Pinellas County Florida Board of Public Instruction v. Bradley, Jr. Brief in Opposition to Certiorari

    In t h e

Supreme dmirt of %  Initrii States
October T erm, 1970 

No. 613

T he B oard of P ublic I nstruction of 
P inellas County, F lorida, et al.,

Petitioners,
v .

Leon W . B radley, J r., et al.

*
ON PETITION FOR A WRIT OF CERTIORARI TO 

THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION TO CERTIORARI

Jack Greenberg 
James M. Nabrit, III 
N orman J. Chachkin  
Drew S. Days, III

10 Columbus Circle 
New York, New York 10019

James B. Sanderlin

1407 22nd Street South 
St. Petersburg, Florida 33712

Attorneys for Respondents



TABLE OF CONTENTS

PAGE

Opinions B elow ...................................................................  1

Jurisdiction .........................................................................  1

Questions Presented .........................................................  2

Constitutional Provisions and Statutes Involved........... 2

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

A rgument...................................................................................... 4

Conclusion...................................................................................  7

Table of A uthorities

Cases:

Andrews v. City of Monroe, 425 F.2d 1017 (5th Cir. 
1970) .................................................................................  5

Brown v. Board of Education, 347 U.S. 483 (1954)....2, 4, 5

Charlotte-Mecklenburg Bd. of Ed. v. Swann, 431 F.2d 
138 (4th Cir. 1970) .........................................................  5, 7

Davis v. Board of School Comm’rs of Mobile County 
No. 436, O.T. 1970 ....................................................3, 4, 5, 7

Green v. County School Board, 391 U.S. 430 (1968)....2, 3, 6

McDaniel v. Barresi, Oct. Term, 1970, No. 420 ........... 4, 6
Monroe v. Board of Comm’rs of Jackson, 427 F.2d 1005 

(6th Cir. 1970) 5



11

PAGE

North Carolina State Board of Education v. Swann,
Oct. Term, 1970, No. 498 .............................................. 4

Swann v. Charlotte-Mecklenburg Board of Education,
Oct. Term, 1970, Nos. 281 and 349 ..............................  4, 6

Tillman v. Bd. of Public Instruction of Volusia Cty.,
430 F.2d 309 (5th Cir. 1970) ........................................  5

United States v. Bd. of Trustees of Crosby Independent 
School Dist., 424 F.2d 625 (5th Cir. 1970)................... 5

United States v. Jefferson County Bd. of Ed., 372 
F.2d 836 (5th Cir. 1966), aff’d en banc, 380 F.2d 385 
(5th Cir. 1967), cert. den. sub nom. Caddo Parish 
School Bd. v. United States, 389 U.S. 840 (1967).....  5

United States v. School District 151, Cook County, 111.,
404 F.2d 1125 (7th Cir. 1968).......................................... 5

Statutes:

28 U.S.C. 1254(1) ...............................................................  1

Civil Rights Act of 1964

§401 ...............................................................................  5

§407 ...............................................................................  5



(£mtrt at tlfp HuiM
October T erm, 1970 

No. 613

In t h e

T he B oard of P ublic I nstruction of 
P inellas County, F lorida, et al.,

Petitioners,
v.

L eon W . B radley, Jr., et al.

on petition for a writ of certiorari to

THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION TO CERTIORARI

Opinions Below

The opinion of the Court of Appeals (Pet. App. A. 17) is 
not yet reported. The decision of the district court is also 
unreported.

Jurisdiction

The decision of the Court of Appeals on rehearing was 
entered on July 28, 1970. The petition for certiorari was 
filed on September 1, 1970. The jurisdiction of this Court 
rests on 28 U.S.C. 1254(1).



2

Questions Presented

Whether the court of appeals was correct in ruling that 
a school board desegregation plan which resulted in 66% 
of the black pupils in the system attending fourteen all­
black or virtually all-black schools, failed to meet the 
desegregation requirements of Brown v. Board of Educa­
tion, 347 U.S. 483 (1954), and Green v. County School 
Board, 391 U.S. 430 (1968), where it appeared that sub­
stantially more desegregation could be obtained by such 
pupil assignment techniques as redrawing zone lines and 
pairing schools located in close proximity to each other.

Constitutional Provisions and Statutes Involved

Pertinent excerpts from the Fourteenth Amendment to 
the Constitution of the United States and the Civil Rights 
Act of 1964 are set forth at page 3 of the petition.

Statement

This school desegregation case was commenced in 1964 
seeking an injunction to require the desegregation of the 
public school system of Pinellas County, Florida, a system 
which includes the City of St. Petersburg. Summary judg­
ment against the defendant-petitioner Board of Public 
Instruction was entered January 15, 1965, and defendants 
were directed to prepare a plan to eliminate dual atten­
dance zones based on race and to operate the schools on a 
racially non-discriminatory basis. In March, 1965, a plan 
based on geographic attendance areas was approved by the 
district court. Thereafter, the plaintiffs by several motions 
sought decrees to further and complete the process of 
establishing a unitary non-racial system. When plaintiffs 
(respondents here) filed a motion in December 1968 for



3

relief in accord with this Court’s decision in Green v. 
County School Board, 391 U.S. 430 (1968), the school 
system was still largely segregated with virtually all-black 
schools (99% or more black) housing 86% of all black 
elementary pupils, 55% of black junior high students and 
54% of black high school students.

In response to this motion, the district court required 
submission of a new plan by the board. Such a plan was 
filed; the plaintiffs objected to it; and the district court 
approved it following an evidentiary hearing by an order 
entered August 4, 1969. The court below described the 
results of implementation of this plan in 1969-70 as follows:

During the 1969-70 school year, 12 elementary schools, 
one junior high and one senior high school served all- 
Negro or virtually all-Negro student bodies. Approxi­
mately 8,400, or 66%, of the 12,700 Negro students 
in the entire system at all levels attended all-Negro 
or virtually all-Negro schools (Petition A. 19).

On plaintiffs’ appeal to the Fifth Circuit, the district 
court’s conclusion that there was no feasible plan other 
than the school board plan was reversed. The Court of 
Appeals found that a number of the all-black schools “can 
be desegregated through pairing, grouping, and relocat­
ing of zone lines without creating impractical attendance 
zones or inordinate transportation problems” (Petition 
A. 23). The Court of Appeals undertook to consider various 
means of eliminating the all-Negro schools “while at the 
same time maintaining the neighborhood school concept 
of the school system” (Petition A. 20-21 ).1 The court noted

1 For a description of the Fifth Circuit’s “neighborhood school” 
concept applied by the Court of Appeals with varying results in 
more than a score of recent decisions see Brief for Petitioners in 
Davis v. Board of School Comm’rs of Mobile County, No. 436, 
O.T. 1970 at pp. 49-61.



4

that Pinellas County did not employ a “ strict” neighbor­
hood system based on equidistant zone lines between 
schools, but rather, employed zones “based on discretionary 
zone lines” (A. 21). The court said:

We find that the situation can be greatly improved 
by pairing some schools located in close proximity 
to each other, as was done in Mannings, supra 
[Mannings v. Board of Public Instruction of Hills­
borough County, 427 F.2d 874 (1970)] by redrawing 
the zone lines in several instances, and by grouping 
several schools into a common attendance zone. 
(Petition A. 21)

The amendments in the board’s proposed plan which were 
ordered by the Fifth Circuit were projected to eliminate 
all but three of the all-black schools in the system, with the 
result that 14.2% (1,738) of the black children would be 
assigned to such schools.

ARGUMENT

This case involves important questions with respect to 
what are the requirements of a school desegregation plan 
which fulfills the requirements of Brown v. Board of Edu­
cation, 347 U.S. 483 (1954), by providing to black children 
their rights to a desegregated education. However, this 
Court has already heard full arguments this term on the 
issues involved in this case. See, e.g., Davis v. Board of 
School Commissioners of Mobile County, Oct. Term, 1970, 
No. 436; Sivann v. Gharlotte-Mecklenburg Board of Educa­
tion, Oct. Term, 1970, Nos. 281 and 349; North Carolina 
State Board of Education v. Sivann, Oct. Term, 1970, No. 
498; McDaniel v. Barresi, Oct. Term, 1970, No. 420. Con­
sideration of the Mobile County, Alabama case, supra, in



5

particular, has required that this Court examine the de­
segregation doctrines developed by the Fifth Circuit in 
numerous recent cases similar to this case in its efforts to 
implement Brown. I f the Court, in deciding the Mobile case 
and the other cases argued in October, fashions rules of 
general applicability to guide the lower courts in formu­
lating and reviewing desegregation plans, it is entirely 
likely that such a decision will be a governing precedent 
for the Pinellas County system. In such event, the Pinellas 
County case ought, in the interests of economizing this 
Court’s efforts, be next considered by the lower federal 
courts in light of this Court’s forthcoming decision.

The petition does not present any legal arguments not 
fully briefed and argued in the Mobile and Charlotte cases, 
supra. The board’s arguments based on the Civil Rights 
Act of 1964 have been rightly rejected by every federal 
appeals court which has considered them.2 There is simply 
no warrant for the argument of the board that these provi­
sions are in any respect a limitation on the power of the 
federal courts to remedy unconstitutional racial segrega­
tion. Sections 401 and 407 of the Civil Rights Act of 1964 
simply do not prohibit the courts from doing anything, as 
the plain language of the law reveals. As Judge Butzner 
said in the Charlotte case:

Those provisions are not limitations on the power of
school boards or courts to remedy unconstitutional

2 See Charlotte-Mecklenburg Bd. of Ed. v. Swann, 431 F.2d 138 
(4th Cir. 1970); United States v. School District 151, Cook County, 
I'll., 404 F.2d 1125, 1130 (7th Cir. 1968) ; United States v. Jefferson 
County Bd. of Ed., 372 F.2d 836, 880-881 (5th Cir. 1966), aff’d 
en banc, 380 F.2d 385 (5th Cir. 1967), cert. den. sub nom. Caddo 
Parish School Bd. v. United States, 389 U.S. 840 (1967) ; United 
States v. Bd. of Trustees of Crosby Independent School Dist., 424 
F.2d 625 (5th Cir. 1970); Tillman v. Bd. of Public Instruction of 
Volusia Cty., 430 F.2d 309 (5th Cir. 1970); Andrews v. City of 
Monroe, 425 F.2d 1017 (5th Cir. 1970); Monroe v. Board of 
CommWs of Jackson, 427 F.2d 1005 (6th Cir. 1970).



6

segregation. They were designed to remove any impli­
cation that the Civil Rights Act conferred new juris­
diction on courts to deal with the question of whether 
school boards were obligated to overcome de facto 
segregation. (Swann v. Charlotte Mecklenburg Bd. of 
Educ., 431 F.2d 138,146 (5th Cir. 1970).)

An extensive discussion of this point is contained in the 
briefs in Swann v. Charlotte-Mecklenburg Board of Edu­
cation, Oct. Term, 1970, No. 281, Brief for Petitioners, 
pp. 65-66; Reply Brief for Petitioners and Cross-Respon­
dents, pp. 32-40. The point is also discussed in the Memo­
randum of the United States as Amicus Curiae, in Mc­
Daniel v. Barresi, No. 420, this Term.

The board’s argument that the Fifth Circuit decision 
below requires “ racial balancing” and the classifying of 
pupils by race is mistaken, as an examination of that 
opinion will reveal. The Fifth Circuit plan would leave 
about 40 schools 100% white and three all-black. It is 
clear that the Fifth Circuit did not require that all schools 
have any balanced racial percentage. In view of this 
Court’s decision in the Green case, supra, the court below 
was required to reject the board’s argument that there is 
no affirmative duty to integrate the schools. (See Petition, 
pp. 12-13). The Fifth Circuit examined alternatives to 
the board’s desegregation proposals in order to find a 
method of more nearly disestablishing the segregated sys­
tem created pursuant to state segregation laws and prac­
tices. The Fifth Circuit merely ordered rezoning and pair­
ing of nearby schools to accomplish more desegregation 
than the school board had proposed. Nothing in the peti­
tion for certiorari suggests that the board can meet the 
heavy burden of justifying its preference for less effective 
methods of desegregation. Green v. County School Board, 
391 U.S. 430, 439 (1968).



7

Indeed, rather than requiring “ racial balance” as the 
board complains, we believe the Fifth Circuit erred in not 
requiring sufficient desegregation in permitting the board 
to continue a number of all-black schools which might have 
been desegregated by techniques similar to those ordered. 
However, similar contentions have been made by the peti­
tioners in the Mobile and Charlotte cases, and if this Court 
sustains those arguments, we trust that the principles 
announced by this Court will be applied to this and other 
pending cases by the appropriate lower federal courts.

CONCLUSION

For the foregoing reasons, this petition for a writ of 
certiorari should be denied.

Respectfully submitted,

Jack Greenberg 
James M. N abrit, III 
N orman J. Chachkin  
Drew S. Days, III

10 Columbus Circle 
New York, New York 10019

James B. Sanderlin

1407 22nd Street South 
St. Petersburg, Florida 33712

Attorneys for Respondents



M EIIEN  PRESS INC. — N. Y. C. 219