Curry v. Dallas NAACP Brief for the Petitioners Donald E. Curry

    . r ‘ * . .' ̂  ■ -'k:1 ' *■’ ..•• * . * V

, . z/wri/;' r
■ ̂ m S S S m ^  V

. , . . V  > -------- 'W. •' • . >

V.: ‘ ; :■■■:■.■■ ... .«>'i*̂  •• *

{;). >•>?:.’ -• -l'<? •'.'

• 'iVWjV'?,
' '■ -V. '■ ; I

w’ .V w U i'^ v .4 >
-. . .

*i '■££*&«* •,v .. • •

u*-’ • * ’ ^ : ■%1 ̂  - -.’4 v̂'» -
t v  >  w • " v *  *»

'
• ; \ * * -  • -

M  — • ' ^

I D
• J

!.?••,• r-.*1A*ii H!■<

•>
;i

I



SUBJECT INDEX

Page

Opinion Below .................................................................2

Jurisdiction ...................................................................... 3

Questions Presented .......................................................3

Constitutional and Statutory Provisions ............... 3-5

Summary of Argument ............................................. 5-6

Statement .................................................................. 6-17

Argument ................................................................ 17-48

I. The District Court Had No Power To 
Order Further Student Assignment
Plan To Cure Racial Imbalances.......... 18-21

II. There Is No Basis In Fact Or Law For 
The Student Assignment (Busing)
Orders Below .............................................21-31

A. The Orders For Busing Of The 
District Court And The Fifth Cir­
cuit Are Constitutionally Defec­
tive, Since There Was No Find­
ing That Any Present Racial Im­
balance Resulted From A Con­
stitutional Violation By The 
DISD, To What Extent Any Such 
Violation Went, Or To What Ex­
tent Any Remedy Must Go Just 
To Cure Any Such Violation . . . .  21-27



11
SUBJECT INDEX (Continued

B. The “Remedy" Of Busing Adopt­
ed By The District Court And 
Ordered By The Fifth Circuit Is

Page

Inappropriate To Cure Even The 
Violations Alleged .......................... 28-31

III. "Busing"As A Remedy Is Not Practical 
Or Effective; It Has Never Been 
Proven An Appropriate Alternative 
To The Neighborhood School ............. 31-48

Conclusion................................................... .48-49

.50-51Proof of Service ...............................................

INDEX OF AUTHORITIES
CASES:

Austin Independent School District v. United States, 
429 U.S. 990, 50 L.Ed.2d 603 (1976) ........... 19,23,

25-28
Board of Education for the City of Valdosta, Georgia v. 

ITS., U.S. , 58 L.Ed.2d 684 (1978) . . . . 26

Board of School Comm rs of the City of Indianapolis v. 
Buckley, 429 U.S. 1068, 50 L.Ed.2d 786 (1977) . . 26

Britton v. Folsom, 350 F.2d 1022 (5 th Cir. 1965) .5,7,17
Brown v. Board of Education, 347 U.S. 483, 98 

L.Ed. 873 (1954) ................................................... . . 31

Ill
INDEX OF AUTHORITIES (Continued)

Page
Calhoun v. Cook, 522 F.2d 717 (5th Cir. 1975) ........34

Dayton Board of Education v. Brinkman, 433 U.S.
406, 53 L.Ed.2d 851 (1977) ..............................  6,18,

22-28,31
Green v. County School Bd. of Mew Kent Co., 391 U.S.

430, 20 L.Ed.2d 716 (1968) ........................ 32,33,41

Hutch v. United States,___ U.S.____ , 58 L.Ed.2d
684 (1979) .............................................................2 i /26

Keyes v. School District Mo. I, 413 U.S. 189, 37
L.Ed.2d 548 (1 9 7 3 ) .............................................. 45,46

Lee v. Macon County Board of Education, 465 F.2d
369 (5th Cir. 1972) ...............................................  41

Milliken v. Bradley, 418 U.S. 717, 41 L.Ed.2d
1069 (1974) ...........................................................22,26

Monroe v. Board of Comm'r of the City of Jackson, 391
U.S. 450, 20 L.Ed.2d 733 (1968) ..........................  42

Morgan v. Kerrigan, 530 F.2d 401 (1st Cir. 1976). .32,41

Northcross v. Board of Educ. of Memphis City Schools,
466 F.2d 890 (6 th Cir. 19 7 2 ) ................................. 32

Pasadena City Board of Education v. Spangler, 427
U.S. 424, 49 L.Ed.2d 599 (1976)......................  5,18,

20,21

Singleton v. Jackson Municipal Separate School Dis­
trict, 419 F.2d 1211 (1969) .............................. 22-23

South Park Independent School District v. U.S.,
___ U.S._____58 L.Ed.2d 684 (1978) ..................26



IV

INDEX OF AUTHORITIES (Continued)

Page
Swann v. Charlotte-Mecklenberg Board of Education,

402 U.S. 1, 28 L.Ed.2d 554 (1971) ..............7,18,20,
21,23,27,28,

32,33,41

Tasby v. Estes, 342 F. Supp. 945 (N.D. Tex.
1971) .............................................................. 7,8,9,10,

23,29,30,35
Tasby v. Estes, 444 F.2d 124 (5th Cir. 1971) .............. 7

Tasby v. Estes, 517 F.2d 92 (5th Cir. 1975) ......... 7,10,
19,30

Tasby v. Estes, 412 F. Supp. 1192 (N.D. Tex.
1976) .............................................................  7,9,10-16,

29,30,34,40,41
Tasby v. Estes, 572 F.2d 1010 (5th Cir. 1978) ..7,17,27

United States v. Texas Educ. Agency, 532 F.2d 380
(5th Cir. 1976) ..........................................................32

Village of Arlington Heights v. Metropolitan Housing 
Development Corp., 429 U.S. 252, 50 L.Ed.2d 
450 (1977) ................................................................  26

Washington v. Davis, 426 U.S. 229, 48 L.Ed.2d 
597 (1976) .............................................................26,28

CONSTITUTION:
U.S. Const, art. I §9210 ................................................ 44

U.S. Const, art. Ill §3 ....................................................44

U.S. Const, amend. XIV 4

INDEX OF AUTHORITIES (Continued)

Page
STATUTES:
The Civil Rights Act of 1964 as Amended

1972, 20 U.S. §1619(10)........................................ 39

The Equal Educational Opportunity Act, 20 
U.S.C. §1701, 1705, 1712 .......................... 4,5,31,44

RULES:
Sup. Ct. R. 19-l(b) ..................................................... 27

Fed. R. Civ. P. 52(a) ............................................. 27,31

TEXTS:
Beyond Busing—Some Constructive Alter­

natives, (various monographs) (American 
Education Legal Defense Fund, 1976) ............... 42

D. Armor, White Flight, Demographic Transi­
tion and The Future of School Desegrega­
tion, Rand Paper No. P-5931 (Aug. 1978) . . . 34,42

L. A. Graglia, Disaster by Decree (1976) ......... 33,34,
42

N. St. John, School Desegregation—
Outcomes for Children (1975) ......................  33,38,

42



IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1978

No. 78-282

•  I
DONALD E. CURRY, ET AL„

Petitioners,

versus

DALLAS N.A.A.C.P., ET AL„ 
and

NOLAN ESTES, ET AL„
Respondents.

No. 78-253
•  I

NOLAN ESTES, ET AL„
Petitioners,

versus

DALLAS N.A.A.C.P., ET AL„
Respondents.



2

No. 78-283

RALPH F. BRINEGAR, ET AL.,
Petitioners,

versus

DALLAS N.A.A.C.P., ET AL.,
Respondents.

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

BRIEF FOR THE PETITIONERS, 
DONALD E. CURRY, ET AL

TO THE HONORABLE COURT:

OPINION BELOW

The opinion of the Court of Appeals (Appendix C 
Petition for Writ of Certiorari of Nolan Estes, et al, 
130a-146a) is reported at 572 F.2d 1010 .

JURISDICTION

Judgment of the Court of Appeals was entered on 
April 21, 1978. A timely petition for rehearing en banc 
filed by these Petitioners was denied on May 22, 1978. 
The Petition for Certiorari was filed August 19, 1978 
and was granted February 20, 1979. The jurisdiction of 
this Court rests on 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. In the absence of evidence or a finding that 
racial imbalance resulted from intentional segregative 
action on the part of the Dallas Independent School 
District, do the District Court and Court of Appeals 
have the power to order student reassignment?

2 . Can there be a vestige of a State-imposed dual 
school system in the Dallas Independent School Dis­
trict when no child presently attending schools in that 
district has ever been assigned to a school except under 
a plan mandated by the United States Courts?

3. Does the Constitution require the imposition of 
a remedy which the overwhelming evidence demon­
strates not only fails to remedy the problem at which it 
is directed, but exacerbates the problem?

CONSTITUTIONAL AND 
STATUTORY PROVISIONS

Pertinent constitutional and statutory provisions in­
volve the eaual protection clause of the Fourteenth



*

Amendment to the Constitution of the United States 
and the actions of Congress with respect to the subject 
of education, student assignment, and equal pro­
tection. Such provisions read in pertinent parts as 
follows:

14th Amendment, U.S. Constitution:
Nor shall any state . . . deny to any person 
within its jurisdiction the equal protection of 
the laws.

20 U.S. C. §1701 (Equal Educational Opportunity 
Act):
the failure of an educational agency to attain a 
balance on the basis of race, color, sex or 
national origin of students among its schools 
shall not constitute a denial of equal 
educational opportunity or equal protection of 
the laws.

20 U.S.C. §1712:
In formulating a remedy for denial of equal 
educational opportunity or denial of equal 
protection of the laws, a court, department or 
agency of the United States shall seek or im­
pose only such remedies as are essential to 
correct particular denials of equal educational 
opportunity or equal protection of laws.

20 U.S.C. §1705:
The assignment by an educational agency of a 
student to a school nearest his place of 
residence which provides appropriate grade 
level and type of education for such student is

4

not a denial of equal educational opportunity 
or of equal protection of the laws unless such 
assignment is for the purpose of segregating 
students on the basis of race, color, sex or 
national origin or the school to which such 
student is assigned is located on its site for the 
purpose of segregating students on such basis.

SUMMARY OF ARGUMENT

Petitioners Curry et al urge that the Fifth Circuit and 
District Court decisions below be reversed and 
rendered and this case terminated by dismissal of the 
complaints for the following reasons:

1. In 1965 a racially neutral neighborhood assign­
ment plan was adopted and mandated by the Fifth Cir­
cuit Court of Appeals in Britton v. Folsom, 350 F.2d 1022 
(5th Cir. 1965). This decision was unappealed and un­
challenged for five years until this present suit was 
commenced to remedy imbalance in the Dallas schools 
not caused by an intentional segregative action of the 
Dallas Independent School District and in part arising 
after 1965 as a result of the Court of Appeals order. 
Having adopted a racially neutral plan, the Courts can­
not revise its effects because of racial imbalance. 
Pasadena City Board of Education v. Spangler, 427 U.S. 424, 49 
L.Ed.2d 599 (1976).

2. In the absence of a showing of a constitutional 
violation, which has been held by the District Court not

5



to have occurred, no remedy can be ordered. The Dis­
trict Court in 1971 held that racial imbalance came 
about as a result of private housing patterns and not as 
a result of actions by the school district. With such a 
finding the case must be reversed and rendered dis­
missing the complaint. Dayton Board of Education v. 
Brinkman, 433 U.S. 406, 53 L.Ed.2d 851 (1977).

3. Even if a post 1965 constitutional segregative ac­
tion by the Dallas Independent School District is found 
(and Petitioners Curry et al know of none) it did not 
have an effect on the racial imbalance in the District, 
and a remedy of student reassignment or busing does 
not address the violation. Dayton Board of Education v. 
Brinkman, supra.

4. As a tool the remedy of "busing" or student re­
assignment is ineffective to desegregate and has 
destroyed any chance for a stable integrated school 
system. The Constitution does not require the elimina­
tion of neighborhood schools if drawn on racially 
neutral lines, simply because voluntary housing 
patterns create racial imbalance, especially where 
voluntary majority to minority transfer policies permit 
children to attend any school in which their race is a 
minority if transferring from a school in which the 
student's race is in the majority.

STATEMENT

Since 1965 the assignment of every student in the 
Dallas Independent School District ("DISD") has been

6 7

»  >

mandated by the United States Courts.1 In 1965 the 
Court of Appeals for the Fifth Circuit in Britton v. Folsom, 
350 F.2d 1022 (5th Cir. 1965) ordered the immediate 
assignment of students to neighborhood schools 
without regard to race. That order was not appealed. 
The DISD complied with that order, and student 
assignment within the DISD has continuously since 
that date been pursuant to whatever the District Court 
or the Court of Appeals for the Fifth Circuit ordered. 
Tasby v. Estes, 444 F.2d 124 (5th Cir. 1971). As a result, 
no child presently in the twelve grades in the DISD has 
ever attended a school except by an assignment man­
dated by the United States Courts.

t •

The present case, a new one, was filed in 1970 by 
Plaintiffs Tasby, et al; such plaintiffs complained of 
racial imbalance (in part caused by the 1965 order of the 
Fifth Circuit) and asked for "meaningful desegrega­
tion" of the DISD in accordance with post-1965 
decisional law. The complaint pointed principally to 
racial imbalances in DISD schools, as its basis for re­
questing "meaningful desegregation." 517 F.2d 92 at 
96. On July 16, 1971, based on its interpretation of 
Swann u. Charlotte-Mecklenberg Board of Education, 402 U.S. 
1, 28 L.Ed.2d 554. (1971) ("Swann"), the District Court 
ordered a student assignment plan upon a finding that

1 The opinions which constitute “the present controversy" are 
as follows: (1) Britton v. Folsum, 350 F.2d 1022 (5th Cir. 1965). (2) 
Tasby o. Estes, 342 F.Supp. 945 (N.D.Tex. 1971) (sometimes called 
“Tasby-1971"), reversed, Tasby o. Estes, 517 F.2d 92 (5th Cir. 1975)) 
(sometimes called “Tasby-1971"). (3) Tasby v. Estes, 412 F.Supp. 1192 
(N.D.Tex. 1976) (sometimes called "Tasby-1976"), reversed, Tasby v. 
Estes, 572 F.2d 1010 (5th Cir. 1978 (sometimes called "Tasby-1978").



8

When it appears as it clearly does from the 
evidence in this case that in the Dallas In­
dependent School District 70 schools are 90% 
or more white (Anglo), 40 schools are 90% or 
more black, and 49 schools with 90% or more 
minority, 91% of black students in 90% or 
more of the minority schools, 3% of the black 
students attend schools in which the majority 
is white or Anglo, it would be less than honest 
for me to say or to hold that all vestiges of the 
dual system have been eliminated in the Dallas 
Independent School District, and I find and 
hold that elements of the dual system still re­
main. 342 F.Supp. at 947. [Emphasis added.]

The District Court's 1971 student reassignment 
plans were based solely upon the finding of a racial im­
balance among the DISD schools as set forth above. 
The only "fault" which the District Court found with 
the DISD was that it did not on its own make changes 
to accommodate post- 7 965 law changes regarding facul­
ty and staff assignments, voluntary majority to minori­
ty transfers and transportation, and school construc­
tion and site selection. 342 F.Supp. at 947-48. The 
DISD voluntarily agreed to the desegregation of facul­
ty, the majority to minority transfer policy, transporta­
tion of such students electing majority to minority 
transfer, and the appointment of tri-racial committees 
at the beginning of the 1971 trial. There is no finding of any 
other discriminatory action by the Dallas Independent School Dis­
trict anywhere in the record before this Court.

9

With respect to the racial imbalance among the 
schools the District Court found that there were only 
"vestiges" of a dual school system — not that the DISD 
was a dual school system. 342 F.Supp. at 947. (See also 
the same observation in the 1976 District Court opin­
ion at 412 F.Supp. at 1196). The court found that such 
"vestiges" or racial imbalances did not result from any 
acts of the DISD. Instead, it found:

t *
The adoption of a plan of desegregation for a 
school system of the size and complexity of 
DISD has been commented upon briefly. The 
problems result, of course, from private housing patterns 
that have come into existence and not from any action of 
the DISD. The complex school districts bear lit­
tle resemblance to the factual situation of 
Green or even the fact situation of Swann which 
served 84,000 pupils in 107 schools. 342 
F.Supp. at 951. [Emphasis added.]

•  I
In its "Supplemental Opinion" on August 17, 1971, 

the District Court, with respect to the area of Oak Cliff 
presently complained of by the Dallas N.A.A.C.P., also 
found:

The education through a wide-course selec­
tion being available as chosen by the student 
should not be made to suffer for the purpose 
of arbitrary racial mixing to alleviate a condition 
which, in this particular section of the school district, 
results primarily from private housing patterns coming



10
into existence since 1965 and not from any action of the 
D15D. 342 F.Supp. at 956. [Emphasis added.]

Not only did the District Court have no specific find­
ings of intentional segregative intent in connection 
with any existing student school assignment, or 
"vestiges/' the District Court in its August 2, 1971, 
order found and held the Board of Education of DISD 
[to be] in good faith and committed to the principle of 
equal quality education." 342 F.Supp. at 950.

Four years later, on appeal, the Fifth Circuit wooden- 
ly interpreted the Supreme Court's decisions to make 
it clear that notning less than the elimination of pre­

dominantly one-race schools is constitutionally re­
quired in the disestablishment of a dual school system 
based upon segregation of the races." 517 F.2d 92 at 
103. On that basis, the Fifth Circuit remanded and 
directed the district court to formulate. . .elementary 
and secondary student assignment plans which com­
port with the directives of the Supreme Court and of 
this opinion," without direction as to what that means. 
517 F.2d at 110.

In early 1976, the District Court conducted the ex­
tensive evidentiary hearings that form the record in 
this proceeding. The District Court, pursuant to the in­
structions of the Fifth Circuit, construed its task to be 
the elimination "from the public schools [of] all vestiges 
of state-imposed segregation." 412 F.Supp. at 1193, 
1195. After allowing the NAACP to intervene at that

sl3ge, the Court proceeded to hear evidence from the 
DISD, the plaintiffs, Petitioners Curry, et al, 
Petitioners Brinegar, et al, the NAACP, and others. 
Based on what it had already heard in 1971 and the later 
evidence, the District Court again did not make any 
finding of a constitutional violation, or of a denial of 
any student's right to equal protection, or of the extent 
in the DISD of the effects of any such violation, or of 
the amount of remedy that would cure such effects in­
sofar as found. Instead, the court made the following 
findings, which Petitioners Curry, et al submit are 
critical to this court:

The most significant feature of the DISD 
now as opposed to 1971 is that the DISD is no 
longer a predominantly Anglo student school 
system. In the years which have intervened 
since this Court s 1971 order, the percentage 
of Anglos in the DISD has declined from 69% 
to 41.1%, and projections show no reversal of 
this trend to a predominantly minority dis­
trict. 412 F.Supp. at 1197.

11

Although the DISD in 1975-76 cannot be 
considered to be wholly free of the vestiges of 
a dual system, significant strides in desegrega­
tion have been made since the Court's 1971 
order as a result of natural changes in residen­
tial patterns in the past three years. In the 
1970-71 school year, 91.7% of all black



12

students in the DISD attended predominant­
ly minority schools, whereas in the 1975-76 
school year, the percentage has dropped to 
67.6%. Testimony during the hearings show­
ed that large areas of Dallas which formerly 
reflected segregated housing patterns are 
now integrated, namely Western Oak Cliff, 
Pleasant Grove, East Dallas, the area of North 
Dallas included in the attendance zone for 
Thomas Jefferson High School.

Testimony also established that the DISD 
has undertaken in good faith and on its own to 
equalize the educational opportunity for all 
children during recent years. 412 F. Supp. at 
1197.
★  ★  ★

In spite of the DISD's efforts, Dr. Chase's2 
study concluded that there is still a gap 
between intent to provide equal educational 
opportunity and the achievement of this goal. 
But the study also concluded that the DISD is 
accepting the continuing challenge to speed 
progress and close this gap.

2 An educational expert hired by the DISD to give an indepen­
dent and impartial assessment of its plans and programs. 412 
F.Supp. 1197.

I  $

•  *

The Dallas Independent School District in 
recent years, has acknowledged frankly 
the existence of persisting inequalities 
and inadequacies in its provisions for 
education. Instead of regarding these 
conditions as inevitable, the District has 
moved progressively to treat them as 
challenges with which it must cope swift­
ly and effectively. All school systems, and 
especially those in our larger cities, are 
faced with the urgent necessity of 
alleviating the learning disabilities which 
have their roots in poverty, prejudice, and 
other forms of discrimination. No other 
school district offers a better prospect for 
significant progress in this direction, 
[quoting from Dr. Chase's study]

The study thoroughly evaluated the DISD's 
programs, pin-pointing areas which needed 
improvement and making recommendations 
to that end. Dr. Chase testified that this study 
was unique in the amount of response it 
elicited from the School Board and the Ad­
ministration; he testified that there is not one 
item cited that the Board and Administration 
have not responded to in some way. His 
testimony was that there can never be a 
perfect school system, but that at least the 
DISD is conscientiously on the road to pro­
viding equal educational opportunity for all. 
412 F.Supp. at 1198.

13

★ ★ ★



14

[With regard to a feature of the plan adopted that left 
the area of South Oak Cliff almost entirely black in 
school attendance:]

. . . The court is of the opinion that, given the 
practicalities of time and distance, and the fact 
that the DISD is minority Anglo, this sub­
di s t r i c t  must  necessar i l y remain 
predominantly minority or black. However, 
this does not mean that the goal of equal 
educational opportunity for all cannot be 
achieved. In terms of facilities, Dr. Hall1 
testified that with the exception of Budd and 
Harilee Elementary Schools and the site at 
Rooseveit High School, the facilities in this 
area can be categorized as superior. Ad­
ditionally, Dr. Hall testified that the environ­
ment in which each center is located, i.e., the 
property immediately adjacent to the schools, 
as well as the residential area served by them, 
can be classified as superior. Dr. Hall testified 
that educational opportunities in terms of 
facilities or programs would not be improved 
by complete redistribution of all pupils, and in 
some situations, they would be lessened. 412 
F.Supp. 1204.
★ ★ ★

3 Dr. Josiah Hall, an expert hired and appointed by the District 
Court to evaluate the DISD and to develop a plan of his own. 412 
F. Supp. 1194.

15

[With regard to a feature of the plan that left grades 9- 
12 on a neighborhood basis but which called for magnet
schools:]

t  »

i  t

The Court is convinced that the magnet 
school concept on the 9-12 grade level will be 
more effective than the assignment of 
students to achieve a certain percentage of 
each race in each high school. The Court tried 
this method of student assignment in 1971, 
and it has not proven wholly successful in 
achieving the goal of eliminating the vestiges 
of a dual system in these grades. The evidence 
shows that of approximately 1,000 Anglos 
ordered to be transported to formerly all­
black high schools under this Court's 1971 
student assignment plan, fewer than 50 Anglo 
students attend those schools today. 
Whatever the cause might be for the non- 
attendance of Anglos in those schools today, 
this Court finds that it can in no way be at­
tributed to official actions on the part of 
school authorities. 412 F.Supp. 1205.

It should also be noted that changes in 
demographic patterns have resulted in the 
drastic reduction of predominantly Anglo 
high schools in the DISD. 412 F.Supp. 1205.

The most realistic, feasible, and effective 
method for eliminating the remaining



vestiges of a dual system on the 9-12 level, and 
for providing equal educational opportunity 
without regard to race, is the institution of 
magnet schools throughout the DISD. 412 
F.Supp. 1205.

16

The DISD has acted in good faith since this 
Court's order in 1971 and has made reason­
able efforts to fulfill the obligations imposed 
by that order. The DISD has further taken 
good faith steps to eradicate inequality in 
educational opportunity which has previously 
existed in the DISD. Had the DISD not shown 
a willingness to improve the quality of educa­
tion for all its students, and especially those in 
the minority areas which previously had been 
neglected, this Court might feel impelled to 
adopt a different remedy. 412 F.Supp. at 1207.

In spite of these findings, in response to the mandate 
of the Circuit Court, the District Court adopted a plan 
that provided for the busing of approximately 17,300 
students in grades 4-8, a majority to minority transfer 
plan, magnet schools, a rigid plan for the ethnic make­
up of the top echelon of DISD staff (44% white — 44% 
black — 12% Mexican-American), numerous "accoun­
tability" concepts, and other non-busing provisions. 
412 F.Supp. 1192. The District Court felt the plan was 
necessary to remove all "vestiges" — as it had been 
ordered to do by the Fifth Circuit.

Following in its former footsteps, the Fifth Circuit 
again woodenly rejected the District Court's student 
assignment plan, not because, as Petitioners Curry et al 
urged, it was constitutionally improper and outside the 
power of the court under recent decisions of the 
Supreme Court, but solely because of the existence of 
one race schools and the claim that there were not "ade­
quate time-and-distance studies in the record in this 
case." 572 F.2d at 1014. The Fifth Circuit, ignoring all 
the specific trial findings quoted above, stated it "can­
not properly review any student assignment plan that 
leaves many schools in a system one race without specific 
findings by the district court as to the feasibility of these techniques." 
Ibid. In its mandate, the Fifth Circuit in effect 
acknowledged that it really was only giving lip-service 
to any district court findings; because it remanded for 
"the formulation of a new student assignment plan and 
for findings to justify the maintenance of any one-race 
schools that may be a part of that plan." (Emphasis add­
ed.) 572 F.2d at 1018. The Fifth Circuit challenged none 
of the above findings as being clearly erroneous.

ARGUMENT

The real question before this Court is whether there 
should have been any order for a student assignment 
plan other than the one that was approved by the Fifth 
Circuit in 1965 in Britton v. Folsom, 350 F.2d 1022 (1965) 
from which no appeal was taken. There may be skir­
mishes about other portions of what the District Court 
has now ordered, but the fundamental, and wide-

17



reaching decision this Court must make is whether 
federal court student assignment orders, made solely 
on the basis of, and solely to cure, ever-changing racial 
imbalances in various schools in a metropolitan school 
district, are constitutionally permissible, much less 
effective, as equitable remedies. Petitioners Curry, et al 
submit that now, 8 years after Swann during which 
Courts of Appeal have steadily but perfunctorily 
demanded the removal of "all vestiges" of student im­
balance in city school systems by widespread busing, 
the answer is "no." This is so in the Dallas case because 
the findings by the District Court do not support any 
such remedy, Pasadena City Board of Education v. Spangler, 
427 U.S. 424, 49 L.Ed.2d 599 (1976) (“Pasadena"); Dayton 
Board of Education v. Brinkman, 433 U.S. 406, 53 L.Ed.2d 
851 (1977) (“Dayton"), and because mandatory student 
assignment in metropolitan school districts to achieve 
racial balances, or remove "vestiges", is impractical and 
ineffective as an equitable remedy and destructive of 
the very objective it was designed to accomplish: 
meaningful integration of metropolitan school dis­
tricts.

I. The District Court Had No Power To Order 
Further Student Assignment Plan To Cure Racial Im­
balances

This present case was a new lawsuit filed on October 
6, 1970, by Tasby et al as plaintiffs. As the Fifth Circuit 
described it, the complaint requested "desegregation of 
the D1SD in accordance with post-1965 decisional law."

18
517 F.2d at 96. The DISD was, as noted, already 
operating under a racially-neutral neighborhood stu­
dent assignment plan ordered by the Fifth Circuit in 
1965. After the 1971 trial, the District Court found 
that "all vestiges" of a dual school system had not been 
eliminated, but based that holding solely on racial im­

balances in various public schools that the Court itself 
found did not result from any acts of the DISD. (Seepp. 
5-6 supra.) The Fifth Circuit, after curiously holding the 
case four years, struck down an innovative television 
plan adopted by the District Court, because the Circuit 
bench misinterpreted Swann to require "the elimination 
of predominantly one-race schools." 517 F.2d at 103. 
Even though the DISD had never used buses to transport 
any person except physically handicapped students, 
and even though there was no proof of any new con­
stitutional violation — or the extent of it — the Fifth 
Circuit ordered development of a new student assign­
ment plan (without guidance as to how or what) in 
1975.

Following the District Court trial and findings 
recited above, the Fifth Circuit again — and in the face 
of Pasadena and this Court's instruction in Austin II, 
Austin Independent School District v. United States, 429 U.S. 
990, 50 L.Ed.2d 603 (1976) — demanded a new assign­
ment plan, citing its rhetoric about the constitutional 
requirement that one-race schools be eliminated and 
noting as an apparent reason for the reversal the in­
sufficiency of evidence of any time-and-distance 
studies (as if that were a constitutional determinant).

19



20

A racially-neutral plan for assignment having been 
adopted in 1965 and not having been appealed, the Dis­
trict Court, in the absence of a finding of a new con­
stitutional violation, had no authority to correct racial 
imbalances in the DISD schools by ordering busing. 
Pasadena, supra. As the Court said in Pasadena:

. . . there are limits beyond which a court may 
not go in seeking to dismantle a dual school 
system. These limits are in part tied to the 
necessity of establishing that school authori­
ties have in some manner caused un­
constitutional segregation for 'absent a con­
stitutional violation there would be no basis 
for judicially ordering assignment of students 
on a racial basis.' (49 L.Ed.2d at 607.)

Indeed the Court recognized in Swann that once a 
neutral plan had been approved, a district court had no 
basis for further intervention, by holding:

Neither school authorities nor district courts 
are constitutionally required to make year-by­
year adjustments of the racial composition of 
student bodies once the affirmative duty to 
desegregate has been accomplished and racial 
discrimination through official action is elim­
inated from the system. . . . [In] the absence 
of a showing that either the school authorities 
or some other agency of the State has 
deliberately attempted to fix or alter demo­

21

graphic patterns to affect the racial composi­
tion of the schools, further intervention by a 
district court should not be necessary.' 402 
U.S., at 31-32, 28 L.Ed.2d at 575-576.

t *

For this reason alone, there is no basis for a new stu­
dent assignment plan to be ordered by a federal district 
court. See the Dissenting Opinion in Hutch v. United
States_____U.S_____, 58 L.Ed.2d 684 (1979). When as in
Dallas, every child presently in the 12 grades in public 
school has been placed there under a racially-neutral 
assignment plan ordered by a federal court, there can 
be no "vestige" of a state-imposed dual school system. 
Certainly when there is no evidence or finding of any 
constitutional violation by the DISD after the 1965 
decision and the undisturbed District court findings 
after two trials are to the contrary, there can be no 
basis or power for the lower federal courts to keep 
second-guessing themselves and repeatedly ordering a 
duly-elected public school board to "keep trying" with 
more student assignment plans. Under Swann and 
Pasadena, the plan adopted by the District Court should 
be vacated, and the case dismissed.

II. There Is No Basis In Fact Or Law For The Stu­
dent Assignment (Busing) Orders Below

A. The Orders For Busing Of The District Court 
And The Fifth Circuit Are Constitutionally Defective, 
Since There Was No Finding That Any Present Racial 
Imbalance Resulted From A Constitutional Violation



By The D15D, To What Extent Any Such Violation 
Went, Or To What Extent Any Remedy Must Go Just 
To Cure Any Such Violation.

The U.S. District Courts in these cases are like U.S.
District Courts in any other cases: They can only act on
the basis of a constitutional or statutory violation 
Dayton, 433 U.S. 410, 53 L.Ed.2d at 857; Mill,ken v. 
Bradley, 418 U.S. 717, 741-42, 41 L.Ed.2d 1069 (1974) 
("Milliken"). Because of the vital role locally-elected and 
functioning school boards play in our nation's life, the 
power to displace that local board with supervening 
federal court orders in a school desegregation case can 
only be invoked after the case has been "satisfactorily 
established by factual proof and justified by a reasoned 
statement of legal principles." Dayton, 433 U.S. at 410, 
53 L.Ed.2d at 857.

After thousands of pages of testimony in the 1971 
and 1976 hearings in Dallas, there has been no proof or 
finding of a newconstitutional violation by theDISDin 
this case. The most that the District Court ever found 
was that there were racial imbalances among the 
schools caused principally by demographic factors (but 
not by the DISC)), and that the DISD had created some 
discrimination by not voluntarily desegregating facul­

ty and other staff, adopting a majority to minority 
transfer program, adopting some policy in regard to 
school construction and site selection, and appointing a 

'̂-racial committee pursuant to the Fifth Circuit's post- 
1965 decision in Singleton v. Jackson Municipal Separate

22

School District, 419 F.2d 1211 (1969). Tasby-1971, 342 
F.Supp. at 948.

Curry at al have quoted at length the pertinent find­
ings of the District Court in regard to "present" racial 
imbalances (which is, of course, a moving target due to 
neighborhood changes and the desire of the middle 
class to avoid busing). Not one of these rise to the level 
of a constitutional violation, and in fact the persistent 
t ernes in the 1971 and 1976 findings are (1) the DISD 
has tried hard and acted in good faith to give an equal 
educational opportunity to all students, and (2) "pres­
ent student body racial imbalances were caused en­
tirely by demographic factors and orders of the courts 
themselves. The District Court and the Fifth Circuit 
have ordered more and more busing ("student assign­
ment plans") solely because they mistakenly took one 
sentence in theSiea™ decision to require the immediate 
eradication of all racial imbalances in a school system.

^ that narrow reading of Swann was excusable in 
1975, it was totally inexcusable in 1978 — after this 
Court had written Dayton, which decision, if not already 
known, was called to the attention of the Fifth Circuit 
by Curry et al's "Supplemental Brief" on August 8 
1977. The Fifth Circuit in 1978 not only ignored the 
absence of any finding of a constitutional violation in 
t is case, it didn t even acknowledge Dayton or Austin II in con­
nection with the DISD portion of this case.

None of the three Dayton-required findings are 
anywhere in the record of this case nor is there

23



24
evidence to support any such findings. Indeed, as 
noted, the findings are directly to the contrary.

More specifically, there first and foremost is no find­
ing that the alleged condition of racial imbalance 
“resulted from intentionally segregative actions on the 
part of the Board." Dayton, 433 U.S. at 433, 53 L.Ed.2d at 
859. Instead, the unchallenged finding of the District 
Court in 1971 was that private housing pattern sand no 
action of the DISD had caused the racial imbalance. 
This case is even devoid of the vague “cumulative vio­
lations" referred to in Dayton. The only specific find­
ings of "discrimination" by the DISD consisted solely of 
its failure to adopt voluntarily (pursuant to post-1965 
Fifth Circuit decisions) a majority to minoritv transfer 
policy and desegregation of its faculty, both of which 
actions were voluntarily taken prior to the end of the 
trial of this case in 1971. In any event, a "remedy" of 
busing is not even reasonably related to the cure re­
quired for such non-assignment non-acts. Dayton, 433 
U.S. at 419, 53 L.Ed. at 863.

The second requirement of Dayton focuses on the 
results of the violation, if any. The trial court below and 
the Fifth Circuit did not even suggest that there was 
any incremental segregative effect on the racial dis­
tribution of the DISD school population as "presently" 
constituted, or even remotely suggest that the racial 
distribution of students is any different now than what 
it would have been in the absence of any such alleged 
"constitutional violation." Again, the District Court

25
findings are in fact to the contrary, that is that no act of 
the DISD caused the "present" racial imbalance in any 
of the schools.

The third Dayton requirement limits the fashioning of 
a remedy: "Once a constitutional violation is found a 
federal court is required to tailor 'the scope of the 
remedy' to fit 'the nature of the violation' ", 433 U.S. at 
420, 53 L.2d at 863. "The remedy must be designed to 
redress that difference, and only if there has been a 
systemwide impact may there be a systemwide 
remedy." Ibid. Applying this rule to the present case 
the District Court in 1971 adequately corrected any 
alleged constitutional deficiency by requiring the adop­
tion of a majority-minority transfer policy, and the 
desegregation of faculty (each of which were voluntari­
ly done by the DISD). However, the District Court and 
the Fifth Circuit also failed to do just what the Court of 
Appeals failed to do in D a y to n : . . [Ijnstead of tailoring 
a remedy commensurate to the three specific 
violations, the Court of Appeals imposed a system- 
wide remedy going beyond their scope." 433 U.S. at 
41/, 53 L.Ed.2d at 862. The District Court called for 
busing 17,300 students in grades 4-8 all over the 351 
square miles of the DISD, except in the East Oak Cliff 
section; the Fifth Circuit remanded for more — all 
without any showing of the extent of the unfound but 
alleged student assignment violation.

Dayton, of course merely expanded this Court's prior 
ruling in Austin Independent School District v. United States,



429 U S. 990, 50 L.Ed.2d 603 (1976) (“Austin 11"), in 
which this Court pointed out to the Fifth Circuit that 
Washington v. Davis, 426 U.S. 229, 48 L.Ed.2d 597 (1976) 
controlled. Washington v. Davis held that mere racial im­
balance was not enough to find a constitutional viola­
tion and that the essential of any constitutional viola­
tion requiring action was a finding of a purpose of in­
tent to segregate in connection with an intentional dis­
criminative act. The concurring opinion in Austin II pre­
dicted the principles of Dayton and expanded on what 
Chief justice Burger had said in Mil liken v. Bradley, 418 
U.S. 717, 41 L.Ed.2d 1092 (1974), that the remedy [to 
correct a constitutional wrong] is necessarily designed, 
as all remedies are, to restore the victims of dis­
criminatory conduct to the position they would have occupied in 
trie absence of such conduct. See Village of Arlington Heights v. 
Metropolitan Housing Development Corp., 429 U.S. 252, 50 
L. Ed. 2d 450 (1977), and Board of School Comm'rs of the City of 
Indianapolis v. Buckley, 429 U.S. 1068, 50 L.Ed.2d 786 
(1977).

It is now apparent that the Fifth Circuit is con­
tinuing to refuse to follow Dayton and Austin II. As was 
pointed out in the dissent on December 5, 1978, in 
Hutch v. U.S.: South Park Independent School District v. U.S.; 
and Board of Education for the City of Valdosta, Georgia v. U.S.,
------ U .S . ------ 58 L.Ed.2d 684 (1978), this Court's
rulings in school desegregation cases are being avoided 
bv the Fifth Circuit by the simple expedient 
of continually sending cases back to the district court 
for additional remedial action — without pointing out

26 27

what action is to be taken or what constitutional viola­
tion requires it.

•  I

t  I

The Fifth Circuit in this case radically departed from 
the accepted and usual course of judicial proceedings 
and has required such a departure by a lower court. In 
the face of Austin II, the Fifth Circuit was requested by 
Curry et al to follow Dayton, and it didn't even cite it 
with respect to the DISD case. Then, after its opinion, 
the Fifth Circuit was requested by Curry et al in their 
Brief in Support of Rehearing en banc to follow Federal 
Rule Civ. Proc. 52(a) and to test the District Court find­
ings by the "clearly erroneous" standard. Instead the 
Fifth Circuit ignored all District Court findings and 
remanded under the racade of Swann because there 
were not "adequate time-and-distance studies in the 
record. 572 F.2d at 1014. It is obvious that the 
Supreme Court must exercise its power of supervision. 
Rule 19- 1(b), Rules of the Supreme Court. Since there 
are no Dayton-type findings that would authorize the 
exercise of federal court power to bus students, and 
since all findings are in fact to the contrary, the ap­
propriate remedy is to reverse and render this case, re­
turning the DISD to the authority of its School Board 
under the terms of the racially neutral plan adopted in 
1965, with the already agreed to modifications by the 
School Board with respect to majority-minority 
transfers and faculty desegregation.



B. The “Remedy" Of Busing Adopted By The Dis­
trict Court And Ordered By The Fifth Circuit Is Inap­
propriate To Cure Even The Violations Alleged.

The District Court ordered imposition of a system­
wide busing plan in 5 of 6 sub-districts of the DISDcall- 
ing for 17,300 students in grades 4-8 to be moved just 
for the purpose of mixing ratios of black, brown and 
white bodies in the "middle" schools. It is improper — 
and actually a violation of the constitutional rights of 
others — to bus students just to attempt to eradicate 
predominantly white or predominantly black schools in 
the school system. Dayton, 433 U.S. at 417, 419-420, 53 
L.Ed.2d at 861, 863-64.

As in Dayton and as in Austin II. "there is no evidence in 
the record available to us to suggest that, absent those 
constitutional violations [ed. note "if found"], the . . . 
school system would have been integrated to the ex­
tent contemplated by the plan ."Austin II. 429 U.S. 990, 
50 L.Ed.2d at 605 (concurring opinion). Since there 
have been two trials of this matter (1971 and 1976) and 
the explicit findings fail to support the plaintiffs' 
allegations, and indeed refute them, the District 
Court's student assignment plan is clearly unjustified 
under the principles of Dayton, Austin II, Washington v. 
Davis, and Swann.

The following facts and findings affirmatively pre­
clude any busing order:

28 29
(1) Regarding the predominantly black 
South Oak Cliff sub-district, the District 
Court in 1971 found that in the Oak Cliff sec­
tion of the District, the racial imbalance came 
from private housing patterns after 1965 
(when the Fifth Circuit ordered a racially 
neutral plan) — and not from any DISD ac­
tion. 342 F.Supp. 956. The Fifth Circuit never 
set those findings aside as "clearly erroneous" 
and hence they are binding today. Clearly no 
busing is justified in that area.

(2) The District Court in 1976 found that 
the South Oak Cliff area, "given the prac­
ticalities of time and distance, and the fact that 
the DISD is minority Anglo," must necessarily 
remain predominantly minority. The court 
also approved the conclusions of its appointed 
expert, Dr. Josiah Flail, that with few excep­
tions, that area's facilities were superior, the 
residential property located near each school 
was superior, and that educational opportuni­
ty in terms of facilities or programs would not 
be improved by complete redistribution of all 
pupils. 412 F.Supp. at 1204. The Fifth Circuit 
did not find that conclusion clearly erroneous.

(3) The trial court found many areas of the 
DISD that w ere formerly one race had become 
naturally integrated, namely Western Oak 
Cliff, Pleasant Grove, East Dallas, and the 
area of North Dallas included in the attend-



ance area for Thomas Jefferson High School.
412 F.Supp. at 1197. (These groups are in part 
before the Court as the Strom intervenors 
and the Brinegar intervenors.) The court 
found present student assignments should be 
maintained in those schools where integration 
had naturally occurred, because no "vestiges" 
remained. 412 F.Supp. at 1206. The Fifth Cir­
cuit did not hold those findings clearly 
erroneous.

(4) Curry et al provided testimony in 1971 
that far North Dallas had been settled after 
Brown I. See 517 F.2d 108. There has never 
been any finding by any court that any action 
by the DISD had anything to do with the 
predominantly white residential settlement of 
that area, and hence the predominantly white 
schools that resulted from that settlement. In ■ 
stead the District Court found in 1971:

The adoption of a plan of desegregation 
for a school system of the size and com­
plexity of DISD has been commented 
upon briefly. The problems resulted, of course, 
from private housing patterns that have come into 
existence and not from any action of the DISD.
342 F.Supp. at 951 (Emphasis added.)

The Fifth Circuit never set that finding aside as clearly 
erroneous, and hence it is binding today.

30
The result is inescapable: On the basis of findings 

and conclusions of the District Court in 1971 and 1976, 
no one of which has been set aside under Rule 52(a), 
there is no legal or constitutional basis for ordering 
busing in the DISD in any area. Dayton. Plaintiffs and the 
N.A.A.C.P. have had their days in court, they have not 
proven their allegations, and the findings on the pres­
ent cause of racial imbalance in the DISD schools are 
against them. It is time this case ended, and the in­
appropriate student assignment plans adopted by the 
District Court and ordered by the Fifth Circuit be set 
aside.

III. "Busing" As A Remedy Is Not Practical Or 
Effective; It Has Never Been Proven An Appropriate 
Alternative To The Neighborhood School.

The Courts have now gone full circle. In Brown v. 
Board of Education, 347 U.S. 483, 98 L.Ed. 873 (1954) this 
Court held that legislatures, no matter how well inten- 
tioned, could not require school attendance on the basis 
of race. Congress in the Equal Educational Opportuni­
ty Act (20 U.S.C. §§1701, 1705, and 1712) also pro­
hibited imposition of busing as a so-called remedial ac­
tion to attain racial balances in schools. Yet precisely on 
the basis of race (sub nom. "racial imbalance" or 
"vestiges") and on their own judgment of what is best, 
federal courts have ordered busing to balance races.

It is amazing that the courts ever got into the busing 
("student assignment," "transportation," "removal of

31



32

vestiges") business. Perhaps it is conceptually under­
standable that where school districts had long used 
buses to segregate, as in a tiny district like New Kent 
County,1 or even in a larger, semi-urban district like 
Charlotte-Mecklenburg,2 the courts logically, without 
any study or evidence of the impact of what they were 
doing, reversed the process and mundanely ordered the 
buses to be used to desegregate. That, however, even in 
semantic logic, is a canyon apart from permitting cir­
cuit courts, for some eight years now, without evi­
dence, proof, or concern about the factual, educational, 
or sociological impact of busing orders, to disrupt every 
conceivable neighborhood school attendance zone and 
their historic neighborhood sociological impact on the 
structure of each affected community, against the un­
proven hope of bringing about more "desegregation" 
by balancing racial mixtures in large, urban districts. 
See, e.g., Morgan v. Kerrigan, 530 F.2d 401 (1st Cir. 1976). 
United States v. Texas Educ. Agency, 532 F.2d 380 (5th Cir. 
1976); Nortkcross v. Board of Educ. of the Memphis City Schools, 
466 F.2d 890, S94 (6th Cir. 1972).

Will this Court not now examine, at long last, what 
its order in Swann unleashed in terms of the effective­
ness of busing (even assuming the legality of the 
"remedy"), in terms of educational benefit, and in 
terms of community impact in a democracy? If it does,

1 Green v. County School Bd. of New Kent Co., 391 U.S. 430, 20 L.Ed.2d 
716 (1968).
2 Swarm v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 28 L.Ed.2d 
554 (1971).

it will find that busing, certainly in urban districts, has 
met none of its supposed goals — and no plaintiff in any 
desegregation case has to Curry et al's knowledge ever 
proven or offered to prove that it does. (Certainly 
plaintiffs and the NAACP in this case offered no such 
proof.)

The supposed rationale for imposing the remedy of 
mandatory busing to cure some default on the part of a 
local school board, must be (1) the desegregation of the 
system, or perhaps (2) the improvement of the quality 
of educational experience, or perhaps (3) the lessening 
of racial hostility, or perhaps (4) the increase of self­
esteem among minority students.3 There is no 
evidence, now eight years after Swann, that mandatory 
busing achieves any of the supposed goals. There is ac­
cordingly no justification for this Court to continue to 
hope, as it did in Green some 11 years ago, that busing 
"promises to work."

As a "remedy" to bring about desegregation (or racial 
balance in schools), mandatory busing has been a 
failure in large urban areas, especially those surround­
ed by predominantly white suburban school districts. 
Dr. David Armor, Senior Social Scientist at Rand Cor­
poration,4 did a special study of 16 school districts with

33

3 See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 28-32,
28 L.Ed.2d 554, 575-77 (1971); N. St. John, School
Desegregation—Outcomes for Children (Wiley & Son, 1975); 
L. A. Graglia, Disaster by Decree 105-132 (1976).

4 Dr. Armor's resume is Curry Ex. 5.



similar characteristics to Dallas that were (1) 
predominantly white at the time desegregation efforts 
commenced by the federal courts through the use of 
mandatory busing (2) in a large urban area (containing 
more than 20,000 students) and (3) surrounded by 
predominantly white suburbs. (Tr. VII: 221-26, 234- 
35) Dr. Armor testified that in his opinion the ad­
vent of mandatory busing in these 16 school districts 
resulted in a rapid loss of white enrollment and 
resegregation of the schools, leaving minority students 
with no opportunity for an integrated education. (Tr. 
VII: 235-50; see Curry Ex. 6-9 for a tabulation of his 
findings (at Appendix pages 260-264).) Dr. Armor 
visited Dallas schools, reviewed the Dallas busing plans 
proposed by plaintiffs, by the NAACP, by the DISD, 
Dr. Hall, and by The Dallas Alliance, and testified that 
all would cause resegregation in Dallas because of bus­
ing (Tr. VII: 250-5S). Although experts produced by 
plaintiffs chipped-away at Dr. Armor's methodology, 
and although the District Court failed to make find­
ings requested by Curry et al reflecting Dr. Armor's 
conclusions, he is clearly right — and the courts are dis­
playing an ostrich-syndrome by refusing to recognize 
the obvious: The American parent who can avoid bus­
ing will do so.5

5 See opening statements in Calhoun v. Cook, 522 F.2d 717 (5th 
Cir., 1975) (recognizing the same disastrous result from court­
tampering with racial balances in Atlanta even prior to busing); 
testimony of James S. Coleman in this record at Tr. 307-08; L. A. 
Graglia, Disaster by Decree, (1976); District Judge Taylor's find­
ings in Tashy-1976, 412 F.Supp. at 1205; Dr. Armor's “Rand 
Paper, ' published following his work and testimony in Dallas, infra 
n. 16; Dr. Nathan Glazer's testimony, Tr. VIII: 276-77; Dr. Nolan 
Estes' (DISD Superintendent) testimony, Tr. I: 339-43, 352.

34 35

• )  •

• )  »

Professor James S. Coleman, Distinguished 
Professor of Sociology at the University of Chicago and 
the father of the massive "Coleman Report" on 
segregation in American Schools which is the basis of 
all sociological surveys in the field of race and educa­
tion, testified that in his opinion, after studying the 
larger cities in the United States, "extensive desegrega­
tion" "increases the loss of white-children from thedis- 
trict and as aconsequence, it has the longer-term effect 
of re-establishing predominantly black schools in the 
central city."6 (Tr. VIII: 307-08) He testified that exten­
sive desegregation in the DISD, based on his study and 
the effects of the 1971 order (Tasby-1971), would have 
the long-term effect of resegregating the races. (Tr. 
VIII: 309) In Professor Coleman's opinion "complete 
elimination of racial segregation through racial balance 
in a large city's schools is neither a desirable nor a feasi­
ble goal, any more than complete balance among ethnic 
groups in each school is desirable or feasible."(Tr. VIII: 
326)

Curry et al also brought Dr. John Letson, former 
Superintendent of the Atlanta school system during 
the time of its trials with court-ordered desegregation. 
Dr. Letson testified that in cities like Atlanta, where 
the remedy was merely threatened, the impact was a 
dramatic loss of white students. (Tr. VIII: 5-8) Dr. Let-

6 For some reason Professor Coleman's testimony is not indexed 
at the beginning of the transcript, but it appears in Volume VIII at 
pages 305-331.



son said in his opinion the adoption of a mandatory stu­
dent assignment plan would not have brought about a 
successful desegregation effort in Atlanta but would 
only have accelerated resegregation. (Tr. VIII: 12-13) 
He said every effort, no matter how sincere, to move 
Yvhite children in and toward the inner city failed, and 
that in his opinion, similar efforts, as depicted in the 
various Dallas plans, would fail. (Tr. VIII: 19-20) 
Testifying as a "pragmatic school administrator" who 
had spent a long period of years in honestly and 
honorably trying to accomplish this goal [of 
desegregation]," he said that he thought only volun­
tary plans, neighborhood schools, majority-to- 
minority transfers, and voluntary magnet schools 
would work. (Tr. VIII: 21-23) He was keenly disap­
pointed at the failure of desegregation efforts in Atlan­
ta, and condemned to failure the concept of desegrega­
tion, if that meant non-voluntary racial balancing by 
busing or otherwise. (Tr. VIII: 46, 48-49).

Further testifying at the request of Curry el al was Dr. 
O. Z. Stevens, Jr., Director of Research and Planning 
for the Memphis City School System. (Tr. VIII: 53) Dr. 
Stevens, through an elaborate, quite-thorough series 
of charts and tables (Curry Ex. 10, 11, and 12) detailed 
the utter destruction of any possibility of an integrated 
student body in Memphis due to post-Swann busing 
orders. (Tr. VIII: 55-110) Memphis, following such 
orders, lost 38,000 white students over and above what 
the research department had projected would be lost 
due to normal attrition, birth rate declines, and the like.

36
(Tr. VIII: 72) He testified that busing was not success­
ful in desegregation at any level of public schooling (1 
thru 12) and he did not think it would be successful in 
Dallas. (Tr. VIII: 107-110)

37

From this evidence, Dallas' own experience, and 
current sociological and educational studies, it is ap­
parent that busing exacerbates, and does not aid, urban 
district segregation. Dr. Stevens testified that the 
result of the Memphis desegregation plan had been to 
create "the largest segregated school system in the 
South . . . called the Memphis Private and Parochial 
School System," consisting of 36,000 white and 1,000 
black students. (Tr. VIII: 107)

The testimonies of Drs. Letson and Stevens detail 
the racial destruction of two fine school systems, and 
the obvious good faith attempts — and resulting 
agonies — of two dedicated school administrators who 
tried to prevent those results. Dr. William Webster, 
head of Research Evaluation and Information Systems 
at the DISD, and Dr. Nolan Estes, a distinguished 
educator and superintendent of DISD, agreed with the 
futility of busing todesegregate. Each of them cited the 
numerous studies which have been made in the field, all 
supporting the fact that as a remedy, court-ordered 
busing simply does not effectively achieve desegrega­
tion. (Webster, Tr. VIII: 160-61, 169-172; Estes, Tr. I: 
336-37, VI: 337-353).



38

Mandatory busing also is a failure in terms of up­
grading minority academic achievement, another sup­
posed purpose of busing. The evidence is overwhelm­
ing that mandatory busing achieves no positive results 
in academic achievement. Nancy H. St. John, in her 
acclaimed book School Desegregation—Outcomes for Children, 
reviews one hundred and twenty studies and concluded 
no pattern of positive results emerged. Witnesses Ar­
mor, Webster, and Glazer agreed.7 Even rebuttal wit­
nesses agreed St. John's work was the latest and most 
thorough available. Dr. Lawrence Felice ran a specific 
study in Waco, Texas, on educational achievement and 
found that bused minority students significantly 
achieved less well.3 9 The testimony of Dr. Armor, Dr. 
Estes, Dr. Coleman, and Dr. Nathan Glazer0 dis­
tinguished Professor of Sociology and Education at 
Harvard University and co-editor of Public Interest, a 
widely-respected, scholarly national quarterly, is uni­
formly to the effect that all studies demonstrate no positive 
results as a result of mandatory busing.

Drs. Armor and Felice further testified that studies 
indicate either no improvement or in an increase in 
racial hostility and a lowering of minority student self­

7 Tr. VII: 261-64 (Armor); Tr. VIII: 170-71 (Webster); Tr. VIII: 
271-73 (Glazer).
8 The study is Curry Ex. 18.
9 Tr. VII: 2ol-68 (Armor); Tr. I: 336-37 (Estes); Tr. VIII: 314-18
(Coleman), and Tr. VIII: 271-73 (Glazer).

esteem in those areas where mandatory busing was re­
quired by the United States courts.10

In summary, Curry et al brought to the trial substan­
tial evidence that mandatory busing — in Dallas and 
across the nation — is not effective or practical to 
desegregate, to enhance racial relations, or to increase 
academic achievement for any race. The evidence now 
shows, and the nation's most distinguished scholars 
and sociologists agree, that actually, and particularly in 
large urban districts, notably Dallas and Memphis, bus­
ing to achieve racial balance, or the threat of it, causes 
massive losses of white students from the public school 
system — thereby causing resegregation, the re­
creation of minority isolated schools,11 and the busing 
of minority students to predominantly minority 
schools. Petitioners Curry et al urge the Court to read 
in full the testimony of their witnesses, since their 
detailed charts, graphs, etc., obviously cannot be re­
stated here. This evidence fully supported the trial 
court's decision not to bus grades K-3 and 9-12 (except 
by choice), but shows the order to bus grades 4-8 to be 
without support, unrealistic, ineffective, inequitable 
and totally inappropriate.

In Dallas the transition from a 69% Anglo school 
system to one in which Anglos constitute less than 35%

39

10 Tr. VII: 269-74 (Armor); Tr. VIII: 215-19 (Felice).
11 As defined in 20 U.S.C. §1619(10) (the Civil Rights Act of 
1964, as amended 1972).



of the scholastic population with the loss of in excess of 
50,000 students is a dramatic disaster. This is in a city 
that is not suffering from urban blight or stagnant 
economic decay but is experiencing vibrant growth in 
all areas, except its central public school system.

Against this background of failure as a desegregation 
tool, failure as an educational tool, failure as a tool to 
achieve racial harmony, and failure as a tool to increase 
the self-esteem of minority students — all of which is in 
the record perhaps for the first time this complete since 
the advent of post-Swann busing — the blind per­
sistence of federal courts in ordering busing as a 
"remedy" defies human understanding (witness the 
large exodus of persons from the public school 
systems).

The Dallas experience in and of itself demonstrates 
the disaster to true desegregation caused by busing. It 
was indeed busing itself which created the 
predominantly black school at Carter High School, par­
tially relieved by now reversing the student 
assignments, and which is now the subject of appeal by 
some of the parties to this action. As the District Court 
noted, it ordered 1,000 white students bused in 1971, of 
whom only 50 appeared to stay in the DISD. (412 
F.Supp. at 1205).

The approach used by the federal courts after busing 
has been one of non-evidentiary hear-no-evil, sec-no- 
evil. Since Swann, circuit courts have simply seized on

40 41
busing as a given remedy, have required no proof that it 
would accomplish any result, and have consistently 
either denied advocates of neighborhood schools the 
right to show its inappropriate or harmful effects12 or 
have sanguinely brushed off the proof by refusing to 
enter the "battle of the sociological experts"13 14 or have 
pontifically disdained findings that . . an order . . . 
will probably result in an all-black student body, where 
nothing in the way of desegregation is accomplished 
and where neither the white students nor black 
students are benefited."

This Court in Swann started the large-scale busing 
business15 * merely by holding that it could be used as a 
"tool" to desegregate. It did so albeit there was no proof in 
the record of its effectiveness or its educational or 
sociological impact. However, the Court went to great 
lengths to re-emphasize its previously established re­
quirements for any such equitable "remedy": (1) The 
remedy must promise to work and (2) it must be"judg- 
ed by its effectiveness." (citing Green, supra, in both in­
stances), Swann, supra, 402 U.S. at 20, 25; 28 L.Ed.2d at 
569, 572. The Court in 1968 had in fact rejected a "free 
transfer" desegregation plan, because it felt the plan 
was not realistic since "it patently operates as a device

12 Morgan v. Kerrigan, 530 F.2d 401, 419-22 (1st Cir. 1976).
13 Tasby-1976, 412 F.Supp. n. 50 at 1205.
14 Lee v. Macon County Board of Education, 465 F.2d 369, 370 (5th Cir. 
1972).
15 It has undoubtedly produced "wind-fall profits" to bus 
makers and gasoline suppliers. See DISD Ex. 21 for the $11,600,- 
000+ projected cost of implementing the NA AC P's plan to bus 40,-
000 students.



42
to allow "segregation of the races___ " Monroe v. Board of
Comm r of the City of Jackson, 391 U.S. 450, 459, 20 L.Ed.2d 
/33, 739  (1968). Curiously, the Court has not yet 
applied the "resegregation" test to busing, for if it did, 
busing as a remedy would be immediately rejected.

If the Court is consistent, and if it views urban- 
district busing against the time-honored equitable con­
cepts of mercy, practicality, effectiveness, promise of 
reality, and the necessary balancing of the effects of 
busing on any of the segments of society it touches, e.g., 
the neighborhood schools, as they exist, the city politic, 
the parents and their children who (a) are non- 
agreeable busing subjects or (b) are agreeable busing 
subjects, and the school district itself, it will find, cer­
tainly in this record, no evidence or promise of success. 
Although it was not their burden, and although the 
District Court did not make their requested findings, 
Curry et al's evidence in this record, from dis­
tinguished educators and sociologists around the coun­
try and from Dallas own sad experience, shows that 
fusing is inequitable -  a failure.!- There was no

r *  ,̂urrent sociological and educational literature supports 
urry s positions. This was the testimony of Dr. Nathan Glazer 

distinguished Professor of Education and Sociology of Harvard 
Lniversity in this case. Tr. VIII: 271-73, 289. See also D Armor, 
VNhite Flight, Demographic Transition, and The Future of School 
Desegregation, Rand Paper No. P-5931 (Aug. 1978) (delivered to 
American Sociological Assn, San Francisco, September 1978)- 
L A. Crag!,a, Disaster by Decree (1978), Beyond Busing-Some 

onstructive Alternatives, (various monographs) (Amer. Educ 
Legal Defense Fund 1976); N St. John, School Desegregation- 
Outcomes for Children (1975).

43

evidence and no finding — to the contrary, to justify 
the busing ordered by the District Court.

< *  0

This Court must face the harsh reality that if indeed 
public school systems of the United States are to be 
preserv ed federal courts must reverse the resegregated 
urban school districts they have created.

Dr. Nolan Estes testified neighborhood schools have 
been effective educational tools.17 But more important 
in a period where the central cities are desperately 
fighting for survival and renewal, neighborhoods and a 
sense of neighborhood are essential to rejuvenation. 
The central focus of any neighborhood is its school, as 
it is only there where significant numbers of parents 
meet and work to preserve a vital ingredient of our 
republic.

•  9

Perhaps the real issue before the Court is whether 
school districts may adopt a racially neutral 
neighborhood school pattern of student assignment, 
with the escape hatch of majority to minority transfer 
options and magnet schools; or whether the 
neighborhood school concept, even with the escapes 
and safeguards of majority-minority transfers and

17 Tr. I: 344-45. The testimony was:
Q (Mr. Blumenthal): All right. And I believe you 

further testified that finally our evidence indicates that 
students can learn and probably learn better regardless of 
race in neighborhood type schools?

A (Dr. Estes): Wecan document that with ourexten- 
sive and elaborate systematic research and development 
program.



magnet schools, is unconstitutional because of the 
familiar housing patterns of American cities. Not only 
have school boards and citizens throughout the Unit­
ed States historically considered neighborhood schools 
important, but Congress in the Equal Educational Op­
portunity Act itself expressed a national view that such 
arrangement of student assignment is important. The 
fact that this nation has historically organized itself 
into ethnic neighborhoods is a familiar pattern. No one 
suggests that the "Jewish" schools of the lower east 
side of New York, the "Irish" schools of south Boston, 
the "Italian" schools in east Boston, and "Polish" 
schools in south Chicago are"inferior" because of their 
ethn icity or "segregated" because of their 
neighborhood concept. If the Court determines that 
black neighborhood schools are unconstitutional as the 
Fifth Circuit continually does under the indicting 
jargon of "one race schools," surely it should ajso deter­
mine that all other ethnic neighborhood schools are 
"one race” and unconstitutional.

The sole basis for the "desegregation" cases is that 
black schools were once mandated by state statute in 
some states prior to 1954. A generation has passed 
since that time, and measured in terms of a school 
system, two generations of 12-year students have 
come and gone. The Constitution has limits on 
"corruption of blood" even for those convicted of 
treason. Article III, Section 3; Bills of Attainder are pro­
hibited both to Congress, Article I, Section 9, and the 
States, Article I, Section 10. Surely the Courts are 
similarly limited in the tainting of generations, of 
public school students.

44
How many future generations are to be deprived of 

the privilege of going to a neighborhood school and of 
equal protection of the laws because their state 
legislatures once imposed a legal requirement of 
segregation upon their ancestors' school systems? 
Petitioners cannot be more eloquent than was Mr. 
Justice Powell in his defense of the neighborhood 
school system and the need for parents' concern and 
nurturing protection of their children expressed in the 
concurring opinion in Keyes v. School District No. 1, 413 
U.S. 189, 245-251, 37 L.Ed.2d 548, 584-587 (1973). 
Justice Powell there also foresaw the divisive spector 
looming behind the issue of busing:

45

Finally, courts in requiring so far-reaching a 
remedy as student transportation solely to 
maximize integration, risk setting in motion 
unpredictable and unmanageable social conse­
quences. No one can estimate the extent to 
which dismantling neighborhood education 
will hasten an exodus to private schools, leav- 
ing public school systems the preserve of 
the disadvantaged of both races, or guess 
how much impetus such dismantlement gives 
the movement from inner city to suburb, and 
the further geographical separation of the 
races. Nor do we know to what degree this 
remedy may cause deterioration of communi­
ty and parental support of public schools, or 
divert attention from the paramount goal of 
quality in education to a perennially divisive



debate over who is to be transported where.
(413 U.S. at 250, 37 L.Ed.2d at 587)

The answer to the question is in. All of the "unpre­
dictable and unmanageable social consequences" are 
now predictable and at least as destructive as feared. No 
Court has ever seen nor required evidence to show that 
the remedy of busing will in fact desegregate, and will 
not in fact resegregate and destroy familiar 
neighborhood ties — if not the ties that once brought 
young, middle class Americans to our cities. The best 
that can be said for all the sociological and educational 
evidence ever advanced in support of busing is that it is 
inconclusive and by no means supports such a con- 
scriptive, disruptive interference of federal courts into 
the private lives of millions of Americans.

The truth is, however, the busing diehards, and the 
Courts, simply will not open their eyes to the obvious. 
Mandatory busing to achieve "desegregation" is a 
failure, since it resegregates, it advances or promotes 
no significant social or educational goal, and it has run 
thousands of middle-class Americans out of the public 
school system and into private schools or suburbs. 
From leading intellectuals,18 pragmatic secondary 
school educators,19 and social scientists-educators,20

18 Nathan Clazer, Tr. VIII: 271-273.
19 John Letson (Atlanta), Tr. VIII: 5-20, 46-49; O. Z. Stevens 
(Memphis), Tr. VIII: 55-110; Nolan Estes (Dallas), Tr. I: 336-44.
20 David Armor (Rand Corporation), Tr. VIE 221-58; James S. 
Coleman (University of Chicago), Tr. VIII: 307-26; Lawrence 
Felice (Baylor University), Tr. VIII: 207-21.

46
the Court is being told its "tool" of equity is a bitter 
failure.

Probably Dr. Felice's surprise at the negative results 
of his study in Waco and his warning to minority 
families best capsulizes the busing dilemma:

First of all I was surprised by this. I didn't ex­
pect to find it and I don't think I really wanted 
to find it. (Tr. VIII: 219)

It seems to me I would really be fearful of us­
ing mandatory busing in a community where 
there wasn't a majority of the white com­
munity and black community in favor of it. It 
seems to me if the community, if everyone 
was in favor of it it would work. But on the 
other hand what I tend to conclude from the 
data that I have is that people were not in 
favor of this in Waco and it created problems.
And . . . well I guess a part of my being here or 
a part of the reason I am here too is to try and 
just to publish the results of this study and 
even to suggest to minority families that the 
results may not be necessarily beneficial. (Tr.
VIII: 220-21)

The attitude — and lack of success — in Waco is no 
different than in Atlanta, Boston, Dallas, Detroit, and 
the other major cities where the"promise"or"hope"of 
busing working and working now, has been dashed.

47



48

If this Court desires to create a system of private 
schools for the affluent, the rich and the suburban, and 
leave inner city schools predominantly minority and 
poor, it is free to do so. But this Court should be mind­
ful of what it is doing and why. Public School has been 
the common experience of most all Americans. It has 
been a social leveler, and the escape hatch for the up­
wardly mobile. When each student has an opportunity 
to go to any school in which he is in a minority by race 
and there are non-discriminatory neighborhood 
assignments otherwise, there is available all of the con­
stitutional requirements for an equal education oppor­
tunity school system. That is all the Constitution re­
quires. Busing takes the Court and the notion of equal 
educational opportunity into another realm — one not 
contemplated by the U.S. Constitution.

CONCLUSION

In 1965 the Fifth Circuit Court of Appeals mandated 
a racially neutral neighborhood school student assign­
ment plan for the DISD. The district operated under 
this plan for five years in accordance with the mandates 
of the court; the courts now have no standing to revise 
that plan to remedy racial imbalances that were not 
caused by any intentional segregative act of the DISD. 
Further, there is no showing of any intentional 
segregative action by the DISD which caused the racial 
imbalances sought to be remedied. Finally, there has 
never been a finding that the student assignment plan 
in Dallas or similar plans anywhere in fact

49

"desegregate" and the overwhelming evidence is that 
such plans resegregate the districts in which they were 
adopted, without any benefits. The hour is late for the 
Dallas Independent School District and for public 
school systems across the nation. The Court has un­
leashed forces which are changing the very nature of 
central cities of America, effectively removing the mid­
dle class from such cities and their school systems. In 
eight short years the Dallas Independent School Dis­
trict has gone from 69% Anglo to less than 35% Anglo. 
This is a demographic shift of colossal proportions.

Neighborhoods and cities cannot survive without 
the amenity of a viable and supported public school 
system. A racially neutral neighborhood school system 
does not violate the Constitution of the United States. 
This is especially true when the additional safeguard of 
a majority-to-minority transfer policy is assured, so 
that every student may attend, if the student chooses, 
any school in which his race is a minority. This Court 
should finally address the issue of racially neutral 
neighborhood schools, unclothed by the rhetoric of 
"vestiges" and unprejudiced by a belief that a school 
district is "segregating" because free people voluntarily 
select housing and the neighborhood in which they 
choose to live.

Respectfully submitted,

ROBERT L. BLUMENTHAL,



50

ROBERT H. MOW, JR., 
3000 One Main Place, 
Dallas, Texas 75250
Counsel for Petitioners, 
Donald E. Curry, et al.

Dated:

PROOF OF SERVICE

We, Robert L. Blumenthal and Robert H Mow Jr 
attorneys for Petitioners Curry et al. herein, and 
mem ers of the Bar of the Supreme Court of the I'nit-
ed States, hereby certify that on the____day of Mav
19/9, we served three copies of the foregoing Brief 
upon the following Counsel for Respondents, Counsel 
or other Petitioners, Counsel for Amicus Curiae, and 

the Respondent Pro Se:
Mr. Edward B. Cloutman, III 
3204 Elmbrook Drive, Suite 200 
P. O. Box 47072 
Dallas, Texas 75247

Ms Vilma S. Martinez 
Me x ica n - A m erica n Legal Defense 

Jnd Educational Fund 
23 Geary Street 
San Francisco, California 94108 
Mr. Nathaniel R. Jones 
1290 Broadway, 10th Floor 
New York, New York 10019

Mr. Thomas E. Ashton, III 
Dallas Legal Services 

Foundation, Inc.
°12 Commerce Street, Room 202 
Dallas. Texas 75202

Mr. E. Brice Cunningham 
260o Forest Avenue, Suite 202 
Dallas, Texas 75215

Mr. James A Donohoe 
1700 Republic National Bank 

Building
Dallas, Texas 75201

51

Mr. Lee Holt, City Attorney
New City Hall
Dallas, Texas 75201

Mr. John Bryant
8035 East R. L. Thornton
Dallas, Texas 75228

Mr. James G. Vetter, Jr.
555 Griffin Square Building 
Suite 920
Dallas, Texas 75202

Mr. James T. Maxwell (pro se) 
4440 Sigma Road, Suite 112 
Dallas, Texas 75240

Mr. Martin Frost 
777 South R. L. Thornton 

Freeway, Suite 120 
Dallas, Texas 75203

Mr. Warren Whitham 
210 Adolphus Tower 
Dallas, Texas 75202 

Mr. Mark Martin 
1200 One Main Place 
Dallas, Texas 75250

Mr. H. Ron White
1907 Elm Street, Suite 2100
Dallas, Texas 75201

by mailing same to such Counsel and Respondent pro 
se at their respective addresses and depositing the same 
in a United States mail box in an envelope properly ad­
dressed to such addresses with first class postage 
prepaid.

We further certify that all parties required to be serv­
ed have been served.

ROBERT L. BLUMENTHAL

ROBERT H. MOW, JR. 
Attorneys for Petitioners, 

Curry et al.