Houston Independent School District v. U.S. Memo in Opposition to Motion for Stay

    IN THE
SUPREEE COUNT OF THE UNITED STAPES 

OCTOBER TERM, 1970

NO, 982

HOUSTON INDEPENDENT SCHOOL DISTRICT, F;T AL . ,Petitioners ,
V.

UNITED STATES OF AMERICA ,

AND

Intcrvenor-Respondent,

DELORES ROSS, ET A.L . , Pi a int i f f s -Respondent s

On Petition for a Writ of Certiorari to the United 
States Court of Appeals for the Fifth Circuit

MTv ••'V . v.t OPPOSITION TO MOTION FOR STAY
Or ’.} v... i i . • > * j • *. 1 U"n •. ». ■ . •
-OUK.-P OF T np'.: :S FOR n-V. FIFTH CIRCUIT TO
. .. -  -i>J 1 Jx-- i O i '  -V ••

SCHOOL DISTRICT
i TO THE HONORABLE HUGO L. BLACK, ASSOCIATE JUSTICE OF THE UNITED 

STATES SUPREME COURT:

Respondents Deloies Ross, et al. respectfully oppose
the "Motion for Stay of Modifications Required by United States
Court of Appeals for the Fifth Circuit" filed in this Court
on or about February 11, 1971, for the following reasons:

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Factual Context of The Application

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This litigation was originally commenced by respondents;

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Ross et al. on December 26, 1956, seeking disestablishment of 
the racially dual system of public schools in Houston, Texas.
Pee Ross v. Rogers, 2 Race Rel. L. Rep. LI14 (S.D. Tex. 1957).

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Throughout the period since initiation of the litigation, there 
have been numerous proceedings toward the objective of creating 
a constitutional unitary school system. (This Court has pre­
viously denied a similar application to stay desegregation of 
the Houston schools. Houston Independent School Dist. v. Ross, 
364 U.S. 803 (I960)). The United States intervened as a 
plaintiff for this purpose in July, 1967, pursuant to Section 
902 of the Civil Rights Act of 1964, 42 U.S.C. §20001i-2.

Despite these attempts throughout the lawsuit to 
eliminate racially discriminatory practices in the operation 
of Houston's public schools, the Court of Appeals found that

as of December 1969 . . .
77% of the Negro students in 
the entire system still attended 
schools that had student bodies 
composed of more than 90% Negros.

Ross v. Eckels, No. 30080 (5t.h Cir., Aug. 25, 1970) (typewritten
slip opinion at pp. 4-5)."*

Following the filing of motions for supplemental 
relief in the district court in 1968 and 1969, and after an 
evidentiary hearing in July, 1969, the district court applied 
the standards announced in this Court's decision in Green v. 
County School Board of New Kent County, 391 U.S. 430 (1.968) and 
held that the district's then operative freedom-of-choice plan 
failed to'meet constitutional requirements. Ross v. Eckels,
Civ. No. 10444 (S.D. Tex., July 23, 1969) (oral opinion). 
Subsequently, several different proposed plans of desegregation 
were submitted to the district court by the parties. On June 
1, 1970, the district court approved one of the plans submitted 
by the school district; both the private plaintiffs and the

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* The Court of Appeals' opinion has not yet been reported. A
copy of the typewritten slip opinion is attached to petitioners' 
motion as Exhibit "A."

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UnitecT States appealed to the Fifth Circuit. The appeals 
court’s ruling is the subject of petitioner's stay motion.

II

The Order Sought to be Stayed

On August 25, 1970, the Court of Appeals reversed 
the district court's decision in part. The Court concluded 
that the district judge had erroneously applied the Circuit 
Court s standards in an earlier decision [Ellis v. Board of 
Public Instruction of Orange County, 423 F.2d 203 (1970)] 
to Houston without consideration of the factual distinctions 
between the school systems involved:

rne district ^udge adopted the equidistant zoning 
plan. The opinion of the district court demonstrates 
that this case received learned, thorough detailed con­
sideration. The court analyzed the general geographic, 
student and teacher racial compositions of the Orange 
County, Florida, and the Houston Districts and found 
them to bo legally comparable. It adjudicated the plan 
as applied m  Houston to be fair and impartial in its 
resultant operation and that such racial segregation 
as did result was inherent in the city's residential 
patterns. in light of the other features incorporated 
m  its order concerning teacher integration, majority 
to minority transfer privilege and precise faculty

^n . a 1 1  schools, the district court concluded s he equidistant zoning plan was a permissible 
means of achieving the conversion of the Houston Indepen­
dent School District from a dual to a unitary system.
APPLICABLE LEGAL STANDARDS
In the Orange County case, supra, we were careful 
to emphasize that, under the facts of that case, 
a neighborhood assignment system was adequate to 
convert the school from a dual to a unitary system.
But m  the same sentence we stated that, in the 
final analysis, each case had to be judged on al] 
facts peculiar to the particular system. This is 
but another way of expressing what is implicit in 
every school decision and explicit in many in the I
present state of the lav/ in this area -- school cases 
are unique. Each school case must turn on its own facts.

Ross v. Eckels, .supra, typewritten slip opinion at pp. 12-13

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Applying this test, the Court held that there 
were "reasonably available other ways" fGreen, supra, 391 
U.S. at 441] which would further desegregate the Houston 
elementary schools:

We direct that the equidistant plan be used as 
a base for elementary school assignment but with 
the modifications hereinafter set out. These 
modifications which involve contiguous school zones 
are well within any reasonable definition of a 
neighborhood school system. See Mannings v. Board 
of Public Instruction of Hillsborough County, 5 Cir., 
427 F.2d 874.

Id. at 13-14.
However, the Court of Appeals left the door open 

for further changes and improvements of the modifications it 
suggested so long as they were consistent with the school board's 
obligation to act affirmatively to disestablish the dual school 
system:

The district court is directed to implement 
the foregoing modifications as to the elementary 
school, zones or alternatively the court may adopt 
any other plan submitted by the school board or 
other interested parties, provided, of course, that 
such alternate plan achieves at least the same 
degree of desegregation as that reached by our 
modifications. See Pate v. Dade County School
Board, 5Cir., 1970, ____ F .2d ____  [Nos. 29,038 and
29,179, slip opinion dated August 25, 1970].
AFFIRMED in part, REVERSED in part, REMANDED with directions, 

Id. at 14 *

Proceedings Subsequent to the Court 
of Appeals 1 Decision

On December 8 , 1970, the Court of Appeals denied the 
motion made to that Court by present petitioners to stay its 
mandate insofar as the pairing of certain elementary schools was

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required. See Exhibits "B" and "C" to the "Motion for Stay of 
Modifications" filed in this Court. However, despite that action 

~ond"despite'the language of the original decision by the Court 
of Appeals that " [t]he mandeite in this cause shall issue forth­
with; no stay will be granted pending petition for rehearing 
or application for writ of certiorari," no order on remand has 
ever been entered by the district court. No alternatives to 
the pairings which petitioners complain of have been presented 
to the district court which achieve at least as much desegre­
gation in the Houston public schools. In sum, the school system 
is still being operated essentially under the same plan which 
the Fifth Circuit held on August 25, 1970, failed to meet the 
requirements of the United States Constitution.

IV

Argument

This brief recitation of rhe facts should suffice to 
demonstrate that the thrust of petitioners1 Motion is to seek 
the sanction of this Court permitting it to continue unconstitut­
ional practices of segregation in its ptfblic schools.

Whatever the lack of justification for the failure 
of the district court to act pursuant to the mandate of the 
Court of Appeals, since last August, that delay has equally been 
occasxoned by the school district's refusal to comply with the 
plain terms of the Fifth Circuit's decision. The district has 
no one to blame but itself, therefore, for the prospect which it 
now claims to face of "disruption of the educational process 
necessarily entailed in student transfers which occur during 
the term."

Alexander v. Holmes County B i. of Educ.. 396 U.S. 19 
(1969); Carter v. West Feliciana Parish School Bd .. 396 U.S.

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290 (1970); Dowell v. Board of Educ. of Oklahoma City, 396 U.S.
269 (1969); and Northeross v. Board of Educ. of Memphis, 397 
U.S. 232 (1970), all make clear the constitutional imperative 
that schools be desegregated "at once" pending further litigation 
concerning remaining contentions of the parties. That these 
mandates have thus far been ignored furnishes no reason for count­
enancing further evasion of the school district's constitutional 
obligations.

Nor does the pendency of school desegregation cases 
before this Court alter the constitutional command. Obviously 
this Court did not intend to vitiate the rule of Alexander when 
it granted review in the cases presently awaiting decision (Swann 
v. Char1otte-Mecklenburg Bd. of Educ. et al). See, e .g ., Swann 
v. Charlotte-Mecklenburg Bd. of Educ., No. 281 O.T. 1970 (unre­
ported order of full Court, August 25, 1.970, denying requested 
stays, pending this Court's decision, of school desegregation 
in Charlotte, Winston-Salem, Fort Lauderdale and Miami); 
Metropolitan County Bd. of Educ. of Nashville and Davidson 
County v. Kelley (unreported order of February 3, 1971 by Mr. 
Justice Stewart, denying application for stay, pending certiorari, 
of requirement that proceedings in school desegregation case 
continue); Watson Chapel School Dist. No. 24 v. United States 
(unreported order of February 10, 1971 by Mr. Justice Blackmun, 
denying stay pending certiorari of district court order requiring 
immediate implementation of desegregation plan).

These denials of stays of course merely continue this 
Court's consistent history of refusing to postpone school

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desegregation by issuing stays or declining to vacate such stays 
jwlYfZrn "grunted - by~ 1 ower courts. See, c . g •, Lucy v. Adams, 350 
U.S. 1 (1955); Houston Independent School Dist. v. Ross, 364
U.S. 803 (1960); Danner v. Holmes, 364 U.S. 939 Race Rel. L.
Rep. 1092 (1961) (refusing to reinstate a stay dissolved by Chief 
Judge Tuttle of the Fifth Circuit in Holmes v. Danner, 5 Race 
Rel. L. Rep. 1091 (1961)); Boomer v. Beaufort County Bd. of Educ. 
(August 30, 1968) (unreported order of Mr. Justice Black, vacat­
ing stays granted by the Court of Appeals for the Fourth Circuit).

Finally actions taken by the Court of Appeals in 
other school desegregation cases do not support issuance of a 
stay in this case. Since the Court of Appeals' decision allows 
district court hearings on alternatives to the pairing, which 
may be litigated in the district court, this case is not in the 
same posture as Allen v. Board of Public Instruction of Broward
County, 5th Cir. No. 3003*;, wherein the Court of Appeals gianted 
a stay of a district court order implementing its decision an­
nounced August 18, 1970, 432 F.2d 362. And while the Court of 
Appeals did issue a press release on October 1 announcing that 
it would render no further school desegregation decisions until 
this Court rules in the Charlotte and Mobile cases, there is
presently pending before the Fifth Circuit a Motion for Decision
in twelve such cases sub now. Calhoun v. Cook, 5th Cir. No. 2960.J, 
30357. Since the press release announcement was made ex parte, 
and without any communication whatsoever to counsel in these 
cases, and until the Court of Appeals has ruled upon the Motion 
for Decision, this case is inappropriate to review the validity

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the
Stray-

Fifth Circuit's 
Irrth ±s~ma t:or.

practice especially by way of issuing

WHEREFORE, respondents Delores Ross et al. respect­
fully pray that the requested stay order be denied.

^Respectfully suijmi tte

(JLD'ON II. BERRY, ESQ.
711 Main Street, Suite 620
Houston, Texas 77002

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

Attorneys for Respondents 
Ross, et al.

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CriRTTF'j CATE OF- SERVICE

This is to certify that on this 10th day of February,
197]., I served a copy of the foregoing Memorandum in Opposition 
to Motion for Stay of Modifications Required by United States 
Court of Appeals for the Fifth Circuit to Plan of Desegregation 
of the Houston Independent School District upon the attorneys 
for the petitioners and respondent intervenor, William Key 
Wilde, Esq., Bracewell and Patterson, 1808 First City National 
Bank Building, Houston, Texas 77002; Ernest II. Cannon,Esq.,
500 Houston First Savings Ruilding. 711 Fannin Street, Houston, 
Texas 77002; lion. Jerris Leonard, Assistant Attorney General, 
Civil Rights Division, Unit 0H si-ci Lcs rtiucrit of ticc ^
Washington, D.C. 20530; and Hon. Anthony Farris, United States 
Attorney, 515 Rusk Avenue, Houston, Texas 77002, by United 
States mail, air mail postage prepaid.

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