Monroe v. City of Jackson, TN Board of Commissioners Brief in Opposition to Petition for Writ of Certiorari

    No. 74°

In the

Supreme Court of the United States

October Term, 1967

Brenda K. Monroe, et al., 
Petitioners,

—  vs. —

Board of Commissioners of the City o f  
Jackson, Tennessee, et al.,

Respondents.

BRIEF IN OPPOSITION TO PETITION FOR WRIT 
OF CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOR THE SIXTH CIRCUIT

Russell Rice, Sr.
City Attorney
215 East Main Street
Jackson, Tennessee 38301

M o C O W A T - M E R C E R  P R E S S ,  J A C K S O N .  T E N N



I N D E X
PAGE

CITATIONS ...........................................................  ii

JURISDICTION ...................................................  1

COUNTER-STATEMENT OF
QUESTION PRESENTED............ ...................... 2

STATEMENT .......................................................  3

ARGUMENT .........................................................  5

CONCLUSION ......................................................   12

APPENDIX:
Opinion of SIXTH CIRCUIT COURT OF 

APPEALS IN CASE OF TINA DEAL, 
etc., v. Cincinnati Board of Education 
369F(2)55, certiorari denied by Supreme 
Court October Term 1967 ............................  lb



11

CITATIONS

PAGE

Avery v. Wichita Falls Independent School Dis­
trict, 241 F.2d 230, 233 (CCA 5th, 1957)...........  5

Bell v. School City of Gary, Ind., 324 F.2d 209 
(CCA 7th, 1963), cert. den. 377 U.S. 924, 84 S.
Ct. 1223,12 L. Ed. 2d 1216..................................  9

Board of Education v. Dowell, F.2d, cert. den.
35 U.S. L. Week 3418 (CCA 10th, 1967)...........  9

Borders v. Rippy, 247 F.2d 268... 5
Boson y. Rippy, 285 F.2d 43, 45-46 (CCA 5th,

1960) .................................................. ................. ’ 5
Bowman v. County School Board of Charles 

City-County Virginia (not yet reported, June 
12, 1967) ............................................................... 7

Bradley v. School Board of Richmond, 345 F.2d 
310 (remanded on other grounds, 382 U.S. 103) 6

Brown v. Board of Education, 347 U.S. 483; 349 
U.S. 294, 300-301 .................................................  2, 9

Clark v. Board of Education of Little Rock 
School Dept., 369 F.2d 261 (rehearing denied,
374 F.2d 569) ......................................................... 7

Cohen v. Public Housing Administrator, 257 
F.2d 73 ................................................................. 5

Deal v. Cincinnati Board of Education, 369 F.2d 
55 (6th) cert, denied Oct. 1967..........................  1, 12

Downs v. Board of Education of Kansas City,
336 F.2d 988 (CCA 10th, 1964)..................... . 9

Evers v. Jackson Municipal Separate School 
District, 328 F.2d 408.................   5

Goss v. Board of Education, 373 U.S. 683........... 4
Green v. County School Board of New Kent 

County, Virginia (not yet reported, June 12,
1967) ................................................................... . 7



iii

PAGE

Springfield School Committee v. Barksdale, 348 
F.2d 261 (CCA 1,1965)......................................  9

Stell v. Savannah-Chatham County Board of 
Education, 333 F.2d 5 5 ............................   5

United States v. Jefferson County Board of 
Education, 372 F.2d 836, 852 (CCA 5th, 1966) 5

TEXTS

Paul A. Freund: “ Civil Rights and the Limits of 
Law,” 14 Buffalo L. Rev. 199, 203, 204, 205 
(1964) ..................................................................  10

OFFICIAL REPORTS

Report to U.S. Office of Education, 1967...........  4



1

JURISDICTION

This proceeding is premature for two reasons:
(1) The cause has been remanded to the District Court 
for further proceedings concerning faculty and
(2) the record in this cause is devoid of the present 
conditions which exist in the Jackson City School Sys­
tem from the application of the District Court decision 
of July 30, 1965.

This petition should be denied as it is identical in 
purpose and background to a similar petition filed with 
this Court and denied in the case of Tina Deal, etc. v. 
The Cincinnati Board of Education, 369 F. (2d) 55, 
(also from the 6th Cir.) See Appendix, Petition for 
Certiorari filed O.T. 1967 No. 131. Cert, denied. O.T. 
1967.



2

COUNTER-STATEMENT OF QUESTION 
PRESENTED

Do the Brown decisions (Brown v. Board of Edu­
cation, 347 U.S. 483 (2d Opinion) 349 U.S. 294) 
require compulsory integration so as to create a racial 
balance in schools?

If so, (1 ) is such requirement applicable to all 
States or (2) only to those States which had segrega­
tion statutes (the South) prior to the Brown decisions?



3

STATEMENT

This case is the culmination of efforts by the real 
plaintiff in these desegregation cases to have this Court 
interpret (a) the Brown decisions as requiring compul­
sory integration in the South and (b) something far 
less in other areas of the Country.

(The Jackson School System began desegregation 
before the filing of any suit to require same, admittedly 
on a very limited basis and perhaps not as rapidly as 
some would like, but a beginning was made, against 
overwhelming public opinion, to bring the system into 
compliance with Brown1

In 1963 the City was directed to file a plan of dese­
gregation which it did, including a districting plan for 
elementary schools, which plan, after modification as 
to time schedule, was approved by the District Court. 
(■Monroe v. City of Jackson, 221 F.Supp. 968 TWD 
Tenn. 1963]).

Plaintiffs filed a further attack on the elementary 
zones approved by the Court in September 1964. At 
approximately the same time the School Board filed 
proposed Junior High School Zones to which plaintiffs 
filed exceptions. The two matters were consolidated for 
hearing by the District Court. Prior to the beginning 
of the hearings the school board suggested some 
changes to the elementary zoning map which the Court 
had once approved. The Court accepted these changes 
and at the conclusion of the hearing made certain 
minor additional changes covering an area no larger 
than two or three City blocks. The Court also liberalized 
the transfer provisions of the School Board and ordered 
certain steps in regard to faculty. This District Court 
decision was entered July 30, 1965, and is the decision 
complained of in the Sixth Circuit Court of Appeals. 
The Sjxth Circuit affirmed all but the faculty provi­
sions. [There is absolutely nothing in the record to 
reflect the effect of these changes on the student makeup 
of Jackson City Schools since July 30, 19657]



e City of Jackson School System has an abso­
lutely free transfer plan under the District Court order 
approved by the Sixth Circuit. See also Goss v. Board 
of Education, 373 U.S. 683. Every negro student in 
the City of Jackson is able to transfer to any school in 
the system for which otherwise eligible and every 
white student has the same identical right. Capacity 
of the school is the only limitation on transfers into a 
school. Every student, white or negro, is required each 
year to register in the school located in the district in 
which he lives in accordance with the District Court 
order.J

(Petitioners refer to reports on file with U. S. Office 
of Education (not in the record) to reflect 1966 figures 
on mixing in Jackson schools. The exact figures for the 
year 1966 were 475 negro students attending mixed 
classes out of a total negro enrollment of 3205. 19671 
reports reflect that approximately one out of every five 
negro children in the system attend integrated classes. 
(Exact figures 615 out of 3228.) J

As stated above, the right to do so is extended to all. 
White children have the same right. State imposed 
segregation based on race does not exist in Jack- 
son, Tennessee, schools. The order of the District Court 
as approved by the Sixth Circuit makes this abundantly 
clear. Plaintiffs are not complaining about the appli­
cation nor the actual result attained from these orders 
and the record itself does not reflect such. (They com­
plain solely on the grounds that the DistrictCourt and 
the Sixth Circuit Court of Appeals do not order affir­
mative compulsory integration of the Jackson schools 
as opposed to the clear and concise language in both 
Brown cases ordering an end to compulsory segrega­
tion based on raceT]

4

1 Report to U. S. Office of Education 1967.

,  475

2 ^ T o
T c T $



5

ARGUMENT

The sole point presented by this petition therefore is 
whether or not the Brown decisions require compulsory 
integration in schools and as a refinement of the 
question:

a. Is the requirement for compulsory integration 
applicable nationwide?

b. Is the requirement for compulsory integration 
applicable only to those states having statutory segre­
gation prior to the Brown decisions (the South) ?

The Sixth Circuit Court of Appeals in this case, as 
well as in Deal, answers these questions with a flat 
“ No.”

Every other Court of Appeals which has considered 
this question has also ruled flatly that compulsory inte­
gration is not required, including the Court of Appeals 
for the Fifth Circuit even though counsel is aware of 
the Jefferson Countv case. For the Fifth Circuit to 
arrive at the Jefferson County decision it had to over­
rule nearly fifty of its own prior decisions on this ques­
tion including Avery v. Wichita Falls Bid. School Dist., 
241 F.2d 230; Borders v. Rippy, 247 F.2d 268; Cohen 
v. Public Housing Adm., 257 F.2d 73; Boson v. Rippy, 
285 F.2d 43; Evers v. Jackson Municipal Separate 
School Dist., 328 F.2d 408; Stell v. Savannah-Chatham 
County Board of Education, 333 F.2d 55.

jA careful reading of the decision in Jefferson County 
indicates however that the decision was dictated by the 
massive legal resistance to Brown in the Fifth Circuit 
Area and not by any real effort on the part of the Fifth 
Circuit to torture the plain wording of Brown to mean 
compulsory integration. Whatever may be the merit of 
judicial impatience with the citizenry, as in Jefferson 
County, no attempt at all is made to lay the decision at 
the door of the Brown cases. The Fifth Circuit has 
simply come up with its own version of what in its 
opinion the Brown cases should have been. No other 
Circuit agrees?]



6

[There has been no defiance whatever on the part of 
the City of Jackson and no such situation exists in this 
case as the Fifth Circuit seems to feel exists in Jeffer­
son County.1

Fourth Circuit
In Bradley v. School Board of Richmond, 345 F.2d 

310, vacated and remanded on other grounds, 882 U.S. 
103 (1965), a majority of the Fourth Circuit sitting 
en banc said:

flTt has been held again and again, however, 
that the Fourteenth Amendment prohibition is not 
against segregation as such. The proscription is 
against discrimination.. . .  There is nothing in the 
Constitution which prevents his voluntary associa­
tion with others of his race or which would strike 
down any state law which permits such asso­
ciation. The present suggestion that a Negro’s 
right to be free from discrimination requires that 
the state deprive him of his volition is incon­
gruous. . . . There is no hint (in Brown) of a sug­
gestion of a constitutional requirement that a 
state must forbid voluntary associations or limit 
an individual’s freedom of choice except to the 
extent that such individual’s freedom of choice 
may be affected by the equal rights of others. A 
state or a school district offends no constitutional 
requirement when it grants to all students uni­
formly an unrestricted freedom of choice as to 
schools attended, so that each pupil, in effect, 
assigns himself to the school he wishes to attend.” ]}

“ Imposed discrimination is eliminated as read­
ily by a plan under which each pupil initially 
assigns himself as he pleases as by a plan under 
which he is involuntarily assigned on a geographic 
basis. . . . The other means (in addition to geo­
graphic zoning) of abolishing the dual zone sys­
tem was to do away with zones completely. From 
the point of view of the ultimate objective of 
eliminating the illegal dual zoning, dezoning seems 
the obvious equivalent of rezoning and, adminis­



7

tratively, far easier of accomplishment when the 
School Board intends ultimate operation to be 
founded upon the free choice of the pupils.”

In June, 1967, the Fourth Circuit considered similar 
problems in Bowman v. County School Board of 
Charles City County, Virginia (June 12,1967— not yet 
reported) and in Green v. County School Board of New 
Kent County, Virginia (decided June 12, 1967— not 
yet reported) said:

“ They contend that compulsive assignment to 
achieve a greater intermixture of the races, not­
withstanding their individual choices, is their due. 
We cannot accept that contention . . .

“ If each pupil, each year, attends the school of 
his choice, the constitution does not require that 
he be deprived of his choice unless its exercise is 
not free. This we have held and we adhere to our 
holdings.”

Eighth Circuit
The Eighth Circuit dealt with the question in Clark 

v. Board of Education of Little Rock School District, 
369 F.2d 661 (8th Circ. 1$66), rehearing denied 374 
F.2d 569 (8th Cir. 1967).(The Court rejected the con­
tention that the constitutionality of a plan depends 
upon whether it “works” in achieving numerical 
resultsTJ saying:

“ Thus, they (plaintiffs) argue that the ‘free­
dom of choice’ plan is not succeeding in the 
integration of the schools.”

jpThough the board has a positive duty to ini­
tiate a plan of desegregation, the constitutionality 
of that plan does not necessarily depend upon 
favorable statistics indicating positive integra­
tion of the races . . . The system is not subject to 
constitutional objections simply because large 
segments of whites and Negroes choose to con­
tinue attending their familiar schools."]. . .”



8

[ j in  short, the constitution does not require a 
school system to force a mixing of the races in 
schools according to some predetermined mathe­
matical formula. Therefore, the mere presence of 
statistics indicating absence of total integration 
does not render an otherwise proper plan 
unconstitutional. ”J

The Eighth Circuit concluded:
“ Notwithstanding the H. E. W. Guidelines and 

the recent opinion of the Fifth Circuit (in Jeffer­
son County), when a student is given a well pub­
licized annual right to enter the school of his 
choice, coupled with periodic mandatory choices 
as set forth in the Board’s amended plan, we can 
find on the face of it no unconstitutional state 
action. We find no state act that results in dis­
crimination against Negroes (874 F.2d at 
5 7 1 ) . . . . ”

“ Therefore, if  in fact all the students wishing 
to transfer were fully accommodated, the con­
stitution would unquestionably be satisfied . . .
(374 F.2d at 5 7 2 )____”

( j l f  all of the students are, in fact, given a free 
and unhindered choice of schools, which is hon­
ored by the school board, it cannot be said that 
the state is segregating the races, operating a 
school with dual attendance areas or considering 
race in the assignment of students to the class­
rooms. We find no unlawful discrimination jin the 
giving of students a free choice of schools] (369 
F.2d at 666).”

E jhey are afforded an annual right to transfer 
schools if they so desire. The failure to exercise 
this right does not result in the student being 
assigned to a school on the basis of raceTjRather, 
the student is assigned to the school he is presently 
attending, by reason of a choice originally exer­
cised solely by the student (369 F.2d at 668) . . . ”



9

“ On its face, we believe that the plan, as 
approved by us, is proper and constitutional, and 
appellants have made no showing that this non­
mandatory freedom _ of choice plan to laterally 
transfer schools had infringed their constitutional 
rights (374 F.2d at 571).”

Tenth Circuit
Although at first glance it might appear that the 

Tenth Circuit is at variance with the above cases in 
Board of Education of the Oklahoma City Public 
Schools v. Dowell F.2d (10th Cir., January 23, 1967), 
cert, denied, 35 U.S. L. Week 3418 (U.S. May 29, 
1967), this decision was bottomed upon an expressed 
finding of bad faith by the school board involved. On 
the other hand, the Tenth Circuit reaffirmed its deci­
sion in Downs v. Board of Education of K ansas City, 
336 F.2(T988 “(1964) cert, denied 380 U.S. 914, m 
which the Court had said:

“Appellants also contend that even though the 
Board may not be pursuing a policy of intentional 
segregation, there is still segregation in fact in 
the school system and under the principles of 
Brown v. Board of Education, supra, the Board 
has a positive and affirmative duty to eliminate 
segregation in fact as well as segregation by inten­
tion. While there seems to be authority to support 
that contention, the better rule is that although the 
Fourteenth Amendment prohibits segregation, it 
does not command integration of the races in the 
public schools and Negro children have no con­
stitutional right to have white children attend 
schools with them.”

First Circuit
Springfield School Committee v. Barksdale, 348 F.2d 

261 (1965).

Seventh Circuit
Bell v. School, etc., City of Gary, 324 F.2d 209 

(1963) cert, denied, 377 U.S. 924 (1964).



10

There is tremendous pressure to push the 14th 
Amendment into areas that properly should be the 
subject of legislation and administrative action. This 
problem was confronted by Professor Paul A. Freund 
of the Harvard Law School in his article, “ Civil Rights 
and the Limits of Law,” 14 Buffalo L. Rev. 199 (1964). 
Professor Freund made reference to the rejection of 
efforts to push the Fourteenth Amendment further in 
the involvement in public accommodations, and wrote 
in part:

^jThose who argue that the Fourteenth Amend­
ment, in and of itself, applies or should apply to 
the places of public accommodation do so partly 
because they see in the Fourteenth Amendment 
the most appropriate source of moral strength. 
But I believe they overlook some institutional con­
siderations of importance^ If we were to use the 
Fourteenth Amendment directly without the inter­
vention of an act of Congress, as some members 
of the Court wished to do last June,|there would 
have been all kinds of unresolved questions of the 
range of application of the Fourteenth Amend­
ment ; not merely in racial discrimination, for the 
Fourteenth Amendment is far broader than that, 
but in other forms of equal protection, nepotism 
in business, for example, in the concept of due 
process of law applied, for instance, to the con­
duct of stockholder meetings, or labor union 
meetings. All of these would potentially be Federal 
Constitutional questions to be resolved by authori­
tative decisions overrulable by constitutional 
amendment, but surely lacking in that sense of 
tentativeness, of experimentation, of progressi- 
vism, of flexibility, that are the hallmarks of 
statutory or common law development as dis­
tinguished from constitutional adjudicatiomJVnd 
so I for one welcome the fact that the Court did 
not see fit last June to decide the cases on sit-ins 
in places of public accommodation on grounds of 
the Fourteenth Amendment per se. The choice of 
institutional means pointed in the direction of the



11

more flexible and ad hoc approach. 14 Buffalo 
L. Rev., 203-204.”

He extended this anaiiysis to the problem of so- 
called “ de facto” segregation and urged the courts not 
to get involved in the creation of affirmative programs 
to balance races through constitutional law:

“ Still a legislature or a school board ought to be 
able to take account of the facts of segregation in 
the interest of promoting long-run de facto deseg­
regation, which is surely a legitimate aim. This is 
the position taken by both the New York Court of 
Appeals and the New Jersey Supreme Court, there 
being no issue in the case of requiring integration 
constitutionally but only of permitting the race 
factor to be taken into account by a school board 
disposed to do so, without violating the abstract 
principle of color-blindness. This is a question of 
educational and social policy, a choice of means to 
a legitimate end, the encouragement of desegrega­
tion, as segregation itself would be an illegitimate 
end. There the matter rests, and in my judgment, 
is likely to rest so far as constitutional law is con­
cerned. 14 Buffalo L. Rev. 199, 205”  (Emphasis 
added)



12

CONCLUSION

In conclusion, it appears that the petition is prema­
ture in that the record reflects nothing of the applica­
tion, or effect of such application, of the District Court 
order. Further, the matter is still pending in the 
District Court.

Furthermore, this petition presents no new question 
not already presented to the Court, in at least one other 
case, Deal v. Cincinnati Board of Education, and the 
petition was denied.

For these reasons it is respectfully submitted the 
petition for the Writ of Certiorari should be denied.

Respectfully submitted,

R u s s e l l  R ic e , S r .
Attorney for Respondents
215 East Main Street
Jackson, Tennessee 38301

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing reply brief has 
been mailed by regular United States Mail, postage 
prepaid, to adversary counsel of record.

This 9th day of November, 1967.

R u s s e l l  R ic e , S r . 
Attorney for Respondents



lb

APPENDIX
Tina Deal, etc., et al., vs. Cincinnati Board o f .

Education.
369 F(2)55

Opinion of the United States Court of Appeals 
for the Sixth Circuit, December 6, 1966

Before W e i c k , Chief Judge, O ’ S u l l i v a n  and 
P h i l l i p s , Circuit Judges.

W e i c k , Chief Judge. The suit in the District Court 
was a class action against the Board of Education of 
the City of Cincinnati, brought by the parents and 
next friends of Negro pupils enrolled in the public 
schools of the city, to enjoin the operation of allegedly 
racially segregated public schools, to enjoin the con­
struction of new schools on sites which would increase 
and harden alleged existing patterns of racial segre­
gation, and for declaratory and other relief.

The Board denied that it created, operated or main­
tained racially segregated schools, and alleged that the 
only genuine issue in the case was whether it violated 
the constitutional rights of the plaintiffs by refusing 
to adopt and enforce an affirmative policy of balancing 
the races in the Cincinnati Public School System.1

1 On March 9, 1964, after the commencement of the present action, 
the Board of Education adopted the following policy statement to 
guide its officers and employees:

“ (1) As a matter of policy, the Board would like to avoid 
predominantly Negro schools to the extent that the Board has 
any control over the causes which create such predominance. But 
in exercising any control in this area the Board will not deviate 
from the long established neighborhood school plan or the re­
quirement of Section 3313.48 R.C. that schools be located where 
they will be most convenient for the largest number of students.

“The Board is willing to make race of students one of the 
elements to be considered in the establishment of school attend­
ance zone lines so long as this can be done consistently with the 
neighborhood school policy, the requirements of Section 3313.48, 
and the numerous factors which have always been considered in 
establishing such zone lines as— safety of children, travel distance 
and capacity of school.

“ (2) The Board does not accept the concept of de facto segre­
gation and will not agree to any proposal to bus students, to 
transfer classes or any other program to attempt to balance races 
as such.”



2b

The evidence in the case consisted of a number of 
lengthy stipulations, exhibits, and oral testimony. At 
the close of plaintiffs’ evidence defendants moved for 
judgment, which motion was taken under advisement 
by the Court. Defendants presented their entire case 
except for expert testimony. The Court then granted 
defendant’s motion for judgment without considering 
the evidence offered by the defendants. He handed 
down an opinion which he adopted as findings of fact 
and conclusions of law under Rules 41(b) and 52(a), 
Fed.R.Civ.Proc.2 In essence, the Court held that there 
was no constitutional duty incumbent upon the Board 
to balance the races in the public school system, and 
that there was a failure of proof on the part of the 
plaintiffs to establish a policy of segregation or 
gerrymandering on the part of the Board.

W a s  T h e r e  a  C o n s t i t u t i o n a l  D u t y  o n  t h e  
P a r t  o f  t h e  B o a r d  t o  B a l a n c e  t h e  R a c e s  i n  
t h e  C i n c i n n a t i  P u b l ic  S c h o o l s  W h e r e  t h e  
I m b a l a n c e  W a s  N o t  C a u s e d  b y  A n y  A c t  o f  
D i s c r i m i n a t i o n  o n  it s  P a r t ?

At the outset it should be pointed out that the State 
of Ohio abolished segregation in the public schools on 
February 22, 1887, which was more than 67 years 
before the United States Supreme Court barred it on 
constitutional grounds in the momentous decision of 
Brown v. Board of Education, 347 U.S. 483 (1954).3

The so-called neighborhood plan for the location of 
public schools is authorized by statute under which 
Ohio School Boards are required to—

“ . . . provide for the free education of the youth 
of school age within the district under its juris­
diction, at such places as will be convenient for

2 Deal v. Cincinnati Board of Education, 244 F.Supp. 572 (S.D. 
Ohio 1965).

3 84 Ohio Laws 34, enacted Feb. 22, 1887. The Supreme Court 
of Ohio upheld and enforced the law in the following year, Board of 
Education v. State, 45 Ohio St. 555, 16 N.E. 373 (1888).

The Cincinnati school system discontinued compulsory segregation 
promptly after the enactment of this Ohio Statute in 1887. Since that 
time Negro students have had the opportunity to attend the neighbor­
hood schools in Cincinnati on the same basis as white students living 
in the same localities.



8b

the attendance of the largest number thereof.” 
Ohio Rev. Code §3313.48.

We think the legislature had the power to enact this 
statute. The Cincinnati Board of Education has com­
plied with it.

Appellants contend that the maintenance of a public 
school system in which racial imbalance exists is a 
violation of their constitutional right to the equal pro­
tection of the law. They assert that because the Negro 
student population is not spread uniformly throughout 
the Cincinnati school system, without a showing of 
deliberate discrimination or even racial classification, 
there is a duty of constitutional dimensions imposed on 
the school officials to eliminate the imbalance. Appel­
lants claim that it is harmful to Negro children to 
attend a racially imbalanced school and this fact alone 
deprives them of equal educational opportunity.

The essence of the Brown decision was that the 
Fourteenth Amendment does not allow the state to 
classify its citizens differently solely because of their 
race. While the detrimental impact of compulsory 
segregation on the children of the minority race was 
referred to by the Court, it was not indispensable to the 
decision. Rather, the Court held that segregation of the 
races was an arbitrary exercise of governmental power 
inconsistent with the requirements of the Constitution.

A finding of educational or other harm is not essen­
tial to strike down enforced segregation. This is shown 
by many subsequent cases nullifying separate facilities 
of all kinds with no evidence of harm.

In summarizing this principle, the Court said that 
classifications based on race violate the Fourteenth 
Amendment because they are obviously invidious and 
irrelevant. Goss v. Board of Education, 363 U.S. 683, 
687 (1963).

Thus it is not necessary that a victim of racial dis­
crimination prove that he was harmed in any specific 
material sense in order to invalidate state-imposed 
racial distinctions. See Johnson v. Virginia, 373 U.S. 
61 (1963) (seating in courtrooms); Watson v. Mem­
phis, 373 U.S. 526 (1963) (municipal parks); Burton



4b

v. Wilmington Parking Authority, 365 U.S. 715 (1961) 
(restaurants in public buildings); Dawson v. Mayor 
and City Council of Baltimore, 220 F.2d 386 (4th Cir. 
1955) aff’d 350 U.S. 877 (1955) (public beaches and 
bathhouses).

In Bolling v. Sharpe, 347 U.S. 497 (1954), which is 
a companion case to Brown, and which involved the 
validity of school segregation in the District of Colum­
bia, the Court held that the Fifth Amendment was 
violated. The Court emphasized that it was the fact of 
discriminatory classification by the government that 
violated the Constitution, and looked no further for 
evidence of educational or psychological injury, 
saying—

“ Classifications based solely upon race must be 
scrutinized with particular care, since they are 
contrary to our traditions and hence constitution­
ally suspect.”  Bolling v. Sharpe, supra, at 499.

The principle thus established in our law is that the 
state may not erect irrelevant barriers to restrict the 
full play of individual choice in any sector of society. 
Since it is freedom of choice that is to be protected, it 
is not necessary that any particular harm be estab­
lished if it is shown that the range of individual options 
has been constricted without the high degree of justifi­
cation which the Constitution requires. It is harm 
enough that a citizen is arbitrarily denied choices 
open to his fellows.

Conversely, a showing of harm alone is not enough 
to invoke the remedial powers of the law. I f the state 
or any of its agencies has not adopted impermissible 
racial criteria in its treatment of individuals, then 
there is no violation of the Constitution. I f factors out­
side the schools operate to deprive some children of 
some of the existing choices, the school board is cer­
tainly not responsible therefor.

Appellants, however, argue that the state must take 
affirmative steps to balance the schools to counteract 
the variety of private pressures that now operate to 
restrict the range of choices presented to each school



5b

child. Such a theory of constitutional duty would 
destroy the well-settled principle that the Fourteenth 
Amendment governs only state action. Under such a 
theory, all action would be state action, either because 
the state itself had moved directly, or because some 
private person had acted and thereby created the sup­
posed duty of the state to counteract any consequences.

The standard to be applied is “ equal educational 
opportunity.”  The Court in Brown cast its decision 
thus because it recognized that it was both unnecessary 
and impossible to require that each child come through 
the complex process of modern education with the same 
end result. This approach grants due respect for the 
unavoidable consequences of variations in individual 
ability, home environment, economic circumstances, 
and occupational aspirations. Equal opportunity 
requires that each child start the race without arbi­
trary official handicaps; it does not require that each 
shall finish in the same time.

Appellants, however, pose the question of whether 
the neighborhood system of pupil placement, fairly 
administered without racial bias, comports with the 
requirements of equal opportunity if  it nevertheless 
results in the creation of schools with predominantly 
or even exclusively Negro pupils. The neighborhood 
system is in wide use throughout the nation and has 
been for many years the basis of school administration. 
This is so because it is acknowledged to have several 
valuable aspects which are an aid to education, such as 
minimization of safety hazards to children in reaching 
school, economy of cost in reducing transportation 
needs, ease of pupil placement and administration 
through the use of neutral easily determined stan­
dards, and better home-school communication. The 
Supreme Court in Brown recognized geographic dis­
tricting as the normal method of pupil placement and 
did not foresee changing it as the result of relief to be 
granted in that case. Brown v. Board of Education, 
347 U.S. 483, 495 note 13, question 4 (a ) ;  Brown v. 
Board of Education, 349 U.S. 294, 300-01 (1955). But



6b

see Blocker v. Board of Education of Manhasset, 226 
F.Supp. 208, 221-222 (E.D.N.Y. 1964).

Because of factors in the private housing market, 
disparities in job opportunities, and other outside 
influences, (as well as positive free choice by some 
Negroes), the imposition of the neighborhood concept 
on existing residential patterns in Cincinnati creates 
some schools which are predominantly or wholly of one 
race or another. Appellants insist that this situation, 
which they concede is not the case in every school in 
Cincinnati, presents the same separation and hence 
the same constitutional violation condemned in Brown. 
We do not accept this contention. The element of 
inequality in Brown was the unnecessary restriction 
on freedom of choice for the individual, based on the 
fortuitous, uncontrollable, arbitrary factor of his race. 
The evil inherent in such a classification is that it fails 
to recognize the high value which our society places 
on individual worth and personal achievement. Instead, 
a racial characterization treats men in the mass and 
is unrelated to legitimate governmental considerations. 
It fails to recognize each man as a unique member of 
society.

In the present case, the only limit on individual 
choice in education imposed by state action is the use 
of the neighborhood school plan. Can it be said that this 
limitation shares the arbitrary, invidious character­
istics of a racially restrictive system? We think not. In 
this situation, while a particular child may be attend­
ing a school composed exclusively of Negro pupils, he 
and his parents know that he has the choice of attend­
ing a mixed school if they so desire, and they can move 
into the neighborhood district of such a school. This 
situation is far removed from Brown, where the Negro 
was condemned to separation, no matter what he as 
an individual might be or do. Here, if  there are 
obstacles or restrictions imposed on the ability of a 
Negro to take advantage of all the choices offered by 
the school system, they stem from his individual eco­
nomic plight, or result from private, not school, preju­



dice.4 We read Brown as prohibiting only enforced 
segregation.

The School Board, in the operation of the public 
schools, acts in much the same manner as an admin­
istrative agency exercising its accumulated technical 
expertise in formulating policy after balancing all 
legitimate conflicting interests. I f that policy is one 
conceived without bias and administered uniformly to 
all who fall within its jurisdiction, the courts should 
be extremely wTary of imposing their own judgment on 
those who have the technical knowledge and operating 
responsibility for the educational system. Thus, where­
as such a geographical principle might be totally 
unacceptable in the administration of facilities such as 
beaches, parks, restaurants, or golf courses (see de­
segregation cases cited above), the school system pre­
sents problems of an altogether different nature and 
the fair minded judgment of the school officials is 
entitled to full consideration in determining whether 
freedom of choice has been preserved for the children 
within the limits necessary for effective educational 
practice. See Watson v. Memphis, supra, at 531-532.

We hold that there is no constitutional duty on the 
part of the Board to bus Negro or white children out 
of their neighborhoods or to transfer classes for the 
sole purpose of alleviating racial imbalance that it did 
not cause, nor is there a like duty to select new school 
sites solely in furtherance of such a purpose.

The bussing of pupils away from the neighborhoods 
of their residences may create many special problems 
for boards of education. These include the providing of

7b

4 The District Court correctly excluded evidence of alleged dis­
crimination in the public and private housing markets. Such discrimi­
nation is caused, if in fact it does exist, by persons who are not parties 
to this case and the Board has no power to rectify that situation. 
If appellants have any valid claim for infringement of their rights by 
public housing or urban renewal officials, they may obtain appropriate 
relief against them under the Fourteenth Amendment. With respect 
to private actions amounting to discriminatory practice, while there 
is no federal constitutional right available to appellants, they may 
seek relief from the state Civil Rights Commission or in the state 
courts, if relief is denied, under the provisions of the Ohio Fair 
Housing Law. Ohio Rev. Code §4112.01-07.



8b

adequate transportation and proper facilities and per­
sonnel for the supervision, education and well being of 
all pupils. All of this must be accomplished within the 
Board’s budget.

Although boards of education have no constitutional 
obligation to relieve against racial imbalance which 
they did not cause or create, it has been held that it is 
not unconstitutional for them to consider racial factors 
and take steps to relieve racial imbalance if in their 
sound judgment such action is the best method of avoid­
ing educational harm. Balaban v. Rubin, 14 N.Y.2d 
193, 199 N.E.2d 375 (1964), cert, denied 379 U.S. 
881 (1964); Morean v. Board of Education of Mont­
clair, 42 N.J. 237, 200 A.2d 97 (1964).

“ The tenor of these and related decisions . . . 
clearly indicates that the Fourteenth Amendment, 
while prohibiting any form of invidious discrimi­
nation, does not bar cognizance of race in a proper 
effort to eliminate racial imbalance in a school 
system.” Offerman v. Nitkowski, 248 F.Supp. 129, 
131 (W.D.N.Y. 1965)

In dealing with the multitude of local situations that 
must be considered and the even greater number of 
individual students involved, we believe it is the wiser 
course to allow for the flexibility, imagination and 
creativity of local school boards in providing for equal 
opportunity in education for all students. It would be 
a mistake for the courts to read Brown in such a way 
as to impose one particular concept of educational 
administration as the only permissible method of 
insuring equality consistent with sound educational 
practice. We are of the view that there may be 
a variety of permissible means to the goal of equal 
opportunity, and that room for reasonable men of good 
will to solve these complex community problems must 
be preserved. See Freund, Civil Rights and the Limits 
of the Law, 14 Buffalo L.Rev. 199, 205 (1964).

Moreover, our refusal to restrict the school board 
with a mathematically certain formula for the vindi­
cation of individual constitutional rights is not an 
innovation. The right to a trial by an impartial, fairly



9b

selected jury, is well established in our law and it has 
been protected against the same sort of disguised racial 
discrimination that has been attempted in the school 
desegregation cases. Eubanks v. Louisiana, 356 U.S. 
584 (1958); Smith v. Texas, 311 U.S. 128 (1940); 
Norris v. Alabama, 294 U.S. 587 (1935); Ex parte 
Virginia, 100 U.S. 339 (1879); Strauder v. West Vir­
ginia, 100 U.S. 303 (1879).

However, it is equally clear that a defendant in a 
criminal case is not constitutionally entitled to demand 
a proportionate number of his race on the jury which 
is to try him nor on the venire or jury roll from which 
petit jurors are to be chosen. Swain v. Alabama, 380 
U.S. 202, 208 (1965); Akins v. Texas, 325 U.S. 398, 
403 (1945). While the two situations may not be com­
pletely analogous, the potential dangers to a criminal 
defendant forced to face a racially imbalanced jury, 
are at least as great as the intangible, often speculative 
injuries threatening a student in a raciallv imbalanced 
school. The cases recognize that the calculus of equality 
is not limited to the single factor of “balanced schools” ; 
rather, freedom of choice under the Fourteenth 
Amendment is a function of many variables which 
may be manipulated differently to achieve the same 
result in different contexts.

If the separation in imbalanced schools is the result 
of racial discrimination, the officials must take steps 
to remedy the situation. However, the Constitution 
does not prescribe any single particular cure, and the 
mere fact of imbalance alone is not a deprivation of 
equality in the absence of discrimination.

Two other Circuits have considered this question and 
have come to the same conclusion. Downs v. Board of 
Education of Kansas City, 336 F.2d 988 (10th Cir
1964) , cert, denied 380 U.S. 914 (1965); Bell v. School, 
City of Gary, 324 F.2d 209 (7th Cir. 1963), cert, denied 
377 U.S. 924 (1964). See also Springfield School 
Comm. v. Barksdale, 348 F.2d 261, 264 (1st Cir
1965) .

Appellants rely on several decisions which they con­
tend establish the constitutional invalidity of imbal­
anced schools. However, it would seem that these cases



10b

do not go that far. In each of them there was an added 
element which transmuted mere separation into segre­
gation, difference into discrimination. This is in accord 
with our holding that bare statistical imbalance alone 
is not forbidden. There must also be present a quantum 
of official discrimination in order to invoke the protec­
tion of the Fourteenth Amendment.

In Taylor v. Board of Education of City School Dish 
of New Rochelle, 294 F.2d 36 (2nd Cir. 1961), cert, 
denied 368 U.S. 940 (1961), the Court of Appeals char­
acterized as “ crucial”  the District Court’s finding that 
the defendant School Board has deliberately created 
and maintained a segregated school, saying at page 39:

“ In short, race was made the basis for school 
districting, with the purpose and effect of pro­
ducing a substantially segregated school.”

This situation, where affirmative gerrymandering of 
school districts had been accomplished and maintained 
with the motive of separating the races, was found to 
go “ beyond mere imbalance” (emphasis added). This 
latter language clearly indicates that the Court’s 
theory was one of “ imbalance plus.”  See also Kaplan, 
Segregation, Litigation and the Schools: The New 
Rochelle Experience, 58 Nw. U.L. Rev. 1 (1963).

Appellants place much emphasis on Dowell v. School 
Board of Oklahoma City Public Schools, 244 F. Supp. 
971 (W.D. Okla. 1965), but we are unable to adapt 
that case to the problem of racial imbalance. Despite 
appellants’ assertion that the District Court in Dowell 
dealt with facts similar to those in the case before us, 
it is clear that it did not. In that case the problem was 
one of initial desegregation of a school system which 
had previously been organized along the dual racial 
lines condemned by Brown. The Court was explicit 
in this respect:

“ This case does not raise issues regarding a 
school board’s constitutional duty to correct racial 
imbalance in localities where there is no prior his­
tory of segregation, or where prior racial policies 
are deemed corrected.” (pp. 980-981)



l ib

Further, it is clear that the duty of a school board in 
first imposing a neighborhood districting system where 
none was used before, is different from that where the 
system has been used for many years and the imbalance 
in the schools is the result of population mobility 
among the various neighborhoods. In Dowell, the Court 
noted that the relative immobility of the Negro resi­
dents was used by the school board in separating them 
through the neighborhood policy, while in Cincinnati 
one of the primary causes of imbalance has been the 
rapid movement of the Negro population into different 
areas of the city. Thus, the problem in Dowell was far 
closer to the gerrymandering in Taylor than to any­
thing in the classic statistical imbalance cases in 
northern cities.

Finally, in the one case in which a district Court 
apparently accepted the appellant’s theory of racial 
imbalance, Barksdale v. Sringfield School Comm., 237 
F.Supp. 543 (D.^Mass. 1965), the First Circuit, in 
vacating the decision and dismissing the complaint 
without prejudice specifically rejected any such 
asserted constitutional right. Springfield School Comm. 
v. Barksdale, 348 F.2d 261, 264 (1st Cir. 1965).

Appellants’ right to relief depends on a showing of 
more than mere statistical imbalance in the Cincinnati 
schools. They must also expose that added quantum of 
discriminatory state action wTiich deprives them of 
their constitutional right to freedom of choice. I f the 
school officials, through overt practice or by subterfuge, 
have treated students differently solely because of race, 
then they not only must cease doing so, but also must 
take affirmative action to remedy the condition which 
they have caused. Thus, even if the Negro students 
were distributed uniformly in the schools, if  other 
forms of discrimination were used against them they 
would still be entitled to the aid of the law. When no 
discrimination is shown, racial imbalance alone is no 
warrant for relief.



12b

D id  T h e  B o a r d  Op E d u c a t io n  I n t e n t i o n a l l y  
C a u s e  R a c i a l  I m b a l a n c e  I n  T h e  C i n c i n n a t i  
P u b l ic  S c h o o l s , D e p r iv e  N e g r o  C h i l d r e n  Op 
E q u a l  E d u c a t i o n a l  O p p o r t u n i t i e s , A n d  D is ­
c r i m i n a t e  A g a in s t  N e g r o e s  I n  T h e  H i r in g  

A n d  A s s i g n m e n t  Op T e a c h e r s ?

In their “ Statement of Questions Involved” appel­
lants assert that they have sufficiently shown that the 
Board of Education has intentionally caused, and then 
failed to eliminate, serious racial imbalance in the 
Cincinnati public schools, has afforded Negro children 
who are confined to segregated schools, inferior edu­
cational programs and facilities, and has provided 
school faculties and personnel which reflect the racial 
patterns of students. They state that children who 
attend racially imbalanced schools suffer injury con­
stituting a denial of equal educational opportunity.

The findings of fact of the District Court assume 
significance in our review of this phase of the case. 
Under Rule 52(a) the court was required to find the 
facts specially. The findings should be both “ compre­
hensive and pertinent to the issues to provide a basis 
for decision.” Schilling v. Schwitzer-Cummins Co., 142 
F.2d 82, 84 (D.C. Cir. 1944); Shapiro v. Rubens, 166 
F.2d 659 (7th Cir. 1948). In meeting this standard, the 
District Courts are not required to prepare elaborate 
findings on every possible issue or contention raised at 
trial. However, there must be subsidiary findings to 
support the ultimate conclusions of the court. Kelley v. 
Everglades Drainage District, 819 U.S. 415, 420 
(1943) ;  Dearborn Nat’l Cas. Co. v. Consumers Petro­
leum Co., 164 F.2d 332, 333 (7th Cir. 1947). See also 
Townsend v. Benamente, 339 F.2d 421 (9th Cir. 1964). 
But see Gay Games, Inc. v. Smith, 132 F.2d 930, 931 
(7th Cir. 1943).

At the trial level this case confronted the District 
Court with an enormous amount of evidence in the 
form of detailed maps, charts, statistical tables, socio­
logical studies, and historical accounts, in addition to 
a substantial amount of oral testimony, expert and 
otherwise. To his credit, the District Judge succeeded



13b

to a great degree in expediting the trial through the 
extensive use of many stipulations and effective pre­
trial procedures, which sharpened the issues. However, 
in his opinion he adopted as fair the following state­
ment taken verbatim from the School Board’s brief:

“ The Cincinnati Public School System includes 
a number of schools which are attended almost en­
tirely by Negro pupils, a number of schools 
attended entirely by white pupils, and a number 
of schools attended by both Negro and white pupils 
in various percentages of each of the races; the 
racial composition of each school is simply a result 
of the racial composition of the neighborhoods 
which they serve.”

Then, after discussing the issue of imbalance, he 
stated:

“ Their [appellants’ ] failure to produce evi­
dence to establish a policy of segregation or gerry­
mandering on the part of defendants strongly 
suggests that such practices have not been engaged 
in. It is here found that plaintiffs have failed to 
establish a deprivation of rights under the law or 
under the Constitution of the United States by the 
requisite degree of proof . . .”

In dealing with the issue of discrimination in the 
context of a great metropolitan educational complex, 
these general findings do not present an adequate basis 
for review by this Court.
_ The District Court’s finding on the racial composi­

tion of the schools in Cincinnati reveals that the schools 
are indeed racially imbalanced. In other words, the 
Negro student population is not spread uniformly 
among the individual schools, mainly because of the 
operation of the neighborhood school policy in con­
junction with the residential concentration of Negroes 
in some areas. As the District Court held, and we 
affirmed above, this fact by itself gives rise to no relief. 
However, the crucial fact to be found is whether the 
racial imbalance was intentionally caused by gerry­
mandering or by other alleged discriminatory prac­



14b

tices on the part of the Board. On that point the Dis­
trict Judge said only that appellants had failed to pro­
duce evidence to establish gerrymandering or other 
discriminatory practice and that this failure strongly 
suggested that such practices did not exist. Such a gen­
eral finding must be supported by subsidiary findings 
of fact. Kelley v. Everglades Drainage District, supra.

. Appellants, through extensive use of discovery tech­
niques, adduced vast quantities of information con­
cerning matters such as alleged discrimination in 
school attendance zoning, transportation policies, 
teacher selection and assignment, comparative test 
results, and policies on transfers and overcrowding 
of students. Some of their contentions with respect 
thereto are answered by appellees on appeal here, but 
some are not. This is due partly to the truncated status 
of the case at the time of the District Court’s decision 
on the motion to dismiss, and partly because the Court 
considered only appellants’, and not the school Board’s, 
evidence in ruling on the motion.
. An example of such unanswered and unaccounted for 

situations is the districting of the Sawyer Junior High 
School where the enrollment is mostly Negro. The fact 
is that its boundaries exclude children who live across 
the street from it in a largely white neighborhood. The 
School Board in its brief offered no explanation for 
this situation or for the selection of the Sawyer site so 
close to the existing Withrow Junior High School.

We have stated above that a showing of impairment 
of a Negro student’s capacity to learn, arising from his 
school’s racial imbalance, does not, standing alone, 
make out a case of constitutional deprivation. Evi­
dence of such harm, however, may indeed be relevant 
to the issues of the case before us. Appellants offered 
expert evidence on this subject. The School Board 
offered no opposing expert testimony, no doubt because 
the Court granted the Board’s motion to dismiss, made 
at the close of plaintiffs’ proofs. Our review would be 
helped by a finding as to whether the District Judge 
considered plaintiffs’ expert testimony of such rele­
vance, weight or probative value as to make an issue 
calling for rebuttal proof by defendant.



15b

No findings were made on these disputed issues. 
Without findings we are unable to determine whether 
discrimination existed with respect to specific schools 
and programs.

Other errors have been asserted which, in the light 
of our other holdings, we deem insubstantial.

The judgment of the District Court is affirmed on 
the issue of racial imbalance not intentionally caused 
by the Board, and the case is remanded for further 
findings on the issues of claimed discrimination in 
specific schools and programs and claimed harm to 
Negro students, allegedly caused by racially imbal­
anced schools, and for the taking of such additional 
relevant evidence as either party may offer. Northcross 
v. Board of Education of Memphis, 333 F.2d 661, 663- 
664 (6th Cir. 1964).



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