Brief for the Respondent in Opposition — Boston Home & School Ass'n v. Morgan

In the

Supreme Court of the United States

Ocroser Term, 1975

No. 75-1466

BOSTON HOME AND SCHOOL ASSOCIATION,

PETITIONER

v.

TALLULAH MORGAN, er AL.,

JOHN J. KERRIGAN, er AL.,

MASSACHUSETTS BOARD OF EDUCATION, Er AL.,

RESPONDENTS

ON A PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT

Brief of Respondents Massachusetts Board of Education, et al.,

in Opposition to Certiorari

Francis X. BELLOTTI

Attorney General of Massachusetts

SanpRA L. LYNCH

General Counsel

Massachusetts Board of Education

S. STEPHEN ROSENFELD

MarcoTt BoTsFrorp

Assistant Attorneys General

Department of the Attorney General

One Ashburton Place

Boston, Massachusetts 02108

(617) 727-1020

Attorneys for the Respondents

Massachusetts Board of Education

and Commissioner of Education

BATEMAN & SLADE, INC., BOSTON, MASSACHUSETTS.

Table of Contents

Opinions below

Questions presented

Statement of the case

Reasons for denying the writ

I. Review should be denied because the lower

court’s rejection of the Association’s remedial

theory and related evidence was in accord with

this Court’s decisions, and represents the only

fair and practical result.

A. The lower courts’ refusal to adopt the Asso-

ciation’s remedial theory was mandated by

this Court’s decisions and the practical realities

of the case.

B. Rejection of the Association’s proffered evi-

dence properly followed the lower courts’

refusal to adopt its remedial theory.

C. The lower courts’ refusal to accept the evi-

dence offered by the Association was not in

disregard of the Equal Educational Oppor-

tunites Act of 1974.

II. The district court’s challenged order con-

cerning admissions to the examination schools

does not warrant review.

Conclusion

NO ND W

12

14

15

17

ii TABLE OF AUTHORITIES CITED.

Table of Authorities Cited

CASES

Bee Machine Co. v. Freeman, 131 F. 2d 190 (lst Cir.

1942), aff'd, 319 U.S. 448 (1943) 13

Brinkman v. Gilligan, 518 F. 2d 853 (6th Cir. 1975) 15

Davis v. School Commissioners of Mobile County, 402

U.S. 33 (1971) 8,9

Green v. County School Board of New Kent County,

391 U.S. 431 (1968) 8, 15

Hodgson v. Brookhaven General Hospital, 470 F. 2d

729 (5th Cir. 1972) 13

Keyes v. School District No. 1, Denver, Colo., 413 U.S.

189 (1973) 4, 5, 8, 9,

11, 12, 13 et seq.

Keyes v. School District No. 1, Denver, Colo., 521

F. 2d 465 (10th Cir. 1975), cert. denied, 96 S. Ct.

806 (1976) 8, 9, 11, 13

Milliken v. Bradley, 418 U.S. 717 (1974) 9, 10, 11

Morgan v. Hennigan, 379 F. Supp. 410 (D. Mass.),

aff'd sub nom. Morgan v. Kerrigan, 509 F. 2d 580

(1st Cir. 1974), cert. denied, 421 U.S. 963 (1975) _—_ 3, 4, 5,

8, 9, 11, 12 et seq.

Morgan v. Kerrigan, 509 F. 2d 580 (lst Cir. 1974),

cert. denied, 421 U.S. 963 (1975) 5

TABLE OF AUTHORITIES CITED. iii

Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1 (1971) 8, 9, 10,

11, 15, 17

White v. Higgins, 116 F. 2d 312 (1st Cir. 1940) 13

STATUTES

Civil Rights Act of 1964, Title IV, 42 U.S.C. § 2000c 15

Equal Educational Opportunities Act of 1974, 20 U.S.C.

§§ 1701-1758 14, 15

§ 1701(b) 14

§ 1702(b) 14, 15

§ 1712 14

Mass. Gen. Laws c. 15, § 1G 2

1975 Mass. Acts & Resolves, c. 716 2,13

In the

Supreme Court of the United States

Ocroser Term, 1975

No. 75-1466

BOSTON HOME AND SCHOOL ASSOCIATION,

PETITIONER

v.

TALLULAH MORGAN, Er AL.,

JOHN J. KERRIGAN, er AL.,

MASSACHUSETTS BOARD OF EDUCATION, Er AL.,

RESPONDENTS

ON A PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT

Brief of Respondents Massachusetts Board of Education, et al.,

in Opposition to Certiorari

The respondents Massachusetts Board of Education and

Commissioner of Education (hereafter referred to collectively

as the Board of Education) file this brief in opposition to the

petition for writ of certiorari filed by the Boston Home and

School Association (the Association). The Board of Education

is obligated by state law to see that the Boston School Com-

2

mittee complies with constitutional requirements. Mass. Gen.

Laws c. 15, § 1G. Although a defendant in this case, the

Board was exonerated of any liability by the district court

below and retained in the case to assist with remedies.

The petitioner Association is an agency of the Boston School

Department; its legal fees in this case are paid by the City of

Boston. 1975 Mass. Acts & Resolves, c. 716. It is the elected

city-wide governing body for over 100 local home and school

associations, whose membership is not restricted to or neces-

sarily governed by parents and teachers.

Opinions Below

The opinions below are as stated by Petitioner. Petitioner

did not reproduce the remedial opinion of the district court in

its appendix. Reference to that remedial opinion will be cited

to the appendix to the Boston School Committee's petition for

certiorari, No. 75-1445, as “B.S.C.A.” References to the

record on the Association's appeal to the court of appeals will

be cited as “H.”

Questions Presented

1. Whether the United States Court of Appeals for the

First Circuit erred in affirming the district court’s rejection of

the remedial theory, remedial plan, and related evidence

advanced by the Home and School Association in the remedy

phase of this case.

3

2. Whether the court of appeals erred in holding that the

desegregation plan adopted by the district court was a proper

exercise of its equitable powers.

Statement of the Case

The petitioner Association seeks review of the decision of the

United States Court of Appeals for the First Circuit affirming

decisions of the District Court for the District of Massachusetts

that established a systemwide desegregation plan for the

Boston public schools; rejected a limited plan offered by the

Association; and rejected certain evidence offered by the Asso-

ciation.

On June 21, 1974, the district court issued its decision hold-

ing that the entire Boston public school system was uncon-

stitutionally segregated. Morgan v. Hennigan, 379 F. Supp.

410 (D. Mass), aff'd sub nom. Morgan v. Kerrigan, 509 F. 2d

580 (Ist Cir. 1974), cert. denied, 421 U.S. 963 (1975). There

was no dispute that the school system was characterized by

racial segregation. The question before the district court was

“whether the defendant [School Committee members] have

intentionally and purposefully caused or maintained racial

segregation in meaningful or significant segments of the Boston

public school system, in violation of the Fourteenth Amend-

ment.” Morgan v. Hennigan, 379 F. Supp. at 425. The dis-

trict court answered this question affirmatively after a careful

examination of six principal areas: (1) facilities utilization and

new structures; (2) districting and redistricting; (3) feeder

patterns; (4) open enrollment and controlled transfers; (5)

faculty and staff; and (6) vocational and examination schools.

Id.

4

The School Committee had argued that school segregation

in Boston was an inevitable consequence of segregated housing

patterns and a growing black population. It had further

argued that it simply had adhered to a valid neighborhood

school policy in making student assignments to the system's

schools. Morgan v. Hennigan, 379 F. Supp. at 469. Never-

theless, the district court found that the Committee had, “ with

awareness of the racial segregation of Boston’s neighborhoods,

deliberately incorporated that segregation into the school

system.” Id. at 470. The court also concluded that the

neighborhood school policy was largely fictitious:

As for the defendants’ asserted neighborhood school

policy, findings heretofore made prove that it was so

selective as hardly to have amounted to a policy at all.

Several practices of the defendants were antithetical to a

neighborhood school system: extensive busing, open en-

rollment, multi-school districts, magnet schools, citywide

schools and feeder patterns. Jd. at 473.

It further stated that the districting for elementary schools was

inconsistent with a neighborhood school policy; distance and

safety became factors only when useful to maintain segrega-

tion; and “neighborhood” schools were used only where resi-

dential segregation was firmly entrenched. Id.

The district court considered whether there was “a separate,

identifiable and unrelated section of the school district that

should be treated as isolated from the rest of the district,” as

was required by Keyes v. School District No. 1, Denver,

Colo., 413 U.S. 189, 213 (1973). It made a factual finding

that no section of the city was “separate, identifiable and un-

related.” Morgan v. Hennigan, 379 F. Supp. at 475-76.

Further, the district court found that the defendants did not

5

present sufficient proof to support a finding that the segrega-

tion in any part of the systern did not result from or was not

maintained by purposeful action by the Committee. Id. at

481. Indeed, independent of the reciprocal effects of the

Committee's actions, certain of their practices had a direct

segregative impact on the entire school system. Id. at 482.

Accordingly, the district court held that the entire school

system of Boston was unconstitutionally segregated. Id. The

decision of the district court was affirmed on appeal. Morgan

v. Kerrigan, 509 F. 2d 580 (Ist Cir. 1974), cert. denied, 421

U.S. 963 (1975).

This Court delivered its Keyes opinion on June 21, 1973,

after the main trial on liability in the district court, but before

that court issued its decision on June 21, 1974. The liability

trial was reopened on June 20, 1973, and in March, 1974, the

Committee moved to reopen and present new evidence in light

of Keyes. The district court held a special hearing on the

effect of Keyes on July 13, 1973, at which time then counsel

for the Committee, James St. Clair, Esq., argued that segrega-

tion in Boston, unlike Denver, was due to segregated neigh-

borhood patterns and that the Keyes decision simply extended

doctrine contained in prior decisions by this Court (Tr. 7/13/

73, pp. 42-43).

During the remedial stage of the case the district court per-

mitted the Association to intervene on the condition that it

could not “reopen any questions or issue which has been

decided previously by this court” (H. 63). The Association

presented its own plan to the district court, a plan which

would have continued in effect, with a slight degree of addi-

tional desegregation, the limited racial balance plan imple-

mented under state law and adopted as an interim desegrega-

tion plan by the district court for the 1974-1975 school year.

The Association's plan conceded that at least 75 schools would

remain segregated (i.e., less than 35 percent or more than 75

6

percent white), although the number was likely to be much

higher (H. 77-80, 88-90, 102-08). The district court rejected

the Association’s plan as a matter of law (B.S.C.A. 68), a

decision affirmed on appeal (A. A-22 to A-33).

In support of its plan, the Association made an offer of

certain evidence purporting to show that segregation in Boston

resulted primarily from housing patterns. The district court

refused to admit the evidence on the grounds that the extent

and cause of segregation in schools had been litigated and

decided at the liability stage (H. 162). This finding was

affirmed on appeal (A. A-33).

The desegregation plan ordered into effect by the district

court contains eight community school districts ranging from

40 to 95 percent white (B.S.C.A. 127-57), in a system that is

51 percent white (B.S.C.A. 181). Schools within the districts

may vary from such district compositions by + 25 percent of

the district compositions (B.S.C.A. 180).!_ Thus, the allowable

range for individual schools in the community districts is from

30 to 100 percent white. There is a citywide magnet school

system, ranging from 46 to 56 percent white (B.S.C.A. 181).

The transportation in the plan is not excessive, as claimed by

petitioner. The plan requires 21,000 students to be bused, as

compared with 17,000 students bused under the state racial

balance plan in effect in 1974-1975, and as compared with

30,000 students who were bused or used public transit prior to

desegregation (B.S.C.A. 92, 185). The average distance

travelled is 2.5 miles (B.S.C.A. 184); the average time involved

is between 10 and 15 minutes each way (B.S.C.A. 184).

' For instance, in a district that is 40 percent white, individual schools

may range from 30 to 50 percent white, because 25 percent of 40 = 10

percent.

7

Reasons for Denying the Writ

I. Review SHoutp Be Dentep Because THE Lower Courts’

Rejection Or THe AssociaTIOn’s REMEDIAL THEORY AND

RELATED EvipeNnceE Was IN Accorp Wrrx Tuis Court's

Decisions, AND REPRESENTS THE ONLY Fam AND PRACTICAL

RESULT.

A. The Lower Courts’ Refusal To Adopt The Association’s

Remedial Theory Was Mandated By This Court’s De-

cisions And The Practical Realities Of The Case.

The Association’s principal argument offers once more the

theory it attempted unsuccessfully to advance in the remedy

proceedings before the district court. This theory asserts that

a district court’s responsibility in the remedial phase of a

desegregation case is solely to identify and remedy those

portions of segregation existing in particular schools that are

attributable to the official conduct of school authorities. The

evidence the Association proffered under this theory would

have attempted to show that much of the segregation in the

Boston school system was not caused by actions of the School

Committee, but rather by unrelated residential patterns. As a

result, the Association contends, the district court's systemwide

remedy went too far.

The court of appeals fully considered the merits of the Asso-

ciation’s theory in its opinion (A-23 to A-33). Its rejection of

* The Association has included two additional arguments in its petition.

One relates to the enrollment in the Boston school system's examination

schools (see Pet. 17-18); the other, although inexplicit, appears to concern

the issue of “white flight” (see Pet. 19-21). The issue concerning the exam-

ination schools is discussed infra at 15-17. The question of “white flight” is

presented more clearly in the petition filed by the Mayor of Boston, No. 75-

1441, and the Board of Education respectfully refers the Court to the Board's

brief filed in opposition to that petition for its response to the similar argu-

ment appearing in the Association’s petition.

8

the theory and related evidence is plainly mandated by the

findings of systemwide discrimination in the prior liability

proceedings in this case. Morgan v. Hennigan, 379 F. Supp.

410, 427-29, 433, 435-37, 449-56, 469-473, 481-82 (D. Mass.),

aff'd sub nom. Morgan v. Kerrigan, 509 F. 2d 580 (Ist Cir.

1974), cert. denied, 421 U.S. 963 (1975). It is also required

by the applicable decisions of this Court. Keyes v. School

District No. 1, Denver, Colo., 413 U.S. 189, 203, 213 (1973);

Davis v. School Commissioners of Mobile County, 402 U.S.

33, 37 (1971); Swann v. Charlotte-Mecklenburg Board of

Education, 402 U.S. 1, 16, 21, 28 (1971); Green v. County

School Board of New Kent County, 391 U.S. 431, 437-38

(1968). Finally, the circuit court’s decision is in complete

accord with the Tenth Circuit Court of Appeals’ opinion in

Keyes v. School District No. 1, Denver, Colo., 521 F. 2d 465,

476 (10th Cir. 1975), cert. denied, 96 S. Ct. 806 (1976),

where the defendant Denver School Board raised the identical

argument.

The Association’s argument would require that parties and

courts in desegregation cases engage in a two-step inquiry into

the causes of segregation in each school building in the school

system under scrutiny. The first would occur at the liability

stage of the proceedings, to determine whether the school

system as a whole was unconstitutionally segregated. The

inquiry would then be repeated at the remedial stage, ap-

parently to quantify the amount of unconstitutional segrega-

tion on a school-by-school basis in order to frame an appro-

priate remedy limited solely to the officially segregated por-

tions of segregated school buildings. As the court of appeals

recognized, this approach to the remedy phase of a desegrega-

tion case is “squarely contrary to the remedial principles”

articulated by this Court (A. A-26).

The mandate of “remedy” cases such as Swann, Davis, and

Green is unequivocal: where a school system has been shown

9

to be unconstitutionally segregated and dual in nature, the

responsible school authority (or, upon its default, the district

court) must fashion a remedy that will achieve a unitary

school system with “the greatest possible degree of actual

desegregation, taking into account the practicalities of the situ-

ation.” Davis, supra, 402 U.S. at 37. Thus the ultimate

focus of inquiry at both the liability and remedy stages is not a

particular school or set of schools, but the system taken as a

whole. The focus is identical regardless of whether the un-

constitutional segregation found that the liability stage resulted

from state statutes or policies (as in the South) or from actions

of local school authorities (as in northern systems such as

Boston). See Keyes, supra, 413 U.S. at 213, quoting from

Green, supra, 391 U.S. at 438. There is not the slightest sug-

gestion in any of this Court’s decisions on desegregation

remedies that, once a finding is made of systemwide de jure

segregation, the district court or the parties may then retrace

their steps to inquire into the cause of segregation in each of

the system’s schools. See Keyes, supra, 413 U.S. at 213 and

203; Keyes, supra, 521 F. 2d at 476.

The district court here found that the entire Boston public

school system was unconstitutionally segregated. Morgan v.

Hennigan, supra, 379 F. Supp. at 481-82. As the court of

appeals pointed out in its opinion presently under challenge,

the time for specific inquiry into the causes of segregation in

each of the schools in the Boston school system was then over.

The district court was required to fashion a remedy that

would reach every school in the system (A. A-27 to A-28).

The Association’s reliance on certain isolated phrases from

Swann v. Charlotte-Mecklenburg Board of Education, 402

U.S. 1 (1971), and Milliken v. Bradley, 418 U.S. 717 (1974),

to support its restricted remedial theory is wholly misplaced.

When the excerpts from this Court’s opinion in Swann quoted

at page 11 of the Petition are considered in their proper con-

10

text, it is plain that they refer to the necessary distinction

between comprehensive remedial steps directly and properly

designed to eliminate a dual school system, and more question-

able steps designed to reach other types of racial discrimination

— for example, in housing or employment — that may con-

stitute the underlying and indirect causes of segregation in the

schools; only the latter steps are criticized by the Court. The

Association nowhere suggests, however, that the district court’s

remedial plan attempts to accomplish or even deal with any

problem other than the dismantling of Boston’s unconstitu-

tionally segregated school system.*

Nor does Milliken v. Bradley, supra, aid the Association’s

argument. As stated by the court of appeals (at A. A-30, n.

23), the Milliken decision is entirely consistent with the prin-

ciples set forth in Swann and other remedy cases. The limita-

* The Association also relies (see Pet. 11-12) on language in the Swann

opinion providing that at the remedy stage school authorities may attempt to

justify the continued existence of some segregated schools in their proposed

remedial plan by proving that the segregation is not the result of past or

present official discrimination. 402 U.S. at 26. The court of appeals

thoroughly disposed of this argument in its opinion (A. A-28, n. 21) by

pointing out that the cited language in Swann has no application in a case

such as this where the remedy proceedings are preceded by a full trial on

liability:

In Swann, the school authorities were afforded the opportunity to

satisfy this burden [ of overcoming a presumption that schools remaining

segregated in a proposed desegregation plan are the result of official

discrimination] at the remedy stage of the proceedings because there

had been no trial on liability. Here, of course, the school authorities

have had their chance.

For the reasons stated by the court of appeals, the Association's reliance on

this portion of the Swann opinion is unjustified.

11

tion Milliken places on a district court’s equity powers in

fashioning desegregation remedies relates solely to its authority

to order a cross- or inter-district remedy upon a finding of

unconstitutional segregation in a single school district. The

Boston school system, of course, constitutes only one district.

Because the desegregation plan below affected only the Boston

school system, the Milliken limitation is inapplicable. See

Keyes, supra, 521 F. 2d at 476-77, n. 8.

Not only is the rejection of the Association’s remedial theory

fully in accord with prior decisions of this Court, it also repre-

sents the only practical decision that could have been reached.

Contrary to petitioner’s assertions, the district court held in the

liability stage of this case that the School Committee had not

followed a genuine neighborhood school policy and had con-

structed new schools at locations designed to preserve the

existing segregated patterns of residential neighborhoods.

Morgan v. Hennigan, supra, 379 F. Supp. at 423, 427-29,

469-74. This Court has recognized the segregatory impact

that such actions by school officials can have on residential

patterns. Keyes, supra, 413 U.S. at 201-203 and 211-213;

Swann, supra, 402 U.S. at 20-21. In light of the proven

history and character of the segregatory actions taken by the

School Committee in governing the Boston school system, the

circuit court was clearly correct in concluding that the task of

“delineat[ing] the effect of illegal state action on the school

populations in most of the particular schools,” as suggested by

the Association (Pet. 8-9), would be “awesome” if not impos-

sible (A. A-29).

Finally, troubling inequities would arise upon acceptance of

the Association’s remedial theory. As the court of appeals

described, such a remedy would fail to vindicate the rights of

individual students in the Boston public schools (A. A-29). In

addition, implementation of the Association’s remedy would

engage the federal courts in “planning continued segregation

12

and then perpetuating the community and administrative atti-

tudes and psychological effects which desegregation should

assuage” (A. A-30). The Association does not, and could not,

deny that its remedy might well have the effects described by

the court of appeals. In these circumstances it is clear that

the court was correct in affirming the district court’s refusal to

consider the Association’s remedial theory. The same consi-

derations of fairness militate against further review of the

lower courts’ decisions by this Court.

B. Rejection Of The Association’s Proffered Evidence Prop-

erly Followed The Lower Courts’ Refusal To Adopt Its

Remedial Theory.

Because the rejection by the courts below of the Associa-

tion’s remedial theory was correct as a matter of law, there

was no error in the district court’s refusal to admit the evi-

dence offered by the Association in support of its theory. Prin-

ciples of res judicata and the law of the case warranted the

exclusion of the Association’s evidence as an attempt to relit-

igate the issue of the School Committee’s responsibility for the

segregated character of the Boston public schools (A. 32). The

evidence was also properly excluded on the grounds that it

went outside the scope of the order allowing the Association to

intervene, and that it was an attempt by an agent of the

Committee not to be bound by findings against the Com-

mittee. Such procedural matters are not worthy of this

Court’s review.

Contrary to the Association’s contention, the timing of this

Court’s Keyes decision is irrelevant. In its liability decision

the district court found systemwide discrimination based on

systemwide evidence; it relied on the Keyes burden-shifting

presumptions only in regard to the unconstitutional segregation

found in Boston’s examination and vocational schools. Morgan

v. Hennigan, supra, 379 F. Supp. at 481. Moreover, the Associ-

13

ation simply presented an erroneous view of the record in this

case when it suggests that Keyes was not available to the Com-

mittee or its counsel during those proceedings (compare Pet.

15-16 with A. A-31, A-32 and n. 26). The Association also

errs in suggesting that the validity of applying the Keyes pre-

sumptions in the liability stage of this case would not have

been a proper issue for appeal had the Committee chosen to

raise it (compare Pet. 16, n. 10, with A. A-32, n. 26). On

the actual record of this case, the court of appeals was clearly

correct in affirming the district court’s decision to refuse intro-

duction of the proffered evidence. As the court of appeals

stated, its decision was required by settled principles of res

judicata or preclusion. See, e.g., White v. Higgins, 116 F. 2d

312, 317-18 (1st Cir. 1940); Bee Machine Co. v. Freeman, 131

F. 2d 190, 192-93 (Ist Cir. 1942), aff'd, 319 U.S. 448 (1943);

Hodgson v. Brookhaven General Hospital, 470 F. 2d 729, 730

(5th Cir. 1972). See also Keyes, supra, 521 F. 2d at 473 (evi-

dence pertaining to issues of liability resolved in this Court’s

Keyes decision held inadmissible).

The proffered evidence also goes outside the scope of the

Association’s permitted intervention, which prohibited the

Association from relitigating issues decided at the trial on lia-

bility (H. 63). The reasonableness of such a limitation is but-

tressed by the fact that the Association is an agency of the

Boston School Department. 1975 Mass. Acts & Resolves, c.

716. Further, the evidence the Association sought to intro-

duce is remarkably similar to evidence presented by the Com-

mittee at trial (see liability trial exhibit and transcript refer-

ences set out in the record below at H. 1-62).

In sum, this Court should decline to review the lower courts’

decision to reject the Association’s evidence where the sole pur-

pose of this introduction was to reopen issues previously put to

rest after full adversary proceedings. The courts’ rejection was

based on established, time-honored rules of finality.

14

C. The Lower Courts’ Refusal To Accept The Evidence

Offered By The Association Was Not In Disregard Of The

Equal Educational Opportunities Act Of 1974.

The Association’s further reliance on the Equal Educational

Opportunities Act of 1974, 20 U.S.C. §§ 1701-1758 (par-

ticularly § 1712), to support the introduction of the evidence it

offered is misplaced. Section 1712 provides that a court may

“impose only such remedies as are essential to correct par-

ticular denials of equal educational opportunity or equal pro-

tection of the laws.” It contains no statutory requirement as

argued by petitioner (Pet. 14) that at the remedy stage a

district court is to review the scope of the “constitutional

wrong” at issue or to define the “particular denial” of equal

protection needing a remedy without regard to its findings at

the liability stage.

The Association’s argument is based on an erroneous reading

of the Act. The explicit purpose of the Act is to “specify

appropriate remedies for the orderly removal of the vestiges of

the dual school system.” 20 U.S.C. § 1701(b). See id., §

1702(b). It does not address in any manner the scope of

constitutional violations that require a desegregation remedy.

Rather, as the court of appeals stated, it is intended to channel

and direct the remedy fashioned by the district court after the

court has determined that denials of equal protection exist in a

school system and has identified their parameters (A. A-17 to

A-18).

When the section of the Act relied on by the Association is

read in light of the Act’s governing purpose, it is clear that the

“particular denials of equal educational opportunity or equal

protection of the laws” refer to the constitutional violations

already found by the district court. In this case the district

court found that the entire Boston public school system was

unconstitutionally segregated. Morgan v. Hennigan, supra,

15

379 F. Supp. at 481-82. The “particular denial” of equal

protection, therefore, was systemwide and the district court

was constitutionally required to effect a systemwide remedy.

Keyes, supra, 413 U.S. at 203; Swann, supra, 402 U.S. at 15-

16; Green, supra, 391 U.S. at 438. The court of appeals

correctly observed that the Act explicitly disclaims any inten-

tion of diminishing or modifying a district court’s authority

and responsibility to meet this constitutional obligation (A.

A-17). See 20 U.S.C. § 1702(b).

The court of appeals’ application and construction of the

Equal Educational Opportunities Act of 1974 in this case was

mandated by the clear provisions of the statute itself and

follows this Court’s analysis of a similar statute earlier passed

by Congress. See Swann, supra, 402 U.S. at 17-18 (Title IV

of the Civil Rights Act of 1964, 42 U.S.C. § 2000c). Further-

more, the court’s interpretation of the Act is in complete

accord with that adopted by the Sixth Circuit Court of

Appeals. Brinkman v. Gilligan, 518 F. 2d 853, 856 (6th Cir.

1975). Thus there is neither an important, unsettled question

of federal law presented by the Act nor a conflict in its inter-

pretation among the circuits that might render this aspect of

the decision an appropriate subject for Supreme Court review.

Accordingly, review should be denied.

II. THe Districr Court’s CHALLENGED ORDER CONCERNING

ADMISSIONS To THE EXAMINATION SCHOOLS

Does Not WarRANT REVIEW.

The Association also asks this Court to review the interim

order of the district court which required, for the 1975-1976

school year, that at least 35 percent of the entering seventh

16

and ninth grade classes of Boston’s three examination schools‘

be black or hispanic students. By virtue of the Memorandum

and Orders Modifying Desegregation Plan issued by the district

court on May 3, 1976, however, the original interim order has

become moot. Review by this Court is therefore unwarranted.

The district court’s May 3 orders provide that, for the 1976-

1977 school year, all students entering the examination schools

for the first time must score in or above the 50th percentile on

either of two ranked lists of students who took the Secondary

School Admission Test (SSAT).5 Applying this admissions

formula to the ranked lists, the small number of students

entering the existing ninth grade class will be composed of at

least 35 percent black or hispanic students; the entering

seventh grade class, however, will have only 26 percent black

or hispanic students. Thus the “flat 35% requirement” in the

district court’s order which the Association attacks (Pet. 17)

will no longer be operative.‘ The Association’s request for

review is therefore obsolete.

Even if the district court's recent orders on the examination

schools have not rendered the court's original interim order

moot, they unquestionably bear out the wisdom of the court of

appeals’ conviction that the district court would continue to

“monitor the progress of desegregation in the examination

schools and [would] adjust its future orders to assure the

* The three schools are Boston Latin School, Boston Latin Academy and

Technical High School. They represent the elite schools in the Boston

system, offering students greater college and career opportunities than do the

other schools. See Morgan v. Hennigan, supra, 379 F. Supp. at 466.

* One list ranks applicants solely by SSAT scores; the other ranks by SSAT

scores combined with grade point average.

* In addition, it should be noted that the reliance the new orders place on

SSAT scores satisfies the Association's apparent objections concerning the

district court's original rejection of a remedy based on these scores (Pet. 17-

18).

17

continued vitality of these schools as elite institutions” (A.

A-44). The orders demonstrate that desegregation of the

examination schools is a flexible, ongoing process which this

Court should not interrupt by reviewing a remedial order that

will soon be outdated. Rather, the Court should continue to

rely on “the informed judgment of the district court{ ] in the

first instance” to continue the same careful process of review

and adjustment which has characterized its treatment of the

examination schools to date. Swann, supra, 402 U.S. at 28.

Conclusion.

For the reasons stated above, the Boston Home and School

Association's petition for a writ of certiorari should be denied.

Respectfully submitted,

FRANCIS X. BELLOTTI

Attorney General of Massachusetts

SANDRA L. LYNCH

General Counsel

Massachusetts Board of Education

S. STEPHEN ROSENFELD

MARGOT BOTSFORD

Assistant Attorneys General

Dated May 17, 1976.

Department of the Attorney General

One Ashburton Place

Boston, Massachusetts 02108

(617) 727-1020