Churchill Area School District v. Hoots Brief of Respondent in Opposition to a Writ of Certiorari

    Nos. 81-2015; 81-2030; 81-2032; 81-2034; 81-2087; 81-2038

I n  T h e

^uprirntr GJnurt of te  IM tth  States
October T e e m , 1981

C h u r c h il l  A rea  S chool D istr ic t ,
Petitioner in No. 81-2015,

v.
D orothy H oots, et al., Respondents.

E dgewood S chool D istr ict  and 
T u r t le  Cr e e k  A rea  S chool D istr ict ,

Petitioners in No. 81-2030,
v.

D orothy H oots, et al.. Respondents.

E dward X .  H a l l e n b e r g ; A ll e g h e n y  Co un ty  S chool B oard and 
A ll e g h e n y  I n term ed iate U n it  B oard op S chool D irectors,

Petitioners in Nos. 81-2032 and 81-2034,
v.

D orothy H oots, et al., Respondents.

S w issv ale  A rea  S chool D istr ic t ,
Petitioner in No. 81-2037,

v.
D orothy H oots, et al., Respondents.

C om m onw ealth  op P e n n sy lv a n ia , et al.,
Petitioners in No. 81-2038,

v.
D orothy H oots, et al., Respondents.

BRIEF OF RESPONDENT GENERAL BRADDOCK AREA SCHOOL 
DISTRICT IN OPPOSITION TO A WRIT OF CERTIORARI TO 

THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

A nto n  W . B igm an  
210 Fort Pitt Common 
445 Fort Pitt Boulevard 
Pittsburgh, Pa. 15219 
(412) 471-2644

L inda R. B l u m k in *
L eonard B enow ich  
F ried , F r a n k , H arris, S iiriver  

& J acobson
(A partnership which includes pro­

fessional corporations)
One New York Plaza 
New York, N.Y. 10004 
(212) 820-8000
# Counsel of Record for Respondent 

General Braddock Area School 
District



QUESTIONS PRESENTED

1. Did the court of appeals cor­

rectly affirm the district court's finding 

that the school authorities' establishment 

of a black school district surrounded by 

white districts constituted de jure segrega­

tion in violation of the Fourteenth Amend­

ment?

2. Did the court of appeals cor­

rectly affirm the district court's order 

consolidating the black school district 

with four surrounding white districts to 

remedy the constitutional violation?

PARTIES BELOW

Dorothy Hoots, individually and as mother 

of her children Janelle Hoots and Jamie 

Hoots; Mrs. Addrallace Knight, individually 

and as mother and natural guardian of her 

children Ronald Knight, Loretta Knight, 

Terrance Knight, Marc Knight and Byron

1



Knight; Barbara Smith, individually and as 

mother and natural guardian of her children 

Tawanda Smith, Tevela Smith, Joseph Smith, 

Wesley Smith and Eric Smith; General Braddock 

Area School District;

Appellees;

Commonwealth of Pennsylvania; Pennsylvania 

State Board of Education and its Chairman,

W. Deming Lewis; Allegheny Intermediate 

Board of School Directors, and its Presi­

dent, Edward X. Hallenberg; Churchill Area 

School District; Edgewood School District, 

Swissvale Area School District; Turtle 

Creek Area School District;

Appellants.

11



TABLE OF CONTENTS

Page

Questions Presented ................. i

Parties Below ........................ i

Table of C o n t e n t s .............. .. . iii

Table of A u t h o r i t i e s ..........  v

Opinions Below ....................... viii

Jurisdiction ........................ ix

Constitutional and Statutory
Provisions I n v o l v e d ......... .. . ix

Statement of the Case . . ......... 1

A. The Consolidation Process . . 3

B. The L i t i g a t i o n ..........  1 3

Summary of A r g u m e n t ............ 22

Reasons for Denying the Writ . . .  26

I. THE DISTRICT COURT AND 
THE COURT OF APPEALS 
PROPERLY APPLIED THIS 
COURT'S WELL ESTABLISHED 
STANDARDS REQUIRING PROOF 
OF INTENTIONAL DISCRIMI­
NATION ........................ 26

II. HAVING FOUND A CONSTITU­
TIONAL VIOLATION, THE DIS­
TRICT COURT APPLIED THE

iii



Page

APPROPRIATE STANDARDS 
ESTABLISHED BY THIS COURT 
IN FASHIONING AN INTER­
DISTRICT REMEDY INVOLVING 
ONLY THOSE DISTRICTS FOUND 
TO HAVE BEEN INVOLVED IN OR 
AFFECTED BY THE VIOLATION. . . 40

Conclusion . . . . . . . . . . . . .  52

IV



TABLE OF AUTHORITIES

CASES PAGE

Columbus Board of Education v.
Penick, 443 U.S. 449 (1979)..... 26-27,33

Dayton Board of Education v.
Brinkman, 433 U.S. 406 (1977)..... 47

Evans v. Buchanan, 582 F.2d 750 
(3d Cir. 1978) (en banc), cert. 
denied, 446 U.S. 923 (1980)....... 49

Hoots v. Commonwealth of Pennsylvania,
334 F. Supp. 820 (W.D. Pa. 1971).. passim

Hoots v. Commonwealth of Pennsylvania,
359 F. Supp. 807 (W.D. Pa. 1973).. passim

Hoots v. Commonwealth of Pennsylvania,
495 F .2d 1095 (3d Cir.), cert, denied,
419 U.S. 884 (1974)............. ... 1,16-17

Hoots v. Commmonwealth of Pennsylvania,
587 F .2d 1340 (3d Cir. 1978).......  1,19

Hoots v. Commonwealth of Pennsylvania,
639 F . 2d 972 (3d Cir. 1981).......  1,19

Hoots v. Commonwealth of Pennsylvania,
510 F. Supp. 615 (W.D. Pa. 1981).. passim

Hoots v. Commonwealth of Pennsylvania,
No. 71-258 (W.D. Pa. April 16,
1981).................................  2

Hoots v. Commonwealth of Pennsylvania,
No. 71-258 (W.D. Pa. April 28,
1981).................................  passim

v



CASES (continued) PAGE

Hoots v. Commonwealth of Pennsylvania,
672 F .2d 1107 (3d Cir. 1982).,.... passim

Hoots v. Weber, No. 79-1474 (3d Cir.
May 2, 1979).................   19

Hoots v. Weber, No. 80-2124 (3d
Cir. September 9, 1980)........... 19

Keyes v. School District No, 1 , 413
U.S. 189 (1973)...........   passim

Milliken v. Bradley, 418 U.S. 717
(1974) ........................   passim

Milliken v. Bradley, 433 U.S. 267
(1977) .......................  45

Morgan Guaranty Trust Co. v. Martin,
466 F .2d 593 (7th Cir. 1972)...... 17

Morrilton v. United States, 606 F.2d 
222 (8th Cir. 1979), cert, denied,
444 U.S. 1071 (1980).............. 43,46

Mt. Healthy City Board of Education
v. Doyle, 429 U.S. 274 (1977)..... 37

Provident Tradesmens Bank and
Trust Co. v. Patterson, 390 U.S.
102 (1968)___ .................... 17

Swann v. Charlotte - Mecklenburg 
Board of Education, 402 U.S. 1 
(1971)..................... ......... 40,45

vi



CASES (continued) PAGE

United States v. Board o f School 
Commisioners, 573 F.2d 400 (7th 
Cir .) , cert. denied, sub nom.,
Bowen v. United States , 439 U .S .
824 (1978)...........................  43

United States v. State of Missouri ,
515 F .2d 1365 (8th Cir. 1975)..... 44

Village of Arlington Heights v .
Metropolitan Housing Development 
Corporation, 429 U.S. 252 
(1977)...........................   passim

Washington v. Davis, 426 U.S. 229
(1976)................................  26

STATUTES

42 U.S.C. §§1981, 1983................  13

Public School Code of 1949, Act 
of March 10, 1949, P.L. 30, Art.
2, 201, 24 P.S. §2-201..............  3-4

Act of September 12, 1961, P.L.
1283, No. 561, 24 P.S. §2-281
et seq. [Act 561]...................  3,5-7

Act of August 8, 1963, P.L. 564,
No. 299, 24 P.S. §2-290 et seq.
[Act 299]...........................  3,6,7,9

Act of July 8, 1968, P.L. 299,
No. 150, 24 P.S. §2400.1 et seq.
[Act 150].........................  3,9,10,15

v n



OPINIONS BELOW

The opinion of the Third Circuit 

affirming the district court in all re­

spects is reported at Hoots v. Commonwealth 

of Pennsylvania, 672 F.2d 1107 (1982) . The 

district court's opinion finding a constitu­

tional violation is reported at Hoots v. 

Commonwealth of Pennsylvania, 359 F. Supp. 

807 (W.D. Pa. 1973). One of the district 

court's two opinions on the remedy ordered 

in this case is reported at Hoots v. Com­

monwealth of Pennsylvania, 510 F. Supp. 615 

(W.D. Pa. 1981). The other decision is 

unpublished, but has been reprinted as Ap­

pendix E to the Joint Appendix filed by 

Swissvale Area School District, Bdgewood 

School District and Turtle Creek Area 

School District.

v i i  i



JURISDICTION

This Court has jurisdiction to re­

view the final judgment of the Third Cir­

cuit, entered on February 1, 1982, pursuant 

to 28 U.S.C. §1254 (1) .

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

United States Constitution, Four­

teenth Amendment, Section 1:

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

Rule 19(a), Federal Rules of Civil

Procedure.

IX



24 P.S. §2-281, et seq. (Act 561)

24 P.S. §2-290, et seq. (Act 299)

24 P.S. §2-2400.1, et seq.

(Act 150).

Standards for Reorganization 

under Act 299.

Standards for Reorganization 

under Act 150.

The texts of Rule 1 9 (a) , Federal 

Rules of Civil Procedure, relevant Pennsyl­

vania statutes, and the Standards of Reorga­

nization of school districts are set forth 

in Appendix D to the Churchill Area School 

District's Petition for Certiorari.

x



STATEMENT OF THE CASE

This lawsuit was commenced in 

1971 to correct a condition of intentional 

de jure segregation brought about as a re­

sult of the statutorily mandated consolida­

tion of school districts in the central 

eastern area of Allegheny County, east of 

Pittsburgh.^ This brief is submitted by

This case has been extensively re­
ported. The principal decisions to 
which reference will be made are:
Hoots v. Commonwealth of Pennsylvania, 
334 F. Supp. 820 (W.D. Pa. 1971)
(Hoots I)
Hoots v. Commonwealth of Pennsylvania, 
359 F. Supp. 807 (W.D. Pa. 1973)
(Hoots II)
Hoots v. Commonwealth of Pennsylvania, 
495 F.2d 1095 (3d Cir.), cert, denied, 
419 U.S. 884 (1974) (Hoots III)
Hoots v. Commonwealth of Pennsylvania, 
587 F .2d 1340 (3d Cir. 1980)
(Hoots IV)
Hoots v. Commonwealth of Pennsylvania, 
639 F .2d 972 (3d Cir. 1981) (Hoots V ) 
Hoots v. Commonwealth of Pennsylvania, 
510 F. Supp. 615 (W.D. Pa. 1981)
(Hoots V I )
Hoots v. Commonwealth of Pennsylvania,

(Footnote Continued)

1



respondent General Braddock Area School 

District ("General Braddock") whose 

"intentional creation as a racially identi­

fiable black school district constituted 

the constitutional violation found in this 

case." Hoots VIII, (892a).1 2

The complaint in this case did 

not allege, and respondents have never as­

serted that there was de jure school segre­

gation in Pennsylvania prior to the statu­

tory program of mandatory school district

1 (Footnote Continued)

No. 71-258 (W.D. Pa. April 16, 1981) 
(Hoots VII)
Hoots v. Commonwealth of Pennsylvania, 
No. 71-258 (W.D. Pa. April 28, 1981) 
(Hoots VIII)
Hoots v. Commonwealth of Pennsylvania, 
672 F .2d 1107 (3d Cir. 1982)
(Hoots IX) .

2 All citations in the form "(___  a)"
refer to the page in the record on ap­
peal to the Third Circuit.

2



consolidation which began in 1961. Rather, 

the complaint alleged, and the district 

court and court of appeals found, that it 

was the entire process by which the 

boundaries of the school districts in this 

portion of central eastern Allegheny County 

were redrawn that constituted the constitu­

tional violation and gave rise to the condi­

tion of de jure segregation found, and 

remedied, by the district court.

A . The Consolidation Process

The consolidation program was 

mandated by a series of related statutes: 

the Act of September 12, 1961, P.L. 1283,

No. 561, 24 P.S. §2-281 et seg. (Act 561); 

the Act of August 8, 1963, P.L. 564, No.

299, 24 P.S. §2-290 et seq. (Act 299); and 

the Act of July 8, 1968, P.L. 299, No. 150, 

24 P.S. §2400.1 et seq. (Act 150). Prior 

to Act 561, the Public School Code of 1949,

3



Act of March 10, 1949, P.L. 30, Art. 2,

§201, 24 P.S. §2-201 (as amended) provided 

that each city, incorporated town, borough 

or township shall constitute a separate 

school district. Thus, school districts 

generally were coterminous with municipalities.

Over the period of consolidation, 

the relevant state and county boards combined 

white districts with one another -- or left 

them independent —  rather than join them 

with one or more of General Braddock's 

three predecessor districts. As part of 

the constitutional violation alleged and 

proven in this case, the white districts lo­

cated near General Braddock's predecessor 

districts of Braddock, North Braddock and 

Rankin, were removed seriatim from consider­

ation as possible merger candidates.

On December 18, 1962 the Allegheny 

County Board of School Directors ("County

4



Board") adopted a school reorganization 

plan pursuant to Act 561. This proposal 

recommended the consolidation of the following 

school districts: Braddock (36.16% black);3

North Braddock (11.02% black); Rankin (35.39% 

black); East Pittsburgh (3.85% black); and 

Braddock Hills (11.75% black).4 Despite

The figures set out in parentheses 
reflect the percentage of non-white 
population in the identified school 
district as of 1970. See, Hoots I I ,
359 F. Supp. at 816. The non-white 
enrollments as of 1964 for each district, 
to the extent they are available are 
as follows: Braddock - 57%; Churchill-
0.16%; East Pittsburgh - 14%; Edgewood- 
0.00%; North Braddock - 14%; Rankin- 
46%; Swissvale - 5.5%; Turtle Creek- 
0.00%. See, exhibit 17 (331a-337a).
The admissibility of this exhibit was 
stipulated to. (703a).

By the end of the reorganization pro­
cess, after all the other neighboring 
districts had been consolidated with 
one another or allowed to remain inde­
pendent, Rankin, Braddock and North 
Braddock were consolidated to form 
General Braddock. 359 F. Supp. at 
819.

5



its adoption by the County Board, this plan 

was not reviewed by the State Board of Educa­

tion (the "State Board") and could not be 

effectuated because Act 561 was superseded 

by Act 299. (696a). Had this proposal been

adopted, the population of the new district 

would have been less than 30% black. S e e , 

Hoots I I , 359 F . Supp. at 816, finding of 

fact 35.5

On May 11, 1964, pursuant to Act

General Braddock does not suggest that 
this particular consolidation of dis­
tricts would have been free of consti­
tutional imped intent. Rather, the ra­
cial statistics that would have result­
ed from various formally proposed (but 
ultimately abandoned or rejected) com­
binations are cited merely to under­
line, as the district court found, 359 
F. Supp. at 819, that the creation of 
General Braddock resulted in the highest 
possible percentage of minority popula­
tion and that specific proposals which 
would have resulted in less segregation 
were killed during the consolidation 
process.

6



299, the County Board proposed the consoli­

dation of Braddock, North Braddock, Rankin, 

Turtle Creek (0.18% black) and East Pittsburgh. 

(696a). Although the Braddock and Rankin 

districts supported this proposal, it was 

opposed by Turtle Creek and East Pittsburgh 

—  both of which immediately appealed to 

the State Board seeking a modification of 

the proposal —  and by North Braddock. The 

East Pittsburgh-Turtle Creek appeal was 

heard on October 23, 1964; the hearing on 

North Braddock's opposition to the Plan was 

held on March 24, 1965. Even without the 

inclusion of Braddock Hills —  which had 

been suggested in the County Board's proposal 

under Act 561 -- the student population in 

this district, in 1967, would have been in 

excess of 73% white. Hoots I I , 359 F. Supp. 

at 817, finding of fact 42.

At the March 24, 1965 hearing,

7



James Rowland, a member of the State Board, 

inquired as to the racial composition of 

the schools involved in the County Board's 

proposal. There was testimony at that 

hearing showing that in Braddock, one 

elementary school was 55% black, while a 

second was 95% black; the junior high school 

was 80% black, while the high school was 40% 

black. In Rankin the high school was 40%, 

and the elementary school 51% black. In 

North Braddock the schools were approxi­

mately 8 or 9% black, with Braddock Hills 

approximating 10% black. (697a~698a). In 

East Pittsburgh the black school population 

approximated 6% as of 1967 (332a), while 

Turtle Creek at that time had no blacks 

attending its schools. I d . Turtle Creek 

and East Pittsburgh suggested that they 

be merged to form their own district, or, 

in the alternative, that they be

8



included in another district, such as 

Churchill (0.11% black).6

On November 25, 1965 the State 

Board granted the Turtle Creek-East 

Pittsburgh request and merged them into a 

separate district. This district was con­

solidated under Act 150 which superseded, 

with few substantive changes, Act 299. 

(699a).7

Churchill was formed on July 1, 1966
through consolidation of Forest Hills
(0.27% black), Wilkins Township (0.56%
black) and Chalfont (0.88% black) under
Act 299. As a matter of state law, as
it concedes, Churchill Petition at
4, it was, under Act 299, as it had been
under Act 561, available for additional
consolidation. Churchill's formation
as an essentially all-white district,
and its subsequent nonjoinder with neighboring
districts during the subsequent stages
of the reorganization process were pursuant
to the constitutional violation found
here.

Both Act 299 and Act 150 provided that 
the County Board's proposals and the 
State Board's review and consideration

(Footnote Continued)

9



On October 7, 1968, pursuant to 

Act 150, the County Board adopted a reorga­

nization plan proposing the consolidation 

of Braddock, North Braddock and Rankin into 

a single district; the consolidation of 

East Pittsburgh and Turtle Creek into a sin­

gle district; the consolidation of 

Swissvale and Braddock Hills into another 

district; and that Edgewood district (1.29% 

black) should remain as a separate school 

district. (700a) .

On September 14, 1968, however, 

prior to the adoption of this proposal, the 

County Board conducted hearings at which 7

7 (Footnote Continued)

of such proposals were to be in confor­
mity with certain statutory and admin­
istrative standards and guidelines re­
lating to the ability of any newly con­
solidated district to provide a compre­
hensive education. Hoots I I , 359 F. 
Supp. at 812, finding of fact 11.

10



Braddock, North Braddock and Rankin opposed 

the proposal consolidating them into a sin­

gle district. The testimony at that hear­

ing showed that: (1) the creation of a

larger district was necessary given the un­

sound financial position of the three 

districts; (2) there would be an extreme ec­

onomic burden placed on North Braddock and 

upon Rankin, especially in light of 

Rankin's substantial indebtedness; and (3) 

the resulting district would be racially 

imbalanced because it would consist of a 

pupil population in excess of 45% black, 

while the adjacent school district result­

ing from the East Pittsburgh-Turtle Creek 

consolidation would have a pupil population 

less than 5% black. (700a-701a). After 

the County Board adopted the proposal not­

withstanding the testimony presented at the 

September hearings, Braddock, North

11



Braddock and Rankin appealed to the State 

Board for a modification of the proposal.

A hearing before the State Board was held 

on February 25, 1969, at which time the State 

Board admitted into its record enrollment 

statistics prepared by the Human Relations 

Commission of Pennsylvania, broken down by 

race, for each school district of Allegheny 

County. On May 9, 1969 the State Board upheld 

the consolidation of Braddock, North Braddock 

and Rankin into one district -- General Brad­

dock, the present respondent. (702a).

General Braddock was created as 

of July 1, 1971. Before the end of the 

first school year following the consolida­

tion, the school district was found to be 

distressed —  bankrupt —  by the Allegheny 

County Court of Common Pleas, in April of 

1972. In Hoots VIII, almost a full decade 

after General Braddock had been established,

12



the district court, in its decision 

imposing the remedy, found that the student 

population of General Braddock in April of 

1981 was 63% black. (892a).

B . The Litigation

Plaintiffs commenced this action 

on June 9, 1971 alleging that their rights 

under the Equal Protection Clause of the 

Fourteenth Amendment and under the Federal 

Civil Rights Act, 42 U.S.C. §§1981, 1983 

had been violated. In December of 1971 the 

district court denied the defendants' mo­

tion to dismiss stating there was "no doubt 

that the allegations of deliberate creation 

of a racially segregated school district 

state a cause of action". Hoots I , 334 F. 

Supp. 820, 822. In addition, although the 

district court denied the defendants' mo­

tion for the compulsory joinder of the indi­

vidual school districts as indispensable

13



parties, it noted that the districts would 

be permitted to intervene if they so chose 

and "insisted [the Commonwealth] give them 

notice" of the suit. Id. at 821, 823. De­

spite a written request by the Attorney 

General of Pennsylvania urging them to 

"intervene in this action immediately,'’ the 

districts chose not to intervene and in­

formed the court that they had "no interest 

in being" in the lawsuit, and were "delib­

erately not intervening." ^d. at 821.v

The trial of this action began on 

December 5, 1972. On May 15, 1973 the dis­

trict court held that General Braddock, 

"racially identifiable as a black school 

district," Hoots I I , 359 F. Supp. at 817, 

finding of fact 40, was created as the re­

sult of intentional racial segregation. The 

district court held that the State and 

County Boards "knew or should have known

14



they were creating a racially segregated 

school district as of the dates they pro­

posed and approved" of General Braddock.

Id. at 818, finding of fact 50. Indeed, 

while noting that the "natural foreseeable 

and actual effect of combining Braddock, 

North Braddock and Rankin into one school 

district was to perpetuate, exacerbate and 

maximize racial segregation" within the 

area, id. at 821, finding of fact 57, the 

district court specifically found that as 

of the time the Boards proposed and ap­

proved the consolidation plans, "no other 

combination of school districts within this 

portion of Allegheny County would have cre­

ated a school district (of at least 4,000 

pupils as required by Act 150) with as 

large a percentage of nonwhite enrollment." 

Id. at 819, finding of fact 51. The court 

ordered the Commonwealth defendants to

15



prepare a comprehensive plan of desegregation 

which plan would "alter the boundary lines 

of the General Braddock Area School Dis­

trict and, as appropriate, of adjacent 

and/or nearby school districts." I d . at 

824.

It was not until June 1973, some 

six months after the trial had ended, that 

Turtle Creek and Churchill sought to inter­

vene and be heard on the question of the 

constitutional violation, already ruled 

upon by the district court. The district 

court denied the motions as untimely, and 

the Third Circuit affirmed their denial.

Hoots III, 495 F .2d 1095 (3d C i r .), cert. 

denied, 419 U.S. 884 (1 9 7 4 ).8 while the ap-

Petitioners are still trying to 
relitigate the law of the case with re­
spect to their untimely intervention 
attempt. Although the school dis­
tricts had "clear warning" early on

(Footnote Continued)

16



peal was pending, Turtle Creek and

(Footnote Continued)

from the Commonwealth’s Attorney- 
General of the "likely necessity for 
intervention," they made a deliberate 
choice not to appear. Hoots III, 495 
F.2d at 1097. Even if the peti­
tioner districts met the standards for 
necessary or indispensable parties, 
which General Braddock denies and the 
district court correctly refused to 
find, Hoots I , 334 F. Supp. 820, their 
nonjoinder was harmless error because 
of their deliberate choice to reject 
the court's contemporaneous offer of 
intervenor status. Moreover, the courts 
have refused to countenance such dilatory 
conduct. S e e , e.g., Provident Tradesmens 
Bank and Trust Co. v. Patterson, 390 
U . S . 102 (1968); Morgan Guaranty Trust 
Co. v. Martin, 466 F.2d 593 (7th Cir.
1972) (holding that one who knows of 
the pendency of an action which may affect 
his interests and specifically disclaims 
an interest in the action will not be 
regarded as an indispensable party).
In any event, the districts had the op­
portunity — ■ of which they availed them­
selves —  to submit evidence with re­
spect to liability during the remedy 
hearings. That evidence —  notably the 
testimony of Dr. Paul Christman, Chairman 
of the State Board (2701a-2705a, 2737a, 
2761a- 2762a), —  strongly supported,

(Footnote Continued)

17



Churchill were joined by the other school 

districts, who sought to intervene and be 

heard on the desegregation plan submitted 

by the Commonwealth in compliance with the 

court's order. The district court permit­

ted intervention on the question of remedy.

Over the course of seven years, 

from 1973 to 1980, the district court held 

extensive hearings on various consolidation 

and other types of plans proposed by the 

Commonwealth. Throughout this remedial pe- 

riod, plaintiffs attempted to appeal to the 

Third Circuit in order to obtain relief.

The first appeal, from an order denying ap­

proval of one of the Commonwealth's consoli-

(Footnote Continued)

rather than negated, the District Court's 
liability holding in Hoots II and was 
before the court when it explicitly reaffirmed 
its liability decision in Hoots I I , 
in light of Keyes. (2739a, 2761a).

18



dation plans, was dismissed for lack of ap­

pellate jurisdiction. Hoots I V , 587 f .2d 

1340 (3d Cir. 1978). Subsequently, on two 

occasions, plaintiffs sought an order of 

mandamus from the court of appeals direct­

ing the imposition of a remedy. Hoots v. 

Weber, No. 79-1474 (3d Cir. May 2, 1979);

Hoots v. Weber, No. 80-2124 (3d Cir. September 

9, 1980). In a second appeal, the Third 

Circuit directed the district court to expe­

dite its consideration of the remedial ques­

tions before it so as to issue a remedy 

within 90 days, in order to implement that 

plan for the 1981-1982 school year. Hoots V, 

639 F.2d 972 (3d Cir. 1981) .

In an opinion issued on March 5,

1981, the district court reaffirmed its 

findings and conclusions issued in 1973, 

and stated that an interdistrict remedy 

could properly include those school

19



districts adjacent or near to General 

Braddock. Rejecting the districts' argu­

ments that they were not involved in the vi­

olation and therefore could not be implicat­

ed in such a remedy, the district court 

held that H [a] multidistrict remedy can be 

applied to surrounding districts that have 

not been found to have committed a constitu­

tional violation themselves where their 

boundaries were drawn or redrawn during the 

course of the same violation which created 

the segregated school districts." Hoots V I , 

510 F. Supp. 615, 619. On April 28, 1981, 

after additional hearings, the district 

court ordered that certain districts 

neighboring General Braddock —  petitioners 

—  be consolidated and merged into a single 

school district, known as the Woodland 

Hills School District.

Petitioners appealed from the

20



district court's order directing the imposi­

tion of this remedy. Petitioners also ap­

pealed the court's findings of segregative 

intent on the part of the State and County 

Boards in the creation of General Braddock. 

On February 1, 1982, the Third Circuit af­

firmed the district court in all respects. 

Hoots I X , 672 F .2d 1107 (3d Cir. 1982).

With respect to the issue of the standard 

applied by the district court to determine 

whether a constitutional violation oc­

curred, the court of appeals held that 

"there is no question that the district 

court utilized the correct legal standard 

—  [the requirement of proof of] inten­

tional or purposeful segregation," 3h3. at 

1116. With respect to the propriety of the 

remedy, the court of appeals held that the 

district court "tailored the relief granted 

to fit the actual showing of de jure

21



discrimination by all of the districts in­

volved. Indeed, the remedy fashioned by the 

district court here was narrowly drawn."

I d . at 1120. And, the court held that "the 

district court did not abuse its discretion 

in fashioning its multidistrict remedy. in­

deed, the district court's action fully complied; 

with all applicable standards and was support­

ed by more than enough evidence." Id. at 1124.

It is from the judgment of the 

Third Circuit that petitioners seek a writ 

of certiorari.

SUMMARY OF ARGUMENT

Certiorari is inappropriate in 

this case because the lower courts have cor­

rectly applied well-established Supreme 

Court precedent. There are no novel issues 

of law nor conflicting circuit court deci­

sions requiring this Court's resolution.

Certiorari has consistently been denied in

22



recent cases raising the same arguments on 

similar facts.

The lower courts properly applied 

the standard of segregative intent set

forth in Keyes v. School District No._1,

413 U.S. 189 (1973) and succeeding cases 

and the remedial rule of Milliken v.

Bradley, 418 U.S. 717 (1974) and its 

progeny. Petitioners' efforts to frame 

eyecatching issues notwithstanding, the 

lower courts did not hold: that intent can

be based solely on foreseeability of dispar­

ate impact,^ that a difference in racial 

mix alone violates the Equal Protection 

Clause,10 or that a failure to maximize de-

Commonwealth Petition at i.

Churchill Petition at i; Hallenberg 
and County School Board Petitions at 
i .

23



segregation alone is unlawful.H  Nor did 

the lower courts impose a remedy on school 

districts not "involved" in the constitu­

tional violation.12

Rather, on the basis of all the 

evidence, the district court found -- and 

the circuit court affirmed -- that the 

plaintiff's established a legally sufficient 

case of intentional discrimination that the 

school authorities failed to rebut. More­

over, the district court properly fashioned 

—  and the circuit court affirmed -- an 

interdistrict remedy including only those 

districts the establishment of which derived 

from the unlawful line-drawing process and 

which were thus irrefutably "involved" in 11 12

11 Edgewood-Turtie Creek Petition at i.

12 See Churchill Petition at i; Swissvale 
Petition at i; Hallenberg and County 
School Board Petitions at i.

2 4



the violation.

Prior to the consolidations at 

issue, there were fifteen rather than five 

school districts in the relevant part of 

central eastern Allegheny County. The Com­

monwealth of Pennsylvania, not this case, 

abolished those traditional boundaries.

Once the Commonwealth undertook redis­

tricting, it assumed the burden of act­

ing without racial bias. Because the Com­

monwealth failed to meet that responsibil­

ity, the remedial powers of the federal 

courts were properly brought to bear.

25



REASONS FOR DENYING THE WRIT

I. THE DISTRICT COURT AND THE COURT OF 
APPEALS PROPERLY APPLIED THIS COURT'S 
WELL ESTABLISHED STANDARDS REQUIRING 
PROOF OF INTENTIONAL DISCRIMINATION

The applicable standard for prov­

ing segregative intent in Northern school 

desegregation cases is clearly set forth, 

for present purposes, in the decisions of 

this Court, including Keyes v. School Dis­

trict No. 1 , 413 U.S. 189 (1973);

Washington v. Davis, 426 U.S. 229 (1976); 

Village of Arlington Heights v. Metropoli­

tan Housing Development Corp., 429 U.S. 252 

(1977); and Columbus Board of Education 

v. Penick, 443 U.S. 449 (1979). These 

cases teach that discriminatory intent may 

be established through the use of presump­

tions and inferences as well as direct and 

circumstantial evidence. See, e.g,, 

Washington v. Davis, supra, 426 U.S. at 242

26



("an invidious discriminatory purpose may 

often be inferred from the totality of the 

relevant facts.").; Arlington Heights, 

supra, 429 U.S. at 266 ("Determining 

whether invidious discriminatory purpose 

was a motivating factor demands a sensitive 

inquiry into such circumstantial and direct 

evidence of intent as may be available."); 

Columbus Bd. of E d . , supra, 443 U.S. at 

464 ("actions having foreseeable and antici­

pated disparate impact are relevant evi­

dence to prove the ultimate fact, forbidden 

purpose."). They require that plaintiffs 

establish merely that race was "a" factor, 

and not the "sole" or "predominant" factor, 

in order to make out a prima facie case of 

a constitutional violation. Arlington 

Heights, supra, 429 U.S. at 265 ("Davis 

does not require a plaintiff to prove that 

the challenged action rests solely on

27



racially discriminatory purposes.").

Despite the fact that the dis­

trict court's May 15, 1973 decision, Hoots 

I I , 359 F. Supp. 807, setting forth its 

findings of fact and conclusions of law was 

banded down prior to this Court's decision 

in Keyes, it is clear that the district 

court nevertheless applied the appropriate 

standard. At the outset of this case, for 

example, the district court denied the de-
V-

fondants' motion to dismiss because it 

recognized that the complaint alleged that 

" [i] n preparing and adopting the school re­

organization plans defendants intentionally 

and knowingly created racially segregated 

school districts." Hoots I , 334 F. Supp. 

at 821-822. And, in Hoots I I , its first 

decision on the merits, the district court 

concluded that:

A violation of the Fourteenth
Amendment has occurred when public

28



school authorities have made educa­
tional policy decisions which were 
based wholly or in part on considera­
tions of the race of students and 
which contributed to increasing 
racial segregation in the public 
schools.

359 F. Supp. at 822. As the Third Circuit 

noted, "This is the language of intention 

and purpose." 672 F.2d at 1115. Addition­

ally, on October 24, 1975, after Keyes was 

handed down, the district court permitted 

additional testimony and argument on the 

violation issue. In the course of these 

hearings, counsel for Churchill asserted 

that the district court "would have come to 

a different conclusion if [it] were making 

[its] Order on those facts after Keyes".

The district court flatly disagreed, noting 

that "this is one place where you can say 

[you are] 100 percent wrong." (2739a). In­

deed, the court that day, after a review of 

the issue, reaffirmed its earlier finding

29



of a "purposefully" segregated school dis­

trict. (2761a).

In addition to applying the appro 

priate legal standard, the district court 

found ample evidence in the record to sup­

port its finding of purposeful segregation. 

The court of appeals reviewed no fewer than 

nine facts or inferences found by the dis­

trict court. These included the following: 

(1) testimony from a local school official 

that he and others had pressured the State 

and County Boards to insulate the white dis 

tricts from the others because of "the 

black issue"; (2) evidence of a State Board 

staff report that racial considerations in­

fluenced and motivated the opposition of 

certain districts to a merger with Braddock 

Rankin and North Braddock; (3) a statement 

tending to indicate that the County Board 

did not consider Churchill for any merger

30



because Churchill opposed such moves on the 

basis of racial concerns; (4) a statement 

by the president of the County Board that 

the Board was "painfully aware of [the fact] 

that . . . over the years the surrounding 

school districts had sought to avoid a school 

merger which would include Braddock and Rankin 

in their school district and that it looked 

like [North] Braddock was going to be 'left 

holding the bag'." 672 F.2d at 1115-1118.

Based on these and other findings, 

the district court found that the State and 

County Boards were influenced by the mani­

fest desires of the surrounding communities 

"to avoid being placed in a school district 

with Braddock and Rankin because of the high 

concentration of blacks within these two 

municipalities." 359 F. Supp. at 821. Con­

sequently, the district court concluded 

that "race was a factor" in the formation

31



of General Braddock. 359 F. Supp. at 821, 

reaffirmed, 510 F. Supp. at 619.; Hoots I X , 

672 F.2d at 1116. In addition, it found 

"no evidence" that the consolidation plans 

or the configuration of the school dis­

tricts were "rationally related to any le­

gitimate purpose and [that] . . . those 

boundaries did not promote any valid state 

interest." 510 F. Supp. at 619, reaffirming 

359 F. Supp. at 821, 822.

The district court found it sig­

nificant that the State and County Boards 

disregarded many of the statutory and admin­

istrative guidelines established in order 

to facilitate the creation of school dis­

tricts capable of providing abusive educa­

tion. 359 F. Supp. at 819-20, finding of 

fact 52. Perhaps the most telling example 

of this point is that except for Churchill 

and General Braddock, each of the other

32



districts was created with less than the 

minimum number of students required by the 

guidelines. Id.

Thus, in addition to the direct 

and circumstantial evidence and the permis­

sible findings of foreseeable effect, see, 

Columbus Bd, of Ed., supra, the conscious, 

systematic departures from the established 

guidelines, see, Arlington Heights, supra, 

provide ample evidence that the district 

court properly required proof of purposeful 

intent and that such proof, both direct and 

inferential, was and continues to be permis­

sible evidence under the decisions of this 

Court. _Id. There is no serious question 

that the district court properly considered 

and weighed the direct and circumstantial 

evidence presented to it. As the court of 

appeals found, after conducting its own ex­

haustive review of the record:

33



The district court properly 
weighed evidence such as [1] the 
Board members' admitted knowledge 
that their redistricting deci­
sions would cause and perpetuate 
segregation, [2] the fore­
seeability of the segregative re­
sult, [3] the Boards' formulation 
of boundaries that promoted no in­
terest other than racial segrega­
tion, [4] the Boards' rejection 
of alternative school district 
configurations in favor of a 
segregation-maximizing alterna­
tive, and [5] the State Board's 
blatantly improper interpretation 
of its own "race regulation" to 
endorse the very evil the regula­
tion was designed to prevent.

672 F.2d at 1118 (footnote omitted).

Petitioners seek to avoid both 

the district court's application of Keyes 

and its well-supported findings of segrega­

tive intent. Their arguments mischaracterize 

both the holdings of this Court and the find­

ings of the district court. Churchill, for 

example, argues that there simply was no vi­

olation, that the district court merely at­

tempted to correct a condition which

34



Churchill perceives as de facto racial im­

balance, a condition it asserts was not 

brought about by the actions of the school 

authorities. Churchill Petition at 17.

While General Braddock concedes that the 

district court would not have been permit­

ted to impose such a remedy for the sole 

purpose of redressing a de facto racial im­

balance, as has been demonstrated, there is 

ample support in the record to support the 

district court's findings of purposeful and 

intentional de jure segregation, as the 

court of appeals determined. See 

generally, Hoots IX, 672 F.2d at 1115-1118.

In a similar vein, Edgewood 

School District, Turtle Creek Area School 

District, and the Commonwealth of Pennsylvania 

seriously misstate both the findings of the 

district court and its application of this 

Court's standards regarding the use of

35



foreseeable consequences as some proof from 

which the court may infer segregative in­

tent. Contrary to Edgewood's and Turtle 

Creek's assertions, the district court's de­

cision was not based solely upon a finding 

that the State and County Boards' failure 

to take proper account of the foreseea­

bility of the discriminatory impact of 

their actions and policies was sufficient 

to constitute de jure segregation. 

Edgewood-Turtle Creek Petition at 19; Com­

monwealth Petition at i. Indeed, as has 

been set out, supra, the Third Circuit iden­

tified this factor as only one of the dis­

trict court's many major factual conclu­

sions, see, 672 F.2d at 1115-1116, in addi­

tion to its review of nine examples of 

direct and circumstantial evidence relied 

upon to find a violation. S e e , id. at 

1117-1119.

36



Petitioner Swissvale, for its

part, suggests that this Court's decision 

in Arlington Heights precludes a finding of 

a constitutional violation unless the dis­

trict court determines that the action or 

conduct complained of "would not have been 

taken but for the racial motive." Swissvale 

Petition at 13. Swissvale relies on foot­

note 21 of that decision and Mt. Healthy 

City Board of Education v. Doyle, 429 U.S. 

274 (1977), cited therein. Neither of 

these authorities is support for the appli­

cation of such a standard in this case. In 

Mt. Healthy this Court did no more than 

hold that where constitutionally protected 

conduct is found to be a motivating factor 

in the state's decision, the burden of proof 

shifts to the decisionmaker —  here the 

school authorities —  to demonstrate that 

the same decision would have been reached

37



even absent this constitutional aspect. 

Similarly, in footnote 21 in Ar1 ington 

Heights, the Court indicated that the estab­

lishment that governmental action was moti­

vated in part by a racially discriminatory 

purpose shifts to the government entity the 

"burden of establishing that the same deci­

sion would have resulted even had the imper­

missible purpose not been considered." 429 

U.S. 270-71 n.21. Petitioners have failed 

to meet their burden of disproving causation. 

As early as 1973, the district court held 

that once segregative intent is demonstrated, 

"the school authorities bear the burden of 

showing that [their] policies are based on 

educationally required, non-racial considera­

tions." 359 F. Supp. at 823, conclusion of 

law 4. The district court correctly placed 

this burden on the school authorities —  

petitioners -- and found that they completely

38



failed to carry their burden of proof: "The

Record contains absolutely no evidence showing 

that the school district boundaries established 

in the County and State Boards' Plan of organiza­

tion of administrative units are rationally 

related to any legitimate purpose and this 

Court finds that such boundaries do not pro­

mote any valid state interest." I_d. at 821.

Here, proof of segregative intent permeates 

each step of the reorganization process, and 

such proof is dispositive where, as here, 

there was an absence of any rebuttal evidence.

39



II. HAVING FOUND A CONSTITUTIONAL VIOLATION, 
THE DISTRICT COURT APPLIED THE APPRO­
PRIATE STANDARDS ESTABLISHED BY THIS 
COURT IN FASHIONING AN INTERDISTRICT 
REMEDY INVOLVING ONLY THOSE DISTRICTS 
FOUND TO HAVE BEEN INVOLVED IN OR 
AFFECTED BY THE VIOLATION

The applicable standard for apply­

ing multidistrict remedies in school desegre­

gation cases is clearly set forth for redis­

tricting cases in Milliken v . Bradley, 418 

U.S. 717 (1974) (Milliken I ) . Milliken I 

built upon the basic equitable principle 

enunciated in Swann v. Charlotte-Mecklenburg 

Board of Education, 402 U.S. 1, 16 (1971), that 

"the scope of the remedy is determined by the 

nature and extent of the constitutional vio­

lation." Thus, after citing Swann, Milliken I 

held:

Before the boundaries of separate 
and autonomous school districts 
may be set aside by consolidating 
the separate units for remedial 
purposes or by imposing a cross­
district remedy, it must first be 
shown that there has been a consti-

40



tutional violation within one 
district that produces a significant 
segregative effect in another dis­
trict. Specifically, it must 
be shown that racially discrimi­
natory acts of the state or local 
school districts, or of a single 
school district have been a sub­
stantial cause of interdistrict 
segregation. Thus an interdistrict 
remedy might be in order where the 
racially discriminatory acts of 
one or more school districts caused 
racial segregation in an adjacent 
district, or where the district 
TTnes~lTavi~~^e¥n~~delTbe7iTe3ry 
drawn on the basis of race. In 
such circumstances an interdis­
trict remedy would be appropriate 
to eliminate the interdistrict 
segregation directly caused by 
the constitutional violation. 
Conversely, without an interdis­
trict violation and interdistrict 
effect, there is no constitutional 
wrong calling for an interdistrict 
remedy.

418 U.S. at 744-745 (emphasis added).

The district court properly found 

that an interdistrict remedy can be imposed 

against all those school districts whose 

"boundaries were drawn or redrawn during 

the course of the same violation which created

41



510 F.the segregated school districts."

Supp. at 619. The district court correct­

ly interpreted Milliken I as holding that 

an interdistrict remedy may be imposed 

where the condition of segregation in one 

district can be shown to result either from 

the segregative acts in an adjoining dis­

trict or from the line-drawing process it­

self. The district court properly applied 

the Milliken I standard by requiring that 

each district affected by its order be im­

plicated or involved in the violative con­

duct. Here, as both courts below have 

found, this conduct was the consolidation 

process itself, the line-drawing undertaken 

by the State and County Boards. Where, as 

here, state officials have contributed to 

the separation of the races by redrawing 

district lines, Milliken I recognizes the 

compelling need for interdistrict relief.

42



Petitioners' argument that an 

interdistrict remedy is inappropriate be­

cause the surrounding districts are "inno­

cent" of any wrongdoing replicates similar 

arguments already rejected in numerous 

post-M i H i  ken appellate decisions. The 

flaw in this argument was elegantly and 

concisely exposed in United States v. Board 

of School Commissioners, 573 F.2d 400, 410 

(7th Cir.), cert, denied, sub nom., Bowen

v. United States. 439 U.S, 824 (1978):

The commands of the Fourteenth 
Amendment are directed at the 
state and cannot be avoided by a 
fragmentation of responsibility 
among various agents. Cooper v. 
Aaron, 358 U.S. 1, 15-17 (1958).
If the state has contributed to 
the separation of the races, it 
has the obligation to remedy the 
constitutional violations. That 
remedy may include school dis­
tricts which are its instrumental­
ities and which were the product 
of the violation.

See ? e.g., Morrilton v. United States, 606

F.2d 222 (8th Cir. 1979), cert. denied, 444

43



U.S. 1071 (1980); United States v. State of

Missouri y 515 F.2d 1365 (8th Cir. 1975) .13

The district court, as the court 

of appeals found, did not exceed the proper 

limits on its remedial authority by includ­

ing petitioners in its remedial district. 

Contrary to the assertions of Churchill, 

Edgewood and Turtle Creek, the district 

court's remedial authority was not limited 

to a consideration of those consolidation 

plans which the State and County Boards 

would have implemented. Churchill Petition 

at 19; Edgewood-Turtle Creek Petition at 

18. This Court early on stated that 

" [o]nce a right and a violation have been

Contrary to the assertion of the 
Borough of Edgewood, Amicus Curiae, at 
15-19, the courts of appeals have consis­
tently and properly applied Milliken with­
out any conflict. Differences in result 
among the cases cited by Edgewood Bo­
rough are explained by the different 
facts of the cases and not by their 
failure properly to apply Milliken.

44



shown, the scope of a district court's equi­

table powers to remedy past wrongs is 

broad, for breadth and flexibility are in­

herent in equitable remedies." Swann, 

supra, 402 U.S. at 15 (1971). See also, 

Milliken v. Bradley, 433 U.S. 267, 288 (1977) 

(Milliken II) .

The statement in Milliken I that 

the remedy should be broad enough to re­

store the plaintiffs "to the position they 

would have occupied in the absence of such 

[unconstitutional] conduct", 418 U.S. at 

746, has not been construed to require the 

district court to second-guess what the dis­

criminatory state authorities would have 

done but for their wrongful intent. Rather 

the remedial plan devised and adopted by a 

district court must simply be broad enough 

to completely eradicate the de jure discrim- 

nation. See, Milliken II, supra, 433 U.S.

45



at 282; Morrilton , supra, 606 F.2d at 229- 

30.

Churchill1s argument that it was 

unavailable for merger with what later became 

General Braddock ignores the Milliken I rule. 

Churchill asserts that the district court 

must determine "what the conditions would 

have been but for the alleged constitu­

tional violation." Churchill Petition at 

19. Where, as here, there were more than 

fifteen school districts affected by the 

State and County Boards' redistricting 

plans, and where numerous consolidation 

plans were proposed in the course of the 

decade-long consolidation process, it would 

be both impossible and impractical to at­

tempt to recreate that exact set of condi­

tions which would have been "but for" the 

violation. This is especially so where the 

consolidation process itself is the essence

46



of the violation. Indeed, absent the con­

stitutional violation, any number of consol­

idation plans could or would have been ap­

propriate. Although any number of other 

combinations were possible, the only 

question on appeal is whether the remedy 

constituted an abuse of discretion. Dayton 

Board of Education v. Brinkman, 433 U.S. 406, 

417-418 (1977). And, as the court of appeals 

noted, rather than having abused its discretion, 

the district court "very ably dealt with all 

of the intricate, complex and hotly contested 

issues in this case since 1971." 672 F .2d

at 1120, n.12.

Swissvale asserts that a "school 

district may not be ordered out of exis­

tence as part of a multidistrict desegrega­

tion remedy unless there has been an affir­

mative showing -—  not merely an unrebutted 

presumption —  that the inclusion of that

47



district is necessary to eliminate the 

segregative effects 'directly caused by the 

constitutional violation'." Swissvale Peti­

tion at 21. This suggestion has no support 

in precedent. In any event, this argument 

is irrelevant in the present case given 

that the district court's decision as to 

the propriety of the interdistrict remedy 

was based on a full, factual record rather 

than on bare unrebutted presumptions, as 

Swissvale misleadingly suggests. This 

record was compiled over the ten-year 

duration of the district court proceedings 

and took full account of the evidence of­

fered by all parties. See generally, Hoots 

V III, (884a-895a); see also (1750a-1756a; 

1760a-1765a; 1800a-1804a) .

While, as Swissvale notes, the 

court of appeals invoked the burden- 

shifting presumption of Keyes (as applied

48



in a multidistrict context in Evans v.

Buchanan, 582 F.2d 750, 764-66 (3d Cir.

1978) (en banc) , cert. denied, 446 U.S. 923 

(1980)), with respect to the propriety of 

the remedy, 672 F.2d 1121, the court of ap­

peals did not rely solely on this presump­

tion. Moreover, a thorough review of both 

remedy decisions, Hoots VI and Hoots v m , re­

veals that the district court did not even 

consider, let alone employ, this shift.

Thus, Swissvale's assignment of error to the 

court of appeals on this point —  note that 

Swissvale does not attribute the alleged error 

to the district court, Swissvale Petition 

at 20-22 —  is irrelevant, unsupported 

by the district court's record and need not 

be addressed by this Court.

In Hoots V I , the district court 

dealt with the question of "which, if any, 

of the surrounding school districts can be

49



included in any remedy within the guide­

lines of" Milliken I . 510 F. Supp. at 616. 

After a review of the Milliken I standard, 

the district court found that "[t]his case 

clearly falls within Milliken I guidelines 

for an interdistrict remedy, since racially 

discriminating acts of the state have been 

a substantial cause of interdistrict segre­

gation." id. at 619. In order to comply 

with Milliken I , the district court employed 

a two-step analysis. The first step was to 

identify the geographical area involved in 

the violation. The second step was to de­

termine which of those districts involved 

in the violation must be included in order 

for the remedy to be meaningful. The dis­

trict court, in its determination of the ge­

ographic area of the violation, determined, 

for example, that Steel Valley and West 

Mifflin school districts were not involved.

50



Hoots VIII, (891a). In April 1981, the

district court conducted the second step of 

its analysis. At that time it considered 

the inclusion of the six school districts 

which were found to have been involved in the 

violation in addition to General Braddock.

Only four of these districts —  petitioners 

—  were included in the remedy. The dis­

trict court determined that the inclusion 

of Gateway and East Allegheny was not called 

for because it would not have alleviated the 

segregative effect of the violation. Id.

As the court of appeals recognized, the remedy 

imposed was narrower than the geographic scope 

of the violation. 672 F.2d at 1120. Thus, 

rather than being overbroad, as petitioners 

allege, the remedy was in fact fashioned 

to cause minimum disruption to existing dis­

trict boundaries while simultaneously accom­

plishing its necessary remedial functions.

51



CONCLUSION

For the reasons set forth 

the Petitions for Certiorari should

above, 

be denied.

Respectfully Submitted,

Linda R. Blumkin* 
Leonard Benowich 
FRIED, FRANK, HARRIS, 

SHRIVER & JACOBSON 
(A partnership which 

includes professional 
corporations)

One New York Plaza 
New York, New York 10004 
(212) 820-8000

* Counsel of Record for 
Respondent General 
Braddock Area 
School District

Of Counsel:

Anton W. Bigman 
210 Fort Pitt Common 
445 Fort Pitt Boulevard 
Pittsburgh, Pa. 15219 
(412) 471-2644

52



M E I L E N  P R E S S  INC. — N. Y .  C  219