# Petition for Writ of Certiorari — Davis v. Board of School Comm'rs of Mobile Cty. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0267%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1971 - **Citation:** 402 U.S. 33 ## Text RAS WerER eSB FILED JUL 23 E. ROBERT SEAVER, In THE Supreme Court of the United States October Term, 1970 No. 43 6 Birviz Maz Davis, et al., Petitioners, Vv. Boarp or ScHoot ComMMISSIONERS OF Mosite County, et al. MOTION TO ADVANCE AND PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Jack GREENBERG James M. Nasait, III MicuaeLt Davipson Norman J. CHacHxin 10 Columbus Circle New York, New York 10019 Vernon Z. Crawrorp ALtcerNon J. Cooper 1407 Davis Avenue Mobile, Alabama 36603 Attorneys for Petitioners aan INDEX PAGE SII MIIIIINNY sinc ctatthcanincstchieeeacaurtns oeredishalnamienncmacneanaiin 1 SII. "tid sind aiiarcisceniecnti dag ciacdaekacaneanmercanaadiwaamedmentanias 2 Question Presented .................... laiaiiataieidatidanihaneihiadadiinaaidion 2 Constitutional Provision Involved oo.....c.cccccccccceceseseseeeeeeee 3 Statement: 1. A Bricf Overview of the School System ............ 3 2. Summary of Proceedings in the Courts Below 4 3. The Techniques of Segregation ...0.....0.......0.00--- 12 Reasons for Granting the Writ: I. The Decision Below Conflicts With Rulings Both of This Court Since Brown and of Other Courts of Appeals. It Absolves School Boards of Responsibility to Provide Equal Educational Opportunity to Black Students Contained in Segregated Schools by “Neighborhood Resi- dential Patterns” Which Are Themselves the Result of State Action Combined With Private Re I CER SARE oO 15 II. This Court Should Grant Certiorari in Order to Insure Petitioners’ Due Process Right to an Evidentiary Hearing in the District Court ...... 28 ie etikesiemnnsanh Pideeriadncnie 31 Appendix: Order of District Court of January 31, 1970 ............ Opinion of Court of Appeals dated June 8, 1970... 8a Judgment of Court of Appeals dated June 8, 1976 23a Orders of Court of Appeals on Rehearing dated June 29, 1970 ..... iaelinaaniasiiaaninsuanman 25a Orders of Court of Appeals Denying Rehearing dated June 29, 1970 26a Tables of Cases: Alexander v. Holmes County Board of Education, 396 U.S. 19 (1969) 17, 27, 30 Anthony v. Marshall County Board of Education, 419 F.2d 1211 (5th Cir. 1969), rev’d on other grounds, sub. nom. Carter v. West Feliciana Parish School Board, 396 U.S. 290 (1970) 16 Bradley v. Board of Public Instruction of Pinellas County, No. 28639 (5th Cir., July 1, 1970) .............. 16, 29 Brewer v. School Board of City of Norfolk, 397 F.2d 37 (4th Cir. 1968) . 21, 24 Brewer v. School Board of City of Norfolk, No. 14,544 (4th Cir., June 22, 1970), cert. denied, 38 U.S.L.W. 3522 (June 29, 1970) 15, 25 Brown v. Board of Education, 347 U.S, 483 (1954)... 15 Calhoun v. Cook, Civ. No. 6298 (N.D. Ga., Feb. 19, 1970) ... ile 16 Calhoun v. Latimer, 377 U.S. 263 (1964) oo...ecccccoseceeone 15 Carr v. Montgomery County Board of Education, No. 29521 (Sth Cir., June 29, 1970) ou... 16 Carter v. West Feliciana Parish School Board, 396 U.S. 290 (1970) - 1, 4, 6, 17, 19, 29 Clark v. Board of Education of the Little Rock School District, No. 19,795 (8th Cir., May 13, 1970) .............. iii PAGE Cooper v. Aaron, 358 U.S. 1 (1958) 15 Crawford v. Board of Education of City of Los Angeles, No. 822-854 (Super. Ct. Cal., February 11, a 25 Davis v. Board of School Commissioners of Mobile County, 414 F.2d 609 (Sth Cir. 1969) 00. 12, 28 Davis v. Board of School Commissioners of Mobile County, 364 F.2d 896 (Sth Cir. 1966) 00002... 17 Davis v. School District of City of Pontiac, 309 F. Supp. 734 (E.D. Mich. 1970) 25 Dove v. Parham, 282 F.2d 256 (8th Cir. 1960) .............. 15 Ellis v. Board of Public Instruction of Orange County, Florida, 423 F.2d 203 (Sth Cir. 1970) ............ 10, 16, 19, 25 Goss v. Board of Education of Knoxville, 373 U.S. 683 or oe CRIES MSE 15, 20 Green v. County School Board of New Kent County, aon US. 430 (1068) ...................... ssaianeases 15, 16, 19, 21 Jones v. Alfred H. Mayer & Co., 392 U.S. 409 (1969)... 21 Mannings v. Board of Public Instruction of Hills- borough County, No. 28,643 (Sth Cir. May 11, IAT TEL ischial nlenstpinnnictbsonoddibaninsinanin 10, 16 MecFerren v. Fayette County Board of Education, Civ. No. C-65-136 (W.D. Tenn., December 24, 1969) ........ 16 Monroe v. Board of Commissioners of Jackson, No. 19720 (6th Cir., June 19, 1970) ........0. 15 Northcross v. Board of Education of Memphis, 397 ITE "ahi hiei ab inieteceaninsocesineriinntineinace 17 Ross v. Eckels, Civ. No. 10,444 (S.D. Tex., June 1, a Oe 16 iv PAGE Singleton v. Jackson Municipal Separate School Dis- trict, No. 26285 (5th Cir., Jan. 15, 1970) ....................-- 29 Singleton v. Jackson Municipal Separate School Dis- trict, 419 F.2d 1211 (5th Cir. 1969) 1,6 Spangler v. Pasadena City Board of Education, Civ. No. 64-1438-R (C.D. Cal., March 12, 1970) ................ 25 Stell v. Savannah-Chatham County Board of Educa- tion, 333 F.2d 55 (5th Cir.), cert. denied, 379 U.S. 933 (1964) 15 Swann v. Charlotte-Mecklenburg Board of Education, No. 281, O.T. 1970, cert. granted, June 29, 1970, 38 U.S.L.W. 3522 25 Swann v. Charlotte-Mecklenburg Board of Education, 300 F. Supp. 1358 (W.D. N.C. 1969) .................... 20, 24, 31 United States v. Lincoln County Board of Education, 301 F. Supp. 1024 (§.D. Ga. 1969) 16 Valley v. Rapides Parish School Board, Civ. No. 10,946 (W.D. La., July 5, 1970) 16 Statutes: Fair Housing Act of 1968, 42 U.S.C.A. §§ 3601 et seq. 21 28 U.S.C. § 1254(1) 2 Other Authorities: Abrams, Forbidden Neighbors (1955) 21 Racial Isolation in the Public Schools, A Report of the U.S. Commission on Civil Rights (1967) .................... 21 Weaver, The Negro Ghetto (1948) 21 Weinberg, Race and Place—A Legal History of the Neighborhood School (U.S. Gov’t Printing Office, Catalogue No. FS 5.238 :38005, 1967) 19 IN THE Supreme Court of the United States Octroser Term 1970 ee cache Brorz Maz Davis, et al., Petitioners, Vv. Boarp or ScHoot ComMMISSIONERS OF Mostte County, et al. MOTION TO ADVANCE Petitioners, by their undersigned counsel, respectfully move that the Court advance its consideration and disposi- tion of this case, which presents issues of national im- portance about which the court bélow and other United States Courts of Appeals are divided in their interpretation of Green v. County School Bd. of New Kent County, 391 U.S. 430 (1968), Alexander v. Holmes County Bd of Educ., 396 U.S. 19 (1969) and Carter v. West Feliciana Parish School Bd., 396 U.S. 296 (1970). These issues require prompt resolution by this Court for the reasons stated in the annexed Petition for Writ of Certiorari. WHEREFORE, petitioners pray that the Court: 1. Consider this motion immediately; 2. shorten the time for filing respondents’ response to the annexed petition and 2 3. consider the annexed petition at the Court’s earliest possible opportunity. Respectfully submitted, JacK GREENBERG James M. Nasait, III Norman J. CHACHKIN 10 Columbus Circle New York, New York 10019 Vernon Z. CRaAwForD Aucernon J. Cooper 1407 Davis Avenue Mobile, Alabama 36603 Attorneys for Petitioners In THE Supreme Court of the United States October Term, 1970 | ne Birvre Maz Davis, et al, Petitioners, v. Boarp or ScHoot CoMMISSIONERS OF Mose County, et al. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Petitioners pray that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the Fifth Circuit, entered in the above entitled case on June 8, 1970. Petition for rehearing was denied June 29, 1970. Opinions Below The opinions of the courts below directly preceding this petition’ are as follows: 1 Karlier proceedings in this case are reported as Davis v. Board of School Comm’rs of Mobile County, 318 F.2d 63 (5th Cir. 1963) ; 322 F.2d 356 (5th Cir.), stay denied, 11 L.Ed.2d 26 (Mr. Justice Black, Circuit Justice), cert. denied, 375 U.S. 894 (1963), rehear- ing denied, 376 U.S. 898 (1964) ; 333 F.2d 53 (5th Cir.), cert. de- nied, 379 U.S. 844 (1964) ; 364 F.2d 896 (5th Cir. 1966) ; 393 F.2d 690 (5th Cir. 1968); 414 F.2d 609 (5th Cir. 1969); sub nom. Singleton v. Jackson Municipal Separate School Dist., 421 F.2d 1211 (5th Cir.), interim relief ordered, 38 U.S.L.W. 3220 (1969), rev'd sub nom. Carter v. West Feliciana Parish School Bd., 396 U.S. 290 (1970). 2 1. Opinion and order of the District Court filed Janv- ary 31, 1970, unreported (1la-7a). 2. Opinion of the Court of Appeals filed June 8, 1970, not yet reported (8a-22a). 3. The judgment of the Court of Appeals (23a-24a). 4. Orders of the Court of Appeals on the petition for rehearing (8a-22a). Jurisdiction The judgment of the Court of Appeals was entered on June 8, 1970 (24a). The jurisdiction of this Court is in- voked under 28 U.S.C. §1254(1). Question Presented Upon request from the courts below, the United States Department of Health, Education, and Welfare developed several plans to desegregate public schools in Mobile County, Alabama. One plan integrated each school in the system by establishing a number of school pairings and clusters which necessitate the incidental transportation of both black and white students. This technique of student assignment—the use of school attendance zones with non- contiguous parts and the transportation of students—had long been used in the Mobile school system to maintain segregated schools. In spite of this history and without any evidentiary hearing in the District Court, the Court of Appeals rejected this H.E.W. plan and ordered the implementation of a plan which leaves 7,725 black students in eight all-black schools. The rejection of the H.E.W. plan was based solely on the Court’s deference to a hypo- thetical “neighborhood schoo] concept” (13a) which Mobile had not theretofore had. 3 The fundamental question presented to this Court is whether black students are denied the equal protection of the laws when they continue to be assigned to segregated black schools despite the availability of ar alternative method of student assignment which would desegregate every school in the system and which is proved feasible by the school board’s past use of the same assignment techniques. Constitutional Provision Involved This case involves the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. Statement 1. A Brief Overview of the School System. Mobile has a combined rural and metropolitan school system serving the whole of Mobile County. It is the largest school system in Alabama;‘91 schools in the sys- tem served 73,504 students during 1969-70. The total number of white students is 42,620, or 58% of all students. and the total number of black students is 30,884, or 42% of all students. Throughout the litigation to desegregate Mobile’s schools, the rural and metropolitan portions of the system have been treated separately. Since September 1969 the rural portion of the system has been desegregated adequately and this petition concerns only the metropolitan area com- prised of the contiguous cities of Mobile, Pritchard and Chickasaw. Within the metropolitan area there are 65 schools serving 54,913 students, of whom 27,769 or 50.5% are white and 27,144 or 49.5% are black. 4 In addition to the rural-metropolitan division, another division has more recently been advanced in this litigation. This newer division is between the eastern and western parts of the metropolitan area with Interstate Highway I-65 used as a north-south divider. The western part is predominantly white with 17 schools serving 13,875 stu- dents, of whom 12,172 or 88% are white and 1,703 or 12% are black. The eastern part is majority black with 48 schools serving 41,038 students, of whom 15,597 or 38% are white and 25,441 or 62% are black. The controversy which led to this Court’s decision in Carter v. West Feliciana Parish School Board, 396 US. 290 (1970), concerned the decisions of the courts below to treat separately the predominantly white and majority black parts of metropolitan Mobile by permitting the for- mulation of separate plans for each, and to delay desegre- gating the majority-black part until 1970-71. It is the continuing effort by tle school board and the courts below to subdivide the metropolitan area which necessitates action by this Court. 2. Summary of Proceedings in the Courts Below. This action by black parents and students to desegregate Mobile County’s public schools began in 1963. The United States intervened in 1967 and successive groups of white parents intervened in 1968 and earlier this year. The cur- rent phase of this litigation began with the Court of Ap- peals’ June 3, 1969 decision. The main issue before the Court of Appeals at that time was whether the School Board and the District Court had complied with a previous decision of the Court of Ap- peals* by establishing school attendance zones for elemen- ?The June 3, 1969 decision is reported at 414 F.2d 609; the previous decision is reported at 393 F.2d 690. 5 tary and junior high schools, and maintaining freedom of choice for high school students in metropolitan Mobile. A second issue was retention of freedom of choice for all students in rural Mobile County. The Court of Appeals found that the District Court had “ignored the unequivocal directive to make a conscious effort in locating attendance zones to desegregate and eliminate past segregation.” 414 F.2d at 611. Freedom of choice in metropolitan high schools and all rural schools was also held to be unac- ceptable. Accordingly, the Court of Appeals ordered the prompt formulation of a plan “to fully and affirmatively desegregate all public schools in Mobile County, urban and rural...” and directed the District Court to request the Office of Education of the United States Department of Health, Education, and Welfare to collaborate with the School Board and submit its own desegregation plan if agreement with the Board was not possible. Ibid. H.E.W. and the School Board could not agree on a plan and H.E.W. submitted its own county-wide desegregation plan on July 10, 1969. The plan provided for zoning all schools in rural and metropolitan Mobile (some schools would be paired within zones), closing four black schools in eastern Mobile, and transporting 2,000 black students from the closed schools to white schools in the western and southern parts of the metropolitan area. Petitioners sought implementation of the plan with amendments to correct two deficiencies: (1) the plan retained five large all-black elementary schools serving 5,500 students because H.E.W. was unwilling to recommend the transportation of white students in addition to the transportation of black students; and (2) the plan deferred desegregation in eastern metropolitan Mobile, where 85% of the system’s black students live, until 1970-71. On August 1, 1969, with- out a hearing, the District Court ordered the implemen- 6 tation of H.E.W.’s plan for rural and western metropoli- tan Mobile, as modified by the Court to eliminate the H.E.W. proposal to transport 2,000 black students from eastern to western metropolitan Mobile. The District Court did accept H.E.W.’s plan to defer desegregation in eastern metropolitan Mobile until 1970-71. Petitioners appealed the delay, the Court of Appeals affirmed,’ Mr. Justice Black ordered the School Board to prepare for desegregation by February 1, 1970,‘ and this Court reversed the delay.’ The case returned to the Dis- trict Court in late January 1970 for second semester im- plementation of a plan to complete the desegregation of Mobile’s schools. In the meanwhile, H.E.W. had submitted two additional plans to the District Court on December 1, 1969. Using the July 10, 1969 plan as a base (and labelling it Plan B), H.E.W. proposed one modification (Plan B Alternative) which totally eliminated the transportation of students by continuing in operation the four black schools which the July, 1969 plan closed. Plan B Alternative would leave nine all-black schools serving 7,971 students (15a). The second modification (Plan B-1 Alternative) recom- mended closing two black schools, and pairing or clustering all other black schools in eastern Mobile with white school in western or southern Mobile. Transportation of both 3 Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (5th Cir. 1969). *38 U.S.L.W. 3220 (1969). 5 Carter v. West Feliciana Parish School Board, 396 U.S. 290 (1970). ° These additional H.E.W. plans were submitted in accordance with the District Court’s August 1, 1969 decision which established December 1, 1969 as the time for submitting plans for the 1970-71 school year. ery S| SlCr ee Se 7 black and white students would be required and all schools in the system would be integrated (Ibid.).” The same day, the School Board submitted its own plan for eastern Mobile. It assigned 18,832 black students to 21 all or nearly all black schools.’ The District Court called attorneys for all parties to a “pre-trial conference” in chambers on January 23, 1970 (2a). At the conference the following positions were taken: (1) petitioners contended that the elementary school pro- visions of H.E.W.’s Plan B-1 Alternative and the junior and senior high school provisions of H.E.W.’s Plan B should be implemented forthwith, but if the transportation proposals made immediate relief impossible and the Dis- trict Court selected another plan pendente lite, then a hearing should be promptly set to determine a permanent plan; (2) the United States proposed that the H.E.W. plan involving no transportation (Plan B Alternative) be implemented pendente lite while discovery and hearings on a permanent plan proceeded; (3) the School Board argued against any changes in its operations; and (4) the District Court stated it would not consider the plans petitioners supported and that the School Board’s December 1, 1969 plan was unacceptable without modifications. The District Court concluded the conference by asking the School Board for modification of its December 1, 1969 plan and the United States “for [a] revision of the H.E.W. plan which the government thought should be followed for the remainder of the present school year” (2a). The ™Plan B-1 Alternative involved only elementary schools. For junior and senior high schools it proposed to incorporate the pro- visions of Plan B. * Petitioners, despite repeated requests, were not served with a copy of the Board’s plan and had to move on January 2, 1970 for an order compelling service which was not made until the District Court granted the motion February 27, 1970. 8 School Board failed to respond to the court’s request.’ The United States submitted a revision of H.E.W.’s no-trans- portation alternative (Plan B Alternative) “as a plan which could be implemented immediately to remain in effect only for the present school year.” ’® Then, despite its own characterization of the January 23 conference as a “pretrial conference” and both petitioners’ and the United States’ clearly stated position that plaintiffs sought only mid-year relief pending hearings on a permanent deseg- regation plan, the District Court without an evidentiary hearing entered an order on January 31, 1970 which pur- ported to finally disestablish the dual system in Mobile (la-7a). Mindless of its expressed view at the January 23, 1970 conference that the Board’s proposals were unacceptable, the District Court’s order adopted the School Board’s De- cember 1, 1969 plan with only several modifications. The order left 18,623 black students, or 60% of the system’s black students, in 18 all- or nearly all-black schools (18a- 22a). The court dismissed H.E.W.’s Plan B-1 Alternative, which would establish pairings and clusters of non-con- tiguous zones and require transporttion of students, by making the general observation that it “would require busing of children from areas of the city to a different and unfamiliar area” (3a) and by singling out one" of *In its January 31, 1970 order the District Court commented on the Board’s failure: “The school board and its staff of administrators and profes- sional educators, who know the Mobile Public School System best, who have all the facts and figures which are absolutely necessary for a meaningful plan, have not assisted or aided the Court voluntarily. Consequently, the plan which is by this decree being ordered is not perfect .. .” (2a-3a). 1° Brief for the United States in the Court of Appeals, p. 22. 11 The one elementary arrangement which the court singled out involved three schools, two white and one black, in a cluster. All a, nan ae ete aoa & ee aa Ae on a a ee a a ee a ee a in ie -_— - _ in tn sae A oe eee ae ee 9 the sixteen H.E.W. proposed pairs or clusters, presumably to illustrate the court’s conclusion that H.E.W.’s proposal was “motivated for the sole purpose of achieving racial balance” (4a). Similarly, the court dismissed H.E.W.’s Plan B for junior high schools by citing but one atypical proposal to establish a cluster of three junior high schools, stating that in the court’s view “the Supreme Court has not held that such drastic techniques are mandatory for the sole purpose of achieving racial balance” (4a). Petitioners, the United States, and the School Board appealed. Petitioners challenged both the failure of the District Court to conduct an evidentiary hearing before ordering a final plan and the court’s failure to require the School Board to implement H.E.W.’s plan to establish nou- contiguous pairings and clustering and transport both black and white students to achieve complete desegregation. The United States, while acknowledging that the School Board’s past practices indicate that any of H.E.W.’s plans would be feasible, asked the Court of Appeals to require the implementation of H.E.W.’s sole no-transportation plan for the negative reason that “no argument can be made that plan B Alternative, which is the most modest plan, students in the cluster would attend one of the white schools for the first and second grades, the second white school for the third grade, and the black school for grades four through six (4a). Of the remaining fifteen elementary school arrangements in H.E.W.’s Plan B-1 Alternative, only one other was similar. Eleven involved only two schools with all students attending either the black or white schools for two or three years and then attending the other school for the remaining elementary school grades. Three other arrangements involved three schools but required attendance at only two schools. Under these arrangements all students in the cluster would attend one school for grades one and two and then divide, with one-half attending the second school in the cluster for grades three through five and the other half attending the third school for the same grades. Neither the simple pairing of two schools serving non-contiguous black and white zones nor this latter type of clustering were discussed by the District Court. 10 is either educationally unsound or administratively in- feasible.” ** The School Board, although cross appealing, sought affirmance of the District Court’s order. The Court of Appeals, after remanding for further find. ings of fact,’* decided the appeal on June 8, 1970. The court defined its judicial task in these words: We have examined each of the plans presented to the district court in an effort to determine which would go further toward eliminating all Negro or virtually all Negro student body schools while at the same timc maintaining the neighborhood school concept of the school system (13a). In the court’s view the neighborhood assignment system allows two alternatives. One alternative requires the as- signment of each student to the school nearest his home with such assignments limited only by the capacity of the schools. Ellis v. Board of Public Instruction of Orange County, Florida, 423 F.2d 203, 207 (5th Cir. 1970). The other alternative is the establishment of attendance zones “on a discretionary basis as distinguished from a strict neighborhood assignment. . . .” Mannings v. Board of Public Instruction of Hillsborough County, Florida, No. 28643 (5th Cir., May 11, 1970) (Slip Op., p. 6). Mobile, the 2 Brief for the United States in the Court of Appeals, p. 47. 13The remand was required by the District Court’s failure to determine how the School Board’s plan, which it adopted, would affect the racial composition of any of the system’s schools. The remand also directed the District Court to make findings on the extent of desegregation of faculty, transportation and extracur- ricular activities. Petitioners moved in the District Court on April 6, 1970 to establish a procedure whereby after the Board submitted proposed findings of fact an evidentiary hearing would be held. The School Board submitted an affidavit which the Dis- trict Court accepted in toto “excluding self-serving declarations and speculative opinions.” Order of April 14, 1970. Petitioners’ motion for a hearing was denied the same day. 11 court concluded, had itself chosen not to use “the strict neighborhood assignment system” but instead uses “discre- tionary zones lines” (13a). As Mobile had made that deci- sion for itself, the Court ruled that the desegregation plan “can be greatly improved by pairing some schools located in proximity to each other ... [and] also be improved by recasting the grade structure in some of the buildings but, at the same time, maintaining the neighborhood school concept” (Jbid.). The plan which found favor with the court was the plan submitted by the United States as a modification of H.E.W.’s no-transportation Plan B Alternative. The plan left 8,515 black students in all-or nearly all-black schools (Ibid.); the court rejaired modifications of the plan to reduce the number of black students in all-black schools to 7,725 students in 8 elementary schools, which it noted amounted to 25% of Mobile’s black students being assigned to all-black schools (24a). In terms of elementary school students in metropolitan Mobile, the plan results in the assignment of 58% of black elementary school students to all-black schools. These results were justified by the court in four ways: (1) “every Negro child would attend an integrated school at some time during his education career” (13a); (2) “the all Negro student body schools which will be left after the implementation of the Department of Justice plan, as modified, are the result of neighborhood patterns” (15a- 16a); (3) the remaining segregation can be “alleviated” through a policy allowing black students to transfer to white schools with transportation provided (16a); and (4) the situation may be further alleviated by the establish. ment of a bi-racial committee to serve in an “advisory capacity” to the School Board (Ibid). 12 The Court of Appeals remanded the case to the District Court with instructions to implement a new plan by July 1, 1970, On remand the District Court ordered the implemen. tation of the plan submitted by the United States except for amendments to two school districts which the Court will make. 3. The Techniques of Segregation. Although the District Court has not permitted any evi- dentiary hearings on a desegregation plan since the sum- mer of 1968, the record of the extensive hearing that sum- mer and in previous years fully documents the various techniques used by the School Board to segregate Mobile’s schools." a. Grade Structures. The Mobile school system has used an extraordinarily wide variety of grade structures, in- cluding schools serving grades 1-5, 1-6, 1-7, 1-8, 1-9, 1-12, 2-5, 6-7, 6-8, 6-9, 6-10, 6-12, 7, 7-8, 7-9, 7-11, 7-12, 8-12, 9-12, 10-11, 10-12. By selectively decreasing or increasing the number of grades served at particular schools, the School Board has increased or decreased the area served by the school to coincide with racial residential patterns (R. 26,886 Vol. V, pp. 1527-1534). For example, the School Board established the Hillsdale School as the only metropolitan school serving grades 1-12 in order to restrict its attendance area to a small black community in the western part of the metropolitan area. In downtown Mo- bile, the School Board between 1962 and 1967 candidly re- organized grade structures, and assigned portables and closed schools, to maintain segregated schools in the face of rapidly shifting racial residency patterns (R. 26,886 ** This portion of the petition is a summary of a longer analysis of these techniques contained in the Brief for the United States in the Court of Appeals, pp. 4-18. Citations to R. 26,886 are to the record before the Court of Appeals in Davis v. Board of School Commissioners of Mobile County, 414 F.2d 609 (5th Cir. 1969). 13 Vol. VI, pp. 25-35). School segregation was also the ob- jective in arranging grade structures at four white schools surrounding a black school in northern metropolitan Mo- bile to enable white students to attend one white school for grade 6, a second for grades 7 and 8, a third for grade 9, and a fourth for grade 10, all in order to prevent their attendance at a nearby black school (R. 26,886 Vol. IV, pp. 1331-32). b. Zones. The splitting of school attendance zones (i.e., non-contiguous zones) has been a common method of school assignment in Mobile. As many as nineteen non-contiguous zones were used in one year, 1964-65, including one split zone in which the parts were separated by over 11 miles.*® Transportation between split zones was provided by the School Board (R. 26,886 Vol. I, pp. 5-6). c. Portable Classrooms. The selective assignment of portable classrooms in order to expand the capacity of black schools as a way of avoiding the assignment of black students to under-utilized nearby white schools has been a method of maintaining segregated schools (R. 26,886 Vol. I, pp. 90-93). d. Transportation. Busing has not been limited to the rural parts of the school system. During 1966-67 the School Board bused 7,116 students daily in the metropolitan area. Approximately 2,350 of these students were bused because of non-contiguous zoning (R. 26,886 Vol. I, pp. 5-6) A considerable amount of busing was designed to maintain segregation. As an example, 582 black students were bused over 6 miles from rural Saraland and Satsuma to a black school in metropolitan Mobile to prevent integration at white schools in their communities (Ibid). 15 The facts were culled from numerous exhibits and appear in summary form in the Brief of the United States in the Court of Appeals, pp. 7-9 and Appendix C. 14 e. Construction. New schools in Mobile have been lo- cated in order to serve only selected racial groups. For example, although population movements in downtown Mo- bile left unused classrooms in white schools, the Board embarked on a plan during the 1966-67 school year to construct four schools for black students in order to avoid the reassignment of blacks at overcrowded black schools to available space at white schools (R. 26,886 Vol. VI, pp. 25-35). A few years earlier, in 1963, the School Board sought to justify to this Court its failure to even begin desegregation by pointing to its ongoing construction of “colored schools.” Justice Black’s opinion in chambers recited the Board’s contentions: Yet this record fails to show that the Mobile Board has made a single move of any kind looking towards a constitutional public school system. Instead, the Board in this case has rested on its insistence that continuation of the segregated system is in the best interests of the colored people and that desegregation would “seriously delay and possibly completely stop” the Board’s building program “particularly the im- provement of and completion of sufficient colored schools which are so urgently needed.” In recent years, more than 50% of its building funds, the Board pointed out to the parents and guardians of its colored pupils, had been spent to “build and improve colored schools,” and of eleven million dollars that would be spent in 1963, over seven million would be devoted to “colored schools.” It is quite apparent from these statements that Mobile County’s program for the future of its public school system “lends itself to perpetuation of segregation” ..- Davis v. Board of School Commissioners of Mobile County, 11 L. Ed. 2d 26, 28 (1963) 15 REASONS FOR GRANTING THE WRIT I. The Decision Below Conflicts With Rulings Both of This Court Since Brown and of Other Courts of Ap- peals. It Absolves School Boards of Responsibility to Provide Equal Educational Opportunity to Black Stu- dents Contained in Segregated Schools by ‘“Neighbor- hood Residential Patterns” Which Are Themselves the Result of State Action Combined With Private Discrimi- nation. Since Brown v. Board of Educ., 347 U.S. 483 (1954), this Court has consistently invalidated subterfuges by which schoo] districts have sought to maintain racially separate and identifiable schools, whether such devices relied upon school board or private initiative to produce the desired result. E.g., Cooper v. Aaron, 358 U.S. 1 (1958) (delay sought due to community opposition); Goss v. Board of Educ. of Knoxville, 373 U.S. 683 (1963) (minority-to- majority transfer allowing avoidance of integration) ; Green v. County School Bd. of New Kent County, 391 US. 430 (1968) (free transfer plan permitting same result) ; cf. Calhoun v. Latimer, 377 U.S. 263 (1964) (grade-a-year desegregation). Lower courts have done the same. E.v., Dove v. Parham, 282 F.2d 256, 258 (8th Cir. 1960) (pupil placement) ; Brewer v. School Bd. of City of Norfolk, No. 14, 344 (4th Cir., June 22, 1970) (en banc) (assignments based on social class) ; Monroe v. Board of Comm'rs of Jackson, No. 19720 (6th Cir., June 19, 1970) (same); Stell v. Savannah-Chatham County Bd. of Educ., 333 F.2d 55, 62 (5th Cir.), cert. denied, 379 U.S. 933 (1964) (assignment based on purported intelligence differences among races), compare Anthony v. Marshall County Bd. of Educ., 419 16 F.2d 1211 (Sth Cir. 1969), rev’d on other grounds sub nom. Carter v. West Feliciana Parish School Bd., 396 U.S. 290 (1970) (assignment by achievement test scores); United States v. Lincoln County Bd. of Educ., 301 F. Supp. 1024 (S.D. Ga. 1969) (same); McFerren v. Fayette County Bd. of Educ., Civ. No. C-65-136 (W.D. Tenn., December 24, 1969) (sex segregation). The progress so far been realized in converting dual school systems into unitary ones from which all vestiges of discrimination have been extirpated, Green v. County School Bd. of New Kent County, supra, is severely jeopar- dized by the decision below and others like it which have seized upon a justification for continued segregation in the so-called “neighborhood school concept.” '* This concept, whatever it means—imprecision is one of its characteristics, compare Ellis v. Board of Public In- struction of Orange Coanty, supra, with Mannings v. Board of Public Instruction of Hillsborough County, supra—has been advocated in the past as in the present by those seek- ing to preserve segregation. As former Chief Judge Tuttle observed earlier in this very litigation, the “neighborhood school is a euphemism for separation.” Both in the testimony and in the briefs, much is said by the appellees about the virtues of “neighborhood schools.” Of course, in the brief of the Board of Educa- tion, the word “neighborhood” doesn’t mean what it usually means. When spoken of as a means to require Negro children to attend a Negro school in the vicinity 16 F.g., Ellis v. Board of Public Instruction of Orange County, supra; Mannings v. Board of Public Instruction of Hillsborough County, supra; Carr v. Montgomery County Bd. of Educ., No. 29521 (5th Cir., June 29, 1970); Bradley v. Board of Public In- struction of Pinellas County, No. 28639 (5th Cir., July 1, 1970); Ross v. Eckels, Civ. No. 10,444 (S.D. Tex., June 1, 1970) ; Calhoun v. Cook, Civ. No. 6298 (N.D. Ga., Feb. 19, 1970) ; Valley v. Rapides Parish School Bd., Civ. No. 10,946 (W.D. La., July 5, 1970). 17 of their homes, it is spoken of as a “neighborhood” school plan. When the plan permits a white child to leave nis Negro “neighborhood” to attend a white schoo] in another “neighborhood” it becomes apparent that the “neighborhood” is something else again. As every member of this court knows, there are neighbor- hoods in the South and in every city of the South which contain both Negro and white people. So far as has come to the attention of this court, no Board of Education has yet suggested that every child be re- quired to attend his “neighborhood school” if the neigh- borhood school is a Negro school. Every board of edu- cation has claimed the right to assign every white child to a school other than the neighborhood school under such circumstances. And yet, when it is suggested that Negro children in Negro neighborhoods be permitted to break out of the segregated pattern of their own race in order to avoid the “inherently unequal” education of “separate educational facilities,” the answer too often is that the children should attend their “neighborhood school.” ae So, too, there is a hollow sound to the superficially ap- pealing statement that school areas are designed by observing safety factors such as highways, railroads, streams, etc. No matter how many such barriers there may be, none of them is so grave as to prevent the white child whose “area” school is Negro from crossing the barrier and enrolling in the nearest white school even though it be several intervening “areas” away. Davis v. Board of School Comm’rs of Mobile County, 364 F.2d 896, 901 (5th Cir. 1966). It is only now, after the decisions of this Court in Alez- ander, Carter and Northcross have made unmistakable the 18 requirement of integration, that the “neighborhood school” is offered as an inviolate principle of student assignment. Like its predecessors—pupil placement and similar schemes —its purpose is obvious: to provide a superficially neutral gloss to the maintenance of racially separated schools. Manipulating the “neighborhood school concept” today, as many school boards seek to have it applied, and as the Court of Appeals used it, means in almost every instance (except in small, rural districts) that a significant segment of a school district’s black student population will continue to be assigned to all-black schools. This departure from the clear mandates of this Court from Brown to Northcross is offered as justifiable because of “neighborhood residential patterns.” Nowhere is this new rule more anomalous in result than in Mobile. The district court had before it a number of different desegregation plans for the Mobile school system, submitted under court order because freedom of choice had failed to change Mobile’s dual school system. Yet neither the district court nor the Court of Appeals chose the plan which would integrate every school and destroy racial identifiability in the school system. Instead, both courts left black students and white students alike in segregated schools to preserve what they erroneously per- ceived to be Mobile’s “neighborhood school system.” But we do not deal here, as Judge Tuttle recognized four years ago, with a school system in which the neighborhood school concept has a long, hallowed or neutral history. Mobile never considered the neighborhood school concept a bar to its efforts to prevent the attendance of black and white students at the same schools. The extensive record and prolonged proceedings in this case show that the pair- ing of non-contiguous attendance zones, the transportation of students from one school zone to another, the closing 19 and conversion of schools, and the manipulation of grade structures—techniques proposed by HEW to completely dismantle Mobile’s dual system by desegregating every school—were all established techniques of school adminis- tration when the objective was segregation. This Court held in Green that school districts must con- sider proposed desegregation plans not in isolation and abstraction but in “light of any alternatives which may be shown as feasible and more promising in their effective- ness.” 391 U.S. at 439. In Mobile, there is an alternative plan to test the effectiveness of that approved below.’” The appropriate allocation of burdens requires the School Board to demonstrate its unworkability beyond question. That task has not been undertaken because the Court of Appeals saw fit to create, on its own, a new and absolute principle— Under the neighborhood assignment basis in a unitary system, the child must attend the nearest school whether it be a formerly white school or a formerly Negro school. Ellis v. Board of Public Instruction of Orange County, 423 F.2d 203, 207 (5th Cir. 1970) —and then excuse the board from burdens it must carry under decisions of this Court. The fashioning by the Court of Appeals of the neighborhood school concept in absolute terms is as new a judicial invention as it is a principle of school administration in Mobile." Invoking this concept Where, as here, the alternative was formulated with the ex- he of the United States Department of Health, Education and elfare at the request of the district court, the “school districts are to bear the burden of demonstrating beyond question, after a hear- ing, the unworkability of the proposals....” Carter v. West Feli- ciana Parish School Bd., 396 U.S. 290, 292 (1970) (concurring opinion). See generally, Weinberg, Race and Place—A Legal History of the Neighborhood School (U.S. Gov’t Printing Office, Catalogue No. FS 5.238 :38005, 1967). 20 as an absolute bar to considering feasible alternatives in a process which requires the examination of individual circumstances of individual districts is plainly contrary to the decisions of this Court. The absoluteness of the neighborhood school concept employed by the Court below cannot be overstated. Only the pupil assignment techniques of contiguous single-school zoning or contiguous pairing have been held permissible; any segregated school remaining after these two techniques have been exhausted is judicially sanctioned on the ground that it results solely from “neighborhood residential pat- terns.” Yet the Court overlooks the vital role played by the school system itself in creating and defining the “neighbor- hoods” which are now held to be beyond the pale of school board corrective action. As Judge McMillan has said, re- ferring to Charlotte, “Putting a school in a particular loca- tion is the active force which creates a temporary com- munity of interest among those who at the moment have children in that school,” Swann v. Charlotte-Mecklenburg Bd. of Educ., 300 F. Supp. 1358, 1369 (W.D.N.C. 1969) (emphasis omitted). We have pointed out above that the record in this case vividly demonstrates the degree to which the Mobile school board has in the past been able to main- tain white and black school “neighborhoods” through ma- nipulation of attendance boundaries, grade structures, port- able classroom placement and the pupil transportation system. Like the minority-to-majority transfer disapproved in Goss v. Board of Educ. of Knoxville, supra, the “neighbor- hood school concept” permits private action which results in the maintenance of segregated schools. To begin with, there is a historic and pervasive pattern of housing segre- gation caused by discrimination against black people throughout the Nation. In the past, the policy of discrimi- 21 nation received the blessing of the federal government. Racial Isolation in the Public Schools, A Report of the U.S. Commission on Civil Rights 254 (1967). See also, Abrams, Forbidden Neighbors 233 (1955) and Weaver, The Negro Ghetto 71-73 (1948). In 1968, recognition of the problem led the United States to take affirmative steps to make housing available to minorities with the passage of the Fair Housing Act of 1968, 42 U.S.C.A. §§ 3601 et seq. (Supp. 1970); see also, Jones v. Alfred H. Mayer € Co., 392 U.S. 409 (1969). But even if active housing discrimina- tion were to cease, its residual effects persist. See Racial Isolation in the Public Schools, supra, at 201-02, Legal Ap- pendix at 255-56. Furthermore, the record in this ease shows that the pres- ent residential patterns in Mobile result to a substantial degree from discriminatory policies of the federal, state and local governments. For example, there has been a close relationship between the school board and the public hous- ing authorities in the Mobile area regarding location of racially identifiable housing projects and-the concommitant nearby location of school facilities which have traditionally been, and which continue to be racially identifiable. E.g., Pl. Int. Ex. 87 (July 1967 hearing). Making pupil assignment merely reflective of housing patterns will therefore often but mirror community segre- gation and discrimination; it ignores the affirmative duty of school boards formerly operating dual systems to bring about integration. Green v. County School Bd. of New Kent County, supra. The Court of Appeals for the Fourth Circuit has recog- nized the problem. In Brewer v. School Bd. of City of Norfolk, 397 F.2d 37, 41-42 (4th Cir. 1968), that Circuit held that 22 Assignment of pupils to neighborhood schools is a sound concept, but it cannot be approved if residence in a neighborhood is denied to Negro pupils solely on the ground of color. Other Courts have likewise measured the “neighborhood school concept” as a permissible desegregation device by examining the alternatives available and the results of its application. The United States Court of Appeals for the Eighth Circuit recently considered the mandates of this Court in a challenge to Little Rock, Arkansas’s continuing failure to desegregate its schools. At issue in this urban school system was the acceptability of a geographic zoning plan in light of several alternative plans involving the pairing of schools and transportation of students. The Eighth Circuit reviewed the results of Little Rock’s geographic zoning plan against this statement of the law: Thus, as of this date it is not enough that a scheme for the correction of state sanctioned school segrega- tion is non-discriminatory on its face and in theory. It must also prove effective. As the Court observed in Green: “In the context of the state imposed pattern of long standing, the fact that in 1965 the Board opened the doors of the former ‘white’ school to Negro children and of the ‘Negro’ school to white children merely begins, not ends, our inquiry whether the Board has taken steps adequate to call for the dismantling of a well-entrenched dual system.” 391 U.S. at 437. We believe that geographic attendance zones, just as the Arkansas pupil placement statutes, “freedom of choice” or any other means of pupil assignment must 23 be tested by this same standard. In certain instances geographic zoning may be a satisfactory means of de- segregation. In others it alone may be deficient. Always, however, it must be implemented so as to promote desegregation rather than to reinforce segre- gation [citations omitted]. Clark v. Board of Educa- tion of the Little Rock School District, No. 19,795 (8th Cir., May 13, 1970) (en banc) (Slip op., pp. 14-15). Applying this test to the results of Little Rock’s geographic zoning plan the Eighth Circuit found that the plan retained racially identifiable schools in the face of at least one alter- native which would eliminate the racial -identifiability at several such schools. The court held that the record could not sustain a holding that the geographical zoning plan “is the only ‘feasible’ means of assigning pupils to facilities in the Little Rock School System” (Zbid.) and while declin- ing to decide on an absolute basis whether “geographical zoning or the neighborhood school concept are in and of themselves either constitutionally required or forbidden” the Court held “that as employed in the plan now before us they do not satisfy the constitutional obligations of the District” (Id. at 19-20). The Eighth Circuit also declined to establish an absolute rule of transportation: Lastly, we do not rule that busing is either required or forbidden. As Judge Blackmun stated in Kemp III, “Busing is only one possible tool in the implementation of unitary schools. Busing may or may not be a useful factor in the required and forthcoming solution of the .. . problem which the District faces.” Kemp III, the El Dorado, Arkansas school case, focused on the feasibility of transportation as a technique of deseg- regation : 24 It may or may not be feasible to use it [busing], in whole or in part, for Fairview-Watson-Murmil Heights and it may or may not be feasible to use it, in whole or in part, elsewhere in the system. Busing is not an untried or new device for this District. Kemp v. Beas- ley, No. 19,782 (8th Cir., March 17, 1970) (Slip op. p. 14). Similarly in Little Rock the Court took occasion to note “that busing is not an alien practice” and had been used by the District “to preserve segregation” (Slip op. p. 20). Following its 1968 decision in Brewer, supra, the United States Court of Appeals for the Fourth Circuit has refused to make the neighborhood school concept an inviolate prin- ciple in the way the Fifth Circuit believes it is. The Fourth Circuit, although observing that “[busing] is not a pana- cea,” has held that “busing is a permissible tool for achiev- ing integration. ...” Swann v. Charlotte-Mecklenburg Board of Education, No. 14,517 (4th Cir., May 26, 1970) (Slip op., p. 18). The court specifically condemned the School Board’s rejection of a variety of legitimate techniques of desegre- gation. The district court properly disapproved the school board’s elementary school proposal because it left about orfe-half of both the black and white elementary pupils in schools that were nearly completely segre- gated. . . . The consultants that the board employed were undoubtedly competent, but the board limited their choice of remedies by maintaining each school’s grade structure. This, in effect, restricted the means of overcoming segregation to only geographical zon- ing, and as a further restriction the board insisted on contiguous zones. The board rejected such legitimate techniques as pairing, grouping, clustering, and satel- lite zoning (Slip op., pp. 22-23). 25 On remand, the Court held that “every method of deseg- regation, including rezoning with or without satel'ites, pairing, grouping, and school consolidation” should be ex- plored, and that “undoubtedly some transportation will be necessary to supplement these techniques” ( Slip op., p. 25). Nowhere is there any suggestion that the neighbor- hood school concept is an absolute bar to a plan entailing the transportation of students.’ *° “See also, Davis v. School Dist. of City of Pontiac, 309 F. Supp. 734 (E.D. Mich. 1970); Spangler v. Pasadena City Bd. of Educ., Civ. No. 64-1438-R (C.D. Cal., March 12, 1970) ; Crawford v. Board of Educ. of City of Los Angeles, No. 822-854 (Super. Ct. Cal., February 11, 1970). Ellis v. Board of Public Instruction of Orange County, Florida, supra, suggests that the objectives served by neighborhood schools are “to eliminate transportation costs and to permit the student to remain as near home as pos- Petitioners wish to make clear that noting the conflict between the Fourth and Fifth Circuits does not in any way constitute an endorsement of the Fourth Circuit’s limitation of remedial power by its “reasonableness” doctrine. See Petition for Writ of Certi- orari, Swann v. Charlotte-Mecklenburg Bd. of Educ., No. 281, O.T. 1970, cert. granted, June 29, 1970, 38 U.S.L.W. 3522. **In a concurring opinion in Brewer v. School Bd. of City of Norfolk, No. 14,544 (4th Cir., June 22, 1970), cert. denied, 38 U.S. L.W. 3522 (June 29, 1970), Judges Sobeloff and Winter wrote: The District Court should not tolerate any new scheme or “principle,” however characterized, that is erected upon and has the effect of preserving the dual system. This applies to the “neighborhood school” concept, a shibboleth decisively re- jected by this court in Swann (Judge Bryan dissenting), as an impediment to the performance of the duty to desegregate. The purely contiguous zoning plan advanced by the Board in that case was rejected by five of the six judges who partici- pated. A new plan for Norfolk that is no more than an overlay of existing residential patterns likewise will not suffice. (Slip op. at pp. 1-2) 26 sible”. Ibid. The absoluteness of the principle prevents any inquiry into the extent to which alternative assignment methods may in fact or law counteract these objectives. If the saving of transportation costs is a legitimate objec- tive then the actual impact of a plan on these costs must be appraised. Yet the Court of Appeals’ formulation of the neighborhood school concept bars any determination of these increased costs, the school board’s ability to bear them, and the availability of state assistance to defray a portion of the costs. Mobile is a school district which en- gages in extensive busing (during 1967-68 207 buses trans- ported 22,094 students daily)** and by examining its past Operation and present financial situation it would be pos- sible to determine the actual impact of an order requir- ing the transportation of additional students. Furthermore, the court’s formulation permits no consideration of the savings which transportation might enable in the system’s school construction program. The School Board has been enjoined since 1969 from constructing two additional schools in Mobile’s black ghetto. 414 F. 2d at 610. The use of presently unused capacity in white schools would eliminate the need to construct these facilities and the use of ‘