Opposition Brief — School Board of Danville v. Medley

FIcES fT

VEC 29 1973

LIBRARY ™

In THE

Supreme Court of the United States

Ocroser Term, 1973

No. 73-707

Tue Scuoor Boarp or rue City or DaNviL1e, Vircrxis, et al,

Petitioners,

vs.

Cuares L. Mepey, ef al.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF IN OPPOSITION TO CERTIORARI

J. L. Wituiams

216 North Ridge Street

Danville, Virginia 24541

Cuartes M. L. Mancum

222 Jackson Street

Lynchburg, Virginia 24504

SamveL W. Tucker

Hexry L. Marsu, III

Hitt, Tucker anp MarsH

214 East Clay Street

Richmond, Virginia 23219

Jack GREENBERG

James M. Nasrit, IIT

Norman J. CuHacukix

10 Columbus Circle

New York, New York 10019

Attorneys for Respondents

———————————————

IN THE

Supreme Court of the United States

Ocroser Term, 1973

No. 73-707

Tue Scoot Boarp or rue City or Danvitie, Vinci, et al.,

Petitioners,

vs.

Cuarces L. Meptey, et al.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COUR’ OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF IN OPPOSITION TO CERTIORARI

Opinions Below

The August 3, 1973 opinion of the Court of Appeals for

the Fourth Circuit, and the concurring and dissenting

opinion of Judge Winter, are now reported at 482 F.2d

1061.

Question Presented

Did the Court of Appeals or the district court err in

requiring Danville to devise and implement an effective

pupil desegregation plan including reassignment of ele-

mentary schoo] students across the Dan River, with trans-

portation as necessary, since the geographie zoning plan

adopted by the school district in 1970 had left many schools

in this small system with racial] compositions which were

substantially disproportionate to that of the entire district?

ita |

Reasons Why the Writ Should Be Denied

This is a startlingly simple case. It involves a small

school district divided by the Dan River and a federal

district court, both of which (despite this Court’s decisions

in Swann’ and Davis?) sought to characterize demands for

effective school desegregation as efforts to achieve “racial

balance,” and to make the river an impassable barrier to

constitutional elementary school integration. The United

States Court of Appeals for the Fourth Circuit, which in

the past has been sharply divided on many school desegre-

gation issues,* was unanimous in this case‘ in requiring that

Danville at long last complete the process of desegregating

its schools.

The Danville School Board’s attempt to create serious

constitutional issues where there are none must fail. This

case involves a historically dual system, like Charlotte, and

the issue presented to both the district court and the Court

of Appeals was: has Danville taken effective measures to

eliminate its former mandated segregation and the effects

thereof? Cf. Green v. County School Bd. of New Kent

County, 391 U.S. 430 (1968). The district court agreed

that, when the case first came before it in 1971, schools of

substantially disproportionate racial composition (when

compared to the system-wide distribution of black and

1Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 US. 1

(1971).

* Davis v. Board of School Comm'rs of Mobile, 402 U.S. 33

(1971).

* See, e.g., Swann v. Charlotte-Mecklenburg Bd. of Educ., 431

F.2d 138 (1970), rev'd in part, 402 U.S. 1 (1971) ; Couneil of the

City of Emporia v. Wright, 442 F.2d 570, 588 (1971), rev'd 407

U.S. 451 (1972).

* The partial dissenting opinion of Judge Winter did not concern

the issue of student assignment.

iat :

ee 3

white students) remained despite the availability of reme-

dial measures to eliminate them. The district court ac-

cordingly required creation of 5-6 grade centers on either

side of the Dan River.

However, the district court stopped short of completely

eliminating disproportionate schools by assigning ele-

mentary students across the Dan River (despite the fact

that some schools of differing racial composition on either

side of the river were closer to each other than to other

facilities on the same shore [Ptn. App. 59a]). That court

noted the crowded bridges, some without sidewalks, and de-

termined it could not subject elementary children to these

“hazards.” In reversing, the Court of Appeals considered

the distances involved [Ptn. App. 59a] and concluded that

highway hazards could be minimized by providing pupil

transportation [id. at 60a]; in any event, the Court held,

there were not “specific findings which demonstrate that

no other plan affording greater integration is practicable”

[id. at 59a, citing Thompson v. School Bd. of Newport News,

465 F.2d 83 (4th Cir. 1972), cert. denied, 413 U.S. 920

(1973)], and the case was remanded for further proceed-

ings.

The Court of Appeals’ decision is eminently sound. The

Board’s claim that review here is merited can be made only

by totally ignoring this Court’s language in Swann:

The district judge or school] authorities should make

every effort to achieve the greatest possible degree of

actual desegregation and will thus necessarily be con-

cerned with the elimination of one-race schools. No

per se rule can adequately embrace all the difficulties

of reconciling the competing interests involved; but in

a system with a history of segregation the need for

remedial criteria of sufficient specificity to assure a

“YR Te SRM

ESAS bioN STR CE fate

4

school authority’s compliance with its constitutional

duty warrants a presumption against schools that are

substantially disproportionate in their racial composi-

tion.

402 U.S., at 26. That is precisely the gravamen of the

Court of Appeals’ decision.

It is true that the decision below conflicts with the ap-

proach of the Sixth Circuit in Goss v. Board of Educ. of

Knozville, 482 F.2d 1044 (1973). The conflict was noted by

petitioners Goss, et al. (represented by some of the same

counsel who represent the respondents in Danville) in

their Petition for Writ of Certiorari (No. 7 3-661), presently

pending before this Court. As noted therein, the Sixth

Circuit (like the district court in Danville) seems to place

little weight upon the language of this Court in Swann,

quoted above. Its approval of continuing substantial seg-

regation in Knoxville because the district court thought

the plaintiffs wanted racial balance, or because of presumed

impracticalities, cannot be squared with this Court’s con-

trolling decisions. While the disparate approaches of the

two Circuits constitutes a situation ripe for correction by

this Court’s certiorari jurisdiction, we submit that the facts

and dispositions of the two cases compel the conclusion

that the Sixth Circuit’s decision is the erroneous one,

Full and appropriate relief as well as clarification of the

law can be satisfactorily achieved by reviewing Goss and

denying the writ in this Danville ease.

g

e abide |

CONCLUSION

Wuererore, for the foregoing reasons, respondents re-

spectfully pray that the Writ be denied.

Respectfully submitted,

J. L. WituraMs

216 North Ridge Street

Danville, Virginia 24541

Cuartes M. L. Mancum

522 Jackson Street

Lynchburg, Virginia 24504

SaMvuEL W. Tucker

Henry L. Marsu, III

Hiuzt, Tucker anp Marsx

214 East Clay Street

Richmond, Virginia 23219

Jack GREENBERG

James M. Nasrit, III

NorMan J. CHACHKIN

10 Columbus Circle

New York, New York 10019

Attorneys for Respondents