Opposition Brief — Northcross v. Board of Education

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In the Supreme Court of the United States

OCTOBER TERM, 1973

No. 73-1338

DEBORAH A. NORTHCROSS, et al.,

Petitioners,

VS.

BOARD OF EDUCATION OF THE MEMPHIS

CITY SCHOOLS, et al..

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

Court oF APPEALS FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION TO CERTIORARI

ERNEST G. KELLY, JR.

EvANS, PETREE, Copp & EDWARDS

900 Memphis Bank Building

Memphis. Tennessee 38103

Attorneys for Respondents

E. L. Menpenzatt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, 421-3030

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TABLE OF CONTENTS

Opinions Below .....-...---.--------cscscesscseeeeeeeeeeecseseseseneeneeteneeney 1

a no cncecredeencemnsin pene rrsntincceettenticcervommenteiinnte 1

Counter Statement Of Questions Presented .................... 2

Sites CE Te Cm ante 2

Reasons For Denying The Writ Of Certiorari—

The Evidence Supports The Findings Of The District

OE RES RELA AS SERNA ATR OD Us See B N TOED 5

Conclusion

Table of Authorities

CASES

Bradley v. School Board of Richmond, 462 F. 2d 1058, 36

Be ee CD more ote ec meumancenns 11

Goss v. Board of Education, 482 F. 2d 1024 (6th Cir.

1973), cert. denied, 42 U.S.L.W. 3423 (Jan. 21, 1974)

Graver Tank and Mfg. Co. v. Linde Air Products Co.,

BE ee HE arses citer bce nntsdineng aoreenteanrtimmenrtbereensiears 9

Kelley v. Metropolitan County Board of Education, 463

F. 2d 732 (6th Cir.), cert. denied, 409 U.S. 1091

I ac aaah darcacncepeytteiencolonraneansicaiaheidlensad nadie Seceteclaesiins 11

Mapp v. Board of Education, 477 F. 2d 851 (6th Cir.).

cert. denied, 42 U.S.L.W. 3290 (Nov. 12, 1973) ..... 12

Swann v. Charlotte-Mecklenburg Board of Education,

eS erent 5, 6,13

OTHER AUTHORITIES

Rule 52a. Federal Rules of Civil Procedure ................ 11, 12

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In the Supreme Court of the United States

OCTOBER TERM, 1973

No. 73-1338

DEBORAH A. NORTHCROSS, et al.,

Petitioners,

vs.

BOARD OF EDUCATION OF THE MEMPHIS

CITY SCHOOLS, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

CourT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION TO CERTIORARI

OPINIONS BELOW

The certiorari petition correctly lists the reported Opin-

ions in this case.

JURISDICTION

The jurisdictional requisites are adequately set forth

in the certiorari petition.

COUNTER STATEMENT OF QUESTIONS

PRESENTED

The basic issue presented in this cause is whether the

District Court and the Court of Appeals for the Sixth Cir-

cuit were correct in determining that the Final Plan of

Desegregation approved as “Plan Z” represents the great-

est feasible amount of desegregation that can be achieved

in the Memphis School System in light of the practicalities

of the situation. Respondents submit that the decisions of

the lower courts are correct and that certiorari should be

denied.

STATEMENT OF THE CASE

Proceedings in this cause arise out of the August, 1972,

Order of the United States Court of Appeals for the Sixth

Circuit affirming the District Court’s requirement of a

Plan of Pupil Desegregation designated as “Plan A’’, and

requiring that the District Court implement a further Plan

of Desegregation to achieve a unitary school system, 463

F. 2d 329, cert. denied, 410 U.S. 926 (1973).

At the time of that Order the Memphis City School Sys-

tem had a total enrollment of approximately 131,268 stu-

dents of whom 58 per cent were black and 42 per cent were

white.

These instructions of the Court of Appeals were car-

ried out in the course of the 1973-4 school vear. Plan A

of desegregation, which involved the first substantial pupil

transportation carried on by the Memphis School System,

was put into effect in January of 1974 at the beginning of

the second semester. This plan anticipated the transporta-

tion of approximately 14,000 students. The District Court

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3

also directed the Board of Education to have prepared a

Plan of Further Desegregation. This plan was prepared

by a bi-racial team designated by the Board.' Various al-

ternative plans were developed by the team and the Board

ultimately recommended to the District Court Plan Il

which was adopted by the District Court and renamed

“Plan Z” in the hope that this will prove to be the terminal

plan for this long standing problem in the City of Memphis.”

Plan Z projected approximately 39,000 pupils to be trans-

ported. The Board also filed two alternative elementary

plans of desegregation which had been developed by

the team and one alternative secondary plan. At the

hearing which began on April 18, 1973, the petitioners

sought to have the District Court adopt a combination

of these plans designated as Plan I-III subject to certain

modifications proposed by their witness, Dr. Gordon Foster.

Contrary to the petitioners’ view. the evidence of this

hearing and the finding of the District Court contained

strong and conclusive reasons for rejecting the petitioners’

request. It was clearly established that the plans favored

by the petiticners would have resulted in substantially

greater times and distances of transportation in detriment

of the best interests of the school children, and cause sub-

stantial additional burden on the school system. It was also

shown that these plans would result in the dismantling of

the large number of desegregated schools which had been

achieved in earlier stages of the desegregation process and

by the pairings and clusterings involved in Plan A.

1. The white members of this team were Dr. O. Z. Stephens,

The Director of Research and Planning for the Board, and Dr.

John Rutland, the Principal of Oakhaven High School. The black

members of the team were Dr. William Sweet, the Principal of

Riverview Junior High School, and Mr. Charles Patterson, the

Director of Race Relations.

2. May 3, 1973, Opinion of the District Court, Page 32a,

Petitioners’ Appendix.

4

Dr. Leon Lebovitz, Director of Psychological Services

for the school system, testified to the importance of limit-

ing the amount of pupil time consumed by the transporta-

tion system.* As Dr. Lebovitz points out, no absolute cut-

off point can be determined since individuals differ in

their degree of tolerance to stress, but the District Court

was clearly supported in its desire to avoid excessive times

and distances of transportation.

Contrary to the petitioners’ view that there was no

unanimity among the members of the desegregation team,

it was made clear at the hearing that the team viewed the

times and distances in the plaintiffs’ plan as excessive. Dr.

Sweet who had personally prepared elementary Plan III

stated that the times and distances in that plan were im-

proper and concluded that he would not recommend this

plan.* As shown in this portion of Dr. Sweet's testimony,

the development of the plan did not signify the team’s

opinion that it was educationally sound. Plan III was

developed at the request of one Board member who wished

to see a plan which would affect every school in the system

regardless of the times and distances or other practicali-

ties which might be involved. The petitioners also mis-

construe the remarks of the superintendent, Mr. John Free-

man, when they suggest at page 10 of their petition that

he had no personal or professional objections to the specific

plans proposed by the plaintiffs. A review of the context

of Mr. Freeman’s remarks makes it clear that he had no

objections to the process of school desegregation itself or

to the idea of desegregating all attendance units if that

were feasible. However, he then expressed his concern

about the objectionable features of petitioners’ plans in

3. Tr. of Hearing, April 18, 1973, 444-8.

4. Tr. 163; 167-8.

5)

terms of time and distance, cost and student fatigue and

stated that he favored the plan recommended by the Board.

After an exhaustive and thorough consideration of the

plans, and the practicalities bearing on the feasibility of

the various plans, the District Court agreed with the great

weight of the expert testimony at the hearing and approved

the plan which had been suggested by the Board of Educa-

tion. The team subsequently prepared exact boundary

lines for the various satellite zones called for in the plan

and submitted these zones to the District Court where

they were approved. Plan Z was put fully into effect at

the beginning of the 1973-4 school year, and the United

States Court of Appeals for the Sixth Circuit has affirmed

the District Court in approving this plan as a final plan of

desegregation in this prolonged controversy.

REASONS FOR DENYING THE WRIT

OF CERTIORARI

The Evidence Supports The Findings

Of The District Court

The District Court in the present case has diligently

performed the precise function which was commended to

the lower courts in the case of Swann v. Charlotte-Meck-

lenburg Board of Education, 402 U.S. 1 (1971). In that

case, this Court recognized that the district courts must

perform their traditional equitable function in weighing

the advantages and disadvantages of competing plans of

desegregation:

“District courts must weigh the soundness of any

transportation plan in light of what is said in sub-

divisions (1), (2), and (3) above. It hardly needs

stating that the limits on time of travel will vary with

many factors, but probably with none more than the

age of the students. The reconcilation of competing

values in a desegregation case is, of course, a difficult

task with many sensitive facets but fundamentally

no more than remedial measures courts of equity have

traditionally employed.” 402 U.S. at 575.

In the present case, the District Court thoroughly con-

sidered the competing plans of desegregation and found

compelling reasons for rejecting the plans favored by the

petitioners. These reasons included the critical factor of

time and distance of transportation. It was undisputed

that the plans recommended by the Board of Education

were greatly preferable in minimizing the factor of time

and distance. The plans favored by the petitioners in-

cluded one-way distances ranging up to 17.5 miles as shown

by Trial Exhibit 1. Many of the distances in petitioners’

plan exceeded the longest distances in former Plan B

which had been rejected by the District Court following

the April, 1972, hearing and which had previously been

found to create ‘‘some times and distances or routes of

transportation in this system which apparently would not

comply with the standards of Swann.* As further shown

by Trial Exhibit 1, the plans favored by the petitioners

would not only involve one-way times in excess of 45

minutes but would place the great bulk of all transporta-

tion times in a category of 31 to 45 minutes each way. By

contrast, the plan adopted by the District Court has suc-

ceeded in greatly reducing the number of 31 to 45 minute

routes and eliminating altogether routes in excess of 45

minutes.

This success is not only of benefit in minimizing student

fatigue and inconvenience but will also minimize the

5. Memorandum Decision, November 15, 1972, P. 9.

staggering of opening and closing times which will be

necessary to accommodate the bus schedules.*

The evidence also supported the District Court in find-

ing that the petitioners’ plans would have a vast adverse

effect on existing desegregated schools. Throughout the

process of devising plans, the District Court has recognized

the desirability of maintaining and encouraging existing

school desegregation. In its Decision of December 10, 1971,

the Court noted: ‘“. . . it appears to be beneficial to take

advantage of the willingness of the citizens of that area to

accommodate desegregation without a total change of

racial patterns in the residential and school populations.”

Similarly, the Court in adopting Plan A stated that this

plan might serve as a basis for further desegregation, but

gave no indication that it intended to dismantle the de-

segregation accomplished either by Plan A or by the

natural desegregation of neighborhoods. In keeping with

this position, the desegregation team adopted as one of its

criteria the desire to maintain existing desegregated situa-

tions wherever possible.* As Dr. O. Z. Stephens noted, the

team was unanimously in accord with this proposition.®

The testimony of Mr. Freeman showed that such an ap-

proach was particularly desirable in light of the tremendous

efforts which had been made by community organiza-

6. In order for buses to make multiple runs, it is necessary

to have enough interval between school openings to allow the buses

to get from one school to the next school. Thus, predominance

of routes of 30 minutes or less has led to opening times being

staggered at 30 minute intervals in the present school year. A

predominance of 45 minute routes would mean 45 minute in-

tervals between school openings and would aggravate the prob-

lem of children going to school and returning home in the dark.

7. Memorandum Decision, P. 20.

8. Report To The Court, January 15, 1973.

9. Tr., April 18th, P. 21. This approach was further en-

dorsed by both Dr. Sweet and Superintendent John Freeman,

Ibid. 167 and 483.

8 .

tions, individual persons, and: numerous school communi-

ties which had made door-tb-door efforts to encourage

parents to continue to patronize the public schools.’® For-

tunately, it was possible in Plan Z to retain the great

majority of existing desegregated situations and avoid re-

quiring the communities which had been successfully de-

segregated under Plan A to undergo a further restructuring.

By contrast, the petitioners’ plan would have retained only

two of the pairings which were implemented as part of

Plan A. It would have dismantled and reassigned almost

all of the other instances of existing desegregation."’ It

should also be noted that the disadvantages of doing away

with the desegregation achieved by Plan A would be com-

pounded many times over if the decision of the District

Court were to be reversed at this late date. Instead of

affecting only the number of schools which were desegre-

gated prior to the adoption of Plan Z, the petitioners are

now proposing to revise existing attendance patterns

throughout the school system with the result that the very

large number of schools paired and clustered under Plan

Z of desegregation would be completely reworked. This

process, coming at the end of three years of intensive re-

assignment of faculties and two years of new desegregation

plans, would create unimagiriable disruption in the public

school system.

10. Tr. 480-481.

11. See Ex. I. A typical example of Plan A pairing can be

seen in the midtown area involving Idlewood and Rozelle Ele-

mentary Schools under Plan A.’ These schools were successfully

paired and succeeded in maintaining a substantially bi-racial,

majority clack student body, thariks to a large degree of neighbor-

hood involvement and work with parents and community groups.

Plan Z maintains this pairing and allows this instance of suc-

cessful desegregation to continue. The petitioners’ plan would

dismantle the pairing so that the Rozelle children would be paired

with former white Grahamwood in East Memphis, and Idlewood

paired with Orleans Elementary School in the inner city.

It was further found by the District Court that the

plan favored by petitioners would involve substantially

greater cost. It would involve greater total cost of the

plan and—because of the substantially longer distances—

a greater cost per pupil. This cost would have to come out

of the operating budget of the school system which is

chronically under-financed and in which fixed costs plus

salaries consume in excess of 90 per cent of the Board’s

budget, leaving only a small fraction in total budget which

must cover such items as transportation and school mainte-

nance.’*

Based on these findings, the District Court was clearly

correct in finding that Plan Z represented the greatest

feasible amount of desegregation in the Memphis School

System and in fashioning the appropriate equitable remedy.

These findings have now been approved by the Court of

Appeals for the Sixth Circuit and are entitled to the con-

clusive weight which this Court has historically accorded

the concurrent findings of fact by two lower courts:

“A court of law, such as this Court, rather than a court

for correction of errors and fact finding, cannot under-

take to review concurrent findings of fact by two courts

below in the absence of a very obvious and exceptional

showing of error.” Graver Tank and Mfg. Co. v. Linde

Air Products Co., 336 U.S. 271, 275

Although the petitioners contend that the District

Court improperly considered “white flight” in reaching its

conclusion, it is clear from a reading of the Opinion that

the District Court did no more than recognize that the ob-

jectionable features of petitioners’ plan—such as its undue

disruption of existing desegregation, its unreasonable times

and distances, and its excessive financial costs—would not

12. Tr. 379-380; 484-488.

10

only impinge on the educational process generally but

would have additional undesirable consequences on the

desegregation process itself. In taking all proper and

feasible steps toward further desegregation of the schools,

neither the District Court nor the Board itself has been

deterred by adverse reaction in the community to the de-

segregation plan. On the contrary, the companion appeals

in this very case show that the District Court and the

Board of Education have consistently discharged their

duties in spite of attempts at boycott, economic penaliza-

tion. denial of gasoline supply, and a threat on the part of

the Mayor of the City of Memphis to remove the buses

from the streets at the time of the implementation of Plan

A. In spite of these factors and in spite of the decline of

enrollment from 131,238 prior to the implementation of

Plan A and Plan Z, to a total of 119,399, at the present time,

the District Court has steadily required compliance with

the appropriate plan of desegregation. Its refusal to adopt

the excessive times and distances in petitioners’ plan and

to countenance the attendant disruption of existing de-

segregation should not be equated with improper consider-

ation of white flight.

Respondents would also point out that the District

Court was presented in this case with a logistical situa-

tion in which the construction of a plan of desegregation

presented unusual difficulties. The very size of the Mem-

phis School System, which is one of the 10 or 12 largest

school systems in the country, and which is totally within

a high traffic urban area, presented unusual problems in

times and distances of transportation. Moreover, the

geography of the City, which is cut off on the south by the

state line and on the west by the Mississippi River, results

in the main areas of black population being located on one

extreme side of the school system and, thus, causes greater

times and distances of transportation than would be in-

11

volved if the inner city were surrounded by areas of white

residents, as in Kelley v. Metropolitan County Board of

Education, 463 F. 2d 732 (6th Cir.), cert. denied, 409 U.S.

1001 (1972). Under these circumstances, it is scarcely

surprising that a remaining number of schools of the ma-

jority race which were located in the most inaccessible

areas of the city could not feasibly be included in a plan

of desegregation.'"* Compare Goss v. Board of Education,

482. F. 2d 1024 (6th Cir., 1973), cert. denied, 42 U.S.L.W.

3423 (Jan. 21, 1974). One of the principal differences be-

tween the instant case and Goss is that no transportation

system was required of the Knoxville School Board; where-

as, the respondents have fully implemented an enormous

transportation system within a former neighborhood school

system.

Respondents would further show that there is no merit

to petitioners’ argument that the District Court failed to

make findings of fact in support of its decision. This argu-

ment was not raised in the respondents’ brief in the Court

of Appeals and is merely an effort to avoid the impact on

this case of Rule 52a of the Rules of Civil Procedure. The

District Court made substantive findirgs with regard to the

adverse impacts of petitioners’ plan and these findings

13. Contrary to petitioners’ position that all one-race

schools in the system have been held to be vestiges of the dual

school system, the lower courts have held only that “many of

the one-race schools are clearly the result of discriminatory action

of the school board .. .” 466 F. 2d 890, 893. The schools which

were not included in Plan Z are located in an extensive area of

concentrated black housing in the westernmost part of the city

and are removed from other portions of the city by tiers of former

all-black school zones. Given this geographic isolation, they are

identical with the situation in Bradley v. School Board of Rich-

mond, 462 F. 2d 1058, affirmed by equally divided Court, 36 L. Ed.

2d _...., 1973, in which the Court noted that “The root causes of

the concentration of blacks in the inner city are simply not

known ... Whatever the basic causes, it has not been school

assignments, and school assignments cannot reverse the trend.”

462 F. 2d at 1066.

Quer .

12

should not be set aside merely because petitioners choose

to disagree with them or to insist on a demonstration that

implementation of their plan would have been @ physical

.

impossibility. The Court of Appeals was equally correct

in concluding that the District Court's factual findings were

entitled to the benefit of Rule 52a. See Goss, supra. See

also Mapp V- Board of Education, 477 F. 2d 851 (6th Cir.),

cert. denied, 42 USLW. 3290 (Nov. 12, 1973).

CONCLUSION

In the last five years, the very large public school

system in the City of Memphis has experienced continual

upheaval in an effort to implement a final plan of de-

segregation and to achieve 4 unitary school system. During

the years 1969-70, 1970-71 and 1971-72, the system has ex-

perienced the widespread transfer of teachers to achieve @

racially balanced faculty in every school in the system.

In January of the 1972-73 school year, Plan A of desegre-

gation was implemented and students and faculty were Te-

assigned at approximately one-third of the system’s schools.

Finally, at the beginning of the current school year, Plan

Z was put into effect and the great majority of the re-

maining schools experienced large scale transfers of stu-

dents and faculty members. At all times, the Board has

proceeded to implement with the utmost good faith the

various directives of the District Court and of the Appellate

Courts. Finally the point has been reached at which the

District Court. supported by overwhelming evidence, has

concluded that the school system has done its utmost within

the limits of feasibility and should be allowed to redirect

its efforts to meeting the educational needs of its patrons.

This has occurred only after full utilization of all of the

remedial measures permitted by the Swann decision. A

great majority of the schools have been paired, clustered

_ Jere a wx en. ~<f

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13

or otherwise restructured. The faculties at ali schools have

been racially balanced and a former neighborhood school

system has been converted into an operation involving sub-

stantial pupil transportation. Respondents submit that

the courts below have fully considered and applied the

remedies of the Swann decision and that certiorari should

be denied.

Respectfully submitted,

Ernest G. KELLY, JR.

EVANS, PETREE, Copp & EDWARDS

900 Memphis Bank Building

Memphis, Tennessee 38103

Attorneys for Respondents

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