Appendix — Eller v. Vaughns
Supreme Court brief1973
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SUPREME COURT. U. S.
APR
LED
Coart, U. $.
20 1973
MICHAEL RODAK, JR..CLERK
IN THE
Supreme Court of the United States
October Term 1972
“we2- 1428
No.
Jesse Alexander Eller, et al., Intervenors
Petitioners
v.
Sylvester J. Vaughns, Jr., et al.,
Respondents
v.
Board of Education of Prince George’s County, ef al.,
Respondents
APPENDIX FOR PETITIONERS
JESSE ALEXANDER ELLER, ET AL.
LOO REET IL ELS TNE IND MEL OTL
BEACON PRINTING — 293-7160 — Washington, D. C. 20006
SSBRAT I Conan Own Yves rey secigg — —
¥ Dn ae 2 -
° SAME NEN SERS FAG a
ewe aie |
INDEX
Page
. Exhibit “A” - Judgment and Order of United
States Court of Appeals for the Fourth Circuit
Case No. 73-1023, 1024 dated January 23, 1973,
Affirms Lower Court Decision .............. la
. Exhibit ““B” - Order of United States Court
of Appeals for the Fourth Circuit Case
No. 73-1023, Granting and Denying Amicus
Curiae Standing, dated January 19,1973 ....... Ta
Exhibit “C” - Order of United States Court
of Appeals for the Fourth Circuit Case
No. 73-1023, 1024 Postponing Stay, Dated
ae 6 ee ete @ 6-04. 6.0 «60.6 9a
Exhibit “‘D” - Order of United States District
Court for the District of Maryland, Civil
No. 72-325-K dated December 29, 1972,
ne Students Transfers and Busing
I as dle a hee ae OW Oo 86 de 0 88 lla
. Exhibit “E” - Court Memorandum of United
States District Court for the District of
Maryland, Civil No. 72-375-K dated December 13,
1972, Implementing Order ............... 33a
. Exhibit “‘F’ - Order of United States Court of
Appeals for the Fourth Circuit, Case
No. 72-2129:2130, 2131 dated October 12, 1972
EES eee eee eee 46a
. Exhibit ““G” - Order of United States District
Court for the District of Maryland, Civil
No. 72-325-K dated August 31, 1972,
ea pled yoo e <4 kek 0 8 52a
Exhibit “‘H” - Order of United States District
Court for the District of Maryland, Civil
No. 72-325-K, dated July 25, 1972, granting
Plaintiff's Motion for Summary Judgment ..... 64a
—————EOorrrroeree
ee Cire ee Pe
p pana S tre Rae Rr ee EES IN ee
ii
Page
9. Exhibit “I” - Court Opinion and Order of United
States District Court for District of Maryland,
Civil No. 72-325-K dated July 25, 1972 holding
sub curia all issues
10. Exhibit “J” - Order of United States District Court
for the District of Maryland, Civil No. 72-325-K
dated September 19, 1972 - granting Petitioner’s
Ee Ee ae a 72a
11. Exhibit “‘K” - Petitioner’s Motion to Intervene in
Civil No. 72-325-K in the United States District
Court for the District of Maryland, dated
ee eke 75a
12. Exhibit ‘“‘L” - Memorandum of Law in Support of
Petitioner’s Motion to Intervene in Civil
No. 72-325-K in the United States District
Court for the District of Maryland, dated
I Er ai ae cee w ice ao. 78a
13. Exhibit ‘‘M” - Student Attendance And Busing Plan -
Highlights of Staff Plan dated December 26, 1972 -
Ordered into effect on January 29, 1973 for Prince
George’s County as prepared by Board of Education
under Order of United States District Court for
ch iran 4 4 6 0 hw os 0s 88 90a
PEP oe P FORE EMS PNT OO IRE TL LISS CRETE ata
j ' Spe are Ronnie on AB ona aE
la
EXHIBIT “A”
JUDGMENT
United States Court of Appeals
For the
Fourth Circuit
No, 73-1023
Sylvester J. Vaughns, Jr., etc., et als,
Appellees,
versus
Board of Education of Prince George’s County;
et als,
Appellants.
Appeal from the United States District Court for the —-
District of Maryland.
This cause came on to be heard on the record from the
United States District Court for the District
of Maryland.
, and was argued by counsel.
On consideration whereof, It is now here ordered and
adjudged by this Court that the judgment of the said District
Court appealed from, in this cause, be, and the same is
hereby, affirmed. It is further ordered that the mandate shall
issue forthwith, and the Court reserves the right to file a
written opinion at a later date.
FILED CLERK
JAN 23 1973
WILLIAM K. SLATE, Il
CLERK
PEE TE ae
2a
JUDGMENT
IN THE
Munited States Court of Appeals
For the
Fourth Circuit
No. 73-1024
Jesse Alexander Eller, et als,
Appellants,
versus
Board of Education of Prince George’s County;
et als,
Appellees
Appeal from the United States District Court for the —-
District of Maryland.
This cause came on to be heard on the record from the
United States District Court for the District
of Maryland.
, and was argued by counsel.
On consideration whereof, It is now here ordered and
adjudged by this Court that the judgment of the said District
Court appealed from, in this cause, be, and the same is
hereby, affirmed. It is further ordered that the mandate shall
issue forthwith, and the Court reserves the right to file a
written opinion at a later date.
FILED CLERK
JAN 23 1973
WILLIAM K. SLATE, Il
CLERK
3a
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 73-1023
Sylvester J. Vaughns, Jr., by his father
and next friend, Sylvester J. Vaughns;
Toika E. Wheatfall, by her father and next
friend, Walter E. Wheatfall; James R. L.
Brooks, Jr., by his father and next friend,
James R. L. Brooks; Reginald Wiggs, by his
father and next friend, Hosea D. Wiggs;
Reginald A. Jackson, Jr., by his father and
next friend, Reginald A. Jackson; Denise
A. Ligon, by her father and next friend
Dennis J. Ligon, Jr.; Carolyn Gilmore, by
her father and next friend, Sterling K.
Gilmore; John A. Williams, by his father
and next friend, John J. Williams, individ-
ually and on behalf of all other persons
similarly situated, and Jesse Alexander
Eller; Martha Street Eller; Brendan Edward
Lynch; Marjorie Elain Lynch; Kenneth Phillip
Whittemore; Bette Ann Whittmore; Arthur
Emanual Dinerman; Janet Avin Dinerman; Morris
Edward Sampson; Thelma Olinda Sampson;
Willima Raymond Leer; Margaret Street Leer;
Leo Paul Chabot; Wanda Maxine Chabot; John
Eugene Spaulding; Bernadine Lane Spaulding,
versus
Board of Education of Prince George’s County;
A. James Golato, President of the Board of
Education of Prince George’s County and
Chester E. Whiting, Joanne T. Goldsmith, Dr.
Rodney W. Johnson, Sue V. Mills, Dr. J.
Righton Robertson, Jesse J. Warr, Jr.,
Phyllis E. Williams, Ruth S. Wolf, Members
of The Board of Education of Prince George’s
County; and Dr. Carl W. Hassell, Superintend-
ent of Schools of Prince George’s County,
Appellees,
4a
United States of America,
Amicus Curiae,
State of Maryland, Governor
of Maryland, and State Super-
intendent of School of Maryland,
Amicus Curiae,
Prince George’s County,
Amicus Curiae,
City of Bowie,
Amicus Curiae,
City of New Carrollton,
Amicus Curiae.
No. 73-1024
Jesse Alexander Eller; Martha Street Eller;
Brendan Edward Lunch; Marjorie Elaine Lynch;
Kenneth Phillip Whittemore; Bette Ann Whitt-
more; Arthur Emanuel Dinerman; Janet Avin
Dinerman; Morris Edward Sampson; Thelma
Olinda Sampson; Willima Raymond Leer;
Margaret Street Leer; Leo Paul Chabot;
Wanda Maxine Chabot; John Eugene Spaulding;
Bernadine Lane Spaulding,
Appellants,
versus
Board of Education of Prince George’s County;
A. James Golato, President of the Board of
Education of Prince George’s County and
Chester E. Whiting, Joanne T. Goldsmith, Dr.
Rodney W. Johnson, Sue V. Mills, Dr. J.
Righton Robertson, Jesse J. Warr, Jr.,
5a
Am searerwepemann!
Phyllis E. Williams, Ruth S. Wolf, Members
of the Board of Education of Prince George’s
County; and Dr. Carl W. Hassell, Superintend-
ent of Schools of Prince George’s County,
Appellees.
United States of America,
Amicus Curiae, .
State of Maryland, Governor
i of Maryland, and State Super-
intendent of Schools of Mary-
land,
Amicus Curiae,
Prince George’s County,
Amicus Curiae,
City of Bowie,
Amicus Curiae,
City of New Carrollton,
Amicus Curiae.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND, AT BALTIMORE.
On instruction from the court after its consideration of the record
and briefs, and after hearing the argument at bar of counsel, judgment is ‘
hereby entered, under Rule 36 of the Federal Rules of Appellate :
Procedure, affirming the order on appeal in this case. 7
fa. SO A Pt eg te eg
6a
IT IS FURTHER ORDERED THAT the mandate shall issue
forthwith, and the Court reserves the right to file a written opinion at a
later date.
CLERK
FILED
JAN 23 1973
WILLIAM K. SLATE, I!
CLERK
ee Or ee
ee ee + aI
No. 73-1023
Sylvester J. Vaughns, Jr.,
etc., et al.,
. Appellees,
v.
Board of Education of Prince
George’s County, et al.,
Appellants.
United States of America,
Amicus Curiae.
State of Maryland, et al.,
Amicus Curiae.
Prince George’s County,
Amicus Curiae.
City of Bowie,
Amicus Curiae.
City of New Carrollton,
Amicus Curiae.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Upon consideration of various motions for leave to file briefs as
amicus curiae,
IT IS ORDERED that:
Ps ae
(1) the motion of the petitioners, State of Maryland,
(2) the motion of Prince George’s County for leave to file brief
amicus curiae is granted;
(3) the motion of the City of Bowie for leave to file brief amicus
curiae is granted;
(4) the motion of the City of New Carrollton for leave to file brief
amicus curiae is granted;
(5) the motion of Sturgis J. White to intercede as friend of the
Court is denied.
For the Court - by direction
CLERK
FILED
JAN 19 1973
WILLIAM K. SLATE, I!
CLERK
oe og ee ee a ee
ee
Hat
dt Fee
WILLIAM K. SLATE, l!
4 CLERK
and
Denise A
Dennis
father
John A.
behalf
i :
ra
Hi ie
34 uae
PE AROSE ETET Bee
Appellees,
Appellants.
from the United Stetes Distrct Court
‘or the District of Maryland, at Baltimore.
Applications to stay the order of the District Court pending appeal
this Court was in indirect communication with
counsel late last month, informing them that if a notice were promptly
filed and an expedited brief schedule followed, any appeal or appeals
Court during this week. The School Board did
ice of appeal and counsel for the School Board
reported that due, in part at least, to a temporary illness on his part, he
could not file a brief in the Court in time for the case to be heard this
week. Instead, he filed an application for a stay.
A brief on behalf of the plaintiffs has now been filed with the
Court. We recognize the desirability of having the issues on appeal
determined, if possible, before the date set in the order of the District
Court for its effectuation. This was the reason for the Court’s
willingness to provide quick expedition for the appeal. The Court is still
prepared to expedite it. To that end, the case will be heard by the
Court sitting en banc at the-United States Courthouse in Alexandria,
Virginia, on Monday, January 22, 1973, at 11:00 o'clock in the
morning. A brief on behalf of the School Board may be filed with the
Clerk on or before Wednesday, January 17, 1973.
:
i
2
7
Further action on the applications for a stay will be postponed
until the hearing of the appeal on the merits.
With the concurrence of Judges Winter, Craven, Butzner, Russell
and Widener.
Chief Judge, Fourth Judicial Circuit
ANS LD TIA Tey ye
et
meter
lla
EXHIBIT “D”
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MABYLAND
Civil No. 72-325-K
Sy.vester J. VauGHNS, JB., ET AL.
v.
Boarp or Epucation or Prince Georce’s County, BT AL
Filed: December 29, 1972
Richard V. Faleon, Kenneth L. Johnson and Gerald A.
Smith, of Baltimore, Maryland, for Plaintiffs.
Paul M. Nussbaum, of Mt. Rainier, Maryland, for Defend-
ants.
Emmett H. Nanna, Jr., of Hyattsville, Maryland, for Inter-
venors.
Kaufman, District Judge.
This opinion is the culmination of proceedings instituted
in this Court on March 29, 1972 seeking the establishment
of a constitutional system of public school education in
Prince George’s County, Maryland. In earlier opinions
this Court has held that that system is presently in viola-
tion of the federal constitutional standards set forth by
the Supreme Court of the United States in Brown v. Board
of Education, 347 U.S. 483 (1954) (Brown I), and Swann
v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1
(1971) (Swann). Defendants have at all times since the
commencement of this case contended that the Prince
George’s school system complies with constitutional re-
quirements and, in the alternative, that the system attained
such compliance in the mid-1960’s and that no ‘‘action by
the school authorities’’? has caused it to fall out of com-
ao
1 Swann at 23.
Oc enpe eee meres
12a
pliance since the mid-1960’s. Accordingly, the defendants
contend that there is presented in this case the question of
whether a showing that school segregation is a con-
sequence of other types of state action, without any
discriminatory action by the school authorities, is a
constitutional violation requiring remedial action by a
school desegregation decree. * * * ?
In Swann (at 22-23), the Chief Justice stated that it was
not necessary for the Court to reach that question. Neither
is it necessary in this case for this Court to reach that
question, since the facts to which the parties stipulated—
all of which facts are undisputedly set forth in the records
of the School Board itself—reveal that the pre-Brown I
segregated system was never effectively dismantled, either
before or after 1956 when the School Board adopted a
‘freedom of choice’’ plan.’
On May 27, 1968, in Green v. County School Board, 391
U.S. 430, 439 (1968), the Supreme Court held that a free-
dom of choice concept would be a valid remedial measure
only if it was effective and only if it ‘‘promises realisti-
cally to work now’’. The present Prince George’s County
school population is approximately 160,000, of which about
22.4% is black. Since May 27, 1968, the School Board has
opened 35 new schools—5 senior high, 10 junior high and
20 elementary. Of that 35, 24, or over 2/3 of the 35, opened
with—and 23 of those 24 still maintain today—student
populations more than 50% black or less than 10% black ;*
2 Swann at 23.
8 See the discussion in this Court’s opinion filed July 25, 1972, pp. 2-4.
4 See Prince George’s County Public Schools, Report of Schools, 1953-54
School Year to 1971-72 School Year, filed as an exhibit in this case, which
also reveals that of the 232 schools in Prince George’s County today, 153 of
them have opened since September, 1954, and of that 153, 135 opened with
over 90% white or more than 50% black; and that of that 135, 9 were
senior high, 27 junior high and 99 elementary. Schools opened after Septem-
ber, 1954 but closed before September, 1971 have not been included in the
totals. Schools designated as ‘‘Jr.-Sr.’’ in the aforesaid Report have been
treated as junior high echools in compiling these figures and the figures in
n.5 infra.
ee ene
13a
and 5 of them opened with more than 90% black student
population and 13 of them with more than 90% white pop-
ulation.® That record has been complied not only in the face
of Green but after the United States Court of Appeals for
the Fourth Circuit emphasized in Brewer v. School Board
of the City of Norfolk, Virginia, 397 F.2d 37, 42 (4th Cir.
1968),° that a ‘‘school construction program is an appro-
priate matter for court consideration....’’? In Swann (at
20, 21), writing in 1971, Mr. Chief Justice Burger stressed,
inter alia, the importanee of new school construction in
order to achieve and maintain a desegregated school
system.
That factual and legal background and the facts reviewed
in earlier opinions of this Court, compel the conclusion
that regardless of the reason why, the Prince George’s
County School Board has disregarded the mandates of the
highest Court of our land. It was for that reason that this
Court ordered on August 31, 1972, and again on November
14, 1972 after the Fourth Circuit filed its opinion in this
ease on October 12, 1972, the presentation by defendants,
on or before December 4, 1972, of plans embodying change-
overs to a constitutional school system to become effective
in whole or in part on January 29, 1973. While the School
Board presented four alternative plans on December 4,
1972, one of them (denominated as Plan IV) is based upon
the same freedom of choice principles which had failed in
Prince George’s County to produce a constitutional system
in the past. Thus, under Green, that plan cannot pass
5 See that same Prince George’s County Public Schools, Report of Schools,
1953-1954 School Year to 1971-72 School Year, filed as an exhibit
in this case, which further reveals that of the 153 schools opened in
Prinee George’s County since September, 1954 (see n.4 supra), 127 opened
with student populations either 90% or more black or 90% or more white, and
that of that 127, there were 7 senior high schools, 27 junior high schools and
95 elementary schools.
@The Brewer opinion, filed May 31, 1968, four days after Green, cited
Green (Brewer at 39).
t
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*
L A A ER ti
|
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MEDILL OME Th 5 oF
14a
constitutional muster. Plan I, the only one of the four plans
submitted on December 4, 1972 which was supported with
any detailed facts and analyses,’ was based upon a rather
rigid application® of a self-imposed mathematical stand-
ard calling for the reduction of the black student popula-
tions of all schools being more than 50% black to 35% or
less black ® and leaving untouched 82 schools having white
populations of more than 90%.’°
On December 7, 1972, a further revised but still uncon-
stitutional plan*' was submitted, calling for 32 schools
with a white student population of more than 90%. With
time slipping rapidly toward January 29, 1973 and with no
constitutional plan in sight, this Court, on December 7,
1972, with the consent of the parties and their counsel,
instituted a series of lengthy chambers conferences with
counsel and with staff experts of the Prince George’s
County School system. During those conferences, those
7 And even Plan I was only so supported with relation to senior and junior
high schools, Plan I, as submitted on December 4, 1972, contained no details
or breakdowns re the elementary schools. Those details were supplied at a
later date to this Court. And Plan I was also changed in other respects than
indicated within its own documentary presentation to this Court. See the two-
starred comment to Chart III on page 9A, infra.
8 The Chief Justice’s warning in Swann and in his dissent in Wright v.
Council of City of Emporia, 407 U.S. 451 (1972), and Mr. Justice Stewart’s
similar warning in his majority opinion in Wright, against the use of any
rigid mathematical formula is discussed in this Court’s Memorandum filed
December 13, 1972, pp. 10-11.
9 Plan II utilizes a 40% guideline in place of the 35% guideline in Plan I.
However, no details whatsoever were submitted in connection with Plan II
(or Plans III or IV for that matter). Plan III involves changing the racial
composition of only eight schoole—one senior high, one junior high and six
elementary—all of which opened 100% black, to 35% black.
10 Of that 82, 2 were senior high, 2 junior high and 78 elementary. Plan I
also included a large scale transfer at one school for the sole purpose of
achieving a 2% change from 28% black to 26% black. That change has been
eliminated from the School Board’s staff plan submitted to this Court on
December 26, 1972 and discussed infra.
11 This plan was a further development of Plan II presented on December 4,
1972 and still contained a rigid 40% guideline.
Pe ah en ct
ee
15a
staff officials demonstrated familiarity with the commands
of the Supreme Court in Swann and also demonstrated the
willingness and the ability under time pressure to produce
a constitutional plan.’* That plan has been accepted as
‘educationally sound’’ by defendants if its implementation
is delayed in toto until September, 1973 and by plaintiffs
as constitutionally sufficient.” Plaintiffs seek implementa-
tion of the plan on January 29, 1973, except with regard
to the twelfth grade, and otherwise ask only that this Court,
in the exercise of its continuing jurisdiction, be ready to
require further changes if school attendance shifts operate
in the near future to resegregate any school.
The staff plan calls for a relatively small number of
schools #4 to remain more than 90% white but for none,
12This Court has been informed that that staff plan was presented on
December 22, 1972 to the School Board and was rejected by a 5 to 4 vote,
and that one of the reasons stated by one or more of the Board members for
rejection was that the Board had insufficient time to consider the plan. Any
approach based upon ‘‘ insufficiency of time for consideration’’ of the staff
plan submitted to the School Board on December 22, 1972 and to this Court
on December 26, 1972 is rejected by this Court. On August 31, 1972 and eon-
tinuously thereafter to and including December 4, 1972, the School Board was
required by Orders of this Court to prepare plans meeting Brown-Swann
standards—and failed to do so. The differences between Plan I submitted
December 4, 1972 and the staff plan are easily explainable to any one who
was familiar with the details of Plan I, particularly, if as this Court assumes,
each School Board member became familiar with, if not before August 31,
1971, certainly shortly thereafter, the racial compositions of the student pop-
ulations of each school, the capacity of each school for student attendance,
the location of each school] and the roads leading to it, and the interrelation-
ship of those facts—as well as with the plain and clearly spoken words of the
Chief Justice in Swann.
13 Intervenors contend that the existing school system is constitutional
and take no position as to the staff plan.
14 See page 21, infra, referring to Raney v. Board of Education, 391 U.S.
443, 449 (1968).
144 Eleven schools, 2 senior high, 4 junior high, and 5 elementary, will be
less than 10% black, but nine of that eleven will be 8.2% or more black. One
of the two remaining schools is a junior high school which will remain at its
present level of 5.6% black and the other remaining school is an elementary
school which will change from 2.4% to 7.5% black.
16a
except for the only two schools in the County which are to
ve ‘‘paired’’, to be more than 50% black. Most of those
which are more than 90% white are expected to become a
lesser percentage white as new school construction and
expected demographic changes occur."* The staff plan was
15 In Green v. County School Board, supra at 442, the Supreme Court
stated that a plan meeting constitutional standards converts a school system
to one without white schools or black schools but just schools. See also
Raney v. Board of Education, 391 U.S. 443, 448 (1968). In Monroe v. Bd.
of Comm ’rs, 391 U.S. 450, 456-458 (1968), the Court reaffirmed the principles
set down in Green and held that a ‘‘free-transfer’’ plan resulting in one
junior high being all black, one junior high with 812 white and 12 black
students and one junior high with 349 white and 135 black students (the
ratio of black-white students throughout the school system was 40-60) did
not satisfy the Green test of converting to ‘‘ just schools’’.
In Swann (71% white pupils, 29% black in a school system of 84,000 stu-
dents), the Supreme Court affirmed a desegregation plan in which 9 of the
10 high schools had 17%-36% black students with one high school having 2%
blacks; 20 of 21 junior highs having 0%-38% blacks with one junior high
having 90% blacks; and 76 elementary schools having 9% to 38% blacks.
The Court in Swans (at 15) stated that in formulating a desegregation order,
‘* flexibility’’ and ‘‘merey’’ reconciling the needs between the public interest
and private needs as well as between competing private claims should be
used. In Swann, the District Court set as a goal a ratio of 71%-29% (white-
black pupils) in each school and aimed at a 71-29 ratio in each grade. The
actual plan varied widely from the goal (as low as 0% blacks to as high as
38% blacks with one school 90% black). The Supreme Court approved the
use of 71-29 ratio as a starting point but stressed that it was not to be
used as an inflexible requirement (see n.8 supra).
In MeDaniel v. Barresi, 402 U.S. 39 (1971), the Court approved a plan for
elementary schools with a ratio of 66% white-33% black students throughout
the system and in which the black student population at each school varied
from 20%-40% with two schools at 50%.
In Davis v. Bd. of Comm’rs of Mobile County, 430 F.2d 883 (5th Cir. 1970),
the Fifth Circuit approved a desegregation plan in a school system with a
ratio of 58%-42% white to black students in which senior highs (10) had
from 8% to 69% black, junior highs from 8% black to 85% black, and ele-
mentary schools from 0%-100% black with percentages ranging from 7%
black to over 90% black (total students in the system was 73,000). Those
figures are estimates (based on data set forth at 430 F.2d supra at 889). They
exclude schools in Mobile, Alabama lying west of I-65 which the Fifth Circuit
treated separately but which the Supreme Court subsequently ruled had to be
treated as not lying in a separate section but as part of one overall Mobile
system. 402 U.S. 33 (1971). However, the Supreme Court at no point indi-
cated any disapproval of the ratios of blacks in the schools lying east of 1-65.
satan ahemtenin abet ane
To ma AR RP AE
17a
prepared with full attention focused upon ‘‘the desirability
of achieving constitutional standards with regard to de-
segregation and at the same time limiting the number of
students who, by the impact of such standards, will
(1) be transferred to a school other than the one they
would otherwise be attending;
(2) become school bus riders rather than walkers; or
(3) be caused to ride additional miles on school
busses.’? .
In that regard, the following charts are revealing:
16 Memorandum of this Court in this ease, filed December 13, 1972, p. 6.
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20a
The use of the words ‘‘eligible for busing’’ is to be
noted. There are apparently no figures which reflect the
number of students eligible for busing who utilize private
transportation—and thus no figures showing the number
actually presently bused. However, the staff plan will make
eligible for busing less than 8% more of the total popula-
tion than are now so eligible.
This Court cannot sufficiently commend the efforts and
the accomplishments of the School Board staff members
who, as professionals, have completed the staff plan sub-
mitted on December 26, 1972. While that plan will require
changes in the school attendance of a large number of stu-
dents, it also provides a maximum busing time per trip for
any student from the moment the student ascends a school
bus until the bus arrives at school (and the same for the
return trip) of 35 minutes, with a mean average of about
14 minutes per one-way bus trip from home to school, or
school to home.’*
A careful review of the staff plan, or even a quick review
of the chart included at p. 9 supra, discloses that while the
staff plan will cause changes in student attendance and in
bus eligibility at the senior and junior high levels, it will
cause many more such changes to occur in the elementary
schools.‘ The staff members who participated in the
chambers conferences have indicated that in their opinion
17 Compare with the apparent maximum trip embodied in the Charlotte-
Mecklenburg plan approved in Swann (at 30) though in that case the 35
minutes apparently represented a reduction in the maximum one-way bus trip
time which existed prior to Judge MeMillan’s Swann decree. See also the
approved ‘‘30 minutes each way’’ plan in Brewer v. School Board of City of
Norfolk, Virginia, 456 F.2d 963, 945 (4th Cir.), cert. denied, 406 U.S. 905
(1972) ; and see Northcross v. Board of Education of Memphis, F.2d
(August 29, 1972) (slip opinion pp. 7-8) and the quotation set forth from
that case in n.19 infra.
17a 250 tenth and eleventh graders will become eligible for busing as will
1972 junior high students and 10,248 elementary school students, or a total
of 12,290 for the school population from kindergarten through the eleventh
grade.
tO ee ee: ae nen
2la
there is no way to achieve desegregation at the elementary
level within the Brown-Swann standards without assigning
some students to an elementary school which is not the
nearest elementary school to the student’s home. In an
effort to comply with Brown-Swann standards and at the
same time to keep each child at a school as close as possible
to his home, tbe staff plan calls for the establishment of 11
elementary school geographic sectors. No student living
within any sector will be attending school outside of that
sector.'® ‘
No one has ever suggested that the neighborhood school
concept is not attractive, and all other things being equal,
preferable to any other guiding concept. But Swann teaches
that it cannot rigidly be maintained to thwart desegrega-
tion,’’® particularly where a substantial number of the
18 The Introduction to the staff plan states:
A sincere effort was male to keep communities together and not
involve the same neighborhoods at «all three educational levels. Where
communities have been affected at all levels, it was unavoidable.
19 ‘The Sehool Board does not contest the fact that any further sub-
stuntial desegregation eannot be accomplished without the transportation
of school children; nor as discussed in the preceding paragraphs is there
any reasen to believe that such further desegregation is not required.
Nevertheless the School Boxurd opposes the use of busing in this ease.
Its position is simple; the use of compulsory busing for desegregation
purposes is unwise and counterproductive. In short, the School Board
argues, busing for the purposes of desegregation ‘is wrong.’
‘*The Supreme Court has, of course, come to the opposite conclusion in
a recent unanimous decision, holding that ‘bus transportation’ in one ‘tool
of desegregation’ which school authorities may be required to use. Swann,
supra, 402 U.S. 1, 30. Recognizing this to be the holding of Swann,
Defendants nevertheless suggest that we come to a contrary conclusion
on the basis of a single piece of much criticized sociological research,
the conclusions of which are, by its own terms, inapplicable to the
Southern School pattern. It would be presumptuous in the extreme for
us to refuse to follow a Supreme Court decision on the basis of such
meager evidence. Swann is controlling and requires us to sanction the use
of bus transportation as a tool of desegregation when, as here, such
busing is necessary to accomplish the dismantling of the dual system and
its use does not pose intolerable practical problems.
‘*With respect to this latter point we note that the most serious practi-
eal problem which busing commonly presents—that of requiring children
a
rae
22a
schools opened on a predominantly one-race basis after
1954 and even after the Green opinion of May, 1968.
Additionally, it must be noted that in Prince George’s
County, transportation to school on school buses is not
presently, at any school level, the exception. Rather, bus-
ing is an existing condition for nearly one-half of the entire
student population and more than one-third of the elemen-
tary school population. As the charts set forth supra re-
veal, over 48% of the students are currently eligible for
busing. That percentage under the staff plan will be in-
creased to about 56%. The percentage increase a bit over
1% for the senior high students, between 4% and 5% on
the junior high level, and a bit over 11% on the elementary
school level.
On October 12, 1972, in its per curiam opinion in the
interlocutory appeal in this case, the Fourth Circuit wrote ”
that this Court’s August 31, 1972 Order
scheduled a hearing on the plans in December and
provided that the plans, with respect to the primary
to spend an excessive amount of time on the buses—is not a factor in
this case. Under the plan adopted by the District Court the maximum
time to be spent on the buses by any child is 34 minutes—slightly less
than the maximum time involved in the Swann case and there found
acceptable, See 402 U.S. at 30.’’ [Northcross v. Board of Falucation of
Memphis, supra at slip opinion pp. 6-8 (footnotes omitted).]
Moreover, the following words used by the Chief Justice in Davis v. Board
of School Comm’rs, 402 U.S. 33, 37 (1951), an opinion filed on the same day
as Swann, may not be disregarded:
As we have held, ‘‘neighborhood school zoning,’’ whether based strictly
on home-to-school distance or on ‘‘unified geographic zones,’’ is not the
only constitutionally permissible remedy; nor is it per se adequate to
meet the remedial responsibilities of local boards. Having once found a
violation, the district judge or school authorities should make every effort
to achieve the greatest possible degree of actual desegregation, taking
into account the practicalities of the situation. A district court may and
should consider the use of all available techniques including restructuring
of attendance zones and both contiguous and noncontiguous attendance
zones. See Swann, supra, at 22-31. The measure of any desegregation plan
is its effectivences.
20 Slip opinion at pp. 45.
23a
break. With respect to the senior high schools, how-
ever, the order provided that the plans would not be
The right to take an appeal from each of the orders
under the present circumstances is contested, and the
resolution of those procedural questions involve diffi-
cult considerations. We think it unnecessary to attempt
to resolve them, for we perceive among the substantive
questions tendered, only owe of substantiality, and that
= is, and will be, within the bosom of the District
urt.
The general rule requires that plans for the desegre-
gation of school systems be made effective as soon as
they practically may be without serious disruption to
the ec caatheaal process.” It ix contended here that, in
light of the general rule the District Court should
not have included in its August 1972 order a provision
postponing implementation of the plan with res to
the senior high schools until September 1973. With the
possible exception of the twelfth grade, the graduating
class, it is difficult to find justification for that portion
of the order on this record, when the plans are as yet
unformulated and the advantages of coordinating the
change at all levels cannot be weighed against what
difficulties may be encountered in the implementation
of the plan for the senior high schools at mid semester.
It seems clear to ux, however, that the timing of the
implementation of the plans, when approved, at all
levels is subject to reconsideration in the District Court
in light of the actual plans and the extent of the
changes within the ~chool system which their imple-
mentation will require.
This question should first be addressed to the Dis-
trict Court and considered by it in light of the situation
as it shall appear when otherwise approvable plans
are in hand.
* Alexander v. Holmes County Board of Education, 396 U.S. 19 (1949);
Carter v. West Feliciana Parish School Board, 396 U.S. 226 (7969).
24a
Since there appears to be no substantive issue of
substantiality ready for decision in this Court, we need
not undertake resolution of the procedural questions.
The case will be remanded for further proceedings in
the District Court.
Defendants seek delay in the implementation of the staff
plan at any and all levels until September, 1973. All parties
to this case are agreed that the present 12th graders should
not be required by a desegregation plan to transfer to an-
other schoo] in mid-term of the 1972-73 school year, in view
of the proximity of their graduation in June, 1973.
The postponement of implementation with regard to the
twelfth grade from January 29, 1973 to September, 1973
will cause, under the staff plan, an additional one-time cost
of about $56,000 and will apparently not interpose too
many difficulties in the implementation in January, 1973
as to the other eleven grades. A definite conclusion in that
latter regard is not possible because of the defendants’
failure to submit at any time many of the details called
for by this Court’s November 14, 1972 Order.”’ Neverthe-
less, the exclusion of the graduating class obviously makes
sense. In that connection, the approval of similar exclusions
in Brewer v. School Board of City of Norfolk, Virginia,
456 F.2d 943, 945-46 (4th Cir. 1972), and in Swann v. Char-
lotte-Mecklenburg Board of Education, 311 F.Supp. 265,
270 (W.D.N.C. 1970), is noted. Accordingly, the implemen-
tation of the 12th grade changeover will be delayed until
21 See the Memorandum filed by this Court on December 13, 1972, pp. 4-5.
As to costs generally, the staff has estimated the costs of implementation at
about $1,100,000 per school year plus the cost of new equipment. However,
those cost figures are averages based upon, and extensions of, existing costs
and may well be substantially reduced by additional study and by experience.
They were arrived at by staff members with little, if any, time for cost
analyses. In any event, the appropriate governmental authorities have the
duty to provide the funds necessary to operate a school system in Prince
George’s County in conformity with constitutional standards. Griffin v. School
Board of Prince Edward, 377 U.S. 218, 232-33 (1964).
25a
September, 1973. There will, however, not be any delay
beyond January 29, 1973 as to any other grade.”
The existence of electives and semester courses in all
three senior high grades—the 10th, 11th and 12th—plus
other problems in connection with a mid-year shift, was
noted in this Court’s August 31, 1972 opinion.” Evidence
presented in this case in August, 1972 caused this Court to
become quite concerned about a mid-year changeover in any
of the three senior high grades. That concern still exists .
and indeed has been buttressed by evidence presented dur-
ing the current month of December, 1972 and as
late as December 26, 1972. But this Court must take note
of the Fourth Circuit’s comment in its October 12, 1972
per curiam opinion in this case that on the then current
state of the record ‘‘it is difficult to find justification’’ for
the delay in the senior high changeover from January 29,
1973 to September, 1973, ‘‘[w]ith the possible exception of
the twelfth grade.’’*! The additional evidence and argu-
ment received in this Court since the Fourth Cireuit so
wrote is revealing but is either only cumulative or only
supportive. The additional evidence does supply more de-
tails to buttress the August testimony as to disruption of
schedules and difference in course treatment at various
schools both as to content and time of availability. But in
essence the evidence received in this Court since the
Fourth Circuit spoke in this case is not new and simply ;
justifies this Court’s acceptance of the August evidence as
reliably presenting the difficulties which were described to :
this Court in August. Additionally, this Court’s further
22 The Introduction to the school staff plan states: ‘Attempts were made
to retain the kindergarten pupils in their respective schools for the remainder
of the 1972-73 school year. However, complications are present with regard
to teacher assignment, transportation schedules and splitting of families at
the elementary level.’’
a
.
23 At pp. 10-11.
24 Slip opinion, p. 5.
26a
reading of the Supreme Court and Fourth Circuit opinions
discussing delay * has convinced it that what was true in
the Darlington, South Carolina case in 1970, when a mid-
year implementation of a school desegregation plan re-
quired transfers within a 58,000 school population. (slightly
more than 30% the size of the current school attendance in
Prince George’s County), is true in this case, namely:
Whatever the state of progress in a particular school
district and whatever the disruption which will be
occasioned by the immediate reassignment of teachers
and pupils in mid-year, there remains no judicial dis-
cretion to postpone immediaie implementation of the
constitutional principles as announced in Green . . .;
Alexander ...; [and] Carter... .*
Those words appear in an opinion filed January 19,
1970 ordering implementation on February 9, 1970 or if
absolutely necessary as late as February 16, 1970. During
25 See the discussion in this Court’s December 13, 1972 Memorandum, pp.
13-14.
26 Chief Judge Haynsworth writing in Stanley v. Darlington County School
Dist., 424 F.2d 195, 196 (4th Cir. 1970) (emphasis supplied; full citations
omitted). An analysis of the Supreme Court’s statements as to delay indi-
cates the reasons for the strength of Judge Haynsworth’s words. Thus, in
Carter v. West Feliciana School Board, 396 U.S. 290 (1970), there was a
mid-year implementation of a desegregation order, apparently affecting all
grades (at 294). Mr. Justice Harlan and Mr. Justice White, in a coneurring
opinion, expressed the view that the ‘‘maximum’’ timetable for implementing
a desegregation plan (including times for judicial review) after a finding of
de jure segregation was eight weeks (at 293). Four of the Justices, Black,
Douglas, Brennan and Marshall, thought the views of Justices Harlan and
White represented a retreat from the requirements of Alexander v. Holmes,
396 U.S. 19 (1969), and thus disagreed with Mr. Justice Harlan’s coneur-
rence. Presumably, those four Justices thought eight weeks was too long a
timetable to effect a desegregation order after a finding of non-compliance with
Brown I. The Chief Justice and Mr. Justice Stewart stated that they would
not have peremptorily reversed the Fifth Circuit since ‘‘[t])hat court is far
more familiar than we with the various situations of these several school
districts ...and has exhibited responsibility and fidelity to the objectives of
our holdings in school desegregation cases’’ (at 294). None of the Justices,
other than perhaps the Chief Justice and Mr. Justice Stewart, stated or implied
that educational disruption would justify waiting beyond the eight-week max-
27a
oral argument on December 26, 1972, counsel for defend-
ants informed this Court that the District Court record in
the Darlington case discloses that the mid-year transfer
plan involved about one-tenth of the Darlington school
population whereas the staff plan in this case will call for
transfers of about one-sixth of the students in Prince
George’s County. Also, in his closing oral argument, coun-
sel for the School Board urged upon this Court the con-
tention that the principles of Green, Alexander, Carter, and
Darlington, requiring that constitutionality required’
changes not be delayed until the commencement of the fol-
lowing school year and that such changes be made as
promptly as possible during a school year, are not neces-
sarily applicable to a school system as large as that of
Prince George’s County. But there is no indication in any
decided ease, known to this Court, including the currently
imum. Further, there is no Supreme Court opinion which indicates that
educational disruption per se justifies any delay in implementing a desegrega-
tion plan.
In Alezander, the Court ordered the immediate implementation of a de-
segregation order (at 20) in mid-year without any discussion of possible
educational disruptive effects. Sce also Alerander on remand, 423 F.2d 1265
(5th Cir. 1969). And sce also Cooper v. Aaron, 358 U.S. 1 (1958). In that
ease, the Little Rock School Board sought to delay the desegregation of
schools after racial animosity in the community almost assured that violence
and educational disruption would occur (358 U.S. at 15). The Supreme Court
refused any delay stating (at 16):
The constitutional rights of respondents are not to be sacrificed or yielded
to the violence and disorder which have followed upon the actions of the
Governor and Legislature. As this Court said some 41 years ago in a
unanimous opinion in a ease involving another aspect of racial segrega-
tion: ‘‘It is urged that this proposed segregation will promote the pub-
lie peace by preventing race conflicts. Desirable as this is, and important
as is the preservation of the public peace, this aim cannot be accomplished
by laws or ordinances which deny rights created or protected by the Fed-
era) Constitution.’’ Buchanan v. Warley, 245 U.S. 60, 81....Thus law and
order are not here to be preserved by depriving the Negro children of
their constitutional rights. The reeord before us clearly establishes that
the growth of the Board’s difficulties to a magnitude beyond its unaided
power to control is the product of state action. Those difficulties, as
counsel for the Board forthrightly conceded on the oral argument in
this Court, can also be brought under control by state action.
SCP mers hee ay
I Bai i a at
PREMATUTRAD 10
28a
pending Memphis case” involving a system comprised of
about 145,000 students and the currently pending Atlanta
case * involving 94,979 school students that if the school
staff plan presented in this case is, as defendants have
informed this Court, ready for mid-year (i.e., January 29,
27In the Memphis desegregation case, the District Court, after the Sixth
Cireuit’s August 29, 1972 opinion in Northcross v. Board of Education of
Memphis, —— F.2d —— (6th Cir. 1972), recently ordered on September 26,
1972 the implementation, on January 22, 1973 (the beginning of the second
semester), of the first of two phases of a desegregation plan applicable to
most of the elementary and junior high schools but only a relatively small
number of senior high school students. The second phasee of the plan is not
expected to be ready for implementation until the fall of 1973. By contrast,
the entire staff plan in this case, as applied to all levels of education, is
ready for implementation on January 29, 1973 subject only to the educational
soundness of implementation of that date, or to put it another way, subject
only to the educational reasons for delaying the implementation, in whole or
in part, until September, 1973. It is also to be noted that the Sixth Cireuit
(slip opinion, p. 2) stated that it was ‘‘[m]indful of the need for speedy
implementation of appropriate desegregation orders’’ and cited Alexander,
Carter and Green. Thus, clearly, the Sixth Circuit considered the principles
of those cases applicable to a large school system such as the one existing in
Memphis which in size is nearly equal to that of Prince George’s County.
28 The Atlanta School case has been in litigation since 1958. The recent.
decisions in that case filed subsequent to the Supreme Court decisions in
Green, Alezander, Carter and Swann give no support to the proposition that
the constitutional standards required for school desegregation, including mat-
ters of timing, are inapplicable to large schoo] systems. In Calhoun v. Cook,
332 F.Supp. 804 (N.D. Ga, 1971), the Court held that if the Atlanta School
Board adopted certain plans (excluding busing) to increase desegregation,
then the Atlanta school system would be declared unitary and a dismissal
of the desegregation suit would be ordered on January 1, 1972. Apply
the constitutional standards set forth in Swann, the District Court refused
to require busing to maximize desegregation because the ‘‘ distances alone would
require 40 minutes or more for each child transported and all of this [busing]
would have to be achieved by a system which has no [school] busses, no
[school bus] drivers, and no funds with which to acquire and operate them’’
(at 808). In contrast to Calhoun, the desegregation remedy in this case
involves bus rides, averaging only 14 minutes in a school system which
already buses nearly 50% of its students. Moreover, the implementation in
this case of the staff plan involves busing only an additional 7.7% of the
student population. The District Court’s decision in the Atlanta case was
appealed to the Fifth Cireuit, which in Calhoun v. Cook, 451 F.2d 583 (5th
Cir. 1971), vaeated that portion of the District Court’s opinion dismissing
the action as of January 1, 1972, and remanded the case to the District
29a
1973) implementation as to all levels (elementary, junior
high and senior high), that any such implementation should
be delayed until the start of the next school year, i.e., Sep-
tember, 1973.”
Court to evaluate a proposed alternate plan. After procedural developments
on remand threatened the delay of the implementation of a desegregation plan,
the Fifth Circuit issued an interim order on October 6, 1972, Calhoun v.
Cook, No. 72-2453, in which the court stated:
Faced with the inevitable delay in devising a final resolution of the
appellate issues which this latest district court procedural development
portends, we are required to consider interim measures which will
desegregate this system now. Alexander v. Holmes County, 396 U.S. 19
(1969).
The Atlanta Public School System is hereby directed to proceed forth-
with to prepare and submit to this court a student assignment plan to
be effective at the commencement of the second quarter Nov. 27, 1972
ane
.
(Slip sheet, p. 2, 2 and 3). Notably, the Fifth Circuit cited Alexander in
support of its order that Atlanta desegregate ‘‘now’’ (emphasis in original)
with no indication that the constitutional standards set forth in Alexander
concerning the speed with which desegregation plans must be implemented are
not applicable to large school systems like Atlanta’s. On November 6, 1972,
Mr. Justice Powell denied a request for a stay of the Fifth Circuit’s October
6, 1972 interim order. On November 24, 1972, the Fifth Circuit, in a final
order in Calhoun v. Cook, No, 72-2453, vacated the findings and conclusions of
the District Court determining that the Atlanta Public School System as now
operated is non-discriminatory and unitary, and remanded the case to the
District Court to, inter alia, ‘‘enter an appropriate order requiring the Atlanta
Public School System to prepare and submit to the district court a compre-
hensive desegregation plan covering student assignments in accordance with
the guidelines contained in this Court’s interim order of October 6, 1972
*** > (Slip sheet, pp. 2 and 3). Significantly, there was not a single state-
ment, either express or implied, in any of these decisions concerning the
desegregation of Atlanta schools that the constitutional standards in desegre-
gation cases set forth by the United States Supreme Court, especially those
set forth in Brown I, Green, Alezander, Carter and Swann are not appropri-
ate with regard to large school systems involving around 100,000 students like
the one in Atlanta.
29 In Robinson v. Shelby County Board of Education, 442 F.2d 255, 258 (6th
Cir. 1971), Judge McCree specifically noted that tne then current school year
was almost over and delayed in an opinion filed May 10, 1971 the change
until the start of the 1971-72 school year. But that hardly speaks in support
of the delay until September, 1973 requested herein by defendants; indeed by
implication it would seem to speak to the contrary.
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30a
In August of this year, this Court ordered the elementary
school changeover to be effective January 29, 1973. The
Fourth Circuit’s observation in its October 12, 1972 opin-
ion that ‘‘we perceive’’ only one substantive question ‘‘of
substantiality’’ *°—and that question is whether delay of
implementation of the senior high plan until September 1,
1973 is appropriate—would seem, despite the Fourth Cir-
cuit’s indicated suggestion that this Court also consider
the question of delay at all levels of education after it had
before it all of the evidence, to require this Court to pause
most carefully before postponing any changeover, at any
level, beyond January 29, 1973. The School Board itself,
in its resolution of August 1, 1972, proposed to implement
changes as to all but elementary schools either before or
at the latest by mid-year in January, 1973. Transfers are
usually unwelcome at any time—but they hardly are as
difficult for an individual student to adjust to if the stu-
dent is one of many being transferred. The disruption
of education, particularly of older students, by mid-year
transfers has already been recognized by this Court in its
August 30, 1972 opinion and supra herein. But, to make
what is at best a most difficult decision, this Court concludes
that as a matter of law, the defendants have not borne the
burden of establishing reasons for delay beyond January
29, 1973 with regard to any grade other than the 12th grade.
Accordingly, this Court is of the opinion that it does not
have the discretionary authority to permit any such delay.
But even if this Court did have such authority, this Court
is far from certain that any further delay is advisable.
The present disruptive effects of delay with its current
unsettling effects upon students and ps rents speaks from
the record in this case. Such an atmosphere can hardly be
conducive to maximum educational accomplishment. Views
to that effect were expressed candidly and vigorously by
380 Slip opinion, p. 4.
- Laer ueenegng, rey
3la
one School Board member and by one high school princi-
pal in testimony before this Court last August. Addition-
ally, the policy and the practice apparently followed by a
number of the School Board members,”"' of seeking at
every stage and at every available moment, ever further
delays, and of failing to exert affirmative leadership to
effect required constitutional change, discourages further
delay until September, 1973. But, in any event, in the
view of this Court, the record in this case adds up to a
lack of existence of discretion by this Court to permit delay
beyond January 29, 1973 in view of the failure of defend-
ants to shoulder their very heavy burden of showing the
necessity of any further delay. In that connection, the
record reflects that the School Board’s emphasis in July,
in August, and again in December of 1972, has been to
seek and to justify delay; rather than to find the most
palatable ways in which to change an unconstitutional
school system which defendants have had over 18 years to
cure. The record indeed even reflects that the determination,
on the part of the School Board, to delay was so great that
during the months between August 31, 1972 and December
7, 1972 the Board failed to give a sufficient green light to
its very able staff members to enable them to ready a plan
meeting Brown-Swann standards. Since December 7, 1972,
the time which has elapsed has been requested and has been
sorely needed by those staff members. Fortunately, their
efforts in this month have proven most fruitful and have
provided a workable constitutional plan, deemed education-
31In early July, 1972, in chambers conferences among Court and counsel,
this Court was informed that the Board was deadlocked 4 to 4 in connection
with the approval of a plan which plaintiffs’ counsel believed met constitu-
tional requirements and would recommend to this Court. That plan failed to
gain more than 4 votes and was stillborn by a 4-4 tie. Indeed, at all times
since July, 1972, this Court has been informed that at no time has there been
more than 4 out of 8 or 9 members who were ready to recommend to this
Court any plan which in the opinion of this Court even approaches compliance
with constitutional standards.
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32a
ally sound by plaintiffs and defendants alike, and ready
for implementation—using that urgent word employed in
Green (at 439), “‘now’’.
The School Board is today being ordered, in a separate
document, to implement the plan attached thereto, i.e., the
staff plan submitted December 26, 1972,(a) on January 29,
1973 as to all grades except the 12th grade, and (b) as to
the 12th grade at the commencement of the 1973-74
school year in September, 1973. That Order, in this Court’s
opinion, is a final Order as to the issue of student atten-
dance. Other issues pertaining to faculty, administration,
school construction, and legal fees and reimbursable costs
of plaintiffs and their counsel are reimbursable costs of
plaintiffs and their counsel are reserved for subsequent
determination by this Court. Additionally, this Court will,
for the time being, retain jurisdiction as instructed by the
Supreme Court in Raney v. Board of Education, 391 U.S.
443, 449 (1968), with regard to the student attendance plan
being approved and decreed today, in order that this Court
may supervise the implementation of the same.
/s/ Frank A. KaurMan
United States District Judge
ere sete omens
33a
EXHIBIT “E”
IN THE UNITED STATES DISTRICT COUBT
FOR THE DISTRICT OF MARYLAND
Civil No. 72-375-K
Sy.vester J. VaUGHNS, JB., ET AL.
v.
Boarp or EpvucaTIon OF Prince Grorce’s County, ET AL.
i
Memorandum
The Issues in this Case
This case presents the issue of whether Prince George’s
County School Board (the Board) is:
(1) maintaining its public school system’ in violation of
the commands of the Constitution of the United States;
and
(2) if so, what relief is required; and
(3) how and when that relief should be implemented.
1The tenth largest in the United States. Questions relating to student
attendance, faculty, administration and school construction have been raised.
By agreement of Court and counsel, priority attention has been focused upon
student attendance, in connection with which the taking of evidence and the
presentation of argument are expected to be concluded in this Court within
the current month of December, 1972. As early as feasible thereafter questions
relating to faculty, administration and school construction will be considered,
in and of themselves; at present, they are considered only as they may be
interrelated to the question of student attendance. See Swann v. Charlotte-
Mecklenburg Board of Education, 402 U.S. 1, 18-19 (1971), and cases therein
cited. On a tentative basis, counsel are agreed that current faculty assign-
ments and proposals probably meet federal constitutional standards and that
administration seemingly does not present a particularly difficult issue. The
issue of school construction, described by the Chief Justice in Swann (at 21)
as among ‘‘the most important functions of local authorities’’ and also as
one of ‘‘the most complex,’’ has been considered only to the extent that
shortly after the commencement of this suit the School Board has stipulated
that any new construction which it undertakes will not adversely affect the
relief if any to which plaintiffs are entitled herein.
di
4
5
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34a
History of this Case and Purposes of this Memorandum
This suit was instituted on March 29, 1972. On July
25, 1972, this Court filed an Opinion in which it concluded
(at 6)? that the federal constitutional standards enunciated
by the Supreme Court of the United States * ‘‘command a
discontinuation of the current lack of desegregation in the
schools of Prince George’s County. That lack stems from
a pre-Brown I segregated system which has never been ef-
fectively dismantled and which was not, in its origin, ‘a
consequence of other types of state action, without any
discriminatory action by the school authorities’ (Swann at
23).’’ That holding was compelled by the facts in this case,
jointly stipulated by the parties, which reveal the great
concentration of white students in some schools and black
students in others.
The history of this case, to and including December 4,
- 1972, is set forth in the documents in the official court file
in this case. That history will be referred to but will not
be reviewed in any great detail in this Memorandum, the
incidental purpose of which is to update the history of
this case but the main purposes of which are to review the
legal principles which control the determination of the
issues presented and to chart the course which Court, coun-
sel and parties will follow.
The July 25, 1972 Order and Opinion of this Court called
for both the Board and a consultant hired by it * to present
2 All page references to earlier documents filed in this case are to the pages
of those documents appearing in the official court file.
8 Brown v. Board of Education, 347 U.S. 483 (1954) (Brown I); Swann vy.
Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971).
4In the July 25, 1972 Opinion, it is noted that ‘‘the Board of Education of
Prince George’s County (Board) entered into a contract dated June 30, 1972,
utilizing funds made available to the Board by the federal Department of
Health, Education and Welfare, with the Lambda Corporation, a corporation
with its principal office in Arlington, Virginia (Lambda), to make a study
and a presentation to the Board with the objective ‘to assist Prince George’s
County in the development of a desegregation plan in which specified desegre-
gation objectives are met with a minimum of student transportation.’ The
commencement date for the study was the latter part of the month of June,
1972.’’ (July 25, 1972 Opinion of this Court, p. 6 (footnotes omitted) ).
35a
student attendance plans to this Court by August 22, 1972
‘*so as to bring the Prince George’s County school system
into total compliance with the Brown-Swann standards to
the fullest extent possible by September 5, 1972, or if that
is not feasibly possible, then to bring that system into such
compliance in part to the fullest extent possible by that
date. The burden of establishing the need for any delay
or delays in whole or in part shall rest upon defendants.°
On August 22, 1972, the School Board filed a report.
Following lengthy hearings which included interim testi-
mony by an official of the School Board’s consulting firm,
this Court filed an Opinion on August 31, 1972 in which
it rejected the plaintiffs’ plea for implementation of any
desegregation order effective September 5, 1972, even as
to the tenth and eleventh grades, finding that such early
implementation could only become effective if seventeen
senior high schools were to remain closed for a period
approximating one month. In its August 31, 1972 Order,
this Court required that ‘‘the desegregation plans for all
three levels, elementary, junior high and senior high,
should be coordinated and completed at one time. Such a
total proposed overall plan shall be presented to this Court
on or before December 4, 1972.’’* Additionally, for reasons
stated in the August 31, 1972 Opinion, this Court concluded
that the change-over at the elementary and junior high
levels should become effective January 29, 1973 at the be-
ginning of the second half of the 1972-1973 school year and
that the change-over affecting the tenth and eleventh grades
should occur in September, 1973. Counsel for all parties
have suggested almost from the beginning of this case, and
the Court has tentatively concurred, that no changes with
regard to the twelfth grade should become effective until
September, 1973.
On October 12, 1972, in a per curiam opinion, the Fourth
Circuit, sitting en banc in connection with an interlocutory
5 July 25, 1972 Opinion of this Court, p. 8.
6 August 31, 1972 Opinion of this Court, p. 11.
i at |
\ichannh apiesiatceaaa Fink sartinnatinabata:§
36a
appeal in this case, wrote’ that it ‘‘perceive[d] among the
substantive questions tendered only one of substantiality,”’
namely, ‘justification for that portion of the order on this
record, when the plans are as yet unformulated’’, which
postpones implementation of the tenth and eleventh grade
change-over until September, 1973.
Subsequently, in an Order® calling attention to the
Fourth Circuit’s opinion, this Court required that the
School Board submit by December 4, 1972:
(1) A plan pursuant to which the changeover (a)
with regard to the tenth and eleventh grades would
take place on January 29, 1973 at the same time as
the changeover will take effect with regard to the ele-
mentary and junior high schools, and (b) with regard
to the twelfth grade would take place in the fall of
1973; and
(2) A plan pursuant to which the changeover with
regard to the tenth, eleventh and twelfth grades would
take place on January 29, 1978 at the same time as the
changeover will take effect with regard to the elemen-
tary and junior high schools; and
(8) A plan pursuant to which the changeover with
regard to the elementary and junior high grades will
take place on January 29, 1973 and the changeover
with regard to the tenth, eleventh and twelfth grades
would take place in the fall of 1973. In connection
with that said third alternative plan, all parties are
hereby requested, on the one hand, to present to this
Court all available facts and opinions with regard to
the alleged deleterious effects of a mid-semester change-
over with regard to the tenth and eleventh grades,
and, on the other hand, all available facts and opinions
7Slip Sheet Opinion, p. 5.
8On November 14, 1972, embodying contents of a letter from Court to
counsel dated October 19, 1972.
37a
with regard to, using the Fourth Circuit’s words, the
‘‘advantages of coordinating the change at all levels’’
at the same time. Further, counsel for both sides are
asked to file with this Court, as soon hereafter as pos-
sible and in any event no later than November 15,
1972, citations of cases in which federal courts have
ordered mid-year changeovers or changeovers at times
other than the commencement of the academic term
in the fall of the yeas.
Developments Beginning December 4, 1972
On December 4, 1972 and since that date the School
Board has presented a number of alternative plans to this
Court, several of which are variants of the principal ap-
proach adopted by the School Board. Hearings have been
commenced but not completed in connection therewith, and
some testimony has been taken. In addition, this Court,
with the agreement of the parties and their respective
counsel, has discussed on several occasions in chambers
with counsel and the staff members to whom the School
Board has delegated the major responsibility for prepar-
ing the detailed plans, the facts relating to each of the
232 schools in the system,’ the legal principles which either
require or do not require changes in each of them, the effect
of transfers of students from one school to another upon
still other schools, the effect of any transfer upon trans-
portation schedules and costs, and, above all, the desir-
ability of achieving constitutional standards with regard
to desegregation and at the same time limiting the number
of students who, by the impact of such standards, will
(1) be transferred to a school other than the one they
would otherwise be attending;
(2) become schoo] bus riders rather than walkers; or
(3) be caused to ride additional miles on school busses.
9173 elementary, 41 junior high, and 18 senior high.
OER ST ee
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38a
In its August 31, 1972 Opinion, this Court noted * that
.an official of the consulting firm engaged by the School
Board had testified that he believed that his firm’s ‘‘pro-
posals, when completed and coordinated with the plans of
the school staff, will permit desegregation of the entire
school system, including all twelve grades, without addi-
tional transportation expense and perhaps at a reduced
total transportation cost; and without involving more than
a minimum increase in the total number of students trans-
ported, in the miles each such student would be trans-
ported, and in the daily transportation time such additional
transportation would require.’’ Unfortunately, that ‘‘con-
summation devoutly to be wished’’'™ is not in the cards.
There is seemingly nothing to be gained by any further
consideration of the reasons why the joint efforts of the
staff of the School Board and of the consulting firm have
not proved fruitful and why the School Board has at its
own request been permitted by this Court to continue with-
out the aid of the consultants. The record in this case suf-
ficiently reveals the history of the relationship." Nor does
this Court believe that any current attention should be
devoted to plaintiffs’ December 4, 1972 petition to this
Court to cite the defendants for contempt of its preceding
Orders. That petition is hereby denied. While, for reasons
discussed below, this Court does not believe that any plan
yet presented by the School Board attains constitutional
dimensions, it does not find that there has been conduct
amounting to contempt. On the other hand, the record
discloses repeated and continuing attempts by the School
Board to avoid changes required by the law, to develop
varying methods for circumvention of the law, to delay any
changes which are Court-ordered, and to state as reasons
10 August 31, 1972 Opinion of this Court, p. 7.
10a Hamlet, Act III, Scene 1.
11 This Court at one point believed that it might have proved helpful,
during the post-December 4, 1972 hearings, to hear further from one or two
Lambda officials. However, in the absence of any request by any such official
to appear, there would seem to exist no current reason for such testimony.
39a
for delay, problems which are capable of at least partial
solution without the sacrifice of constitutional rights and
principles. ‘
The Law
The Charlotte-Mecklenburg school system involved in
the Swann case had about 84,000 students of 107 schools
in the 1968-1969 school year, of which about 29% were
black and 71% white.’* In this case, the current Prince
George’s County school population is about 160,000, ap-
proximately 22.4% of whom are black and 77.6% white.”
The areas in both cases are large—in Swamn, ‘‘550 square
miles—spanning roughly 22 miles east-west and 36 miles
north-south’’;" in this case, 485 square miles, with accord-
ing to counsel and school staff, the maximum cross-coun-
try road distance between any two points about fifty miles.
At the inception of both cases, there were a large number
of schools, particularly, at the elementary level, which were
clearly identifiable either as predominantly black or pre-
dominantly white. Writing for a unanimous Supreme
Court, Mr. Chief Justice Burger wrote in Swann at
11-12):
Nearly 17 years ago this Court held, in explicit
terms, that state-imposed segregation by race in public
schools denies equal protection of the laws. At no
time has the Court deviated in the slightest degree
from that holding or its constitutional underpinnings.
***
The opinion then reviewed the decisions of our highest
Court since the pronouncement of Brown I that
in the field of public education the doctrine of ‘‘separ-
ate but equal’’ has no place. Separate educational
facilities are inherently unequal. * * * *
12 Swann, supra at 6-7.
13 July 25, 1972 Opinion of this Court, p. 4.
14 Swann, supra at 16.
15 Brown I, supra at 495.
40a
In Green,” in 1968, the Court had written:
The burden of a school board today is to come for-
ward with a plan that . .. promises realistically to
work now... until it is clear that state-imposed segre-
: gation has been completely removed.”
j In Green,'* the Court had also stressed that it is the school
officials who are
clearly charged with the affirmative duty to take what-
ever steps might be necessary to convert to a unitary
‘ system in which racial discrimination would be elimi-
nated root and branch.
In Swann, Mr. Chief Justice Burger wrote (at 15):
If school authorities fail in their affirmative obliga-
tions under these holdings, judicial authority may be
invoked. * * *
In this case, the Prince George’s County School Board,
despite repeated warnings by officials of the federal De-
partment of Health, Education and Welfare (HEW), and
in the face of debate and discussion at countless board
meetings, has continued, up to the present time, as is re-
cited in this Court’s July 25, 1972 Opinion, to operate a
system (which at the time of Brown I in 1954 was segre-
gated by state law) under standards rejected by the Su-
preme Court in Green and again in Swann. Swann is
written in detailed and easily understandable language.
No counsel, or staff expert, who has participated in dis-
cussions with Court or counsel, has indicated any lack of
understanding of Swann. And yet the School Board has
persisted, until the end of last week, in presenting views
and plans to this Court which are clearly violative of
16 Green v. County School Board, 391 U.S. 430 (1968).
17 Green, supra at 439.
18 Green, supra at 437-38.
MB ye esyerne SLND ON ADR REDS ROR eee
4la
Swamn, a decision binding upon this Court and also upon
the Prince George’s County School Board, and every court
and school board throughout the land. ‘‘This,’’ as Judge
MacMillan wrote in the District Court in Swann, ‘‘is a
matter of law, not anarchy; of constitutional right, not
popular sentiment.’’ ?
In this case, the School Board itself determined as one
of its major desegregation aims to decrease to 35%,
wherever feasible, the* black population of any school cur-
rently having a school body more than 50% black. Neither
this Court nor plaintiffs’ counsel opposed that aim, nor an
alternative planning proposal changing the 35% to 40%.
But this Court has repeatedly sought a flexible approach,
not keyed to or restricted by any foreordained mathe-
matical formula, and has called attention to Mr. Chief
Justice Burger’s words in Swann (at 24):
If we were to read the holding of the District Court to
require, as a matter of substantive constitutional right,
any particular degree of racial balance or mixing, that
«ew would be disapproved and we would be
obliged to reverse. The constitutional command to de-
segregate schools does not mean that every school in
every community must always reflect the racial com-
position of the school system as a whole.
Again, only last June, Mr. Justice Stewart, in the majority
opinion in Wright v. Council of City of Emporia, 407 U.S.
451 (1972), and the Chief Justice in his dissenting opinion,
warned of the need to reject any requirement of a fixed
racial percentage.
Those plans which have been presented to date by the
School Board have by their own adherence to one or more
fixed mathematical percentages called for more student
transfers from school to school and the transformation of
more walkers into bus users, than is necessary. Apparently,
by so proposing, the School Board hoped to convince this
19311 F. Supp. 265, 267 (W.D.N.C. 1970).
42a
Court to leave undisturbed many schools, particularly
neighborhood elementary schools, whose current black-
white populations place them within the category of one-
race or largely one-race schools and most of whose stu-
: dents can walk to school. That result cannot obtain. While
“Li]n some circumstances certain schools may remain all
or largely of one race until new schools can be provided or
neighborhood patterns change *® and while ‘‘the existence
of some small number of one-race, or virtually one-race,
schools within a district is not in and of itself the mark
of a system that still practices segregation by law,’’”
nevertheless :
= os
Stoll Prana:
Where the school authority’s proposed plan for con-
version from a dual to a unitary system contemplates
the continued existence of some schools that are all or
predominantly of one race, they have the burden of
showing that such school assignments are genuinely
nond@iscriminatory. The court should scrutinize such
schoeie. and the burden upon the school authorities
will be to satisfy the court that their racial composition
is not the result of present or past discriminatory
action on their part.”
Noting the use of tools such as gerrymandering of
school districts and attendance zones, and pairing, cluster-
ing and grouping of schools, the Swann Court states:
Absent a constitutional violation there would be no
basis for judicially ordering assignment of students
on a racial basis. All things being equal, with no his-
tory of discrimination, it might well be desirable to
assign pupils to schools nearest their homes. But all
things are not equal in a system that has been deliber-
ately constructed and maintained to enforce racial
segregation. The remedy for such segregation may be
20 Swann, supra at 25.
21 Swann, supra at 26.
22 Swann, supra at 26.
Sermon: Senate seems
43a
administratively awkward, inconvenient, and even bi-
zarre in some situations and may impose burdens on
some; but all awkwardness and inconvenience cannot
be avoided in the interim period when remedial ad-
justments are being made to eliminate the dual school
systems.”
And, continuing, the Swann opinion officially approved .
the bussing portions of the District Court’s decree (at =
31-32) under the cirgumstances of that case.
4
The plans presented to date to this Court would result
in the elimination of many one-race schools, but would
leave a large number in existence. While a few such situa-
tions might well be justifiable in view of the great distances
between certain schools, the continuation of many one-race
schools, simply to avoid turning walkers into users of
busses, cannot be permitted. That is a major lesson of
Swann. The neighborhood school concept, no matter how
attractive, cannot, at the elementary or any higher level,
compel a continued pattern of unconstitutional segregation.
A school-by-school analysis of each of the units within
Prince George’s County, under the guidance of School
Board staff experts, has been and is being made by Court
and counsel in this case. Hopefully, within the next ten
days, and certainly if at all possible before Christmas,
revised plans which meet the Brown-Swann tests will be
submitted and will be the subject of evidentiary hearings.
Counsel for the School Board and counsel for the inter-
venors, while cooperating fully with this Court and plain-
tiffs’ counsel in the consideration of desegregation plans,
have stated candidly that they will seek delay in the imple-
mentation of such plans, whatever provisions they may
contain, until at least September, 1973, even though all of
such counsel have noted their recognition of the heavy
burden placed upon those seeking delay by Green, Alezx-
23 Swann, supra at 28.
sa aoe "
44a
ander,* Carter * and Swann and by the Fourth Circuit’s
statement in its per curiam opinion in this case. The
principles set forth in those cases are not inapplicable in
connection with a mid-year change-over. Thus, in Stanley
v. Darlington County School Dist., 424 F.2d 195 (4th Cir.
1970), Chief Judge Haynsworth ordered a mid-year change,
stating (at 196): ‘‘Whatever the state of progress in a
particular school district and whatever the disruption
which will be occasioned by the immediate reassignment of
teachers and pupils in mid-year, there remains no judicial
discretion to postpone immediate implementation of the
constitutional principles as announced in’’ Green, Alexan-
der and Carter. Even more significantly, in the Darlington
case, the Fourth Circuit stated (at 197) in denying a pe-
tition for rehearing: ‘‘It is true... that a general reassign-
ment of 58,000 pupils and their teachers at this time of
year will occasion great disruption, and that much educa-
tional advantage may be lost through the process of re-
adjustment. The court, however, was not unmindful of
these things at the time of entry of its order’’ (at 197).
And in Nesbit v. Statesville City Bd. of Education, 418
F.2d 1040 (4th Cir. 1969), the Fourth Circuit, in the light
of ‘Alexander, ordered mid-year change-overs without dis-
cussing whether educational disruption would justify delay.
The likelihood of an appeal from this Court’s final
Order ** will be kept in mind. To that end, expedited copy
24 Alexander v. Holmes County Board of Educative 396 U.S. 19 (1969).
25 Carter v. West Feliciana Parish School Board, «su U.S. 290 (1969).
26 Any contention that the provisions of section 803 of the Education Amend-
ments of 1972, Pub. L. 82-318, § 803 (June 23, 1972), providing for post-
ponement of the effect of certain federal District Court orders ‘‘until all
appeals...have been exhausted’’, applies herein, has seemingly been rejected
in four separate individual Orders by Mr. Justice Powell in Drummond v.
Acree, —— U.S. —— (September 1, 1972); by Mr. Justice Rehnquist in
Board of Education of Okla. City Public Schools, et al. v. Robert L. Dowell,
U.S. —— (August 23, 1972), and Metropolitan County Bd. of Educa-
tion of Nashville, et al. v. Kelley, et al., U.S. —— (August 28, 1972);
and by Mr. Justice Douglas in Guinn v. Kelly, —— U.S. (September 5,
1972).
| es Bhs BASS eee yi arene
45a
is being provided of all evidentiary hearings. However, as
of this date, counsel for defendants and intervenors have
asked this Court to permit them to delay the completion
of the presentation of testimony until revised plans have
been completed by the School Board staff. This Court,
while acquiescing in that request, will do its best to com-
plete these proceedings and file its final Order at the earliest
possible date. That Order will be based upon the constitu-
tional requirements enunciated by the Supreme Court;
hopefully, it will also call for the adoption of the Plan
selected by the Prince George’s County School Board itself
as that one among many constitutionally permissible plans
which that Board creates as the most educationally sound
and the one which best reconciles competing public and
private interests.
/s/ Frank A. KaurMan
United States District Judge
Dated: December 13, 1972
E
x
§
eee rem |
46a
EXHIBIT “F”
& UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ne
No. 72-2129
SyivesTer J. Vaucuns, Jr., by his father and next friend,
Sytvester J. Vaucuns; Torka E. WHEATFALL, by her
father and next friend, Watter E. WHEATFALL; JAMES
R. L. Brooks, Jr., by his father and next friend, James
R. L. Brooxs; Recrnatp Wiacs, by his father and next
friend, Hosta Wices; Recinatp A. Jackson, JR., by
his father and next friend, Recinatp A. Jackson;
Denise A. Ligon, by her father and next friend, Denn1s
J. Licon, Jz.; Canotyn Griimorg, by her father and
next friend, Strertinc GitMorE; JoHNn A. WILLIAMs, by
his father and next friend, Joun J. W1iu1aMs, individ-
ually and on behalf of all other persons similarly
situated, Appellants,
versus
Boarp or Epucation oF Prince GeorGe’s County; A. JAMES
Goxato, President of the Board of Education of Prince
George’s County and Cuester KE. Wuitine, Joanne T.
Go.psmiTH, Dr. Ropney W. Jonnson, Sve V. MILs,
Dr. J. Richton Rosertson, JEsse J. Warr, JR., PHYLLIS
E. Wiuu1ams, Rutn S. Wotr, members of the Board of
Education of Prince George’s County; and Dr. Carn
W. Hassett, Superintenvent of Schools of Prince
George’s County, Appellees,
47a
No. 72-2130
Syivester J. Vaucuns, Jr., by his father and next friend,
Sytvester J. Vaucuns; Torka E. Wueatraty, by her ;
father and next friend, WaLTer E. WHEATFALL; JAMES
R. L. Brooks, Jr., by his father and next friend, James
R. L. Brooxs; RectnaLp Wicos, by his father and next i
friend, Hosza Wices; Recrnatp A. Jackson, JR., by
his father and next friend, Recinatp A. Jackson;
Denise J. Licon, by her father and next friend, Dennis
J. Licon, Jr.; Carotyn Grumore, by her father and
next friend, Stertinc GitmorE; Joun A. WiuuiaMs, by
his father and next friend, Joun J. WituiaMs, individ-
ually and on behalf of all other persons similarly sit-
uated, Apjellees,
versus
Boarp or Epucation or Prince Georce’s County; A. JAMES
Goxato, President of the Board of Education of Prince
George’s County and Cuester BE. Wurtine, Joanne T,
Go.tpsmi1tH, Dr. Ropney W. Jounson, Sue V. Mitts,
Dr. J. Ricnton Rosertson, Jesse J. Warr, Jr., PHYLLIS
E. Wiiuuiams, Rutn S. Woir, members of the Board
of Education of Prince George’s County; and Dr.
Cart W. Hasse.z, Superintendent of Schools of Prince
George’s County, Appellants.
somes mnmenmenennmceemmenmaeremmmmmnen ae
48a
No, 72-2131
Boarp or Epucation or Prince Geonce’s County; A. JAMES
Goato, President of the Board of Education of Prince
George’s County and Cuester BE. Wartine, Joanne T.
GotpsmitH, Dr. Ropney W. Jonnson, Suz V. Mus,
Dr. J. Richton Rosertson, Jesse J. Wann, Jz., PHYLLIS
E. WuuuMs, Ruta S. Woxir, members of the Board
of Education of Prince George’s County; and Dr.
Can W. Hasse.i, Superintendent of Schools of Prince
George’s County, Appellees,
versus
Jesse ALExaANveR Eien, Marta Sraeet Evter, Brenpan
Epwarp Lyncu, Marsonmw Exaise Lyncu, Kennetu
Puiu Warrremore, Betre Ann Wuittremore, Ar-
tHuR Emanvet Dinerman, Janet Avin Dinerman,
Morris Epwarp Sampson, Tuetma Orinpa Sampson,
Witu1am Raymonp Leer, Marcaret Street Leer, Leo
Paut Cuasot, Wanpa Maxine Cuasot, Jonn Evoene
Spautpine and Bernapine Lane Spavuipine, Appellant
Appgats From THe Unitep Srates Districr Court ror THE
District MaryLanp, at Battrmore. Frank A. Kaurman,
District Jupez.
(Argued October 2, 1972. Decided October 12, 1972.)
Before Haynswortn, Chief Judge, and Winter, Craven,
Butzyek, Russert and Frew, Circuit Judges, sitting
en bance.
Richard V. Falcon and Kenneth L. Johnson (Gerald A.
Smith, and Howard, Brown and Williams on brief) for
POM ALOT Ol Ot Et 5k CS ET
49a
Appellees in No. 72-21 and 72-2131 and for Appellants in
No. 72-2130; Paul M. Nassbaum, Counsel for the Board of
Education of Prince George’s County, Maryland, (Stanley
H. Goldstein on brief) for Appellees in No. 72-2129 and for
Appellants in No. 72-2130; Emmett H. Nanna, Jr. (Richard
M. James, George P. Lewnes and Cyril S. Wofsy on brief
Appellants in No. 72-2131.
Per Curmum: ‘
In this school case, the District Judge entered an order
in July 1972 declaring the composition of the schools and
the assignment of pupils in Prince George’s County Mary-
land not to be in compliance with the constitutional require-
ments. There was a subsequent order in August, directing
the preparation of final desegregation plans by November
1972 and their submission to the Court early in December. ;
That order scheduled a hearing on the plans in December '
and provided that the plans, with respect to the primary 4
schools and the junior high schools, would be made effec-
tive on January 29, 1973, the date of the semester break. :
With respect to the senior high schools, however, the order
provided that the plans would not be placed into effect until y
September 1973. :
The right to take an appeal from each of the orders :
under the present circumstances is contested, and the reso- '
lution of those procedural questions involve difficult con-
siderations. We think it unnecessary to attempt to resolve
them, for we perceive among the substantive questions
tendered, only one of substantiality, and that one is, and
will be, within the bosom of the District Court.
The general rule requires that plans for the desegrega-
tion of school systems be made effective as soon as they
practically may be without serious disruption to the edu-
cational process.* It is contended here that, in light of the
* Alexander v. Holmes County Board of Education, 396 U.S. 19 (1969);
Carter v. West Feliciana Parish School Board, 396 U.S. 226 (1969).
h, RL ee eS ORE RI OIE IAI, FTO PLE OL LAI LEP AGE IIE OD EM PFE RIE TEs |
SD ope yo
50a
general rule the District Court should not have included in
its August 1972 order a provision postponing implementa-
tion of the plan with respect to the senior high schools until
September 1973. With the possible exception of the twelfth
grade, the graduating class, it is difficult to find justifica-
tion for that portion of the order on this record, when the
plans are as yet unformulated and the advantages of
coordinating the change at all levels cannot be weighed
against what difficulties may be encountered in the imple-
mentation of the plan for the senior high schools at mid
semester,
It seems clear to us, however, that the timing of the
implementation of the plans, when approved, at all levels
is subject to reconsideration in the District Court in light
of the actual plans and the extent of the changes within the
school system which their implementation will require.
This question should first be addressed to the District
Court and considered by it in light of the situation as it
shall appear when otherwise approvable plans are in hand.
Since there appears to be no substantive issue of sub-
stantiality ready for decision in this Court, we need not
undertake resolution of the procedural questions. The case
will be remanded for further proceedings in the District
Court.
The mandate shall issue forthwith.
Remanded.
5la
JUDGMENT
UNITED STATES COURT OF APPEALS
for the
Fourth Circuit
No. 72-2129 °
No. 2130
No. 2131
SYLVESTER J. VAUGHNS, JR., by his father and
next friend, SYLVESTER J. VAUGHNS; TOIKA E. WHEATFALL,
by her father and next friend, WALTER E. WHEATFALL;
JAMES R. L. BROOKS, JR., by his father and next friend,
JAMES R. L. BROOKS; et als.,
Appellants,
versus
BOARD OF EDUCATION OF PRINCE GEORGE’s COUNTY;
A. JAMES GOLATO, President of the Board of
Education of Prince George’s County, et als.,
Appellees.
Appeal from the United States District Court for the
District of Maryland.
This cause came on to be heard on the record from the United
States District Court for the District of Maryland
, and was argued by counsel.
On consideration whereof, it is now here ordered and adjudged by
this Court that the case is remanded to the United States District Court
for the District of Maryland, at Baltimore, for further proceedings
consistent with the opinion of this Court filed herewith. The mandate
shall issue forthwith.
CLERK
FILED
OCT 12 1972
WILLIAM K. SLATE, II
CLERK
52a
EXHIBIT “G”
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Civil No. 72-325-K
Syivester J. VauGHns, JR., ET AL.,
:
:
v.
Boarp or Epvucation or Prince Georce’s County, ET AL.,
Filed: August 31, 1972
Richard V. Falcon, David S. Bogen, of Baltimore, Mary-
land, and Kenneth L. Johnson, Gerald A. Smith, of Balti-
more, Maryland, and Alan J. Goldstein, of Oxon Hill, Mary-
land, for Plaintiffs.
Paul M. Nussbaum and Stanley H. Goldstein, of Mt. Rain-
ier, Maryland, for Defendants.
Kaufman, District Judge.
On July 25, 1972, this Court filed an opinion in this case
ordering desegregation within the tenth largest public
school system in the United States and an end to lack of
compliance with the constitutional standards enunciated
by the Supreme Court in the Brown and Swan cases.’ Pur-
suant thereto the Board of Education of Prince George’s
County (the Board) filed a report on August 22, 1972, and
lengthy hearings were held commencing Friday, August
25, 1972, and terminating earlier today. The report and the
record in this case demonstrates that since August 1, 1972
the school staff, in accordance with the Board’s resolution
of that date, has complied in good faith with this Court’s
July 25, 1972 Order and indeed has burned midnight oil
1 Brown v. Board of Education, 347 U.S. 483 (1954); Brown v. Board of
Education, 349 U.S. 294 (1955); Swain v. Charlotte-Mecklenburg Board of
Education, 402 U.S. 1 (1971).
[3
ee
53a - 54a
in connection therewith. The August 22, 1972 report in-
cludes a proposed staff plan for desegregating, effective
September 5, 1972, the senior high schools but excluding,
for the school year 1972-1973 only, the twelfth grade, i.e.,
the senior class. Plaintiffs have no objection to that one-
year exclusion and urge this Court to order the plan to
become effective September 5, 1972 with regard to the tenth
and eleventh grades for the school year 1972-73. Defend-
ants, on the other hand, urge this Court not to order the
implementation of any desegregation plan for any grade un-
til the opening of the school year 1973-74 in September,
1973. On a secondary basis, defendants would have this
Court order elementary school desegregation effective Jan-
uary 29, 1973, the date on which the second semester of the
upcoming school year will commence, and delay implemen-
tation with regard to junior high and senior high schools
until the fail of 1973. Defendants also contend that even
if the junior high implementation is moved up to January ©
29, 1973, the senior high change should not become effective
until the autumn of 1973. Defendants concede that under
this Court’s July 25, 1972 Order all grades should be de-
segregated no later than the opening of the school year,
1973-74.
On the other hand, plaintiffs ask this Court, as indicated
above, to implement the proposed staff plan effective Sep-
tember 5, 1972 as to the tenth and eleventh grades, and
also contend that this Court should require a new desegre-
gation plan to go into effect on January 29, 1973 with re-
gard to the elementary and junior high schools and in Sep-
tember, 1973 with regard to the twelfth grade. As is ap-
parent, the only agreement between the parties as to dates
of implementation of the required desegregation changes
is that plaintiffs’ like defendants, desire that any change
with regard to the twelfth grade be delayed until the fall
of 1973. However, there is also agreement among the par-
ties that the proposed staff plan for the senior high school ~
is educationally sound.
FEES P ENTE BARLEY tN
% ee nat
54aa
THIS PAGE INTENTIONALLY LEFT BLANK
SIE RANTS DR AE sa MIN ete pa NB
55a
That staff senior high plan was prepared during this
month independently of the work being simultaneously done
by The Lambda Corporation (Lambda). Testimony in this
case would indicate, however, that the proposed tenth and
eleventh grade plan could in all probability be coordinated
with the Lambda proposals, when they are forthcoming,
without any substantial additional expense, complication
or delay. However, all of the testimony reveals that the
staff plan cannot be. implemented without delaying the ¢
opening of the tenth and eleventh, and also the twelfth,
grades? for a period of at least two weeks. Indeed, except
for one senior high school principal, called to testify by
plaintiffs, all of the witnesses indicated the delay would be
approximately one month in length.’
.
£
a
Se re
The superintendent of the schools and other witnesses
testified that implementation of any desegregation plan
without opportunity for planning and exchange of infor-
mation among teachers, counselors, students and parents,
would cause chaos and would lead to increased racial ten-
sions. However, there was also testimony from the above-
mentioned senior high school principal and from a Board
member that such tensions are already at a high level and
that they would be reduced if the desegregation plan for
the tenth and eleventh grades went into effect this fall. On
balance, this Court is convinced that, at this late date, it is
not possible to implement the staff plan for the tenth and
eleventh grades without delaying the opening of seventeen
of the eighteen senior high schools for a period of approxi-
2 The senior high class programs involve so much coordination and integra-
tion among the three grades (10th, 11th and 12) which compose it that it is
apparently not possible to treat the twelfth grade in any given school separ-
ately from the tenth and eleventh grades in such school.
3 The proposed senior high school plan alters the numbers of students attend-
ing seventeen out of eighteen high schools and requires reassigning some
teachers from one school to another, consultation among administration,
faculty, counselors, students and parents and many other steps which have yet
to be fully programmed and which must be implemented when programmed.
That will take time—how much can only be estimated.
Kos > Lig Sy ee
EROS eee |
56a
mately one month and without bringing about great con-
fusion in the operation of the school system and adding to
the tensions which already exist.
The connection between those existing tensions and the
failure by the Board to comply with the Brown-Swann
mandates may not be overlooked. Further, the Board was
most specifically advised by officials of the federal Depart-
ment of Health, Education and Welfare (HEW) in the
summer of 1971 that the Board was not in compliance with
those mandates. Indeed, since August, 1971, the Prince
George’s County school system has not been eligible to
receive certain new federal funds because of such noncom-
pliance. Additionally, there was delay in mid-July, 1972
with regard to lack of cooperation by the Board with Lamb-
da. Against that background, it is most regrettable that
there should be any further delay. But what must govern
the determination in this case are the facts which exist to-
day and not the facts which might have existed had the
School Board acted to bring itself into compliance with
the Brown-Swann standards without this Court’s Order, or
had the School Board otherwise moved to correct the con-
stitutional violations which have existed.
The Board bears a heavy burden to show the need for
any delay * beyond September 5, 1972 in implementing the
staff plan as to the tenth and eleventh grades.’ But defend-
ants have successfully shouldered that burden despite the
delays which occurred prior to August of this year. The
staff plan can only become effective in September, 1972 if
seventeen of the eighteen senior high schools remain closed
for a period which this Court believes will be approximately
one month. The extreme undesirability of such a late open-
ing needs little elaboration, though it bears specific mention
that opening one month late would shorten the 1972-73
4 Alexander v. Holmes County Board of Education, 396 U.S. 19 (1969).
5 Carter v. West Feliciana Parish School Board, 396 U.S. 226 (1969).
|
|
Cre
meow ENR,
57a
school year, and make it very difficult, if not impossible,
for that year to include the necessary number of school
days required by Maryland law and at the same time con-
clude within the June expiration date set forth in teachers’
contracts.
A vice-president of Lambda, in charge of preparing the
Lambda plan, testified that his work will not be completed,
at the earliest, before November, 1972. However, he also
testified that the proposed staff plan for the tenth and
eleventh grades could, if made effective September 5, 1972,
later be coordinated with the Lambda plan without any
undue expense or complication. Thus, the fact that the
Lambda plan is not yet ready does not for that reason
justify delay in implementation of the staff’s senior high
plan.
During the hearing, more evidence was taken with regard
to transportation costs than any other single item. That
evidence convinces this Court that if the proposed tenth and
eleventh grade plans were made effective on September 5,
1972, and all other desegregation was delayed until Sep-
tember, 1973, there might well be an additional cost ex-
ceeding three-quarters of a million dollars. That cost could
probably be reduced to less than half of that amount if all
desegregation other than of the twelfth grade were accom-
plished effective January 29, 1973. The tremendous addi-
tional cost would occur because Prince George’s County at
present busses about 75,000 school children, using 496
buses * which are scheduled to arrive at the schools in time
for staggered opening hours from 7:30 a.m. to 9:30 a.m.
Almost all of those 496 buses make as many as five con-
secutive trips each day, carrying as many as five separate
groups of children to their respective schools. Under the
proposed staff plan, as presently developed, some of the
496 buses will no longer be able to make consecutive runs.
6 There are a total of 737 buses, 241 of which are used for special educa-
tional, athletic, spare and emergency purposes.
LAER Tees I
58a
Therefore, those buses and their drivers would accord-
ingly be idle during an increased amount of time.
At present, there are 1500 bus trips per day. Under the
proposed senior high plan, the 496 buses would make an
additional 140 trips per day, would bus about 200 students
who are not now being bussed,’ and add 7.28 miles per day
to the bus miles per high school student now being trans-
ported.* In order to accomplish those additional trips and
because of the additional periods of idleness, the drivers
of those buses would have to be employed for longer hours.
The cost of paying them for those hours plus the cost of
driving certain additional miles will cause the above-men-
tioned ballooning of transportation costs, though all agree
that ballooning can be decreased by trial and error, and
also when the entire senior high desegregation plan goes
into effect covering the twelfth as well as the tenth and
eleventh grades. Additionally, both the school staff wit-
nesses and the Lambda official testified that given time for
further study the school staff itself, without outside help
and without trial and error, would almost surely be able
greatly to reduce the additional costs. Going further, and
most importantly, the Lambda official stated that he be-
lieves that Lambda’s proposals, when completed and coordi-
nated with the plans of the school staff, will permit de-
segregation of the entire school system, including all twelve
-Tades, without additional transportation expense and per-
haps at a reduced total transportation cost; and without
involving more than a minimum increase in the total number
of students transported, in the miles each such student
would be transported, and in the daily transportation time
such additional transportation would require. While the
courts have made it clear that delays in implementing the
Brown-Swann standards should not be countenanced be-
7 About 15,000 senior high school students are currently being bussed.
8 That average is now 15 miles per day per senior high school student.
59a
cause of increased costs,® those decisions have been rendered
in cases in which there was no evidence that, given a short
delay, a desegregation plan meeting constitutional stand-
ards could be devised and implemented which would totally
or at least substantially eliminate increased costs. Further,
those decisions were rendered in the context of cases which
had been pending for a number of years in the courts. The
within proceeding was G@ommenced on last March 29th. Be-
cause of the cooperation of counsel in stipulating facts and
in many other ways, it was possible for this Court to render
as early as July 25, 1972 an opinion with regard to lack of
constitutionality of the existing system. Regardless of
whether or not detailed studies should have been made and
detailed plans formulated prior to that time, the school
staff had less than one month to formulate and present
those plans for the tenth and eleventh grades by August
22, 1972. Further, Lambda is being paid $50,000 by HE W
to present analyses and proposals which will not be avail-
able until at least November, 1972 and which may well
cause changes to be made in the proposed school staff plan
for the senior high. Bearing in mind the command of the
Supreme Court in Alexander’ and with full knowledge
of the record of the past, this Court concludes that, in light
of all of the facts and factors discussed above, including
the additional transportation costs as only one of such
factors, the defendants have borne their burden of show-
ing the desirability of not implementing the staff desegre-
gation plan for the tenth and eleventh grades effective
September 5, 1972.
On the other hand, this Court holds that the defendants
have not borne such burden with regard to any delay be-
® Swann involved an increase of about $1,000,000 to a yearly school budget
of about $66,000,000. And note particularly Brewer v. School Board of City
of Norfolk, Virgina, 456 F.2d 943, 947 n.6 (4th Cir. 1972).
10 See n.4, supra.
‘
e
¢
*
MRSS
Bisstetnes seixnicasataanaiss
60a
yond January 29, 1973 in connection with desegregation of
the elementary and junior high school grades. While the
shift of a large number of students among schools possibly
requires concomitant faculty reassignments and may also
entail certain curricular and extra-curricular changes,
nevertheless, the testimony in this case indicates that even
allowing time for consultation by school staff officials with
Lambda so as to enable the Lambda analyses and propo-
sals to be utilized, a complete desegregation plan for all
three levels, senior high, junior high and elementary, can
be completed by early December or by mid-December, 1972
and implemented by the end of January, 1973. That plan
would utilize the senior high plan prepared in the last month
but would permit time for it to be altered to eliminate, both
with and without the aid of Lambda, any substantial in-
creases in bussing costs, the number of students being
bussed, and the number of transportation miles per day
per student being bussed. Nevertheless, the defendants
resist any change in mid-year, for non-transportation rea-
sons. For one thing, they point to the need to acclimatize
all concerned to student assignment changes made to
achieve desegregation. It is of course true that any time a
student moves from one school to another, whether it be
from elementary to junior high school, or from junior
high school to senior high school, or from one school to
another within any of the three levels, or indeed from one
city to another, careful counseling and planning are
required. The burden thrown upon school administra-
tors, faculty and counselors is immeasureably greater
when massive changes are undertaken within a very
large, geographically scattered system. But that awe-
some burden will be present whenever the change-
over occurs, be it mid-year as of January 29, 1973, or in
September, 1973. There was testimony that if the shift
is made effective in the fall rather than in mid-year, there
is time for certain human relations and counseling pro-
6la
grams to be handled during the preceding summer. How-
ever, a quick look at the case law reveals that in other in-
stances courts have ordered mid-year changes without any
apparent serious adverse results.” In this case, this Court
concludes that the change-over can and should be made
effective January 29, 1973 with regard to the elementary
and junior high schools.
The question must therefore be asked, why not also re-
quire the change-over to become effective for the tenth
and eleventh graders as of January 29, 1973? The answer
is that there are a number of important differences be-
tween senior high schools on the one hand, and junior high
schools and elementary schools on the other hand. Al-
though all of the educators testified that no mid-year change
is desirable, all agreed that there are many less problems
inherent in a mid-year change-over at the elementary level
than at the high school level. For one thing, at the senior
high level, there are many electives and more semester
courses as opposed to year-long courses.’? For another, the
senior high school student engages in a number of athletic
and other extra-curricular activities which transcend the
mid-year break. And, additionally, there is the intermin-
gling of tenth, eleventh and twelfth graders in courses and
other activities which makes it harder to shift in mid-year
senior high students than elementary school students.
While the junior high school change-over differs only in
degree from the senior high school change-over, the evi-
dence in this case fails to disclose at the junior high level
problems of the same approximate degree of intensity as
11 Carter v. West Feliciana Parish School Board, supra; Nesbit v. States-
ville City Board of Education, 418 F.2d 1040 (4th Cir. 1969). See also Clark
v. Board of Education of Little Rock School District, 449 F.2d 493, 498-99
(8th Cir. 1971).
12 Semester courses are not uniform either as to schedule or as to content in
the several high schools of Prince George’s County.
viee
he (2° ee
62a
are apparent within the senior high context. Accordingly,
defendants have not met the burden as to delay in the
change-over in the junior high schools, beyond January
29, 1973, even though they have so done with regard to
the senior high schools.
The Prince George’s County school transportation sys-
tem affords bussing for students of all ages. Accordingly,
the desegregation plans for all three levels, elementary,
junior high and senior high, should be coordinated and
completed at one time. Such a total proposed overall plan
shall be presented to this Court on or before Deceniber 4,
1972. That plan shall be based on a schedule calling for
the elementary and junior high schools to be desegregated
effective January 29, 1973 and the senior high schools to be
desegregated effective September, 1973."* This Court will
hold a hearing with regard thereto on Monday, December
11, 1972. In connection therewith, this Court notes that
since it is not hereby ordering for implementation at this
time any action by defendants ‘‘which requires the transfer
or transportation of any student or students from any
school attendance area prescribed by competent State or
local authority for the purposes of achieving a balance
among students with respect to race, sex, religion, or socio-
economic status’’ as provided in section 803 of the Higher
Education Act Amendments of 1972, Pub. L. 92-318, this
Court is required neither to postpone the effective date
of its within Order as provided thereby, nor to construe
that section, nor to consider its constitutionality, the latter
question having been reserved by counsel for plaintiffs
13In September, 1973, all three grades of the senior high schools, tenth,
eleventh and twelfth, shall be desegregated. The defendants have agreed that
there is not sufficient reason for the senior class to be excluded from operation
of the plan if the members of that class and the school administrators and
faculty know one year in advance of the change-over and can prepare for the
same.
IE RO BL ET MMR ey AY EP REPASTny
63a
herein. However, those issues would seemingly arise dur-
ing the December hearing. Counsel are therefore required
to submit memoranda in connection therewith no later than
October 1, 1972. Thereafter, this Court will hear oral
argument during a date set in October pertaining to those
issues and any other issues which can be determined prior
to the December 11th hearing on the desegregation plan
itself. °
This case raises questions pertaining not only to assign-
ments of students but also to the racial balances in faculty
and administration as well as plans for new school con-
struction. Counsel have agreed to submit reports to this
Court by October 24, 1972 with regard to faculty and
administration. Since any new school construction is ex-
pected to be coordinated with the new student assignment
plan, it is not expected that the construction question will
pose any new problems.
The reports and memoranda hereinabove referred to
shall be submitted and filed as herein provided. It is so
OrpereD, this 3lst day of August, 1972.
/s/ Frank A. Kaurman
United States District Judge
2 NOSES PUT PON ae Pele EAE
64a
EXHIBIT “H”
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Civil No. 72-325-K
Sy.vesTten J. VaucHns, JR., ET AL,
v.
Boarp or Epucation oF Prince Georae’s County, ET AL.,
Order
For the reasons stated in this Court’s opinion of even
date herewith, plaintiffs’ motion for summary judgment
is hereby granted to the extent that that motion seeks a
declaration that the school system of Prince George’s
County does not, at the present time, meet the standards
set forth in Brown v. Board of Education, 347 U.S. 483
(1954) (Brown 1), and Swan v. Charlotte-Mecklenbur,,
Board of Education, 402 U.S. 1 (1971) (Swan). Also in
accordance with the said opinion, this Court holds sub
curia all issues pertaining to the type and nature of relief
which is required.
It is so OrnpERED, this 25th day of July, 1972.
/s/ Frank A. KaurMan
United States District Judge
PANNE SA , PLS RE NRE ENING ER Dips NET ER SENL IR EE SANS CBRE HET ALS AONB REELS, SS
65a
EXHIBIT “1”
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Civil No. 72-325-K
SyLvester J. VAUGHNS, JR., ET AL,
Vv.
Boarp or Epucation or Prince GEeorGcE’s County, ET AL.,
Filed: July 25, 1972
Richard V. Faleon, David S. Bogen, of Baltimore, Mary-
land, and Kenneth L. Johnson, Gerald A. Smith, of Balti-
more, Maryland, and Alan J. Goldstein, of Oxon Hill, Mary-
land, for Plaintiffs.
Paul M. Nussbaum and Stanley H. Goldstein, of Mt. Rain-
ier, Maryland, for Defendants.
Kaufman, District Judge.
Plaintiffs, black adult residents of Prince George’s
County, Maryland, instituted this proceeding on behalf of
their school age children and other children similarly sit-
uated, invoking this Court’s jurisdiction, inter alia, under
28 U.S.C. § 1343, the jurisdictional counterpart of 42 U.S.C.
§ 1983. Plaintiffs’ substantive claim for injunctive and de-
claratory relief is stated under that latter statute and rests
upon alleged violations of the standards established by the
Supreme Court of the United States in Brown v. Board of
Education, 347 U.S. 483 (1954) (Brown I) and Swan v.
Charlotte-Mecklenburg Board of Education, 402 U.S. 1
(1971) (Swan). Plaintiffs ask this Court to permit this
case to be brought as a class action under Federal Civil
Rule 23. Since this action falls precisely within the provi-
sions of Federal Civil Rule 23(b)(2), this Court hereby
determines that this action shall be maintained as a class
é
;
e
A
f
k
BELO RES
a
66a
action on behalf of all black children of school age residing
within Prince George’s County.’
Plaintiffs seek summary judgment herein and point in
connection therewith to an extensive and detailed Joint
Stipulation of Facts filed by both sides and attached hereto.
While that document speaks for itself, a few highlights
culled therefrom are revealing.
Until 1954, Prince George’s County (the County) main-
tained a dual school system, segregated by state law. See
Md. Ann. Code art. 77, §§ 124, 207-09, 269 (1951 ed.). At
the conclusion of the 1953-54 school year, the County oper-
ated a total of 95 elementary and secondary schools of
which 21 were attended only by black students.”
After the Supreme Court of the United States declared
such state-imposed racial segregation in education uncon-
stitutional in Brown I, the County adopted, in 1956, a
‘*freedom of choice’’ plan. Under that plan each pupil was
assigned to the school he attended before the Supreme
Court’s decision in Brown I but each pupil was given the
option of electing to transfer to the school nearest to where
he lived or, in certain exceptional cases, to any other school.®
The effect in practice of that ‘‘freedom of choice’’ plan
was to maintain intact the racially segregated school sys-
tem which had existed theretofore. During the 1964-65
school year, the last year in which the ‘‘freedom of choice”’
1 Because the class is designated pursuant to Rule 23(b)(2), no notice is
required by Rule 23(c)(2). For a discussion of notice requirements in class
suits pursuant to Federal Rule 23, see, on the one hand, Johnson v. Georgia
Highway Express, Ine., 417 F.2d 1122 (5th Cir. 1969); Francis v. Davidson,
—— F.Supp. —— (D. Md. January 28, 1972); Northern Natural Gas v.
Grounds, 292 F.Supp. 619, 636 (D. Kan. 1968), as contrasted with Eisen v.
Carlisle and Jacquelin, 391 F.2d 555 (2d Cir. 1968), See also 3B J. Moore,
FEDERAL PRACTICE {2355 at 1152-53 (2d ed 1969), favoring the views
expressed in the first three cases that notice in a Rule 23(b)(2) case is not
always required.
2 Attached Joint Stipulation of Facts { 4.
8 Attached Joint Stipulation of Facts { 5.
67a
plan was in operation, over 82% of the County’s black stu-
dent population attended schools which were 100% black
and over 73% of the white students attended schools which
were over 95% white. Fifteen of the County’s 126 ele-
mentary schools enrolled an all-black student body and
three of its secondary schools, attended by 77.4% of the
black pupils who were of secondary school age, remained all
black schools.‘
Beginning with the 1965-66 school year, the County
adopted a pupil assignment system based upon geographic
attendance zones established by its Board of Education.
Under that system, a pupil attends the school located in
the zone in which he lives. The geographic attendance zone
plan has continued in force and effect up to and including
the present time although the boundaries of most if not
all of the zones have been changed from time to time.®
At the end of the first year in which the geographic at-
tendance zone system was in effect, 11 schools (6.1%) in
the County had student populations of 95% or more black
pupils 113 schools (62.8%) had student bodies in excess
of 95% white pupils.* In October, 1967, a report submitted
to the federal Department of Health, Education and Wel-
fare by the Superintendent of Schools for Prince George’s
County disclosed that, at that time, eight of the County’s
199 schools enrolled an all-black student body.”
At the present time, the Prince George’s County school
system has a total enrollment of 162,828 pupils of which
22.4% are black and 77.6% are white. Sixty-one percent
of the black attend schools with student bodies greater-
than 50% black and 40% of the black pupils attend schools
which are greater than 80% black. Forty-seven percent
4 Attached Joint Stipulation of Facts, Exhibit 2.
5 Attached Joint Stipulation of Facts, Exhibit 1.
6 Attached Joint Stipulation of Facts, Exhibit 6.
7 Attached Joint Stipulation of Facts, Exhibit 7.
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68a
of the white students attend schools which are greater than
95% white and 66% attend schools which are greater than
90% white.®
Against the agreed factual background in this case, de-
fendants oppose plaintiffs’ motion for summary judgment,
asserting that the undisputed facts constitute ‘‘mere con-
clusions’’ and that a factual dispute concerning ‘‘causa-
tion’’ exists. But that dispute, to the extent it exists here-
in, is relevant not as to whether relief should be granted
but rather as to what type of relief is required.
That conclusion is compelled by the command of Brown
I and the implementation required by Brown II,’ as well
as by the doctrine of Green v. County School Board, 391
U.S. 430 (1968), which Mr. Chief Justice Burger summar-
ized in Swan (at 13) as standing for the proposition that
although ‘‘a freedom-of-choice concept could be a valid
remedial measure in some circumstances, its failure to be
effective in Green required that:
‘The burden on a school board today is to come for-
ward with a plan that promises realistically to work
... now... until it is clear that state-imposed segre-
gation has been completely removed.’ Green, supra,
at 439....’’ [Emphasis in original. }
Continuing in Swan (at 14) the Chief Justice wrote:
This was plain language, yet the 1969 Term of Court
brought fresh evidence of the dilatory tactics of many
school authorities. Alexander v. Holmes County Board
of Education, 396 U.S. 19, restated the basic obligation
asserted in Griffin v. School Board, 377 U.S. 218 (1964),
and Green, supra, that the remedy must be implemented
forthwith. [Emphasis by the Chief Justice. ]
8 Attached Joint Stipulation of Facts 15, Exhibits 9, 10, 11 and 12.
® Brown v. Board of Education, 349 U.S. 294 (1955).
69a
Later, in Swan (at 31), the Chief Justice returned to
Green noting that in that case the Supreme Court ‘‘used
the term ‘feasible’ and by implication, ‘workable,’ ‘effec-
tive,’ and ‘realistic’ in the mandate to develop ‘a plan that
promises realistically to work, and... to work now.’ ”’
Those standards command a discontinuation of the cur-
rent lack of desegregation in the schools of Prince George’s
County. That lack stems from a pre-Brown I segregated
system which has never been effectively dismantled and
which was not, in its origin, ‘‘a consequence of other types
of state action, without any discriminatory action by the
school authorities’? (Swan at 23). At the same time, this
Court recognizes that the increased and continuing move-
ment of blacks in recent years from the District of Columbia
into Prince George’s County has produced a growing and
changing societal pattern in the latter jurisdiction.
Both sides in this case have advised this Court that the
Board of Education of Prince George’s County (Board)
entered into a contract dated June 30, 1972, utilizing funds
made available to the Board by the federal Department of
Health, Education and Welfare, with the Lambda Corpo-
ration, a corporation with its principal office in Arlington,
Virginia (Lambda), to make a study and a presentation to
the Board with the objective ‘‘to assist Prince George’s
County in the development of a desegregation plan in which
specified desegregation objectives are met with a minimum
of student transportation.’”° The commencement date for
the study was the latter part of the month of June, 1972."
The agreed standards underlying the development by Lamb-
da of its plan are:
a. Students shall be assigned so that the level of de-
segregation reached in the basic desegregation op-
10 Document No. 22 in official court file, page 1.
1! Document No. 22 in official court file, page 1.
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70a
tion presented by the Lambda Corporation to the
Prince George’s County School Board on May 2,
1972 is achieved; and so that no school will have
a majority of black students.
b. For the 1972-73 school year there will be no net
increase over the average number of children bused
in the 1971-1972 school year corrected for the nor-
mal increase the Board will expect for the 1972-
1973 school year.”
In addition, the contrast also stated that ‘‘an early
plan for the secondary schools [is] to be delivered’’ to the
Board ‘‘so that it could be converted into a detailed plan
for implementation by the Fall of 1972.’’ *
This Court is presently informed that certain difficulties
have arisen in connection with the conduct of the study
which have caused delays. In that connection, Lambda
has currently advised this Court and the Board that it is
doubtful whether Lambda will be able to submit to the
Board a plan for the secondary schools of the County in
time for implementation by September 5, 1972, the date
the County schools are schedule to open in the fall of this
year.
However, Lambda has also advised this Court and the
Board that Lambda will submit to the Board not later than
August 22, 1972 a status report concerning Lambda’s work
under its aforesaid contract with the Board. Accordingly,
the Board is hereby Ordered to file in this Court 10:00
a.m. on August 22, 1972 the said status report it receives
from Lambda on that date, along with, to the fullest extent
practical in view of the requirements of the Order set forth
in the immediately following paragraph hereof, the Board’s
12 Document No. 22 in official court file, page 5.
13 Document No. 22 in official court file, page 8.
elite SRE Pre gee mre Re ELEY NL IE TION NT ELIA ete nem ae rece
Tila
own pian for student attendance, faculty '* and administra-
tion (the preparation of which plan the Board is hereby
Ordered forthwith to commence and pursue diligently) so
as to bring the Prince George’s County school system into
total compliance with the Brown-Swan standards to the
fullest extent possible by September 5, 1972, or if that is
not feasibly possible, then to bring that system into such
compliance in part to the fullest extent possible by that
date. The burden of establishing the need for any delay or 4
delays in whole or in part shall rest upon defendants.
On a primary basis the Board is hereby further Ordered ’
forthwith to cooperate fully and effectively with Lambda .
and to furnish the latter as quickly as possible without any ;
delay all relevant data and information which Lambda i
requires for its study and for the formulation of its plan. é
This Court will hold a hearing on August 25, 1972, at
10:00 a.m. to consider the reports due on August 22, 1972
as well as any further evidence either side desires to pro-
duce, Thereafter, this Court will file one or more further i
Orders designed to achieve at the earliest possible date ;
or dates compliance by defendants with the standards of
Brown I as enunciated in Swan.
It is so OrpERED this 25th day of July, 1972.
/s8/ Frank A. KaurMan
United States District Judge
14 This Court has been informed by counsel for both sides that such a plan
as to faculty is already in existence. Attached Joint Stipulation of Facts § 47.
Me) TAZA Y NOL SD EEN ig MAN HORII BEAM LEE SIE RODE GL BRT MR RIS DOO BIOENG BE IE
Ree hy ae re
72a
EXHIBIT “J”
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Civil No. 72-325-K
Sylvester J. Vaughns, Jr., ET AL.
v.
Board of Education of Prince George’s County, ET AL.
ORDER
Upon consideration of the Motion to Intervene filed by
Jesse Alexander Eller, et al., it is hereby, this 19th day of
September, 1972, effective as of September 1, 1972,
ORDERED, ADJUDGED and DECREED, by the United
States District Court for the District of Maryland, that the
Motion to Intervene shall and the same is hereby granted upon
the following conditions:
1. Intervenors are satisfied with the limited rights
accorded to their counsel during the proceedings which took
place in this Court from the time of the filing of the Motion to
Intervene and the time of the filing of this Court’s opinion on
August 31, 1972.
2. Intervenors will in no way attempt to delay any future
hearing in this case. Further, the intervenors agree they will
interpose no objection to evidence being presented in any form
or by any procedure agreed to by counsel for plaintiffs and
defendants and approved by this Court.
3. If it shall appear that the testimony of any witness
called by intervenors to testify in this case can be expected to
cause substantial additional costs or expenses, the question of
whether the intervenors shall be required to give satisfactory
GRR eee tne cee arrreee en pes ee aR EE RON Se Peat ME eRe OA
73a
assurances of their financial ability to pay such costs and
expenses in the event it shall be determined by a court having
jurisdication in the premises that they should do so, will be
argued and ruled upon by this Court prior to the taking of such
testimony.
4. If the intervenors desire to note an appeal or file
petition for certiorari or other review from any order in this
case filed by any court having jurisdiction in the premises, they
shall so advise counsel for plaintiffs and defendants in advance
of such filing. In addition, intervenors hereby agree that if they
so advise counsel for plaintiffs and defendants, counsel for
plaintiffs or counsel for defendants, or both, shall have the
opportunity to oppose the noting of such an appeal or the filing
of such a petition for certiorari or other review, and, in
addition, the opportunity to seek to present to a court having
jurisdiction in the premises the question of whether intervenors
shall be required, in advance of noting such appeal or such
petition, to give satisfactory assurances of their financial ability
to pay such costs and expenses as may be incurred by the
prosecution of such appeal or such petition.
5. The pleading entitled ‘Motion for New Trial, Motion
to Reopen the Record, Petition for Reconsideration, and
Alternatively, Petition for Clarification,” filed by intervenors is
accepted by the Court as an amicus filing as of September 8,
1972 and shall be afforded no other status. In addition, unless
this Court’s order of July 25, 1972 is reversed in whole or in
part by the United States Court of Appeals for the Fourth
Circuit, the intervenors shall not seek to present to this Court
any evidence, testimonial or documentary, other than that
which was presented to this Court by joint stipulation of the
parties prior to July 25, 1972 and made a matter of record
herein, relating to the issue of compliance or non-compliance
with the standards of Brown I, Brown II, and Swann, as
opposed to evidence relating to questions pertaining to type and
timing of relief. Intervenors shall of course have the
opportunity to present such latter type of evidence subject to
the provisions of this Order.
74a
6. Counsel for the parties have orally informed this Court
that the within Order, and each and every one of its terms and
provisions, is fully and completely acceptable to them and to
their respective clients.
7. The Clerk is directed to send a copy of this Order to
Richard V. Falcon, Esq., one of counsel for plaintiffs; Paul M.
Nussbaum, Esq., one of counsel for defendants; and Richard A.
James, Esq., counsel for .atervenors.
United States District Judge
GB oie com nme re FeKH tna Sa
75a
EXHIBIT “K”
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Civil No. 72-325-K
Sylvester J. Vaughns, Jr., ET AL.
. Plaintiffs
v.
Board of Education of Prince George’s County, ET AL.
Defendants
MOTION TO INTERVENE
ENS See
Comes now your Petitioners, Jesse Alexander Eller and
Martha Street Eller, of 12003 Gordon Avenue, Beltsville,
Maryland 20705, Brendan Edward Lynch and Marjorie Elaine
Lynch, of 13229 Ronehill Drive, Beltsville, Maryland, 20705,
Kenneth Phillip Whittemore and Bette Ann Whittemore, of
4004 Hillwood Court, Beltsville, Maryland 20705, Arthur
Emanuel Dinerman and Janet Avin Dinerman, of 3609 Chase
Terrace, Beltsville, Maryland 20705, Morris Edward Sampson
and Thelma Olinda Sampson of 13223 Ronehill Drive, Belts-
ville, Maryland 20705, William Raymond Leer and Margaret
Street Leer, of 4003 Hillwood Court, Beltsville, Maryland
20705, Leo Paul Chabot and Wanda Maxine Chabot, of 4010
Stoconga Drive, Beltsville, Maryland 20705 and John Eugene
Spaulding and Bernadine Lane Spaulding, of 4011 Stoconga
Drive, Beltsville, Maryland 20705 by and through their attor-
neys, Nanna and James, and respectfully request this Honorable
Court to allow the above named individuals to intervene as
party plaintiffs, under Rule 24 (a)(2) of the United States
Federal Court. The Petitioners state for reasons that:
TEPC EST RET NAS BE ST NY
DI
ASN Nenana peep
fC SS
1. The original plaintiffs are black adult residents of
Prince George’s County, having school age children in the public
’ LPR oe. ‘
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a i lt ROPE IL GALINA D 1S ALS IN ED OLLIE IN RE RE NERY IS ES NR contents Mill
16a
schools of Prince George’s County, Maryland. That the original
plaintiffs brought suit under Federal Civil Rule 23.
That your Petitioners are non-black adult citizens of the
United States of America, Prince George’s County, and tax-
payers, having school age children in the public schools of
Prince George’s County, who also represent a class under
Federal Civil Rule 23.
2. That your Petitioners represent unto this Honorable
Court that they, on behalf of their children, will be bound by
any judgment in the above action. The Petitioners further
represent unto this Honorable Court that their interest is being
inadequately represented by the present plaintiffs or the present
defendants in the above case.
3. That your Petitioners position is evidenced by the fact
that as of August 22, 1972, no plan has been approved by the
Prince George’s County Board of Education to comply with the
Order of Court dated July 25, 1972.
That your Petitioners would request an opportunity to
submit a desegregation plan to this Honorable Court which
would adequately protest their interests. That the present
} plaintiffs purpose is to achieve racial balance in the Prince
George’s County Public Schools through mass bussing. That
your Petitioners propose to achieve racial balance through
minimal bussing.
4. That although the Petitioners would cause a delay in
the present suit, your Petitioners represent that this delay
; would not adversely effect either the original plaintiffs nor the
; original defendants. That the school year in Prince George’s
3 County is to begin on September 5, 1972, without a present
plan for desegregation, and to implement a plan during the
| school year or at any other time would cause no more hardship
: and expense than to implement a plan at the present time.
That under Public Law 92-318, 92nd Congress, s. 659,
; June 23, 1972, any plan which involves massive bussing is
prohibited.
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T7a
5. That any massive bussing plan is a denial of the
constitutional rights of those students bussed.
6. That your Petitioners request that they be allowed to
present to this Honorable Court both questions of law and fact
which have not been presented in the present suit, and are
necessary to protect the interest of said Petitioners.
WHEREFORE, your Petitioners respectfully pray:
1. That they be permitted to intervene as party plaintiffs
pursuant to Rule 24, Section 2 of the Rules of Civil Procedure
for the United States District Court.
2. That no final determination be made in this cause until
such time as the Petitioners shall have had an opportunity for
discovery and the opportunity to submit a plan for the Court’s
consideration to achieve racial balance in the Prince George’s
County schools and to engage experts to support such plan.
Respectfully submitted
Date: August 23, 1972
Emmett H. Nanna, Jr.
Richard A. James
Attorneys for Petitioners
POINTS AND AUTHORITIES
Rule 24(a)(2) of the Federal Rules of Procedure.
Pellegrino vs. Nesbit, 203 F 2nd 463.
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78a
EXHIBIT “L”
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Civil No. 72-325-K
Sylvester J. Vaughns, Jr., ET AL.
Plaintiffs
v.
Board of Education of Prince George’s County, ET AL.
Defendants
MEMORANDUM OF LAW
Comes now your Petitioners, Jesse Alexander Eller and
Martha Street Eller, of 12003 Gordon Avenue, Beltsville,
Maryland, 20705, Brendan Edward Lynch and Marjorie Elaine
Lynch, of 13229 Ronehill Drive, Beltsville, Maryland, 20705,
Kenneth Phillip Whittemore, and Bette Ann Whittemore, of
4004 Hillwood Court, Beltsville, Maryland, 20705, Arthur
Emanuel Dinerman and Janet Avin Dinerman, of 3609 Chase
4 Terrace, Beltsville, Maryland, 20705, Morris Edward Sampson
: and Thelma Olinda Sampson, of 13223 Ronehill Drive, Belts-
ville, Maryland, 20705, William Raymond Leer and Margaret
Street Leer, of 4003 Hillwood Court, Beltsville, Maryland,
20705, Leo Paul Chabot and Wanda Maxine Chabot, of 4010
Stoconga Drive, Beltsville, Maryland, 20705, and John Eugene
Spaulding and Bernadine Lane Spaulding, of 4011 Stoconga
Drive, Beltsville, Maryland, 20705, by and through their
attorneys, Nanna and James, respectfully submit this Memo-
randum of Law in support of their motion to intervene.
PREETI GLORIES ee
79a
Statement of the Case
This proceeding involves a challenge to the validity, under
State and Federal laws, of the Prince George’s County public
school system. Plaintiffs, black adult residents of Prince
George’s County in the State of Maryland with school age
children in the public schools of Prince George’s County, on
behalf of their school age children and other children similarly
situated, seek injunctive and declaratory relief upon alleged
violations of the standards established by the Supreme Court of
the United States in Brown v. Board of Education, 347 U.S.
483 (1954) (Brown I) and Swan v. Charlotte-Mecklenburg
Board of Education, 402 U.S. 1 (1971) (Swan). The Court,
based upon “an extensive and detailed Joint Stipulation of
Facts filed by both sides” (Mimeo p. 2), issued an opinion on
July 25, 1972, ordering the Board of Education (Board), the
defendant herein, to submit to this Court on August 22, 1972,
the so-called “‘Lambda plan for the secondary schools of the
County” as well as “the Board’s own plan for student
attendance, faculty and administration (the preparation of
which plan the Board is hereby ordered forthwith to commence
and pursue diligently) so as to bring the Prince George’s County
school system into total compliance with the Brown-Swan
standards to the fullest extent possible by September 5, 1972,
or if that is not feasibly possible, then to bring that system into
such compliance in part to the fullest extent possible by that
date.”’ [footnote omitted, mimeo p. 8]
Pursuant to the Court’s order, a meeting of the Board was
held on August 21, 1972.! At this meeting, the Board
1 The public was permitted to attend that meeting, but was not
permitted to participate therein. Additionally, a full disclosure of the
agenda of that meeting was withheld from the public (see unanswered
letter from George P. Lewnes to Honorable Colonel Chester Whiting dated
August 11, 1972, attached hereto as Appendix A). All that was
ascertainable from the news media was that the Board was going to
convene in response to the Court’s order.
So ES cor ——I—— es
considered a plan that would require massive busing of school
children throughout Prince George’s County.? That plan,
however, was rejected by the Board on a four to four vote. (One
member of the Board was not present at the time that votes
were called-for). No other plan was considered by the Board
and no instructions, to our knowledge, were given to Board’s
counsel as to the position he was to take before this Court in
this proceeding. It is our understanding, however, that the
Board, in conformity with this Court’s order, submitted to the
Court on August 22, 1972, its report on its meeting together
with the plan rejected by it.
Our petition to intervene was filed with the Court on
August 23, 1972.
Argument
Rule 24 of the Federal Rules of Civil Procedure provides
for intervention, both as a matter of right and as a matter of
discretion. The first section of Rule 24 provides:
(a) Intervention of Right. Upon timely appli-
cation anyone shall be permitted to intervene in an
action: (1) when a statue of the United States
confers an unconditioned right to intervene; or (2)
when the applicant claims an interest relating to the
property or transaction which is the subject of the
action and he is so situated that the disposition of the
action may as a practical matter injure or impede his
ability to protect that interest, unless the applicant’s
interest is adequately represented by existing parties.
In the event the party seeking to intervene does not
qualify as of “right,” Section (b) of Rule 24 permits inter-
vention as a matter of judicial discretion:
(b) Permissive Intervention. Upon timely appli-
cation anyone may be permitted to intervene in an
action: (1) when a statute of the United States
21t is our understanding that the plan was presented to the Board for
the first time on the day of the meeting.
8la
confers a conditioned right to intervene; or (2) when
an applicant’s claim or defense and the main action
have a question of law or fact in common... In
exercising its discretion the court shall consider
whether the intervention will unduly delay or pre-
judice the adjudication of the rights of the original
parties.
In this proceeding, Petitioners are justified to intervene
under either section of Rule 24.3 The critical tests for
intervention under Rule 24(a) is (1) whether applicant has “‘an
interest relating to the property or transaction which is the
subject of the action;” (2) whether applicant is so situated that
“the disposition of the action may as a practical matter impair
or impede his ability to protect that interest; and (3) whether
the interest of the applicant is “‘adequately represented by
existing parties.”” We believe and submit that there can be no
argument as to Petitioners’ compliance with tests (1) and (2)
above.* We shall show that Petitioners also meet test (3); that
their. petition was timely filed; and that they have a statutory
right to intervene.
Additionally, joinder of the instant Petitioners is needed
for a just adjudication as required under Rule 19 of the Federal
Rules of Civil Procedure cited below in part:
3in our motion to intervene, we relied solely on Rule 24 (a) (2).
However, after a further and more thorough analysis, we will show herein
that our intervention is also dictated by subsection (1) of 24 (a) as well as
permitted under Section (b) (1) and (2) of Rule 24.
‘Petitioners are non-black adult citizens and taxpayers of Prince
George’s County having school age children attending public schools of
Prince George’s County. They bring this action on behalf of their children
and school children similarly situated, who will be bound by any judgment
rendered by this Court in this action. Accordingly, this Court should find,
as it found for the original Plaintiffs, that Petitioners’ “actions falls
precisely within the provisions of Federal Civil Rule 23 (b) (2)... [and]
shall be maintained as a class action on behalf of all [non-] black children
of school age residing within Prince George’s County” (Court’s order,
mimeo pp. 1-2).
———————
RELIES URI
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(a) Persons to be Joined if Feasible.
A person who is subject to service of process and
whose joinder will not deprive the court of jurisdic-
tion over the subject matter of the action shall be
joined as a party in the action if (1) in his absence
complete relief cannot be accorded among those
already parties, or (2) he claims an interest relating to
the subject of the action and is so situated that the
disposition of the action in his absence may (1) as a
practical matter impair or impede his ability to
protect that interest or....
The instant Petitioners individually and as a class are
indeed indispensable parties to the instant suit and their joinder
is necessary. Although there is “‘no prescribed formula for
determining in every case whether a person is an indispensable
party or not... ”5 the test most often cited and relied upon is
set forth in Shields v. Barrow, 17 How. 129, 139 (1854) where
the Supreme Court defined the indispensable parties as:
Persons who do not only have an interest in the
controversy, but an interest of such a nature that a
final decree cannot be made without either affecting
that interest or leaving the controversy in such a
condition that its final termination may be wholly
inconsistent with equity and good conscience.
In other words, “‘where a person will be directly affected
by a decree, he is an indispensable party ....” Williams v.
Bankhead, 19 Wall. 563, 571 (1874).
As more fully set forth in these Petitioners’ Motion to
Intervene, the rights of said Petitioners will be directly affected
and may be seriously and permanently injured by a decree of
this Court.
Parties have been held to be indispensable because their
“rights...are so entangled with one another that it is
5Niles Bement-Pond Co. vy. Iron Molders Union, 254 U.S. 77, 80
(1920).
83a
practically impossible in the decree to protect those who are
absent,© and because the decree would be of “immediate
concern” to them.’
Finally, denial of Petitioners’ Motion to Intervene would
constitute denial of due process and equal protection under the
constitution in that said Petitioners would be precluded from
invoking the protective mantle provided by Section 803 of:
Public Law 92-318, to wit:
Notwithstanding any other law or provision of
law, in the case of any order on the part of any
United States district court which requires the trans-
fer or transportation of any student or students from
any school attendance area prescribed by competent
State or local authority for the purposes of achieving
a balance among students with respect to race, sex,
religion, or socioeconomic status, the ffectiveness of
such order shall be postponed until all appeals in
connection with such order have been exhausted or,
in the event no appeals are taken, until the time for
such appeals has expired. This section shall expire at
midnight on January 1, 1974.
Petitioners’ Interest Are Not Adequately
Represented By Any Party To This Proceeding
. Petitioners here will urge the Court to find that the
existing plan, which was “‘accepted as meeting the requirements
of Title VI of the Civil Rights Act of 1964” by the Department
of Health, Education and Welfare (HEW),® is a valid school plan
under the criteria of Brown and Swan. The original Plaintiffs
herein urge otherwise.
®Roos v. The Texas Co., 23 F.2d 171, 173 (2nd Cir. 1927). cert den.,
277 U.S. 587 (1928).
' TIn State of Texas v. Interstate Commerce Commission, 258 U.S. 158
1922).
SHEW’s letter of November 19, 1972, to Mr. William S. Schmidt is
attached hereto as Appendix B.
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84a
Defendant, on the other hand, has not urged in our
opinion the validity of the existing plan adequately, if at all, to
the Court. For instance, the Joint Stipulation of Facts does not
contain any reference to HEW’s letter (Appendix B) that its
plan conforms to the requirements of the 1964 Civil Rights Act.
Additionally, the Stipulation does not reflect the fact that, if
segregation exists in any of the schools (and we do not concede
that it does), its existence is the result of housing patterns and
not the result of retention, in any form, of the previously
unlawful dual school system that predated Brown I.
Defendant did not bring those facts to the attention of the
Court and, consequently, we no longer can assume that the
Court will be made aware of those, and other relevant facts that
are needed by it to render a proper determination herein.
Accordingly our position was not adequately represented by
Defendant in the prior proceedings held before this Court? and,
because of the Board’s four-to-four rejection of the massive
busing plan, there appears to be little, if any, likelihood that our
position will be urged before this Court by Defendant in the
subsequent proceedings. We could give specific additional
details of the errors, and/or omissions of facts in the Stipula-
tion, which we propose to correct when admitted as a
plaintiff-intervenor. However, for the sake of brevity, we will
not set forth those additional details, at this time, but instead
will note that the Court, based on that Stipulation, concluded
in its opinion that recial imbalance exists in a number of the
County’s schools. We believe, however, that when the Stipula-
tion is corrected to reflect the full facts, the racial imbalance if
any, found by the Court will not be the result of a de jure
9 Petitioners had every right to anticipate that Defendant’s position in
this proceeding was to actively urge the validity in toto of the Board’s
existing plan and, thus, our position would have been adequately
represented.
AS B09 aa iin Se BER
85a
situation, but rather the result of factual exigencies, which are
de facto in nature and rmissi ituti
pcg pe ble under constitutional
Petitioners’ Motion to Intervene Is Timely Filed
As shown above, the motion to interve
days after the Board’s meeting held in sats pe re
Court’s order. Up to that point, the proposal before this Court
was the existing plan, which these Petitioners support. Further
up to that time, Petitioners had every reason to believe that
their position was actively and wholeheartedly supported b
Defendant particularly in light of HEW’s letter of anaes
compliance referred to earlier. It was not until after the Board
rejected the massive busing plan and refused to instruct its
counsel relative to the existing plan that the rights of these
Petitioners become know to them as being inadequatel
represented before this Court. Accordingly, we submit that ie
motion is timely filed and, as sho
adits fa wn above, should be granted
However, even should the Court disagree with our position
stated above, we submit that our motion to intervene should be
considered by the Court as being timely filed. A delay in
moving to intervene does not require a denial of a motion to
10
a The Court should not misconstrue Petitioners’ position to mean
: we, in any way, countenance segregation in the County’s school
ee gh a “y unequivocally reject segregated schools
at on , le. ;
understanding that the protng ppg ot gags ao i
geographical determination without any recourse to ‘eeniiaiar
tactics. If our understanding is in error, we will urge the Court to rectify
the ‘gerrymander ”” area, but in no way, will we advocate busi the
solution. A redrafting of the geographical areas is all that eis cules
to rectify any “gerrymandered” area, assuming arquendo that the ; iden
shows that such an area exists within the County’s school roto The
ay 7¥t
OTe Ot ROSIN a4 i A Oe ee
_
ee eee ee ee ed
Stipulation, however, d ‘ rats :
duiiiien » Goes not give any insight on this area of relevant
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86a
intervene once it is made. “It is undue delay ... which will
require a denial . . . [emphasis in original] .’”’ Wooten v. Moore,
42 F.R.D. 236, 241 (E.D.N.C., 1967). And whether or not
there has been undue delay is a function, not of elapsed time
since the filing of an action, but rather one of prejudice to
existing parties. As aptly stated by the court in McDonald v. E.
J. Lavino Co., 430 F. 2d 1065, 1073 (CAS, 1970):
The most important consideration in deter-
mining timeliness is whether any existing party to the
litigation will be harmed or prejudiced by the
proposed intervenor’s delay in moving to inter-
vene...In fact this may be the only significant
consideration when the proposed intervenor seeks
intervention of right. As one commentator has noted:
“the courts are in general agreement that an inter-
vention of right under Rule 24(a) must be granted
unless the petition to intervene would work a
hardship on one of the original parties.
Similarly, in BARRON & HOLTZOFF, FEDERAL PRAC-
TICE AND PROCEDURE, (Supp. 1970) §594, the authors
state:
In the exercise of this discretion (in determining the
timeliness of intervention) the court of course will
consider the time element itself but it will evaluate it
in the light of all the circumstances of the case. The
most important factor is whether any delay in moving
for intervention will prejudice the existing parties to
the case.
Where, as here, the Court will not have before it facts that
are essential for its proper evaluation of the propriety of the
existing plan, it is submitted that permitting Petitioners to
intervene in this proceeding will not cause any prejudice or
hardship on the existing parties. Unless, of course, the existing
parties will allege that they. will be prejudiced by the Court
having all of the relevant facts before it rather than only an
eclectic and slanted version thereof. Further, we do not
anticipate that our intervention will cause any undue delay in
87a
this proceeding. In fact, after a reasonable opportunity to
gather material and review the record made to date, we will be
prepared to move expeditiously in concluding this record and
submitting it to Your Honor for decision. We submit that such
procedure cannot cause any hardship or prejudice on any of the
participants. To the contrary, all of the citizenry of Prince
George’s County will have been provided due process of law.
Petitioners Have A Statutory Right to
Intervene
On June 23, 1972, President Nixon signed into law an Act
entitled “‘Education Amendment of 1972” (Public Law 92-318,
92nd Congress, S. 659) referred to previously. That Act
provides, inter alia, for the intervention of parents in Court
proceedings where the Court has ordered busing or is seeking to
implement its busing order. (Section 804). While this case has
not reached the specific posture of a court-ordered busing
proceeding, it would appear that that possibility exists. If that
possibility eventuates, hundreds and possibly thousands of
parents may seek to intervene and re-open the record under that
section of the statute. Their right to do so is unequivocal.
Denial of their petitions would then be conirary to the
moratorium on busing enacted by Congress. We submit that a
proper reading of this Act requires the Court at this time to
permit our intervention. Any other ruling would defeat that
provision of the Act and will inevitably result in a confused and
choatic situation.
Conclusion
Due to the shortness of time to prepare this memorandum
we have not had full opportunity for more specificity.
Nevertheless we submit that for all of the foregoing reasons, and
those stated in our petition to intervene, Petitioners respectfully
move this Court to grant them the right to intervene and
participate fully as plaintiffs in this proceeding.
—_— : :
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Respectfully submitted,
By
Emmett H. Nanna, Jr.
Richard A. James
Attorneys for Petitioners
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89a
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 23rd day of August,
1972, copies of the aforegoing Memorandum of Law were
mailed, postage prepaid, to Paul M. Nussbaum, Esquire, 3723
34th Street, Mt. Rainer, Maryland, 20822, and to Richard V.
Falcon, Esquire, 500 We8t Baltimore Street, Baltimore, Mary-
land
By.
Richard A. James
Effect on January 29, 1973 for Prince George's County
as Prepared by Board of Education Under Order of
United States Court for District of Maryland
This Desegregation Plan has been developed by using
the following methods. At the secondary level, non-con-
tiguous and contiguous attendance areas were used to
decrease the percentage of minority students in those
schools over the fifty percent level and to increase the per-
centage of minority students in those schools in excess of
ninety percent ‘‘white.’’ At the elementary level, to in-
crease or decrease the percentage of minority students, a
grouping method was used. This process uses groupings
of schools in logical geographical areas considering neces-
sary transportation networks in an attempt to minimize
time and distance that would be involved in the reassign-
ment of students. Within the groupings, schools were
matched in smaller clusters, allowing for boundary changes
among two or more schools. The grade structure of the
schools remains the same with the exception of the Baden-
Orme area, where a ‘‘pairing’’ method was used and a
primary and intermediate school was developed. The work-
sheets (attached) show approximate numbers of students
and will not agree with figures used on ReassiGNMENT BY
Area sheets. Areas designated for reassignment are sub-
ject to modification and change.
A sincere effort was made to keep communities together
and not involve the same ne
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