Petition for Writ of Certiorari — Adams v. Evansville-Vanderburgh School Corp.

Oct 12 Wie

SUPREME COURT OF THE UN

October Term, 1972

@2-595 :

No. A-264

ICHAEL RSEAK, £8. CLER

EMIL F. ADAMS, ET AL,

Petitioner

vs.

EVANSVILLE-VANDERBURGH SCHOOL

CORPORATION, ET AL.,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

Joseph A. Yocum

305 Union Federal Building

Evansville, Indiana 47708

Phone: (812) 423-3183

Attorney for Petitioners

Edwin R. Smith, Jr., Attorney

1304 Old National Bank Building

Evansville, Indiana 47708

Phone: (812) 425-5137

Of Counsel

Page

EE on nS cdcekeetcccencccndcecsesounees 1

PE SR Ckh as Oe OU der Ken ccnonseedoesveenes 1

EE ib cb bes HeDeK Vane see seenonces 1

ne 2

Reasons for Granting Writ ................. eee eeees 6

Tee ee ee a ld ss mee ee 12

CITATIONS

CASES:

Bell v. School City of Gary, (1963, CA7 Ind)

324 F2d 209, cert den 377 US 924, 12 Led

i cebincedGevadoven canced en's 3

ne 8

Boyd v. Pointe Coupee Parish School Board,

(U.S.D.C.E.D. La. 1971) 332 F. Supp. 994 ........... 8

Briggs v. Elliott, (ESDC), 132 F. Supp. 776, 777 ........ 8

Brown v. Board of Education, (1954) 347,

U.S. 483, 98 L. Ed. 873 and 349 U.S. 294,

i cea Revenue acgindeesaaneaee 7

Bryant v. Board of Education, (U.S.D.C., S.D.N.Y.,

og ES a er 8

Deal v. Cincinnati Board of Education,

(6th Circuit, 1966) 369 F (2) 55..........eeeceeceee 8

Ellis v. Board of Education of Orange County,

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

Evans v. Buchanan, 207 Fed. Supp. 870............... 8

Goss v. Board of Education, 373 U.S. 683, 10 L. Ed.

I Es sc cblwivadeecdccateets 8

Keyes et al. v. School District No. 1,

Denver, Colorado, et al. No. 71-507 ..............4. 11

Martin, ct al., v. Evansville-Vanderburgh School

Corporation of Evansville, Vanderburgh County,

Indiana (Southern District of Indiana, No.

PC CCr scout Viena wewenucaadhheewadese 5

SNE UL momen is AN a Ste ee NIM: ae ire nm Raat tnt

Punt,

Southerland v. Meyer 271 U.S. 272, 70 L. Ed 943,

SM EE hb OK 4b Chee hed e ewe a ke eeuheanseexees 10

Swann v. Charlette-Mecklenburg Board of Education,

(1971) 28 L. Ed. 554 ........ OLN, 7

U.S. v. Jefferson County Board of Education

(1966) 372 F(2) 836 aff'd. 380 F(2) 385 (1967) ...... 8

MISCELLANEOUS:

27 American Jurisprudence (2) page 652 .............. 10

Indiana Constitution, Art. 8,Sec.1 .............0000. 6

PAP ERNE NTE LO AMET Be EE SAAS

IN THE i

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1972 :

No. A-264

EMIL F. ADAMS, ET AL., Respondent.

vs.

EVANSVILLE-VANDERBURGH SCHOOL

CORPORATION, ET AL., Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

To the Honorable, the Chief Justice of the United

States and the Associate Justices of the Supreme

Court of the United States.

The Petitioner Emil F. Adams, et al. respectfully prays

that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the Seventh

Circuit entered in this proceeding on August 21, 1972.

es KAR s

EE RSD OTLEY ANSI PE TE I OS IE NET AD ALES OIA LE LEE G NGS AAR DAI IN SCO ER

1

OPINION BELOW

The opinion of the Court of Appeals, not yet reported,

appears in the Appendix hereto. The opinion of the District

Court for the Southern District of Indiana also appears in the

Appendix hereto. A motion to stay was filed and denied, by

this court on September t; 1972.

JURISDICTION

The judgment of the Court of Appeals for the Seventh

Circuit was entered on August 21, 1972, and this petition for

certiorari was filed within ninety (90) days of that date. This

Court’s jurisdiction is invoked under 28 U.S.C. Section

1254(1).

QUESTIONS PRESENTED

For at least the last fifteen years, defendant has operated a

unitary school system. Now, defendant proposes to racially

discriminate in pupil assignment. Astonishing as it may be, an

examination of the minutes, records and actions of defendant

board since 1949 will fail to include one charge of “de jure”

segregation by any interested party, but to the contrary, there

is 100% unanimity, by all concerned, on the fact that such

segregation that exists in defendant school system is “defacto”

only. (See plaintiffs Exhibit 8 and defendants Exhibit D intro-

duced at trial and a part of the certified record herein). H.E.W.

first instituted the charge of “de jure” segregation in onc of

the 37 elementary schools operated by Saosin namely,

Lincoln elementary school. It is against this factual back-

ground that the following questions are presented:

1. Do the guarantees of the Fourteenth Amendment

apply equally to all children, regardless of race, within a given

school district?

2. Does the Fourteenth Amendment prohibit a school

board from using race as a basis for pupil assignment?

3. Is the non-discriminatory neighborhood school no

longer an acceptable institution within the educational system

of the United States of Amcrica?

ee ee ee a eS

2

4. Is racial balance to become the law of the land and the

stated objective of the federal government?

5. Does a school board have a duty to eliminate defacto

segregation?

STATEMENT OF THE CASE

The jurisdiction of the district court was invoked under

Title 28 U.S.C. § 1343, and Title 42 U.S.C. §§ 1981, 1983.

This case involves rights under the federal constitution.

The facts are virtually undisputed in this case. Defendant’s

Exhibit D (introduced at trial) contains excerpts of defendant

board meetings and actions from January 1949 to the present

concerning the matter of school desegregation. A clear and

concise history is presented therein, a it is against this back-

ground that petitioners largely rest their case.

Prior to 1949, defendant board followed the “separate but

equal” doctrine in pupil assignment. in 1949 the Indiana

Legislature, enacted legislation declaring such doctrine to be

no longer permissible (See App. 9 ). There upon, the de-

fendant board on April 11, 1949, immediately proceeded to

comply with this new Act of the Indiana Legislature. Com-

mencing in 1949-50 upon a grade per year basis, the dual

system had been eliminated by 1957. Thereafter, all children

residing within a geographical area of a given school in Evans-

ville had the right to attend such school regardless of race. The

attendance plan was based upon the traditional “neighborhood

school” concept, without discrimination as to race or color. In

1962, Lincoln High School was dissolved due to declining

enrollment (economy reasons) and each of the surrounding

high school attendance zones was extended into the Lincoln

attendance area (similar to pie slices) a few years later when

the new “Central” High School was opened. In 1962, the

“freedom of choice” plan was rescinded by the defendant

board and all students regardless of race were required to

attend the school in whose district they resided. In 1966, the

voluntary transfer plan sometimes called “majority to

minority” plan, was instituted. Thus, for at least the last ten

years, defendant has maintained a unitary system without

discrimination as to race or color. As said by Dr. Morgan, an

ene ie au te ee Bere ee tc ee a ee

SCOPE EERIE LANNE EOP

a

3

executive in defendant school corporation, during the trial:

Q. 80. (by Mr. Smith) Dr. Morgan is the race of a

student presently considered in the assigning of

students among the elementary schools?

A. (by Dr. Morgan) To my knowledge it has not

been until this time — until this proposed plan

has been presented.

Thus, up to the adoption on November 17, 1971, of the

“desegregation” plan, all students, regardless of race, were

required to attend the elementary school located in the area of

their residence unless they took advantage of the voluntary

transfer plan. School assignment was on a geographic basis,

and the school location was determined in part by population

density, future growth of the area, physical facilities, etc. The

attendance zones, prior to 1971, were based upon the resi-

dence of the pupils, and not their race or color.

It is important to note that the attendance zones for the

37 elementary schools within defendant’s school district were

not gerrymandered in order to perpetuate segregation. At one

time, both Stanley Hall and Wheeler were primarily “white”

schools. These two schools are located in the so-called

“inner-city” of Evansville and like all other cities, both north

and south, became majority “black” schools through —

neighborhood patterns. These two schools are io closed,

pursuant to the 1971 plan of defendant. Lincoln, prior to

_ World War II, was bounded on the south and east with white

neighborhoods, but, as in the case of Stanley Hall and Wheeler,

it too has become located in the middle of black neighbor.

hood.

Like many of her sister cities in the north, certain of de-

fendant’s schools became identifiable “black” or identifiable

“white” not through any scheme or design by official action,

but due to voluntary change in the neighborhood residential

pattern in these cities. Evansville’s history is ~~ similar to

Gary,! Indiana, which was involved in similar litigation in

1967.

1 Bell v. School City of Gary (1963 CA7 Ind) 324 F2d 209,

cert den 377 US 924, 12 L ed 2d 216, 84 S Ct 1223.

—

For example, Chestnut-Walnut school originally was an

identifiable “white” school and then became an identifiable

“black” elementary school, before being closed in 1957 for

economic reasons. Likewise, Lincoln remained, up to 1971 as

a virtually all “black” school, but this was not due to any

official state action. Lincoln is located in a predominately

Negro area and that is the reason why it is an identifiable

“black” school as was the case in Gary, Indiana. It has not

been shown that defendant ever took any affirmative action to

perpetuate segregation in Evansville-Vanderburgh County. :

These then were the existing facts in 1971 when H.E.W. :

appeared on the scene. As a result of the pressure of H.E.W.,2 j

e

defendant adopted a desegregation 2nd racial balance plan on

November 17, 1971, sm Pi Baker, Columbia, Delaware and 4

Lincoln Elementary Schools. A copy of this plan is attached to 4

petitioner’s original complaint. These three schools are located '

in majority white neighborhoods and located within 1.2 miles

of Lincoln School. The plan provides for a reassignment of

white pupils from the Columbia, Baker and Delaware School :

districts to the Lincoln Elementary School, and a reassignment x

of black pupils from the Lincoln district to Columbia, Baker, f

Delaware and some cight other majority “white” elementary i

schools. As a result of this racial balance plan, defendant :

projects an estimated 70% white and 30% black in each of the :

four said schools. The proposed plan, among other things, calls E

for the transfer of 175 black children from Lincoln to 7

Columbia, 123 black children from Lincoln to Delaware, and

164 black children from Lincoln to Baker, with 134 white F

children to be transferred from Baker to Lincoln, 80 white 3

children from Columbia to Lincoln, and 157 white children é

from Delaware to Lincoln. It will result in increasing the en- :

rollment in each of the four schools. The plan calls lor 3,040

out of 22,280 or approximately 13.6% of the children to be

bussed or reassigned. The plan will result in gerrymandering

attendance zones in order to establish the desired racial

i Gite ae Se

POL Aas

Lky Oey s

2U.S. Dept. of Health Education and Welfare.

5

balance in the 4 schools. None of the attendance zones for the

four schools will be continuous and contiguous to any of said

schools.

Asa = of defendant's 1971 racial Salance plan, certain

white children (petitioners herein) presen attending

Columbia, Baker aa Gieoe Elementary Schools will be

bussed/transferred to Lincoln School in order to schieve racial

balance among the four said schools. No white children from

the remaining 33 elementary schools are to be bussed/

transferred into Lincoln School pursuant to defendant's 1971

lan, although a number of these schools are to receive the

lack children from Lincoln. This action was instituted by the

parents and children who are to be bussed or reassigned from

Columbia, Baker and Delaware to Lincoln School.

On appeal, the Seventh Circuit Court of Appeals affirmed

and held, in short, that the defendant board had the ight to

The following events occurred uent to trial herein

and due to their - Nee Nae Span

On May 10, 1972, de t board approved imple.

mentation of the 1971 by a four-three vote, and on

August 2, 1972, due to c in board personnel, the board

1972, and which was the subject of complaint inthe instant

case. By virtue of another action in the same district court the

schools. The district court also took over jurisdiction of

defendant school system. Thus, the plan “voluntarily”

adopted by defendant on November 17, 1971, which was

rescinded, has now become a required court order by virtue of

Martin et al., v. Evansville- Vanderburgh

as of September 5, 1972.

3Martin, et al., v. Evansville-Vanderburgh School

tion of Evansville, Vanderburgh County,

Indiana (Southern District of Indiana, No. EV 71-C-79).

Not as yet reported.

6

REASONS FOR GRANTING THE WRIT

1. The decision below results in:

(a) denying to plaintiffs equal justice under the law.

(b) discriminati inst plaintiffs because of their

race, as sell te the U.S Constitution.

(c) violates plaintiffs rights under Act 8 Sec. 1 of

Indiana Constitution. 4

The school system presently operating in Evansville,

Vanderburgh County, Indiana is non-discriminatory. The

defendant was, and is, operating a unitary system without

regard to race or color in pupil assignment. The defendant's

system is essentially the same as other school systems through-

out the general northern part of the United States.

Whether defendants 1971 plan was in effect court ordered,

or voluntarily adopted, the ultimate affect is the same insofar

as these plaintiffs are concerned. The enfringement upon their

rights remain the same.

The importance of this case lies in its uniqueness. As of the

present time the Supreme Court of the United States has not

passed upon the question herein presented, i.c., the use of race

as a basis for pupil assignment in a school system that has

heretofore based its assignments upon the residence of the

pupils regardless of race or color.

The significance of this case lies in its pons impact on

other northern unitary school systems who possibly at one

time or another operated a legally issible segregated faci-

lity. And by this | do not mean a ahedlepnen being operated

in the abies of the school board in Swann vs.

‘Common schools. — Knowledge and learning, generally

diffused th out a community, bei pont to the

preservation of a free government; it shail be the duty of

the Gencral Assembly to encourage, by all suitable means,

moral, incellectual, scientific, ~ agric ultural

improvement; to ide, . a and

uniform system of Common Schtole wherein en shall

be without charge, and equally open to all.

OO RTT ree owen vey

SOP (OPW EMP D FD 6 Re 8a we

.

_

:

.

the school boards had a history of resisting the mandate of

Brown I and II¢ to eliminate state imposed ion. That is

certainly not the factual situation in the instant

case. record clearly indicates that the defendant

prior to H.E.W. intervention, had a history of complying firs:

with the law prior to 1949 and then with the law 1949,

Since at least 1957 no child has been forced to attend a certain

school because of his color nor has any child been denied the

right to attend a school because of his color.

Something new has now been injected into defendant

school — as a result of defendant's 1971 racial balance

plan, as follows:

Racial discrimination is now being practiced in deter.

mining pupil assignment.

As a result of this new policy plaintiffs are:

Being denied equal justice under law.

Plaintiffs are being discriminated against because of their

race. This is a direct violation of the Fourteenth Amendment

rights guaranteed by the Constitution of the United States. It

also clearly violates the holding of Brown I supra. As said in

Brown II supra:

“The Fourteenth Amendment prohibits a state from

making racial distinction in the exercise of govern-

mental power”

and also on page 1105 therein:

“To that end, the courts may consider . . . revision

<i ee ee ae Oe ae

pact units to achieve a system of determining

ae to the public schools on a non-racial

5 Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1 28 L.Ed. 554. (1971)

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

98 L.Ed. 873 and 349 U.S. 294, 99 L. Ed. 1083

The Brown cases established the fundamental principal that

racial discrimination or distinction in public education is un-

constitutional under the Fourteenth Amendment.

Prior to defendants “1971 plan”, the defendant school

system was being operated within the mandate of Brown I and :

il. By the adoption of the “1971 plan” the defendant board is

in — ty furt ~~ bey ~ aabe

those two cases. As further the court’s to

racial classification for purposes of . | call the

court’s attention to the cases of 7 ‘County,

ey ake Gone ap die 2 ead at te eae

pn palmeineny «gg ming bere ghee Or

pupil assignment, 1.c., supra, Briggs,!' Evans,!2 Ellis,!3

Brrantt 4 and Boyd.%3

WTES eematrneet ay

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

8U.S. v. Jefferson County Board of Education,

(1966) 372 F(2) 836 aff'd. 380 F(2) 385 (1967).

Goss v. Board of Education, 373 U.S. 683,

10 L.Ed. 2d 632, 83 S.Ct. 1405.

1©Deal v. Cincinnati Board of Education, (6th

Circuit, 1966) 369 F(2) 55.

11 Briggs v. Elliott, (ESDC), 132 F. Supp. 776, 777.

12 Evans v. Buchanan, 207 Fed. Supp. 870.

13 Ellis v. Board of Education of Orange County, Florida,

(Sth Circuit) (1970) 423 F.(2) 203.

oe ge 2) enn eee

” "ee «

14 Bryant v. Board of Education (U.S.D.C., S.D.N.Y.,

1967) 274 F.Supp. 270. .

1$Boyd v. Pointe Coupee Parish School Board, |

(US.D.CE.D. La. 1971) 332 F. Supp. 994.

9

We must address ourselves to this question:

“Are plaintiff children being treated with

the cher childoon in defendant’s atl ae A

being discriminated against because of their race?”

If equal justice under law means what it appears to

then r. i = of plaintiffs are to be equally considered wih

those of all other children, i.e., “black”, and all children are to

be treated the same under law, regardless of their race. This is

the fundamental question presented in this case. Plaintiffs do

not believe that the law allows one child to be treated dif.

ferently than another child because of race or color. This kind

of discrimination was struck down by Brown and if it applies

to one race it certainly applies equally to another race.

Needless to say, if plaintiffs were black children there would

be no question as to their Fourteenth Amendment rights bei

violated by defendant’s action. Can it be said that these

plaintiffs do not enjoy those same rights?

The Swann case supra is not controlling precedent in this

case. The law of that case is not applicable herein because the

facts in each case are entirely different. If the decision in

Swann can be extended to apply to the facts herein, then there

would scarcely be a school jurisdiction in the United States

which could not be interpreted or coming under “the umbrella

of its’ (Swann) protection.” Such a prospect is indeed awe-

some, and would foretell unimagined consequences.

As I perceive the Swann case, it was directed as a school

board which had intentionally “dragged its feet” in complying

with the mandate of Brown II.

We believe the instant case fairly presents a typical

northern school system with a history of compliance with

existing law. If the court is of opinion that plaintiffs constitu-

tional rights are not being violated we would then ask the

court under what circumstance can a board choose to use race

as a basis for pupil assignment without enfringing on the

child’s cunsalealbons! rights under the Fourteenth

Amendment.

2. The decision below results in plaintiffs being denied

their equitable rights.

eon fel UHUO MO RO as

Pr oer OO DW

i) ee ee ee ee ed

10

The jurisprudence of equity largely determines cases such

as herein presented. Particularly is this so when remedial

measures arc involved, such as was mandated by Brown II.

Thus, the courts have largely relied upon equity in making

their decisions.

One of the fundamental maxims of equity “declares that

equality is equity” Southerland v. Mayer.!6 As said in 27

American Jurisprudence (2) p. 652:

“Accordingly, equity will treat all members of a

class on an equal footing, and will impose burdens

or distribute rights without preference, either

equally or in proportion to the several interests.”

Apply this maxim to the facts of this case. If it was in-

equitable to bus black children away from a school nearest

their residence because of their race (as in Brown v. Board of

Education) then it is equally inequitable to bus plaintiff

children away from their respective neighborhood schools

(Columbia, Baker and Delaware) because of their race.

3. The decision below, unless reversed, will result in the

eventual destruction of the neighborhood school in all the

United States.

Schools have historically existed for the benefit of its

pupils. The quality of their education has always been the first

consideration. At no place has it been suggested that de-

fendant’s 1971 “plan” was designed to improve the quality of

laintiffs education. The term “equality of education” has

bom loosely used in these desegregation cases. As was so

intelligently discussed in the Amicus Curiae Brief by the San

16 Southerland v. Mayer 271 U.S. 272, 70 L.ed 943,

46 S.Ct. 538.

18 (TTR ote Tee Tee ey

TT da tla be hal tetoae a ha tad

11

Francisco parents filed in the “Denver”’17 case, this term is

indefinable, and has led to much confusion in the field of

education. Apart from the constitutional question, it is now

virtually conceded by the country’s leading sociologists that

this whole matter of forced desegregation in the public schools

has had no appreciable effect upon the Negro children from

the standpoint of education.

In the instant case, it is hard to imagine how the moving of

black children out of their neighborhood school and tting

white children in their seats is going to result in benslitage

improving the education cf any of the children involved. The

tragic result of this plan is compounded when you consider

that the values and advan of the neighborhood school

concept, as an acceptable p ote policy, have not been

disproved.

Thus, if the undisputed facts herein can justify such a

racial balance plan, then this fundamental part of our social

structure will have been destroyed.

4. If defendant’s 1971 plan is allowed to stand, there will

be no recognizable limit to the exercise of federal control over

the public schools.

The defendants 1971 plan is the result of the incorrect

conclusion of H.E.W. that because one elementary school in

Evansville, Vanderburgh County (out of 37) was virtually all

black this was conclusive evidence of a constitutional violation

by the board. This conclusion is contrary to the undisputed

facts. See defendant’s Exhibit D in the trial below and

certified herein. The undisputed fact is that this one

elementary school (Lincoln) is located in a majority black

17 Wilfred Keyes el al., v. School District No. 1,

Denver, Colorado, et al., No. 71-507.

445 F 2d 990 (10th CIR. 1971)

Cert. granted 92 S. Ct. 707 (Jan. 17, 1972)

Presently pending in this court.

12

ighborhood, and was not the result of any official action on

the part of the school board.

Thus if such a racial balance plan can be thrust upon

Evansville, Vanderburgh County, Indiana then this Court has

embarked upon dangerous and unchartered seas. If racial

quotas are to become the law of the land, then it should be so

stated. Otherwise, the extent of local control over school

matters will be uncertain. Such a holding could conceivably be

applied to private housing, etc.

in, Petitioners wish to emphasize the fundamental

difference between the past actions of defendant board and

those of its neighboring boards in the south. In an unbroken

chain since 1954, the decisions of this Court have dealt with

southern school systems who were resisting the mandate of

Brown v. Board B -~ set sg This Court has not, as yet dealt

with a northern unitary school system, admittedly being

operated in a non-discriminatory manner.

CONCLUSION

For the reasons stated above, Petitioners ask that their

petition be granted or the cause be remanded, and for all

further and proper relief in the premises. _

Respectfully submitted,

Joseph A. Yocum

305 Union Federal Building

Evansville, Indiana 47708

Phone: (812) 423-3183

Attorney for Petitioners

Edwin R. Smith, Jr., Attorney

1304 Old National Bank Building

Evansville, Indiana 47708

Phone: (812) 425-5137

Of Counsel