in each case.

The district court was not clearly in error in viewing re-

-segregation as one of the circumstances that should be con-

sidered in this case to evaluate the relative effectiveness of

the plans presented to it. Petitioners present no argument

to establish that the requirements of Green, supra were

violated in any way. Since the principles established by this

Court in the Green case dispose of the only significant issue

raised by the record in this case, the petition for a writ of

certiorari should be denied.

Insofar as petitioners seek review of the questions of

racial balance and busing which they contend are raised by

this record, this Court presently has before it two cases,

Swann v. Charlotte-Mecklenburg Board of Education, Nos.

281 and 349, this Term, and Davis v. Board of School Com-

missioners of Mobile County, No. 436, this term, in which

those issues have already been extensively briefed and

12

argued. To the extent that decisions in those cases may

affect the issues decided in this case, appropriate motions

for supplemental relief or modification may be presented

to the courts below.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

Jack GREENBERG

JAaMEs M. Naszit, IIT

Norman J. CHACHKIN

Drew S. Days, III

10 Columbus Circle

New York, New York 10019

Eart M. JoHnson

625 West Union Street

Jacksonville, Florida 32202

Attorneys for Respondents