# Petition for Writ of Certiorari — Adams v. Evansville-Vanderburgh School Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1494%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 409 U.S. 1060 ## Text 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