Houston Independent School District v. U.S. Memo in Opposition to Motion for Stay
Public Court Documents
February 18, 1971

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Brief Collection, LDF Court Filings. Houston Independent School District v. U.S. Memo in Opposition to Motion for Stay, 1971. 44e99079-b89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/0bfb7dd7-7764-4882-8f78-cb3405f3d5cf/houston-independent-school-district-v-us-memo-in-opposition-to-motion-for-stay. Accessed April 29, 2025.
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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: \ I Factual Context of The Application i This litigation was originally commenced by respondents; i 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). ■ 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 i * 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." 2 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 3 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 4 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. 5 290 (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 l 6 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 l 7 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. 8 I 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. \ 9 l