Amicus Curiae Brief — Keyes v. School Dist. No. 1, Denver

Supreme Court brief1973

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Rin a>. Fen tte Mit ate Moat TG aN AMERY STO SM oa UOT ame

si te elliot oe

! avatonal Tot au Bala for Pupil

a nt Does Not Confer Federal Jurisdic-

>»... tion. The Mission and’ Structure of Public Schools

sceingehonn he ined to Should Not Be Re-

Masleptaste eats adhbevenahtlovds tt a>

~ bitrarily ‘definied’ groups, there is:no’ clear way

Se sont _ Wachieve “equality.” vik. cU. cuideevie

oe oo adc wert ma ne ee

“Tho black will eneh the white”...

&8e &

SCOR OER KA os

Pyaavts hee:

on account of his race. Its abandonment is more

likely than not to contribute to greater geo-

graphic separation of racially “defined popula-

tions, and to an adverse effect upon schools ayail-

_ able to the poor and disadvantaged as well. vag

«Dev .At-worst, the neighborhood school is a mild form

of pluralism, pluralism which is constitutionally

protected in its more extreme forms. ..........

"EL ‘A neighborhood ‘school policy’ does not disrupt

~~ parental expectations either as to the justification

ia coommaleeny: ponbeacen eres ta:Miokee song

| schools. . ie A SBT Shah A ov Ea a

Shaetbaslilc Mss Siar Heel: hati Which

.« Plaintiffs Urge Is a Suspect Standard. . Moreover,

Requiring Its Use ina Multi-Racial and Multi-Ethnic

Community May Result in‘a Denial of Due Process

of Law ito Some Minority Persons..Who Are Not

“Negro,” * “Chicano” or “Anglo” and

to Some “Negroes,”’ regent “Chicanos” and

“Anglos” aa Walle 460s isa Sadat.

el Racial classification. ot a suspect i mot illest

‘standard. for: the assignment by government of

~» benefits and burdens... ......Jiee.3........

B. ‘Non-discrimination ‘is not discrimination; nor is

Mt exclusion by race.........5.. nbhkitwe pean

ital tet alla ie Weick Goa68t8-talance the

harm likely to result from the adoption of a pol-

AE eieeees bt hee hgaktet herhares

which, plaintiffs argue results from treating all

ee sdasapiale ‘alike for the nt pie: of assignment to

roth seo, ee ETS ok nal oh MR MiRe ol

Be i ek

nal’ Standards’ ‘Aijitni Which” a Public

Widiniin Wialalaehe oles Geuldisaoce sooes May

a aan it De -Abenieanb patho Varies

eats Page

_., ©, A neighborhood school policy. exeludes no person

we RL, ee EE TONOC NS a p0 wee de arp 81

‘Shitting to school districts the by

amy dealt hel oats itt Pee

Baperience should preclude such a remedy. a ae

UM UN TRAPS als UE heen bia 2s ont wien <n’ 95

thea: colette 369 US. or A Pre ig Pages can 49

Banks ‘v: Housing Authority of th Gy and County’ of San

US. 974. USN te ebtrobectheceuncet BOR occu 4

Barrows v. Jackson: (1953) 846 U.S. 249.0... ....65...-0-.. 41

Berkelman, et al. vy, San Francisco Unified School District

(D.OND.. om aby eas ae. %

ee ee 2 ee ee ee

pee,” eee Toit BSCR ies 35

Bradley vy. School Board of the City of Richmond, Virginia

(D.C.E.D.Va 1972) 3388 F.Supp. 67; rev’d. (4 Cir. 1972)

Cid, PMR AS ees, Fe. Pgs Ageaieeas 35

Brown v. Board of Education (1954) 347 US. 483 Rates

Uae OE CEE URES MEO NGS 4a Fs RS 3, 8, 47, 64, 65, 68, 69, 71, 72, 75

Cee ee ee eee eee eee eee ee ee eee

Calhoun v, Cook (D.C.N.D.Ga. 1971) 332 F.Supp. 804, order

bacenne age -o ee tle Ry cede ete Scie asks 93

Cisneros v, Corpus Christi Independent School District

(D.C.S.D.Tex. 1971) 330 F.Supp. 1877... ...5...0...... 34

Cooney v. Katzen (1963) 41 Mise. 236,245 N.Y. Supp.2d 548 5

Davis v. School District of Pontiac Ine. (D.C.E.D. Mich.

1970) 309 F.Supp. 734; (6 Cir. 1971) 443 F.2d 573...... 90

Decision of the Amsgericht, Wilster, Germany, Feb. 26, 1938

(67 Juristische Wochenschrift, (1938), translation in

Simpeon & Stone, Law ‘and Society (West Pub. Co. 1949)

Main—Hochst, Germany, May 4, 1937, 7 Deutsches Recht

446 (1987), translation in Simpson & Stone, Law and Soci-

ety (West Pub. Co. 1949) p, 1874 ..... bina Vevee Oeax 60

ee Saget LMR: 48:8. G, BOB. penitence Waa 47

Edwards v, California (1941) 314 ak Re eicpeen geil 47

Bngel v. Vitale (1962) $70 US. 421.....00.. 0... ceca, 62

Ble 088) 16 U8. snore

hool of New Kent County (1968)...

“ae Sh 55s DD EX FEES Cbd os eS o

Minin oe:

) Rhee Gi aa eee

ne Sl 19) 0 08 i

a States (1960) '839 US. 816 ..........

. Godsel: a DOD. Mid 1968) 106 Pupp

Texas (1954) 347 US. 475 20...

(D.C.D.C: ee te AE

a (1969) 393 US. 385 . Omer Rr ene

bases @ eek

ap eet * “ ~s : ae

‘ Ee ORE ae FS Pay ees PE Spe eae ESR hare

a6 Matter of Skipwith (Dom. Rel. Ct., 1958) 14 Mise, 2a

“ oO NYS. 2d 852 TSEPAE RPA RS + Oe Se opie ooo sls'e ee’ e e's

nie 39

Valtierra (1971) 402 U'8187 I gesn bans 24

W Hackney (ase) 92 8.0 1128 ee

. Sloan WOEDPa ive) a eas 1356

Virginia (1967) $88 UST. 00-1... Pee

. Nebraska (1923) 262 0.8. 390 .....0... 0... ogg

‘sigpeabenas 107 v. Irvis (1972) 92°8.Ct. 1965 . PRS SHG

Cini. 46

of Sisters (1925) 268:U-8. 510\..........99, 54

say angiee: (1896) 168 UB.S87 2008s. cee, 8

yeas Development ‘Corp. v, Mitchell (DCNDILED.

ST os erin ee dh Rha? ee See ee 4.

Malley ( rile tear

> Unified School: District v. Johnson (1971) 8

: acm et

n oe rt), © Cel-Od 66 nt Memeiek tee

weatt dict ; Pages

a ee eT ee 4

5 beg ath po so ke. oh eke cae ee 41

@ Olub.y. Morton (1972) 92 S.Ct, 1361 ...2.-.-...5..

: jevent ‘Minnesota State Senate v. Beens eens (1972) 92

'$.Ct. 1477 Obese yaeee eh hee tow e Viet wets 4 i Oe Pee eee 9]

Soria v. Oxnard School Schoo! Distriet Board of Trastecs er .

ee ee

Taylor v. Leonard (1954) 30 N.J.Super. 16, 103 A2d 632... 5

Tinker v. he Neteceileeds Sat abe th (1969) 393 U.S.

iM es sii hak AN ches: Haddin ATARLAR « BAE Ames 89, 54

United States v. Board of School Com’rs. of the City of In-

-dianapolis, Indiana (D:C.S.D.Ind. 1971) 332 F.Supp. 655 35

United States v. Midland Independent School District (D.C.

WD.Tex. 1971) 834 F.Supp. 147 22.0/0..05..) 000005. 34

States v. School District 151 of Cook County, Illinois

(D.O.N.D.ILED. 1969) 301 F.Supp. 201 .............. 65

United States v. Scotland Neck City Board of Education

(I97TZ} 22 BCe wees ep etaw ee eee sees «-6, 'T, 34, 82, 88

United States:v.4}.S; Klane, Knights of Ku Klux Klan, Inc. .

(D.CMD.Ala.ND. 1961) 194 F.Supp. 897 ............. 2B

West Virginia Boatd of Bd. v: Barnette (1943) 319 U.S. 624 61

Wisconsin v. Yoder (1972) 92 S.Ct. 1526........... 39, 54, 60, 61

Wolman v. Essex (DOSD. Ohio 1972) 40 Law Week 2724

PAL eae we see eh ig

‘of 1972 (7 5 vere hcinoay2 oy yal §

OTERO Raha thai 85

oa Checker Board me 11

a Beet) We ee Te oe 79

Ba cprudenc (2855) 00 NF.UJsRee 10 ca aE

Right of Privacy: The Pen

al Dowiae sit the Comput (911) 48 Fen takes

ene te eee teen “eh Seu + ab =

eb ier ge

LPS eT

ag, Sait

1968) 62 Hay.

egg wdc a ae

‘Sy

al Analysi ro pment Mrmr apeate

nna Bk Peles ro Bord ef Be.

T) I'The Black Lew Journal 234

eeae Ra PA

CAMs #8 He's SRO REL hice cel pean, 43

eS 3 ‘ 4

Office, Wash..D.0., 1970)...

‘Ardrey, The Social Contract (Kingsford Press Ine., 1970) .

Pn i es

, 26, 28

hacen aeons (Basic Books, N.Y.; 1967).

pyreapaseces A’ oneoeaghe in st erie ~gerease fee

he Supreme Court and the Idea of Progress (Har-

i iow, NY, 1970)... 54

m, Intelligence Tests of Immigrant Groups (1980) 87

Ry ee Stidentat cos 4 The

Swine lnas tesesbayatennntesgiste arnt s+

5 Ry a5 Pa ood

} ast?

patigs

st ta 2 Keeee Late rotates snd 08S a Sse

+ N.Y.,

tee Sew ewe ses

Bee! shrodtncencates 78

eae! Pages

Crom nd Otrma, igh Seat (Sinon & Souter, NY,

Ra i! “ees Ayess oe a ee ty os ere . ez ss eae eee ewe -40,; 72

Hansen, Danger in Washington, The Story of My. Twenty

La Neanp tn tha. Publie Bebools in, the Nation's Capital (Par,

ker Pub..Co.) N.¥., 1968)... .. reese ames (ae eee eee

Havemann,: Report, National Journal, No, 16, -April 15, 1972 61

Hesthepem, The Anstany of Achievement Motivation (Acs-

-demie Press, N.Y., 1967) ..... tawac:

: Hubert, The Duluth Experience, ‘Saturday Review, May 2,

1972, p. 55. 2.5 eSese bin FS thnk os DA ohl a aed: 8

Mich, DeSchooling Society (Harper & Row, N.Y., 1971).

cok , The Death and Life of Great American Cities (Ran.

~ dom: House, N-Y., 1961). Feceuthchatinde out axcki ae

Jenkins and Paterson, Stadies in Individual Differences: The

“Search for. Intelligence (Appleton-Century-Crofts Inc.,

N-Y,,’ 1961)- en re ee ** eae es oe. ee ee er 57

doom, Hien, Mh fin, We Boon 10 end Selec Ahlers

Katz, 1, tice Wats ass or Daag:

ce eee Demat Neg (1964) he

“19 Amer. i) BRD Se FR Re ot eR ord

Kain, The ley of Bary School Rao (sy, Univ,

Sal DODD cvectd. caps’ - dvnceth . vend) <j sn JOE, 88,08

Kats, M,, Class, Bureaucracy and Schools (Praeger Pub. Go...

“ N.Y., 1971). ae es «eee eet eee Ep | ‘esha Pee? * ee .87, 38, 41, 50, 73

Knowles and Prewitt, Institutional Recim in Amerie, (Pren-

tice. ‘Hall, N.Y., 1969) . ee eee ee ee eee -»a~ 49, 58

own, The Mincincation of American Tosshera: (Houghton.

ee see e enews sae od ekg ees +e eN eee eee 33

ee eee ee ee ee ee ee ee oa

p Pal sag ar gy ag ay ‘td, Serial Bares, Into.

pry sean big 1» Edueation, National Society for the Study

, Sixtieth Yearbook, en oo

Pein 1961). Cee Pe eee eee es eee ED © aa es 94

Sveweseesecesere

PRS anEnAe"

N. ie ? , 20, , 42

; ATEN an been eet oe

ig, at wae and hon ge Advisory Committee

ciseseteesstererertceecniereeteesesess ++, +65, 56, 58, 59, 94

, School is Dead (Doubleday & Co, Ine., N. ¥., 1971) 40

welt, Theo., Fear God and Take Your Own Part (George

Doran Company, N.Y, 1916) .220.6......0eceeeeeves 78

tion and Pupils’ Intellectual Development (Holt,

and Winston, N.Y., 1968) ........... Hi

SS 2 Do F are ; @ ee P B

orks Rough ainsi oe One eine ot ee ee ee ‘

phos wamcmaiaiics asain

ee +4 dees bates Shs +e eee ne vee teat ** 14, 23,77,

er, Racial and Cultural Minorities (3rd

Bow, NY.) 1989) °° ..28, 27, 81, Bl, 68

a Education 6 petrersttsneesereesserereses 62

, Religion - CHE

te essere crescents pgs

xii _Avrnorrrms Crrep

Pages

The Holy Ei, King dance Trundatin, Geni, Ch. 2. 61

Urotsky, ‘ed, Why Teachers Strike: Teachers’ Bites and

z Pai joven comsper tend apie 1970) . 56

US. Conminton on Civil Right, Raia Inaton in the Pub

“Be Schools (U8, Gov't. Printing Ole, 1967) » <5. .+.48,86

2 “im 20 Arch. Soran, Soraipoliti (1904) 1-54; 21

Arch, Sozialwiss u. Sozi: Po ES 6 eae ee -

Whiead, The Aime of ase midis deci

1929) oss .eevevere, wee SWRA’ Be ) SAS KS CRF A MD SRD 40

3 zt Lie ;

rie “yt

bER.

2 ig

4 2

£655,

nee

& -

Acre ~~ :

ee eo Oe el _—s = | — ;

eras niet’

cereus

Do “wii deta: Dat

nated mal anon ie pl ‘it, serves and should not

now be required to doso. Epo

Amici curiae are San Franciscans who are, os intr

venors, parties in the San Francisco elementary school

Pinata pending before the Court of Appeals

for the Ninth Cirenit: David Johnson, et al. v. San Fran

cisco Unified School District, et al., ‘Nos. 71-1878, 71-2189:

San Francisco Unified School District, et al., Robert G.

Nelson, et al. v. David’ Johnson, et al., Nos. 71-1877, 71-

2163; Guey Heung Lee, et al. v. David Johnson, et al.,

No. 71-2105. On March 1, 1972, the Ninth Circuit set aside

the submission of the San ‘ra siseo case, ‘stating in its

order that the San 1Ci co case would be set for re

argument only after this Court's @ecision in the case at

bar. The Ninth Circuit thus redopnized that the case at

bar is likely to bear upon-the future pupil assignment

policy of the San Francisco, Unified:School District, as it

will upon. the. future pupil, Sisal sie of Denver

School D he: ri¢ L No, 1... aaNet si

“Rebert @. Nelson, Gustav F, Fehihaber,-Patricia, Chin

Alfretta Hankins; Mitsuo Murakami, Rose Noe, Marcel

G. Ross, -eiaethaat Carlos H, Burbano, Adam

1There is also

perry 0 2

which ¢ these pablie eee projects were built to serve

Mike Soar eee: many: “years followed -a neighborhood

school policy. ‘Pupils: were included in an elementary

school: population on the basis of the proximity of their

residence to the school. That policy remained’ substan.

tially, unchanged. irrespective of the substantial. growth

‘proportionately over the years of San Francisco’s Negro

‘population and the more recent substantial growth of San

- ‘ranciseo’s Chinese and.Filipino populations...No_ pupil

was,excluded from a,school on account. of his race. In

‘1970, only:one ‘out of over a hundred San Francisco ele-

mentary schools was without a Negro pupil. In that school

more> pupils. than not. were of Chinese ancestry. No

’ For ‘several ‘years; claimed ‘‘de facto segregation” of

Negro pupils has been a matter of political controversy

in San Francisco. The ‘school case’ is ‘not the first litiga-

tion resulting from the attractions afforded by multi-ethnic

San Francisco to a migrating Negro population. Most of

the San Francisco elementary schools which in 1971 the

United States District ‘Court found to be ‘‘identifiably

Nae (seeing tae: theres Rieperidomt'oe mot

‘black”). drew their pupils from public housing projects

. on Feder constitutional grounds, the San

Manner, Authority. was. properly. forbidden

to impose racial quotas approximating the then proportion

in San Francisco of ‘‘poor” whites and ‘ poor”. Negroes

, " rity tidied City nd ‘County of

974; td Pi Development Comp.

TPE POY yh a>

me 681;

D. Tl. E.D.. 1960) 182. F.Supp. 681;

» (1963) 41 Mise, 236,245 N.Y. Supp. 2d

0, Leonard (1954)..30, RaiSinpen, 116, 103

in racial quotas, the ¢lass sizes and special ‘services pro.

jected varied substantially from the schools in one zone

_ to those in another. These disparities raised the issues in

Wright v. Council of City of Emporia (1972) =. S.Ct

nai} United States.v. Scotland Neck City Board of Edu-

cation.(1972), 1. S.Ct... Serrano v. Priest (1971)

5 Gal.3d 584; and (to the extent it.embraced the same

issues as. Serrano) Plessy v. Ferguson (1896). 163 U.S,

537. These. issues..are before the Ninth Circuit in the

appeals, in the San Franciseo case. Before the District

Court and .on. appeal, Robert G. Nelson, et. al., supported

the.only remedy proffered which was consistent with this

tide emedie epiiom: the. pupil reassignment plan

mans lemen —. . schools which, the District. Court found

ils os aa ailataieliadiie a ssanition of Title

VILL, Section 803, of thé’ Education: Amendments of 1972,

the Di iet, Court’s order remains in effect in San Fran-

cisco. Motions by, the: school, district and. by Robert @.

Nelson et al., for a stay were denied on July 7, 1971, and

on. August 10, 1971.. ‘Motions for a stay, or in the alter-

native for temp : cation: of the order. to per-

spobeaha:theisindie-aruri sind thecaley vce: shone slernentazy

Pupils. who remain:in: the system from the threat of re

g ~ntapehagabic eal ea ne iOS ata

Sepa 8s deen Marcy 2803

Bae oy at as a BRS

tral. —— >caaroepnsnaion ei aah way. A

surtuet aan sitions A Siskind educational

retort has: ‘become an. excuse for contradictory demands

upon lotal school districts (A. 1595a). Whether or not

a school district’s pupil assignment policies exclude pupils

by race; it becomes “unconstitutional” for a school dis

ttiet to be color’ blind. We are thus brought full circle,

‘We are brought, for “benign” purposes, to the very place

we were prior to the decisions in Brown v. Board of Edw.

éation (1954) 347 U.S. 483 and Brown v. Board of Educa

tion’ (1955) 349 U.S. 294. Weare brought to that place

eau eooeelpegeamearetaepiemaaaa fomentonyn of the

institution of public education. fives ;

The et a ar wit whtir fe - * monracial

‘be Broughit about-**:*r iulldnitisieaecaitinaialiadsitesil

‘stitution ‘will allow educational reform to-inelude reason-

able’ local resolution’ of questions of educational policy.

¥ ‘Against ‘a ‘school board’s legislative: decisions not. based

‘upon race, plai: ; propose that to achieve: educational

‘reform they should have been. Plaintiffs in effect pro-

pose ‘that to achieve’ educational reform this Court re-

quire’ pupil ‘assignment ‘by race in every public school

“in the»nation. ‘Such a rule, irrespective: of its purpose,

‘would undermine the chief principle upon which court-

ordered desegregation must rest, constitutionally, morally,

ee eae ee

. wee : Boe Schook Board of New Kent County (1968)

arms of government limited powers. Tt as.

» law of the land, there is nothing to prove or dis:

“©. prove about races as. such, there is no issue to de-

bate except the honest administration of the law”

_ (Barman, Race: A, Study In Superstition (Harper &

__ Row, apf) 1987 and 1965), Pref, to 2d Ea. at p. xii).

sii lteter eb cenit hed even: deta

distinguish among their pupils by race affords a road to

racial integration more likely to consolidate the success

Pinay pees thab attaatet he, sactinting ‘oot

tits which have consistently pursued even-handed papi

ment policies, school districts which have in doing

5 entary schools (Denver—A. 2038a) and in

iemkysadeecie of. onevhundred elementary schools (San

Francisco), and school.districts which have achieved sub-

stantial numbers of stable racially integrated elementary

schools should.not now. be told that the Constitution re.

reine that» ~~ orient. racially: all. pupil assignment

dsixaidcue dace sibscdieaiiear nad uelccin ci ol

educational services it can to children within the district

ssticasoiconps rats aemient, any child because -of his

District both ihe par tahch geen chee gndji its four

so-called ‘‘resolution schools.” The only “‘harm” which the

Denver School: District: has done in either instance is to

‘treat all pupilsalike; irrespective.of their race. The

Denver School District and. all others who pursue reason-

hie metal of, pupil assignment which do not distinguish

| pils by race should ‘be allowed to resolve for

reetive measure. That proof must be sufficient to overcome

the presumption that’ racial classification is arbitrary and

capricious, and is not the sort of classification which will

further any reasonable legislative purpose. No such proof

SONA OE .

~The central, question at the outset and at the end is

whether it is the responsibility of the Denver School Dis-

triet to balance. Denver’s schools racially. The plaintiffs’

argument that the Denver School. District. has, by allow-

ing minority-dominated. schools to exist, denied to plaintiffs

equal protection of the law assumes that a school district

has a comarintions) GUE to balance. its schools racially.

n _ School districts faced with

icting demands—demands often racially oriented and

n pressed LF. a elyhygen factions within

<r State may effectively. abdicate its

Pe by. either i ignoring t them or

0. U.S, Klans, Knights of Ku Klue Klan,

M.D.Ala. ND. 1961) 194 F.Supp. 897, 901).

onsibility of states to maintain order is plain,

ne b of a School trict is seldom as simple

protection ‘against organized violence is at least

) be. We would likely discover that affording

ction is no simple matter either if we were to

the conclusion that New York’s finest are

ee a en

we “Equal educational opportunity” is a slogan which means

_ different things to different people. _

tee eicaen pinata in taciedcariinetign. slike Jax

In. education, this. principle. has been. translated into a

demand for ‘‘equal educational opportunity.” ‘Equal

educational opportunity” relates to a process taking place

in school buildings. Beyond that, there is little consensus

(see Gordon, Toward Defining Equality of Educational

Opportunity, PP. 423, 427 et seq. in Mosteller and Moyni-

ty of Educational Opportunity (Vintage

Books, N.Y, 1972); see also Silberman, Crisis in the

Classroom (Random House, N.Y., 1970) passim). The

classical notion of ‘the mid-nineteenth century, with which

the first compulsory ‘education laws were introduced, was

Chat. i Ja. aignd Hanon, scneaticeal erate

to ‘restrain the inherent savagery of. children,” and to

mold.» character acceptable to that part of the adult

world able. politically to establish eommunity standards

(Katz, M., The Irony of Early School Reform. (Harv.

Univ. Press, 1968) 5 Pp. 117, et seq.). The modern notion

oho A wig ap ae amt

ntal supplies with teachers _ equipped to impart

inant skills which the pupil might or

learn (see. Dewey, Intelligence im the Modern

od. Lib, N.Y., 1989) PP. 683.687). Although a

a ji ‘from the school to the child during the

, The pene of the School (Alfred A.

Keon NY, 1961) pp. 104, 201-202). Everyone had an

tunity” to learn, If the hardware was equal, the

opportunity was equal. No one was surprised that out

ing pores at evaninitley of cial seduubiii

mn, On Equality of Educational Opportunity (Vin-

poke, N.Y., 1972) pp. 8-12; 117-119). Prior to the

. 4 Report, it was blioved that echools which Negro

en. attended would prove to have inferior facilities.

sige batigroa (Mosteller, op. cit.

pp. - 8-12). Further, the » Fang. of performanee with-

de levels for ‘all racial and ethnic groups

»P-296; cf. A. 626a). From, Coleman’s

“potential he brought, to. school ith him

oP cit Supra, pp. 11-12)...

thin briefs to this publiation by i

* The Coleman Report, however, furnished a toehold for

redefining “equal educational opportunity” (see Moynihan,

Sources of Resistance to the Coleman Report, in Equality

of Educational Opportunity (Harv, Univ. Press, 1969) p.

25 et seq.). In the school districts studied (which did not

inelude Denver—A. 1561a-1562a) a statistical disparity was

found between the. median test scores of Negro pupils

and the median. test scores of white pupils (Coleman Re-

port, pp. 20-21). Since the samples of Negroes studied

did not perform as well on the average as the samples

of whites om the. particular standardized tests provided,

an educational lack was assumed to be the cause. “Equal

educational opportunity” could now be redefined as educa-

tional ‘‘onteomes” by racially defined groups. Disparity

in the median achievement levels of Negroes and whites

on public school ‘achievement tests could now be used to

establish group “‘inequality,” contrary to the direction of

the Civil Rights Act of 1964 and contrary to the require

ments of the Fourteenth Amendment

ated woah sa

2 neu ned tin! ty

re ano eae way to achere “ogy”

‘The imp! ni ie panes Bene bil Cobia Te

port redefinition of ‘equal odueational ‘aoe Se

stands th e : teste to peisonatente group equality. See

yer, The Schools Harper & Bros., N-Y., 1961) at page

constriction of tests in Rock-

peat ‘Tinois; ‘which | out’ ensure that middle-class

children will not do better than lower-class children. Per-

haps, on the other hand, Dr. Coleman’s standardiz

ideepuriogeee.

“Ther oie two ways * * * of looking atthe [Coleman

Repo! ] and its aftermath. It can, in effect; be judged a

ort ty enterprise but so flawed’ in its execution as to be

0 real use. . This is the view of Henry M. Levin

haa 4 Pie ca oF atipeithe research, there are big

tion @ of data that are worthwhile ‘and salvageable But

ree wiiratesaie oe

ail The ‘Social ees is zero.’ ~ ae cee poe

aia alihdtalpchiesaedines

1 tenes gonna ——— _—

- salted 44)

n¢ of the Segeenys of the Coleman Report

the fature direction that American education

a a? ti

e” (Mosteller, « op. cit. 8 ‘supra, pp. 405-06). “The

s is that Coleman collected statistics only

riod. Dr. Coleman was careful to-point out

Fy da tent t at best

e, ng not paererrig effects.

for example, have. a Pri correlation with

‘The more |

ould axgus:thet taki flit ndbiditimeetdanabinnt

Negro scols wold improve the nein oppor

igerepticinty te “

1 “The smart wil each the dam,” pati ac

fithe Tihataiat Cont’ helo ateicloded hat:*i8 ia naw. clear

that the quality and effectiveness of the education proces

is Gependent: on. the :presence within the classroom of

knowledgeable fellow students” (App. to.Pet.-for certi-

orari. Maks Rerhape ealigeting, jis. ceriier: preccsnpation

Society. (Bree Press of Glencoe, N.Y., 1961)), Dr. Cole-

sp abana einige eggs ag aa

nance were the characteristics of other students”

gA4 wudteytpigar Saeed

ference is correct, is that a child from a linguistically im-

poverished background will be most affected by a school

situation which has a—which is more linguistic, particu-

larly the rich. or different educated environment” (A.

1543a). The middle-class was credited universally with ‘‘a

majority effect” (A. 1535a), and the mechanism was that

of, necessity: “I have often used the analogy of i

"English-speaking child attending a school in which all the

children spoke French, * * * [H]e would very quickly

come to learn French ; not through anything other than

the fact of being confronted auery minute of the day with

the necessity | for. with those students” (A.

1555a). This theory, has obvious limitations in situations

cho t in which the middle-class does not

jm Bi sais had a different picture of the

Se EE a

poent¢ in achievement: “But when [the

i back the next day to compete with whitey he

0: do his: homework. * ** (A, 1571a), Another

em ied inthe: work of Irwin. Kata, who found

; <p of Desegregation ¢ on he niet

OF Ptr Se

“ana enchant mendgermonnoae erry

dian Negro ‘‘pupil”. will act. like the cooperative

rojected by Dr. Coleman, the racially-hostile model

jected by Dr. Sullivan or the more varied model pro-

by Dr. Kats, No one, therefore, knows whether or

what. ciret tances the model will raise or lower his

it score 80.98 to rednee or exacerbate ‘“inequal.

cational opportunity” as redefined by Coleman.

eof its single-shot nature, the Coleman Report

even offer much of a clue. The indications from

y of two hundred sixty-six children are that mod-

hen children ‘were bused from slum schools into

Da a schools, with not more than three bused children

ns sg Negro pupils ‘(Mosteller, op. cit. ‘supra,

WEB: pean meprete Ww rap 1968). pp. 101;

230-231; and’ PLBr., at pp. 33-34), Another: explanation,

put forward by ‘Irwin’ Katz, is that integration benefits

leartiing ‘among Negro ehildren by “lowering their aspire.

tions to more effective and realistic levels” ‘Meets, om

cit. “supra, p. 364). REE

“X recent ‘article ‘iy David J. Armor describes several

stu és which “cast further doubt upon the speculation

that racial balance will improve the achievement of Negro

pupils. ‘The studies described by Armor were, moreover,

+ * studies. Unlike the Coleman Report, they

compared groups’ of pupils ‘over a span of time (Armor,

The ee ow — _— 28 The — Interest

90). Adteta: Faoae: 5

‘Th ‘trying, to project from static to dynamic situations,

the road is seldom plain. Coleman’s major speculation

was “that “attributes of other students account for far

more variation i in the achievement of minority group chil-

dren than ¢ do. any attributes of school facilities and slightly

nore more than do attributes of ‘staff” (Coleman Report, p

Ba) he te pen n which this speculation is based shows

ion i At ey 6, ‘white Northern children show a

ere a variance in verbal achievement ac-

stu a body: quality than do Northern

OS)

nyt getty, 2 2 aie regs

7 re ¥ 0 R jee

Aare lamar, oaeaens 6. he

is PWR Sr Re Nat eek” as ae ee 26 F3

were per nent ‘and ne ‘ Cole

4 ee a ye

Bans 2A dll SP. seri aNS ony i PB aR Sars

whe x 5 tele 2 hat tt ri ; a3 eee

= ¥

ise Ge nectar ng classmates

PERS Ha Lert emhs Meek 5 hy TT og ike e Ae ALN ae

from static 6 to dynamic. hes

‘not the only’ weakness ness in the use of the Coleman

{0 Polley Geisions. Coleman did not eortlat his

n * data with predominantly white or OF pie-

ntly ‘lack sets. David J. Armor reans

fa4

; ni Be eh deed Te g. oe x ee :

eRe at F SBA SS ees A BSCS S ATER We ore SAT

Report, as well D 75 RD

avep iS Wi as Dr. 's testi-

SF RAs. ae Pro See SE Nee Be eg Bab ode eae Bry ay

——

within’ the populations compared.¢ Comparison of the

median -of almost ‘any population classification with

another will’ show’ a‘ disparate result. In 1904, Max

‘Weber postulated that the Protestant ethos*had a great

influence on the development of Western civilization

Kapitalismus, 20 Arch. Sozialwiss' n. Sozialpolitik 1-54

(1904); 21 Arch, Sozialwiss u. Sozialpolitik 1-110 (1905);

see.also Tawney, Religion andthe. Rise of Capitalism

(Harcourt, Brace & Co., N.Y. 1926)). Efforts to substan-

tiate.this thesis continue to the present day, with the cur-

rent. results being that Jewish. males possess a high

achievement motivation at.all socio-economic levels, Catho-

lies the next highest achievement. motivation and Prot-

estants the least (see Heckhausen, The Anatomy of

Achievement Motivation (Academic Press, N.Y., 1967)

PP... 31. 160-161). ‘The Civil Rights Act of 1964 men-

tioned. reli jon as well as race. It. is fortunate that Dr.

Coleman. di both the current research into the

effect of religious affiliation and the language of the Civi

feat ads of Anh and a not clesity be, samples by re-

: Dr Coleman's ties statistical eompeziaon of one ra-

cially defined group with another is highly suspect. It is

firmly in the tradition of the measurement of personal

Sete se igri tly the Sandia teaealpalgd

In 1764, for example, Daubenton was measuring in de-

aE gE positi of the head on the top of the spinal

een ee woe

P Aileen ecseages ood, “sn “sometimes “median” and

sometimes “average,”

predominantly “Negro” “schools is ‘uniformly

in predominantly. “white” schools. School

North, Dakota, which has. a predominantly

te tion, score well below national norms Act

r cent A lo; ene Re 69.9 per cent “Anglo; Bel M

9 per cent Anglo; ; Thatcher, 81.1 . per eent Anglo;

nan 16.2 per cent Anglo) scored lower in fifth

ement than Hallett (84.4 ‘per. cent Negro)

sae A. 2042a). ‘Dr. Coleman’s invidious statis-

ympa: n becomes even more suspect when one

that £ forty per cent of Negro middle-class high

e children attend private schools whereas only

Per cent of white middle-class high school age

| attend private schools’ (Mosteller, Op. cit. supra,

+ titel? cae thet eae segs ehiiinds

not of race but of the disparity of social

is founded upon a congruence between: ‘‘class’’ and

“race”? (A. 1584a). This Court recognized in James v;

Valtierra (1971) 402 U.S. 137, that there is no congro-

erice between ‘‘class’”’ and ‘‘race’’ (cf: —- Hack.

ney (1972) 92 8° Ob 1S) eG ae,

“The experts ‘who ‘testified ‘below were not offered as

experts in race relations, in genétal demography, or in

the demographic patterns of ‘Denver. ‘Dr. Coleman de.

scribed himself as a sociologist (A “1516a). Dr. Sullivan

described himself as the Secretary of the Massachusetts

State Board of ‘Education (AL 1563a). Dr. O'Reilly de-

scribed himself as an educational psychologist and Chief

of the Bureau of School and Cultural Research of the

New York State ‘Education Department (A. 19102-19114).

Evidently, Drs. ‘Coleman and O'Reilly are experts in ad-

ministering psychological tests and Dr. Sullivan is an

expert in administering schools. These witnesses none-

theless testified as to conclusions not only regarding

Denver population patterns “but as to all cities. They

concluded—upon what evidence it is difficult to imagine~

that every neighborhood in every city is homogeneous

both as to “class” and ‘‘race’’ (A. 1551a, 1950a, 1947s,

1598a-1594a). Dr. ‘Coleman farther concluded that neigh-

borhoods. are “always ‘epnerroent with school attendance

zones (A. 15598).

es kee ame er ee aes ua

some Hispanos’”” are middle-class (O’Reilly, Av 1952s;

Sullivan, A. 1594a; Coleman, A. 1532a-1536). Either a

ne Te ene Sete ‘erway ial ons nest! or not

orhood is homogeneous as to ‘‘class’”’ aod

- black. community... exists id Denver

m ida i motif ntl in. . gai

te itt doin of a school board

) oy the hodgepodge ‘of Sociology, ‘educa-

and definition ‘8f races Upon whieh second-

‘Denver's dehdol board was baved. ‘The! “equal

-atgument is at best’ an effort’ to

ution the’ preferénce of ‘some

: school administrators for heterogeneous ability

g by mistakenly ‘s

inchehe pool with

dia” Bis 34

SO ge Pe a ene Tg

Diet

aceount’for the child’ who floats when all around him are

sinking. Nor does it account for the low achieving pupil

jada abnaweinig’ clad oBawentions ti Seite

a constant state of ferment and today’s imperative is

tomorrow’s cause for reform (cf. Cremin, op.cit. supra,

pp. 23-67 for the checkered career of the manual training

high school; ‘and: compare ibid, at p. 297-299 for the

evolution of individualized “instruction into the ‘‘track-

ing” system with P1Br., pp. 80-81 and 95). Heterogene-

ility. grouping is now considered by some to be

| 10) Aesirable, and. peademic ‘ ‘tracking’’ con-

demned (see, Hobson v« Hansen (D.C.D.C, 1967) 269 F.

Supp, 401, 492). At the same time, the Procrustes’ bed

approach to racial and ethnie differences has been re-

placed. by demands for black studies and ethnic separation

facia dwt Beh ho, ecbaal day,

a “The usa aan eas

‘Where “are some who argué that’ there is a sufficient

vibes Mt ‘between “elaed" and “Fave that ” icanvbieraned in

Saat ak sil “uct BA tert Movs

children of different races would get to know each other

and thereby shed their prejudices (contra Armor, The

Se ee ere ve rem * ne Tete OF

120-122, Figures'7-10). °

“‘Phe goal is laudable,” in ‘setting ‘policy, however, one

must consider not only the desirability of the goal but

how best to achieve it. The mechanisms by which preju-

ee ee ee

eaponstaonnrenesesAe snares

eteri of the prejudiced. personality). Until we

much more shout each set of boys, there is:no- way

: knowing even as a matter of reasonable probability

3 ther, particular strategies add to or subtract from the

‘nim total of racial projudion, The cireumstances in. which

: aembers_ of racially defined groups meet, as well as

und and individual personality, appear

teri esha ie oeeceltesal tastes tas,

339). and personality factors (Ibid,, pp. 395-457)

it contribute to. fostering, attitudes of prejudice,

ar ste group feaditiongily diegrininesed acrinet o

_ Status tend to reinforce negative stereotypes

pp. .264, 276). Equal status contacts and those. in

the member of the class discriminated against has

ns tend to lessen, prejndice (Ibid, p, 276). There

rdingl Soe ba paponsmend, that if She ohject Jp

ities. and. Constraints, Ad.

Committee ag HUD, “Washington, D.C. 1972).

ihe. 29. VOLS Sepipeaey oy Cepia

Barzun, op.cit: supra): ‘One of the central sociological

hypotheses in the-integration policy is that integration

should’ reduce racial stereotypes, increase tolerance, and

generally improve race relations, Needless to say, we were

quite ‘surprised when our data failed to verify this axiom.

Our surprise was increased substantially when we dis-

covered ‘that, in’ fact; the converse appears to be true”

(Armor, The Evidence on Busing (1972) 28 The Public

Interest 90, 102).

° The” oceasion “for ' surprise should not be that the

sociologist’s data has failed to verify the sociologist’s

hypothesis, nor even that some sociologists prefer axioms

to hypotheses. ‘The chief occasion for surprise should be

that the sociologist who studiéd under Allport is sur-

prised. Casual contact carries with it a screening effect

Which allows the observer to “see” only those aspects of

behavior which confirm his predispositions (Allport, op.

cit. supra, at ?. 264). ‘Thus one observer, encountering a

“Rewspaper article describing a school with ‘‘no graded

courses in | | Ly , American and Ohio history, natural

science, government: ea other required subjects” where

thé children spent time in school copying diary entries

referring’ ‘to plowing and cleaning the raspberry patch,

ironing, ‘and “feeding the turkey ‘broilers commented;

“One's first reaction to stich an Gducation might be one

of sympathy for ‘the children deprived of their birthright

in a free ‘ociety. pen farther ‘consideration, however,

, ee i Aes

“cont Society (Free Prpeb.ite Glenove,! NiY., \196%)p. 2).

amene same distinguished author criticizes grading

ee eters No Dick th) thaadolensint bas no conte

Work to! perform’ (Ibid. pp. '3, 317), © |

Tidliateschock acts noe Vedaral costs ean rossblatht

he expected to do away by fiat with racial prejudice. Law

aloi like other social forces, and like laws affecting

een as. alone: ‘about ‘goals pa methods as

pig, about both, In Sweatt v. Painter

near tet Siecbline <i

y is inherently. uneqnal; ‘and that ‘this reformula-

jon ofa: constitutional duty. Such 4 duty would

not only the admission of a pupil otherwise

Lyte eles choice, Miah deliberate

_ become equated with racial balance, and racial balance

the Law—Equal: Protection (1969) 82 Harv.L.Rev. 1065);

Kaplan, Segregation Litigation and the Schools—Part II

The General Northern Problem (1963): 68 Harv.L.Rey,

564; Wright, Public’ School Desegregation: Legal Reme-

dies:for de facto: Segregation (1965) 40 N.Y.U.L-Rev. 285;

Hobson v. Hansen (D.0.D.C/1967)' 269 F.Supp, 401, 497,

» Lawyers might with profit ponder the words of Ed-

mond Cahn; commenting upon, the origins in the writings

of a distinguished sociologist of the national origins

_— system in the Immigration Act of 1921:

"Only a generation ago, McDougall was a leader in

ne eet ee eae ale eR

ase vote to, assign reasons for, not adopting MeDougall’s

concepts of social. psychology. Yet, anyone..who has

a ** sufficiently strong, stomach to. read, McDougall’s

‘Is America Safe for Democracy?—a book published

* while’ he was” ‘professor of psychology at Harvard—

will find it filled’ with racist slander, crude propa-

‘git ‘and arrant nonsense. ‘The book provided a

\ eloak of pseudo-scientific respectability for agitation

so emalting “gia Act of 1921 and the

th “Social mantles: cantiniiie not to be charged

al fo ti McDougall’s sins against science,

a i eet for

reine te intelligence, Where public justice

cone an educator has no more right to play

“deceiver” (Cahn, Confronting Tn-

=" roth and ‘Company, Boston; 1966)

phe for 4 , oo ‘of pupil pupil achievement which

Ts ange be required by the rt some sadhrwpmer fp

sone do’ not’ always’ produce’ unmisted ‘bless.

in 1909, a distinguished educator, Leonard Ayres,

a book Laggards In Our Schools re 1909).

d his earlier work. Although Ayres’ concern

and parsimony in school operation, one

«tad agialiag i widespread practice’ of age

regardless: of achievement, the practice sbout

aintiffs now complain bitterly (compare Callahan,

wand | the Cult. of Bfloionay (Univi: of :Chi.

s | ees, 1962) pp. 14-18, 165-168 with PLBr., pp..52, 53).

wp: botuepeninge promotion and achievement pro-

motion is never easy. Surely it would not lower the drop-

out rate, one of plaintiff’s measures of inequality of edu-

cational opportunity ~(PLBr:, p. 53), to require that

‘children’ spend their:school days with younger children,

The reaction ‘of the sixteen*year-old put into the sixth

—— meamoaresd menapentive! of race.

~ Recently, “edu aeational input?” in the form of dollars

‘spent upon facilities has been re-emphasized in Rodrigues

v, San Antonio Independent School District (D.C. WD.

Tex., 1969): 299 F.Supp. 476, (1972) 337 F.Supp. 280,

poner eee Cree ty beens ce nurs Cue DEL Ne,

71-1382; ‘and in Serrano v. Priest (1971) 5 Cal.3d 584

The theory of equality of:input-upon which these cases

are based. appears to be a reversion to a pre-Coleman

Report measurement of ‘‘equal educational opportu-

nity.” We will not presume to guess whether it is

the California Supreme Court or Dr. Coleman who is in

the backwater, Certainly it isnot Leonard Ayres, echoed

below by Dr. O’Reilly,.who would lower the dropout rate

(A. 1938a), increase the efficiency of the teacher by increas-

ing the ‘‘information transmitted” (A. 1953a) without any

eostly preparations (A. 1962a) by eliminating minority-

dominated schools. Dr. O’Reilly’s opinion was that expen-

sive, compensatory education programs were ‘‘valueless”’

(A. 19298). Amazed at this turn of events, the District

Court below. repeated. its question and Dr. O’Reilly ex-

SO e8 7 Penne perbenieris: bom. ahout ony of

Sheen: srieee:, (A. 1929a).. 3

_ Inconsistently with their thesis that Anglo pupils are

‘thie ‘ehief ‘‘learning resources”? and im pursuit of one

aspect of the equal dollar theory, plaintiffs argne that the

0 effect of its own * = * (

58 Boas ‘34 } thes 5 Se

and salary levels and:the fervent hope of all parents is

policy of. allocating more teachers per pupil to- schools in

eisilactecereaylniton levels ‘were. lower (A. 1327a-1329a).

ol Boards’ ate today facéd with a bewildering

‘of conflicting standards for’ pupil: ‘assignment as

‘cecavaul tai stlaetntved: to. rigsissred proxi-

weitpes? slotrost Whig bead

mo fn ae aes “itemioaedl of er ‘pupils throughout

a district.” ‘This ‘appears to be the standard allowed by

this ‘Court’ in’“its recent remedies decisions : ‘Wright v.

Council of City’ of Emporia (1972) S.Ct. + United

States’. ‘Sédtland Neck City Board of Education (1972)

S.Ct 2 Swann 'v: Sine tees etd Board of

— se oetin noe —— ay ae

ion of saipority* repels, through

ional ‘requirement by. plaintiffs i in. this

rpus Christi, Texas (see Cisneros v, Corpus

mdent School District (D.C. 8.D.Tex, 1971)

330 ‘FSupp. 1377 (appeal pending); see, contra, United

States v. Midland Independent eae District (D.C. W.D.

Tex: ep da al tna iene

sroughc oe debi et

~h res a ae ills, oF a0)

atin the othe napa :

inion sve idkihi abl S volvemen

en see “end Thdi-

43 wre sinstagh legacy ot Board of the City

ama): — Pa. —F | Bradley v. Millike

sh ‘Schon Coma: ol the ‘ity of Iadianapoli,

; gard to sex. = Sane 6 wt aes

9. An equal distribution ‘of pupils ‘among. schools in

: nts areequal:' This standard is offered

, Sam Inde; ent School Dis.

a 1969) ‘200 ¥F, Supp. 4767 (1972) 337

me Hedi Pie G.I. A, Dns

hiiactas Aibtes alulasinthins. naneediciede

aaa dics cidiees taecidaslacasron Soemusieens Tradl

of these standards conflicts with the other, because each

defines differently the group upon which the standard is

based. : Eech standard except the last assumes that chil-

ip lgnum mee :frees,epeh eit, then: thay. do, Crom their

teachers, The. geographic area throughout which. the

Pleas ssacensammien’ peed: tn aphdds itltem, com ie

distributed is limited only by travel time, and perhaps

‘not by that for the home itself is viewed by some as a

sufficiently universal detriment to encroach upon it fur.

ther. ‘Dr, Coleman has argued in favor of replacing the

family environment of the low achiever as much as pos

educational environment—by starting school

et“an earlier age; end’ by having a school which begins

very early in the day and ends’ very late” (Coleman,

Equal Schools or Equal Students? (1966) 4 The Public

Interest 70, 74; see also, Levine, Ocean-Hill Brownsville:

Schools in Crisis, (Popular Library,..N.¥. 1969) p. 148).

Others advance similar views in seeking to expand the

schoo. ‘year, the number of years in school and the chil-

| subject to regulation by the public school system

(s00, gy ‘Cremin, The. Transformation of the School

Alfred A. , Knopf, NY, 1961) PP. 325-332 for an account

ede Ny, ies Vavcseiaal ithe 12k

uth Gnd Ovisis (W.W. Norton & Company, N-Y.,

i 30a go tain aod tar ts

» with the: produstion of the institedion’s s. . chief

resources’’—other children—should look chiefly

gg eli upon all homes as the solution

: m Har an-ectount of the reeuite of « similar

126-147. (rigger panties

. dgyeuigs concern with the problem of

ger Pub. Co, NY, 1971), at pases 121.199

“are taper che we bane bre

Si a RN Ny EAE Re

8 n’s New York Reform School, and Katz, M,

‘Glote; Bureducrasg stil Bohoole (Preager PubiGo:; NX,

1971), at pages 45-47 for a discussion of the Massachn-

Seti Retprin: Buhook: (which-represented, m.1848, the first

form of compul y schooling in the United States).

For diseussions of like efforts to force the accultura-

tion of Ameriean\Indian children, see Burnette, ‘The Tor

ricams (Prentice Hall, N.Y., 1971) at pages 24,

2%; (and Sehusky, The Right to be: Indian. (The Tndian

Historical Press, Inc., San Francisco, 1970) at pages 50,

51. One would think that the outcome of public school

ventures. to replace the home thas been sufficiently grim,

Se ee See ree ay ener

forced acculturation :. eis

““Baueation is and has been a farce The over-

““Fiding purpose of education in years past was to

* gepal oe ee

it te Meee aa oan desatiin OTK

undergone the educational experience on a reserva-

_ tion: Andian, students, while they recognize the value

oll du must, if they have any dignity or pride,

__ Tesist the kind of training they are subjected to. * * *

“Added ‘to these handicaps is the awareness that the

' goal of the school system fostered by the BIA is not

* education but. acculturation: Never have I known

one teacher in an Indian school or one BLA employee

«he Subd hime to ar te Sls nema

toa himself with the cultural. background of

hid ‘etadenta”™ (Burnette, The Tortured Americans

entice Hall, N-Y., 1971) pp. 24, 25).

that see the solution to all social ills in

lisconsin v. Yoder (1972) 92 S.Ct 1596¥ Pierce v.

of Sisters (1925) 268 U.S. 510; In. the. Matter

with (Dom,RehkCt,, 1958) 14° Mise.2d 325; 180

852). il Adeanl tectelaiaiina the erm

Nebraska (1923) 262 U.S. 390; Tinker v. Des

8 Ind. Com: School ‘Dist. (1969) 393° U.S. 503).

a B See choice as the essence of the protection af-

fo ed not alone by. Yoder and Pierce. deat dry. “universal

to pupils attending private and parochial schools

efit made available by. the state to those who can

wy is required by the Constitution to be extended to. all

espe Protection doctrine of. Abii v. Iinois

ready twice. ran afoul of lower Federal courts concerned

(D:C8.Dz! Obiio1972) 40 Law: Week 2724; \Lemon »,

Sloan (D:C.E.Di' Pa.-1972)' 340 F.Supp. 1356): If choice

cannot ‘be made available by indirect public support of

alternative school systems, then: choice must be made

available. within: the system, Some regard the neighbor.

hood school 8; offering. choice. Some advocate programs

such, as-Black House in Berkeley and its counterpart in

Washington, D.C.;" to’ make redically different choices

available, including: in. Washington, D.C:, the: introduc-

tion. by direct. public subsidy. of religious fervor if not

religion itself into the promotion of racial and cultural

identity (see Gross. and Osterman, High School sasasae &

Schuster, NY, 1971), pp. 285, 301)... »»

‘sf$ome “have lost’ the faith. nich: advocate no school

at all: See Tllich, DeSchooling Society (Harper & Row,

NIY., 1971) ;'Reimer; School’ is’ Dead (Doubleday & Co.,

Ine., NLY., 1971} ‘cf. Whitehead, The Aims of Education

(Mentor Pub: ‘Co., N.Y.; 1929). Biven this Court has ree:

ognized that neither graduation certificates nor tests de-

vised “by psychologists are fair measures of ability

(Griggs v. Duke Power Co. (1971) 401 U.S. 424),

| Still! vothers “suggest a realistic appraisal of ‘what

ee te et ee

limit to the aims of publie educati . [People

phe gr nae eu at elie ued

and twenty-five years ago. ven ‘then the’ schools were

asked ‘to: do the impossible . essere

spcadiltltg ee Abatiting Sbenaane | [RJeformers

WIN WNieibelgalnindan,

2 al Waste 10 CUA allinela Webi

he formation of attitudes untended and making

em e object of education. This is a radical position,

dest te the ordinary presumption to the contrary” (Katz,

I, lass, Bureaucracy and Schools (Praeger Pub. Co,

2 1971) pp Hi, ves |

“another for the purpose of deducing group oppor-

to ty from tests given to individuals. Individual oppor-

«5 il AGH cE Rd lapel hi

i” en ee Aen ieee

e _Obseure the legal problem facing this Court.

n tenchers teach, they do not teech a group.

teach a person. It is the person not a group which

‘ourteenth Amendment assigns to this Court the duty

protec Bie ne ee owen Gis Celfctriensiate

ling and the requirements of the Constitution.

SN Obs S Ea Shia ESE RR Se

a eof learning published by educators,

sts, Psychologists, philosophers, and concerned

Pempting to, adopt Edmund Gordon's defini.

L opportanity”, which is. no

in a democracy requires parity in achievement at a base

line corresponding to the level required for social satis.

foe, and democratic participation. It also demands

| um} ty and freedom to Vary with respect to achieve

ment ceilings” (Mosteller, op.cit. supra, p. 433). Satisfying

as this may ‘be to today’s thoughtful educational theorist,

it provides no guide to courts. If an output advocate

such as Dr. Coleman arrives first with conflicting strands

of “carrent educational theory seductively interwoven to

neous ability grouping as @ constitutional

ment, then socio-economic “integration” or an

“easily. ‘theasurable” ineongruent substitate—race—is to

be decreed. Tf ain iniput advocate arrives first, then addi

tional expenditures or compensatory education programs

are to be déereed. If a John Dewey arrives again at the

doorstep (if he “has not then been foreclosed), then in-

dividual instruction is to be decreed. The “opportunities”

will still vary, ‘put not by the exercise of choice and self.

sélection ‘within the framework of local school district

judgments. ‘They will vary by operation of the decrees of

Federal courts. iat

“TE a proportion of Negro pupils in each classroom is

the constitutional right of every white, child, and a pro

portion of white pupils is the constitutional right of oreny

. For one child, ‘ais mast & Glen

ive, high achieving classroom (U.S. Commission

| Rights, Racial Isolation im the, Public. Schools

0 Printing Office, 1967) at PP. 102-103). For

this same situation may be. a disaster. See Den-

he e Lives of Children (Vintage Books, N.Y., 1969)

nts of children damaged by conventionally struc-

meni, and a. persuasive argument against. the

ward larger and more, impersonal educational

me ‘send their children to parochial schools; for

cl in, children being released. for. religious

| ; damaging (see Illinois. ex rel. McCollum v,

ard ‘Education (1948). 333 U.S. 203), The compulsion,

D8 Sa Fa at fe thc ene

‘\ mo magic, either in. mixed’ schools or in segregated

wi © Tien A nied sl with poor and unsympathetic

aa ‘Need ‘Separate Schools (Journal of

sf S Vecahakaeline, nip. 1935) -p. 335; reprinted in

.. Myrdal, An American Dilemma ae Bros., N.Y.

AA) p, 902), edi hide

“smi Snenoni <ippibeantey aitords ‘no standard

for the mikasireniént of & school district's performance of

its duty. It éffords no standard against which courts or

school districts’ ‘tnay” presently measure fair treatment of

the ‘person. It is a slogan which reflects a great public

controversy about the purpose and effect of public schools,

@controversy which at bottom is not justiciable. That con-

troversy should’ not’ be resolved’ by the happenstance of

which’ educational theory or which mix of theories is first

pressed ‘upon this Court. It should not be resolved by the

happenstance of which theory ‘or which mix appeals to

one lower court but not to another. It should be resolved

by allowing local school boards ‘democratically to exercise

their function, *for the Constitution can carry” ‘only 80

mitch exeess baggage, Tt is not fitting ‘that the political

¢ ones ot of 1 an “equal educational opporta-

ae : pees Fe rc. i te

ards meeting at irregular intervals. The Consti-

damental constitutional principle: Such theories are

no more digestible by throwing them all into one

make some kind of jumble stew. (PLBr., pp. 103,

r the problems of educational policy nor the

f reducing ; racial hostility are likely to yield

hich sometimes résult (see Schosttle, The Equal

on } Clause in Public Education (1972) 71 Colum.

or: ado. to a. compelling interest in a neighborhood

policy are at least as persuasive as are the claims

iffs on behalf of a racially defined group to a

measured benefit from pupil assignment by race.

ne considers the variety of conflicting stand-

ch class action plaintiffs would today have judges

e for geographic proximity as the basis for pupil

n to schools, it is not difficult to see why a

f pupil assignment based solely upon geographic

ae Lae, come ~

at Eres ne

proximity was adopted in the first place. It is not difficult

to see why it has in some instances been adhered to

tenaciously: If a school board were obliged to take every.

one’s advice, it would likely join Mr. Illich’ in the view

that the best decision would be not to have schools (see

Aesop, The Miller, His Son, and Their Donkey (Aesop's

Fables, Grosset’ and Dunlap, 1947) p. 50 et. seq.). A

neighborhood school policy is a reasonable legislative

eommenptinn of competing policy considerations.

A Denver's policy meets expectations long established

Denver's neighborhood school policy is more than an

administrative convenience. It enjoys the presumption that

attaches to all legislation not on its face discriminatory,

by race, by economic circumstances, or by length of resi-

dence, It meets the expectations which often attach to

long ‘standing policies (ef. Perry v. Sindermann (1972)

. S.Ct. .). It therefore enjoys the values of prece

dent which attach to such policies, To deny to today’s

urban minorities an amenity of urban living allowed by

‘the greater density in urban: than in rural areas would

deny to today’s urban dwellers an amenity available to

‘others in the past. To deny to the minorities which popv-

late many cities today the politieal influence over local

school district “legislative and administrative policies

available to yesterday’s urban dwellers would deny to

today’s urban dwellers a fundamental right also enjoyed

“by others in the past. ‘Today’s and tomorrow’s urban

dwellers—of all colors and persuasions—are as entitled to

~ Mlich, DeSchooling Society (Harper & Row, N.Y., 1971).

= wee

A Sp ai, Wa he:

ad purpose pursued by this Court in other

~Sgrampegiee amie atne ton

his is Court has persistently struck down state

8 discriminatory against newcomers. The

' dine bl Bide: Aida

| Shutttheerbrkeehterer

ies upon newcomers: A state ‘may not exclude

itidigents (dwards v. California (1941) 314 U.S. 160).

st ate! thust apply to newcomers the same standards as

it appl 8 to others for welfare qualification (Shapiro v.

upson (1969) 394 U.S. 618). A state may not exclude

| fs from the voting franchise (Dunn v. Blumstein

S.Ct. 995).

; state may not dinerinitnate pains biniboliets,

ri it may not Gincrintinsty against: some new-

iin cular prctcies. an woe een

on s to exclude newcomers from housing oppor-

elley v. Kraemer (1948) 334 US. 1; ‘Barrows

+ (1958) 346 U.S. 249). A state may not place

leg ative processes disabilities which would pre-

gether participation by state and local legisla:

g in efforts to increase housing opportunities

» to heweomers. (Reitman v. Mulkey (1967) 387

+ Hunter v. Erickson (1969) 393 U.S. 385).

cases do not, as plaintiffs suggest (PLBr., p. 108),

| a constitutional requirement of proportionate

inclusion by «race follows: froma policy forbidding the

NSA Sec eR RUR ROR ENUNRR AS

pacar ay mandy

maria agi ea a

7), 388. US, 1 (et, Bitter, Case of the Cheree-out

inance, (1962) 71, Yale In, 1387). Reitman and Hunter

a state must legislate in some particular

gy ~ ig a state may allow no

very

é lemonalle inten

tal property and property after it has been sold.

's. in rental property is ordinarily commer.

cial and his interest in any property after he has sold it

is tenuous. A man’s interest in his children is seldom

commercial, Nor does he customarily sell them. His inter.

est’ 18 continuing) and’ isan’ interest at least as funda-

niétital a8 having’a beer’ with the =~ (core — No.

107°. Lied i (1912)'92 Bice "I965). *

iy 4 ayes Shey

has ‘howhere | suggested. that reasonable leg-

2h Eke fe" >

) Geable to all alike must be remade to

ev comers, Nor, has this Court “suggested

* ethnically, or “economically defined

jin to speak for all newcomers, those

well as those who ‘arrived yes-

this Court has held in s

. that, a state may. not discriminate be-

those. already ‘there. "Those cases

imply that a drastic ‘change'in poli¢y falling largely upon

might by that effect alone offend the Constitu-

ea et ca Oe a ee

on what principle, then, is Denver to be precluded

ring —— public school system

of Baker De Corr (1962) 369° U.S. 186.

1 of toe “5 POGRLER I ;

kes > heart of the political franchise which that

ail ts progeny sought to insite or alate, ive

as mer allothion etctsinple ‘of the siatintétinien’ of éoitzot

ywhites” over *‘blacks” (see Knowles and Prewitt,

Institutiona NCR ae Aerie Crabs ail, a,

81.35),

he Smyth ohararimtnns

‘important to” ‘Negro ‘pupils. “Non-metro-

rik consist = em eve at at & lower level in

nt of Negroes as com-

ese ae a, eo

ity z cs Bacay -

_ In addition, the neighborhood school ‘has in many cities

activity;’ tangential to direct instruction of pupils. The

wsighborhood choo! tootveny'the: toons! tod! tainly cons:

vement, in activities such as the PTA, can-

didates’ ‘itech for local elections, boy scouts, the -recy-

cling of tin. cans and bottles for ‘ecological’’ purposes,

unity bazaars, and many. other activities in which

people: like to engage collectively on a small scale. Such

ietivities need not extend to “‘local control’’ and the type

of ‘ateclysmic: controversy. whicl ‘this, twentieth Leseacoen

Ma cents Teachers Strike: Nea aren (Hacber &

‘Row, N¥., 1969) and Levine, Ocean Hill-Brownsville:

Schools in Crisis (Popular Library, N.Y., (1969) with

Bats, M., Class Bureaucracy and Schools (Praeger Pub.

Co; NY, iti) pp. 15-22, 127-128). The neighborhood

ee eee de ns ae ice a

local ‘community involvement _ which tends to. meet the

needs manifest, in controversies such as Ocean Hill-

Bromeneetie withont their eras effects.

“People move for a great many. reasons having chins

to. do. with. the race of their neighbors, the race of their

children’s classmates, or the race of their children’s play-

mates, Moving sometimes amounts to a vote with the feet,

but population. movements are complex. phenomena. The

-cost, housing unsuitable for family living or

eel

RR 2, PPI SF ce

pes

_ flow «into neighborhoods’: long -oceupied primarily by

families of ‘Chinese ‘ancéstry.This’ is’ occurring at the

‘same time as the descendants of earlier residents are

moving: out, dispersing themselves’ throughout the city.

—* —_ ee a dramatic

‘eae i: acnieraahats vant ‘hie Sheatios ‘proportion in

song’ Saxi-Franeiseo weapanwnd —— from ene to

YT AEN ONO all i's a

@ supply and contribute to incteased density. One

Cd eaten Benen tia

part by public poliey, #0 ) Thaximis consumption. Housing

is one means, indeed the chief means, of ‘consumption.

Schools are another. As city amenities such as neighbor.

hood’ schools: diminish, the displacement of residents to

suburbia is accelerated, “particularly among those whose

values “are least compatible with increased density and

nost 1 tik oe

‘overs several: i nid i ata century. A. few

sginen arom. sche exparepeing. 52 for; the, est, tine.

- All experience to date points to but one overall result

for the:publie school in the city: affluent families withdraw

nut oySoriintan sither’ forthe suburbs: or for

ER a rey

teats

DTHOOoC school

tye! 3

ik 3? ue Toe ; 4

Policy. allows, Parents, of all

see yeas

e the same

DR ji spe sapere tc cero gs

a m which PEATE Renee Me

ctures meal to a dissolving at the ey time as

belief in the effectiveness . of public schools to create en-

. tirel; “new forms of human beings appears to be increas

"img, This tension between, the images of the school as

culture-destroyer. and. the school as savior has always

been felt 1 in immigrant groups. It is now felt among the

*k an the poor (see Coles, The South Goes North

& Co., Boston, 1971) /p. 591). As in the

past, the public school aspires to assimilation (Bickel,

The ‘Supreme Court Gnd the’ Idea of Progress (Harper

& Row, NY.” 1970)" ‘pp. 115-151). But “today the

question ‘has becoine “‘assimilation into what?’ and the

virtues” of “pluralism havé’ been noted (sée Glazer and

Moynihan, Beiond’ the’ Melting Pot (MIT Press, Cam-

bridge, “Mass ;"'1963); See also’ MALDEF ‘Brief, ‘p. 26).

iralisr , moréover, may be the heart of the city (Jacobs,

The Death and Life a Great American Cities (Random

— NYS 1961)-"

A, rehash Bags

Pluralism has touad shelter i in the Constitution. Plural-

ism has found. shelter in protected schools (Pierce 0,

Society of Bisters (1925) 268 US. 510), in protected

etivitie (Tinker 0, Des Momes Ind. Com. School Dist.

tall ‘is U.S. 508), and most recently in protected

"(Wisconsin v. Yoder (1972) 92 S.Ct, 1526),

ersor to enjoy this sort of pluralism is

mental as to have its exercise a

ee atett pent: aenniat ep nem

| ee

1 aie ogee avid coin with see

ve 0 aire Shae tance ar wie

lnieaoesienlty ized as — cosmopolitan.

; has: diverse elements in its population, the

od.is considered confining and destructive (see,

te tion and the Powerless in Passow, ed.,

Programs: for. the Educationally Disadvan-

’s College. Press,Colum. Univ., 1968) -p.

e city-becomes ‘uniform, ot least as to its

tructiv mage. Th trot then is toward

stion of school districts. — ta tonal tests

ages are now. Neither is tho usb of sch

i tives of the institution of the

ss ce Mania Sabian jreigeniah dicts rai

te in ns nie (Kats

Rh ei

auc stage oe, sso aps gbukdirs sme. ceyp merbiantmedes

| i ‘eachers’ Rights and Community

Gontrot: (Doubleday & Co, N.Y., 1970) espe ps 18).

‘Tn the ease at bar the couversion into impotence of a

: ‘opportunity to reform a small part of the instita.

“of Ame rican’ public education is again’ threatened by

attack upon’ a democratically chosen local school board.

TE i casier to influence ‘the climate in a ‘school in one’s

neigh pod than the climate in a’ school located else.

where. Tt is more diffienlt, to infinence ‘® school with no

leattendance sone. Tt is impossible ‘to

stilt ehiotd-with's wlaslive dita bole: b:°X echotl rin

from thé’ Federal ‘courthouse or from’ the District of

Columbia. These obvious facts are overlooked and it is

the sighborhood school which becomes a monster that

creates ‘‘feelings of low self esteem, political impotence,

isolation and inferiority, both in the minority children

and their parents.” (PLBr., ‘p. 103): ‘One of the conclu.

sions of the Coleman Report, that both Negro and white

children expressed. a high ‘self-concept, as well ‘as a high

dnterest in. school and learning compared to-other groups,

is overlooked (Coleman Report, pp. 280, 281,..319). In-

‘stead; the portion seized upon is that Negroes.;were like

other n 'y. groups in ‘‘expressing a much lower sense

‘of control: of the environment than whites”. (Ibid, p.

819). In. the same ‘manner, Dr. Dodson concluded that the

factors: present in the neighborhood school ‘ ‘combine to

‘teach these children of:the minority that they are power-

‘less: people and consequently ‘as all people tend to do

when they feel. powerles ign myer 79

(A14T4a; Dodson, op.cit. supfa,p: 332), :

ae Besrz Ae,

tio Alger programmed into their personality. have the

greater ‘‘sense of control of environment.’’:One thing is

certain : if the opportunities for influence in the real world

are decreased, one’s ‘‘sense of control’’ should be im.

paired Bolen i interpret | Kacaasivodl schools’ ’—predomi-

Prewitt, Inctitutional Basisek in America (Prentice Hall

3 Ine., N-¥., 1969) pp. 92-85, 44-45).

“One ‘need ‘not look to the weaknesses in psychological

testing for an explanation of Dr. Dodson’s selective’ per-

ception 6f ‘the neighborhood school. Dr. Dodson has

made it quite clear elsewhere that he is bent upon the

destruction ‘Of local government and the neighborhood

school simply @8 & means of “inducing dysfunction into

the system”’—referring, of course, only to the local

3c shool system—and co-opting for the institutional polliti-

cian the positive aspects of “black power.”” He does not

expect to farther racial integration. His object is to

i erap offered by self-assertion, by assert-

ing himself on behalf of those who need self-assertion to

overcome feelings of powerlessness. See Dodson, Educa-

tion ‘and’ the Powerless in Passow, ed, Developing Pro-

grams ‘for ‘the’ “Educationally Disadvantaged (Teacher’s

cot @ Press, Colini. Univ, 1968) :

Today the sociologists are coming up very rapidly

_ with their.'ve ion [of] infant damnation. When one

ay @htough reading: our’ ‘verified hypothesis,” he feels

~vlike-saying ‘For’ God’s sake, if this is all we see in

»»/the- human “potential with which we work, we had

_better: tarn..them. over to the Black Muslims and

"__ Fesign, from, the business,’ Somehow when youths get

ae lieraative to ths soled integration approach

des ‘the ‘Negro group itself taking power and

under self-direction * * * - This approach

olen yi aoneracritetes Se Basti the

em o* * until the social order comes to recognize

of the whole to its pee: (Tbid.,

hay Bo ies the art. and. skill of taking

ower—as they rapidly are doing” (Ibid., p. 338).

‘Ever y classroom should be a laboratory in how. to

BS pemtk; low. in shield the etsy oak totes

| utes MOTE nk ell

aes

‘ Festi rr on ral.

“Tes to ‘predicate Federal jurisdiction upon

; Essay ‘Unwillingness deliberately to create

n in a local public school system so that some

vonstituency: will féel that they have been able’ to

i. PERS ST Sree oth, oe

EB. A neighborhood school policy policy. does: not disrupt: parental ex.

ctatior educa.

Minor sate CAR Cee erenien

_,Parents and their children have claims upon the institu

tion. of gi school as legitimate. as. those of

sociologists, educational theorists, institutional politicians

school. district lobbying associations, teachers’ colleges,

‘school administrators’ associations, teachers’ unions, and

racially defined pressure groups. It is reasonable for a

local school board to take parental claims into account.

‘The'tights of parents serve a purpose beyond recognition

of the natural feelings of parents for their children. We

have in the Nazi and Fascist regimes the clear historical

lesson of the result of law under which children belonged t0

the state. See, e.g., Decision of the Vormundschaftsgerichi,

Frankfort Am. Main-Hochst, Germany, May 4, 1937, 7

Deutsches Recht 446 (1937), translated in Simpson &

Stone, Law and Society (West. Pub. Co., 1949), at p.

1874; see also Decision of the Amsgericht, Wilster,

Germany, Feb, 26, 1938 (67 Juristische Wochenschrift,

1938), translated in Simpson & Stone, Law and Society,

at p. 1264; “* * * one of the boys expressed his desire to

enter the Hitler Youth. But, his parents would not allow it.

From these facts, the Court has concluded that B. is

decided to deprive him of his right of custody * * *.”

This. Court recognized in Wisconsin v. Yoder (1972) 92

S.Ct. 1526 that the rights of parents are essential to the

preservation of a free society, Most parents of all races

r th neighborhood school This preference is based

‘upon its convenience, and the parental supervision

sus sh convenience allows. It is also based in part

nt at he en he herd

by some as a moral duty. Many parents

» moral:and:ethical:instruetion, of their children

shighe moral duty of parents. They do not regard

Be an eminent inns ther

ately s: to. yield to the state the moral. instruction

i n merely because some parents as well as

5 fall short, in. ming their obligations.

en inst of the publie school as

; fewer have the faith of Abraham (compare The

pe ay Ra a Pale

or ry of Fair Em; t | Laws. (1971)-38 Univ. of

217. §. 28 2a, Many parents have

sin v, Yoder (1972) 92 8. Ck 1596: West

ini Board of Ea. t 2. ‘Barnette (1943) 319 US. 624;

f me yclAtabe taaak: VS. helen)

; io: ORR SF STE

a aie eg ghia no TAR

‘Engel. v,, Vitale (1962) 8700.8. 421). Travel time has

‘been ‘a source of controversy at least since 1902 (Smith,

Pupil: Transportation: A Brief “History: (1972) 11 In.

‘equality in Education 6). Upon the evidence that it is

after: all: ‘the home which: produces’ the school’s chief

‘earning » sway epent greene ‘would seem to ‘have the

better claim. | an

Many parents do not réadil; Scvept the notion that

the law Tequires that they be ‘afforded due process’ before

their television set can be repossessed, but forbids that

they ‘be afforded ‘an effective say, individually or col.

lectivély, in where, or for how long, or for what purpose

‘heir childten ‘inte to be teigifted to’ attend schoo! (com.

pare Blair v. Pitchess (1971) 58 Cal.3d 258 with San

Francisco Unified School District v. Johnson (1971) 3 Cal.

$d 987). Such law has little moral force. :

The success. of compulsory education, if it has been

successful, does not lie in the legal sanctions which can

be bronght to bear upon recalcitrant parents. The success

of compulsory. education lies in. parental consensus,

parental. willingness. to assign | instruction to public

schools. That consensus, derives its moral force from the

justification for compulsory education: a child is re-

quired: to-attend school for his own benefit. A shift to

alsory education not upon the benefit to

the child but-upon the beneSit to be derived by another

from his presence, accompanied at the same time by in

sed burdens’ and loss “of expectations, is highly dis

ruptive of the delicate balance between the interest of

‘Ge oP eae wor cack dys gediy from the lid’

Fi eo nama gary a ar

_ Plaintiffs set against Denyer’s, racially non-discrimina-

tory pupil assignment policy the most suspect of the

several conflicting standards by which courts are being

ec to. mandate the assignment of pupils, the race of

the pupils, Prior to Brown v. Board of Education, racial

classification by government could be used to intern Ameri-

can citizens solely because of their racial ancestry, for

racial classifications were merely ‘suspect’? (Korematsu

v. ‘United States (1944) 323 U.S. 214.) Sweatt v. Painter

(1950) 339 US. 629 overruled Plessy v. Ferguson (1896)

163 US. 587 sub : ‘silentio. Until recently most were of the

opinion that Brown, similarly overruled K orematsu sub

EB eA

d. é. Sharpe (1954), $47 U.8. 497 upon the suspect nature of

: cati mn s. Some mistakes are too great and too

tions to acknowledge publicly.* But

the trouble with unacknowledged bastards is that they

—

Se teach te dren oth

WW isllig'Maitietiitpied'ts

08 RE I a

‘Hansen (D.C. -D.C.1967) 269 F.Supp: 4017;

tes v. School District. 151 ‘of Cook County,

.N.D.IL, ED. 1969) 301 F.Supp. 201; Devel-

‘in the Law—Equal. Protection (1969) 82 Harv.

65, 1087; Wright; Public’ School Desegregation:

Remedies for de facto’ Segregation (1965) 40

a m 6; 297). Racial classification is reasonable

Sn ea

prone of the moment.

se vel Gael vbiha lanes ais

’ susp and not ilegal, it would still be a Surprise

‘them’ required st the end of the Toad. "To those

iled Brown Town “as the ‘dawn’ of ‘enlightenment about

it would be a surprise to find racial classifié

elo choc istrictéowhieh have 46% ‘any jens

Renita pit “just schools.” It is

i nica words that can be all things

n the word ‘Race’ ‘has a fair claim to being the

ie 8 eé a ity kM ee nop

ike

| Sot dada kas Deg Nigel 190, 198-208). The

Alexanders’ ‘‘model’’ points up the fact that local custom

_ ds-seritical | ‘to ‘any: effort to\.défine | the’:indicia | of

w Detas (1954) 347°U.S.'475) twas, largely law estab-

lishing the . -dassification, ‘supportive of social custom,

which-gave “‘Negro”” the core. of meaning which it had.

‘This largely new ite ations of salutary laws forbid

She sn oma ba ‘(sce Ban.

ea ash pe Pt sae WX Tall ef eon

pais cara ee varé now to. bei constitution-

ally required legal classifications: for thé purpose: of

assigning children to public. schools, plaintiffs should ata

‘minimum be required to establish that the “Negro” classi-

fication has some-rmeaning at the time and-in the place

dm which the use of such a. classification for pupil assign-

‘ment-is.songht to be required. Plaintiffs have not done so.

They have, on the contrary, established: that:‘‘race” has

been. consistently. considered immaterial by the Denver

Lapuste wine in its ae meres. ieilag re

sleet j

i “he ao. aie sa Ga = Sh en

‘ - .

dant Memmingtion: nor is it exclusion

, “ ne Boro ape faery tae

y - must be Seminnd: pig iearenugsad

iy ons state x mice, ion ane for

d LDS ne oe ces phan anit

‘A racial ‘quote is necessarily exclusionary as well as

inclusionary in two ways: First, if to achieve and

iilsitlistsd’ this Padded héthsidd OF d ° adiizédns “Ok thirty

pupils, ‘@ quota of fifteen’ black ‘atid fifteen ‘white pupils

Si sidddeg ik dally Rl i lial "ak iatabee

who would, ‘absent'the limit, be in the classroom. Second,

‘by inéluding fifteen black pupils on the basis of race, fit

so osoepn ena rod’ gd meat

1eCess exclusionary’ 88 well as in-

y, Denver can “hardly ‘be’ aid w lave’ violated

ie ld tut a? ie

élassrooms would be squarely contrary to Brown’s pro-

hibition against the exclusion of persons by Tace. Based

as” it “has ‘been and continues to be upon geographic

indards alone, Denver has pursued faithfully the policy

iid down by this’ Court. Denver’s policy seeks to avoid

délibérate exclusion ‘by ‘race. It seeks at the same time to

avoid deliberate inclusion ‘by ‘race, for such deliberate

nelusion neGedenirily ‘entails deliberate exclusion by the

as bar d. Yet the plaintiffs ‘here urge in

chievemer eit ih ‘pupils. i aaah,

g to Dr. Dodson, fat pon all alk betas blaak

caatoae Denver's : sibiiteaiiiaieiaats schools

adversely affecting the school’s average achieve-

” ag Ris

$ Teach: their er es ak ares Prezenen of

psi ‘than &e selectéa: Deaeer: ‘schools. ‘in

>i ghar)

‘70

“panopupils are disproportionately represented in the

Denver schools with lower median achievement levels, it

‘must, be the Negro and Hispano pupils whose median

vement, level in those schools is lower. Since Negro

and B | 10 pupils are in general as capable of perform.

“ing ea-well ag anyone else—an item with which we eer

‘tainly agree—the Denver school district must be depriy-

ing its Negro and Hispano pupils of a, benefit which the

aR Sah Diet 2 aban ena i. bag

pupils. The only discernible such benefit is “knowledge.

able fellow. students’’, i.e., Anal pupils, |

. “This chain of reasoning assumes a great deal. It as-

sumes that ~‘‘Negroes’”’? and. ‘‘Hispanos’’ are fungible

among the group defined ‘as ‘*Negro”’ and ‘*Hispano 29 It

assumes at the same time that ‘‘Anglos’’ are not fungible

‘among ‘thé group defined as ‘‘Anglo’’, for one would

-able fellow: students’’; or, alternatively, it assumes that

»“ Anglos’? are also fungible ‘but ‘provided in insoufficient

numbers. It:assumes either that it is the children and not

ing, or that children from homes supportive of educa

tion are an adequate substitute for homes supportive of

_ education!” It further assumes that it is possible for the

‘Denver a an institutional substi-

Bi} e243

try remote from its intended beneficiaries.

stad in Brown that the deliberate exclu-

‘pupils a race does those excluded psychological

as 30 N.Y.U. Law Rev. 150, 161-165). That

by race is an indignity to the pupil: exeluded—

in indignity also to those who identify with him—

H within the requirements for judi¢ial notice. Plain-

®, contrary to. all evidence and experience, that

no Pi

by law a acideatemummiecarcne tn

becanse of their race (PLBr., pp. 103-104). That proposi-

ag eee

of thé mistaken self-perception of racial

y which’ this ‘Court noted in’ Brown’ Taal

tion is not easy to achieve, for “race pride”

@ as well as negative aspects (see Barzun, op.

by ret. to 2d Ed: at p. xix). The [psychological

re in Brown is not universal today, if it ever

‘predated the tise ‘of significant ‘black ‘nationalist

‘e

7 a a i, g- eee 2

+ rE A te ow:

PS cet See gin Bi

- pp Os: Pee, gt ter

Pe he a of ee 3

sek: (aed ania Siderin, Alok: Makionaliom: A

Search for Identity in. America. (Univ. of Chicago Pres

he aeadiniiaatidinte such as Canin Berkeley

and Washington, D.C., has been to condone by the support

implicit in the use of Federal public funds the substitution

_ of “black” attitudes of racial-superiority for “white” (see,

e.g, Gross.and Osterman, High School (Simon & Schuster,

N.Y.4:1971), pp» 293,300). The effect of allowing any

racially..defined group. to exclude from public facilities

persons of another raee appears to be the same. If, there-

were exclusion. by race, which it is not, the burden of

mistaken perception of race as determinative would not

fall upon black and. amin raple differently. It would fall

upon both alike. ..

SAL EE ET exclusion

ee a ee a

self-perception, but considering Negro pupils alone, the

possible harm to’ self-perception’ which could result from

the policies which plaintiffs in effect urge be required

nationally may. be as-great as those resulting from segre-

St srrers

a te RPL ES

nee met damaged by law and school. distriet

rn hin mgd wl

; Sa see ee RT

aes ¥* SES ae :

74.

in any case serve to mark Negro pupils by race as mem-

bers of @ group from which not much can be expected.

Plaintiffs themselves note that performance is sometimes

affected ‘by ‘expectations (see Rosenthal and Jacobson,

Pygmalion in the Classroom: ‘Teacher Expectation and

Pupils’ ‘Development (Holt, Rhinehart and

Winston} NY, 1968): Plaintiffs do not seek escape from

erginoranu mii png effect. sometimes occurs,

They sé 3 ad to reinforce it. Plaintiffs choose to ig-

Siditethe Bik eiteot Of their ows ‘panassa’ pon expecta

tions from Négro pupils. They complain instead about the

long’ standing and almost universal practice ‘of paying

some attention to achievement levels in schools for the

of central decision making about the allocation

Of renourees to schools (PLBr,, pp. 33, 34).

In Denver, for example, @ lower, pupil-teacher ratio—

that. is, fewer pupils per teacher—was deliberately fos.

tered in schools with lower average’ achievement (A.

1827a-1329a): Ht ds diffica}t to see ‘how.such a practice

éan be considered adverse to the pupils in schools with

lower average achievement levels; but the adverse ef-

fect of this practice, if it is adverse, does not fall upon

Negro ‘pupils alone. "The vice of the practice, if it is a

vice, stems from central direction. To the extent that the

practice treats | the pupil in a school with a lower average

achievement level as a member of group, it does by school

‘the very thing which plaintiffs seek to require be done

by race. The effect upon Negro pupils of limited expecta-

‘tions would hardly be improved by a constitutional rule

requiring the deliberate balancing of pupils by race on

oc pnanagen tamara ng

‘in San, Francisco, but: because of the effect

‘done in San Francisco, that all-children can benefit from

pupils of Chinese; Latin and Filipino ancestry need bi-

eat aiabe 0 tion. in. public: ‘schools, sa need. having its

origin’ not. in. ethnie® background ‘but’ invexisting- ethnie

environment. Special programs are sometimes essential

ere iy op mag into” the larger’ ‘community.

geet Pash a 5 witter

Bs s upon the frivolous. ess argue as some have

e*)

by SY

2 ovwros petochot er hs ama

ho ver. Sil ‘likely that the ‘child from a

ik hse “Home, who" is’ Konda difficulty with

Chit son ee

can be sided —voluntary **eoncentration” not because of

but because. of the need of a

orhood school policy is not segregation merely

lows self-selection to create ethnic diversity

among schools, Racially and ethnically diverse schools

rome Reet separate, for racial imbalance resulting

"from self-selection excludes no one by racial or ethnic an-

‘cestry. Nor does it ‘freeze more firmly into the im

stitution’ of ‘the public ‘school ” the insensitivity often

iyo sa eg

flected ie ing nation’s most «baer ecigensend neongens a

nan, dagen in the Class-

spondents 1965-1966; and Tbid., shetty

SP Shes ROR MOA

gut in ght “tainly “have called ‘Timself a

Take Your Own Port (George a Doran Company, NY,

1916): p. 863):,Self-designations often differ from labels

appliéd-by. others..:**To infer that all. Hispanos are non-

white is fallacious, malicious sometimes, and always unjus-

tified . .. . The term ‘Anglo’ should always be used when-

ever it is necessary to differentiate between Americans of

‘Spanish, Mexican or other ‘Hispanic or Hispanic-Indian

background and Americans of European background other

than Spanish” (Valdes, What You Are (1972) 1 La Luz 56,

57). ‘Some ‘ ‘Anglos” who identify with the Irish Free Re-

public would disagree, just as Dr. Valdes rightly protests:

“In the same spirit that a Bolivian-American resents being

called a Spanish-American or Mexican-American, so too do

the one million descendants of the original Spanish coloniz-

ers. resent. being called Mexicans or Mexican-Americans

” (Ibid, p. 58). The diminutive chicano has little appli-

adick te eee where most ‘‘Hispanos” come from rural

Colorado and northern New Mexico (A. 2002a).

_pIn tthe: ‘absence of any: evidence. in the record: as to its

meant’ ‘used throughout the record’’ (P1.Br., p. 5) or

as to.the indicia which are to govern a public official’s plac-

ing a’child in any such ‘‘racial” category for any operative

_purpose, ‘‘Hispano”’is.a vague classification. Since people

often. at least:think they . know what Negro means, plain-

at the same time solve. the vaguess. inherent in the ‘‘His-

pano” classification by pointing to. one. attribute—low

neunbiaeiiddagals: shared ‘with Ne-

Plante ae compl to their: peculiar effort. to

Suenapoa for special. treatment as Negroes by

2e88: 'y to. impress a unique set of problems upon the

“same problems, the irrelevance of the Negro

ificat ic n to pupil assignment to schools and classrooms

in t. Some feel they should be prohibited by. it (ef.

] Porcing Fcategtion, on Children and. Their Parents;

FAP eroteties eo

C most pupils of Chinese ancestry in San

do not share-even that problem. ‘The ultimate

On aparece eS

80°

euations-on the onder of iadioueienie: ‘transformation by

| Gaeta Dike Monon Mistees nts ws

_ And have we notalready, by embarking upon racial classi-

fications’in schools, increased geometrically the opportuni-

ties for schoolmen who are inclined to do so to discriminate

against a child because of ‘his ancestry? |

‘In San Francisco, these are not idle rhetorical ques-

tions. In San Francisco, the average Scores on achieve-

ment tests among pupils of Chinese ancestry is high.

Are pupils of Chinese ancestry, therefore, to be classified

as ‘‘white’’ for the purpose of assignment. to schools with

“‘Negroes’’!™ Or must’ they be classified for school

assignment as ‘‘Negro’? by virtue of California laws

which at one time excluded some of their ancestors

(see Guey Heung Lee v. Johnson (1971) 404 US. 1215;

Yankwich, Social Attitudes as Reflected im Early Cali-

fornia Law (1959) 10° Hastings L.J. 250). Must San

‘Francisco provide in each sehool (or in each class-

room?) pupils in each of its nine ‘‘racial’’ classifica-

tions? Or is it San Franciseco’s constitutional. duty to

classify all. of the low achievers among the pupils in its

‘‘racial’’ categories, taken together, for treatment as

_ ‘Negroes’? and ‘all: the high achievers for. treatment as

“white,” and then to balance its. schools so that each

se agg oe a and low

‘answer to gf Chine ne rex erin: Bow waited long cols) 275

al question at the outset and at the’ end ia

is the responsibility of the Denver School Dis.

toh

€

Posed as one of rights or of remedies, or

“athe anti tae» o

ooh ae :

~The proper recipe for inclusion in and exclusion from

Specific schools to avoid “‘isolation’’ is entirely specu.

ver’s schools.’ Plaintiffs object to a school 27.5 per

cent Anglo, 38-per cent Negro and 29.7 per cent Hispano

(PLBr., ps 122). If interracial contact is the goal, this

" titix” seems “ideal. ‘The “*Anglo” percentage is’ greater

This Court’s remedies decisions offer neither a meas-

ure a, whieh od may deduce when ‘‘desegregation”

od nor ‘@.measure of sufficient racial

Bi St purpose. ““Desegregation’’ is to be

measured not by motive but by effect. Yet school districts

subject to “d gat mn? ate forbidden to create new

attendance zones in which the proportion of pupils by

race is about equal (Wright -v. Council of City of Em:

porta (1972) Bint United States v. Scotland

Neck City Board oF Education (1972) . cai how: ig eae

“6 are thereby

_ eae effect’? which the

plaintiffs in the case at bar consider to be vital to the

improvement. of Negro pupil achievement (supra, at

pe 18)" “A ‘schoo! “board’s: ‘speculation ‘about’ the effect

upon = shifts in ‘racially defined populations ‘of a

Fédéral remedy ‘which denies to all pupils in a school

district the benefit of Dr. Coleman’s’ prescription is not

rélevant, Yet judicial prognosis of the effect of population

shifts ‘upon’ the ‘self-perception’ ‘of all Negro’ pupils’ re-

quires ‘the: “perpetuation” of a county-wide school system

UPicigat: v, es tae sei tigi ti Unites

Start

- attendance’'zones in which the proportion of

and black pupils would be about equal would have

C of inereasing the proportion of black pupils

sim Yet San Francisco was subjected to

ogation *\ because it allowed some minority-

ated schools to exist within a framework of pupil

ment without regard to race, and San Francisco

wowed at the same time to increase the proportion

pesyatin epee eho teyminionining: fms lee.

i hs hein alsindiia tiested

‘asymmetry ‘among school districts resulting’ trom

» supervision of San Francisco’s pupil assign-

ey in \perpetuity, if ‘‘desegregation” remedies

ne ‘outset correctly grounded in the nnderstand-

“racial imbalance ‘is sufficient. to show a violation

tutional duty conferring Federal jurisdiction.

eres) ees

Pte eg ee 1 See

hi te

et fe 4” Pi me i

a '

If’ racial imbalance caused by the pupil ‘assignment

policy of a Federal District Court stands on some dif.

ferent footing than racial imbalance causéd by the pupil

assignment policy ofa school district, one may reasonably '

ask what part of the Constitution exempts Federal court

equity power from the ‘requirements of equal protection

‘and due’ process. of law? What ‘part of the Constitution

allows to equity s0’tuch flexibility that Federal District

Courts’ are ‘always correct and school districts are always

wrong? There is no. end to the conundrums which Federal

court. remedies cases: have put to school districts: Can

they keep racia \'data, without its being used as proof of

racially discriminatory intent? Can they fail to keep racial

data. without ‘its absence being used as proof of racially

discriminatory intent? Can they build a new school, or

not? Can they repair a school in a ‘‘predominantly black”

neighborhood, or not? Can they assign a ‘black’? teacher

to a**black”’ school, or not?Can they allow a ‘‘ white”

child to: transfer out of a ‘*predominantly black’’ school

‘palance.of a ‘school attendance zone? If they do not strike

\ PR RR RR Meey' Sie Sent connate en

! ‘by law? And what is the correct: balance!

$e heated cpl Septchlatlin ts thn, doch intent,

by ‘adult population in the school district, or now, by

pupil population or adult population in whatever three

or more suburban areas someone might later think the

_ sehool district should be required by the Constitution to

auergé ‘with? If,on’ the other hand, they do not meddle

with the racial ‘balance of a. school attendance zone, then

are they guilty of an act of segregation by law, by virtue

of ‘‘failure’’ to correct racial imbalance?

‘For. the bare Lag amt aid to

Beal Ade, Section 720 ), (10).

we find the history se Lavette

d plar ns for the creation of larger attendance zones

“use of “complexes” distinetly poignant, \ If. in-

is Once adopted cannot be modified or postponed

in favor of a plan’ a

: ethic pt tre

pour alr Yet neither the WAAC ‘tor

ge of its like ——

c Argh sda

t'0. Johtison (1971) 8° Cal'8a

race was state action requiring a decree directing the

Se Fier ns Senentanny wt temmentory,

pupils:by rave. « “>

i i a ge ne ek 1 gu

esponsibly to administer school districts by law and

izes of srhcial discrimination’ Are dammed’ if they’ao and

‘damned if they don’t. With school districts compelled to

Jabor in the absence of rules, which is the absence of law,

in.a climate of racially oriented political propaganda, re-

spect for law is itself undermined. School men who do

wish to. discriminate against pupils by race are afforded

the best possible situations in which they may do so

freely; for there is no measure by which, the racist may

ii naan conisarwitaagradel Q

s 5c is eal vex ga

- tent to segregate merely affords another means to compel the

udoptio Hp moet phar ane pps pay ham Sa

onal standard against due process of law.

fe s would shift t local school districts the bur

once an unspecified number of acts of

regi Kee been shown, (PLBr., p. 66).

7 gh ==: “Msegregatory action” be shown.

is imy oe to prove. Even Unele Tom

87 ;

ly black schools those schools are then said to be

Pipho iemrala: aplnoln If black ‘teachers are

ols, then educational opportuni-

». being; depressed. at. “black” schools. becanse the

lave no, role’ pote. Hs aeriolle ip Slanrtnanne are

f Wy Wall oa Winton

ccthagl 5 splealae ope

| 2 pctlodg oper te

” sek

utiras Man %

tion is not provided, pupils: witha greater

being discriminated against because they are not

, hi dren a. who need less, Ifa Teplacement

t and o opens with, a ‘twenty-seven percent

tion, it, beeomes, “earmarked for mi

sD. 24), It och school boundaries are

ic . a busy thoroughfare,

4 0 pupils | are being “segregated” if a dispropor-

number live on ‘one side of the street (1132a-1133a).

indarts ate dren witht rogatd t such

to include a greater hati of Negro

7 é pupils —

CP RA as

eS ee HG SYS Brae vy oP 7

1S iby.

CSS. SS Ve au ¢

os aaa Ses. yh

PS aa it fo

eens gs Sean ha

ge.

stiall “Detroit, schools * * *" (Glazer, Is Busing

“SE s5

Constitutional rights and corresponding duties should not

depend nd upon. the views of a single judge as to a sufficient

pattern of pupil assignment by race. The redemption of

ms al rights should not have to depend upon wait-

n ing for the “right” judge.

_Nor should constitutional rights and corresponding

duties be. 80, ascertain as to result in the imposition of

conflicting duties in the same case, as has happened in the

case at bar. The disparate. treatment below of Denver's

“eore, area” schools and its so-called ‘‘resolution” schools

simply imposes upon the Denver School District conflici

ing duties, Denver has been told in one breath that its con

that. ist ge Je - four of its school ‘boundaries

that it must gerrymande

to improve pyres Tt has been told in the next

a. Feb ae ees

‘oppressed, RESIS GS 5 Ets

rs) ee — which ‘in

Minar Sern FeO salen

class ‘action and the doctrine of precedent which binds

everyone (Sierra Club v. Morton (1972). 92 S.Ct. 1361;

but see, e.g., Henry v. Godsell (D.C..E.D. Mich. 1958) 165

‘ESupp. 87, and Davis 0, School. District. of Pontiac, Ine,

(D.C. ED, Mich. 1970) 309. F.Supp. 734, (6th Cir, 1971)

443 F-.2d.573). The case or controversy disappears, and

the adversary process disappears along with it, if a politi-

eal organization ean, by producing statistics and the his-

tory of some normal and necessary actions that can after

the fact be construed as ‘‘segregatory’’, force a school

district to choose between protracted litigation (which the

school district must lose because undefined insufficient

tracted transportation of the district’s pupils. The only

ones hurt are those who are to be allowed no voice, indi-

-vidually or collectively, the ‘‘beneficiaries” of the institu-

tion. For the parents of those ‘‘beneficiaries,” be they

whitey biatk, red,.or. brown, recourse, against s, public insti-

‘tation. which sometimes has as much in common with the

jailor as with, the fairy godmother is undercut, by the very

judicial system to which they. Sitges for, Feanemtien of

the, pledge of due process, of law. oe

_ A-change to constitutionally ‘asian tate quotas in

‘publie schools is of too great moment for indulgence in

racial quotas ‘would thus be impressed into the Constitu-

eas yk

Sar UE 3

pe ere eee

Sas ig Ae eS eh

Peers

_ school system:' Plaintiffs’ “remedy” for’ racial imbalance

‘would: be: impermanent: It is, :moreover,directed at the

“body. Racial imbalance as well as the deficiencies

in he inet ot the-pi shel would contin be

sruy t tt en im vane 1 loss of about one-

paar is ited Weenie in the: wee was greatest

Court in ‘San Francisco found to be “integrated.” We

‘trust that in view of the pupils of Negro ancestry and

‘Chinese ‘ancestry ‘inéluded in San Francisco’s dramatic

Pupil loss, charweterizing that loss as “white” fight would

ret poe nemnioreneess ~ vecial classification.

ep ah ) ahead of their pupils. Mrs. Lewis “found that mov-

ing aa the ' core city to an integrated area provided

beth ope, Bon ne because other Negroes ie

a ark Fi ea aaa ae a he

another black elected official lived were to continne in

the" optional zone (A! 866a-867a, 8752). Seriator Brown

thoved ‘to another optional zone between a predominantly

white and a predominantly black school, and his: daughter

attended the predominantly white school (A. 876a-877a).

Barrett school was constructed to serve his’ residence area

2-34 S ES of

Pg eT ¥: 3

not even en ic. abou such: mild, teacher, ‘eoersion”

as offering higher pay -scales for service in schools with

low achievement levels, The NEA. did. not.endorse: Brown

I or Brown IL after. studying the matter in 1959. (Lieber-

man, The Influenc: of Teachers’ Organizations Upon Amer-

ican, Education, in Henry, ed. Social. Forces Influencing

ion, National Society , for, the Study of

Edueation, Sixtieth Weestec Part i, Univ. of Chi. Press,

Chicago 1961), Iti is, therefore, not. surprising that there

is no comment from that quarter about. teacher turnover

in Denver's “eore area” schools (A. 281a).. “There is no

request from that. quarter, to remove seniority. transfer

provisions from, teachers’ union. contracts. Such, require-

ments pare ee, (A, 2600, 26la, 2660,

d s; but t

there is only willingness to join in

eet hose

chy T econaays children

Seah ee we. aed

Pa 3 SPALL H TS oh gee

iter eee iF RP EEES $F 8

oT ~ impersonal mn = 2

flicting. demands or an impossible burden of proof upon

tevival of Social Darwinism would be dangerously short-

‘Bighted (see; e.g., Ardrey, The Social Contract.(Kingsford |

Press Ine., 1970); Jensen, How Much Gan’ We Boost IQ |

1). To-impose ‘upon school districts a constitutional duty

to-classify pupils racially for the. purpose. of school and

elassroom: assignment would serve chiefly to perpetuate

the myth that it is race which determines behavior, ability,

accomplishment, and character. Given the purported cor-

relation between. race and.academic achievement upon

which plaintiffs base their argument that.a school district

must classify and assign its pupils racially, it would serve

als0 ‘as & ‘measure—by race—of the nation’s view of a

pupil’s prospects for academic success. No school district

sist eget ho oul abana of» the. United

aa to do that to any child. - ey

“Phe deci a of the ‘Tenth Circuit below should, there-

affirmed as it relates to Denver’s ‘‘core area”

0 | should be granted and the decision

ree pee

ofthe Meth Che trad in Ng 71-572.”

Counsel nsel for Amici Curiae.

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.