Petitioners Brief — Monroe v. Board of Commissioners of Jackson

Supreme Court brief1968

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“SUIBREME COURT. U. & D

. : In THE ; FEB 15 196§ :

Supreme Court of the United Prwtes pve

_ OcrosEr TERM, 1967

No. 740

Brenpa K. Monrog, e¢ al.,

: = ‘a - * Petitioners,

—Vv.—’ e- %

Boarp oF ComMISSIONERS OF THE Crty |

OF Jackson, ee et al.

ON WRIT OF CERTIORARI TO THE, UNITED STATES —

COURT OF APPEALS FOR THE srtTH CIRCUIT

_ BRIEF FOR PETITIONERS.

JACK GREENBERG ‘

James M. Nasrit, III

MicHart MELTSNER ©

_ Micnart J. Henry

10 Columbus Circle

New York, New York 10019

Avon N. Wits, Jr.

1 Z. ALExanper Loopy

McClellan-Lopby Building

Charlotte at Fourth —

Nashville, Tennessee 37201

“*

; _J. Emmett: Bauuarp

> N 116 West Lafayette Street

F _ Jackson, ‘Tennessee \__ = <i

Attorneys for Petitioners

Geratp A. SurrH | i

FRANKLIN Kk WuiteE eo

Of Counsel:

INDEX

PAGE

" Citations to Opimions Below ...........cccccccccccsccccccccecreeeetzeee 1

Jurisdivtion sescusescneqeensenesesnssenseonesenssbonsonsstenbennedenesenseenecenasennees 1

Question Presented ................ i Armin Seianliaeumenaieiicie 2

: . - : |

Constitutional and Statutory Provisions Involved ...... 2.

Statement, of the Case ............ ENE MALE

- Summary of Argument sinned cated: ieee tacit OO 18

ARGUMENT— ee /

. ty 4 , :

Wenn onsite eensnsnonrncsisinlentnseieneianennianint 20

- I, The Courts. Below Applied an Erroneous

| Legal Standard_in Reviewing the ey * of )

the Jackson Desegregation FI ciinonerperenjunnaniies 21

I. The Desegregation Plan Approved by. the

"Lower Courts Is Inadequate in That Peti-

tioners Demonstrated That the Zoning and |

Transfer Arragenments Were Not rhage

to Abolish the Dual System .......... siioibapiaaieeiieiiil 30

CIT in ecenccicstncsissinscecinsnsinninn iad icedabaeia Laas | 34.

Tass oF AUTHORITIES |

Cases:

Board of Education of Ohbikieenns City Public Schools

v. Dowell, 375 F.2d 158 (10th Cir. 1967), cert. den.

387 U.S. 931, affirming Dowell v. School Board: of

Oklahoma City Public Schools, 219 F. Supp. 427

(W.D. Okla. 1963), and 244 F. Supp. 971 (W.D.

Okla. 1965)

~ ww

_ PAGE

Braxton ¥ Board of Public Instruction of Duval

County (Fla. }, M.D. Fla., Civil No. 4598, January

24, 1967 - 29

Bradley v. School Board, 382 U.S. 103 (1965) ia Sa ae

Briggs v. Elligtt, 132 F. Supp. 776 (ED. S.C. 1955) .

16, 22 :

Riete v. Board of Education, 347 U.S. 483 (1954) ;

349 U.S. 294 ¢1955) __........8, 17, 18, 20, 21, ‘20,

, 27, 28, 30, 33

Carr .v. Montgomery County Board of Education

‘.(Ala.), 253 F. aie (M.D. Ala. 1966) ................ 29

Cooper v. Aaron, 858 U.S. 1 (1958) .....2.----.sessesessesee 18, 20, 24

Coppedge v. Franklin County Board of Education (N.

Car.), 273 F. Supp. 289 (E.D. N.C. che. 29

Corbin v. County School Board of Loudoun County

(Va. Dy, E.D. Va., Civil No. 2737, August 27, seus 29

= Goss v. Board of Baucation, 373 U.S. $58 (1963) ........ 13, 14

Kelley v. The Altheimer Arkansas Public School Dfs-

trict No.*22, 378 F.2d 483° (8th Cir. 1967) .. 18, 23, 29, 30

Kemp v. Beasley, —— F.2d —— > (8th Cir. No.*19, 107,

Jan. 9%, 1968) ...... vinlinbils ; a | 29

Louisiana v. United States, 380 U. s. 145 (1965) siete eines 27

Moses v. Washington Parish School mann (La.), E.D.

La., Civil No. 15973, October 19, 1967 cocoons 29

Plessy v, Ferguéon, 163 U.S. 587 (1896) -sc.u!ocm 24

Reynolds. Sims, 407 US. 608 (1906) oe

Rogers v. Paul, 382 U.S. 198 (1965) .....ccegovsesneenne 17

‘4

rage

‘Schine “Chain Theatres v. United: States, 334 U.S. 110

(1948) . ;

‘United States v: Jefferson County Board of Education,

372 F.2d 847 (5th Cir. 1966), affirmed en banc, 380

F.2d 385 (5th Cir. 1967), cert. den. 389 U.S. 840 ....18, 21,

22, 23, 24,29

United States v. Standard Oil Co., 221 U. S. 1 (1910) ... 27

‘Wheeler v. Durham City Board of Education, 346 F. 2a

ik, eG. ocaskeene eee 32

Statutes: | MPT Oe SS.

98 U.S.C. §1254(1) cece pe a bea a eecns ne

42 U.S.C. §1983 ........ ee eee iden seca aabedees 2

_ Other Authorities’:

“Racial Isolation in the Public Schools,” Report of the

United States ceemcummenes on Civil Rights (1967),

Vol. I. sclkal nsanssateaueiandciionpibachianieameaeiaiaiasbaiie 29

State of Tennessee, Department of Education, Equal

_Educational Opportunities Program, Fall 1966 De-

segregation Report on Tennessee’s Public Elemen-*

tary and Secondary Schools (compiled from reports -

to the U. S. Office of Education) 2.0.00... 17

Ly THE

Supreme Court of the United States

Ocroser TERM, 1967

No. 740

Brenpa K. Monroz, et.al.,

Petitioners,

i —VvV.— aad

Boarp oF CoMMISSIONERS OF THE Crry

or JacKsoNn, TENNESSEE, et al. .

) ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR |THE SIXTH CIRCUIT

BRIEF FOR PETITIONERS

Citations to Opinions Below i

The district court’s opinion is reportéd at: 244 F. Supp.

353, and is printed in the Appendix at pp. 365-389. ‘The

opinion of the Court of Appeals is reported. at 380 F.2d

955 and is printed in the Appendix at pp. 397-409. An

earlier. district court opinion in this case is reported at

221 F. Supp. 968, and is printed in the Appendix at p. 33.

e * Jurisdiction

The judgment of the Court of Appeals was entered July

21, 1967., The petition for writ of certiorari was filed Octo-

ber 19, 1967, and was granted January. 15, 1968. The juris-

diction of this Court is invoked under 28 U. Ss. C. Section

1254(1).—

P 4

, Question Presented

Whether the courts below erred by approving a school

desegregation plan which failed to make reasagnable pro-

- visions to abolish the dual school system, and by using a

standard for judging the plan which failed to recognize

the affirmative duty of the school board to disestablish the

segregated school i

Constitutional and Statutory Provisions Involved

This case involves Section 1 of the Fourteenth Amend-

ment to the Constitution of the United Statés, and 42 U.S.C.

§ 1983 providing a right of relief in ‘equity for violations

_ of constitutional rights. r @

Statement of the Case

This is a school segregation case ‘involving the public -

schools of the City of Jackson, Tennessee. 1 Jackson is a

small to medium-sized city .in midwestern Tennessee, with

a school system of almost 8,000 students, about 60% white

and 40% Negro.? As early as 1956, leaders of the Jackson

Negro community began petitioning. the Board of Com-_

missioners to desegregate the-schools in compliance with

this" Court’s decision in the School Segregation Cases

1 An action seeking desegregation of the adjoining Madison’ County,

Tennessee school system is not involved in this petition. The county and

city school systems were sued in the same complaint, but the county and

city cases were severed and tried separately by the trial court. An

appeal involving the county schools was argued and decided in the Court

of Appeals with this’ City - but no petition for certiorari was filed

in the County case. —

; 2 In 1964-65, there were. 3,194 Negroes and 4,610 ) white pupils in the

system (Plaintiffs’ Exhibit 26, A. 359).

iealiais v. Board of Education, 347 U. Ss. 483, 349 U.S. 294) ©

(A. 357-358). They met with failure until the 1961-62

school year when the board admitted three Negro students

to a white school (A. 24). The following year’ (1962-63),

four more Negro students were admitted ‘to a white school

(A. 24). Except for these 7 students, the 13 schools in the

system remained totally My pegragated in their student bodies |

and faculties. In the elementary grades 1-6, there were

five white schools (Highland Park, Alexander, Whitehall,

Parkview and West Jackson) and three Negro schools

(Lincoln, South Jackson, Washington-Douglas). The jun-

ior high, school a (7-9) were served by two white

schools (Tigrett Jr. High, Jackson Jr. High) and one

Negro school (Merry Jr. High). Grades 10-12 were served

by a white schopl (Jackson Senior High) and a Negro ©

school (Merry Senior High—located in the same building

with Merry Jr. High).

Petitioners, who are Negro. pupils weit peein in the.

Jackson public school system, brought this action January

8, 1963, in the District Court for the Western District of

Tennessee. Their-complaint alleged that the Jackson Board

of Commissioners operated a compulsory racially segre-

gated school system with a gual system of white and Negro .

schools, and that the individual plaintiffs had been dis-

_criminatorily denied admission in white schools in violation

of their Fourteenth Amendment rights (A. 3). Petitioners

sought injunctive relief to enable the named ‘plaintiffs to

attend specified white schools. In addition, they prayed

for’ an order for a Acemplete plan for the prompt and

speedy eas entire systems of public —

schools . .~ into unitary, nonracial systems of schools . . .

lincbading) a plan for the assignment, education and treat- we)

ment of students or enrollees on a nonracial basis, the as-

signment and treatment of teachers,. principals; . .-. on a

- nonracial basis, ana the sUmination of all and any other

discriminations in said systems - . . which are based. on

race or color” (A. 22): The district court promptly, on ~

January 25, 1963, granted a preliminary injunction requir-

ing the admission of the four plaintiffs to previously white

_ schools. The Board of Commissioners, by answer, . denied

that the school system was ‘segregated. and asserted that

seven Negroes had been admitted to formerly all white

schools ‘under Tennessee’s Pupil Placement Act (A. 23, 24).

However, the answer admitted that the Pupil Placement

Act was “not adequate as a plan for reorganizing the

(City) schools into a nonracial system” (A.°25).

June 19, 1963, District Judge Brown: granted plaintiffs’

motion for summary judgment and ordered the board. to

file a desegregation plan (A. 27). The board filed a pro-

posed plan July 19, 1963 (A. 29), and after an evidentiary

hearing the plan was approved with modifications in August

1963. (See 221 F. Supp. 968 ;*A. 33-50.) - The desegregation

plan (A. 29) as modified by the August 20, 1963, judgment

- of the district court (A.42), provided for the elimifiation

of , compulsory segregation rules in five stages with all

grades to ke affected by the 1967-68 school year. As vari-

ous school grades were desegregated, the plan provided

for the school officials to designate geographical attendance

areas to be served by each school. Pupils residing within

these areas had the righi to attend the schools in their ~

zones (A. 30). Pupils already in schools were permitted

to remain where they were until graduation notwithstand-

ing the new zones. Additionally, the school superintendent |

was granted the power to “grant or require” transfers of

pupils to schools: other than the school'in their zones on

application or on his own initiative (A. 31-32). The court

also approved—over petitioners’ objections of gerryman-

dering—the board’s school attendance zones for elegrentary

aor

/ °

SEI SORAEI TE TRS PTET

schools. The court held that the board “should have: ad-

ministrative discretion in establishing unitary zones, pro-

vided that the zones do not clearly thwart the plan to bring. -

about abolition of discrimination” (A. 39), and ‘that the

zones proposed “do not constitute. an abuse of this discre-

tion” (A. 40). The court directed (in accord with the plan —

of gradual desegregation) that zone fnaps for junior high

»Schools and senior high schools be filed in 1965 and 1966,

respectively. In an addendum to the opinion (responding

* to a new trial motion), the court reiterated its view that

the zones were not gerrymandered (A. 46).- .

‘After the desegregation plan had been in effect two.

_ years, the five Negro schools remained all-Negro as before;

120 Negroes attended formerly white schools. The enroll-

ments by race for the 1964-65 term were:

Bldg. Negro re 1

Elementary Schools Capacity Pupils . Pupils © ' Total

Liteon; 875 709 0 709

¢ South Jackson * 525 589: 0 589

Washington-Douglas 525 434 0 434

Highland Park 700 —2C—té«‘ 0 590 590

Parkview * 750 : 654 655

Whitehall 315 -. 16 308 324

West Jackson - 500 14. 453 467

Alexander 750 87 628 715

Junior High Schools ,

- Merry Jr. High 700 (+120)4 752 0 . 752

_ Tigrett Jr. High 725. . 0 699 699

~ Jackson Jr. High * 650 © 1 431 432

High Schools .

Merry Senior High — - 690 0.- + oO .

' Jackson Senior High —__—_=—-- _- 2 847 848 -

pe ae ; 3194 4,610 7,804

3 These enrollment figures are from Plaintiffs’ Exhibit 26 (A. ronene $s

building capacity figures are from A. 81-89, 143.

*The board decided in the Spring of 1965 to construct 4 new rooms

to accommodate 120 more pupils -at —

cae

ears Se 6

‘In September 1964, when the plan was beginning its

second year of operation, the Negro plaintiffs filed a Motion

for Further Relief and to Add Parties in which they at-

tacked the administration of the plan’s transfer provisions

as racially discriminatory and again charged that the at-

tendance zones were gerrymandered (A. 51). Twenty-seven

. Negro children who complained that they had been denied

transfer to white schools were permitted to intervene as’

plaintiffs, and the court ruled that plaintiffs eould reopen

-the gerrymandering issue, as well as a faculty desegre-

gation prayer which had previously been deferred (Pre-

trial order of 9/28/64; A. 92). The board filed a map

(reproduced at A. 105) proposing zones for the three junior

_ high schools and requested the court’s approval (A. 104-

105). Plaintiffs objected that the zone lines were drawn .

to perpetuate racial segregation and asked that the board

be ordered to present new zones (A. 106). By a further

‘motion’ plaintiffs sought the desegregation of all remaining

_ grades in September 1965, and the,elimination of discrimi-

nation in teacher in- service training programs and extra-

curricular activities (A. 109). The district court heard,

evidence on these matters on May 28 and June 18, 1965

(A. 126-358).

The’ Superintendent of Schools, Mr. C. J. Huckaba,

testified that the elementary and junior high school zones

were prepared by considering such factors as the location °

of the schools, the size of the buildings, the location of the.

childref™and an effort to fit the number of .students to

the capacity of the schools (A. 132). The petitioners pre-

sented two experts in the field of education who testified

that the elementary and junior high school zones proposed

by the board were racially gerrymandered to achieve a

high degree of racial segregation. Petitioner? experts were

_ Dr. Roger W. -Bardwell, then Superintendent of Schools

Nine a

‘

——Ee ee

ee et See ee

of Elk Grove Township, Illinois, and Mr. Merle G. Her-

man, then Assistant Superintendent of. Schools in Villa. -

Park, Illinois.’ Dr. Bardwell and Mr. Herma conducted

a study (Plaintiffs’ Exhibit No. 12) which’ was “designed

to discover if the school zone lines . . . have been so drawn

to obstruct the racial integration of the city’s: schools” and

also to answer “whether the free transfer policy as admin-

istered has fostered additional segregation in the schools”

(Exhibit 12, Introduction).; The experts prepared.a series

of exhibits, consisting of plastic’ overlay maps which may

be viewed in booklet form or projected on a screen by an

overhead projector (Plaintiffs’ Exhibits 12-21). The ex-

- hibits locate all pupils attending the schools by race on

maps showing the schools and zone lines. The procedure

used -in preparing the exhibits was‘a standard - method

which Dr. Bardwell said he used in presenting similar data

to his own Boatd of Education (A,)213).. Dr. Bardwell and ~ :

Mr. Herman reached the follawing “conclusion” in their

study (Exhibit 12): < ae

“These exhibits re resent an actual picture of the

total.elementary schdéol popul@tion’and the fotal junior —

5 Dr. Bardwell’s qualifications included B.8., M.S., and Ph.D. degrees

from the. Universjty of Wisconsin in public school administration, fifteen’

years’ experiencé in school administration, and substantial experience in

school building planning and zoning. The school district where he had

been superintendent“five years was approximately the same size as the

Jackson system (A- 207-208). ;

Mr. Herman’s qualifications included a B.A. from McKendree College,

and an M.A. and completion of. most doctoral requirements at Washing-

' ton University in St, Louis. His experience included three years’ public

chool teaching, seven years’ public school administration, and ten years

Sate teaching in the field of education. During the period in which

he*was a college faculty member, he participated in many school surveys

in a number of different’ states, including zoning problems as part of

those surveys. The system where he was Assistant Superintendent was

also approximately the same size as the Jackson City school system (A.

| a

246-247). ~\

“ ~

high sc 00] population located on maps as near to the

pupil’s. tual residence as possible. Elementary school

zone lines have also been indicated, as well as two ex-

hibits (Nos.-V and VI) ,which depict the proposed

junior high school boundaries. ‘It is possible to graph-

ically examine the actual school zoning and attendance

situation in Jackson, Tennessee.

-_ ’ . . . - ;

“Kixamination of this situation reveals:

(1) That elementary ‘school attendance zones have

been gerrymandered to create racially segre- -

' gated elementary schools, *

(2) Proposed junior high school attendance zones

’ are also drawn to perpetuate racially segregated

‘schools at the junior high schools, _ 7,8

and 9.

(3) The present’ transfer policy seems to mitigate

against desegregation 6f the Jackson schools.,

Large number of white children living in pre-

dominantly negro school zones have been: per-

mitted to transfer’‘out of these zonés to white

or predominantly white schools.” |

‘Tffe-three junior high schools‘ in Jackson had all been

constructed during the period after 1955 during which the

Board was operating a compulsory segregated school sys-

tem contrary to the decision in the School Segregation Cases *

(A. 232). Tigrett Jr. High, formerly all-white, is im the

western part “ Jackson ; Merry, still all-Negro, is, in the |

aah ae ed

is in the ponthonshaite part ‘of the ae (A: 378). The zone

designated for the all-Negro Merry Junior High School

is an irregularly shaped area, described as, “sort of an

hour glass aes with a‘wide top, narrow center, and

¢ be —_ [

| cenietioeicenminin a

wide bottom (A. 290). The lines were drawn “consistently

between the Negro and white populations” (A. 291) and

the Merry zone thus included most of the Negro junior

high students but very few white students. ‘The Bardwell-

. Herman study concluded “that. the boundary zones for |

_ junior high school attendance have been drawn with the

goal in mind to preserve racially segregated junior high -

schools to a large degree” (Plaintiffs’ Exhibit 12, see text”

accompanying Exhibit V).

In sdeveloping these zones, as well as the. elementary

' zones, the superintendent of schools apparently did not

undertake to find out how many junior high and elemen-

tary students there were in the city and attempt to match

the numbers of students to the capacities of the respective

schools, in spite of affirming that he used educational con-

siderations. such as capacity of schools in formulating the _

zones. The only gvidence of a count of students which -

he was able to oifer was a racial residential census of all |

children aged 1-18 in the city, and not a count of relevant

age groups. for junior high school and elementary school

zone planning (A. 129, 141, 145- 146, 155, 162, 167, 182-183).

Analyzing a racial residential map of the city showing

the locations of the residences, and the race, of all junior

high students in tle school system (Trial Exhibit 19,” A.

211), plaintiffs’ edycational expert Merle Herman con-

cluded with regard to the junior high school zones: “There’

seems to De a very distinct tendency for the lines to fol-.

low the residences of Negroes and whites—in other words, °

separating the two. Where there is a large Negro popula-

- tion, there tend to be lines drawn to maintain segregation

in the schools that serve those areas” (A. 250).

After the desegregated Junior high school zones were.

announced for the following year in late 1964, and after

, . 10

the school system had discovered from the. 1964-65 enroll-

ment figures that all-Negro Merry Junior High Schodl,

which, then accommodated all but one of the Negro junior

high school students in the city, was over capacity, the

Board of Commissioners decided in the«spring of 1965 to

‘construct four additional classrooms at Merry so as to

increase its capacity by 120 (A. 143, 184). This decision

was made despite the facts that (1) the enrollments of |

the two previously all-white junior high schools were ap- |

proximately 300 students under capacity, and (2) the ele-

mentary school enrollment figures indicated that total

junior high enrollment for the system would remain con-

stant at about 100 students above the present enrollment

for at least the neat four years (A. 143, 259-260):

When asked whether based on his experience no white

children could be expected to enroll in Merry Junior High ~

‘School and would it not therefore remain all-Negro, the

Superintendent of Schools said, “Judging on the basis of

what has happened up to now, that might be the case. . . .

I imagine it will be predominantly Negro” (A. 185-186).

He also expected that the small number of Negro students

from the other two zones of the heretofore all-white junior

high schools would continue coming to Merry, something

the board’s transfer policy would encourage (A. 186). The

superintendent attempted to justify th nstruction of

an addition to Merry Junior High by pointing out that

all-Negro Merry Senior High.School (in the same build-

ing), was growing and might need some of the rooms pres- -

éntly used by the junior high school. But he also admitted

f. that the all-white senior high school (not yet then deseg- -

regated) was 249 students. under capacity (A. 186).

With respect to the elementary: schools, Dr. Bardwell

testified that his analysis showed that “if geography were

the main criterion for the zoning of the schools, why most

all of the schools would be integrated with the exception

of Highland Park, and Lincoln would be predominantly

= <g"9, but the balance of the schools would be integrated

to a much greater degree than they aré” (A. 219-220; see

also, Plaintiffs’ Exhibit 12, text accompanying Exhibit

VII ). | = "

Dr. Bardwell was unequivocal in his observation about

the board’s proposed zones: ~

I said that the boundary lines were drawn so that the

majority of the schogls remained highly segregated.

' That was my conclusion. (A. 236) |

Mr. Herman agreed (A. 254) :

Well, the elementary sehool lines are built in such a.

way that they tend to promote segregation. One can

never deal with the motivation behind them. It is just

an apparent type of thing that strikes you when you

look pt the information that we have put together.

Plaintiffs proposed a specific plan for the Junior ‘high .

schools‘which would have produced three integrated junior

high schools. Plaintiffs’ educational expert Merle Herman

explained that a standard basis for drawing junior high

school zones was the “feeder” principle. By this principle,

' junior high school zones are based on elementary school

zones and are composed by clustering several such zones

so that all students from the same elementary school go

on to attend the same junior high school (A. 248-251, 255,

293-296). . .

Mr. Herman concluded that using the accepted “feeder”.

principle, the existing elementary schools in the city were -%

located so that they~could be conveniently clustered into

12 | ‘

zones to produce three completely integrated ‘junior high

schools. The proposed feeder zoning plan was: (1) Park-

view (white), Washington-Douglass (Negro), and White-

hall (white) elementary school zones to constitute the

_ zone for Jackson Junior High School; (2) Highland Park

(white), West Jackson (white), and South Jackson (Negré)

elementary school zones to be the zone for Tigrett Junior |

High School; and (3) Alexander (white) and Lincoln

(Negro) elementary school zones to be the zone for Merry

Junior High School (A. 255, 293-296). Each elementary;

school is located conveniently to the proposed junior high

' school, and the capacities of the elementary schools were

matched to the junior high schools (A. 255, 293-296). Mr.

Herman concluded that by drawing the zones in accordance ~

with the “feeder” principle, “the junior high ‘school zones -

would be developed objectively, without regard to the racial

_ character of the neighborhood” and “from an ‘educational’

point of view, it‘would be sound” (A. 255).

Transfér Policy. The original plan of siiiidiniiien ap- '

proved by the district court in 1963 (A. 371- 372) provided. —

that any transfer policy ‘could be adopted a8 long as it did

not have as its purpose the delay of desegregation. The dis-

trict court. found in 1965 that the school system had ad-

ministered its transfer policy in the following ‘manner:

“They have allowed white pupils as a matter of course to.

attend schools, outside .of their unitary zones, in which

white pupils predominate, and have allowed Negro pupils

as a matter of course to attend schodls, outside of their

unitary zones, attended only by Negroé& but they have de- ~

nied Negroes (and specifically intervening plaintiffs) the

right to attend predominantly white schools outside of their

-unitary 20nes” (A. 372). In other words, the board was.

using, up through 1965, the “minority to majority” racial

transfer policy which had been condemned by this Court

in 1963 in Goss v. Board of Education, 373 U.S. 683 (1963).*

Dr. Bardwell pointed out that where the Board had

zoned all of the schools in such a “way that their enroll-

ments were conspicuously either predominantly white or

almost all-Negro, and thus preserved the racial identity

of.the schools as they were under the dual school system,

the availability of the free transfer option caused the racial

identification of the schools to become even more pronounced

by. permitting the remaining students of the minority race

in*each school to transfer out. He indicated that where

- the school system had conferred racial identities on indi-

vidual schools, it would i-: expected that minority students

would transfer out of those schools* because they were of

the minority race and this was confirmed by the fact of

am abnormally large number of transfers within the sys-

tem (A. 223-224, 238-239). Merle Herman pointed out that

the effect of a free. transfer system superimposed on ra-

cially identified schools would operate “to maintain what-

ever the attitude structure is of the speople who have

children in those schools: and the attitude toward ‘inte-

gration was obviously unfavorable because of the large

number of minority to majority trarisfers (A. 249-250).

He explained: “If zoning would not accomplish what some

‘people might consider to be a proper solution to their own

personal problems, they could then use transfér as a means

by which they could solve their problems” (A. 250).° Mr.

* Other aspects of ‘the system’s transfer policy were also administered

in accordance with the principle of a segregated dual school system. The

Jackson city school system admitted 385 students from surrounding

Madison County and all white students were assigned to schools which -

- were all-white or predominantly white and all Negro students to schools

which were all-Negro (A. 255-257; Plaintiffs’ Exhibit 20). County trans-

ferees of the predominant race in any particular school were apparently

given priority in assignment over city students of a minority race who

actually resided in the zone of that school (A. 256-257 ). ;

14 A

Herman concluded that since “It is an accepted fact here,

I think, that white children‘attend white schools and Negro

children attend Negro schools,” that even though a com:

pletely open transfer policy was superimposed on the

board’s junior high school zones based on race, “segrega-

tion will continue to exist” ( A. 253).

The Bardwell-Herman study of the junior high achool

zones indicated how the transfer plan operated with the

_ gones to achieve segregation. As stated in the study (Plain-.

tiffs’ Exhibit 12, text accompanying Exhibit VI) :

open transfer plan to promote an almost completely

, segregated school system at the junior high level -be- |

cause of the gerrymandered school zone lines and zela-

tively few children to be granted transfer to achieve

a high degree of. segregation.

This “high degree of segregation” was achieved notwith- |

standing the fact that the white junior high school popula-

' tion “distributes itself over the entire city” because the-

Negro junior high population “distributes itself in the cen-

‘ter of the city” (Plaintiffs’ Exhibit No. 12, text accompany-

ing Exhibit V). When most of the Negroes in Jackson were

zoned into Metry J unior High zone, and the few whites

living in the’ zone were. permitted ‘to transfer out, an all-

Negro. school was the result. °

The district court rendered: an opinion July, 30, 1965

(A. 365;.244 F. Supp. 353), and an order on August -11,

1965 (A. 390).- The court held that the -board’s transfer

Fe eee been administered in an unconstitutional man-.

"ger in violation of Goss v. Board of Education, 373 U.S.

. 683 (1963): (A. 372). The court ordered that if the defen-

dants continue the policy of allowing all pupils transfers to

This exhibit indicates the possibility of using an.

—«

schools where they will be in a racial majority, they must

also allow pupils to transfer to attend schools where they

will be in a racial minority (A. 392-393). The court also

ordered*that each pupil be’ r@guired to register in the 7

school in his zone before applying for a transfer (A. 393).

Judge Brown ruled that some of the elementary school ©

zones “appear to be gerrymandered” (A. 393) and ordered

that boundaries separating three pairs of white and Negro

schools be adjusted. Each adjustment resulted in placing

adidtional Negro pupils into formerly white zones. But, the

court rejected the claim that junior high school zones were

gerrymandered and approved the board’s proposed zones

(A. 394). |

The court ordered - that desegregation be accelerated

to cover all junior high grades in 1965-66 and. all grades

in 1966-67 (A. 394). Relief requiring integration of

, faculties was denied, except that the court ruled that in .

1966-67 the board should seek teachers to volunteer for

non-segregated assignments (A. 394). Jurisdiction of the

' Cause was retained “pending full implementation of de-

segregation” (A. 396).

Judge Brown’s opinion began by stating that the law

was not clear “as.to whether the Constitution requires only

an abolition of compulsory segregation based on race or

requires something more” (A. 366). He thought this a

question that “must first be answered before we can

deal with the assignment and transfer issue and the gerry- :

mandering issue” (A. 366),- and after some. discussion,

decided that segregation resulting from ‘“purely volun-

tary chdice” or resulting from “ ‘honestly’ ‘arrived at

geographical zoning” did not violate the Constitution: -

“the Constitution does not require integration . . .:it only

requires the abolition of compulsory segregation based on -

“race” (A. 371). The court stated its reliance upon the

16.

famous dictum of Doles v. Elliott, 132 F. Sopp. 776 (ED. |

‘S.C. 1955). :

Reasoning from this premise, J udge Brown Pee ae :

the testimony and desegregation proposals of re

experts because they sought “integration” :

. [T]he value of the testimony of these experts was

undercut by the fact that they assumed that it is the —

duty of defendants to maximize integration because

of educational benefits that would, in their opinion,

flow therefrom. The value of their testimony with

respect to elementary, schools was further somewhat

_ undercut because their maps were aimed to show the

amount of de facto segregation that has resulted after

two years under the plan. However, in view of volun-

tary transfers by white and Negro pupils, the degree

of actual segregation in these schools does not itself

show that the zones are gerrymandered. The value of

the testimony of these experts with respect to junior

high schools was somewhat undercut because they not

puly again assumed a duty to maximize integration

but also assumed that defendants had the duty to adopt

a “feeder” system whereby certain elementary schools

would send their graduates only to a particular junior.

high. (A. 376)

_ The Negro plaintiffs appealed and the Court of Appeals ..

for the Sixth Circuit affirmed except with respect to the

faculty segregation issue, on July 21, 1967 (A. 397). The

court below asserted that the:

. Fourteenth Améndment did not command com-

pulsory integration of all of the schools regardléss of

an honestly composed unitary neighborhood system

and a freedom of choice plan. (A. 399) ©

The court stated that the Brown decision prohibits “only

enforced segregation” (id.), and that it would apply the |

same-rule it_had applied in a Cincinnati case where the

' schools were desegregated long before Brown (A. 399-400).

It said: eee

However ugly and evil.the biracial school systems ap- |

_ pear in contemporary thinking, they were, as Jefferson,

supra [372 F.2d 836 (5th Cir. 1966)] concedes, de jure

and were once found lawful in Plessy v. Ferguson, 163

U.S.: 537 (1896), and such was the law for 58 years

thereafter. To apply a disparate rule because these

early systems are now forbidden by Brown would be

in the nature of imposing a judicial Bill of Attainder. Nee

(A. 400-401) ‘ . spilt

The court then stated its approval-of the trial judge’s

decision that the junior high school zones were not gerry-

mandered. The-trial court decision refusing. relief on the

faculty desegregation question was réversed and the issue,

. remanded for reconsideration in light of Bradley v. School .

Board, 382 U.S. 103 (1965), and Rogers x. Paul, 382 U.S. *

196 (1965)... , gs Sls

The record herein contains ng enrollment figures in-- -

dicating the results of the-plan’s operation while the case

has been pending on appeal.. However, published data re-

flects that during the 1966-67 school term, Jackson’s five

Negro schools remained all-Negro, while 475 N egro students

-attended racially-mixed schools and 2,730 remained in all-

Negro schools.’ In :the current 1967-68 school: year, 615

7 Respondents’ Brief in Opposition to Certiorari, p. 4, filed November

1967; see also, State of Tennessee, Department of Education, Equal Ed-

ucational Opportunities Program, Fall 1966 Desegregation. Report on

Tennessee’s Public Elementary and Secondary. Schools (compiled from

reports to the U. S. Office of Education).

wo?

- Negro students attend mixed classes while 2,613 are in all-

Negro schools.°

* _= pemmany of Asigeanet

I. Brown v. Board of Education, 347 U.S. 483 (1954); °

349 U.S. 294 (1955), directs the district courts to consider

the adequacy of school desegregation plans to eliminate’

racial discrimination in. public school ‘systems. . School

officials have an affirmative duty to initiate desegregation.

Cooper v. Aaron, 358 U.S. 1 (1958).

The courts below applied an erroneous legal pre a

in appraising the Jackson Board’s desegregation plans.

by ‘rejecting the argument ‘of petitioners that the board

had an affirmative duty to abolish the dual system. School

segregation plans should/be judged by whether they are

reasonably designed to’convert dual systems into unitary

systems. “Adequate plans should desegregate both formerly

_ all-white and formerly all-Negro schools. Jackson’s plan

left the all-Negro schools intact while permitting a few

_ Negroes to enter formerly all white schools. The courts

below appraised the plan and the evidence by reference

- to a misconception of the applicable law which rejected the

notion that school boards are affirmatively obligated to

disestablish patterns created by the segregation laws ‘and

practices. Other courts of appeals have applied more ap-

propriate standards for appraising desegregation plans. -

United States v. Jefferson County Board of Education,

372 F.2d 847 (5th Cir. 1966), affrmed en banc, 380 F.2d

_ 385 (5th Cir. 1967 ), cert. den. 389 U.S. 840. Kelley v:

The Altheimer Arkansas Public School District No. 22,

378 F.2d 483 (8th Cir. 1967); Board of Education of Okla-

8 Ibid.

homa City Public Schools. v. Dowell, 375 F.2d 158 (10th

Cir. 1967), cert. den. 387 U.S. 931. .

II. The: desegregation plan proposed for Jackson, Ten-

nessee, including particularly the junior high school zoning

. arrangements and the transfer plan, was not reasonably

designed to abolish the dual school system: Plaintiffs made

an unrebutted showing: that the junior high school zones’

were racially gerrymandered, ang that the transfer policy

operated with the racial zones to insure a high degree of

segregation. The school board’s. coxstruction volicibe com-

_ plemented the zoning arrangements to promote segrega-

tion. Having found gerrymandering at the elementary -

school level, the trial court should have treated the oddly-

shaped junior high school zones with great suspicion.

Plaintiffs proposed feeder plan would have desegregated

each of the city’s junior high schools. The court should -

have ordered this plan or some other arrangement equally

likely to d&egregate the system. If the.record is not |

deemed suff€ient to justify the immediate disapproval of

the board’s plan, at the least the trial court should be - -

directed to reappraise the case in view of the appropriate

standard, e.g. the requirement that school boards take

affirmative steps to abolish the dual system.

ARGUMENT

7 ss Introduction

This case presents important questions relating to the

implementation of this Court’s decision that racial segre-

gation in the public ‘schools violates the ‘Equal Protection

Clause of the Fourteenth Amendment. Brown v. Board of

" Education, 347 U.S. 483 (1954) ; 349° U.S. 294 (1955). In

the second Brown decision, supra, the Court directed that

the. lower federal courts “consider. thé adequacy of any.

_ plans that the defendants ‘may propose . .. to effectuate.

a transition to a racially nondlssclaiinntory school sys-

‘ tem”. (349 U.S. at 301). Subsequently the Court empha-:

sized the affirmative duty of school authorities, saying that -

they “were thus duty bound to devote every effort toward

initiating desegregation and bringing about the elimination ~

. of racial discrimination in the -public school system”. ”

Cooper v. Aaron, 358 U.S. 1, 7 (1958). The courts below,

in the instant case, approved a desegregation plan (pro-

posed by local school officers and objected to by Negro

parents) holding that the plan fully complied with the

.board’s obligations to implement Brown, supra. Petitioners

submit, first, that both courts’below applied an improperly

. restrictive legal standard for judging the adequacy of the

desegregation plan, by rejecting the idea that equity -courts

are obliged to require. affirmative efforts.to abolish the

dual segregated school system. Second, it is urged that _

the Jackson plan was demonstrated“to be inadequate be-

- eause the school zoning and pupil transfer arrangements

-, were not reasonably calculated to‘abolish the dual system

ich had been created under segregation laws and prac-

tices. Alternately, it is submitted, that if the Court does

‘not find the plan inadequate on this record, at the least

the cause must be remanded to the trial court for re-

_ + appraisal of the plan’ s features using a eorrect legal

standard:

| bg

‘i a

The Courts Below ‘Applied an Erroneous Legal Stan-

dard in Reviewing the Adequacy of the Jackson Deseg-

regation Plan.

Both courts below deemed the definition of the basic

constitutional standard to be applied in reviewing a pro-

posed desegregation plan to be the decisive matter at issue.

Petitioners’ position on this question has been variously

stated and characterized by respondents and by the courts

below; we state it.on. our own terms in the following para-

graph.

Because the Jackson school officials have enntliemedl an

. unconstitutional- dual system of segregated schools, it- is

their affirmative duty to abolish the dual system. Abolish-

ing -the dual systeni involves desegregating the all-Negro

schools as, well as the all-white schools. The Brown de-

cision held that “segregation of children in public schools

solely on the basis of race . . . deprive[s] the children xa

the minority group of niet educational opportunities.” »

(347 U.S. at 493). “The governmental “objective of [‘éon-

verting the dual system of separate. schools for Negroes

and whites into a unitary system’] . . . is—educational op-

- portunities on equal terms to all.”° “The criterion for

‘determining the validity of a provision in a school deseg-

‘regation plan is whether the provision is reasonably re-

lated to accomplishing this objective.” *° It is not suffi-

° United States v. alent ied Board of — 380 F.2d 385,

390 (5th Cir. 1967).

10 Id.

oe |

cient for a court to consider merely the abstract constitu-.

tionality or reasonableness of a desegregation plan’s pro-

visions. The Court should judge whether, when viewed

in a practical context, the. provisions are reasonably cal-

culated to abolish the dual system of white and Negro

schools speedily and effectively and to the greatest extent

feasible in the circumstances. Finally, the plan must be

tested in actual operation “by measuring the performance

—not merely the promised performance—of schgol boards

in carrying out their constitutional obligation ' disestab-

- _ lish dual, racially segregated school systems and to achieve

substéftial integration within such systems’ ”. aaah

We urge that these propositions are well supported by

decisions in the lower courts which have been congenial to

implementation of the Brown decisiom The contrary posi-

tion of the courts below should be repudiated. The: essence

of the matter is that the courts below have declined to

accept the argument that the school board has an affirmative

™~ \ duty to disestablish the segregated system.

The District Judge emphasized the well-known dictum

enunciated by Judge Parker in Briggs v. Elliott, 132 F.

Supp. 776 (E.D.S.C. 1955) six weeks after the second .

_ Brown decision, that the Constitution “does’ not require’

integration”.. Briggs sounded the call for, resistance to

Brown. It was attempt to narrow the scope of the

opinion so as to almast deprive it of meaning. Briggs

has os argued as the supporting foundation for almost

every evasive effort ¥o subvert Brown which has come be-

fore aurts, It has never been recognized: in this Court,

and has quite properly been repudiated as inconsistent

with Brown in numerous recent cases in the courts of ap-

11 United States v. Seiiteeian County Board of Education, 372 F.2d 847,

895 (5th Cir. 1966), affirmed en bane, 380 F.2d 385 esiees 1967), cert.

den. 389 U.S. 840 (1967). <

‘ ‘ : ’ ‘. .

peals. See e.g. United States v. Jefferson County Board of

Education, supra, 372 F.2d at 846, 861-873 ; 380 F.2d at 389 ;

Kemp v. Beasley, -— F.24 ——N 8th Cir. No. 19,107,"

Jan. 9, 1968) ; Kélley v. The Altheimer, Arkansas, Public

School District No. 22, 378 F.2d 483, 488 (8th Cir. 1967).

The holdingseby the trial court reject the idea of an

affirmative obligation by the school board to abolish the

dual system in several ways. The court used its conclu- beg

sion that the Constitution did not require “integration”

- to justify its disregard*of the careful study made by peti-

tioners’ expert witnesses who testified that the Jackson

school -zones were racially gerrymandered. Their presen- -

tation was disregarded because. the. Court thought their _

testimony assumed the desirability of “integration”. Simi-

larly, the court, took the view that school board discretion

in establishing attendance zones “should not be overridden

unless it constitutes a clear abuse of this discretion” (A.

46): The Court thus limited its inquiry abont the zones

to a séarch for an abuse of discretion without any ex- |

pressed indication of concern for the practical impact of

the proposed zones on the separation of ‘the races in the

school system. Uncontradicted evidence that the zone lines

“maximized the raeial separation was disregarded.

The trial court’s standard for appraising the desegrega-

tion plan was seriously in grror in that it failed to it

nize that a prime objective of the desegregation plan must

be to accomplish the actual desegregation of the schools

and the elimination of the dual system.’ The trial court’s

view focused entirely on whether the desegregation plan

used non-racial and non-discriminatory mechanisms for.

assigning pupils and disregarded thp practical impact of

these rules on the pre-existing dual-system. A -principal

feature of the dual system is the existence of a number

of all-Negro schools. Obviously abolition of the dual- Sys- .

tem of Separate white and. Negro schools should include

of racially identifiable schools. But the Court approved

a plan which was manifestly designed to preserve the all-

Negro schools intact; and rejected petitioners’ experts’

proposal to desegregate all junior high schools by a feeder

system, saying that their plan was intended to “integrate” |

the schools. «

The Court of Appeals also” characterized petitioners’

arguments as a demand for “compulsory integration”. The

Court said it was unfair and impermissible to impose a —

duty -on the Jackson school board which had established

segregation under the aegis of Plessy v. Ferguson, 163.

U.S. 537 (1896), that was not imposed on a school board

that had no history of compulsory segregation. By so

defining the problem the Sixth Circuit also refused to

follow the legal rule stated in United States v. Jefferson

‘County Board of Education, supra, that there is an affirm-

-ative duty placed on school boards to devise plans to abol-

ish the dual system.

The Court of Appeals —_ the trial. judge’s opin-

ion which itssaid “concludes that the Fourteenth Amend-

ment did not command compulsory integration of all of

the schools regardless of an honestly composed unitary

neighborhood system and a freedom of choice plan” (A.

399). We think this formulation mistakes the crucial is-

_ gues. The vital inquiry in appraising a plan intended to

implement the Brown decision is not merely whether school .

attendance zones are. demonstrably dishonest. The central

inquiry ought to-be whether the zones are reasonably de-

signed to abolish the segregated system. If the Board’s

duty is to “devote every effort,toward initiating desegre-

gation” (Cooper v. Aaron, supra, 358 U.S. at 7), surely

this duty must include something beyond merely refrain-

yas i> R 7

ee Sea

a) 2 .

‘

ing from drawing dishonest, plainly arbitrary, ‘Or segre-

gationist zones. There is a duty to make a reasonable

effert to actually desegregate those schogls which the state

previously established ‘and maintained for one race only.

Pupil transfer rules adopted as part of-a desegregation

plan should also be required to meet a similar test. In .

this case the trial court ruled that transfer applications

- must be -granted to all without discrimination and en-

joined the board’s former practices which it said. were

racially discriminatory. -The court lef¢ it open to the Jack-

son system to continue a transfer. arrangement by which.

every white pupil zoned into a Negro school area trans-

ferred out of his zone to a white school and thus perpetu-

ated the all-Negro schools. Experience showed that every

white child who was zoned into a N egro school had sought

and been granted a transfer to a white school. Everyone

—all the parties and the courts below—fully understood

and expected that this pattern, which has held true through-

out the south; would continue and that the all-Negro

schools would remain all-N egro notwithstandimg the fact

that. white pupils did live in the zones designated for

these schools. It was error, we submit, for the courts be-

low to approve a transfer , arrangement which was thus

manifestly designed and expected to defeat the objective

of eliminating the dual system. es

The appropriate standard for appraising desegregation |

plans is illuminated by Board of Education of Oklahoma »

City Public Schools v. Dowell et al., 375 F.2d 158 (10th

Cir., 1967), cert. den. 387 U.S. 931, affirming Dowell et al.

" v. Schaol Board of Oklahoma City Public Schools, 219 F.

Supp. 427 (W.D. Okla. 1963) and 244 F. Supp. 971 (W.D.

Okla. 1965). The Court of Appeals for the Tenth Circuit

was confronted: with a school system which had announced |

a formal desegregation plan by ‘unitary zoning in 1955.”.

———— eee

: Pte 26

Nevertheless, the unitary zoning plan had preserved 4

number of all-Negro schools because’of racially designed

building locations,.racial residential segregation, and a

racial. “minority to majority” transfer plan. At the time

of the fal district «court decision in 1965, 80% of the.

Negra’ students in the, system were still attending schools

which were all-Negro or ‘at least. 95%: Negro. ’

The Oklahoma district ‘court, after sedate s a study by a

panel of independent educational administrators, reqhired

the school system to take specific and affirmative. actions

recommended by the panel to begin the process of disestab-

lishing segregation, including: (1) a consolidation of the

attendance districts and changes.in the grade structures

of two pairs of nearby six-year secondary schools so as to

completely integrate the four schools, and (2) adoption of

, @ transfer plan by which any student who was in the racial

__majority in any school inthe system could transfer as a

matter of right to any. other school in which he would be

.in the racial minority. .The Tenth Circuit held that “under

the factual situation here we have no hesitancy in sustain-

ing the trial court’s authority to compel the board to take

specific action in compliance with the decree of the court

so long as such compelled action can be said to be neces-

- '. gary for the elimination of- the unconstitutional. evils

~——pointed out in the court’s decree.” 375 F.2d at 166.

’ Judge Lewis, concurring, explained the Court’s view that

since compulsion was used to maintain the system of seg-

‘regation, the compulsion. inherent in school assignment

policies could properly be used to disestablish segregation :

I have no quarrel with the statement that forced im

tegration when viewed as an end in itself is not a

compulsion of the Fourteenth Amendment. But any .

_elaimed right to disassociation. in the public schools

a 27 saat "iy

must fail and fall. I, lesegregation of the races:is to.

be accomplished in the public schools, forced associa-

' tion must result, not as the end sought but as the path .

to elimination of discrimination, And, to me, the argu- .

“ ment that racial discrimination cannot be eliminated

‘ through factors of judicial consideration that are based

“upon race itself is completely self-denying. The ‘prob-

‘lem arose through consideration of race; it may now

. be approached through similar but enlightened consjd-

eration. 375 F.2d at 169. coe?

In the second. Brown decision, 349 U.S, 294 (1955), this

Court directed thy} ‘in fashioning and effectuating the

decrees [ requiring desegregation], the courts will be guided

by equitable principles.” 349 U.S. at 300. The general

equity principle is that there is ite wrong without a remedy,

illegal-monopolization. United States v. Standard Oil Co.,

221 U.S. 1 (1910) ; Schine Chain Theatres v. United States,

. 334 US. 110 ( 1948). Similarly, it has been held to require |

that federal courts supervise the redrawing of state legis-

— districts when there is no other way to.counteract

the'effects of population disparities in ‘existing state legis..

lative districts. Reynolds v. Sims, 377 U.S. 533 (1964).

‘ ‘| ;

2 ‘ .

raf

€

As indicated above, decisions of the Courts of Appeals.

for the Fifth, Eighth, and Tenth Circuits have held that

thie equitable doctrine, as applied to the problem of remedy

for the unconstitutional creation and operation of a segre-

gated publi¢ school system, requires a school board to

undertake affirmative action purposed to disestablish segre-

gation completely, and that the standard for. determining

the completion of desegregation is that the formerly Negro

schools. must cease being identifiable ‘as Negro’ schools.

The creation and operation of separate schools for Negroes

was the condemned action, and the. test of the propriety

of remedial action to be required by a court is thus whether

it will disestablish the existence of the Negro sancti i.e.

integrate Negro students. |

This Court suggested in the second, evan decision the

scope of school system policies: which would have to be

changed in order to disestablish segregation, when it said

that “to effectuate this interest may call for elimination of

a variety of” obstacles,” and directed: the district courts

supervising the re-organization of. dual school systems to

“consider problems related to administration, arising from.

the physical condition of the school plant, the school trans-’

portation system, personnel, revision of school districts, and

attendance. areas into compact units to achieve a system

of determining admission to the public schools on a non-

racial basis,/ ang revision of léca). laws and regulations

which may be necessary in solving the foregoing problems. =

349. US: ‘at 300-301.

, Since this Court’s announcément of the second Brown

decision’ in 1955, the lower federal courts have considered

and ordered a variety of specific remedies which constitute

affirmative actions and policies purposed te eee

29 CC;

segregation.” See, e.g., United States v. Jefferson County,

Dowell vy. School Board of Oklahoma City\supra; Carr

v. Montgomery County Board of Education (Ala. ), 253

F. Supp. 306 @LD. Ala. 1966); Moses v. Washingion

Parish School Board (La.), E.D. La., Civil No. 15973,

October 19, 1967; Coppedge v. Franklin County Board of °

Hducation (N. Car.), 273 F. Supp. 289 (E.D.N.C. 1967) _

appeal pending ; Corbin v. County School.Board of Loudoun. .

County (Va.), ED. Va., Civil No. 2737, ‘August 27, 1967;.

Braxton v. Board of Public Instruction of Duval County

With regard to the “revision of school districts and at- °

tendance areas,” ordered by Brown II the Court of Ap-

peals for the Fifth Circuit held in Jefferson County, supra:

If school officials in any district should find that their’

district still has ségregated faculties and &chools or

only token en mee affirmative dufy to take

corrective action requires them to try an alternative

a freedom of choice plan, such as a geographic at-—

- tendance plan, a combination of the two, the Princeton

plan, or some other acceptable substitute, ‘perhaps

_ aided by an educational park. 372 Fd at 895-896.

- _ The Court-thus made it clear that the school board’s as-

-signment. transfer, building utilization, new construction. .

and other policies must be specifically designed to integrate -

the system and etasante. identifiable Negro schools.

12,A survey of various types of-remedies fdr the disestablishment of

segrepation is contained in f

on Civil Rights, “Racial Isolation in tke Public Schools,” (1967 ), Vi

pp. 140-183. This Survey was commended to the-s

‘distriet court by the Court of Appeals for the Eig

Beasley II, No. 19;017, January 9, 1968, slip op

30 |

The Court of Appeals for the Eighth Circuit’ adopted Sau

similar provisions in its decree in Kelley v. Altheimer,

supra.

The Desegregation Plan Approved by the Lower

Courts Is Inadequate in That Petitioners Demonstrated .

That the Zoning and Transfer Arrangements Were. Not —

Designed to Abolish the Dual System.

The school deneutegation plan proposed. by the Sesticiin,

--Tennessee beard, including particularly the junior high

_ school zoning arrangements and the transfer. plan, fail tg

meet a minimum standard of adequacy under Brown v.

Board of Education, 349 U.S. 294. The Jackson plan

should not have been approved because there was no.

reasonable likelihood that the plan could effectively abol-

ish,the dual system of schools. . . ,

Petitioners’ evidence ‘showed without dispute. that the

junior high school zones proposed for the system were

drawn so as to preserve racially segregated junior high

schools to'a large degree. They proposed a plan which

\would have desegregated all three junior high schools.

- There was no evidence which contradicted or impaired the

value of plaintiffs’ exhibit No. 20 (the same map as Ex-

hibit V within the booklet marked overall Exhibit No. 12).

This map depicts all of the Negro and white. pupils of

junior high school age in the city by race (Negroes in blue,

whites in red dots) and shows how they are distributed

. in the city.’ The ‘overlay containing the junior high school .

_ zone lines. shows plainly how a strangely shaped zone for

_ the all-Negro Merry school has been designed by the school

authorities to include most of the Negroes in The city and

exclude most of the whites. The racial effect of the junior

high school zones is readily apparent from an examina-

tion of PlaintiffsExhibit 20.

At the same time the school board proposed the junior

high school zones it took stgps to enlarge-the all-Negro

Merry Junior: High School. This enlargement was plainly

designed to accommodate all of the Negroes in. the city |

at Merry, since Jackson Jr. High School had capacity for |

me better than 200 more students than were enrolled there, ‘

and there was also excess capacity at Tigrett Junior High.

The racial purpose of this construction is further shown by

the fact that the board’s projections indicated no expected

large increase in the number of junior high school students .

in the next four years.

). °° The location of the three junior high schools (all of

‘which were opened in the years after Brown on a segre-

gated basis), the enlargement of Merry. Junior "High to

accommodate continued segregation, and the planning of

school zones separating white and Negro populations, all

make an unrebutted shawing of school building and school

zone planning to perpetuate segregation.

The board’s free ‘transfer device operates to permit an

even greater degree of segregation than could be accom-

_. plished by the school zones. Plaintiffs’ Exhibit 19 (the

" Same maps as Exhibit VI within the booklet Exhibit 12)

‘denionstrates how the use. of the combination of gerry-

is mandered zoning and an open transfer. plan at the junior

high level permits a high degree of segregation. The

exhibit indicates on map overlays the location of the resi-

dences. of pupils attending the three junior high schools.

(Note that the exhibits were prepared based on data in

December 1964 when the Junior High Schools were still-

segregated by compulsion. The respondents arguments

‘that these exhibits are somehow based Ay an effort to prove

“de facto” segregation are thus enti specious.) Exhibit

19 shows how relatively few childref/had to be transferred

‘out of their zones to maintain high degree of racial

separation. As we have discussed above, all of the ex-

_perience in Jackson, at the time this. plan was proposed

showed that white pupils would transfer out of the all

Negro schools if free transfers were permitted, thus leav-

_ing the all-Negro schodl intact as a segregated school.

‘The district court.found that there was gerrymangering

with respect to the zone lines of several elementary schools

‘proposed by the respondent board. The court ordered that

_ these zones be modified because of this apparent gerry-

-mandering. Given this finding that the respondent board

had once engaged in preparing school zone lines to. per-

petuate segregation, it was incumbent upon the district

court to scrutinize the newly proposed junior high school

zones all the more carefully. We submit that the trial

judge, having once found that the board was guilty of

gerrymandering with respect to certain proposed zones,

erred in failing to consider the irregularly shaped zones

proposed by the board for junior high schools to be greatly

suspect. It is submitted that the evidence plainly showed

the manipulation of school location, - construction, and

zoning policies to maintain a high degree of segregation.”

This was-sutficient to require disapproval of the board’s

proposed plan and for the trial court to have ordered the

adoption of the proposed feeder plan suggested: by plain-

tiffs’ experts ag a method of actually desegregating -all

three junior high schools within the framework of the

existing building locations, and grade structures, and build-

13 The availability of a transfer option, however “free”, does not

justify the continued practice of school assignments based on racially

gerrymandeied zone lines. See Wheeler v. Durham City. Board of Ed-

ucation, 346 F.2d 768 (4th Cir. 1965) (Students assigned by racially

gerrymandered zones, then granted right to er out. Held: “Chan- <

neling pupils into schools by-a method involving discriminatory practices

and then requiring them, or even permitting them, fo extricate them- |

selves froni situations thus illegally created, will not be approved.” 346

F.2d oa 178).

* 33

ing capacities. If this feeder proposal was .not adopted,

at the least-the court should have required some alternative

method of assignment to be proposed by the board which

_ Was equally as likely as the. feeder method to actually

disestablish an dual system of junior high schools.

We urge that the evidence on this record is fully sufficient

to justify this Court in ruling that the plan approved below

was plainly inadequate under Brown. However, assuming

arguendo that the record is nof sufficient to support a ruling

- rejecting the plan as completely inadequate then the cause

should be returned to the’ District Court for reappraisal

- in view of the proper standards for review of desegrega-

tion plans : as discussed in part I of the argument, supra.’

‘The trial court’s view of the evidence, the alternative pro-

prosals made by petitioners’ experts, and the entire gerry-

mandering and transfer plan issues was influenced by the

court’s too restricted view of the constitutional require-

ment of desegregation. me: .

pe ry

CONCLUSION

, ‘It is semen submitted that the judgment of the

court below should be reversed.

Respectfully submitted,

Jack QREENBERG

~ James’ M. Nasrrt, IIT

MicHarL MELTSNER

Micuart J. Henry '

10 Columbus Circle

New York, New York 10019

Avon N. Wiriniams, JR.

Z. ALEXANDER Loosy

McClellan-Looby Building

Charlotte at Fourth

Nashville, Tennessee- 37201

~ J. Exmetr Bannarp ~

116 West Lafayette Street

' Jackson, Tennessee £ 2

Attorneys for Petitioners

as -

Geraup A. SMITH

Frankurx E. Waitt

‘ Of Counsel

Oe hone gmammne ep ae ati |

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.