Keyes v. School District No. 1 Denver, CO. Petition for Writ of Certiorari

    I n the

(ta r t  nf %  Imteii
O ctober T e r m , 1971

No. I t

W ilfred  K ey es , et al.,
Petitioners,

vs.

S chool D istrict  N o. 1, D en v er , C olorado, et al.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT

J ack  Greenberg  
J a m es  M. N a brit , I I I  
C harles  S t e p h e n  R alston  
N orman J .  C h a c h k in  

10 Columbus Circle 
New York, New York 10019

G ordon G. Gr e in e r  
R obert T . C o nnery

500 Equitable Building 
Denver, Colorado 80202

Attorneys for Petitioners



I N D E X

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

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

Constitutional and Statutory Provisions Involved......  2

Question Presented .......................................    2

Statement of the Case .................................................  3

Reasons for Granting the Writ
I. Certiorari Should Be Granted to Resolve Con­

flicts in Principle Among the Lower Courts .... 14
II. Other Inequalities in the System, Coupled with 

Racial Segregation, Provide Further Reason 
for Requiring the Only Workable Remedy: 
Racial Integration ......................    22

Conclusion ...................................................................... 26

T able op A ttthobities

Cases
Barrows v. Jackson, 346 U.S. 249 (1953) ..................... 5n
Bell v. School City of Gary, 324 F.2d 209 (7th Cir.

1963), cert. den. 377 U.S. 924 (1964) .....................15,15n
Bradley v. Milliken, 433 F.2d 897 (6th Cir. 1970), 438 

F.2d 945 (6th Cir. 1971), Civ. No. 35257 (E.D. Mich.,
Sept. 27, 1971) ........ ............................................ ..14,

Bradley v. School Board of Richmond, 382 U.S. 103 
(1965)

PAGE

20



IX

Brewer v. School Board of Norfolk, Va., 397 F.2d 37
(4th Cir. 1968) ..........................................................  18

Brown v. Board of Education, 347 U.S. 483 (1954) .... 20

Calhoun v. Cook, Civ. No. 6298 (N.D. Ga., July 28,
1971) ....................................................................... 16n, 18

Chandler v. Ziegler, 88 Colo. 1 (1930) ......................... 5n
Clemons v. Board of Education of Hillsboro, 288 F.2d 

853 (6th Cir.), cert. den. 350 U.S. 1006 (1956) ..........  14

Davis v. Board of School Commr’s of Mobile, 402 U.S.
33 (1971) ..................................................................  17n

Davis v. School District of City of Pontiac, 309 F. 
Supp. 734 (E.D. Mich. 1970), aff’d 443 F.2d 573 (6th
Cir. 1971) ........................................................14,17,18,21

Deal v. Cincinnati Board of Education, 369 F.2d 55
(6th Cir. 1966), cert. den. 389 U.S. 847 (1967) ......  15

Dove v. Parham, 282 F.2d 256 (8th Cir. 1960) ....... . 20
Downs v. Board of Educ. of Kansas City, 336 F.2d 988 

(10th Cir. 1964), cert, den., 380 U.S. 914 (1965) ....13,15,
15n

PAGE

Gomperts v. Chase, —— U.S. ----- , No. A-245 (Sept.
10, 1971) ..................................................................14, 25n

Green v. County School Board of New Kent County,
Va., 391 U.S. 430 (1968) .......................................15n, 21

Hawkins v. Town of Shaw, 437 F.2d 1286 (5th Cir.
1971) (reh. en banc granted) ................................... 20

Hobson v. Hansen, 269 F. Supp. 401 (D.D.C. 1967), 
aff’d sub nom. Smuck v. Hobson, 408 F.2d 175 (D.C.
Cir. 1969) ...................................................................  25n

Jackson v. Goodwin, 400 F.2d 529 (5th Cir. 1969) .... 20



Ill

Johnson v. San Francisco Unified School Dist., Civ.
No. C-70-1331 SAW (N.D. Cal., July 9, 1971), stay
denied sub nom. Guey Heung Lee v. Johnson, -----
U .S.----- , No. A-203 (Aug. 25, 1971) ....................... 14

Kennedy Park Homes Assn., Inc. v. City of Lacka­
wanna, 436 F.2d 108 (2d Cir. 1970), cert, den., 401
U.S. 1010 (1971) .......... ......................................... . 20

Keyes v. School Dist. No. 1, Denver, 396 U.S. 1215 
(1969) .........................................................................  4n

Lee v. Macon County Board of Education, No. 30154
(5th Cir., June 29, 1971) ............................................  20

Loving v. Virginia, 388 U.S. 1 (1967) .....................20, 25n

Mannings v. Board of Public Instruction of Hills­
borough County, Civ. No. 3554-T (M.D. Fla., May
11, 1971) ......... ........................................................ 16n, 21

Mapp v. Board of Educ. of Chattanooga, Civ. No. 3564
(E.D. Tenn., July 26, 1971) .... .............. ...................  16n

McLaughlin v. Florida, 379 U.S. 184 (1963) .............. 25n
McLaurin v. Oklahoma State Board of Regents, 339

U.S. 637 (I960) .........................................................  25
Meredith v. Fair, 305 F.2d 360 (5th Cir.), cert, denied,

371 U.S. 828 (1962) ........................... ........................ 21
Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) 25

Oliver v. Kalamazoo Board of Education, No. K88-71 
(W.D. Mich., Aug. 19, 1971) (oral opinion) aff’d 
No. 71-1700 (6th Cir., Aug. 30, 1971) .....................  15

Rogers v. Paul, 382 U.S. 198 (1965) ........ ...................  21

Serrano v. Priest, No. L.A. 29820 (Supreme Ct. Cal.,
Aug. .30, 1971) ............................................................  25n

PAGE



IV

Shelley v. Kraemer, 334 U.S. 1 (1948) ........................  5n
Sipuel v. Univ. of Okla. Board of Regents, 332 U.S.

631 (1948) .................................................................. 25
Soria v. Oxnard School District, 328 F. Supp. 155 (C.D.

Cal. 1971) .................................................................... 15
Spangler v. Pasadena City Board of Educ., 311 F.

Supp. 501 (C.D. Cal. 1970) ...................................... 14
Stell v. Savannah-Chatham Board of Educ., 318 F.2d

425 (5th Cir. 1963), 333 F.2d 55 (5th Cir. 1.964) ......  24n
Steward v. Cronan, 105 Colo. 393 (1940) ..................... 5n
Stout v. Jefferson County Board of Education, No.

29886 and 30387 (5th Cir., July 16, 1971) .............. 20
Swann v. Charlotte-Mecklenburg Board of Educ., 402

U.S. 1 (1971) .....................................14n, 15n, 16n, 18, 20
Sweatt v. Painter, 339 U.S. 629 (1950) ........................  25

Taylor v. Board of Education of New Rochelle, 191 
F. Supp. 181 (S.D. N.Y.), appeal dismissed, 288 F.2d 
600 (2d Cir.), 195 F. Supp. 231 (S.D. N.Y.), aff’d 
294 F.2d 36 (2d Cir.), cert, denied, 368 U.S. 940 
(1961) .....-................................................................. 14,18

United States v. Board of Educ., Tulsa, 429 F.2d 1253
(10th Cir. 1970) ................................................... 15n, 18n

United States v. Board of School Comm’rs of In­
dianapolis, Civ. No. IP-68-C-225 (S.D. Ind., Aug.
18, 1971) ............................................................ 15,15n, 19

United States v. School Dist. No. 151, 286 F. Supp.
786 (N.D. 111. 1967), aff’d 404 F.2d 1125 (7th Cir. 
1968), on remand, 301 F. Supp. 201 (N.D. 111. 1969), 
aff’d 432 F.2d 1147 (7th Cir. 1970), cert, den., 402 
U.S. 943 (1971) .......................................................18,21

PAGE



V

Wright v. Council of the City of Emporia, No. 70-188,
O.T. 1970 .................................................................... 20

Federal Statutes
28 U.S.C. §1343(3) ..............................,........................ 3

28 U.S.C. §1343(4) ....................................................... 3

42 U.S.C. §1983 ............................................................  3

Other Authorities
Coleman, Equality of Educational Opportunity (1966) 21n

Racial Isolation in the Public Schools, A Report of the 
U.S. Commission on Civil Rights (1967) .................  21n

Report of the National Advisory Commission on Civil 
Disorders (1968) ....................................................... 21n

PAGE



I n  th e

(tatrt of %  WmUb States
O ctober T e r m , 1971

No...... ..........

W ilfr ed  K ey es , et al.,

vs.
Petitioners,

S chool D istr ic t  No. 1, D en v er , C olorado, et al.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT

Petitioners respectfully pray that a writ of certiorari 
issue to review the judgment and opinion of the United 
States Court of Appeals for the Tenth Circuit entered in 
this matter on June 11, 1971. /

Opinions Below

The June 11,1971 opinion of the Court of Appeals, whose 
judgment is herein sought to be reviewed, is reported at 445 
F.2d 990 and is reprinted in the separate Appendix to this 
Petition, pp. 122a-158a. The prior opinions of the United 
States District Court for the District of Colorado, also 
reprinted in the Appendix, are reported as follows: (1) 
July 31, 1969, granting petitioners’ motion for preliminary 
injunction, 303 F. Supp. 279 (Appendix, pp. la-19a); (2) 
August 14, 1969, on remand to make preliminary injunction 
more specific and consider applicability of portion of Civil



2

Rights Act of 1964, 303 F. Supp. 289 (Appendix, pp. 20a- 
43a); (3) March 21,1970, opinion on merits granting perma­
nent injunction, 313 F. Supp. 61 (Appendix, pp. 44a-98a); 
and (4) May 21, 1970, opinion on relief or remedy, 313 
F. Supp. 90 (Appendix, pp. 99a-121a).

Jurisdiction

The judgment of the Court of Appeals was entered June 
11, 1971. On September 8, 1971, Mr. Justice Marshall en­
tered an order extending the time for the filing of this 
petition to and including October 9, 1971. The jurisdiction 
of this Court is invoked pursuant to 28 U.S.C. §1254(1).

Constitutional and Statutory Provisions Involved

This case involves the first section of the Fourteenth 
Amendment to the Constitution of the United States, which 
provides as follows:

All persons born or naturalized in the United States, 
and subject to the jurisdiction thereof, are citizens of 
the United States and of the State wherein they reside. 
No State shall make or enforce any law which shall 
abridge the privileges or immunities of citizens of the 
United States; nor shall any State deprive any person 
of life, liberty, or property, without due process of law; 
nor deny to any person within its jurisdiction the equal 
protection of the laws.

Question Presented

Whether school authorities who have over several decades 
created and aggravated school segregation and minimized 
school integration, and whose policies and practices system­
atically afford white students greater educational oppor­



3

tunities than black or Spanish-surnamed students attend­
ing segregated schools, must take all possible affirmative 
steps to eliminate segregation throughout their school sys­
tem and otherwise equalize educational opportunity.

Statement of the Case

This is a school desegregation action brought by Denver 
Schoolchildren and their parents on June 19, 1969 pursuant 
to 42 U.S.C. §1983 and 28 U.S.C. §1343(3) and (4). While 
the litigation followed a newly elected school board’s can­
cellation of a partial desegregation plan adopted by the 
predecessor board, the complaint sought the complete de­
segregation of the Denver public school system and provi­
sion of equal educational opportunities to all Denver 
schoolchildren.1

T he D enver School District

The respondent school district is coterminus with the 
City and County of Denver, Colorado. During the 1968-69 
school year—immediately preceding this lawsuit and prior 
to implementation of the preliminary injunction (303 F. 
Supp. 279, 289)-—the school district operated 118 schools2 * 
serving 96,577 children. Denver students include significant

1 Petitioners’ Complaint alleged, inter alia (First Count, Second 
Cause of Action) (emphasis supplied) :

B. By the following described acts, among others, defendants 
and/or their predecessors have over the years and are at 
present deliberately and purposefully attempting to create, 
foster and maintain racial and ethnic segregation within 
the School D istrict; . . .

C. These various actions of said defendants have effected in 
the School District a significant segregation of pupils by 
race and ethnicity. . . .

2 Nine senior high schools, 17 junior high schools and 92 ele­
mentary schools.



4

numbers of Negro (12.0-15.2%) and Spanish-surnamed 
(15.2-23.1%) children.3

During the 1968-69 school year (prior to this suit) there 
was substantial segregation of students in the Denver pub­
lic schools, as shown by the following table:

Students White Black
Spanish-
surnamed

Attending Students Students Students
Schools: No. % No. % No. %

0-25.0% white 1778 2.8% 10110 74.2% 6174 31.6%
25.1-50.0% white 2931 4.6% 797 5.8% 3885 19.9%
50.1-75.0% white 12075 19.0% 1848 13.6% 5469 28.0%
75.1-100% white 46635 73.5% 877 6.4% 4001 20.5%

63419 13632 /v 19529 '2*
T he Evidencet

This pattern of segregated schooling had persisted for a 
considerable time in Denver.4 Much of the evidence demon-

3 The following table shows the distribution of Denver school- 
children by race and grade level:

White £<. 4 Negro •' • ' Spanish-
surnamed*

No. % No. % No. %
Sr. High (10-12) 14,852 72.8 2,442 12.0 3,091 15.2
Jr. High (7-9) 14,855 68.8 2,893 13.4 3,858 17.8
Elementary (K-6) 33,678 61.7 8,304 15.2 12,594 23.1

* Statistics include children of “Other” races in this category;
such children constitute 1 % of total student enrollment in
school district.

4 Perception of the problem led previous school boards to appoint 
two committees to recommend solutions, see n. 8 infra, and to adopt 
the plan to desegregate several Denver schools which was annulled 
by the new board on June 9,1969 and then reinstated by the district 
court’s preliminary injunction. The district court’s order was itself 
vacated by the United States Court of Appeals for the Tenth Circuit 
and subsequently reinstated by order of Mr. Justice Brennan. See 
Keyes v. School Dist. No. 1, Denver, 396 U.S. 1215 (1969).



5

strated Denver’s use of the now familiar galaxy of tech­
niques by which boards and administrators have sought to 
preserve school segregation.

Prior to 1950, almost every secondary school and several 
elementary schools in Denver had “mandatory” attendance 
zones immediately surrounding them and larger “optional 
zones” between them; students living in an “optional zone” 
were permitted to attend either school serving it (PX 20 
at p. A-12).| While there are no records in evidence show­
ing the use made of this device prior to 1950, thereafter it 
caused continued attendance of minority-race students at 
predominantly minority-race schools and avoidance of such 
schools by white students (H. 63, 78, 112-14; PX 401, 406).

Before 1950, the black and Spanish-surnamed population 
of Denver generally occupied older portions of the central 
city.* 6 Negroes were concentrated in a well-defined area sur­
rounding the “Five Points,” 303 F. Supp. at 282, Appendix 
at p. 4a. Most of the public schools located within this area 
were predominantly, if not completely, Negro. Ibid. 
Virtually all of the city’s Negro high school students at­
tended Manual High School although their numbers were 
small enough that the high school was not majority-black; 
the school also enrolled many Spanish-surnamed students 
but at that time was the only high school in the Denver

6 Citations to the transcript of tile hearing on preliminary in­
junction held in July, 1969 will be given as “P.H. ——.” Citations 
to the transcript of the February, 1970 hearing on the merits will 
be given as “H. ——.” Citations to the transcript of the May, 1970
hearing on relief will be given as “R.H. ----- .” Exhibits will be
identified by reference to the party below introducing them; i.e.,
“P X -----and “DX —— ” for plaintiffs’ and defendants’ exhibits,
respectively.

6 Prior to this Court’s decisions in Shelley v. Kraemer, 334 U.S. 1 
(1948) and Barrows v. Jackson, 346 U.S. 249 (1953), Colorado 
courts enforced racially restrictive covenants. E.g., Chandler v. 
Ziegler, 88 Colo. 1 (1930) ; Stewards. Cronan, 105 Colo. 393 (1940).



6

school system with a minority of white students (H. 78, 
PX 401).

At the same time and until at least 1964, it was the policy 
xof the Denver school authorities to assign black and Spanish- 

surnamed teachers to the schools in which black and Spanish- 
surnamed students were concentrated.7 The result was that 
while no school had a majority of black or Spanish-surnamed 
teachers, almost all of these teachers were concentrated 
in a few schools, while most schools had no minority-race 
teachers (H. 2011-14). This concentration in fact continued 
through the 1968-69 school year just prior to the institution 
of this suit (PX 254, 256, 258).

Following 1950, Denver’s population increased markedly. 
Undeveloped areas were settled and new territory added to 
the city by a larg’e number of annexations. Schools were 
constructed in these areas; they opened as and have re­
mained virtually entirely white. Both the Spanish-surnamed 
and black communities expanded, the latter along a narrow 
corridor eastward from the “Five Points” area. 303 F. Supp. 
at 282, Appendix at p. 4a.

Respondents’ school construction policies traced these 
patterns and accelerated the isolation of students into ra­
cially identifiable schools: In 1953 the system replaced 
Manual High School'—already minority-white and enroll­
ing almost all of the city’s Negro high school students— 
with a new facility located two blocks away, serving the

7 The school district defended this policy, despite its segregation 
of school faculties, on the ground that it furnished successful “role 
models” for minority race students to emulate (H. 2013-14). The 
district court found, however, that the system’s faculty assignment 
policies were generated by a fear that the white community would 
not accept the placement of minority-race teachers in white schools, 
303 P. Supp. at 284, Appendix at p. 9a-10a. On appeal, the Tenth 
Circuit ignored this finding and instead accepted the school dis­
trict’s justification. 445 F.2d at 1007, Appendix at p. 150a.



7

same mandatory attendance area and limited in size to serve 
only the black and Spanish-surnamed students in that area 
or anticipated to be added thereto by population growth 
(H. 78, 296; PX 401). In 1960 the Barrett Elementary 
School was built in a black neighborhood at the extreme 
eastern edge of the Negro residential area but its size was 
restricted and its boundaries manipulated—its easternmost 
boundary ran along its playground—to conform to existing 
residential patterns and insure that it would be a black 
school from its opening (303 F. Supp. at 282; Appendix at 
p. 5a). The Manual and Barrett sites were selected and 
constructed over the opposition of representatives of the 
black community.8

Changes in attendance areas of Denver public schools, 
for the ostensible purpose of relieving overcrowding at 
various schools, also resulted in maintaining or exacerbat­
ing segregations: In 1952, optional areas were instituted 
between an overcrowded, increasingly black elementary 
school (Columbine) and adjacent, underutilized, totally 
white facilities (Harrington and Stedman)—relieving the 
overcrowding slightly by permitting the white students at 
Columbine to withdraw (H. 106-07, 112-14; PX 406). In 
1956 overcrowding at East High necessitated adding part 
of the Manual-East optional area to the mandatory zone for 
a still-under-capacity Manual. However, the change in­

8 Similar opposition to the announced 1962 plan to build a junior 
high school at the Barrett site, in fact, led to the appointment of 
the first of two committees to investigate “the present status of 
educational opportunity in the Denver Public Schools, with atten­
tion to racial and ethnic factors. . . . ” That committee, reporting 
in 1964, “criticized the Board’s establishing of school boundaries 
so as to perpetuate the existing de facto segregation ‘and its re­
sultant inequality in the educational opportunity offered’.” 303 P. 
Supp. at 283, Appendix at p. 6a. The second group made its report 
in 1967 and “noticed the intensified segregation in the northeast 
schools and recommended that there be no more schools constructed 
in northwest Denver.” Ibid.



8

corporated only the established black residential portion 
of the optional area (H. 291, 296) although enlarging the 
Manual High zone still more would have better utilized 
both schools’ capacity, made better use of public trans­
portation lines (which ran directly from the remaining 
optional area to Manual) and also resulted in desegregation 
(H. 281-86). A change similar in operation and effect was 
made the same year between the two feeder junior high 
schools for Manual and East: Cole (black)8 9 and Smiley 
(white), respectively. Both proposals were resisted before 
the school board by representatives of the black community 
because they would segregate.10 Similarly, in 1962 and 
1964, boundary changes for Stedman Elementary School 
(where Negro enrollment was increasing) were made, pur­
portedly to relieve overcrowding. But only predominantly 
white areas of the Stedman zone were shifted to white 
schools; alternative rezoning plans which would both have 
avoided concentration of black students at Stedman as well 
as have relieved its capacity problem were rejected (303 
F. Supp. at 285, Appendix at p. 11a). Finally, Boulevard 
Elementary School was turned into a school enrolling a 
majority of Spanish-surnamed students in 1961 when, in

8 As in the case of Manual, Cole enrolled almost all of the school
system’s black junior high school students at this time.

10 The school district had previously constructed an addition to 
relieve overcrowding at Smiley in 1952 rather than adjust its 
boundary with Cole, which was then underutilized (PX 215, 215A). 
The same thing occurred in 1958 when Smiley was again enlarged 
(PX 215).

Overcrowding at East High School was relieved by the construc­
tion of a new George Washington High School in 1960, while 
Manual remained underutilized (PX 210). The new George Wash­
ington High attendance boundaries took only whites from East 
(PH 547-49; PX 20, Map No. 7). In 1964 the adjustment in the 
East-George Washington boundary, supposedly made to create a 
more heterogeneous school population at George Washington (PH 
547-49), took 200 white students and only 9 black students from 
East (PX 585-86).



9

response to a decrease in capacity caused by the demolition 
of an older section of the facility, a white portion of its 
attendance area was transferred to the adjacent and over­
whelmingly white Brown Elementary School (H. 115-26).

There were also boundary alterations apparently un­
related to any pressing capacity problems. For example, in 
1962 all optional zones surrounding Morey Junior High 
School were eliminated. White portions of the former op­
tional zones between Morey and Byers, to its south,11 were 
added to the Byers zone; black areas between Cole12 or 
Baker13 (to the north) and Morey were added to Morey, 
resulting in the immediate transformation of the school 
enrollment from majority- to minority-white (313 F. Supp. 
at 71-72, Appendix at pp. 63a-64a). Similarly, Anglo areas 
were transferred from Hallett to Phillips in 1962 and 1964; 
in the latter year, this was accompanied by the transfer of 
a black area from Stedman to Hallett (PX 75, 76). Again, 
the effect was to accelerate and emphasize the rapid trans­
formation of Hallett into a racially isolated minority school.

When Denver first utilized mobile classrooms in 1964, 
28 of 29 such portable buildings were located in the increas­
ingly black Park Hill area,14 * where they effectively con­
tained an expanding black population (303 F. Supp. at 285; 
Appendix at p. 11a). At the same time, overcrowding in 
other (but predominantly white) schools in Denver was 
met by school board transportation of students—sometimes

11 At this time Byers was an all-white junior high school while 
Morey, prior to the changes discussed in text, was predominantly 
white.

12 See n. 9 supra.
13 Baker was predominantly white but with a significant minority- 

race enrollment.
14 The remaining portable was placed at a school attended by a

majority of Spanish-surnamed students (PX 101).



10

across the width of the school district—to other (white) 
schools where capacity -was available (P.H. 540-41)16 despite 
somewhat closer available capacity at (predominantly 
minority) schools in the central or core city (P.H. 544). 
The school district’s excuse for busing* whites to only white 
schools was its desire to maintain low pupil-teacher ratios 
at minority schools in order to offer compensatory pro­
grams; its explanation for the creation of extra capacity 
for black students in black Park Hill schools by the addi­
tion of portables was that black parents surveyed at the 
time preferred it to one-way busing back to the core city 
area (H. 479-81).

Finally, when in 1964 the district eliminated all optional 
attendance zones (in accordance with the recommendation 
of the committee investigating educational opportunity for 
minority students, see n.8 supra, which found that optional 
areas intensified segregation), it substituted a “limited open 
enrollment” policy. The only limit of this policy was the 
availability of space in the various schools; it was the 
equivalent of free choice and under it Denver permitted 
wholesale minority-to-majority transfers until it was finally 
repealed in 1969! (H. 126-32; PX 99, 100).

The result was a school system marked by intense racial 
and ethnic separation.16 The proof also demonstrated to the 
satisfaction of the district court that the Denver public 
schools were also systematically disadvantaging their black

16 Much of the overcrowding was due to annexations of additional 
areas contiguous to existing schools. But, even after new schools 
were constructed in the annexed territory, the space in the former 
receiving schools was not used to accommodate—and integrate— 
the overcrowding in the Park Hill schools. Thus, whereas prior 
to the construction of the Traylor Elementary School, some 400 
white students were bused across the district to the University 
Park School, after Traylor w*as completed, only 36 Park Hill stu­
dents were transferred to University Park (PH. 543).

16 Cf. p. 4 supra.



11

and Spanish-surnamed students educationally. Most of 
these students attended all- or predominantly minority 
schools which lacked various tangible measures of educa­
tional quality. The facilities themselves were generally 
among the oldest and smallest in the district, the faculty 
generally had less teaching experience in the system than 
faculties at white schools, and the faculty turnover rates 
at these schools were highest (303 F. Supp. at 284-85; 313 
F. Supp. at 79-80; Appendix at pp. 9a-10a; 80a-81a). At the 
same time, various objective measures of educational attain­
ment indicated that the students in these schools were 
suffering: they had higher dropout rates and consistently 
(and drastically) lower mean achievement test scores than 
other schools. Finally, expert testimony offered by plain­
tiffs explained these results not just in terms of the tangible 
differences among the schools, but the intangible effects of 
school board policies—-such as the concentration of the less- 
experienced minority-race teachers in these schools—as 
well: low pupil and teacher morale, feelings of isolation 
and inferiority affecting motivation, etc.

T he R ulings Below

The district court ruled, 303 F. Supp. 279, 289, Appendix, 
pp. la, 20a, that the respondents had acted unconstitu­
tionally in cancelling their prior desegregation plan, and 
that schools in the northeast Denver (Park Hill) area which 
would have been affected by the plan were segregated be­
cause of the school district’s “segregation policy.” The 
court, therefore, preliminarily enjoined respondents to im­
plement the terms of their original plan, as originally 
scheduled, commencing with the 1969-70 school year.17’18

17 However, the district court stated explicitly that the school 
board could still adopt and implement another plan “embodying 
the underlying principles” of the withdrawn plan, if it so desired.

18 See n. 4 supra.



12

These findings were carried forward in the district court’s 
opinion on permanent relief, 313 F. Supp. 61, Appendix, 
p. 44a. However, as to other Denver schools, the district 
court ruled that there had been no sufficient showing of a 
segregation policy, although the court admitted that “[a]s 
to these schools, the result is about the same as it would 
have been had the administration pursued discriminatory 
policies. . . . ” 313 F. Supp. at 73; Appendix at pp. 66a-67a 
(emphasis supplied). The same practices regarding school 
construction, boundary changes, additions to existing 
schools, minority teacher assignments, optional areas and 
open enrollment which led the court to conclude that a 
“segregation policy” was enforced in the Park Hill area 
were nevertheless viewed by the district court, in their ap­
plication to other Denver schools, as isolated individual 
occurrences not demonstrative of a pattern nor indicative 
of any policy.

The Court of Appeals agreed with the district court both 
as to segregation policy in Park Hill and as to the lack 
thereof affecting other Denver schools. 445 F.2d at 990- 
1002, 1005-07; Appendix, pp. 122a-139a, 147a-150a.

The district court also found that schools which had in 
excess of 70% black or 70% Spanish-surnamed student 
enrollments19 were failing to offer their students educational 
opportunities equal to those afforded white students in 
other Denver public schools. 313 F. Supp. at 83, Appendix 
at p. 89a. Both because the court concluded that the segre­
gated character of the school was the basic (but not exclu­
sive) cause of this unequal offering, 313 F. Supp. at 81, 
Appendix at pp. 86a-87a, and also because the court found 
(after a further hearing on the question of remedy alone) 
that desegregation was an essential element of any adequate

19 Some in the Park Hill area and some not.



13

remedy for these conditions, 313 F. Supp. at 96-97, Appen­
dix at p. 112a, the district court enjoined respondents to 
desegregate and otherwise equalize the educational offering 
at these schools.

The Court of Appeals apparently expressed no disagree­
ment with the district court’s findings, but balked at approv­
ing its order because to do so would, it said, amount to 
requiring desegregation of schools which the district court 
found had not been segregated by official policy. This, said 
the Court of Appeals, would require that it overrule Doivns 
v. Board of Educ. of Kansas City 336 F.2d 988 (10th Cir. 
1964), cert, denied, 380 U.S. 914 (1965), and it declined to 
do so.20

20 The Court of Appeals accepted the lower court’s finding that 
leaving the schools segregated would mean continued lack of edu­
cational opportunities for their students, as well as the finding that 
to achieve equal opportunities would require desegregation as 
well as compensatory programs (both of which the district court 
ordered). But it then held that since desegregation alone would 
not suffice, it should not be required at all. (445 F.2d at 1004, 
Appendix at p. 144a).



14

REASONS FOR GRANTING THE WRIT

I.
Certiorari Should Be Granted to Resolve Conflicts in 

Principle Among the Lower Courts.

The issue in this case is not de facto versus de jure seg- 
J regationv1 Whatever the term “de facto” may mean, this 

case involves a school district in which segregation has 
been brought about by regular, systematic and deliberate 

__choice of the school authorities.

This is the first case of this sort before this Court from 
an area where officially required segregation was not pre­
viously authorized by statute. Gf. Gomperts v. Chase, No. 
A-245 (September 10, 1971) (Mr. Justice Douglas, Circuit 
Justice). But the lower courts have had a significant amount 
of litigation involving segregation imposed by government 
—but not by State law. E.g., Taylor v. Board of Educ. of 
New Rochelle, 191 F. Supp. 181 (S.D.N.Y.), appeal dis­
missed, 288 F .2d 600 (2d Cir.), 195 F. Supp. 231 (S.D.N.Y.), 
aff’d 294 F.2d 36 (2d Cir.), cert, denied, 368 U.S. 940 (1961); 
Clemons v. Board of Educ. of Hillsboro, 288 F.2d 853 (6th 
Cir.), cert, denied, 350 U.S. 1006 (1956); Spangler v. Pasa­
dena City Bd. of Educ., 311 F. Supp. 501 (C.D. Cal. 1970); 
Davis v. School Dist. of Pontiac, 309 F. Supp. 734 (E.D. 
Mich. 1970), aff’d 443 F.2d 573 (6th Cir. 1971); Bradley v. 
Millihen, 433 F.2d 897 (6th Cir. 1970), 438 F.2d 945 (6th 
Cir. 1971), Civ. No. 35257 (E.D. Mich., September 27,1971); 
Johnson v. San Francisco Unified School Dist., Civ. No. 
C-70-1331 SAW (N.D. Cal., July 9, 1971), stay denied sub
nom. Guey Heung Lee v. Johnson,----- U.S.------No. A-203
(August 25, 1971) (Mr. Justice Douglas, Circuit Justice); *

81 In Swann, this Court referred to “so-called ‘de facto segrega­
tion.’ ” 402 U.S. at 17.



15

Soria v. Oxnard School Dist., 328 F. Supp. 155 (C.D, Cal. 
1971); Oliver v. Kalamazoo Bd. of Educ., No. K88-71 (W.D. 
Mich., August 19, 1971) (oral opinion), aff’d, No. 71-1700 
(6th Cir., August 30, 1971); cf. United States v. Board of 
School Comm’rs of Indianapolis, Civ. No. IP-68-C-225 
(S.D. Ind., August 18, 1971).

Such cases are, of course, different from the so-called 
“de facto” suits. See Bell v. School of Gary, 324 F.2d 209 
(7th Cir. 1963), cert, denied, 377 U.S. 924 (1964); Deal v. 
Cincinnati Bd. of Educ., 369 F.2d 55 (6th Cir. 1966), cert, 
denied, 389 U.S. 847 (1967); cf. Downs v. Board of Educ. 
of Kansas City, 336 F.2d 988 (10th Cir. 1964), cert, denied, 
380 U.S. 914 (1965).22

The cases in which the lower courts have determined 
that a school district has maintained a policy of segrega­
tion should be governed by the same rules, regardless of 
geography or the source of the official segregation, as cases 
where the initial source was State law. But there is a 
division among the lower courts; and this is reflected in

22 These suits involved a variety of different claims—including, 
in some of them, a claim not raised here and expressly reserved in 
Swann (402 U.S. at 23) : “whether a showing that school segrega­
tion is a consequence of other types of state action, without any 
discriminatory action by the school authorities, is a constitutional 
violation requiring remedial action by a school desegregation de­
cree” (emphasis supplied). The reference in text is to that claim, 
rejected by the Courts of Appeals, and not to the factual claims— 
also rejected on the records in those cases—that a segregation pol­
icy was enforced by the school board.

We submit parenthetically that Bell and Downs, which involved 
the disestablishment of relatively recent prior state-imposed dual 
school structures, would probably have been decided differently in 
light of Green v. County School Bd. of New Kent County, 391 U.S. 
430 (1968) and Swann. Compare Bell v. School City of Gary, 324 
F.2d 209 (7th Cir. 1963) with United States v. Board of School 
Comm’rs of Indianapolis, Civ. No. IP-68-C-225 (S.D. Ind., August 
18, 1971); compare Downs v. Board of Educ. of Kansas City, 336 
F.2d 988 (10th Cir. 1964) with United States v. Board of Educ., 
Tulsa, 429 F.2d 1253 (10th Cir. 1970).



16

the opinions of the courts below in this case, applying 
different rules to different geographical parts of the same 
school system. Whereas this Court and the lower courts 
require desegregation throughout a southern school district 
where segregation was imposed by law (even though it 
persists only in certain portions of that district), the lower 
courts here (and in some other places) have confined de­
segregation to discrete areas where particular segregating 
deeds have been uncovered and identified.23

Consideration of the Park Hill area schools separately 
from the rest of the Denver school system resulted from 
the lower courts’ insistence that petitioners demonstrate a 
segregating act at every school in order to justify relief.

23 A similar position has been taken by some lower courts in 
interpreting Swann’s directive that “ [t]he courtfs] should scruti­
nize such [remaining black] schools, and the burden upon the 
school authorities will be to satisfy the court that their racial 
composition is not the result of present or past discriminatory 
action on their part.” 402 U.S. at 26. See, e.g., Mapp v. Board of 
Educ. of Chattanooga, Civ. No. 3564 (E.D. Tenn., July 26, 1971)'- 
Calhoun v. Cook, Civ. No. 6298 (N.D. Ga., July 28, 1971).’But we 
do not understand Svoann to require a complex sociohistorical 
analysis of residential patterns by district courts in order to deter­
mine the relative impact of segregated schools’ influence upon seg­
regated housing patterns, and segregated housing patterns’ influ­
ence upon school segregation. If that were indeed necessary, there 
would be no need of the presumption against one-race schools’which 
Swann announces—and announces precisely for the reason that the 
school-related and other influences upon housing patterns in a 
school district cannot be neatly separated and evaluated as inde­
pendent causal factors. The inquiry is whether the effects and 
vestiges of segregation were ever disestablished with the thorough­
ness required by the remedial principles announced in Swann; if 
not, then all remaining vestiges must be eliminated. We submit 
that the District Court stated the correct rules in Mannings:

There is no evidence of any substantiality in the record sup­
porting the position that segregation in Hillsborough County 
is attributable in any measurable degree to voluntary housing 
patterns or other factors unaffected by school board activity. 

pAs indicated earlier, the record makes plain that prior to and 
since 1954 certain schools in Hillsborough County have been



17

This narrow focus facilitated compartmentalized considera­
tion of different areas of the district.24 But the court’s 
concern should have been school authorities’ actions any­
where in the district creating or maintaining racial and 
ethnic segregation. As the Court of Appeals for the Sixth 
Circuit said—correctly, we submit-—in reviewing a similar
case, Davis v. School Dist. of Pontiac, 443 F.2d 573, ___
(6th Cir. 1971), a fg  309 F. Supp. 734 (E.D. Mich. 1970):

We observe, as did the District Court, that school loca­
tion and attendance boundary line decisions, for the 
past 15 years, more often than not tended to perpetuate 
segregation. Attempted justification of those decisions 
in terms of proximity of school buildings, their ca­

set aside for black students and others for white students^ 
With exceptions these schools remain racially identifiable. Over 
the years defendants have submitted numerous plans for de­
segregation, not one of which has altered the naked fact that 
most blacks attend schools which are inordinately black where­
as most whites attend schools in which there are no blacks or 
only miniscule numbers of blacks. The Court has been unable 
to locate a single instance in the record where defendants took 
positive steps to end segregation at a black school and there­
after segregation returned fortuitously. Indeed, no serious at­
tempt has ever been made to eliminate the many black schools. 
Based on experience, the Court concludes that what resegre­
gation there has been is a consequence of the continued exist­
ence of schools identifiable as white or black.

Mannings v. Board of Public Instruction of Hillsborough County, 
Civ. No. 3554-T (M.D. Fla., May 11, 1971) (slip opinion at p. 39).

Where a policy of segregation is established for which the con­
stitutionally required corrective action has not been taken, the pre­
sumption against one-race schools is not rebutted by a claim that, 
independent of the discriminatory school board action, other fac­
tors might have produced the segregated situation.

24 Just as in Davis v. Board of School Comm’rs of Mobile, 402 
U.S. 33 (1971), this Court indicated that the scope of the inquiry 
into remedy should be system-wide, so we submit should the scope 
of the inquiry into the matter of constitutional violation be system- 
wide.



18

pacity, and safety of access routes requires inconsis­
tent applications of these criteria. Although, as the 
District Court stated, each decision considered alone 
might not compel the conclusion that the Board of 
Education intended to foster segregation, taken to­
gether, they support the conclusion that a purposeful 
pattern of racial discrimination has existed in the Pon­
tiac school system for at least 15 years.

Accord, United States v. School Dist. No. 151, 286 F. Supp. 
786 (N.D. 111. 1967), aff’d 404 F.2d 1125 (7th Cir. 1968), on 
remand, 301 F. Supp. 201 (N.D. 111. 1969), aff’d 432 F.2d 
1147 (7th Cir. 1970), cert, denied, 402 U.S. 943 (1971); 
Taylor v. Board of Educ. of New Rochelle, supra.

In finding actionable segregation in the Park Hill schools, 
the courts below applied the rule declared in Brewer v. 
School Bd. of Norfolk, Virginia, 397 F.2d 37 (4th Cir. 
1968), enforced in, for example, Davis v. School Dist. of 
Pontiac, Michigan, 309 F. Supp. 734 (E.D. Mich. 1970),26 
and accepted by this Court in Swann, 402 U.S. at 7, 20-21, 
that school officials may not through school construction 
and the drawing of attendance boundaries which follow 
racial residential patterns, create segregated schools. E r­
roneously, however, the lower courts did not apply that 
rule when they considered other Denver schools, but ex­
cused segregatory acts on the grounds that they were “re­
mote in time” and that intervening population shifts, not 
such acts, resulted in the present racially or ethnically 
identifiable status of affected schools. 313 F. Supp. at 75, 
445 F.2d at 1006, Appendix at pp. 71a-72a, 148a-149a. Cf. 
Calhoun v. Cook, supra. While population shifts are of 
course a factor, so also are the school authorities’ dis- 25

25 See, e.g., United States v. Board of Educ., Tulsa, 429 F.2d 
1253 (10th Cir. 1970).



19

criminatory practices, see Indianapolis, suprctr—and no 
court is equipped to make (nor are litigants equipped to 
present a sufficient basis for) the fine sociological judgment 
as to the relative influence of the two factors upon the 
present racial complexion of a school.26

During the 1950-1960 period, the school district was 
locating and constructing new schools on the expanding 
periphery of the district, away from black population cen­
ters, and thus providing easy refuge for white students 
who desired to avoid attendance at the minority schools 
the district was helping to create. When both aspects of 
the policy are considered, we think it hard to imagine that 
the school district’s segregatory acts did not play a role, 
perhaps the major role, in creating the existing segregated 
schools in Denver.

The courts below also excused segregation in the Denver 
core city area because they held that while the effect was 
clear, petitioners had failed to prove intent. 313 F. Supp.

26 As the district court in the Detroit (Bradley v. Milliken) case 
recently put i t :

We recognize that causation in the case before us is both 
several and comparative. The principal causes undeniably 
have been population movement and housing patterns, but 
state and local governmental actions, including school board 
actions, have played a substantial role in promoting segre­
gation. . . .
6. Pupil racial segregation in the Detroit Public School System 
and the residential racial segregation resulting primarily from 
public and private racial discrimination are interdependent 
phenomena. The affirmative obligation of the defendant Board 
has been and is to adopt and implement pupil assignment 
practices and policies that compensate for and avoid incorpo­
ration into the school system the effects of residential racial 
segregation. The Board’s building upon housing segregation 
violates the Fourteenth Amendment. See, Davis v. Sch. Dist. 
of Pontiac, supra, and authorities there noted.

Bradley v. Milliken, Civ. No. 35257 (E.D. Mich., September 27, 
1971) (typewritten opinion at pp. 22, 24).



20

at 75, Appendix at p. 71a, 445 F.2d at 1006, Appendix 
at p. 149a. See Petition for Writ of Certiorari, Wright v. 
Council of the City of Emporia, O.T. 1970, No. 70-188. This 
is an obvious failure to apply the traditionally stringent 
equal protection doctrine that the state must justify, by 
showing a compelling interest,27 conditions amount to racial 
classifications, regardless of intent. Loving v. Virginia, 388 
U.S. 1 (1967); Kennedy Park Homes Ass’n, Inc. v. City of 
Lackawanna, 436 F.2d 108 (2d Cir. 1970) (per Mr. Justice 
Clark), cert, denied, 401 U.S. 1010 (1971); Hawkins v. 
Town of Shaw, 437 F.2d 1286 (5th Cir. 1971) (rehearing 
en banc granted)-, Jackson v. Godwin, 400 F.2d 529 (5th 
Cir. 1969); Lee v. Macon County Bd. of Educ., No. 30154 
(5th Cir., June 29, 1971); Stout v. Jefferson County Bd. of 
Educ., No. 29886 and 30387 (5th Cir., July 16, 1971). No 
specific intent was required by the courts below in finding 
that respondents had caused the Park Hill area segrega­
tion.

Finally, we submit, and in clear contradiction to estab­
lished law, the Court of Appeals chose to ignore (despite 
F.E. Civ. P., Rule 52) the deliberate pattern and policy 
of the school district, continuing until at least 1964, of as­
signing minority race teachers to schools in which minority 
students were concentrated because it gave minority stu­
dents role models to emulate. 445 F.2d at 1007, Appendix 
at p. 150a. Other courts have long rejected any such pro­
posed educational justification for unconstitutional segre­
gation. E.g., Dove v. Parham, 282 F.2d 256, 258 (8th Cir. 
1960). And it is clear that such faculty assignment prac­
tices are violative of the Fourteenth Amendment. Swann, 
supra, 402 U.S. at 18; Bradley v. School Bd. of Richmond,

27 We doubt that any such interest exists to justify segregation 
in the public schools. Brown v. Board of Educ., 347 U.S. 483 
(1954). Compare 445 F.2d at 1006, Appendix at p. 148.



21

382 U.S. 103 (1965); Rogers v. Paul, 382 U.S. 198 (1965) ; 
Green v. County School Bd., 391 U.S. 430, 435 (1968). In­
deed, a school district’s faculty assignment policies are a 
reliable indication of its overall policy goals since there can 
be no independent justification (such as that claimed for 
“neighborhood schools”) for a pattern of racial assign­
ments, all teachers being subject to assignment by the dis­
trict at its discretion. See, e.g., United States v. School 
Dist. No. 151, supra; Davis v. School Dist. of Pontiac, supra; 
Meredith v. Fair, 305 F.2d 360 (5th Cir.), cert, denied, 371 
U.S. 828 (1962).

The simultaneous application of contradictory standards 
by the courts below leads to anomalous results. Thus, for 
example, both Manual and Barrett were built in black 
neighborhoods at the extreme eastern edges of their manda­
tory attendance zones, which zones were drawn so as to 
exclude white residential areas. Barrett Elementary School 
opened all black; Manual High (a larger facility) enrolled 
nearly all the city’s black high school students and was the 
only minority-white school in Denver when it opened. Yet 
the tests of intent, remoteness and intervening cause, and 
popular consensus, were deemed relevant only to Manual 
but not to Barrett.

To desegregate a few schools but leave others as they 
are, against the background of segregation brought about 
by the school authorities, will do nothing to assuage the 
difficulty. Instead, this partial solution, like the partial 
solutions of free choice and limited rezoning, will result 
only in further impaction of the existing segregation. 
Mannings v. Board of Public Instruction of Hillsborough 
County, supra, n. 23.28

28 See, e.g., Racial Isolation in the Public Schools, A Report of 
the U. S. Commission on Civil Rights (1967) ; Report of the Na­
tional Advisory Committee on Civil Disorders (1968) ; Coleman, 
Equality of Educational Opportunity (1966).



22

The courts below limited the remedy by applying to the 
same lawsuit conflicting rulings of other courts which have 
passed upon similar matters. Thus this case is affected 
more than any other by those conflicts, which should be 
resolved by this Court in order to establish a uniform 
approach to school desegregation, North and South.

II.
Other Inequalities in the System, Coupled with Racial 

Segregation, Provide Further Reason for Requiring the 
Only Workable Remedy: Racial Integration.

Moreover, here the harm of segregation is compounded 
by educational inequality of other sorts. The district court 
found that the educational opportunities available to mi­
nority race students relegated to predominantly minority 
schools in Denver were far below the general level of edu­
cation in the district. The court applied traditional equal 
protection analysis and found this practice created a racial 
classification of students in Denver for which no compel­
ling justification could be demonstrated. Therefore, the 
court required both desegregation and provision of special 
programs at these schools in order to equalize educational 
opportunity for their students. The district court took this 
step not on the basis of any untested assumptions but af­
ter careful consideration of the testimony offered by the 
parties at a hearing directed toward establishing the ap­
propriate remedy for the constitutional deprivation.

The Court of Appeals reversed this part of the district 
court’s order. We think the Court of Appeals misconstrued 
the basis of the district court’s ruling, but, moreover, its 
own opinion drains the concept of equal educational oppor­
tunity (recognized by this Court in Brown) of its meaning 
by declaring segregation-related inequalities irremediable



23

in the federal courts unless that segregation is proved to 
have been caused entirely by school authorities.

We have argued above that both the Court of Appeals 
and the district court applied erroneous legal principles in 
ascertaining the existence and extent of state-imposed seg­
regation in the Denver public schools, and what remedy 
must follow. If we are correct, then the schools which were 
ordered desegregated by the district court because they 
were failing to offer an equal educational opportunity must 
be desegregated anyway. We believe, however, that irre­
spective of the Court’s conclusion on that subject, the dis­
trict court’s order—that tangible inequalities should be 
remedied by desegregation — was otherwise proper and 
should have been affirmed.

The district court’s finding of unequal educational oppor­
tunity rested upon petitioner’s demonstration that (a) 
there were certain tangible, measurable differences in the 
school system’s allocation of resources to predominantly 
minority schools, e.g., teacher experience differentials in 
favor of white schools and generally older and smaller 
facilities at minority schools; (b) there were as well tangi­
ble, measurable differences in educational outcome measures 
between the same two groups of schools, e.g., character­
istically lower achievement test scores and higher pupil 
dropout rates at minority schools and a progressive re­
gression in the academic progress of the minority child 
from lower to higher grade levels in the minority schools; 
and (c) the weight of expert opinion was that measured 
differences in educational outcomes of the sort found in 
Denver were not the result of differences in innate ability 
but of the composition of the student body at predomi­
nantly minority schools. Petitioners’ expert witnesses29

29 Dr. Dan Dodson, Dr. Neil Sullivan, Dr. James Coleman and 
Dr. Robert O’Reilly.



24

testified at length about the intangible30 educational dis­
advantages which result from racially concentrated minor­
ity group schools. In sum, petitioners’ expert witnesses 
testified that the observed inequalities were due to factors 
within the control of the. school system, including the com­
position of the student bodies at various schools.

The district court concluded that no compelling justi­
fication for the systematic deprivation of educational 
opportunity31 to minority race students32 had been

30 The testimony was undisputed that segregation produces feel­
ings of isolation, inferiority and powerlessness in the minority chil­
dren; produces low academic expectancy among teachers which 
then becomes a self-fulfilling prophecy of low achievement; pro­
duces low morale among both pupils and teachers, and a high rate 
of teacher turnover as most teachers sought to escape these schools 
at the first opportunity.

81 Petitioners have never claimed nor did the district court’s deci­
sion in any way rest upon some notion that educational opportunity 
was solely related to, or demonstrated by, an equivalent perform­
ance by every student. Obviously students will have, on an indi­
vidual basis, different aptitudes and will perform, ideally, to the 
full extent of their varying capabilities. What is significant about 
the tangible measures of output here, such as achievement test 
scores, is two things. First, they establish a consistent and system­
atic differential between white schools and minority schools of such 
magnitude as to vitiate any suggestions that the observed pattern 
is merely the result of the interplay of different individual capaci­
ties. Cf. Stell v. Savannah-Chatham Board of Education, 318 F.2d 
425 (5th Cir. 1963), 333 F.2d 55 (5th Cir. 1964). Second, they 
confirm the testimony of petitioners’ expert witnesses that such 
segregated schools characteristically produce educationally unde­
sirable effects upon the children and the teachers and can be ex­
pected to adversely affect the educational opportunity afforded the 
students.

32 The “70%” limitation of the district court as well as his re­
fusal to require relief to schools which had less than 30% white 
students but also less than 70% black or 70% Spanish-surnamed 
students, were of the court’s own fashioning. Although petitioners 
raised the combined minority-race school issue on appeal to the 
Tenth Circuit, that court did not pass upon it and a remand for 
that purpose upon disposition of this cause upon this Petition 
would be appropriate.



25

shown,33 and the court, therefore, ordered corrective mea­
sures—including desegregation (which petitioners’ expert 
witnesses had testified was essential if the major cause 
of the inequality—segregated schools—was to he elim­
inated).

Thus, the district court’s order gave substance to the 
constitutional guarantee of equal educational opportunity. 
Cf. McLaurin v. Oklahoma State Regents, 339 U.S. 637 
(1950); Sweatt v. Painter, 339 U.S. 629 (1950); Sipuel v. 
Board of Regents, 332 U.S. 631 (1948); Missouri ex rel. 
Gaines v. Canada, 305 U.S. 337 (1938). The Court of Ap­
peals, however, imposed a purely extraneous limitation 
upon this remedy for a constitutional deprivation. To some 
extent, the Court of Appeals’ ruling is based upon a mis­
construction of the district court’s ruling but, even accept­
ing its reading of the lower court opinions, the Court of 
Appeals has plainly held that there is no remedy for the 
unconstitutional deprivation of educational opportunity to 
minority race students if execution of that remedy would 
conflict with a school system’s adherence to the “neighbor­
hood school” assignment policy.

On either ground, the decision is wrong and ought to be 
reviewed by this Court because of the national implica­
tions of a ruling that the Constitution provides no remedy 
for the racially unequal provision of education by the 
state.34

33 Cf. Loving v. Virginia, 388 U.S. 1 (1967) ; McLaughlin v. 
Florida, 379 U.S. 184 (1963); Hobson v. Hansen, 269 F. Supp. 401 
(D.D.C. 1967), aff’d sub nom. Smuck v. Hobson, 408 F.2d 175
(D.C. Cir. 1969). See also Comperts v. Chase,----- U .S .-------, No.
A-245 (Sept. 10, 1971) (Mr. Justice Douglas, Circuit Justice).

34 But see Serrano v. Priest, No. L.A. 29820 (Supreme Ct. Cal., 
August 30, 1971) (en banc).



26

CONCLUSION

W h er efo r e , p e t i t io n e r s  r e s p e c tfu l ly  p r a y  t h a t  a  w r i t  o f 
c e r t io r a r i  be  g r a n te d .

Respectfully submitted,

J ack  Green berg  
J am es M. N abrit , III 
N orman  J. O h a c h k in  
C h a rles  S t e p h e n  R alston  

10 Columbus Circle 
New York, New York 10019

G ordon G. Gr e in e r  
R obert T. C onnery

500 Equitable Building 
Denver, Colorado 80202

Attorneys for Petitioners



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