# Appendix — Eller v. Vaughns > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0838%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1973 - **Citation:** 414 U.S. 999 ## Text en Oy ys A et a LIBRARY sememe 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 ; & * L A A ER ti | ; > i | 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. VNC OPE Lav OTe ae 4% & FIR AMERVOP VOD, qdeoxe sopes [je ut Suteng 105 e[qr8yje epeur syuepnys 06Z‘ZT FO [2309 oy} a. 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Ga, ataenieeinateeee ime a Pass os 3 a Ne 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. | PIERS IL UI RELAIS LE ME TPR IER IR TRR NTA CPS OO RONEN / ; i | | ' ee ‘ oom | rd 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. R E : : ’ panini i — 4 } , : ; q 4 3 % g : ER PY» iPr, 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 = pean Ti RP Ni Cihtie Regnantalbelt ONS ae 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 ibe a SRF Lok Bastin =... 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0838%3A2. Public record. Not legal advice.