Opposition Brief — Stone v. Prince George's County Board of Education

OcToBER TERM, 1992 _

DEBORAH A. STONE, e¢ al.,

‘ Petitioners,

PRINCE GEORGE’S COUNTY BOARD OF EDUCATION,

and

SYLVESTER J. VAUGHNS, JR., et al.,

Respondents,

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF IN OPPOSITION OF RESPONDENTS

SYLVESTER J. VAUGHNS, JR., ET AL., AND

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE,

PRINCE GEORGE’S COUNTY CHAPTER, ET AL.

GEORGE H. MERNICK, III

DANIEL B. KOHRMAN *

PAUL A. MINORINI

HOGAN & HARTSON

555 Thirteenth Street

Washington, D.C. 20004

(202) 687-8271

Counsel for Respondents

Sylvester J. Vaughns, et al.,

and National Association for

the Advancement of Colored

People, Prince George’s

County Chapter, et al.

* Counsel of Record

eg WILSON - Eras Printing Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

COUNTERSTATEMENT OF QUESTION PRESENTED

Whether any unresolved issue of federal law is pre-

sented by the Court of Appeals’ affirmance of factual

findings and discretionary judgments of the district court

based squarely on this Court’s ruling in Freeman v. Pitts,

112 8S. Ct. 1430 (1992), which approved the adoption of

desegregation measures in an area of public school opera-

tions that is free of discrimination, because of the im-

portance of such measures to eliminating vestiges of seg-

regation in other areas of school operations, and which

cited the district court’s decision in this case as a valid

example of that approach?

(i)

TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF QUESTIONS PRE-

EES EE i

I Rr OD on cccccccnececcecccnccnscccscosness iv

a cespanhnawouenvnwasecnen 1

COUNTERSTATEMENT OF CASE ......00000000.0.000000... 2

REASONS FOR DENYING WRIT ............................... 6

I. THE COURT OF APPEALS APPLIED CLEAR

LEGAL PRINCIPLES STATED BY THIS

COURT IN FREEMAN v. PITTS AND THUS,

THERE ARE NO LEGAL CONFLICTS FOR

THE COURT TO RESOLVE ........................ F 6

II. THE PETITION FAILS TO RAISE ANY

SERIOUS QUESTION REGARDING THE

VALIDITY OF THE COURT OF APPEALS’

RELIANCE ON FREEMAN vv. PITTS

RATHER THAN THE COURT’S RULINGS

IN WYGANT AND SPANGLER ..... x Bo ealeh A as Some 10

a ccupthaemmtaninunandesesecie 12

(iii)

iv

TABLE OF AUTHORITIES

CASES: Page

Bradley v. Richmond School Bd., 382 U.S. 103

er eee 7

City of Richmond v. J.A. Croson, 488 U.S. 469

III ict td cis dr cna cachet nga eaaesenaneenaencaaaelmein 11

Freeman v. Pitts, US. —, 112 S. Ct. 1430

RaNNNIEIY 10-5 arincctocabu. cect tedsicesekaneionamece te naemataces aire _... passim

Green v. New Kent County School Bd., 391 U.S.

430 (1968) __.... os sisdouiencdananleusasdideeeLa naam 7,11

Goodman v. Lukens Steel Co., 482 U.S. 656

5: RRC SRP OUR ENT nP an CT Ee Te eNO ET OPN 9

Graver Tank & Mfg. Co. v. Linde Air Products

6 et os Rk | Ree IT eC 9

NCAA v. Bd. of Regents, 468 U.S. 85 (1984)... 9

Pasadena City Bd. of Educ. v. Spangler, 427 U.S.

SE EE inetcccatintcndy etna ardmcinianiectasesiaace 10

Rogers v. Lodge, 458 U.S. 613 (1982) —....0000... 9

Singleton v. Jackson Municipal Separate School

Dist., 419 F.2d 1211 (5th Cir. 1969) ..... Sars 9

Stone v. Prince George’s County Bd. of Educ., No.

91-2127 (4th Cir. Sept. 28, 1992) (per curiam) .. 1

Swann v. Charlotte-Mecklenburg Bd. of Educ.,

I as IRD cacereccdiceactrhaacesealtinsthitisncnpibetncenton 11

Tiffany Arts, Inc. v. United States, 469 U.S. 310

f ) TERRE Rie ihe RN Backer oN mieten 9

United States v. Ceccolini, 4835 U.S. 268 (1978). 9

Vaughns v. Bd. of Educ. of Prince George’s

County, 355 F. Supp. 1034 (D. Md. 1972); 355

F. Supp. 1038 (D. Md. 1972), remanded for

further proceedings on other grounds, 468 F.2d

894 (4th Cir. 1972) ; 355 F. Supp. 1051 (D. Md.

1972), aff'd, No. 73-1024 (4th Cir. Jan. 23,

1973), cert. denied, Eller v. Bd. of Educ. of

Prince George’s County, 410 U.S. 910 (1973). 2.3

Vaughns v. Bd. of Educ. of Prince George’s

County, 574 F. Supp. 1280 (D. Md. 1983), aff'd,

758 F.2d 983 (4th Cir. 1985) ......... 3, 5

Vaughns v. Bd. of Educ. of Prince George’s

County, 742 F. Supp. 1275 (D. Md. 1990) ........... iy.

ll ——————————

v

TABLE OF AUTHORITIES—Continued

Page

Wygant v. Jackson Bd. of Educ., 476 U.S. 267

EAI tits cicsks Sedeteessbtcadsiahinsriehide denies Saas ae ee eee 10, 11

CONSTITUTIONS: |

ie fe D4 een ae 4

STATUTES:

42 U.S.C. §§ 2000e, et seq. (1982)... 4

RULES:

IND Satins Wes IIE, soeecsekkies ce 6

IN THE

Suprenve Court of the United States

OCTOBER TERM, 1992

No. 92-786

DEBORAH A. STONE, et al.,

; i Petitioners,

PRINCE GEORGE’S COUNTY BOARD OF EDUCATION,

and

SYLVESTER J. VAUGHNS, JR., et al.,

Respondents,

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF IN OPPOSITION OF RESPONDENTS

SYLVESTER J. VAUGHNS, JR., ET AL., AND

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE,

PRINCE GEORGE’S COUNTY CHAPTER, ET AL.

OPINIONS BELOW

The decision below by the Court of Appeals, Stone v.

Prince George’s County Bd. of Educ., No. 91-2127 (4th

Cir. Sept. 28, 1992) (per curiam), is unreported. The

district court’s judgment is recorded in a reported deci-

sion, Vaughns v. Bd. of Educ. of Prince George’s County,

742 F. Supp. 1275 (D. Md. 1990), and in several sub-

sequently issued, unreported orders, see Pet. App. 8-21.

2

COUNTERSTATEMENT OF THE CASE

Petitioners ask this Court to review a decision affirming

a remedial order issued by the federal trial judge who

has supervised this schoo] desegregation case since its

inception. In particular, Petitioners challenge one com-

ponent of a race-conscious faculty assignment policy the

district court approved as “critical” to the overall success

of its comprehensive plan to eliminate the vestiges of

segregation in the Prince George’s County, Maryland

(the “County”) Public Schools. Pet. App. 6; 62. The

United States Court of Appeals for the Fourth Circuit

upheld that judgment based on principles announced in

Freeman v. Piits, U.S. , 112 S. Ct. 1430 (1992),

including this Court’s specific approval of the district

court’s reasoning that the various components of its de-

segregation remedy are “interdependent upon and inter-

act with one another.” Pet. App. 6. The Petition fails

to justify a grant of certiorari to reconsider the Court

of Appeals’ reliance on Freeman.

Respondents Sylvester J. Vaughns, Jr., et al., initiated

this case in 1972 alleging, inter alia, discrimination in

the assignment of both faculty and students within the

County schools. Pet. App. 28. Later that same year, a

stipulation entered into by the parties recognized that

“many of the school facilities operated by the defendant

{Prince George’s County School Board (the ‘“Board’’) |

which have racially disproportionate student bodies also

have racially disproportionate faculties.” Jd. The parties

also acknowledged the Board had in place a faculty de-

segregation policy, which it first adopted in 1971 in order

to further desegregation of the County schools. Jd. 26-27,

28-29, 57-58. In a decision this Court ultimately declined

to review, the district court granted summary judgment

in favor of the plaintiffs. Vaughns v. Bd. of Educ. of

Prince George’s County, 355 F. Supp. 1034 (D. Md.

1972); 355 F. Supp. 1038 (D. Md. 1972), remanded for

further proceedings on other grounds, 468 F.2d 894 (4th

3

Cir. 1972); 355 F. Supp. 1051 (D. Md. 1972), aff'd, No.

73-1024 (4th Cir. Jan. 23, 1973), cert. denied, Eller v.

Bd. of Educ. of Prince Georges County, 410 U.S. 910

(1973). The district court did not order additional fac-

ulty desegregation measures, however, because “a plan

for faculty |integration was| already in existence.” 355

F. Supp. at 1037 n.8; see Pet. App. 29.!

After relinquishing active supervision of this case in

1976, the district court granted a 1981 motion to reopen

the litigation filed by the Vaughns’ plaintiffs, and con-

solidated it with the separate action filed by the National

Association for the Advancement of Colored People, Prince

George’s County Chapter, ef al. Following a lengthy trial

on these claims, the district court held the County schools

were not unitary, and ordered substantial additional re-

lief. Although the district court ruled the County schools

were free of faculty segregation and declined to approve

addtional faculty desegregation measures requested by

the co-plaintiffs, the court made clear that ongoing faculty

desegregation efforts should continue. Vaughns v. Bd. of

Educ. of Prince George’s County, 574 F. Supp. 1280, 1377

(D, Md. 1983), affd, 758 F.2d 983, 988 (4th Cir. 1985)

(“Vaugins IT’); see Pet. App. 58-59.

The faculty assignment policy that was begun in 1971

provided for the dismantling of segregated faculties in

the County schools; since 1973, however, the sole purnose

and operation of the policy has been limited to the avoid-

ance of reestablishing racially identifiable schools, due

to the racial identifiability of their faculty. See Pet. App.

3-5; see also id, 25-28, 32-44. Petitioners, who are teach-

ers In the County schools, oppose a provision of the policy

that applies to situations in which a school must lose one

or more faculty for reasons unrelated to race—e.g., de-

clining enrollment, or budget cuts, and in which the re-

1 Thus, Petitioners’ sweeping assertion that “faculty assignment

was not litigated in [the] desegregation lawsuit filed... in 1972,”

Pet. 4, is incorrect.

4

sulting transfer of the faculty member with the least

seniority would shift the racial composition of a school’s

faculty to a point where it would become racially identi-

fiable. Jd. 38-44. In that event, another teacher, whose

departure would not have such a segregative effect, is

selected for involuntary transfer to another school. /d.

42. Between 1971 and 1990, this mechanism resulted in

thirty-five transfers in a school system with approxi-

mately 6,000 teachers. Pet. 9-10; Pet. App. 44, 93-95.

Petitioners filed a complaint in 1989 asserting the in- :

voluntary transfer provisions of the faculty assignment

policy violated the Equal Protection Clause of the Four-

teenth Amendment to the U.S. Constitution. Earlier that

year, the United States filed a complaint asserting the

same provisions violated Title VII of the Civil Rights Act

of 1964, 42 U.S.C. $$ 2000e, et seg. (1982). See Pet; App.

23-24.

The district court rejected Petitioners’ assertions that

the faculty assignment policy was somehow independent

of and unconnected to the Board’s ongoing efforts to de-

segregate the school system and thereby to satisfy its

constitutional obligations. The district court explained:

|The Board’s] faculty assignment policy constitutes

an integral part of [its] effort to meet its continuing

duty to attain unitary status. Had the Board de-

faulted on that responsibility and failed to ensure

that its faculty assignment practices did not thwart

attainment of that goal, this Court would have been

obligated to issue an appropriate order requiring cur-

ative action by the Board. Moreover, had the Board

attempted to rescind its current faculty assignment

policy, this Court would have been empowered to

order the Board to reinstate an acceptable faculty

assignment policy.

Pet. App. 59-60. The district court also found that the

faculty assignment policy remains a key element of its

current remedy, which relies heavily on magnet schools

5

to achieve voluntary desegregation of student enrollments.

See Vaughns Il, 574 F. Supp. at 1877, aff'd, 758 F.2d at

988. In rejecting Petitioners’ demands that the faculty

assignment policy be discarded, the court found:

[t]he avoidance of racially identifiable faculties is

critical to a desegregation plan like that of Prince

George’s County which relies heavily on magnet

schools. The success of magnet programs, after all,

depends on parental choices which in turn may be

shaped by perceptions of the characteristics of faculty.

Curtailing the Board’s power with respect to fac-

ulty assignments might result in consequences be-

yond the resegregation of faculties and could well

threaten the success of the overall school desegrega-

tion program.

Pet. App. 62. As a result, the district court reaffirmed

its commitment to continued implementation of faculty

desegregation measures “while it acknowledged that there

was no need to continue assignment of faculty by race

so far as the faculty itself was concerned.” Id. 6.

Although the district court ruled the faculty assign-

ment policy was not “voluntary,” Pet. App. 70. the court

ordered changes in the policy to ensure it was “narrowly

tailored” to achieve compelling goals, as this Court has

held the Constitution requires of voluntary race-conscious

remedies. /d. 94-95. The district court subsequently is-

sued an order approving specific modifications, to be

applied retroactively. Jd. 15-21;-see Pet. 10. These modi-

fications also satisfied the United States’ objections based

on Title VII. See id. 96-105.

Petitioners appealed the district court’s final order;

the United States did not. After the Court of Appeals

held oral argument, this Court issued its decision in Free-

man v. Pitts. The Fourth Circuit then asked for addi-

tional briefing in this case on the impact of Freeman,

which cited the district court’s July 1990 opinion with ~

approval. See 112 8. Ct. at 1449. Thereafter, the Court

6

of Appeals affirmed, basing its decision largely on the

same principle for which Freeman had cited the district

-court’s opinion. Petitioners did not seek en banc review

in the Court of Appeals.

REASONS FOR DENYING THE WRIT

The Petition presents no basis for this Court to recon-

sider the legal rulings of the lower courts in this case,

which are completely consistent with this Court’s recent

decision in Freeman v. Pitts. Petitioners also offer this

Court no reason to stray from its traditional refusal to

review findings of fact and discretionary judgments, up-

held.on appeal, particularly where, as here, they involve

supervision of a complex equitable remedy by a trial

judge who has supervised the case through two decades.

This Court previously has cited with approval the

same findings and reasoning of the district court the Pe-

titioners now ask the Court to grant certiorari to review.

See Freeman, 112 S. Ct. at 1449. Plainly, this matter

raises no special or important issues of federal law for

this Court to address. See Sup. Ct. R. 10.1.

I. THE COURT OF APPEALS APPLIED CLEAR

LEGAL PRINCIPLES STATED BY THIS COURT

IN FREEMAN v. PITTS AND THUS, THERE ARE

NO LEGAL CONFLICTS FOR THE COURT TO

RESOLVE

_ This Court’s decision in Freeman v. Pitts directly ad-

dressed and resolved the very issue Petitioners now seek

to have this Court review. Indeed, the Court’s reasoning

in Freeman is based in part on the district court’s reso-

lution of the questions raised by the Petition. As a re-

sult. the Court of Appeals made Freeman the principle

focus of its decision. Remarkably, however, Petitioners

ignore the Freeman Court’s approving citation of the dis-

trict court’s analysis, the Fourth Circuit’s affirmance of

that same analysis, and the Court of Appeals’ reliance on

a

7

Freeman in other respects. See Pet. App. 5-7. These

omissions are particularly striking in light of the Court

of Appeals’ specific request for separate briefing on the

relevance of Freeman to this case. Petitioners’ unwilling-

ness to face these issues cannot change the fact that this

case presents settled legal questions unworthy of recon-

sideration by this Court.

In Freeman, this Court held that it is within the

discretion of a federal district court to end desegrega-

tion measures that may no longer be necessary in one

area of public school operations, where no vestiges of

Segregation remain, before freeing a school district from

its jurisdiction altogether. Freeman, 112 S. Ct. at 1445-

46. The Court further ruled that in some instances, de-

Segregation measures may be necessary in an area of

school operations that is free of discrimination in order

to ensure the success of related measures designed to

eliminate lingering vestiges of segregation in other areas

of school operations. Jd. at 1449. The Court observed it

had “long recognized that the Green factors”—areas of

school operations that must be freed of the vestiges of

Segregation, see Green v. New Kent County School Bd.,

391 U.S. 430, 436 (1968)—“may be related or interde-

pendent.” Freeman, 112 S. Ct. at 1449. That is,

two or more Green factors may be intertwined or

synergistic in their relation, so that a constitutional

violation in one area cannot be eliminated unless the

judicial remedy addresses other matters as well. We

have observed, for example, that student segregation

and faculty segregation are often related problems.

‘citations omitted]... . As a consequence, a con-

tinuing violation in one area may need to be addressed

by remedies in another. See, for example, Bradley v.

Richmond School Bd., 382 U.S. 103, 105 (1965) (per

curiam) . . .; Vaughns v. Board of Education of

Prince George’s County, 742 F. Supp. 1275, 1291 (D.

Md. 1990) (“|T|he components of a school desegre-

gation plan are interdependent upon and interact with

8

one another so that changes with respect to one com-

ponent may impinge upon the success or failure of

another’).

Id. See also Pet. App. 52-53 (discussing this Court’s

rulings -+ecognizing the importance of faculty desegrega-

tion measures to successful desegregation of student as-

signments). Petitioners offer no reason for the Court to

question these clear principles of school desegregation

law.

Based on Freeman, the Court of Appeals upheld the

district court’s approval of the faculty assignment policy

as a vital measure related to other court-approved deseg-

regation efforts in the County Schools. Pet. App. 6-7.

The Court of Appeals also cited Freeman for the propo-

sition that the district court had discretion to approve

the faculty assignment plan despite its finding that the

County schools were unitary with respect to faculty. Pet.

App. 4-5, 6-7. Petitioners advance no grounds for the

Court to grant certiorari to reconsider these legal rulings.

The Petitioners also fail to present any basis for the

Court to review the Fourth Circuit’s affirmance of “find-

ings of the district court,” that it characterized as

“largely factual and . . . not clearly erroneous,” Pet.

App. 6-7, to the effect “that the racially based faculty as-

signment plan was critical to the desegregation plan of

Prince George’s County.” /d. 6. The Court of Appeals

specificaliy sustained the district court’s findings that the

absence of the challenged policy could leave the Board

and the court with “the sole option of altered student as-

signment policies,’ which might “well doom the Board’s

pursuit of unitary status to failure.” Jd.

* The Fourth Circuit also held, and Petitioners do not dispute,

that the district court’s “findings . . . are adequate under Freeman,”

even though the court’s orders at issue pre-dated Freeman. Pet.

App. 7.

9

Petitioners ask this Court to depart from its tradi-

tional role as a “court of law, ..., rather than a court

for correction of errors in fact-finding.” Goodman v.

Lukens Steel Co., 482 U.S. 656, 665 (1987). Because it

is a court of law, this Court “eannot undertake to review

concurrent findings of fact by two courts below in the

absence of a very obvious and exceptional showing of

error.” Goodman v. Lukens Steel Co., 482 U.S. 656, 665

(1987), quoting Graver Tank & Mfg. Co. v. Linde Air

Products Co., 336 U.S. 271, 275 (1949). Petitioners

have failed to make such an “exceptional showing of

error,’ and therefore, 2 decision to review the lower

courts’ rulings would be inconsistent with this Court’s

“traditional deference to the ‘two court rule.’” United

States v. Ceccolini, 435 U.S. 268, 273 (1978) (citation

omitted) .*

Petitioners’ principal legal assertion, that the Court

of Appeals’ decision conflicts with other federal appellate

rulings, Pet. 11, is baseless. Even if Petitioners’ expan-

sive interpretations of Singleton v. Jackson Municipal

Separate School Dist., 419 F.2d 1211 (5th Cir. 1969),

and subsequent Fifth Circuit cases, were valid, it could

not jusitfy the Court’s reconsideration of its own recent,

unambiguous, and contrary holdings in Freeman. See

112 S. Ct. at 1449. Likewise, the Petition refers to a

non-existent split among the federal appellate courts on

the issue “whether nonunitariness in one facet of a school

3 See also, e.g., Tiffany Arts, Inc. v. United States, 469 U.S. 310,

317-18 n.5 (1985) (noting “reluctance to disturb findings of fact

concurred in by two lower courts”); NCAA v. Bd. of Regents, 468

U.S. 85, 98 n.15 (1984) (Court accords “great weight to a finding

of fact which has been made by a district court and approved by

a court of appeals”); Rogers v. Lodge, 458 U.S. 613, 623 (1982)

(same).

*The chailenged findings of fact are even less appropriate for

review in this Court than ordinarily would be the case, because

they were made by a trial court judge who has had continuing

supervision over the Vaughns litigation since 1972.

10

district (e.g., student assignments) justifies race-

conscious remedies in other facets (e.g., teacher assign-

ments).”” Pet. 13. Petitioners apparently would have

this Court pretend it never decided Freeman, which

clearly resolves this issue.

II. THE PETITION FAILS TO RAISE ANY SERIOUS

QUESTION REGARDING THE VALIDITY OF THE

COURT OF APPEALS’ RELIANCE ON FREEMAN

v. PITTS RATHER THAN THE COURT'S RULINGS

IN WYGANT AND SPANGLER

Without identifying any flaw in the Fourth Circuit’s

reliance on Freeman v. Pitts, Petitioners urge this Court

to grant certiorari in order to apply Pasadena City Bd.

of Educ. v. Spangler, 427 U.S. 424 (1976) and Wygant

v. Jackson Bd. of Educ., 476 U.S. 267 (1986) to this

case. Petitioners’ request is wholly unfounded because

neither of these two precedents is apposite.

First, Petitioners fails to show how or why Spangler

bars the Court of Appeals’ reliance on Freeman v, Pitts,

or to address the district court’s careful analysis of

Spangler’s inapplicability to this case. See Pet. App.

60-61. That analysis centered on the fact that Spangler

involved circumstances very different from those at issue

in Prince George’s County. Unlike this case, in which

the Board was expected to make progress toward unitary

status one “step at a time” and to “submit ... plans by

definition incomplete at inception,’*® Spangler involved

a remedial plan that achieved desegregated student en-

roliments immediately, upon implementation; for that

reason, the Court condemned an ongoing requirement of

“no majority of any minority” in any school. 427 U.S.

at 435.

Petitioners’ suggestion that this Court must grant cer-

tiorari in order to preserve Spangler’s prohibition

5 See Pet. App. 61 (in this case, “|f]rom the inception ... the

parties understood and accepted that the plan was subject to

modification and monitoring’).

11

against measures designed to ensure a fixed level of

racial balance “in perpetuity,” Pet. 15, is frivolous. The

involuntary transfer provisions, as modified by the dis-

trict court, see Pet. 9-10, are plainly flexible. Petition-

ers’ insistence—unaccompanied by any analysis—in de-

scribing them as “rigid racial ratios’ does not make

them so, or justify this Court’s review of such a question

of fact. Moreover, the district court plainly views its

desegregation plan—including the faculty provisions—

“not as a permanent measure, but rather as a temporary

aid to the eventual achievement of unitary status which,

hopefully, will occur in the near future.” Pet. App. 103.

The Court also should decline Petitioners’ invitation

that it review the Fourth Circuit’s order in light of Wy-

gant and City of Richmond v. J.A. Croson, 488 U.S. 469

(1989), because the Court of Appeals plainly did not

reach any aspects of the district court’s ruling implicating

those decisions. The district court approved the challenged

faculty assignment plan because of its critical contribu-

tion to the school system’s ongoing efforts to desegregate,

basing its decision on Green v. New Kent County School

Bd., 391 U.S. 430 (1968), and Swann v. Charlotte-Meck-

lenburg Bd. of Educ., 402 U.S. 1 (1971). Then, in an

alternative holding that would have been necessary only

if, contrary to the district court’s findings, the “Board’s

policy is a strictly voluntary measure,” Pet. App. 70, the

district court held that the faculty assignment plan satis-

fied the “strict scrutiny” standard set forth in Wyqgant

and Croson. The Court of Appeals had no occassion to

consider this alternative holding because it sustained the

faculty assignment policy as a court-ordered desegrega-

tion measure. /d. at 6-7. Accordingly, the issue of the

validity of the policy as a purely voluntary race-conscious

remedy is not before this Court.

Finally, there is no legal foundation for Petitioners’

argument that the lower courts erred in failing to apply

a strict scrutiny test to the faculty assignment policy as

12

a court-ordered remedy. See Pet. 16. Once again, Peti-

tioners simply ignore, and thus fail to identify any prob-

lem with, the Court of Appeals’ explicit reliance on the

clear legal standards for review of court-ordered school

desegregation measures that this Court set forth in Free-

man. See Pet. App. 5.

CONCLUSION

For the foregoing reasons, the Petition for Certiorari

should be denied.

Respectfully submitted,

GEORGE H. MERNICK, III

DANIEL B. KOHRMAN *

PAUL A. MINORINI

HOGAN & HARTSON

555 Thirteenth Street

Washington, D.C. 20004

(202) 637-8271

Counsel for Respondents

Sylvester J. Vaughns, et al.,

and National Association for

the Advancement of Colored

People, Prince George’s

County Chapter, et al.

December 4, 1992 * Counsel of Record