Opposition Brief — Love v. Dade County School Board

INDEX

STATEMENT OF THE CASE

1.

2

3.

q

RN so

Background and History _.

The Latest Proceedings Below...

The Facts Presented to the Lower Courts _

A. 1974 Feeder Plan

B. The Board’s Construction Plan

Mie kt ee

ARGUMENT

Reasons for Denying the Writ

1.

Post-Unitary Jurisdictional and Remedial

Standards

The School Board’s Revision of the Feeder

Pattern for Miami Northwestern Senior

High School was a Normal and Needed Ad-

ministrative Correction, Racially Neutral

and Having No Adverse Effect on the

Unitary System

™ e Dade County School System, Unitary

for Five Years, Demonstrates Improve-

ment Rather Than Regression, and No

Basis Exists for Massive Reconstruction

Through New Comprehensive Desegrega-

tion Plans

CONCLUSION

CERTIFICATE OF SERVICE

12

18

31

32

8

TABLE OF AUTHORITIES

Case Page

Bradley v. School Board of City of Richmond,

462 F.2d 1058 (4th Cir. 1972), aff'd per

curiam, 412 U.S. 92, 93 S.Ct. 1952 sesiiiva 27

Darville v. Dade County School Board,

497 F.2d 1002 (5th Cir. 1974) 6, 14

Davis v. Board of School Commissioners of Mobile,

50 EG, SE Teer) on 27

Goss v. Board of Education of Knoxville,

482 F.2d 1044 (6th Cir. 1973), cert. den. 414

U.S. 1171 ean ae 28

Keyes v. School District No. 1, Denver, Colorado,

413 U.S. 189, 93 S.Ct. 2826 (1973) .... 24

Milliken v. Bradley,

418 U.S. 717, 94 S.Ct. 3112 (1974) 18

Northcross v. Board of Education of

Memphis City Schools,

489 F.2d 15 (6th Cir. 1973), cert. den. 416

U.S. 962 _. 27, 28

Pate v. Dade County School Board,

434 F.2d 1151 (5th Cir. 1970), cert. den. 402

U.S. 953, 91 S.Ct. 1613 (1971) 8, 13, 19, 26

|

|

Il

TABLE OF AUTHORITIES (continued)

Case Page

Pate v. Dade County School Board,

447 F.2d 150 (5th Cir. 1971), cert. den. 405

U.S. 1064, 92 S.Ct. 1493 (1972) _. 4,13

Spencer v. Kugler,

326 F.Supp. 1235 (D.N.J. 1971), aff’d. mem.

404 U.S. 1027, 92 S.Ct. 707 27

Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1, 91 S.Ct. 1267 (1971) 3, 13, 17,

27, 28, 29

OTHER AUTHORITIES

Federal Rules of Civil Procedure, Rule 12(b) 8

in the

Supreme Court

of the

GQnited States

OCTOBER TERM, 1974

ss

No. 74-1493

ALICE LOVE, et al.,

Petitioners,

v8.

DADE COUNTY SCHOOL BOARD, et al.,

Respondents.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

2

STATEMENT OF THE CASE

1. Introduction

The desegregation of the Dade County public school

system, the sixth largest school district in the nation located

within the most extensive urban-metropolitan area in Flor-

ida, has been a complex and evolving process over the past

five years. The petitioners’ statement of the case is in-

adequate as a presentation of the background and con-

text of the most recent proceedings which are now the

subject of their petition for certiorari. This is the fourth

attempt by the American Civil Liberties Union of Florida

and other intervenors, since 1970, to force a wholesale

reopening of this case, with the objective of imposing a

systemwide master plan of racial quotas or balances in

all schools in Dade County.

Petitioners have not asked that the record in the Court

of Appeals be transmitted to this Court, but have elected

to make their presentation based upon their interpreta-

tion of the record, plus a few selected excerpts from their

own Petition for Supplemental Relief originally filed in

the District Court, which they have reprinted in the ap-

pendix to their petition to this Court. We believe that the

issues cannot be fully understood without reference to the

pleadings below, including the charts and exhibits which

cannot be reproduced in appendix form to this brief. Ac-

cordingly, we have requested that the entire record which

was before the Court of Appeals be certified and trans-

mitted, in accordance with this Court’s Rule 21. References

to the record herein will be according to the index and

pagination of that official record on appeal, as prepared by

the clerk of the District Court. (We note that petitioners’

references are apparently to the incomplete “reproduced

3

record” which they filed with the Court of Appeals, and

their page references are thus out of phase with the num-

bering assigned by the clerk.)

1. Background and History

This case began in August, 1969, when the School

Board invoked the jurisdiction of the federal court to

protect itself against an attack in the state court by a

citizen who sought to enjoin the Board from implement-

ing a desegregation plan it had approved for the 1969-1970

school year. Prior to that, over a period of about ten years,

the Board had voluntarily taken moderate steps to deseg-

regate the school system. The 1969-1970 plan was found

insufficient by the District Judge, and after a labyrinth

of proceedings extending over a period of a year, the Fifth

Circuit in a careful and exhaustive opinion reviewed the

District Judge’s orders approving a final desegregation

plan, required further extensive modifications to the stu-

dent assignment elements of the plan, and thereupon held

that the total plan as modified would effectively deseg-

regate the Dade County school system. Pate v. Dade Coun-

ty School Board, 434 F.2d 1151 (5th Cir. 1970), cert. den.

402 U.S. 953, 91 S.Ct. 1613 (1971). The petitioner

American Civil Liberties Union had urged fixed racial

ratios in every school, a contention rejected by the District

Judge (Pate, supra at page 1160) and by the Court of

Appeals.

One year later, after the decisions in Swann v. Char-

lotte-Mecklenburg Board of Education, 402 U.S. 1, 91

S.Ct. 1267 (1971) and its companion cases, the District

Judge entered an order on June 14, 1971 (R.1), outlining

the continuing duty of the School Board to make the

desegregation plan work, recognizing his own responsibility

4

to assure that the school system remained unitary, and

giving all parties an opportunity to object to the Board’s

1971-1972 pupil assignment plan. On June 18, 1971 the

District Judge approved the plan, relieved the Board of

any duty to obtain prior approval of further changes, and

fixed the burden as to any further proceedings as follows

(R. 5):

“The burden shall be upon the present interve-

nors, or any other persons hereafter permitted

to intervene, to demonstrate to this Court a prima

facie case of the School Board’s failure to act in

accordance with the principles outlined in this

Court’s order of June 14, 1971. Jurisdiction is

retained for this limited purpose.”

At this juncture the present petitioners had not only

objected to the 1971-1972 pupil assignment plan, but had

moved to reopen the case for evidentiary hearings de novo,

contending that the overall desegregation plan as approved

by the Court of Appeals was in conflict with the princi-

ples laid down by this Court in Swann and its companion

eases. The District Court on June 30, 1971 denied further

evidentiary hearings, finding that the Dade County school

system was in truth unitary in light of Swann (R. 7). The

petitioners took an appeal from the last-mentioned two

orders of June 18 and 30, 1971. The Fifth Circuit affirmed

summarily under its Local Rule 21—and this Court re-

fused to grant a petition for certiorari from that decision.

Pate v. Dade County School Board, 447 F.2d 150 (5th

Cir. 1971), cert. den. 405 U.S. 1064, 92 S.Ct. 1493 (1972).'

1For a fuller account of the early history of the case, we refer the

Court to the School Board’s Brief and Appendix filed in that certiorari

proceeding, which appeared in this Court as Alice Love v. Dade County

School Board, case No. 71-918, October Term, 1971.

5

The next attempt by the petitioners to require racial

balances came in 1973, but was mooted when the School

Board, under threat of the attempt to force new plenary

hearings, discontinued consideration of tentative additional

steps (R. 297).

Ironically enough, while the present petitioners have

recurrently sought to reopen the case on the conception

that the school system is not unitary, the Schoo] Board

has taken affirmative steps to further the desegregation

process which have required it to defend (successfully)

against attacks from the other end of the spectrum which

have challenged the Board’s actions as going too far. Thus,

6 the School Board in 1972 found that the pairing of Miami

Springs Junior High and Brownsville Junior High, which

had been ordered by the Fifth Circuit in its 1970 opinion,

had not worked effectively, and so grouped a third virtual-

ly all-white school to the original paired schools in an

effort to stabilize the situation. The City of Miami Springs

complained of this and petitioned to intervene. The Board

resisted the attempt and the District Judge denied the

petition (R. 292). In that order, while cautioning the

Board as to its duties, the court said:

“The Court wishes to recognize the substantial

efforts of the Board to comply with its continuing

responsibilities under the orders of this Court.

It is clear that a good faith effort to accomplish

‘ further desegregation, although having already

achieved unitary status, has been made.”

The same grouping, which involved additional bus

transportation voluntarily ordered by the School Board,

was before the Court of Appeals in 1974. That Court found

Na a ee LOL GIT LEL EL SER POLLINA TD MEE LLM IEB IBIS ELC! BONE ROS LES GIR LAD TAL COLI A

6

the Board’s grouping to be “an affirmative action to pro-

mote desegregation within a unitary school system,” and

affirmed the dismissal by the District Judge of a com-

plaint filed by a group of parents and the City of Hialeah.

Darville v. Dade County School Board, 497 F.2d 1002 (5th

Cir. 1974).

3. The Latest Proceedings Below

Against this background, the current proceedings were

initiated by a “Petition for Supplemental Relief ... (etc.)”

filed June 20, 1974, in which the intervenors in the lower

courts once again demanded plenary evidentiary hearings,

with the purpose of forcing the adoption of complete and

comprehensive new desegregation plans for the entire

county school system (R.62). As a basis this time for

demanding more hearings, the Petition focused upon a

recent revision by the School Board of the student feeder

plan for one senior high school, and upon a tentative five-

year construction plan approved by the Board.

The School Board filed a Motion to Dismiss and

factual Response, with exhibits attached, and sworn to by

the school system’s Director of the Office of Equal Educa-

tional Opportunity (R. 232). The intervenors filed a reply

(R. 281), and the District Judge heard full and extensive

argument, supplemented by an exchange of letters con-

cerning aspects of the construction plan (R. 306-319).

The District Court held that the petitioners had failed

to make a prima facie showing, under the burden defined

in his orders of June 14 and 18, 1971, sufficient to justify

action with respect to the high school feeder plan, or the

demand for consideration of a comprehensive new deseg-

7

regation plan. However, the court did schedule a hearing

to consider whether implementation of the construction

plan would adversely affect the existing unitary system

(R. 298, Pet. appendix 5).

On motion the court certified its rulings as final

judgments under Rule 54(b), and petitioners appealed.

The School Board did not cross-appeal from the portion

of the order scheduling a hearing on the construction plan.

The Court of Appeals affirmed (Pet. appendix 1), after

summarizing the history of the case in its opinion and

observing:

“The record shows that the Dade County School

Board has taken effective steps to further the

desegregation process.”

4. The Facts Presented to the Lower Courts

Petitioners’ statement of the facts ingenuously con-

sists only of selections from their Petition for Supplemental

Relief filed below, and ignores the comprehensive and

sworn Response filed by the School Board. Our argument

to the courts below not only challenged the sufficiency of

the Petition on its face, but also went to the merits of the

contentions, in the light of the factual explanations, sup-

ported by data in exhibits attached, contained in the

Board’s Response. The petitioners never disputed the ac-

curacy of the Board’s factual representations or statistical

exhibits, except for some differences which developed after

the hearing in the District Court concerning expected

racial attendance in schools yet to be built. These differ-

ences are not material here, because the District Judge

has ordered an evidentiary hearing to inquire into the

8

Board’s construction plan. As for the issues before the

Court of Appeals and now being repeated to this Court

—the high school feeder plan and the question of justifica-

tion for new comprehensive desegregation planning—the

material facts are substantially undisputed, and were so

treated in the proceedings below. Petitioners filed no

sworn traverse of any of the Board’s factual submissions,

nor did they at any time during or after the hearing prof-

fer testimony as being necessary to a decision by the

District Judge. Procedurally, therefore, the matter was

properly decided upon the whole record, as is clearly per-

missible under Rule 12(b) of the Federal Rules of Civil

Procedure.

We believe that it is unnecessary to try to restate

the facts in full, which would simply involve a repetitive

paraphrasing of the explanatory and statistical content

of the Board’s Response. The full facts and circumstances

relating to the claims made in the Petition below can only

be gathered from the Response, which we urge the Court

to read in full (R. 232-263). For summary purposes here,

we will only point out the essentials of the Response, to

balance the petitioners’ astigmatic presentation of the

facts in their petition.

A. 1974 Feeder Plan

The Petition below claimed “intentionally segrega-

tive School Board action” in its approval of a revised stu-

dent feeder plan for Miami Northwestern Senior High

School.

The Response explains the new plan, its purposes and

effects, in light of the history of this school and its tradi-

9

tional elementary and junior high “feeder” schools located

in the virtually all-Negro north central district of the

school system. The Response points out:

(a) The purpose of the plan is racially neutral

—to rectify a fragmented and bizarre student

assignment system, unique within the school dis-

trict, which has operated to the detriment of the

black children involved, and jeopardized the con-

tinuance of Miami Northwestern Senior High

School.

(b) The effect of the plan is racially neutral

—the students involved are all black, and there

is no correlative reassignment or readjustment

of white students to separate the races.

(c) Although the feeder plan makes for an all-

black student flow in the schools to feed Miami

Northwestern Senior High, it gives those stu-

dents a normal and vastly simplified progression

of schools—and by taking many black students

out of the old Miami Northwestern flow pat-

tern, it places those students in desegregated

junior and senior high schools.

(d) The new plan does not disturb the existing

desegregated schools in the area, and in fact will

improve the racial mix in some of these.

(e) Given the intractable fact of Negro residen-

tial isolation in north central Miami—a fact

recognized from the beginning by the District

Judge and by the Fifth Circuit as preventing

le a al Hes ob APNEA ELSIE ALL ALI PET EG OT VANES FP I CBRE SEP SICE LEI TIES

10

feasible desegregation of many of the schools

involved in the feeder plan—the new plan simply

improves the educational environment and prog-

ress of the black children involved.

(f) Nothing in the feeder plan restricts or pre-

vents students from exercising their right to

transfer under the Board’s long-standing major-

ity-to-minority transfer policy.

B. The Board’s Construction Plan

Since the tentative construction plan is-to be the sub-

ject of an evidentiary hearing, and was not an issue in

the appeal below, it seems unnecessary to burden this

Court with a premature analysis here. If it is defective

it can be corrected, but it by no means follows, as peti-

tioners suggest, that flaws in tentative construction plan-

ning must lead to new all-out comprehensive redesigns

for countywide desegregation.

C. “Dual System”

The petition, under the suggestive heading “Dual

System,” presents a series of assertions that the Dade

County school system is retrogressing, in an attempt to

argue the conclusion that we are back to an old-fashioned

dual system of schools. The Petition for Supplemental

Relief in the District Court tried, for example, to show

that the unitary plan approved by the Fifth Circuit in

1970 has “failed,” by selecting some 36 schools (out of a

total of 60 originally paired and grouped) and complain-

ing that black student percentages have exceeded original

predictions.

11

The Board’s Response shows (1) no School Board ac-

tion or default is alleged to have caused these variations;

(2) majority black schools are not per se segregated; (3)

only ore of the schools listed is over 85% black. The

Response, then, by Exhibits III and IV attached, dem-

onstrates (1) when all grouped and paired schools are

considered, the picture in terms of racial mixture is quite

satisfactory; (2) the School Board by voluntary, affirma-

tive action has added 11 schools to the network of paired

and grouped schoois, with substantial desegregation hav-

ing resulted in every case. Going further, the Response

by Exhibit IV attached displays a panoramic view of the

progress of desegregation in the whole school system from

1968-1973. Of particular interest—the number of 90-100%

black schools has remained stable since 1970, the year the

Court of Appeals ruled the system to be unitary, while

100% white schools have decreased from 33 in 1970 to

10 in 1973. Concurrently, the number of schools enroiling

1—30% black students has increased from 106 in 1970

to 132 in 1973.

The Petition for Supplemental Relief filed below then

contains a section called “School Board Discriminatory

Action and Inaction” which is largely emotional argument.

Its factual assertions when boiled down relate to the clos-

ing of one black school and conversions of two others. The

Board’s Response simply points out that these were all

accomplished, for good reasons, before or during the litiga-

tion leading to the unitary status achieved in 1970, and

so are irrelevant matters.

12

ARGUMENT

REASONS FOR DENYING THE WRIT

1. Post-Unitary Jurisdictional and Remedial Standards

The essential issues presented by the petition are the

same as those argued to the lower courts—whether, upon

the whole record, the District Judge was required either

to enjoin the School Board’s revised feeder plan for Miami

Northwestern Senior High School, or to reopen this litiga-

tion and begin again with countywide desegregation

schemes as if the history of the past four years were

nothing.

Since the Dade County school system is and has been

unitary since 1970, it is important first to analyze the

method and implications of the petition, in the perspec-

tive of the history of this case.

As we noted earlier, the Petition for Supplemental

Relief filed below was the latest in a series of persistent

attempts by these intervenors (petitioners) to reopen the

entire desegregation process in the public schools of Dade

County, and to induce the lower court to impose a county-

wide system of racial balances in the schools. The Peti-

tion ignored the history of this case, the principles laid

down by this Court, and the overall working experience

of the school system, in its dogmatic new offensive directed

toward racial quotas.

The Dade County school system, when declared unitary

in 1970, contained some all-white and all-black schools,

and other schools of varying racial percentages suscep-

tible of criticism by the purists. The desegregated school

13

system was and is a compromise between ideals and prac-

ticalities, as most things in life are. Nevertheless, the

system was held unitary, in spite of petitioners’ demands

at the time for racial quotas in all schools. Pate v. Dade

County School Board, 434 F.2d 1151 (5th Cir. 1970), cert.

den. 402 U.S. 953, 91 S.Ct. 1613 (1971).

In 1971, after the landmark decision in Swann v.

Charlotte-Mecklenburg Board of Education, 402 U.S. 1,

91 S.Ct. 1267 (1971), these petitioners sought to reopen

the case, contending that the District Judge and the Court

of Appeals had failed to apply correct legal principles in

approving the Dade County school system as unitary. The

District Judge rejected the demand, the Fifth Circuit

summarily affirmed, and this Court denied certiorari.

Pate v. Dade County School Board, 447 F.2d 150 (5th Cir.

1971), cert. den. 405 U.S. 1064, 92 S.Ct. 1493 (1972).

In 1973, another attempt to reopen proceedings and

force hearings on plans for racial quotas in the schools was

aborted when the School Board, possibly reacting to the

threat of disruptive litigation, dropped consideration of

certain revised student feeder arrangements, and other

tentative plans for additional steps in the desegregation

process.

Petitioners’ efforts in the last few years, therefore,

might be credited with having had the effect of chilling

additional measures which might otherwise have been

taken by the School Board to improve, by gradual steps,

its desegregated system. Petitioners doubtless see this

as a virtuous result, from their fixed position demanding

racial quotas, or proportions, in all schools. We disagree,

and we think it necessary that this position be seen for

14

what it is—a rigid and uncompromising doctrinaire ef-

fort to restructure the entire school system to suit these

petitioners’ conceptions of “desirable” racial balances,

heedless of the substantial progress (admittedly imper-

fect) made and being made by the Board against complex

pressures and counterpressures. The result sought is clear-

ly not required by the law, and their recurrent attacks

upon the school system serve only to cloud the issues, stir

needless suspicions, and dampen the Board’s initiative as

it seeks ways to improve the educational opportunities for

all students. As the Court of Appeals and the District

Judge have both explicitly recognized, this case has never

presented the picture of a recalcitrant school board re-

sisting desegregation and trying to evade its constitutional

obligations. On the contrary, the Dade County School Board

has not only accepted and carried out the mandates of the

courts below, it has acted affirmatively, in the face of

popular and political opposition, to further desegregation

goals. By voluntarily adding schools to those originally

paired and grouped by court order, the Board has suc-

cessfully extended desegregation within the system. By

adjusting court-ordered school pairing and requiring addi-

tional busing (hardly a popular move these days) the

Board has demonstrated its determination to maintain

its unitary system, as the Fifth Circuit has recently had

occasion to witness and approve. Darville v. Dade County

School Board, 497 F.2d 1002 (5th Cir. 1974).

The apparent design of the current petition is to at-

tempt to convince the Court that the School Board, in

revising one senior high school feeder plan, and/or in

approving a tentative construction plan, had acted to re-

establish a dual system, and thus—presto!—the slate is

clean, four years of history and struggle are to be ignored,

15

the judgment of the Court of Appeals and the subsequent

supervision by the District Court are for naught, and we

must start all over again and allow Dr. Finger to give

us a fresh master plan for racial balances throughout the

county.

This, of course, is nonsense. If the School Board has

perchance mistaken its way with respect to the feeder

plan, or the construction plan, to the extent of constitu-

tional violations (which we strongly deny), then correc-

tive action should and must be taken, in order to carry

out the charge of the Court of Appeals that we “assure the

maintenance of a unitary system”. It does not follow at

all that the whole school system must be reorganized.

As we pointed out in our Statement of the Case, the

District Court, in its order of June 14, 1971, laid down

principles reflecting its limited continuing responsibility

to monitor the unitary school system in Dade County, and

by its order dated June 18, 1971, the court stated that

henceforth:

“_. The burden shall be upon the present inter-

venors, or any other persons hereafter permitted

to intervene, to demonstrate to this Court a prima

facie case of the school board’s failure to act in

accordance with the principles outlined in this

Court’s order of June 14, 1971. Jurisdiction is

retained for this limited purpose.”

This order was the subject of the 1971 appeal, and

was affirmed. It therefore became the law of the case in-

sofar as it defined the burden placed upon these petitioners

with respect to any attempts to challenge the School Board’s

———aEOOoooore

16

continuing supervision and maintenance of its unitary

school system. By the same order, it is apparent that the

District Judge recognized and stated that his jurisdiction

is now limited in scope, and may be invoked only to cor-

rect School Board actions or defaults which are shown to

threaten the unitary status of the system.’ This is quite

a different jurisdictional situation than was the case be-

fore the school system was declared unitary—and rightly

so. Once the judicial desegregation process had been com-

pleted and the entire county school system had been held

to meet constitutional requirements, the School Board was

and is entitled to be free of endless attempts by disap-

pointed parties or new intervenors to force further whole-

sale reevaluations and revisions. This was the clear teach-

ing of the Swann case, when this Court set the guidelines

for judicial authority after a school system had attained

unitary status:

“Neither school authorities nor district courts are

constitutionally required to make year-by-year

adjustments of the racial composition of student

bodies once the affirmative duty to desegregate

has been accomplished and racial discrimination

through official action is eliminated from the

system. This does not mean that federal courts

are without power to deal with future problems;

but in the absence of a showing that either the

-2The District Judge maintains continuing contact and scrutiny,

however. A court-appointed BiRacial/Tri-Ethnic Committee reviews and

reports to the Court upon the School Board’s plans for student assign-

ments, school site selections and other actions affecting the status of

desegregation. In addition, the Schoo! Board files comprehensive semi-

annual reports with the Court, reflecting in great detail the racial distri-

butions of students and faculty, the workings of the Board’s majority-

tominority transfer provisions, proposed construction plans, and other

statistics relating to the maintenance of desegregated facilities.

17

school authorities or some other agency of the

State has deliberately attempted to fix or alter

demographic patterns to affect the racial composi-

tion of the schools, further intervention by a

district court should not be necessary.” (Swann,

supra, 91 S.Ct. 1267 at 1284).

The allegations in the Petition for Supplemental Re-

lief filed below, when stripped of their emotional rhetoric

and tested by the full factual context provided in the

Board’s sworn Response, failed entirely to make a prima

facie showing of School Board action to reestablish a dual

school system, and thus it failed the jurisdictional test set

forth in the District Court’s order of June 18, 1971.

Further, it seems clear that petitioners’ burden can

be no less than to show a constitutional violation in order

to justify remedial action, much less a total reopening of

the litigation as they have demanded. Judicial powers may

be exercised only on the basis of a constitutional violation,

and the courts have no authority to substitute their judg-

ment for that of a school board. Swann, supra, 91 S.Ct.

1267 at 1276. If this is true in the initial testing of a

school system against the requirements of the Fourteenth

Amendment (as was the case in Swann), it must be at

least as true and binding upon the lower court here as it

contemplated a system already thoroughly reorganized

and long operating as unitary under judicial guidance.

Finally, on the question of the scope of remedial

jurisdiction, this Court has plainly held that the remedy

in each case is to be fitted to the size of the problem:

18

“The controlling principle consistently expounded

in our holdings is that the scope of the remedy is

determined by the nature and extent of the con-

stitutional violation. Swann, supra, at 16.”

Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112,

3127 (1974).

Petitioners completely disregard this principle, and

even try to stand it upside-down by claiming (Petition

p. 17) that the District Court, in deciding to hold a future

hearing to examine the School Board’s tentative construc-

tion plan, has found a prima facie violation to exist. This

is exactly what the District Court has not found, and the

School Board is confident that no such violation can be

shown when the hearing is held. Our point here is that

even if some aspects of the construction plan should be

disapproved, the remedy would properly be limited to the

correction of the perceived defects.

Accordingly, it remains for us to examine the record,

to see whether or not petitioners met these jurisdictional-

remedial tests in their objections to the revised senior high

school feeder pattern, or in their demand for a new “com-

prehensive desegregation plan.” It will be our purpose to

show that nothing approaching resegregative action in

violation of constitutional principles has been suggested

by the School Board’s actions, and that in truth the his-

tory of the desegregation process in Dade County shows

steady improvement in the unitary structure, rather than

any basis for wholesale reconstruction of the system.

2. The School Board’s Revision of the Feeder Pattern

for Miami Northwestern Senior High School was a

19

Normal and Needed Administrative Correction, Ra-

cially Neutral and Having No Adverse Effect on the

Unitary System.

The petition attempts to characterize the School

Board’s revised feeder plan for Miami Northwestern

Senior High School as a violation of the 1970 decision of

the Court of Appeals, and/or an “intentionally segrega-

tive” action rendering the Dade County school system a

“dual system.” The Court of Appeals, by its decision be-

low, obviously held that the Board’s revision of the feeder

plan did not run afoul of that Court’s mandate.

It must first be observed that this high school, as well

as Drew Junior High, its junior high feeder school, as

well as six elementary schools which have traditionally

fed students to Miami Northwestern Senior High, are now

all-black and were all-black when the system was ruled

unitary in 1970. The Court of Appeals held then that this

cluster of schools in the central Negro residential district

of Miami simply could not feasibly be desegregated. See

Pate, supra, 434 F.2d 1151 at 1155, 1157, 1158.

Residential patterns have not changed, and the prob-

lem of these schools remains as intractable as ever. The

question, then, is whether in administering these schools

as they are (not as they might be in the best of all possible

worlds) the School Board may make reasonable and racial-

ly neutral adjustments in student assignments, to correct

irrational and educationally unsound feeder arrangements

which have operated to the detriment of the black children

involved. If not, then the Board can easily return to the

old outlandish feeder system. When the new feeder pat-

tern is understood, however, a forced return to the old

ae GASB SIL NELTE EL RIL AEE TRG SOO HET

20

system cannot be justified except on the spurious theory

which underlies appellants’ argument—that black children

attending school with other black children is always and

in every case bad and impermissible. The Court of Ap-

peals did not accept that theory in 1970, and the School

Board’s 1974 action in revising the Miami Northwestern

feeder pattern simply dealt with existing realities and

sought to improve the educational opportunities for the

children in the entire complex of schools affected. Under

the old feeder arrangements the children were in effect be-

ing penalized because they are black, by being subjected to

fragmented assignment patterns unique within the school

system and unjustifiable on any basis except in terms of

temporary racial mixture for some of the students. The

new feeder system comes to grips with reality and provides

a stable flow for some of the children, albeit within one-

race schools, while concurrently placing the rest of the

children within a stable flow through desegregated junior

and senior high schools. Petitioners’ claim that children

are being “locked in’ to all-black schools ignores the fact

that the feeder plan also “locks out” the black students

from elementary schools now removed from the flow to

Drew Junior High and Miami Northwestern Senior High.

(See Exhibit II to the School Board’s Response filed be-

low, R. 250).

The reasons for the new feeder pattern and its effects

have been set forth in the Response filed below, with its

Exhibits (R. 232-263). Accordingly, this brief will not

repeat what is there explained in full. We will simply

point out that under the feeder plan Olinda, Drew, Holmes

and Orchard Villa Elementary Schools will feed Drew

Junior High School which will feed Miami Northwestern

Senior High School. All of these elementary schools except

ee

21

Holmes are presently 100% black elementary schools.

Children from all of these elementary schools except

Holmes were already feeding Drew Junior High School,

which has been the primary feeder for Miami Northwest-

ern Senior High School. It is apparent that none of these

schools will change in racial composition except for Holmes

Elementary School, which will go from about 98% black

enrollment to an estimated 99% black enrollment. A

change of an estimated one (1%) percent (about eight

children) in enrollment can hardly be seen as state action

designed to enforce segregation.

It is also apparent that the change in the feeder plan

does not affect any white students. Drew and North-

western are now 100% black schools, and always have

been. Under the new plan, they will continue to be 100%

black schools. The children being channeled to these schools

are necessarily black children. It is not possible to segre-

gate white students from black students when the only

students involved are black students. It is simply not pos-

sible to view this feeder plan as in any way segregative.

We take strong exception to statements in the peti-

tion to the effect that black children are being “guaran-

teed” an all-black education. Petitioners are well aware

of the school system’s flexible majority-to-minority trans-

fer policy, which truly guarantees that no child need go

to a school where his race is in the majority. These chil-

dren are in no sense being sentenced, as petitioners imply.

They are simply placed in a logical flow with their class-

mates to (1) one junior high school (a good and modern

junior high school, by the way) rather than to a hodge-

podge of schools, and (2) one senior high school, which

both community and School Board very much want to

preserve and strengthen.

Petitioners try to claim that the School Board is

placing the burden of desegregation on black students

only, by referring to certain students who are transported

under the feeder plan to (desegregated) junior and senior

high schools. As the Board’s Response shows, these students

have in the past also been transported, because Dorsey

Junior High, their original (black) junior high school

was closed in 1970 before the school system reached uni-

tary status. There is nothing new in this transportation

plan, and no corresponding need to cross-bus white

students, with no junior high school to receive them. In

addition, the surrounding senior high complexes are al-

ready desegregated (see Exhibit I to Response filed below,

R. 246-249) and thus cross-busing to make racial mixes

in the inner-city black schools is no more feasible now

than it was in 1970.

Petitioners further complain that they were denied an

evidentiary hearing on the new feeder plan. In the first

place, the facts and data before the lower courts with

respect to the plan were not in dispute—only the argu-

ments and conclusions offered by the parties conflicted.

It is obvious that petitioners either misunderstood or mis-

interpreted the nature and effect of the plan, and in any

event were primarily interested in trying to use it as a

device to serve their purpose of procuring a plenary re-

opening of the entire litigation. The courts below had a

full development of the facts and circumstances in the

record, and no real need for more hearings. The District

Court’s legal conclusion (that the plan does not evidence

reversion toward a dual system) was simple enough, and

amply supported.

23

The feeder plan can in fairness only be seen as it

is intended—an administrative rearrangement which

straightens out a mess. In the judgment of the Board,

it is for the best educational benefit of all the students

affected, and in the best interests of improving a high

school which everyone wants to keep. The black students

in the feeder plan may opt out if they wish, and at any

time. For the other side of the coin, the black students

who are simultaneously excluded from the Northwestern

feeder plan are fed to desegregated schools. Admittedly a

compromise, the new plan is far and away better than

the old confusion, and it simply does not present any

semblance of a return to a dual system.

8. The Dade County School System, Unitary for Five

Years, Demonstrates Improvement Rather Than Re-

gression, and No Basis Exists for Massive Recon-

struction Through New Comprehensive Desegrega-

tion Plans.

The whole thrust and purpose of the Petition for

Supplemental Relief filed below was to force wide-open

new evidentiary hearings, with the object of engaging in

full-scale new comprehensive planning to redesign the

county school system. As the entire history of this case

demonstrates, the School Board accepts and is anxious to

carry out its duty to maintain its unitary system. It

has acted in the past and will continue to act to correct

deficiencies as and when they occur. This is what the

standing orders of the Court of Appeals and of the District

Court require. The petitioners’ objective—comprehensive

master planning to fix racial balances in all schools—goes

far beyond legal or rational requirements.

24

Aside from their objections to the Miami North-

western feeder plan and the School Board’s tentative con-

struction plan, the petitioners resorted in their Petition

below to a specious percentage game, seeking to show that

the court-approved unitary system has “failed.” As we

explained in our Statement of the Case herein, their list

of schools in which black student percentages have in-

creased is incomplete—and even as to these, there is no

allegation that the School Board in any way caused the

changes. The full picture of grouped and paired schools,

including those later added by School Board action, shows

a working, if not perfect, desegregation process (See Ex-

hibit III to Response filed below, R. 253). Moreover, the

statistical record over the years (Exhibit IV to the Re-

sponse, R. 257), shows no increase in 90-100% black

schools, a large decrease in all-white schools, and a steady

increase in schools enrolling 1-30% black students. This

is hardly evidence of reversion to a dual system.

Petitioners have attempted to extract language from

Keyes v. School District No. 1, Denver, Colorado, 413

U.S. 189, 93 S.Ct. 2686 (1973) as the basis for their

attempt to throw open the entire system to reorganization.

The Keyes case comes nowhere near supporting the peti-

tioners’ radical interpretation.

In Keyes, the Court dealt with a school system never

before tested by judicial scrutiny, and with no history of

segregation by statutory mandate, but found a “purposeful

and systematic program of racial segregation” carried

out over a period of years by the local school board, af-

fecting a substantial portion of the students, schools,

teachers and facilities within the system. Holding this

sufficient to create a presumption that other segregated

25

schooling in the district was not “adventitious”, the Court

remanded for further evidence to determine whether the

school board’s deliberate segregative policies over a decade

rendered the entire district a dual system and thus subject

to the dismantling process and procedures set forth in

Swann and earlier decisions.

The Dade County school system has already under-

gone the dismantling process, and neither the Northwest-

ern feeder plan, nor simple changes in student ratios in

some schools, compare in any way with the factual situa-

tion which the Court found in Keyes. Even the incomplete

quotation used by petitioners (Petition p.18) serves to

refute their attempted analogy, for as we have shown

earlier, the Miami Northwestern feeder plan does not

have “. . . the reciprocal effect of keeping other nearby

schools predominantly white”, since those surrounding

schools have long been integrated. In short, no case law

and no logic suggests that once a school system has been

dismantled and held unitary, the whole system has to

be dismantled all over again—even if the courts below

had found flaws in the feeder plan, or might later find

flaws in the construction projections.

It appears to us that petitioners revealed the weak-

ness of their complaints concerning the feeder plan and

the construction plan, by spending almost half of their

Petition below trying to find ways to portray the school

system as somehow degenerating, or “in jeopardy.” Their

position and their argument are based upon mistaken

preconceptions.

In their preoccupation with racial quotas, petitioners

filed a document, the major premise of which seemed to

26

be that if the student bodies of some schools in the Dade

County school system are increasing in black population,

the system is becoming segregated.

The School Board does not accept the premise that an

increase in black enrollment necessarily creates an un-

desirable situation, or a situation which in and of itself

denies the equal protection of the laws to anyone. It is

of note that the District Court in 1970 stated that a

predominantly black school is desegregated when less than

85 percent of its enrollment is composed of black students.

See Pate, supra, 434 F.2d 1151 at 1175. Of all the 36

schools listed in the Petition below as having increased in

black membership, only one of these schools has a black

enrollment in excess of 85 percent.

The Petition below indicates, and the Board admits,

that some Dade County schools are increasing in black

student population. It is also true that no Dade County

schools are in the process of becoming majority white

schools. This is not a situation where the races are segre-

gating. This is a situation where black student popula-

tion is increasing throughout the schools of the county.

The school system makes no apology for this trend.

Part of the reason for the increased black enrollment

in many of the previously “white” schools is the school

system’s majority-to-minority transfer plan. It is working.

When students have these choices available to them, and

make these choices, it is not reasonable to allege state-

imposed segregation. Part also of the record of increased

black enrollment is the School Board’s demonstrated record

of planning school attendance zones to provide integrated

schools. As Exhibit III to the Response filed below shows

PP seria or

27

(R. 253), the Board has not been content to rest with the

groupings and pairings set by the court, but has added a

number of schools to improve the desegregation process.

While petitioners may feel that a ratio of 25% black

and 75% white students in each and every school through-

out the system is desirable, there simply is no constitu-

tional requirement that this be done, and the imposition

of any particular degree of racial balance is beyond the

power of a district court. Swann, supra; Bradiey v. School

Board of City of Richmond, 462 F.2d 1058 (4th Cir. 1972),

aff'd. per curiam 412 U.S. 92, 93 § Ct. 1952; Spencer v.

Kugler, 326 F.Supp. 1235 (D.N.J., 1971), aff'd. mem.

404 U.S. 1027, 92 S.Ct. 707.

Even in systems never before declared unitary, it is

stated that while school systems should make every effort

to achieve the greatest possible degree of actual desegrega-

tion, the school system must also take into account the

practicalities of the situation. Davis v. Board of School

Commissioners of Mobile, 402 U.S. 33, 37, 91 S.Ct. 1289,

1292 (1971).

Such practical considerations are: the limited useful-

ness of racial quota ratios; secondly, the necessity of

tolerating some one-race schools because minority groups

concentrate in urban areas; thirdly, the logistical problems

inherent in remedial! alteration of attendance zones; and

lastly, the limitations on travel that must be considered

when transportation remedies are employed. Northcross v.

Board of Education of Memphis City Schools, 489 F.2d

15 (6th Cir. 1973), cert. den. 416 U.S. 962 (1974).

The other premise which seems to underlie the Peti-

tion below is that all-black or virtually all-black schools are

28

bad schools. We reject this notion, and we see it, in fact,

as approaching a racist preconception. Obviously, it is

desirable to have mixed student bodies wherever possible,

but where it is not feasible there is no warrant for any

a priori labeling of black schools as inferior.

It is true that the Dade County school system has a

number of one-race or almost-one-race schools. It is also

true that despite these one-race or almost-one-race schools,

the school system has now three times been held unitary

by the Court of Appeals. The important fact is that the

existence of some small number of one-race schools or

virtually-one-race schools within a school system is not in

and of itself a sign of a system which practices segrega-

tion by law. Swann, supra, 91 S.Ct. at page 1281.

This school system, the last time it was challenged,

through the lower courts and to this Court, carried the

Swann burden of showing that these schools were not dis-

criminatory. The number of one-race or virtually-one-race

schools has not been increased, nor is there any allegation

by petitioners that this is so. Accordingly, the Board need

not once again prove that the existence of these schools

is not discriminatory.

If anything is now clear in the law of desegregation,

it is that the elimination of all schools having single or

identifiably one-race student bodies is not required by the

Constitution. Swann said so, and in at least three later

eases this Court has refused to entertain challenges based

upon black student-counting. This very case was the first.

The second was Goss v. Board of Education of Knoxville,

482 F.2d 1044 (6th Cir. 1973), cert. den. 414 U.S. 1171

(1974). The last was Northeross v. Board of Education of

Memphis, supra.

a vara eee at lit

29

Furthermore, petitioners overlook the fact that the

racial composition of the student body is not the sole

criterion for determining whether a constitutional prob-

lem exists. It is true that, where it is possible to identify

a school as a “white school” or a “Negro School” on the

basis of existing policy and practice with regard to faculty,

staff, transportation, extracurricular activities and facii-

ities, there is a prima facie case of violation of constitu-

tional rights. Swann, supra, 91 S.Ct. at 1277.

The Petition filed below, however, mentions none of

the above criteria, but devotes itself almost solely to the

student head-counting.

Petitioners also make the rather curious argument

that because the District Judge has decided to inquire into

the School Board’s tentative Five-Year Construction Plan,

this somehow justifies the assumption that constitutional

defects will be found, and they then proceed to leap to the

conclusion that the only possible remedy could be the new

“total desegregation plan” which they are anxious to

submit. The School Board is perfectly willing to review its

construction planning in detail before the District Court,

but it rejects petitioners’ idee fixe that specific adjust-

ments would not be acceptable, and that only total new

planning could be the solution to any problem. The remedy,

if any is needed, should fit the problem, if any exists.

Rhetoric aside, the statistics show that the Dade Coun-

ty school system is not becoming more segregated. On the

contrary, the system has made substantial steps, above

and beyond those ordered by the courts below, to become

a more integrated system. The system as a whole is well

and going about the business of educating children, while

a BSNS 28 PS RETR REDE NG R TRAST BAINES

30

mindful of its obligation to maintain its unitary status.

Its remaining schools with unmixed student bodies are

well within tolerable limits, and no School Board segrega-

tive action has been shown, much less any reversion to

anything resembling a “dual school system”. With due

respect to the eminent Dr. Finger’s ability and reputation,

there is simply no legal basis here for his comprehensive

planning talents.

Bt Bi i al A i a a b

31

CONCLUSION

The courts below properly saw the Northwestern

feeder plan as it is—a modest effort, neutral in purpose

and effect so far as desegregation is concerned, to correct

a bizarre and fractured student assignment situation. The

District Judge will examine the School Board’s construc-

tion plan, and it remains to be seen whether it is open

to valid criticism.

In any event, flaws in either of these School Board

actions cannot by any stretch amount to a legal predicate

for an entire new dismantling of the whole school system.

The case before the Court is but one more recurrent

reflection of petitioners’ perennial fixation that only rigid

racial balances in all schools can achieve “true” desegrega-

tion. This clearly is not the law, and there is no justifica-

tion for the demand for new hearings, new beginnings, a

Finger plan, and a top-to-bottom redesign of the Dade

County schools to suit petitioners’ theories. The petition

should be denied.

Respectfully submitted,

FRANK A. HOWARD, JR.

1410 N.E. Second Avenue

Miami, Florida 33132

Attorney for Respondent

Dade County School Board

ABI T OMT PTLD EOSIN ei LL $ LL IDL APTLY STL LESS. OLY ERO OO

32

CERTIFICATE OF SERVICE

I hereby certify that true and correct copies of the

above and foregoing Brief in Opposition to Petition for

Writ of Certiorari have been served upon all parties re-

quired to be served, service having been effected by mail,

in accordance with paragraph 1 of Rule 33 of the Rules

of the Supreme Court of the United States, to the follow-

ing named attorneys of record, on the ___ day of June,

1975.

FRANK A. HOWARD, JR.

1410 N.E. Second Avenue

Miami, Florida 33132

ALFRED I. HOPKINS, ESQ. JAMES W. MATTHEWS, ESQ.

c/o A.C.L.U. of Florida 5022 N.W. 7th Avenue

1701 Meridian Avenue Miami, Florida 33127

Miami Beach, Florida 33139

IRMA ROBBINS FEDER and

MAURICE ROSEN, ESQ. RICHARD YALE FEDER, ESQS.

c/o A.C.L.U of Florida c/o A.C.L.U of Florida

16666 N.E. 19th Avenue 110 N. Hibiscus Drive

North Miami Beach, Florida Miami Beach, Florida 33139

CHARLES E. MINER, JR., ESQ. FRED DAVANT, ESQ.

General Counsel Biscayne Building

400 Barnett Bank Building 19 West Flagler Street

Tallahassee, Florida 32304 Miami, Florida 33130

TOBIAS SIMON, ESQ.

1492 South Miami Avenue

Miami, Florida 33130

eh ee LR IIL SPER EG IS ME OIE LT Ee FRAN I SES OE