Petition for Writ of Certiorari — Eckels v. Ross

el a a ail ee ie a de el Lek aaa ik

a alc a RR Elle a a

ba i aali Rn ditlt la

SE OSE SITS SO MDI OT

Supreme Court, U.S.

Fine PD

LIBRARY NOV 18 1979

PREME Court, y

a ietcinetinti (

IN THE

Supreme Court of the United States

October Term, 1970

rs

no__982

HOUSTON INDEPENDENT SCHOOL DISTRICT, 4

ET AL., Petitioners, : :

Vv. :

UNITED STATES OF AMERICA,

Intervenor-Respondent,

Vv.

DELORES ROSS, ET AL.,

Plaintiffs-Respondents

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ERNEST H. CANNON

W. JAMES KRONZER

500 Houston First Savings Bldg.

711 Fannin Street

Houston, Texas 77002

Special Counsel for Petitioners

in Desegregation Matters

Alpha Law Brief Co, M&M Bidg., Houston, Texas 77002

2 . Patorye Se oP yams Yaet LEN ere et ea “ ae

ns ee ee a Co ONeRS TT ac aRE tT Tee . “ whore

- sa er Pe eer Me cae or ww on

APTS NITE ORNATE NER Ca OTE oy Mee OR DIC My

INDEX

ESO ee Cee ee

ES ae re en re

I oe ccc k sc uen aes

Constitutional Provisions Involved ...........

I a Pt ee hus ge re ne

Reasons for Granting the Writ. ..............

I. The Court of Appeals erred in ordering

pairing on its own initiative merely to accom-

plish statistical integration ..............

II. “Pairing” without proof is not a permissible

substitute for contrary fact determinations by

oo, poh esa we keen 6 a8

III. The “Equi-distant Plan” (or the alternatively

presented “Geographic Capacity Plan”) was

the only complete plan and workable plan

before the Court..................

Comcemes @eG Preyer ..........5......%.:

eee eal ara ar ares i a Py

TABLE OF AUTHORITIES

Bivins v. Bibb County Board of Education, 425

F.2d 1211 (5 Cir. 1970) ......

Carr v. Montgomery County Board of Education,

429 F.2d 382 (5 Cir. 1970) (No. 29,521,

Pe ee RD ke een

Davis v. Board of School Commissioners of Mo-

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

é

7

;

;

Il

Ellis v. Orange County School District, 423 F.

2d 203 (5 Cir. 1970)

Harvest v. Board of Instruction of Manatee

County, Fla., 429 F.2d 414 (5 Cir. 1970)

Singleton v. Jackson Municipal Separate School

District, 430 F.2d 368 (5 Cir. 1970)

Swann v. Charlotte-Mecklenburg, O.T. 1970,

Nos. 281, 349

Thomas v. West Baton Rouge Parish School

Board, et al., 423 F.2d 1203 (5 Cir. 1970)

United States of America v. Board of Education

of Webster County, Georgia, F.2d

(5 Cir. 1970) (No. 29,769, July 7, 1970)

United States of America v. Jefferson County

Board of Education, 372 F.2d 836 (5 Cir.

1966) Pea is ioe, |

Page

6

13

12

10

13

13

IN THE

Supreme Court of the United States

October Term, 1970

NO.

HOUSTON INDEPENDENT SCHOOL DISTRICT,

ET AL., Petitioners,

V.

UNITED STATES OF AMERICA,

Intervenor-Respondent,

Vv.

DELORES ROSS, ET AL.,

Plaintiffs-Respondents

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioners pray that a writ of certiorari issue to re-

view the judgment of the United States Court of Appeals

for the Fifth Circuit, entered in the above entitled case

on August 25, 1970.

2

OPINIONS BELOW'

The opinions of the courts below directly preceding this

are as follows:

i. Transcribed bench remarks of Honorable Ben C.

Connally, District judge of July 23, 1969, following

the evidentiary hearing of July 14-23, 1969 [un-

published] (Appendix A);

2. Memorandum and order of District Court of May

30, 1970 [as yet unpublished] (Appendix B);

3. Opinion of Court of Appeals of August 25, 1970

[as yet unpublished] (Appendix C).

JURISDICTION

The judgment of the Court of Appeals was entered on

August 25, 1970. No motions for rehearing were pre-

sented by any party. The jurisdiction of the Court is

invoked under 28 U.S.C. Section 1254(1).

QUESTIONS PRESENTED

1. Whether. in this school desegregation case involving

the nation’s sixth largest school district and the largest

yet to be brought under a federal court order, the Court of

Appeils erred in ordering racial assignments resulting in

the pairing of certain elementary schools merely to achieve

statistical integration.

2. Whether “pairing” of schools is appropriate without

any expert proof or hearing as to the nature of the desegre-

gation accomplished, the extent of desegregation, and the

effect of desegregation from an administrative and edu-

cational standpoint.

1. Because they are voluminous the appendix of opinions is printed

separately.

Kan

\ vm

“ hs cee eae we

TOMBALL KLEIN

SAS TNR oe”) wi te DD RTE ML Bot Sold 3 MPEGS

CATE ER FA REE RE

he acdol ap’

COUNTY SCHOOL DISTRICT

Figure 1

MONTGOMERY CO.

SPRING

MAP

teeerty co.

HUFFMAN

764

a > 1,443 2,346 1,834

e

“ 3

\ WALLER $ ° €

a HUMBLE e

\ . hed wis 2PM etascocets wr,

INTERCONTINENTAL Z 238 ]

” *RESe 4 AtRPORT ‘ aad >

STRUKE® 5 *

\ ALDINE >

~ Loceenoco as

*

\ noUSsesHAwa CYPRESS-FAIRBANKS * 21,368 oR : re

wauaer co. , 4 v2, 257 .

Md ¢

6,035 GULF BAKA be >

wT. wuusTon Garnett? enoao CROSBY eT

£¢E NORTHEAST

CHTTLE vor« -2 HOUSTON

BECKENFORE my > SHELDON

W 16/5565 ° CHAMBERS CO

CREEKMONT e ra 2,429 BARBERS HELE .

\ = CLAY ROAD tay Launacnoree pe te wet hisveng tw,

~ . a an

rs « : 20 . 34 Y 3

2 : ee 2 . 3

rz = ~ = v P| - %

> KATY eat ¢ SPRING BRANCH : - 7€ CHANNELVIEW : 9

< z . 4. . :

: < in “ f : GOOSE CREEK

. 1,472 | 38,520 : ais 56 Sata OP 23

° ty ~ 4

seo. me : GALENA PARK °*, ir % 13 896 "tf

o &> ¢ “is z ae > 2 “A 8

2 ° c c ee

‘“ — WESTHE EME z a rine 2 as

“ » 4 ” - ~ ~

Ye ‘NX — REEL = < 4 DEER PARK “A g

z lige

° HOUSTON i ree :

[ote 6249 ‘

2 petmene PASADENA : a, AY

“oeRY F 35,508 suure ko

ateroet $

ee eee

WHERE DISTRICT IS PARTLY

OUTSIDE HARRIS COUNTY

THE COUNTY LINE !S SHOWN

BY DASHES exam aus acum

.

Orazonta co.

“Te,

eLceneton

erene

a hii

(7 |

Sea

wate

,

a

ue

Galveston co,

CLEAR CREEK

Y. .

up

3

3. Whether the Court of Appeals erred in partially re-

jecting the finding of the District Court adopting an “Equi-

distant Plan,” patterned after the decision of the same

Court in Ellis v. Board of Education of Orange County,

Florida, 423 F.2d 203 (February 17, 1970), as urged

in the dissenting Opinion.

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Due Process and Equal Protec-

tion Clauses of the Fourteenth Amendment to the Consti-

tution of the United States.

STATEMENT

The Houston Independent School District is the sixth

largest school system in the United States. The student

enrollment in the 1969-70 school year was 241,154,

of which almost two-thirds were white and one-third black.

Of this number of “white” scholastics approximately

thirty-six thousand (36,000) were Spanish surnamed

Americans. (See Dissenting Opinion of Judge Clark,

Appendix C.) These Spanish surnamed American scholas-

tics have been historically considered as Caucasian or

white in the District, a fact heretofore recognized by all

parties to this cause.

The District covers approximately 311 square miles, and

its boundaries generally coincide with the City Limits of

Houston. There are nineteen (19) other independent

school districts within Harris County, Texas with an

approximate enrollment of one hundred and seventy-five

thousand (175,000) students. (See figure 1) As can be

seen from the location of the other school districts, many of

the centers of such districts are closer to the downtown

Houston area than portions of the Houston District itself.

etree er eager rere

RUM A Hectic

Peis sscttiedbasnsnino

PBR IO BE TE ES AR et TL IE AES IS BNL, PEAR 2 SPAT SOTA MTA. *

4

On September 5, 1967, the District Court, following

a hearing, ordered the Houston District to utilize a

Jefferson-type “freedom of choice” plan based upon the

requirements of United States v. Jefferson County Board

of Education, 372 F.2d 836, 890-92 (5 Cir. 1966).

The system has operated under that plan until the com-

mencement of the 1970-1971 school year.

In July of 1969, pursuant to a Motion for Further

Relief by the Plaintiffs-Respondents and the United States

of America, which had intervened, an extensive hearing

was held, following which the District Judge concluded

that the “freedom of choice’ plan then being utilized by

the District did not achieve a sufficiently high degree of

desegregation to be acceptable under the decisions of the

Court of Appeals for the Fifth Circuit, and that the

District should submit for his consideration a “complete

zoning and/or pairing” plan by January 1, 1970. (See

Appendix A)

Following that time, the school board, as it was then

constituted, resubmitted a “freedom of choice” plan, and

a zoning plan. In November of 1969 a District-wide

referendum poll was taken, the results of which reflected

overwhelming support for a “freedom of choice” plan. Only

three (3) of the thirty-seven (37) predominantly black

boxes voted against continuation under the “freedom of

choice” plan. (See the District’s submission of Janu-

ary 1, 1970.) ©

At the hearing of July 14-23, 1969, the Plaintifis-

Respondenis submitted a pupil assignment plan with five

(5) large zones to reach a result that no school hope-

fully, would have more than fifty per cent (50%) black

5

enrollment within the entire District. It was prepared by

persons not familiar with the District, its transportation

routes, or other administrative problems. It contemplated

massive bussing and cross-bussing of students to achieve

student racial balance. While Plaintiffs did not seek equal

student racial balance at the time they presented their

plan to the District Court because of the obviously pro-

hibitive costs, when the matter was pending before the

Court of Appeals they did suggest the adoption of a plan

seeking equal student balance in each of the schools

within the district. (See page 10 of Plaintiffs-Respondents

Brief. )

The Government-Intervenor, after the hearing of July

14-23, 1969, offered a “partial plan” prepared by an

expert witness from the Florida Desegregation Center,

Dr. Michael Stolee. His plan was admittedly in-

complete, and he was not further called as a witness

by the Government during the hearings held in the

Spring of 1970. However, following the hearing in July

of 1969, the District Court suggested that the School

District consult with the Texas Educational Desegregation

Technical Assistance Center (TEDTAC), an agency con-

nected with the University of Texas, but funded under

Title [IV of the Civil Rights Act of 1964, to assist the

District in devising a zoning and/or pairing plan. (Ap-

pendix A) The co-operation of this agency left much to

be desired, and subsequently, when the District learned

that, rather than assisting, it was devising a plan to

satisfy the Department of Health, Education and Wel-

fare, it disavowed the adoption of any portion of the

TEDTAC plan. (See the District’s Submission of March 2,

1970)

Qe rrcerseeernesgtreasates WISEHKE. >

6

Based upon two recent decisions of the Court of

Appeals for the Fifth Circuit in Bibb County, Georgia,

and Orlando, Florida, Bivins v. Bibb County Board of

Education, F.2d ___._ (5 Cir. 1970); Ellis v. Orange

County School District, 423 F.2d 203 (5 Cir. 1970) on

March 2, 1970, the Houston Independent School District

submitted two additional plans for the consideration of the

trial Court. One of these was a “geographic capacity

zoning plan” prepared in substantial accordance with the

Bivins decision, and the other was an “equi-distant zon-

ing” plan prepared pursuant to the holding in the Orange

County case with appropriate modification to deal with

special capacity problems in the Houston District.

After additional hearings held on April 6 and May 11,

1970, and the consideration of the entire record, the Dis-

trict Judge adopted an “equi-distant” plan for the Houston

District, and rejected the “freedom of choice” plan also

proposed, although recognizing that it had been “admin-

istered fairly and complctely without discrimination by

defendant District for several years.” (See Appendix B).

He also rejected the two other zoning plans of the District,

primarily upon the grounds that if human discretion is in-

volved in the drawing of school zones, jt can always be

demonstrated that a greater degree of desegregation can be

accomplished by gerrymandering for that purpose irre-

spective of the educational and administrative disadvan-

tages. (See Appendix B). The District Court then found

as a fact that an equi-distant zoning plan, such as pro-

posed by the board on March 2, 1970, was the best plan

for the system from an educational and administrative

standpoint. He refused to order the “pairing” of schools

to accomplish further desegregation, and there was no ex-

7

pert proof before him regarding the administrative or ed-

ucational advantages of pairing.”

Following his decision the Plaintiffs-Respondents and

the government gave notice of appeal to the Court of

Appeals. The Fifth Circuit ordered the adoption of the Di-

trict’s geographic zoning capacity plan of March 2, 1970

for secondary school levels, in that it accomplished a

slightly higher degree of desegregation than did the equi-

distant plan, and accepted the equi-distant plan at the

elementary level, except that it ordered eleven (11) pairings

and the rezoning of another predominantly black school

with a predominantly white school. This entire action was

taken

(1) without any supporting expert proof as to the

feasibility or desirability of such pairings, and

(2) upon the Court’s own initiative without any con-

sideration being given to the framework of relief

sought by any party to the cause.

The pairings were ordered notwithstanding the objections

of Petitioner to any pairings, and particularly with respect

to pairings of economically disadvantaged chidren. Because

2. The trial Court had expressed displeasure with the “pairing

concept during the July 1969 hearing.” He stated that it “did not

make sense” to him to have the children congregate at the “nearest

school” and then be transported to the assigned school (Tr. 829).

He was not without expert support. Dr. Stolee, the Government’s

primary trial expert, stated he had encountered “varying degrees of

unsuccess with pairing” (Tr. 919). Dr. Baines, a District witness, cri-

ticized “pairing” of children with different socio-economic backgrounds

as being “educationally unsound” (Tr. 1050), and that under-achievers

of all races will find ways to miss the bus (Tr. 1054). Drs. North

and Kennedy pointed out the administrative difficulties with “pairing.”

(Dep. North. 17-18).

Mo ws tv ne eS

8

the order of the Court of Appeals was not based upon

administrative or educational feasibility, considerable

community disruption has resulted and full compliance

with this aspect of the decision has still not been ob-

tained.*

The Court ordered the pairing of the following ele-

mentary schools:

Aterton ........ pair with Eliot and Scroggins -—

ME flo. ee a a pair with Anson Jones

es ya, pair with Roosevelt

ore pair with Sherman

ME hoy ae pair with Lantrip

| pair with Fannin

N.Q. Henderson .. pair with Pugh

Pleasantville ..... pair with Port Houston

ee ee ere pair with Ryan and Looscan

| eer pair with Frost

Sanderson ....... pair with Easter and/or Chatam

Of the fourteen (14) schools ordered to be paired with

substantially all-black schools, seven (7) are predomin-

antly composed of Spanish surnamed American students.

These “pairings” result from the contiguity of the resi-

dential areas of Spanish surnamed Americans to sub-

stantially all-black residential areas. While it is of course a

fact that Spanish surnamed Americans have not been

causally zoned into these residential areas under a dual

school system, such as is alleged by the Plaintiffs-Re-

3. It would appear that neither of Respondents would seek to

uphold this portion of the decree of the Court of Appeals. Moreover,

a number of Mexican-Americans have sought to intervene as a class

to enjoin and prevent the proposed pairings.

9

spondents with respect to formerly all black schools,

nonetheless, the pairing of the two groups has many edu-

cational ramifications and difficulties.

In the District Court, Petitioners opposed pairings not

just for constitutional and adminstrative reasons, but be-

cause pairings of blacks and Spanish surnamed Americans

is not always educationally sound. (See North and Ken-

nedy Depositions, page 32) Moreover, while the in-

tervenor, United States of America, adopted the TED-

TAC proposal shortly before the decision of the District

Court, and in which one hundred one (101) elementary

schools were either paired or grouped, the eleven (11)

pairings ordered by the Circuit Court did not correspond

except in one particular with that claim for relief.

To further illustrate the patent error of the Court of

Appeals in ordering these pairings on its own initiative,

without supporting evidence or proof, the order even com-

manded the pairing of some predominantly black schools,

with other predominantly black schools, thus ac-

complishing no additional desegregation. The only

effect of what it did in that respect was to dilute

the limited percentage of whites attending the schools

that would be paired. For example, Ross Elementary was

ninety-four per cent (94%) black, and Ryan is seventy-

nine and five-tenths per cent (79.5%) black, and Loo-

scan is one and four-tenth per cent (1.4) black. Also,

Sanderson, Easter and Chatham, are all predominantly

black schools. True, Chatham had more than ten per cent

(10% ) whites, but pairing it with two all-black schools

will dilute all three schools to a level below the ten per

cent (10% ) integration factor sought by the Court of Ap

peals and the District Court.

FR ARR RA PET TAM PRR NT

Bye a ak ee

PAE

2

z

E

&

&

;

3

3

Ps

%

3

g

=. *

z

;

Se atte ee se

SPOT LT PS es Se

10

In addition to the disruptive effect of these pairings or-

dered without supporting expert proof, but done solely to ac-

complish statistical integration, the bilingual program

adopted by the District under Title VII is enervated by

the pairings in Looscan, Sherman, and Anson Jones Ele-

mentary Schools.

Even if “pairing”, with its attendant educational and

disruptive effects, is once again affirmed as a viable

tool to desegregate in the Charlotte-Mecklenburg (O.T.

1970, Nos. 281,349), and Mobile) (O.T. 1970, No. 436),

cases, it should not be adapted without evidentiary sup-

pert as to workability or feasibility, or that it would assist

in establishing a unitary system.

REASONS FOR GRANTING THE WRIT

I.

The Court of Appeals erred in ordering pairing

on its own initiative merely to accomplish statistical

integration.

Indisputably, the Court of Appeals ordered the “pair-

ing” of the various elementary schools enumerated without

any proof, regarding the nature, extent, or effect of its

actions, and solely upon its own initiative. Nor were the

“pairings” within the reach of any of the prayers or mo-

tions foi relief of any of the parties. Both Respondents

have publicly disapproved the result of these “pairings.”

Not even elementary due process was accorded the parties.

While school desegregation cases have become a breed

apart, at least some semblance of. the forms of action

must remain.

PROS

11

On the “Equal Protection Clause” aspects of the case,

Petitioners assert, as do the Districts in O.T. 1970, Nos.

281, 349, 436, that students cannot be assigned to non-

neighborhood schools on a racial basis merely to over-

come previously existing racial imbalances, and that, be-

cause of the distances involved, the “bussing” of students

that will be required because of the “pairing” order is

violative of the inhibitions imposed upon all courts under

the Civil Rights Act of 1964. Bec:iise of the forcefulness

of those presentations in these other causes, which were

submitted on October 12 through 14, 1970, the energies

of the Court will not be further claimed by a less ex-

haustive treatment of these questions at this time.

Nor does this District ask that the cause be remanded

for the development of testimony concerning “pairing”;

rather, the District requests an affirmance of the District

Court’s order as it applied to the elementary schools.

II.

“Pairing” without proof is not a permissible sub-

stitute for contrary fact determinations by the trial

Court.

The only workable “plans” for student desegregation

placed before either of the Courts below were those set

forth in Petitioners’ submission of March 2, 1970. All

others, save the so-called TEDTAC “plan”, were admit-

tedly incomplete and/or not subject to implementation for

the 1970-71 school year. Even the TEDTAC proposals,

which the trial Court erroneously permitted the govern-

ment to adopt as its “plan” on May 11, 1970, without

any evidentiary hearing or supporting proof, was not

2 la maceRi:

12

utilized by the Court of Appeals in ordering the “pair-

”

ings”.

Although the Court has treated this type of case in the

nature of an equity-type proceeding, there is nothing to

be found in any of its previous pronouncements author-

izing the substitution of pure judicial polemics for fact-

findings of a trial court, particularly where to do so

flaunts sound educational goals. As the dissenting judge

succinctly observed:

“There is only one answer. It is rapidly becoming

apparent that despite expressed disclaimers [See Sin-

gleton v. Jackson Municipal Separate School District,

F.2d , 9 Cir., 1970 (No. 29,226, August 12,

1970) (Footnote 5, slip opinion page 4)], the special

school case panels of this Circuit are now out ahead

of the requirements laid down by the Supreme Court

and have adopted sub silento some unmentionable

standard of numerical pupil racial balance to govern

the affirmance or reversal of school case decisions.

For the good of the schools and pupils of this Cir-

cuit, I for one do not understand why the magic

figures must remain a mystery enshrouded in ne-

bulous phrasing that says that the plan adopted is

ineffective or unacceptable.”

That some sanctity must attach to the work of the

federal courts of original jurisdiction is self-evident; other-

wise, nothing of substantial value can be contributed to

the unraveling of this complex and oftimes emotional

probiem by the arm of the federal judiciary closest to it.

It was not until the August 12 decision in the Singleton

case that the Fifth Circuit began to wholly initiate or orig-

inate “plans” without evidentiary support or based upon

testimony adduced under the auspices of the district courts.

13

Prior to that time the Fifth Circuit shied away from such

intercessions, No. 29,521, Carr v. Montgomery County

Board of Education, F.2d (June 29, 1970); No.

29,425, Carolyn Harvest v. Board of Instruction of Ma-

natee County, Fla., F.2d (June 26, 1970); No.

28,572, Donald Jero:ne Thomas v. West Baton Rouge

Parish School Board, et al., F.2d (March 4,

1970); No. 29,769, United States v. Board of Education

of Webster County, Georgia, F.2d (July 7, 1970),

but apparently judicial impatience with the “progress” and

“extent” of desegregation has wrought its toll.

This District respectfully urges that neither impatience,

nor any other motive, supports the abandonment of the

judicial process in the name of pure statistical integration

of school systems!

It is noted with more than passing interest that counsel

for the Plaintiffs-Respondents (being the same counsel for

Petitioners in O.T. 1970, 281 and 349) respect the ju-

dicial process in this type of proceeding when it favors

their cause. On page 46 of their Petition the following

appears:

“There is nothing in this development of school

desegregation law since Brown which warrants the

departure from the traditional rule of appellate re-

view announced by the plurality opinion of Judge

Butzner for the court below * * *,”

Again, in the same Petition, opposing counsel states:

“The district court’s decision that the Finger Plan

is feasible is in any event supported by substantial

evidence. Jt was error for the court of appeals to

substitute its own finding of “unreasonableness” where

SPR La BL, al te alae Od lat aS Ms eR Be thes hate.

te aly

BoD eee:

14

there was no claim that the district court’s findings

were clearly erroneous. Cf. Northcross v. Board of

Education, 397 U.S. 232, 235 (1970).” (Emphasis

added)

In sum, Petitioner urges the Court of Appeals erred in

“substituting” its judgment for that of the Trial Court,

particularly with respect to the “pairings” which are with-

out any evidentiary support in the record.

III.

The “Equi-distant Plan” (or the alternatively pre-

sented ‘Geographic Capacity Plan”) was the only

complete plan and workable plan before the Court.

Petitioner is not attacking the order of the Court of

Appeals adopting the geographic zoning capacity plan

at the secondary school level, not only because of its

greater administrative flexibility, but because it was or-

dered to implement the decision only six (6) days before

the opening of the schools. Interterm transfers to comply

with the adoption of an equi-distant plan for the entire

District would now be additionally disruptive in this school

system.

At the elementary level, because of the more limited

geographic areas involved, a proximity plan, with appro-

priate majority-to-minority transfer provisions, offers one

of the only potential plans to integrate a metropolitan

school system.* This was recognized in the District Court,

4. Under present economic limitations facing urban school systems,

it is doubtful whether any “plan” predicated upon forced integration

will work for substantial periods of time, particularly in those dis-

tricts— such as the Houston District — surrounded with numerous

15

but disregarded in the Court of Appeals purely to establish

statistical integration.

“bedroom districts.” Figure 2 graphically illustrates this truism. Ex-

cept for the Northeast Houston and Crosby Districts, no other Dis-

trict in the County has as much as 20 per cent black student popu-

lation. These recent figures can be supplied under a supplemental

transcript if any question is raised concerning their verity. The Court

will also note that the Galena Park and Crosby systems do not show

an increase in student population. Not only does Galena Park have

the next highest concentration of black student population, but it,

like Houston and Crosby, is under integration order.

FIGURE 2

MEMBERSHIP COMPARISON OF

HARRIS COUNTY SCHOOL DISTRICTS

1969-70 — 1970-71

Spring

Schoo] Districts 1970-71 1969

Aldine 24,736 20,365

Alief 3,380 1,547

Channelview 3,547 3,249

Crosby , 1,967 2,103

Cypress-Fairbanks 6,974 5,368

Deer Park 6,729 6,328

Galena Park 11,982 11,662

Goose Creek 14,270 12,976

Houston 241,154 245,396

Huffman 906 543

Humble 2,631 2,227

Katy 1,580 1,480

Klein 2,603 1,775

LaPorte 4,451 3,934

Northeast Houston 15,545 15,138

Pasadena 35,654 33,656

Sheldon 2,795 2,349

Spring 2,292 1,260

Spring Branch 39,774 35,734

Tomball 1,622 1,399

First Reporting Period

Research Department

November 10, 1970

16

Judge Clark, in his dissent, put the matter thusly:

“Additionally, I would not reverse because the

District Court relied upon valid precedent still viable

in this Circuit, Ellis v. Board of Public Instruction

of Orange County, Florida, 423 F.2d 203 (5 Cir.,

1970). The District Court did not adopt the Orange

County plan on the basis that it was some sort of

talisman with universal therapeutic qualities for merg-

ing all school district student bodies. Rather, as the

majority states, the trial court analyzed the general

geographic and student and teacher racial composi-

tions of the Orange County and Houston Districts

and found them to be legally comparable. Yet, the

majority opinion rejects the use of this plan for

Houston while it in no way demonstrates an efficient

legal distinction between the Houston and Orange

County Sciool Districts. Certainly the mere fact that

Orange County denominated the requirement that

a child attend the school closest to his home as a

neighborhood school system and the District Court

in the case sub judice labeled the same plan and

equi-distant zoning plan, is not controlling. That is

the difference between tweedledum and tweedledee,

which is no difference at all. Why can Orange County

still exist as the law of this Circuit applicable to

that county, to Tuscaloosa and Anniston, Alabama

[See Lee v. Macon County, F.2¢. ‘ot *

1970 [No. 29,584, July 14, 1970]], and to Fulton

County, Georgia, a suburb of Atlanta [See High-

tower v. West, F.2d. , 5 Cir., 1970 [No.

29,933, July 14, 1970], but not in Houston, Texas?

I assert it is not, as the majority suggests, because

of the continued existence of all Negro or virtually

all Negro schools. The opinion in Orange County

expressly states that it left three schocls projected

to have all Negro student bodies and it intimated

that other Negro students would be attending other

17

virtually all Negro schools. In Fulton County, High-

tower stated it intended to leave one school all Negro,

one school 98% Negro and two other schools in

excess Of 87% Negro. See also Mannings v. Board

of Public Instruction of Hillsborough County, Florida,

F.2d , » Cir., 1970 [No. 28,643, May 11,

1970].”

That the determination and the adoption of a “plan”

as a viable and workable method of establishing a unitary

system constitutes a “fact-finding” that should not be set

aside in the absence of a showing of an abuse of discretion,

or that the “plan” is totally unworkable, is again borne

out by the arguments of counsel for the Swann group in

O. T. 1970, No. 281. Discussing the equitable nature of

these cases, counsel eloquently argued that:

“The elementary plan ought to be upheld if the

case is governed by the traditional rule for appellate

review of a chancellor’s decree in equity. The pre-

vailing ru: is that equitable discretion in framing

remedies is necessarily broad and that a strong

showing of abuse of discretion must be made to

reverse such a decree. United States v. W. T. Grant

Co., 345 U.S. 629 (1953); Continental Illinois Nat.

Bank & Trust Co. v. Chicago R. 1. & P. Co., 294

U.S. 648, 677 (1935); United States v. Corrick, 298

U.S. 435 (1936); Rogers v. Hill, 289 U.S. 582

(1933). In order to set aside the equity decree the

appellant “must demonstrate that there was no reason-

able basis for the district judge’s decision,” and thus

that the remedy is so lacking in rationality as to

amount to an abuse of discretion. United States v.

W. T. Grant Co., supra, 345 U.S. at 634.

“This Court’s decisions in school cases have relied

on traditional equitable principles on remedial issues.

Pe ee ee ee eT

sii ile Nae AAA Etc: 3 i A itt i AOR SoA cent icra ee Aa ice Pace Cas, ICR

18

In the second Brown decision the Court invoked the

tradition of equity which was said to be “character-

ized by a practical flexibility in shaping its remedies

and by a facility for reconciling public and private

needs” (349 U.S. at 300). The Brown II Court

cited with approval a passage in Alexander v. Hill-

man, 296 U.S. 222, 239 (1935), stating.

Treating their established forms as flexible, courts

of equity may suit proceedings and remedies to

the circumstances of cases and formulate them

appropriately to safeguard, conveniently to adjudge

and properly to enforce substantial rights of all the

parties before them.” (pages 44-5)

It is quite accurate to say that these remarks were

made by counsel in the context of seeking to uphold a

“plan” favorable to, their cause, but certainly counsel

in the present cause (being the same as in Swann) would

not have the temerity to urge a contrary rule in the

present appeal.

The real and only reason for imposing the Court-

initiated “pairings” upon this District was to accomplish

a higher degree of statistical integration than was reachable

under the “plan” adopted by the District Court. The

dissent put it more strongly:

“The true principle that underlies the reversal of

the District Court here is that the neighborhood

school system ordered for Houston did not achieve

that degree of racial balance some of the Judges of

this Circuit have declared is “enough” we do nothing

but delude ourselves when we adopt such a premise.

Like chasing the pot of gold at the end of the

rainbow, this reasoning embarks us on a course with-

out an end. Unless someone would be boldly foolish

enough to assert that the Courts can deprive school

19

district patrons of their freedom, then it follows as

the night follows the day that the Courts will never

finish litigating such “numbers games” cases.”

This District should be permitted to try to resolve its

difficulties under the “plan” adopted by the District Court,

or the “geographic plan” alternatively urged by it in the

Courts below. They are consistent with the “compact

zones” concept of Brown II, and essentially preserve the

“neighborhood school” concept. The patchwork “plan” of

the Fifth Circuit — particularly the “pairings” — has and

will do nothing towards obtaining the goal of a unitary sys-

tem with the supposed educational advantages of an in-

tegrated system.

CONCLUSION AND PRAYER

The Court of Appeals ordered the pairing of schools

in which large groups of economically disadvantaged per-

sons would be interchanged purely for reasons of racial

balance. As the dissenting Judge noted, and as the Dis-

trict proved in the Court below, this achieves nothing

more than temporary statistical integration. Even more

significantly, the potential pairings ordered without expert

proof has brought, and will bring about substantial com-

munity disruption and interference with the effective op-

eration of the school system.

The equi-distant plan perhaps affords the most appro-

priate opportunity for school systems, such as Houston,

to fully establish a unitary system, at least considered

with the other elements of a unitary system as announced

by this Court in the Kent County decision. :

20

Wherefore, this District prays for the following relief:

(1) The pairings be eliminated, and the “equi-distant

plan” of the District Court be adopted for the elementary

level; or

(2) The Court alternativeiy adopt Petitioner’s “geo-

graphic capacity” zone plan for the primary schools with-

out “pairings”.

Respectfully submitted,

Nee I

E st H. CANNON

W. JAMES KRONZER

500 Houston First Savings Bldg.

711 Fannin Street

Houston, Texas 77002

Special Counsel for Houston

Independent School District

in Desegregation Matters

21

CERTIFICATE

The undersigned certifies that on the 1S day of

November, A.D. 1970, he did mail, by first class United

States mail, three copies of the foregoing Petition and the

Appendix of Opinions to counsel hereinbelow named, and

that said counsel will be immediately notified of the date

of docketing with the Clerk of Court.

Conrad K. Harper, Esquire

10 Columbus Circle

New York, New York 10019

Welden Berry, Esquire

711 Main Bldg.

Houston, Texas 77002

Bernard H. Shapiro, Esquire

Brian Landsbery, Esquire

Attorneys

Civil Rights Division,

U. S. Department of Justice,

Washington, D.C. 20530

Anthony Farris, Esquire

United States Attorney

515 Rusk Avenue

Houston, Texas 77002

. James Kronzer