Petition for Writ of Certiorari — Cisneros v. Corpus Christi Independent School District

JOSE CISNEROS, ET AL, Petitioners,

Vv.

CORPUS CHRISTI INDEPENDENT SCHOOL

DISTRICT, ET AL, Respondents.

CROSS PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE

ae

2

=

4

ARE PSSA DEAE et ioe

Kay

jc tains OY

TABLE OF CONTENTS

I 0, sabaghnaenetsekaess 2

ier ics Kany a hneseenien sh hs 2

QUESTION PRESENTED ................0eceeeee eee 2

CONSTITUTIONAL PROVISION INVOLVED ......... 2

STATEMENT OF THE CASE ............00.ce0seeees 3

REASONS FOR GRANTING THE WRIT .............. 6

REE LEE EEL AEE 9

CASES Page

Alexander v. Holmes County Board of Education, 396 U.S.

19 (1969), 90 S.Ct. 29, 24 L.Ed.2d 19 (1969) ........ 6

Davis v. Board of School Commissioners of Mobile County,

402 US. 33, 91 S.Ct. 1289, 28 L.Ed.2d 477 (1971) .... 7,8,9

Swann v. Charlotte-Mecklenburg Board of Education, 402

US. 1 (1971), 91 S.Ct. 1267, 28 L.Ed.2d 575 (1971) ... 6,7

CONSTITUTION AND STATUTES

US.C., Constitution, Amendment 14, Section 1 ........... 2

i EE. nc ceucouegatnoirhpabnndane 2

IN THE

Supreme Court of the United States

October Term 1972

NO. 72-649

JOSE CISNEROS, ET AL, Petitioners,

Vv.

CORPUS CHRISTI INDEPENDENT SCHOOL

DISTRICT, ET AL, Respondents.

CROSS PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE

FIFTH CIRCUIT

Petitioners here, referring to themselves hereafter as

cross petitioners, are respondents in No. 72-649 on the

docket of this Court, a petition of certiorari filed by the

Corpus Christi Independent School District, et al, as peti-

tioners on October 27, 1972.

Cross petitioners will file a brief in opposition to the

petition for certiorari filed by the School District. By this

petition, cross petitioners respectfully pray that a writ of

certiorari issue to review the judgment and opinion of

i

&

f

4

§

=

&

a hae

ay

an

MIDS EDA INO DER

ee ee

EET LOL EAT oh ENON PLATT CIE

2

the United States Court of Appeals for the Fifth Circuit

entered in this proceeding on August 2, 1972, so far as

it remanded the case with instructions to the District

Court to design a new plan of desegregation.

OPINIONS BELOW

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

The opinions of the District Court are reported at 324

F. Supp. 599 and 330 F. Supp. 1377. All opinions appear

in the Appendix to the petition for writ of certiorari filed

by the Corpus Christi School District under Docket No.

72-649, to which Appendix we hereafter refer.

JURISDICTION

The judgment of the Court of Appeals was rendered

on August 2, 1972, and the mandate was issued on the

same date. (Appendix, p. 155)

This court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

QUESTION PRESENTED

Did the Court of Appeals err in setting aside the Dis-

trict Court’s desegregation order and in remanding the

case for the sole reason that a new plan may require less

transportation where admittedly the District Court followed

the proper criteria and gave mature consideration to the

original plan?

CONSTITUTIONAL PROVISION INVOLVED

This case involves the Equal Protection Clause of the

Fourteenth Amendment to the Constitution of the United

States which reads as follows:

3

“No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.”

STATEMENT OF THE CASE

This action was commenced in the United States Dis-

trict Court for the Southern District of Texas, Corpus

Christi Division, on July 22, 1968. Cross petitioners are

Mexican American and Negro parents who sued for their

own children and as class action representatives on ac-

count of unconstitutional segregation of students by race

and ethnic origin. .

The District Court conducted two trials and rendered

two opinions. The first trial began May 14, 1970, and

culminated on June 4, 1970 in a Memorandum Opinion

where the Court found that Mexican American and Negro

students were unconstitutionally segregated from Anglo-

American students by the defendant District.

The second trial lasted two weeks in September 1970

and was devoted exclusively to a consideration of various

remedial plans for the elimination of segregation and the

establishment of a unitary school system. The second trial

culminated in a lengthy Memorandum Opinion dated

July 2, 1971, wherein the District Court promulgated its

plan together with a full analysis of the considerations

involved in it. (Appendix 54-97)

On appeal, the Court of Appeals sitting en banc affirmed

the District Court’s fact findings and conclusions of law

which determined the existence of unconstitutional segre-

RIS SS SCH

SELLER RE ELMS STOEL" LE MOONEE TET I

Pd

&

i

;

4

¥

oe

¥

2

K

i

3

a.

gation on the basis of race and ethnic origin. Of the 15

judges who participated in the case, 8 joined in the

majority opinion on the merits by Judge Dyer. These were

Chief Judge Brown and Judges Wisdom, Gewin, Thorn _

berry, Goldberg, Simpson and Ingraham. (Appendix 137) _

In addition, Judges Bell, Ainsworth, Morgan and Roney

concurred in the result. (Appendix 137)

As to the remedy, a partial realignment of the judges

resulted in a remand of the case to the District Court

with directions to desegregate the school system in keeping

with certain stated principles. It is this rejection of the

District Court’s judgment and plan and the consequent

remand which cross petitioners challenge by this cross

petition.

4

The “Remedy” portion of Judge Dyer’s opinion (Ap-

pendix 137-140) was concurred in by nine of the judges,

Judges Bell, Thornberry, Coleman, Ainsworth, Godbold,

Morgan, Clark, Ingraham and Roney. (Appendix 140)

On the other hand, Judge Gewin, joined by four judges,

Brown, Chief Judge, and Wisdom, Goldberg and Simpson,

Circuit Judges, dissented from the remand. The same five

judges also joined in a separate dissenting opinion by

Judge Goldberg. Both dissenting opinions would affirm

the order of the District Court with leave to that Court

to amend the order as the practicalities of the situation

require in order to avoid undue hardship or burden to

the School District. (Appendix 145) The majority opinion

on Remedy remanded the case for a single stated reason:

“We now turn to the remedy faced by the district

court. We conclude that a different approach may

achieve a constitutional result without involving the

conversion of the school system from a non-transpor-

ns

5

_ tation to a transportation basis to the extent ordered

by the district court.” (Appendix 137)

The same majority directed the District Court “to de-

segregate the school system on the following basis:” (Ap-

pendix 137-140)

1. It is the prerogative and duty of the School District

to formulate and implement student assignment plans.

2. Where unconstitutional segregation has been found,

it is the duty of the School District to formulate and im-

plement student assignment plans which will remedy the

discrimination found to exist.

3. If the school officials abdicate this responsibility,

the District Court should proceed forthwith to remedy the

discrimination.

4. It is apparent that student assignment on a strict

neighborhood basis will not suffice in Corpus Christi, al-

though it may suffice as to some schools.

5. Pairing, clustering, and realignment of zones, will

be methods to eliminate segregation.

6. If after using the above procedures segregated

schools still exist, the Court must consider pairing or

clustering of schools in noncontiguous school zones. This

should be a last resort, and student transportation require-

ments should be minimized.

7. Any particular degree of racial balance or mixing

as a matter of substantive constitutional right would be

disapproved, although interim corrective measures are

constitutionally permitted.

Finally, mandatory majority-to-minority transfers with

transportation provided as ordered by the District Court

6

will be an overall ameliorative device, the majority held,

The District Court was directed to constitute a tri-ethnic

committee to foster the use of the majority-to-minority

transfers.

As stated by the dissenting opinions, the District Court

had already followed these steps in designing its own plan.

(Appendix 143; 144; 149; 150)

REASONS FOR GRANTING THE WRIT

1. The anguished dissenting opinions of Judges Gewin

and Goldberg demonstrate the District Court’s desegrega-

tion plan is completely unimpeached. There is no artic-

ulated respect in which the District Court’s plan has been

found defective. There is no better plan, device or ap-

proach which has been suggested.

2. Thus, the remand of the case to retrack identical

procedures without constitutional reasons conflicts with

the decision of this Court in Swann v. Charlotte-Mecklen-

burg Board of Education, 402 U.S. 1 (1971), as well as

Alexander v. Holmes County Board of Education, 396

U.S. 19 (1969).

As stated, the only reason that the District Court’s de-

segregation plan was set aside in favor of remand was

that “a different approach may achieve a constitutional

result” without transportation to the extent ordered by

the District Court. (Appendix 137)

This was the exact posture of Swann. Certiorari was

granted in Swann after the Court of Appeals remanded

to the District Court for reconsideration and submission

of further plans because the Court of Appeals “feared

that the pairing and grouping of elementary schools would

——_

7

place an unreasonable burden” on the school board and

pupils. 402 U.S. p. 10. This Court directed reinstatement

of the District Court’s order pending further proceedings

at the same time it granted certiorari. 399 U.S. 926.

A comparison of the reasons for remand given in this

case with those stated by the Fourth Circuit in Swann at

431 F.2d p. 147 will demonstrate that a majority of the

Court of Appeals has experienced the same momentary

relapse which was previously suffered by the Court of

Appeals in Swann.

The remand below under these circumstances was like-

wise in conflict with Alexander v. Holmes County Board

of Education, 396 U.S. 19, which abandoned “all delib-

erate speed” as a constitutionally permissible approach to

the duty of desegregation. In that case, as in Swann, the

Supreme Court directed that desegregation plans be ef-

fectuated immediately with appropriate leave to the courts

below to entertain such suggestions for modification as

: experience might commend.

The deceision below is also in conflict with Davis v.

Board of School Commissioners of Mobile County, 402

U.S. 33 (1971) for the reasons articulated by Judge

Gewin set out in Point 4 below.

3. The point was made in Swann that the Supreme

Court must rely, as it has for more than 16 years, “on

the informed judgment of the district courts in the first

instance and on courts of appeal.” 402 U.S. 28. This case

is a serious departure from this practice. Cross petitioners

suggest that few cases if any will present such an ex-

haustive inquiry into the problems as was performed by

the District Judge in this case.

one AIEEE ARLENE LENE INE LMAE TLE LPR NER PASM AKTS f pees ee x . ?

ra

The question of an appropriate plan was under litiga-

tion in the District Court for a period of ten months. The

Court repeatedly asked for cooperation from the School

District but received only nominal, constitutionally in-

sufficient suggestions from it. The Court considered a plan

submitted by the Department of Health, Education and

Welfare. The District Court also heard expert testimony

in support of a plan submitted by plaintiffs. The Court

also gave the School District full opportunity to object

to all plans submitted, of which the School District took

advantage.

4. All of the agonizing considerations which have been

faced during the last 18 years are resurrected by this in-

comprehensible remand. The dissenting opinions of Judge

Gewin and Judge Goldberg state the matter as well as

can be. Judge Gewin wrote: “After years of tortuous

school desegregation litigation in this court reflected by

hundreds of opinions in numerous volumes, the majority

now stumbles and falters over issue which we have de-

cided and laid to rest in almost every geographical area

of this circuit.” (Appendix 141)

Judge Gewin wrote further: “We have not been a timid

or inactive court in dealing with these problems. At times

I have disagreed and have expressed my views in dissents,

but the court is bound and should be bound by the long

list of majority decisions we have rendered.” (Appendix

142)

Judge Gewin further wrote: “I believe the Supreme

Court has delineated the standard with respect to trans-

poration of students. In Davis v. Board of School Com-

missioners of Mobile County, 402 U.S. 33, 28 L.Ed.2d

477 (1971) the Court rejected a desegregation plan pre-

POOR COPY

BLEED THROUGH

9

pared by this court because it was based on treating the

western section of the county in isolation from the eastern

section. . . . Without reason or authority the majority

opinion abandons the mandate of Davis and other Supreme

Court decisions.” (Appendix 144-145)

Judge Goldberg wrote: “This is not the hour, this is

not the day, and Corpus Christi is not the place for courts

to flag in their striving for constitutional schools, for

quality education, for integrated education.” (Appendix

153)

5. Cross petitioners have been relegated to another

round of litigation and delay under standards which are

not comprehensible. The District Court’s order and opin-

ion were written in the light of Swann with full and ade-

quate technical advice as well as competent assistance of

adverse counsel. On the other hand, a majority of the

Court of Appeals has remanded without giving direction

or purpose other than the suggestion that relief may be

adequate with less transportation. This treatment of the

case at the Court of Appeals level is unfortunately

reminiscent of judicial performance which permits dilatory

tactics by school districts.’

CONCLUSION

For the reasons set forth, it is respectfully prayed that

a writ of ceriorari issue to review that part of the judg-

ment and opinion of the United States Court of Appeals

1. Cross Petitioner’s problem is further compounded by the trans-

fer of the case by Chief Judge Connally of the District from District

Judge Seals who tried the case to newly appointed Judge Cox assigned

to the Corpus Christi Division. This transfer occurred while the case

was pending in the Fifth Circuit (Appendix 126).

10

for the Fifth Circuit which remands the case for

consideration of desegregation plans.

Respectfully submitted,

Curis Dixiz

609 Fannin Street Building

Suite 401

Houston, Texas 77002

Attorney for Cross Petitioners q

CERTIFICATE OF SERVICE a

This is to certify that on October ___, 1972, three ”

copies of the foregoing petition for writ of certiorari were»

served upon each party of record by depositing a copy”

thereof in the United States Post Office, with air mail |

postage prepaid, properly addressed to counsel of record :

as follows: 4

Mr. Richard A. Hall and Mr. J. W. Gary, 200 Hawn

Building, Corpus Christi, Texas 78401; and Mr. Donald”

L. Howell, First City National Bank Building, Houston, ©

Texas 77002, attorneys for Corpus Christi Indepeniaay %

School District, et al, respondents; :

Hon. Richard Kleindienst, Attorney General of the :

United States, United States Department of Justice ;

Washington, D. C. 20530; 4

Hon. Erwin Griswold, Solicitor General of the United. 7

States, United States Department of Justice, Washington, —

D.C. 20530. 3

Chris Dixie

ee

POOR COPY |

BLEED THROUGH |