Brown v. Board of Education Brief for Plaintiffs

    In the

j$>uprrm? Court of %  Imtrii Stairs
O ctober T eem , 1970

Nos. 749, 891

T h e  B oard oe P ublic I nstruction  of 

B roward C o u nty , F lorida, et al.,
Petitioners,

v.

F rederick A l le n , et al.

B lan ch e  E ly  P arent  T eachers A ssociation, et al.,

Petitioners,
v.

T h e  B oard of P ublic I nstruction  of 

B roward C o u nty , F lorida, et al.

on  p e tit io n s  fo e  w rits  of certiorari to t h e  u n it e d  states
COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION TO CERTIORARI

J ack  Greenberg 
J ames M. N abrit, III 
N orman J . C h a c h k in  
D rew  S. D ays, III

10' Columbus Circle
New York, New York 10019

W . G eorge A llen
303 S.E. 17th Street
Fort Lauderdale, Florida 33316

Attorneys for Respondents Allen, et al.



TABLE OF CONTENTS

PAGE

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

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

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

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

Statement ....... ....................................................................... 3

A r g u m e n t .................................................................    9

Conclusion  .......................................      14

T able of A uthorities

Cases:

Alexander v. Holmes County Board of Education, 396 
TJ.S. 19 (1969) ..................................................................  11

Bolling v. Sharpe, 347 U.S. 497 (1954) .........   10

Brown v. Board of Education, 347 U.S. 483 (1954).....2,10

Carter v. West Feliciana Parish School Board, 326 
U.S. 290 (1970) ..............................................................  11

Davis v. Board of School Commissioners of Mobile 
County, No. 436, O.T. 1970 .............    12

Green v. County School Board, 391 U.S. 430 (1968)....2,10



11

PAGE

Haney v. County Board of Education of Sevier County,
429 F.2d 364 (4th Cir., 1970) ........ ......................... . 13

McGowan v. Maryland, 366 U.S. 420 (1961) ................... 10
McLaughlin v. Florida, 379 U.S. 184 (1964) ................... 10

Swann v. Charlotte-Meeklenburg Board of Education,
Nos. 281 and 349, O.T. 1970 ..........................................  12

Statutes:

28 U.S.C. 1254(1) 2



I n th e

mprpmp ©Hurt of tlu> Muttpfr States
O ctober T erm , 1970 

Nos. 749, 891

T he  B oard oe P ublic I nstruction  of 

B roward C o u n ty , F lorida, et al.,
Petitioners,

v.

F rederick A lle n , et al.

B lan ch e  E l y  P arent  T eachers A ssociation, et al.,

Petitioners,
v .

T h e  B oard of P ublic I nstruction  of 

B roward C o u nty , F lorida, et al.

ON petitions for w rits  of certiorari to th e  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  32a- 
46a) is now reported at 432 F.2d 369 (5th Cir. 1970). The 
decision of the district court is unreported.



2

Jurisdiction

The decision of the Court of Appeals was entered on 
August 18, 1970. The petition for certiorari in No. 749 was 
filed on September 23, 1970. The petition for certiorari in 
No. 891 was filed on October 23, 1970. The jurisdiction of 
this Court rests on 28 U.S.C. 1254(1).

Questions Presented

No. 749

Whether the court of appeals was correct in ruling that 
a desegregation plan which left thirteen elementary schools 
all-black or virtually all-black, enrolling 68% of all-black 
elementary students in the system, failed to meet the deseg­
regation requirements of Brown v. Board of Education, 347 
U.S. 483 (1954) and Green v. County School Board, 391 U.S. 
430 (1968) where the court found that it was feasible to 
desegregate totally all the virtually all-black schools by 
pairing and clustering those schools with nearby predomi­
nantly white schools.

No. 891

Whether the courts below were correct in approving the 
closing of a formerly all-black high school by the school 
board where there was ample evidence of the physical in­
feriority of the facility and no alternatives were presented 
to the trial court by which the school could be desegregated.

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 5 of the petition in No. 749 
and at pages 3-4 of the petition in No. 891.



3

Statement

No. 749

This school desegregation case was commenced on Janu­
ary 9, 1970 seeking injunctive relief against the continued 
operation of a dual, racially segregated school system in 
Broward County, Florida, a system which includes the 
city of Fort Lauderdale. At the time suit was brought 
there were seventeen all-black schools operating in Brow­
ard County (13 elementaries, 2 middle schools, and 2 high 
schools). Approximately 90.4% of the black elementary 
school pupils attended schools which were at least 90% 
black; 56.9% of the middle school black students attended 
schools over 99% black; and 65.5 percent of the senior high 
school black students attended all-black schools.

After hearings in the matter, the district court found 
that the board (petitioners here) was operating a dual 
school system in violation of the Constitution and ordered 
it to prepare a desegregation plan that would establish a 
unitary school system in Broward County. The first plan 
submitted by the board contained provisions for desegre­
gating only the two all-black high schools. After a hear­
ing was held on that plan, the board was ordered to con­
sult with the Florida School Desegregation Consulting 
Center (H.E.W.), specifically with respect to desegregat­
ing the remaining all-black schools, and H.E.W, was re­
quested to file with the court its own proposals for deseg­
regation. The geographic zoning plan subsequently sub­
mitted by the board left ten elementary schools all-black 
or virtually all-black, enrolling 71% of the black elemen­
tary school population of Broward County. In contrast, 
the plan which H.E.W. submitted left no school all-black 
and reduced the percentage of black elementary students 
in predominantly black schools to 14%. This result was



4

accomplished by pairing' the all-black or virtually all-black 
elementary schools with nearly predominantly white schools. 
In recommending the pairing technique, the H.E.W. report 
stated:

The absence of any large concentration of black pop­
ulation areas in Broward County makes the effective 
desegregation of elementary schools a distinct possi­
bility. In the opinion of the survey team either the 
rezoning or pairing of elementary attendance areas can 
desegregate all of the remaining all-black elementary 
schools with a minimum of additional busing, most of 
which would involve distances of less than 4 miles.

Rezoning may be preferred by the Broward system to 
pairing, but rezoning as a technique is not always 
feasible. In the opinion of the survey team no educa­
tional disadvantage accrues to elementary pupils in 
paired schools nor are paired elementary schools any 
more difficult to administrate.

In its final order, the district court rejected the H.E.W. 
recommendation on pairing and ordered implemented a 
modified version of the geographic zoning proposed by the 
board. The result of the court-ordered plan was to leave 
four elementary schools 100% black, and nine others with 
black enrollments between 90% and 99%. Sixty-three per­
cent of the total black elementary enrollment would attend 
these 13 schools. In its order, the district court stated as 
follows with respect to other techniques for desegregating 
the remaining black elementaries:

The only alternatives to leaving these schools segre­
gated are (1) transport or “walk-in” students from non­
contiguous or distant areas; or (2) “pairing” an all- 
white school with an all-Black school, that is, by com­
bining the attendance areas of the “paired” schools and



5

sending all students in certain grades to one of the 
schools and all students in the other grades to the other 
school. In some insanees “ grouping” of three or more 
schools is resorted to, rather than “pairing” .

It is difficult to justify the removal of young students 
to distant areas for the sole purpose of integrating a 
school. “Pairing” or “ grouping” of schools also in­
volves the same elements of additional transportation 
or “walking in.” The same principles apply to attempts 
to integrate more blacks into predominantly White 
schools. The time, inconvenience, and expense involved, 
as well as the safety factor, are all relevant to the 
resolution of the problem. (Petition App. 16a).

On appeal of the lower court’s decision, the 5th Circuit 
reversed that part dealing with desegregation of elementary 
schools. On this matter the court below held:

Our examination of the record before us indicates 
that the pairing/clustering technique can be utilized to 
desegregate every one (Emphasis in the original) of 
the 13 all-black or virtually all-black elementary schools 
envisioned in the plan approved by the district court. 
This desegregation can be accomplished “without creat­
ing impractical attendance zones or inordinate trans­
portation problems.” (Petition App. 40a).

The court of appeals’ order directed the district court to 
implement specific pairing and clusterings of schools in two 
of the three attendance areas in Broward County. In the 
third area, the court suggested six alternative pairings 
and groupings from which the district court could select 
the one alternative it regarded as most feasible. (Petition 
App. 40a-43a). The district court was directed to deter­



6

mine the arrangement of grade structures in all the com­
bined schools1 and was permitted to order alterations and 
adjustments in its discretion to the extent that such changes 
would not diminish the degree of desegregation projected 
by the court of appeals’ decision. Concluding its order, the 
court of appeals indicated:

It is axiomatic, of course, that the school board and 
the district court are under a continuing duty to ap­
praise the school system in light of the actual condi­
tions and experience and, within limits we have just 
indicated, to make whatever changes are necessary, 
now and in the future, to assure the continued mainte­
nance of a unitary system. (Petition App. 44a).

Upon remand, after hearing arguments from both parties 
and receiving recommendations from the board, the district 
court on August 28, 1970, ordered implemented the pairing 
and clusterings in the two school attendance areas specif­
ically required by the court of appeals, selected the plan it 
regarded as most feasible for the third attendance area out 
of the six recommended by the appellate court, and desig­
nated how grades would be assigned among the paired and 
grouped schools. Subsequently, on September 4, 1970, the 
district court postponed until November 15, 1970 full im­
plementation of the court of appeals order requiring pair­
ing and clustering. Until that date, the board was per­
mitted to operate according to the desegregation plan 
originally ordered by the district court which had been 
reversed on appeal. Several petitions of the board to the 
Fifth Circuit for rehearing, rehearing en banc, a stay order

1 The court of appeals recommended that grades in the combined 
school not be “split” , i.e., assigning a particular grade to more than 
one school in the group, but allowed “splitting” where the degree of 
desegregation in any attendance zone was not diminished. (Petition
App. 43a).



7

and recall of the mandate were denied by the court of ap­
peals. However, on November 2, 1970, that court stayed 
the order of the district court of September 4, 1970 “until 
further orders of this court” and took the board’s most re­
cent supplemental petition under advisement. As a conse­
quence, the Broward County school system continues to 
operate in accordance with the original geographic zoning 
plan approved by the district court rather than with that 
involving pairings and clusterings required by the Fifth 
Circuit.

No. 891

The first hearing in the district court on the complaint 
seeking desegregation of the dual school system in Broward 
County was held in January 16, 1970. One month later, on 
February 16, 1970, the board (petitioners in No. 479, re­
spondents in No. 891) submitted a proposed plan of desegre­
gation to the district court which contained, among other 
provisions, a statement of the intention to close (“phase­
out” ) the Blanche Ely High School, located in Pompano 
Beach, Florida. A  hearing on the board’s plan was held on 
March 3, 1970 at which time an attorney indicated to the 
court that he represented the Blanche Ely Parent Teachers 
Association (petitioners here), a group that opposed the 
closing of Ely High School, and intended to seek interven­
tion in the desegregation litigation to protect that group’s 
interests. No appearance of counsel nor petition for leave 
to intervene was filed on behalf of Blanche Ely Parents be­
tween March 3 and April 3, 1970. Final hearing in this mat­
ter was held in the lower court on April 3, 1970. At that 
hearing, a second attorney appeared, stated that he repre­
sented the Blanche Ely Parent Teachers Association and 
requested leave of the court to intervene. Leave was granted 
on April 7, 1970. On April 13,1970 the second attorney filed 
his notice of appearance and a petition for leave to inter­



8

vene. In support of its opposition to the closing of Blanche 
Ely High School, the Parent Teachers Association appended 
to its petition documents indicating that Ely was a duly 
accredited facility, resolutions from community groups in 
Pompano Beach and telegrams from citizens opposing the 
closing of Ely. In its final order of April 30, 1970, the dis­
trict court approved the board’s plan to close Ely finding 
“that it [Ely] was not a reasonably good high school 
facility, being deficient in every area, excepting physical 
education.” [Petition App. 14a, No. 749]. In addition to 
having the board’s recommendations on Ely, the district 
court also had before it findings of an expert in educational 
facilities and specifications hired by H.E.W. which concluded 
that Ely was an inferior high school plant. In accordance 
with the board’s request, the district court ordered the Ely 
facility used in 1970-71 to house students from an all-black 
elementary school that was being closed. On May 11, 1970, 
the Ely Parent Teachers Association moved for “a new 
trial and a full trial.” The district court denied that motion 
on June 4, 1970, reiterating its grounds for allowing Ely to 
be closed (reports of independent experts as to its inade­
quacy) and its reasons for rejecting the arguments of the 
Ely Parent Teachers Association (inconclusiveness of ac­
creditation ratings and lack of probative value of the 
resolutions and telegrams).

The Ely Parent Teachers Association filed a cross-ap­
peal, after plaintiffs appealed seeking review of the lower 
court’s order respecting desegregation of the 13 all-black 
elementary schools in Broward County. As cross-appellant, 
it sought reversal of the decision to close Ely High School 
and argued, along with plaintiffs, that the over-all plan ap­
proved by the district court was constitutionally inadequate. 
In support of its position, the Parent Teachers Association 
submitted two documents, a certificate of accreditation given



9

Ely by the Southern Association of Colleges and Schools 
and an evaluation done of Ely by the same Association in 
April, 1967. The court of appeals affirmed the closing of 
Ely stating:

We are not persuaded that we should order the dis­
trict court to require the reopening of Blanche Ely as 
a high school. There is nothing in the record to indi­
cate that the Board’s decision to close Blanche Ely was 
based on anything other than sound educational criteria. 
Moreover, the record amply supports the district court’s 
finding that the Blanche Ely facility is not an ade­
quate physical facility for conducting a high school 
program. In the light of these factors, we find no merit 
in the intervenors’ objection to the closing of the school. 
(Petitioners App. 36a-37a, No. 749).

ARGUMENT

I.

The two issues raised by the board’s petition are con­
trolled by previous decisions of ths Court. There are no 
other issues presented to warrant granting a writ of cer­
tiorari. The board’s first argument contends that the order 
of the court of appeals which requires the pairing and 
grouping of some, but not all, schools in Broward County 
to desegregate the dual system works a denial of equal 
protection upon those students attending the paired and 
grouped schools. The concept of equal protection, embodied 
in both the 5th and Fourteenth Amendments, forbids state 
or federal government to establish arbitrary, irrational dis­
tinctions among classes of persons. If distinctions are made 
by a governmental entity which works a hardship upon one 
or more classes as compared to others, such distinctions



10

must be justified in terms of being reasonably related to a 
legitimate governmental purpose. McGowan v. Maryland, 
366 U.S. 420 (1961); McLaughlin v. Florida, 379 TT.S. 184 
(1964); Bolling v. Sharpe, 347 U.S. 497 (1954).

With respect to the problem of segregated public educa­
tion, this Court, since Brown v. Board of Education, 347 
U.S. 483 (1954), has put states and all courts, state and 
federal, on notice that dual school systems of black and 
white schools must be dismantled “ root and branch” and 
unitary, non-raeial systems established in order to comply 
with the Constitution. In Green v. County School Board, 
391 U.S. 430 (1968) this Court required school boards to 
present, and federal courts to demand, desegregation plans 
which offered meaningful prospects of achieving immedi­
ate and complete disestablishment of dual school systems. 
What the board challenges in this case is the fact that the 
court below fulfilled its responsibility under Brown, supra 
to desegregate totally the school system in Broward 
County. The simple answer is that whatever distinctions 
were made by the court between classes of school children 
were justified because they were intimately related to a 
legitimate constitutional purpose, — desegregation of the 
school system. Some schools were involved in the deseg­
regation process more than others because of their prox­
imity to schools of heavy black concentration. Nothing in 
the Fourteenth Amendment warrants denominating this de­
segregation process as a denial of equal protection. And 
in any event, if petitioners’ analysis were adopted, it could 
be argued that school boards have traditionally discrimi­
nated against various classes of school children by assign­
ing some, but not all, to K-6 schools, some to K-3 schools, 
some to new schools, some to old schools, some to schools 
with specialized teaching staffs and equipment, ad infinitum. 
It is difficult to see the constitutional distinction between



11

assigning- children to schools of differing grade levels to 
achieve desegregation and such assignments as a conse­
quence of normal school administrative procedures.

The board further contends that the court of appeals 
order denied due process under the Constitution. This ar­
gument has no more merit than the first. As the record in 
this case reflects, the district court received extensive in­
formation from not only the board, but also from H.E.W. 
experts and private plaintiffs with respect to desegregating 
the Broward County school system. In its final order, the 
district court rejected the H.E.W. recommendations for 
pairing and grouping the all-black elementary schools with 
nearly predominantly white schools because it did not favor 
the use of such techniques, not because they were infeasible 
or unworkable. In so doing, the court acted in conflict 
with this Court’s holdings in Green, supra. The court of 
appeals, armed with extensive information on pairing and 
clustering and the fact of the lower court’s error of law, was 
able to devise an effective desegregation plan relating sole­
ly to elementary schools. The other areas of concern which 
the district court evaluated and ruled on in accordance with 
Green, supra, were left untouched by the appellate court. 
And, as indicated above, crucial decisions on the arrange­
ment of grade structures in the paired and grouped schools, 
which set of pairings and groupings would be appropriate 
for the last of three attendance areas (out of a list of six 
alternatives) and the extent to which the court of appeals 
plan should be modified or altered in the future were all 
left to the discretion of the district court on remand, based 
upon its experience, familiarity with local conditions, and 
ability to consult with board officials. According to this 
Court’s strict instructions in Alexander v. Holmes County 
Board of Education, 396 TT.S. 19 (1969) and Carter v. West 
Feliciana Parish School Board, 396 U.S. 290 (1970) dual



12,

school systems were to be ended immediately, not later than 
February, 1970 in the Carter cases. The court of appeals in 
this case made an exemplary attempt to meet its constitu­
tional responsibility, while at the same time permitting 
board officials and the district court to make whatever alter­
ations were necessary in the desegregation plan without 
reducing the degree of disestablishment of the dual system 
its order achieved. Its action was in complete accord with 
the requirements of procedural due process. Insofar as 
petitioners in No. 749 seek review of the questions of racial 
balance and busing which they contend are raised by this 
record, this Court presently has before it two cases, Swann 
v. Charlotte-MecJclenburg Board of Education, Nos. 281 and 
349, this Term, and Davis v. Board of School Commissioners 
of Mobile County, No. 436, this term, in which those issues 
have already been extensively briefed and argued. To the 
extent that decisions in those cases may affect the issues 
decided in this case, appropriate motions for supplemental 
relief or modification may be presented to the courts below.

II.

Petitioners in No. 891 present equal protection and due 
process arguments as well to support the contention that 
the lower courts erred in allowing Ely High School to be 
closed. On the matter of denial of equal protection, the Ely 
Parent Teachers Association has not presented evidence in 
any court that refutes the determination made by the board 
and an outside educational expert that Ely High School 
was an inadequate, inferior secondary school facility. Doc­
uments indicating Ely’s accreditation and a three-year-old, 
evaluation of its facilities established nothing with respect 
to the physical conditions at the high school. The record, 
therefore, reflects a sufficient educational, non-racial basis 
for the district court’s decision to close Ely. Furthermore,



13

by closing Ely, the district court thereby increased the de­
gree of desegregation in surrounding, physically superior 
high school facilities, which it was required to do under 
Brown, swpra and Green, supra. With respect to the con­
tention that the district court denied the Ely Parent Teach­
ers Association due process of law, the record is also dis­
positive. First, the Association procrastinated an entire 
month, from March 3 to April 3, 1970, before actually filing 
a petition to intervene. April 3 was, of course, the date 
scheduled for final hearing in this matter. Second, the 
Association’s evidence in support of its opposition to the 
closing of Ely was then and has always been documentary. 
That the district court refused to allow the Association to 
put on testimony in support of inconclusive documentary 
evidence cannot be regarded as a denial of due process. 
Finally, it is evident, especially in the petition itself (page 
13) that what the Association seeks is the continuation of 
Ely High School at any cost, irrespective of whether the 
facility is desegregated, predominantly black or even all­
black. The decisions of this Court precluded the district 
court and court of appeals from agreeing to the demands 
of the Association to keep Ely open even as an all-black 
facility.

Certainly the issue of black school closing’s as a conse­
quence of the desegregation process presents constitutional 
questions, which on a record quite different from the one 
in this case, may have to be considered by this Court. See 
Haney v. County Board of Education of Sevier County, 
429 F.2d 364 (8th Cir., 1970). Here, nothing in the record 
indicates that the court below or the district court acted 
arbitrarily or discriminatorily in ordering the closing of 
Ely High School.



14

CONCLUSION

For the foregoing reasons, the petitions in Nos. 749 and 
891 for writs of certiorari should be denied.

Respectfully submitted,

J ack  G reenberg 
J am es M. N abrit, III 
N orman  J . C h a c h k in  
D rew  S. D ays, III

10 Columbus Circle
New York, New York 10019

W . G eorge A llen

303 S.E. 17th Street
Fort Lauderdale, Florida 33316

Attorneys for Respondents Allen, et al.



M EiLEN PRESS IN C . —  N . Y . C . «iijg§8» 219