Keyes v. School District No. 1 Denver, CO. Brief Amicus Curiae

    IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1971

No. 71-507

WILFRED KEYES, et al.,
Petitioners,

v.

SCHOOL DISTRICT NO. 1, DENVER, COLORADO, et al.,
Respondents.

AMICUS CURIAE BRIEF OF THE 
JEWISH RIGHTS COUNCIL, INC.

DAVID I. CAPLAN
Attorney for Jewish 
Rights Council, Inc. 
250 West 94th Street 

New York, N.Y. 10025 
(212) 663-0286

DICK BAILEY SERVICE, INC. Telephone: (212) 447-5358



TABLE OF CONTENTS

Page

Interest of the Amicus............................................................  1

Consent to Filing....................................................................  3

Opinions Below......................................................................  3

Statement of the Case ............................................................  3

ARGUMENT ........................................................................... 4

POINT I — A Federal Court Has No Power to Require a 
School Board to Adopt a Plan to Achieve Ethnic Quotas of 
Pupils in Neighborhood Schools ...........................................  4

Conclusion...............................................................................  10



AUTHORITIES

Page

Court’s Cases

Brown v. Board o f  Education, 347 U.S. 483 (1954) ......................................  2 ,4 ,6 , 7,9

Cassel v. Texas, 3$9 U.S. 282 (1950) .............................................................................. 9

Hughes v. Superior Court o f  California, 339 U.S. 460 (1950) .............................  6, 9 ,10

Larry P. v. Riles, 41 LW 2033 (D.N. Cal, June 21,1972) .............................................. 7

Milky Way v. Leary, 305 F. Supp. 288, 292 (S.D.N.Y., 1969) ....................................5

Tinker v. Des Moines Community School District, 393 U.S. 503 (1969) ..................... 5

Other Authorities

Cahn, “Jurisprudence” , 1954 Annual Survey o f  American Law ....................................7

Coleman, Equality o f  Educational Opportunity (U.S.
Office of Education, 1966) ........................................................................................ 8

Glazer, “Is Bussing Necessary?” , Commentary, Vol. 53, No. 3,
p. 39, March, 1972 ................................................................................................... 6,9

N.Y. Times, March 24, 1972, p. 54, col. 1 ....................................................................... 8



IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1971

No. 71-507

WILFRED KEYES, et al„

Petitioners,

v.

SCHOOL DISTRICT NO. 1, DENVER, COLORADO, et al.,

Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Tenth Circuit

BRIEF OF JEWISH RIGHTS COUNCIL, INC.
AS AMICUS CURIAE

Interest of the Amicus

The Jewish Rights Council, Amicus, was founded in 1971 
for the purpose of ensuring and promoting equality of all 
persons before the law, and in that manner to strengthen and

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preserve the security and constitutional rights of Jews in 
America through the preservation of the rights of all Americans. 
The Jewish Rights Council believes that the welfare of Jews in 
the United States is inseparably related to and dependent upon 
the equality of treatment of all Americans. The Jewish Rights 
Council’s membership includes over one hundred Rabbis from 
over a dozen States, representing Orthodox, Conservative, and 
Reforiq^Congregations.

The instant case raises an important, if not crucial, issue 
under the Equal Protection Clause of the Fourteenth Amend­
ment, involving the imposition by a Federal Court upon an 
elected School Board of ethnic quotas of pupils in public 
schools. Public education has been one of the keystones for the 
unprecedented success of the Jew and other minorities in this 
country, and therefore the Jewish Rights Council has a 
particular interest in quality as well as equality in public 
educational facilities. Being composed of members of a perse­
cuted minority, the membership of the Jewish Rights Council is 
especially sensitive to any and all forms of discriminations based 
upon race, religion, or ethnic background. On the other hand, 
the Jewish Rights Council believes that it is extremely impor­
tant for the preservation of our American way of life with its 
concomitant “American dream” that the rights of one group of 
persons shall not be sacrificed in the name of the promotion of 
another minority group. In so doing, the Jewish Rights Council 
wishes to make it crystal clear that there must never be any 
retreat from the principle of Brown v. Board o f Education, 347 
U.S. 483 (1954), that a State should not be able to keep a 
person out of a public school (or other facility) merely on the 
basis of race, religion, or ethnic background.

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Consent to Filing

This Brief is being filed with the consent of all parties to the 
proceeding.

Opinions Below

The opinions of the District Court are reported at 303 F. 
Supp. 279; 313 F. Supp. 61; and 313 F. Supp. 90. The opinion 
of the Court of Appeals is reported at 445 F.2d 990.

Statement of the Case

This case arose when a newly elected school board rescinded 
Resolutions 1520, 1524 and 1531 of the previous school board 
in Denver, Colorado; and the newly elected school board 
instituted Resolution 1533 instead. The rescinded Resolutions 
1520, 1524 and 1531 sought to achieve a system of ethnic 
quotas in the pupil compositions of various schools by means of 
redistricting their respective boundaries; whereas the newly 
instituted Resolution 1533 provided for a voluntary pupil 
exchange program between various districts.

The plaintiffs below brought a Civil Rights action against 
the school board in two causes of action which are pertinent 
here:

Cause I: The rescission of Resolutions 1520, 1524, and 
1531 constituted a violation of the Constitution.

Cause II: Count 1: both old and new defendant school 
boards were guilty of deliberate segregation in a 
“core” area of the City of Denver.

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Count 2: The defendants had purposely maintained 
inferior schools in certain designated predominantly 
minority schools.

Count 3: The defendants’ neighborhood school policy 
was a violation of the Constitution.

The District Court held for the plaintiffs on Cause I and on 
Cause II, Count 2 only. The Court of Appeals affirmed the 
judgment of the District Court, except for Cause II, Count 2 on 
which the Court of Appeals reversed the judgment of the 
District Court.

ARGUMENT 

POINT I

A Federal Court Has No Power to Require a School 
Board to Adopt a Plan to Achieve Ethnic Quotas of 
Pupils in Neighborhood Schools.

The stigma of racial segregation, caused by a school board’s 
refusal to allow a single person of a given ethnic or racial 
background to attend a public school, is intolerable in America 
under the Fourteenth Amendment. Brown v. Board o f Educa­
tion, 347 U.S. 483 (1954). Such segregation prevents, for 
example, a Black person from ever attending a certain school no 
matter what ability the Black person may possess, no matter 
where he lives, no matter how hard he tries. It is simply 
intolerable in a society such as ours under the Fourteenth 
Amendment. An entirely different question is presented where 
a school board merely continues a long-standing and traditional 
neutral policy of neighborhood schools in the name of public 
safety, health, welfare and morals; for these objectives of a

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society under ordered liberty axe the primary responsibility of 
the States of which the school board is an agent. The State has 
plenary “police power” with regard to these functions; and 
there is no Federal jurisdiction which can properly operate in 
this area, so long as the State and its agents remain neutral with 

. regard to race, religion, and ethnic origin.

There are many legitimate “police” functions served by the 
neighborhood school. With the increasing problem of groups of 
students “all over the land [who] are already running loose, 
conducting break-ins, sit-ins, lie-ins, and smash-ins” (Black, J. 
dissenting in Tinker v. Des Moines Community School District, 
393 U.S. 503 at 525; 1969), a Federal Court should be 
especially careful not to undermine the primary authority of 
the school board. Moreover, the neighborhood school ensures 
that pupils and teachers know each other better, so that outside 
untoward influences, such as drug-peddlers, are easier to detect, 
isolate and eradicate. Thus, the role of the Federal judiciary 
should be most sensitive to the needs of the legitimate local 
“police” functions and responsibilities of school boards; and 
therefore the courts should limit the scope of appropriate 
judicial function and interference in the workings of the school 
boards accordingly, lest the judiciary unintentionally undermine 
the whole system of public education. Clearly the Federal 
Courts are ill-equipped to cope with the day to day exigencies 
faced by school boards.

In view of the foregoing, it seems imperative that a great 
deal more than a mere preponderance of the “sharp conflict” of 
evidence (445 F.2d 990, 1001) should be required before a 
Federal Court intervene in the internal affairs of a school board. 
See: Milky Way v. Leary, 305 F. Supp. 288, 292 (S.D.N.Y., 
1969), affd 397 U.S. 98 (1970).

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It should be stressed repeatedly that this case emphatically 
is not a case of segregation, but rather is a case involving a 
finding of de facto racial “ imbalance” brought about by 
housing patterns resulting from private choices. The judicial 
finding below of a racial or ethnic “imbalance” necessarily 
implies a finding of a departure from some arbitrarily 
conjectured ethnic quota. Yet this Court itself has warned of 
the tremendous difficulties and chaos which would result 
from the imposition of such quotas in “a population made up 
of so many diverse groups as ours? Hughes v. Superior Court 
o f California, 339 U.S. 460, 464 (1950). And racial quotas 
themselves may exacerbate “community tensions and 
conflicts” particularly among the non-quota minorities 
“through the whole gamut of racial and religious
concentrations”. Ibid.

The instant case does not at all raise a “segregation” issue as 
in Brown v. Board o f Education, supra, but merely poses the 
question of the appropriateness of a Federal remedy of ethnic 
quotas to change ethnic pupil ratios brought about by private 
housing patterns in a neighborhood school system.

The interference of the District Court below in the affairs of 
the school board would not be so serious were it not for the 
fact that the forgotten child in all of this is the poor black, 
Hispanic, etc. or white pupil in the predominantly white school 
who is “being conscripted only on the basis of income” and who 
may not “escape”, as may his more affluent neighbor, either to 
the suburbs or to a private school. Nathan Glazer, “Is Busing 
Necessary?”, Commentary, Vol. 53 Number 3, March 1972, p. 
39 at 45-46 (published by the American Jewish Committee, one 
of the Amici jointly with the Anti-Defamation League in this 
case). Especially is this state of affairs compounded by the fact

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that the District Court put heavy reliance upon the relatively 
low Achievement Test results of students in “designated 
schools” (445 F.2d 990 at 1003). Just the other day, a 
California District Court held that IQ tests were unconstitu­
tionally used by a school district because they resulted in a 
disproportionately large number of Black children being sent to 
mentally retarded classes. Larry P. v. Riles, 41 LW 2033 (D.N. 
Cal, June 21, 1972). Can constitutional rights depend upon the 
latest fashions in educational testing?

Many years ago, just after the Brown, supra, decision, the 
late Professor Edmond Cahn cautioned against using “expert” 
sociological testimony for any purpose other than to support 
legislative action or merely to reinforce common knowledge:

“It is one thing to use the current scientific findings, 
however ephemeral they may be, in order to ascertain 
whether the legislature has acted reasonably in adopting 
some scheme of social or economic regulation; deference 
here is shown not so much to the findings as to the 
legislature. It would be quite another thing to have our 
fundamental rights rise, fall, or change along with the 
latest fashions of psychological literature. Today the social 
psychologists — at least the leaders of the discipline — are 
liberal and egalitarian in basic approach. Suppose, a 
generation hence, some of their successors were to revert 
to the ethnic mysticism of the very recent past; ... What 
then would be the state of our constitutional rights?” 
“Jurisprudence”, 1954 Annual Survey o f  American Law, 
809 at 826.

Implicit in the notion of racial quotas, to change racial 
mixes brought about by private housing patterns, is the idea 
that a certain mix of races in certain proportions is constitu­
tionally required in order to enable the members of certain

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minority groups to learn better in public schools. However, the 
interpretation of the statistics used to validate this notion fails 
to consider that there are reasons unrelated to ethnic balance 
which account for the fact that a significant proportion of 
Black students who attend predominantly White neighborhood 
schools seem to learn better. For these Black students tend to 
come from middle-class Black homes, and it may well be the 
home environment which accounts for their learning better in 
their neighborhood school. It is a well-established fact that 
“socioeconomic factors bear a strong relation to academic 
achievement” and that “schools as they have been generally run 
in this country do not make much difference in the educational 
achievement of students, that what is more important is the 
home and community environment of children.” Equality o f 
Educational Opportunity (“Coleman Report”), 1966, U.S. 
Office of Education, OE 38000, at p. 21; N.Y. Times, March 
24, 1972, p. 54, col. 1. Thus, purely on a socioeconomic basis, 
i.e. the type of homes that Black students in neighborhood 
White schools come from, it would be expected that Black 
students in White neighborhood schools should achieve better 
results than the poor Black students in Black neighborhood 
schools, for reasons which are independent of the racial 
composition of the student body in the respective schools but 
which are dependent upon the type of homes the Black 
students come from. Thus, it is neither invidious discrimination 
nor the racial ratios in neighborhood schools which necessarily 
accounts for the differences in achievement levels of Black 
students in Black vs. White neighborhood schools. Moreover, 
the expectations of experts regarding the educational benefits 
of ethnic quotas in public schools have not been realized in 
practice. N.Y. Times, ibid.

Thus, this case thrusts upon us the spectre of legally

8



mandated social experimentation. Surely the Constitution does 
not require the State to perform such experiments. Particularly 
is this experimentation, under the coercion of a Federal Court 
order, totally unnecessary in a case where, as here, the school 
board has instituted a voluntary transfer program, which can 
more easily be policed by the school authorities, so that each 
parent may decide for himself whether he wishes his own child 
to take part in the experiment for the sake of a hoped-for better 
education. There simply is no room in a case like this for any 
coercion by the Court below in its judicial legislation of 
school boundaries to achieve what it believes to be a proper 
system of “ethnic group quotas”. Glazer, supra, 53 
Commentary at 52. For the promise of Brown, supra, already 
“is being realized” without such ethnic quotas. Ibid.

Ethnic quotas on Grand Juries have long ago been con­
demned as unconstitutional by this Court. Cassel v. Texas, 339 
U.S. 282 (1950). Likewise, this Court has held the States to be 
free to ban the picketing of a business establishment for the 
purpose of pressuring the hiring of employees on a racial quota 
basis. Hughes v. Superior Court o f  California, 339 U.S. 460 
(1950). Pupil assignments on a racial basis in public schools 
likewise should be avoided by school boards, and certainly not 
coerced by the federal judiciary.

While the judiciary has the duty and power to implement 
the negative command of the Equal Protection clause of section 
1 of the Fourteenth Amendment, only the Congress is given the 
authority to implement the affirmative power of section 5 of 
the Fourteenth Amendment. If such a departure from tradition­
al practice, as racial pupil quotas, is to become a part of our 
national scheme, then at the very least it should be the Congress 
which decree such a policy after appropriate hearings in depth.

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Yet the Congress has explicitly legislated against such a policy 
in enacting the Civil Rights Act, 42 USC 2000c — 6 (a)(2). 
Thus, Congress has re-affirmed a policy against racial or ethnic 
quotas as set forth by this Court in Hughes, supra. There is 
simply no reason in law or policy why this Court should not 
now likewise continue our national commitment of equality for 
all, with quotas for none.

CONCLUSION

The judgment of the Court of Appeals should be affirmed, 
except insofar as the Court of Appeals affirmed the judgment of 
the District Court on the First Cause of Action and in this 
respect the judgment of the Court of Appeals should be 
reversed; and the cause should be remanded to the District 
Court with directions to dismiss the complaint.

Respectfully submitted,

David I. Caplan 
250 West 94th Street 
New York, N.Y. 10025
Attorney for

Jewish Rights Council, Inc.

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