Letter to Ralph Neas from Sherrilyn Ifill RE Gingles Brief

    I n  THE

i&npvmt (Erntrt of %  lotted States
Octobee T eem , 1972 

No. 72-282

T h e  B oaed oe E ducation- oe 
T h e  C ity  oe B essemer, A labama, et al.,

Petitioners,
v.

D oris E laine B rown , et al.

PETITION EOE WRIT OP CERTIORARI TO THE UNITED STATES 
COURT OE APPEALS FOR THE FIETH CIRCUIT

BRIEF IN OPPOSITION TO CERTIORARI

Oscar W . A dams, J r .
U . W. Clemon

1630 Fourth Avenue North 
Birmingham, Alabama 35203

D avid H ood

2111 Fifth Avenue North 
Bessemer, Alabama 35020

J ack Greenberg 
J ames M. N abrit, III 
N orman J .  C h a ch k in  

10 Columbus Circle 
New York, New York 10019

Attorneys for Respondents



TABLE OF CONTENTS

PAGE

Opinions Below ................................... ......... ................ 1

Jurisdiction ................................................. .................  2

Questions Presented--------- ----—..................... .......... . 2

Statement ........ ...... ........... ......................... .................. 2

Reasons Why the Writ Should be Denied __________  3

Conclusion ............................. ............. ......................... .............. . 4



I n th e

( ta r t  nf f c  Ittttpft States
October T erm , 1972 

No. 72-282

T h e  B oard of E ducation of 
T h e  C ity  of B essemer, A labama, et al.,

Petitioners,
v.

D oris E laine B row n , et al.

petitio n  for w rit of certiorari to th e  united  states

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION TO CERTIORARI

Opinions Below

The opinion of the United States Court of Appeals for 
the Fifth Circuit is not yet reported and appears at pages 
A-l through A-5 of the Petition; the opinion of the United 
States District Court for the Northern District of Alabama 
is also unreported and appears at pages A-6 through A-ll 
of the petition.

The opinion of the Court of Appeals in United States v. 
Greenwood Municipal Separate School District, reprinted 
at pages A-13 through A-17 of the Petition, is now reported 
at 460 F.2d 1205.



2

Jurisdiction

The jurisdiction of this Court is invoked pursuant to 28 
U.S.C. § 1254(1).

Questions Presented

1. Whether a school district must furnish transportation 
to students who are reassigned beyond walking distance as 
part of a desegregation plan to remedy constitutional viola­
tions, rather than being allowed to bring about the failure of 
the desegregation plan by refusing such transportation and 
permitting students unable to furnish their own transporta­
tion to attend segregated schools.

2. Whether Section 803 of the Education Amendments 
of 1972, P.L. 92-318, applies to district court orders de­
signed to remedy unlawful segregation and not to achieve 
racial balance.

Statement

Subsequent to the entry of judgment by the Court of 
Appeals, the district court held a hearing on August 21,1972 
and entered an order deleting from its prior decree the pro­
vision permitting students unable to obtain transportation 
to their assigned high school to transfer to the other high 
school. The application for recall and stay of the mandate 
of the United States Court of Appeals for the Fifth Circuit 
filed July 18, 1972 was denied by the Court of Appeals on 
August 17, 1972; no such stay application was ever ad­
dressed to a Justice of this Court by petitioners.



3

Reasons Why the Writ Should be Denied

Pursuant to the order of the district court of August 30, 
1971 (which did not require the school district to furnish 
transportation but allowed pupils unable to reach the high 
school to which they were assigned under the Court-ap­
proved desegregation plan without free transportation to 
remain at the other high school), 111 black students and 26 
white students in the Bessemer school system returned to 
the schools they had previously attended. Accordingly, dur­
ing the 1971-72 school year, the high schools remained sub­
stantially segregated.

These facts make it clear that the furnishing of pupil 
transportation by the school system is an essential prerequi­
site to an effective plan of desegregation as required by 
Green v. County School Board of New Kent County, 391 
U.S. 430 (1968) and Swann v. Charlotte-Mecklenburg Board 
of Educ., 402 U.S. 1 (1971). The judgment below is clearly 
correct and, of course, the identical result was reached by 
the United States Court of Appeals for the Fourth Circuit 
in Brewer v. School Board of City of Norfolk, 456 F.2d 943, 
cert, denied, 406 U.S. 905 (1972). Accord, United States v. 
Greenwood Municipal Separate School Dist., supra. There 
is absolutely no ground whatsoever warranting review of 
the decision below.*

As to Section 803, we respectfully refer the Court to the 
construction of the statute by Mr. Justice Powell in Drum­
mond v. Acree, No. A-250 (September 1,1972). That correct 
interpretation of the statute, which is reflected in the ac­
tions of other Justices during the Court’s summer recess

* Petitioners’ attempt to distinguish this ease from Swann must 
fail; the Charlotte school system was required by the district court’s 
desegregation order to enlarge its transportation system by adding 
far more new vehicles and personnel than will be required in Bes­
semer.



4

denying stays in desegregation cases, is dispositive of the 
issue here. Furthermore, since no application to a Justice 
of this Court for such a stay was made following the denial 
of a stay by the Court of Appeals, and the plan has now 
been effectuated with free transportation, the issue will be 
mooted before this Court could render a decision on the 
merits even were it to grant the writ.

CONCLUSION

For the foregoing reasons, respondents respectfully 
pray that the Petition be denied.

Respectfully submitted,

Oscar W . A dams, J r.
U. W . Ceemon

1630 Fourth Avenue North 
Birmingham, Alabama 35203

D avid H ood

2111 Fifth Avenue North 
Bessemer, Alabama 35020

J ack Greenberg 
J ames M. N abrit, III 
N orman J .  C h a ch k in  

10 Columbus Circle 
New York, New York 10019

Attorneys for Respondents



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