# Amicus Curiae Brief — Keyes v. School Dist. No. 1, Denver > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0182%3A17 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1973 - **Citation:** 413 U.S. 189 ## Text 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: b we E: 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 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 . © Cal. 1971), $28. 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 21 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 ee 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) 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 6 \ " 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 Sa 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) ad arms of government limited powers. Tt as. 10 » 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 ee 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 ) 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 a _ 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 F; 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 60 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 61 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 es ‘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 — ee 65 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 oe 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 ‘ - . ee 67 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- ee ” ag Ris $ Teach: their er es ak ares Prezenen of psi ‘than &e selectéa: Deaeer: ‘schools. ‘in re >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- ee Bi} e243 try remote from its intended beneficiaries. stad in Brown that the deliberate exclu- ‘pupils a race does those excluded psychological leed it does, One does not need © Kenneth 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 Ai id e*) ae 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 : 82 ~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 ' 84 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 et 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 : é : ge. af stiall “Detroit, schools * * *" (Glazer, Is Busing “SE s5 5 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 oe 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 as 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0182%3A17. Public record. Not legal advice.