Brewer v. West Irondequoit Central School District Brief of Amici Curiae NAACP Legal Defense and Educational Fund et al.

    99- 7186
UNITED STATES COURT OF APPEALS 

for the
Second Circuit

LAURIE A. BREWER AND JODIE FOSTER, individually 
and as parents and guardians of Jessica L. Haak, a minor,

Plaintiffs-Appellees,

v.
THE WEST IRONDEQUOIT CENTRAL SCHOOL DISTRICT, THE URBAN-SUBURBAN 

INTERDISTRICT TRANSFER PROGRAM, MONROE NUMBER ONE BOARD OF 
COOPERATIVE EDUCATIONAL SERVICES, THERESA J. WOODSON, GRETCHEN 

STEPHAN and MARLENE S. ALLEN, in their individual and official capacities
Defendants-Appellants.

On Appeal from the 
United States District Court 

for the Western District of New York

BRIEF OF AMICI CURIAE NAACP LEGAL DEFENSE AND EDUCATIONAL 
FUND, INC., HERSHELL REDDITT, JULIUS PORTER, DEBORAH 

CUMMINGS, IZORA WILCOX, and VAN HANI WHITE, acting as parents or 
guardians on behalf of their minor children DESMON REDDITT, NYHJA 

PORTER, KEITH WARE, KEISHA WARE, PARRIS WILLIAMS, BRITTANY
WHITE and BRANDON WHITE

Elaine R. Jones 
Director Counsel

Theodore M. Shaw 
Norman J. Chachkin 
Dennis D .Parker 
Victor A. Bolden 
David T. Goldberg 
NAACP Legal Defense and Educational 

Fund, Inc.
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212)219-1900

JanellM. Byrd
NAACP Legal Defense and Educational 
Fund, Inc.
1444 Eye Street, N.W., 10th Floor 
Washington, D.C. 20005 
202-682-1300



CORPORATE DISCLOSURE STATEMENT

Pursuant to Fed.R. App. P. 26.1, amici file this statement 

disclosing that the NAACP Legal Defense and Educational Fund, Inc. 

is a 501(c)(3) corporation and not a publicly held company which 

issues stock and that the other amici, Hershell Redditt, as parent 

of Desmon Redditt, a minor, Izora Wilcox, as guardian of her minor 

children, Parris Williams and Keith and Keisha Ware, Julius Porter 

and Deborah Cummings, as parents of Nyhja Porter, a minor, and Van 

Ham White, as parent of his minor children, Brandon and Brittany 

White, participate in this litigation as individuals and therefore, 

are not nongovernmental corporate parties.



TABLE OF CONTENTS

TABLE OF AUTHORITIES........................

STATEMENT OF INTEREST OF AMICUS CURIAE ................  1

A. Interest of NAACP Legal Defense and Educational
Fund, Inc.................................  1

B. Interest of Participants and Beneficiaries of the
Urban Suburban Program ....................  4

SUMMARY OF ARGUMENT .....................................................................................................................6
ARGUMENT ..............................

I. The Equal Protection Clause Is No Obstacle to Voluntary 
Efforts to Reduce Racial Isolation.......... ]_]_

A. The Government Has a Compelling Interest in
Combatting Racial Isolation ................  H

^• Plaintiff Conceded that Reducing Racial
Isolation Is a Compelling Interest . . . n

2. Precedent Settles that Reduction of Racial
Isolation Is a Compelling Interest . . . 12

3. Treating the Question as a Matter of First
Impression, the Government has a Compelling 
Interest in Combatting Racial Isolation . 24

Defendants Have a Compelling Interest in 
Avoiding Participation in a "System of Racial 
Exclusion"......................  29

B. The Program is Narrowly Tailored to the
Accomplishment of Its Objective . . . .  33

1



II. The Court Should Not Have Reached the Equal Protect 
Issues ..................

A. Equitable Relief Should have Been Denied on
Nonconstitutional Grounds ............

B. The Decision Below Lacks an Adequate Factual
Basis ........................

C. The Opinion Below Transgressed Rules of
Restraint ..........

CONCLUSION



TABLE OF AUTHORITIES

FEDERAL CASES

Alston v. Redman, 34 F.3d 1237 (3d Cir. 1994)

Ambach v. Norwick, 441 u.S. 69 (1979)

Arthur v. Nyquist, 415 F. Supp. 904 (W.D.N.Y. 1976)

Ashwander v. TVA, 299 U.S. 288 (1936)

Board of Dirs. Rotary Int'l v. Rotary Club,
481 U.S. 537 (1987) ..................

Bob Jones Univ. v. United States, 461 U.S. 574 (1983)

Borey v. National Union Fire Ins. Co., 934 F.2d 30 
(2d Cir. 1991) ....................

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

Bustop, Inc. v. Board of Educ., 439 U.S. 1380 (1978)

Carlin Communications, Inc. v. Smith, 749 F.2d 113 
(2d Cir. 1984) ....................

Caulfield v. Board of Education, 632 F.2d 999 (2d Cir.

City of Richmond v. J.A. Croson Co., 488 U.S. 469
(1988) ..........

. . . . 34

. . 26, 30

• . . . 10

. . . . 28

. . .  32

. . .  41

passim 

■ 15, 33

. . .  10

1980) 22

passim

• . . . 18

Columbus Bd. of Educ. v. Penick, 443 U.S. 449 (1979) 

Cooper v. Aaron, 358 U.S. 1 (1958)

Crawford v. Los Angeles Bd. -of Educ, 458 U.S. 527 (1982)

Drywall Tapers v. Operative Plasters, 954 F.2d 69 
(2d Cir. 1992) ....................

Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991)

iii
19



19
Eisenberg v. Montgomery County Pub. Schools, 19 F Supp 2d 449 
(D. Md. 1 9 9 8 )  ....................................................

Equal Open Enrollment Ass'n v. Akron, 937 F. Supp. 700
(N.D. Ohio 1996) ....................................  23

Freeman v. Pitts, 503 U.S. 467 (1992)......................  18

Gautreaux v. Romney, 448 F.2d 731 (7th Cir. 1 9 7 1 ) ........ 30

Grayned v. City of Rockford, 408 U.S. 104 (1972) . . . .  28

Green v. School Board of New Kent County, 391 U.S. 430 (1968) . 1

Heckler v. Matthews, 465 U.S. 725, 738 (1984)..............  41

Hopwood v. State of Texas, 78 F.3d 932 (5th Cir. 1996) . passim

Jacobsen v. Cincinnati Bd. of Educ, 961 F.2d 100
(6th Cir. 1992)........................’...............ig 21

Kennedy v. Silas Mason Co., 334 U.S. 249 (1948).......... 38

Keyes v. School Dist. No. 1, Denver, 413 U.S. 189 (1973) . . 3

Kromnick v. Philadelphia Bd. of Educ., 739 F 2d 894
(3d Cir- 1984) ............................ '. . . . 18, 22, 32
Lee v. Nyquist, 318 F. Supp. 710 (W.D.N.Y. 1970) (three-judge 
court), summarily aff'd, 402 U.S. 935 (1971) ..........  passim

Liddell v. State of Missouri 731 F.2d 1294 (8th Cir. 1984) 19, 42

Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist.,
778 F. 2d 404 (8th Cir. 1985) (en banc) ................ 19

Mackey v. Montrym, 443 U.S. 1 (1979) ............  28

Maher v. Roe, 432 U.S. 464 fl977)............ 23

Martin v. Philadelphia School Dist., 1995 WL 564344 
(E.D. Pa. 1995) ..............................

IV



McDaniel v. Barresi, 402 U.S. 39 (1971) 34

Michael M. v. Sonoma County Superior Court,
450 U.S. 464 (1981).................... ’

Miller v. Johnson, 515 U.S. 900 (1995)

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

Missouri v. Jenkins, 515 U.S. 70 (1995)

NAACP v. Lansing Bd. of Educ. , 559 F.2d 1042 (6th

NAACP v. Town of East Haven, 70 F.3d 219 (2d Cir.

New York City Bd. of Educ. v. Harris,
444 U.S. 130 (1979) ....................

Niagra Hooker Employees Union v. Occidental Chem. 
935 F.2d 1370 (2d Cir. 1991) ..................

Offerman v. Nitowski, 378 F.2d 22 (2d Cir. 1967)

Palmore v. Sidoti, 466 U.S. 429 (1984)

Parent Ass'n, Andrew Jackson High Sch. v. Amhach, 
598 F.2d 705 (2d Cir. 1979) ........

..........28

. . . . . .  36

........... 3

..........18

Cir. 1977) 23

1995) . . .  42

• • 17, 22, 25

Corp.,
............ 40

............ 13

............ 31

passim

Parent Ass'n, Andrew Jackson High Sch. v. Amhach,
738 F.2d 574 (2d Cir. 1984) ....................

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995)

Rasso v. Lago, 135 F.3d 11 (1st Cir. 1998)

Reitman v. Mulkey, 387 U.S. 376 (1967)

Regents of the University of California v. Bakke,
438 U.S. 265 (1978) . . .

passim 

. 45

. 21 

. 37

passim

Ross v. Houston Ind. Sch. Dist., 699 F.2d 210 
(5th Cir. 1983) ..........

v



Simon & Schuster v. Crime Victims Bd., 502 U.S. 105 (1991) 28

Smith v. University of Washington, No. C97-335Z 
(W.D. Wash. Feb. 12, 1999) ................

State of Washington v. Seattle Sch. Dist. No. 1,
458 U.S. 457 (1982) ......................

Swann v. Charlotte-Mecklenburg Bd. of Educ 
402 U.S. 1 (1971)........................ #...........2

Swann v. North Carolina Bd. of Educ., 402 U.S. 43

Tito v. Arlington County, 19 F. Supp.2d 449 
(E.D. Va. 1997) ........................

Tom Doherty Assoc., Inc. v. Sahan Entertainment, Inc.,
60 F.3d 27 (2d Cir. 1995) ..................

United States v. Associated Press, 52 F. Supp. 362 
(S.D.N.Y. 1943) ............................

United States v. City of Yonkers, 96 F. 3d 600 
(2d Cir. 1996) ........

United States v. Fordice, 505 U.S. 717 (1992)

United States v. Monsanto, 924 F.2d 1186 (2d Cir. 1991)

Warth v. Seldin, 422 U.S. 490 (1976)

Wessman v. Gittens, 160 F.3d 790 (1st Cir. 1998)

Will an v. Menominee Falls Sch. Bd. , 658 F. Supp. 1416 
(E.D. Wis. 1987) ................

Wittmer v. Peters, 87 F.3d 916 (7th Cir. 1996)

Woe by Woe v. Cuomo, 801 F.2d 637 (2d Cir. 1986)

Wygant v. Jackson Bd. Of Educ., 476 U.S. 267 (1986)

20

14

14, 16

• - 3, 14, 34

• • 19

• /
40, 42

33

. . .  27

. . .  34

. . .  45

. . .  31

20, 21, 34

. . .  19

. 20, 28 

. . .  39

■ 44, 45

vi



STATE CASES

Balaban v. Rubin, 14 N.Y.2d 193 (1964)

Etter v. Littwitz, 47 Misc.2d 473, 262 N.Y.S.2d 924 
(Sup. Ct. Monroe Cty. 1965), aff'd, 28 A.D.2d 825,
282 N . Y . S . 2d 724 (4thDep't 1 9 6 7 ) ..............

Matter of Mitchell, 2 Ed. Dept. Rep. 501 (1963)

Matter of Vetere, 15 N.Y. 2d 259 (1965)

Sheff v. O'Neill, 678 A.2d 1267, 1281 (1996)

FEDERAL STATUTES

20 U.S.C. § 1601 et seq. (Repealed 1978)

20  U.S.C. § 7 2 0 1  ( 1 ) ......................................................................

20  U.S.C. § 7 2 0 1  (5) (A) ..........................

20  U.S.C. § 7 2 0 2 ( 1 )  ................................................................

STATE STATUTES AND REGULATIONS

N.Y. Educ. Law § 3 1 0  ..................

N.Y. Educ. Law § 3 2 0 2 ( 3 6 )  ................................................................

8 N.Y.C.R.R. 175.24 ......................

OTHER AUTHORITIES

Amar & Katyal, Bakke's Fate, 43 U.C.L.A. L. Re v . 1 7 4 5  ( 1 9 9 6 )  

D. Bok & W. Bowen, The S hape of the R iver ( 1 9 9 8 )



Clark, Racial Progress & Retreat: A Personal Memoir, in H. Hill & 
J. Jones, Race in America ( 1 9 9 3 )  .........................................

Hearings on H.R. 2 2 6 6  and H.R. 4 8 4 7  before subcomm. on Educ. of 
the House Comm, on Educ. and Labor, 92 Cong. 1 5 9 ,  1 6 9  ( 1 9 7 1 )

K. Jackson, Crabgrass Frontier ( 1 9 8 5 )  .........................................

Liebman, Desegregating Politics: "All-Out" School 
Desegregation Explained, 90 Colum. L .  Re v . 1 4 6 3  ( 1 9 9 0 )

D. Massey & N. Denton, American Apartheid: Segregation
and the Making of the Underclass ( 1 9 9 3 ) ..................................................... 2

New York State Dep't of Educ., Integration and the Schools ( 1 9 6 8 )  ;

Orfield, City-Suburban Desegregation: Parent and Student
Perspectives in Metropolitan Boston, (Harvard Civil Rights 
Project Sept. 1 9 9 7 )  ....................................................

G. Orfield & S .  Eaton, Dismantling Desegregation ( 1 9 9 6 )

powell, Living & Learning: Linking Housing & Education,
80 Mi n n . L .  Re v . 7 4 9  ( 1 9 9 6 )

Rand Corp. , S tudent Achievement & the Changing 
American Family 1 0 7  ( 1 9 9 4 )

Roisman, Intentional Racial Discrimination by the Federal 
Government as a Principle Cause of Concentrated Poverty: A
Response to Schill & Wachter, 1 4 3  U. P enn . L .  Re v . 1 3 5 1

Roisman, The Lessons of American Apartheid, 81 Iowa L .  Rev. 4 7 9

Rosenbaum, Can the Kerner Commission's Housing Strategy Improve 
Employment, Education, and Social Integration for Low-Income 
Blacks, 71 N.C. L .  Re v . 1 5 1 9  j l 9 9 3 )

S. Rep. No. 9 2 - 6 1  ( 1 9 7 1 )  ...............................................'

viii



School Desegregation: A Social Science Statement,
Appendix to Brief Amici Curiae of NAACP, et al.,
Freeman v. Pitts, No. 8 9 - 1 2 9 0  ...................................

A.  Wells & R .  Crain, S tepping  Across the Color L ine  ( 1 9 9 7 )

U.S. Civil Rights Commission, Hearing before the United States 
Commission on Civil Rights., Rochester, New York (Sept 1 6 - 1 7  
1 9 6 6 )  ........................................................................................................

U . S .  Civil R i g h t s  Commission, Racial  I solation in  the P ublic  S chools 
( 1 9 6 7 )  ...........................................................................

www.nysed.gov/emsc/info/NYDIST.HTML

J .  Y i n g e r ,  Closed Doors Opportunity Lost ( 1 9 9 5 )  ........................

. 2 

. 6

26

27

43

31

IX

http://www.nysed.gov/emsc/info/NYDIST.HTML


STATEMENT OF INTEREST OF AMICI CURIAE '

Amici are the NAACP Legal Defense and Educational Fund, Inc. 

and Hershell Redditt, Izora Wilcox, Julius Porter and Deborah 

Cummings, and Van Hani White, acting as parent or guardian on 

behalf of their minor children, Desmon Redditt, Parris Williams, 

Keith Ware and Keisha Ware, Nyhja Porter and Brandon and Brittany 

White respectively. As set forth below, amici have distinct

interests but a common purpose: the preservation of the Urban

Suburban Program.

A. Interest of NAACP Legal Defense and Educational Fund Inc.

The NAACP Legal Defense and Educational Fund, Inc. ("LDF") 

is a non-profit corporation formed to assist black Americans in 

securing their constitutional and civil rights. To this end, LDF 

has played a leading role in dismantling segregated systems of 

public elementary and secondary education, representing African 

American plaintiffs in landmark United States Supreme Court 

school desegregation cases, such as Brown v. Board of Education, 

347 u.s. 483 (1954), Cooper v. Aaron, 358 U.S. 1 (1958), Green v.

Pursuant to Fed. R. App. P .  29, amici have sought and 
received all parties' consent to the filing of this Brief.

1



School Board of New Kent County, 391 U.S. 430 (1968), and Swann 

v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971).

Mc*2re than four decades of education and social science 

research has confirmed what was already evident to the parents 

who brought Brown and its companion cases: that attendance at a 

racially isolated school can impair the educational achievement 

of minority children.1 Correspondingly, minority students who 

attend integrated schools have been found to show gains in 

academic achievement.2 They are more likely to attend college, 

to attend four-year colleges, get high marks from their 

professors, and enter predominantly white employment settings 

than are blacks who attended segregated public schools.3

35 e e  G. Orfield  & S .  Eaton, dismantling desegregation ( 1 9 9 6 )  a t  5 3 ,  
67-69, 7 0 ;  see J.A.369 H H 2 5 1 - 5 2 ;  D. Massey & N . Denton, American 
Apartheid : S egregation and the Making of the Underclass ( 1 9 9 3 )  a t  1 4 1 - 4 2 .

Rand Corp. , Student Achievement & The Changing American Family 
(1994) 107.

3See Liebman, Desegregating Politics: "All-Out" School 
Desegregation Explained, 90 Colum L . Re v . 1463,1626 (1990); see 
also School Desegregation: A Social Science Statement, Appendix 
to Brief Amici Curiae of NAACP, et al., Freeman v. Pitts, No. 89- 
1 2 9 0  (statement of 52 social scientists summarizing state of 
knowledge about desegregation).

Data presented to the District Court in this case show 
Rochester and its suburbs to be a stark example of the evils 
associated with extreme racial isolation. 80% of all minority 
residents of Monroe County live in the City of Rochester.

2



These important educational benefits are directly at stake 

m  this case. An explicit premise of Supreme Court decisions 

limiting the remedial powers of courts in federal desegregation 

cases, see Milliken v. Bradley, 418 U.S. 717 (1974) ; Keyes v. 

School Dist. No. 1, Denver, 413 U.S. 189 (1973), has been that 

the educational problems of segregation could - and would - be 

addressed by good faith efforts at the state and local level.

The Program at issue here represents one such effort (a modest 

one), and as in prior cases, see Lee v. Nyquist, 318 F. Supp. 710 

(W.D.N.Y. 1970) (three-judge court), summarily aff'd, 402 U.S.

935 (1971); Swann v. North Carolina Board of Education, 402 U.S. 

43 (1971), LDF has a strong interest in assuring that such

measures are not impeded. Indeed, any decision holding that the 

Fourteenth Amendment prevents educational authorities from doing

Minority students account for 4/5 of those enrolled in the City 
Schools but less than one tenth of those attending school in the 
suburbs. J.A. 371 11 267-68. The City accounts for 73% of all 
Monroe County households that are below the federal poverty line 
and for the overwhelming majority of the County's public housing 
units. J.A. 367; 1240-41. Fully 90% of students in Rochester 
City School District (RCSD) are eligible for federal free and 
assisted lunch --a level 101; greater than that defined as 
exceptionally high" under State standards. J.A. 368 11242-43. 

Less than one sixth of students in Monroe County suburbs are 
similarly disadvantaged. Id. 1 245. Statistics show substantial 
disparities in dropout rates, rates of graduation, and college 
attendance between RCSD and its surrounding suburbs.

3



more in combatting the evils of segregation than a federal court 

could require of them would threaten the LDF's longstanding 

effort in Sheff, et al. v. O'Neill, et al. , 678 A.2d 1267, 1281 

(1996), where de facto segregation impacting on the State of 

Connecticut's guarantee of equal educational opportunity must be 

remedied, an outcome potentially affected by this litigation.

B. Interest of Participants and Beneficiaries of the Urban 
Suburban Program

Amici African American parents acting on behalf of their 

minor schoolchildren have an even more concrete interest in the 

outcome of this litigation: all are now or hope to be

Participants in the Urban Suburban Program.

Hershell Redditt is a resident of Rochester, whose minor 

son, Desmon is a participant in the Urban Suburban Program. He 

is a seventh grader at Pittsford Middle School in Pittsford, New 

York, a suburb of Rochester. Desmon Redditt has attended

Pittsford schools through the Urban Suburban Program since first 
grade.

Julius Porter and Deborah Cummings are also residents of 

Rochester and have a minor daughter Nyhja Porter, who is current 

participant in the Urban Suburban Program. Nyhja Porter is a 

third grader at Harris Hill Elementary School in Penfield. As a

4



result of the Urban Suburban Program, she has attended Harris 

Hill Elementary School since the first grade.

Izora Wilcox is a resident of Rochester and is the guardian 

of three minor children Keith, Keisha and Parris. Keith and 

Keisha Ware and Parris Williams are all participants in the Urban 

Suburban Program. Keith and Keisha, twins, are both fifth 

graders at Harris Hill Elementary School in Penfield. Through 

the Urban Suburban Program, they have attended Harris Hill 

Elementary School since kindergarten. Parris is a sixth grader 

at Bay Trail Middle School in Penfield. He has been a 

participant in the Urban Suburban Program since the third grade.

Van Hani White is a resident of Rochester and the parent of 

two minor children, Brittany and Brandon White. Brittany, a 

third grader and Brandon, a sixth grader, currently attend school 

m  the Rochester City School District, but wish to take advantage 

of the opportunity offered by the Urban Suburban Program.

As in Brown, statistical measures bear out what these 

individuals know first-hand: that the Program is an important and 

effective one. Since first evaluated in 1968, studies have found 

academic gains both for minority students participating in the 

transfers and for white students at receiving schools. J.A. 212.

A remarkable 95% of the Program participants are reported to have

5



gone on to graduate from high school, and fully 75% of students 

transferring into the suburbs maintain grade point averages of B 

or above. J.A. 139.4

For these amici, any ruling which jeopardizes the future of 

this Program threatens their future. For participants already in 

the Program, they may lose the only public school they have ever 

known. For those still seeking to benefit from the Program, they 

may lose the one chance to be educated at some place other than 

in a racially isolated school. Either way, the lower court's 

ruling -- entered without their knowledge or participation -- 

renders constitutionally suspect a Program of great value to 
them.

SUMMARY OF ARGUMENT
The ruling of the court below, although ostensibly doing no 

more than requiring the admission of a single student to a

Recent studies of similarly structured interdistrict 
programs reach similarly positive conclusions. See A. Wells & R. 
Crain, Stepping Across The Color Line (1997) (St. Louis); Orfield, 
City-Suburban Desegregation: Parent and Student Perspectives in 
Metropolitan Boston (Harvard Civil Rights Project Sept. 1997) • 
powell, Living and Learning: Linking Housing & Education, 80 
Minn. L. Rev. 749, 788 n.130 (1996); See also Rosenbaum, Can the 
Kerner Commission's Housing Strategy Improve Employment, 
Education, and Social Integration for Low-Income Blacks, 71 N.C. 
L. Rev. 1519 (1993) (discussing educational outcomes for 
participants in city-to suburb housing mobility program)

6



particular- school, has cast a long shadow, not only on 

Defendants "laudable" albeit modest —  effort to protect 

school children from the harms of racial isolation, but on all 

governmental efforts (apart from those arising from federal court 

orders) that seek to overcome segregation and facilitate 

integration. For the reasons set forth below, the court's broad 

pronouncements were neither correct nor necessary.

First, the lower court's ruling that Plaintiff was likely to 

succeed rests on irredeemably flawed Equal Protection analysis.

As an initial matter, the question the court undertook to resolve 

-- whether the government's interest in reducing racial isolation 

in the public schools is, in fact compelling -- was the subject 

of both an express concession by Plaintiff and of a decision of 

this Court, see Parent Ass'n, Andrew Jackson High Sch. v. Ambach, 

598 F.2d 705 (2d Cir. 1979), which conclusively settled that

(even in the absence of vestiges of past official discrimination) 

the governmental interest in providing a racially integrated 

public school education "survive[s] strict scrutiny." See Parent 

Ass'n, Andrew Jackson High Sch. v. Ambach ("Andrew Jackson IX"), 

738 F.2d 574, 579 (2d Cir. 1984). And although the Supreme Court 

has no decision so squarely on point as Andrew Jackson, its

7



opinions addressing closely related questions leave no room for 

the reading of the Equal Protection Clause embraced below.

The lower court opinions to which the decision below looked 

instead -- even if assumed to be correct, but see infra 

(discussing errors of Fifth Circuit panel majority in Hopwood v. 

Texas, 78 F.3d 932 (5th Cir. 1996)) -- involved governmental 

policies fundamentally different in both objective and operation 

from the Program at issue here. Because the Program admits 

students of all races -- and confers benefits on an equally 

diverse group of students at receiving schools -- and because it 

does not even arguably entail awarding a benefit that would 

otherwise go to an individual of a different race (the transfer 

option simply would not exist absent Defendants' desegregation 

policy), it does not raise the sorts of Equal Protection dangers 

that other cases have found.

Finally, were it one of first impression, as the court 

below appeared to assume, the "compelling interest" question 

would not be a close one. For nearly four decades, every branch 

of federal and state government has acknowledged the importance 

of educating children from different racial and ethnic 

backgrounds together, a judgment that is supported by a vast body 

of educational and social science research. The governmental

8



interest in protecting children from the demonstrated harms that 

flow from a racially isolated educational experience are similar 

to and no less urgent than other objectives that have been 

recognized as "compelling" by the Supreme Court.

The lower court's conclusions respecting narrow tailoring 

were equally misguided. Although the court appeared to fault the 

Program for "failure" to include eligibility criteria other than 

race and residency, it had no reason to believe that such 

considerations would help achieve the goal of reducing racial 

isolation. Indeed, as the District Judge observed at oral 

argument on Plaintiff's motion, facilitating suburban transfers 

for white students would, by definition, worsen existing 

segregated attendance patterns. J.A. 433. Moreover, there is no 

basis in law or principle why narrow tailoring would require that 

a governmental entity pursue a legitimate racial objective -- 

reduction of isolation -- through indirection, i.e., by relying 

on characteristics that would be proxies for race.

Even if the rulings by the District Court were less 

obviously wrong as a matter of abstract Equal Protection law, 

however, it would have been error for the court below to have 

reached such sweeping conclusions on the preliminary injunction 

record before it. Although Defendants did not press for a

9



further evidentiary hearing, their decision not to must be 

understood in the context of Plaintiff's numerous express 

concessions that the validity of the government's interest in 

reducing racial isolation in the public schools was not an issue 

before the court. If, contrary to this Court's decision, the 

compelling interest issue is not settled "as a matter of law," 

further evidence on Defendants' side would not have been hard to 

come by. But even the existing factual record is sufficient to 

refute key assumptions of the decision below. The bald 

speculation that the Program fosters, rather than combats, 

stereotypical thinking, for example, is thoroughly at odds with 

the actual evidence the parties did place before the court below.

Finally, the court below, by answering constitutional 

questions of transcendent importance, wholly ignored the 

principle that a federal court should not decide such questions 

m  advance of the strict necessity of doing so and never more 

broadly than necessary. See Carlin Communications, Inc. v.

Smith, 749 F.2d 113, 118 (2d Cir. 1984) (citing Ashwander v. TVA, 

299 U.S. 288, 341 (1936) (Brandeis, J., concurring)). As is 

explained infra, a more careful consideration of the 

nonconstltutlonal standards governing award of preliminary relief

10



might have obviated the need to address the merits of the broad 

Equal Protection issues.

ARGUMENT

I* The E(iual Protection Clause Is No Obstacle to Voluntary 
Efforts to Reduce Racial Isolation

A. The Government Has a Compelling Interest in Combatting 
Racial Isolation

1. Plaintiff Conceded that Reducing Racial Isolation 
Is a Compelling Interest

The District Court's conclusion that the Program's aim of 

reducing racial isolation is not a compelling governmental 

interest sufficient to withstand strict Equal Protection scrutiny 

was error. As an initial matter, there are serious questions as 

to whether that issue was even properly before the court. At the 

hearing, counsel for Plaintiff specifically represented that the 

suit "d[idn1t] oppose th[e] goal" of reducing racial isolation 

and recognized the Defendants' objective as "unquestionably" 

legitimate and "laudable," J.A.416-17. If that acknowledgment is 

not dispositive of the entire Equal Protection claim, see City of 

Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1988) (the object

of heightened judicial scrutiny is to "smoke out" illegitimate 

motives), it surely placed the compelling interest issue beyond 

the Court's reach.

11



2. Precedent Settles that Reduction of Racial 
Isolation Is a Compelling Interest

But even had the question been properly before the court, 

precedent supplies a wholly different answer. Although the 

District Court treated the.issue as one of first impression, and 

accordingly sought guidance from an eclectic array of decisions 

from other jurisdictions, both this Court and the Supreme Court 

have -- in a series of decisions nowhere mentioned below -- 

repeatedly endorsed the constitutionality of governmental efforts 

aimed at reducing school children's racial isolation.

In Andrew Jackson, 598 F.2d 705 (2d Cir. 1979), this Court 

settled that the government has a compelling interest in securing 

the benefits of a racially integrated educational experience.

See Andrew Jackson II, 738 F.2d at 574 ("In an earlier stage of 

these proceedings, we held that the . . . goal of ensuring the 

continuation of relatively integrated schools . . . survived 

strict scrutiny as a matter of law"). The Andrew Jackson 

litigation arose from a plan, intended to promote racial 

integration of public high schools in Queens, that entailed 

giving African-American students a more limited choice of high 

schools than white counterparts. Although the Court rejected 

defendants' claim that strict scrutiny did not apply, see id. at

12



717 (in view of the plan's consideration of race, the "most 

suspicious and searching" mode of Equal Protection scrutiny was 

appropriate) and remanded the case for further factual 

development, it refused to stay implementation of the plan while 

the case was pending on remand. Whether or not the particular 

plan was necessary under a correct understanding of the factual 

circumstances, the Andrew Jackson Court explained, the 

government's objective of "combatting racial imbalance" was 

sufficiently compelling to support a race-conscious assignment 

policy. Accord Offerman v. Nitowski, 378 F.2d 22 (2d Cir. 1967)

(rejecting claim that plan "to correct the de facto racial 

imbalance in the Buffalo school system is unconstitutional 

because it is based on proscribed racial classifications"); 

Balaban v. Rubin, 14 N.Y.2d 193, 197 (1964) (upholding school 

district drawn to "correct racial imbalance").5

Moreover -- although no decision of the Supreme Court has 

been as explicit as Andrew Jackson in holding that combatting 

racial isolation in primary and secondary schools is a compelling

5New York Courts have similarly rejected claims that race­
conscious policies aimed at preventing "adventitious" racial 
isolation violate anti-discrimination norms -- including a case 
challenging the very Program at issue here. See Etter v.
Littwitz, 47 Misc. 2d 473, 262 N.Y.S.2d 924 (Sup. Ct. Monroe Cty. 
1965), aff'd, 28 A.D.2d 825, 282 N.Y.S.2d 724 (4th Dep't 1967).

13



interest -- statements in numerous of the Court's decisions 

render that conclusion essentially inescapable. Cf. Andrew 

Jackson, 598 F.2d at 715 ("it is our principled responsibility as 

an inferior federal court to apply the spirit of the rulings of 

the Supreme Court") . In Swann v. Bd. of Educ. , 4 02 U.S. 1 

(1971), the Court first made clear its understanding that, even 

absent a constitutional violation, a school district could, in 

the interest of "prepar[ing] students to live in a pluralistic 

society," id. at 16, assign pupils so that "each school [had] a 

prescribed ratio of Negro to white students reflecting the 

proportion for the district as a whole." Id. Whether to do so, 

the Court explained, would represent a matter of "educational 

policy[,] within the broad discretionary powers of school 

authorities," id.; accord North Carolina Bd. of Educ. v. Swann,

401 U.S. 43, 46 (1971) ("as a matter of educational policy school

authorities may well conclude that some kind of racial balance in 

the schools is desirable quite apart from any constitutional 

requirements").

And m  State of Washington v. Seattle Sch. Dist. No. 1, 458 

U.S. 457 (1982), a decision that reinstated the authority of the

City of Seattle -- a jurisdiction conceded to have no history of 

legally enforced racial segregation -- to transport students so

14



as to better obtain the benefits of integrated education, the 

Court reiterated that "in the absence of a constitutional 

violation, the desirability and efficacy of school desegregation 

are matters to be resolved through the political process." 458 

U.S. at 473. Explaining the value of Seattle's efforts to 

overcome de facto segregation, the Court cited Brown and its 

progeny for the proposition that "[a]ttending an ethnically 

diverse school" helps "minority children . . . achieve their full

measure of success" while "teaching members of the racial 

majority to live in harmony and mutual respect with children of 

minority heritage." Id.6 To similar effect is Bustop, Inc. v. 

Board of Educ., 439 U.S. 1380 (1978) (Rehnquist, J., in 

Chambers), which rejected an application to stay Los Angeles's 

far-reaching student transportation plan. Then-Justice Rehnquist 

did not find the applicants' contention that, in the absence of a 

federal constitutional violation, race-based student assignments 

would violate Equal Protection, to be even colorable. While such 

desegregation measures are not compelled by the federal

The Seattle opinion specifically endorsed the reasoning of 
the three-judge court in Lee v. Nyquist, which had invalidated on 
Equal Protection grounds a statute divesting New York 
Commissioner of Education of authority to require appointed 
school boards to adopt measures aimed at achieving racial 
balance.

15



constitution in the absence of vestiges of de jure segregation, 

he explained, there was "very little doubt that [the student 

reassignment plan was] permitted by th[e] Constitution." Id. at 

1383 .

These Supreme Court opinions, each of which specifically 

endorses the authority of school districts to pursue more 

constitutionally sensitive objectives -- e.g., strict racial 

proportionality, see Swann -- using far more intrusive means, 

i.e., mandatory assignment and involuntary transportation, 

essentially establish a fortiori the constitutionality of the 

modest, wholly voluntary effort aimed at reducing extreme racial 

isolation that is at issue here. Indeed, the Court's opinion in 

Seattle treated the fact that the challenged anti-busing measure 

authorized voluntary majority-to-minority measures as weighing in 

favor, not against, its constitutionality, see id. at 473 n.16 

(noting that New York law invalidated in Lee v. Nyguist had 

similarly permitted voluntary integration efforts). And when the 

Court upheld a somewhat similar ballot initiative in Crawford v. 

Los Angeles Bd. of Educ, 458 U.S. 527 (1982), it placed emphasis 

on the fact that, after the referendum, "the state courts of 

California continue to have an obligation under state law to 

order segregated school districts to use voluntary desegregation

16



techniques, whether or not there has been a finding of 

intentional segregation," id. at 535-36.

Finally, in Columbus Bd. of Educ. v. Penick, 443 U.S. 449 

(1979), Justice Powell, while taking exception to the holding of 

system-wide Fourteenth Amendment liability, emphasized his 

understanding that "optional majority-to—minority transfer" 

policies are the sort of "constructive action [] always open to 

school authorities" and that such policies, "could help counter 

the effects of racial imbalances between school districts that 

are beyond the reach of judicial correction." Id. at 488 & n.7; 

see also id. (citing with approval Wisconsin's "system of 

subsidized, voluntary, intra-and inter-district 

ma]ority-to-minority transfers").7 No subsequent Supreme Court

In New York City Bd. of Educ. v. Harris, 444 U.S. 130 
(1979), the Court was asked to review an administrative decision 
declaring ineligible for federal Emergency School Aid Act 
("ESAA"), 20 U.S.C. §1601 et seq. (repealed 1978), assistance a 
school district that assigned minority staff disproportionately 
to predominantly minority schools. Rejecting an interpretation 
of the statute that would have defunded only those aid applicants 
who had engaged in intentionally discriminatory assignments, the 
Court upheld the decision, placing reliance on the fact that, in 
enacting the law, "Congress [had been] disturbed about minority 
segregation and isolation as' such, de facto as well as de jure, 
and that, with respect to the former, it intepded the limited 
funds it made available to serve as an enticement device to 
encourage voluntary elimination of that kind of segregation."
See also id. at 141 (characterizing Congress's use of financial 
aid to "entice[] . . . the voluntary elimination, reduction, or

17



decision has disavowed this consistent line of authority nor 

supplied any basis for declining to follow Andrew Jackson.8

Other federal courts have, like Andrew Jackson, rejected 

Equal Protection challenges to race-conscious programs aimed at 

ameliorating conditions of racial isolation (including in 

jurisdictions with no de jure history), see Kromnick v.

prevention of minority group isolation," as a "midground" 
approach).

The only intervening Supreme Court decision even arguably 
relevant is Croson, which settled that strict scrutiny would 
appiy to race-conscious governmental polices undertaken by states 
and localities. But the Andrew Jackson Court's holding that the 
interest in reducing racial isolation survives "strict scrutiny 
as a matter of law," see 738 F.2d at 579, anticipated Croson on 
that point. Moreover, even if certain of these statements might 
fairly be described as dictum and therefore not binding on the 
Supreme—Court in future cases, lower federal courts are not 
similarly free to disregard Supreme Court dictum. Alston v. 
Redman, 34 F.3d 1237, 1246 (3d Cir. 1994) (Supreme Court dictum 
"cannot be considered lightly by inferior federal courts until 
disavowed by the Supreme Court") .

In the court below, Plaintiff suggested that Missouri v. 
Jenkins, 515 U.S. 70 (1995), and Freeman v. Pitts, 503 U.S. 467 
(1992), supported her contention that the voluntary program at 
issue here was unconstitutional. Not only did those cases deal 
with wholly distinct questions concerning the substantive and 
temporal limitations on federal courts' powers to 
order desegregation, but the opinions, emphasizing the importance 
of returning schools to local control, are fully consistent with 
Swann s exposition of the relative powers of courts versus school 
boards to take desegregative action. Cf. Jenkins, 515 U.S. at 
111 (O'Connor, J., concurring) (emphasizing that "representative 
branches" have greater powers to "combat racial injustice" than 
do courts).

18



Philadelphia Bd. of Educ., 739 F.2d 894, 903 (3d Cir. 1984)

( -  conscious teacher- transfer policy survives strict 

scrutiny); Martin v. Philadelphia School Dist., 1995 WL 564344 

(E.D. Pa. 1995) (interest in overcoming racial imbalance suffices 

to support race-conscious denial of student transfer); Jacobsen 

v. Cincinnati Bd. of Educ, 961 F.2d 100, 103 (6th Cir. 1992) 

(upholding race-conscious teacher transfer policy); Willan v. 

Menominee Falls Sch. Bd., 658 F. Supp. 1416, 1424 (E.D. Wis.

1987) (upholding voluntary interdistrict majority-to-minority 

transfer plan).9 Numerous other judicial opinions, consistently 

with Justice Powell's observations in Penick, have emphasized 

their desirability. See Liddell v. State of Missouri, 731 F.2d 

1294, 1309 (8th Cir. 1984) (en banc) (although court lacked 

authority to require state funding of interdistrict transfer 

program, such a policy could be pursued voluntarily); Little Rock 

Sch. Dist. v. Pulaski County Special Sch. Dist., 778 F.2d 404,

9District courts in the Fourth Circuit have reached 
inconsistent results in recent cases involving policies 
considering race in assigning students to magnet schools. See 
Eisenberg v. Montgomery County Pub. Schools, 19 F. Supp. 2d 449 
(D. Md. 1998); Tito v. Arlington County, Civ. Action No. 97-540
(E.D. Va. 1997). Both cases are now pending in the Court of 
Appeals.

19



436 (8th Cir. 1985) (en banc); Ross v. Houston Ind. Sch. Dist., 

699 F.2d 210, 222 (5th Cir. 1983).

Rather than heed cases specifically endorsing voluntary 

race-conscious efforts to combat racial isolation in primary and 

secondary school, the decision below looked to the decisions of 

other courts assumed to have addressed "similar" issues and to 

Hopwood, in particular. See also 32 F. Supp. 2d at 619 

(discussing Wessman v. Gittens, 160 F.3d 790 (1st Cir. 1998)).

In fact, even if those decisions had been correct on their own 

terms, but see n.10 below, the policies they passed upon were 

different from the Program in both purpose and operation.10

There are numerous reasons why the conclusions of the two- 
judge panel majority in Hopwood do not deserve the credence given 
them below. First, the Fifth Circuit panel erred in refusing to 
give Justice Powell's opinion announcing the judgment of the 
Court in Regents of the Univ. of Calif, v. Bakke, precedental 
effect, see Smith v. University of Washington Sch. of Law, No. 
C97-335Z (W.D. Wash. Feb. 12, 1999) (applying principles for 
construing Supreme Court decisions without majority opinions), 
and its assertion that race-conscious measures are permissible 
only when justified on "remedial" grounds" was equally 
unwarranted. See, e.g., Wittmer v. Peters, 87 F. 3d 916, 919 
(7th Cir. 1996) (Posner, C. J.) ("rectification of past 
discrimination is not the only setting in which government can 
lawfully take race into account in making decisions"). See also 
Amar & Katyal, Bakke's Fate 43 U.C.L.A. L. Rev. 1745 (1996)
(explaining how Fifth Circuit majority misread Supreme Court's 
jurisprudence) ; D. Bok & W. Bowen, The Shape of the River (1998)
(collecting empirical evidence undermining factual assumptions of 
Hopwood).

20



See Hopwood, 78 F.3d 965 n.21 (Wiener, J., concurring) (»[w]e 

play with fire when we assume an easy crossover of Fourteenth 

Amendment maxims pronounced in cases decided in other contexts").

The Program here, unlike those challenged in Bakke or 

Wessman, is open to students of all races, who are equally 

entitled to make publicly supported pro-integrative moves.

Whether that fact suffices to stave off strict scrutiny under 

governing law, see Jacobsen, 961 F.2d at 103; Rasso v. Lago, 135 

F.3d 11, 16 (1st Cir. 1998) (strict scrutiny is limited to 

governmental policies that are "preferentially favorable to one 

race or another"), it vastly reduces the danger that any 

impermissible purpose is, in fact, at work. See Croson, 488 U.S. 

at 493 (function of strict scrutiny is assuring that "the motive 

for the classification was [not] illegitimate racial prejudice or 

stereotype"). Nor is the "deprivation" asserted here even 

remotely comparable to that claimed in Bakke or Hopwood; students 

like Plaintiff, no less than those who transfer, are granted 

primary and secondary education at public expense. Compare 

Bakke, 438 U.S. at 300 n.39 (noting fact that defendant "did not 

arrange for Bakke to attend a different medical school" made 

Bakke's situation "wholly dissimilar to that of an elementary or 

secondary school student who is admitted to one school rather

21



than another in an effort to promote racial or ethnic 

integration"); Caulfield v. Bd. of Educ., 632 F.2d 999, 1006 (2d 

Cir. 1980) ("the simple expectation of not being assigned to a 

particular school within the system is not . . .  a right 

protected under Title VI or the Constitution"). Indeed, because 

the premise of the Program is not that suburban schools are 

'better" schools or that urban schools are -- but rather that 

integrated schools are better than racially isolated ones -- it 

is in its nature to confer benefits on students who do not 

transfer, as well as those who do.

The premise that transfers are not an end unto themselves, 

but rather are a means to achieving the benefit of reduced racial 

isolation, yields another critical distinction. While the 

consequence of the decisions in Hopwood in Bakke presumably was 

to "open up" slots in professional school classes, a ruling that 

the objective of this Program is unconstitutional will spell its 

demise, and Plaintiff -- along with other students currently 

participating in the Program -- would presumably be returned to 

their schools. See Kromnick, 739 F.2d at 907 (that plaintiffs 

might be even worse off if successful on the merits militates 

against their claim of injury); Harris, 444 U.S. at 149 (noting 

that decision not to give school funds to districts with patterns

22



of segregation in assignment of staff was "a matter of benefit, 

not of deprival"). Just as the Supreme Court has held that "[a]n 

indigent woman who desires an abortion suffers no disadvantage as 

a consequence of Connecticut's decision to fund childbirth,"

Maher v. Roe, 432 U.S. 464, 474 (1977), Plaintiff is not harmed

by New York's decision to fund student transfers that alleviate 

conditions of racial isolation, but not those which exacerbate 

them."1 Finally, because the Program does not purport to grant 

transfers as a reward for "merit," there is no basis here, as 

there was in Hopwood or Bakke for a claim that a disappointed 

student is more "deserving" than one who transfers. See J.A. 145 

(eligibility contingent upon "average" academic performance) .12

Indeed, unlike in Maher, there is no suggestion that the 
activity that Plaintiff seeks to have funded is a constitutional 
right. To the contrary, there are cases holding school districts 
liable for transfer policies that intensify racial segregation.
NAACP v. Lansing Bd. of Educ., 559 F.2d 1042, 1051 (6th Cir
1977).

The decision that the court below believed to be 
especially analogous, Equal Open Enrollment Ass'n v. Akron, 937 
F. Supp. 700 (N.D. Ohio 1996), is in fact different in three 
critical respects. First, unlike here, where the conditions of 
racial isolation are an undeniable fact, [i]t [wa]s . . . far
from clear that significant .'separation of the races [would] 
result" in the absence of the policy challenged. Id. at 706. 
Moreover, in the Akron case, state law would otherwise have 
entitled the whitq student plaintiffs to attend suburban schools 
at taxpayer expense. See 937 F. Supp. at 702. New York statutes 
are to the contrary. Balahan, 20 A.2d at 443 (in New York, "each

23



3. Treating the Question as a Matter of First Impression, 
the Government Has a Compelling Interest in Combatting 
Racial Isolation

Even if the matter had not been definitively resolved, 

however, combatting the educational harms of racial isolation 

would clearly rate as a compelling governmental interest. As the 

Supreme Court underscored in Brown, "education is perhaps the 

most important function of state and local governments," 347 u.S 

at 493; id. (stressing foundational role played by primary and 

secondary education "in awakening the child to cultural values, 

in preparing him for later professional training, and in helping 

him to adjust normally to his environment"), and the other 

branches of the federal government have been similarly forceful 

m  recognizing the seriousness of the problem of racial 

isolation. Congress has determined that it is in the national 

interest to "foster meaningful interaction among students of 

different racial and ethnic backgrounds," and has codified a 

commitment to promoting "the elimination, reduction, or 

prevention of minority group isolation in elementary and

child has the right to attend only the public school in the zone 
or district in which he resides"), aff'd, 250 N.Y.S.2d 281 
(1964). Finally, the Akron policy, unlike the Program, did not 
apply even-handedly to students whose race was underrepresented 
m  suburban schools. It provided instead that "no white student" 
would be allowed to transfer. 937 F. Supp. At 702.

24



secondary schools," 20 U.S.C. § 7201 (5) (A); id. at § 7202(1); cf

id. at § 7201(1) (magnet school aid is intended to support

Nation's effort to achieve voluntary desegregation in our

Nation's schools"); cf. Harris, 444 U.S. at 141 (in enacting the

ESAA, "Congress was disturbed about minority segregation and

isolation as such, de facto as well as de jure," and sought to

"encourage voluntary elimination of that kind of

segregation")(emphasis supplied). In encouraging enactment of

ESAA, President Nixon declared that

[r]acial separation, whether deliberate or not, and whether 
past or present [is a problem]. It is clear that racial 
isolation ordinarily has an adverse effect on education. 
Conversely, we also know that desegregation is vital to 
quality education -- not only from the standpoint of raising 
achievement levels of the disadvantaged, but also from the 
standpoint of helping all children achieve the broad-based 
human understanding.

S. Rep. 92-61 at 7 (1971).

New York State has been at least as emphatic in its

recognition that racial isolation -- whether or not a remnant of

intentional governmental efforts to separate children by race --

is educationally harmful. Beginning with a 1960 policy statement

of the State Board of Regents declaring that:

schools enrolling students largely of homogeneous ethnic 
origin may damage the personality of minority group children 
• . . decrease their motivation and . . . impair their
ability to learn. Public education in such a setting is

25



socially unrealistic . . .  and is wasteful of manpower and 
talent, whether this situation occurs by law or by fact.

See Integration and The Schools at 7 (N.Y. Educ. Dep't 1968) . New

York has affirmed that desegregation is a matter of paramount

educational concern.13 See Hearings, U.S. Civil Rights

Commission (Rochester, N.Y. Sept. 16-17,1966) p. 305 (testimony

of Commissioner Allen that elimination of racial isolation to the

"major [educational] challenge of our times")

This recognition of the educational inadequacy of a racially

isolated school experience has led to significant administrative

and legislative action. In 1963, after the Commissioner of

Education requested that all the State's school districts submit

plans designed to achieve "elimination of racial imbalance among

different schools," he issued an order, in his judicial capacity,

see N.Y. Educ. Law § 310, requiring a suburban school district to

take race-conscious measures to reduce racial isolation in its

schools. Matter of Mitchell, 2 Ed. Dept. Rep. 501 (1963). The

New York Court of Appeals sustained that order against

13 "Authority over education in New York State is vested in 
the Department of Education, which manages and supervises all New 
York State public schools. The Board of Regents is the statutory 
head of the Department of Education, and the Commissioner of 
Education is the chief executive officer of the department." 
Arthur v. Nyquist, 573 F.2d 134, 145 (2d Cir. 1978).

26



constitutional attack in Matter of Vet ere, 15 N.Y. 2d 259 (1965) 

Section 310 proceedings arising from other jurisdictions led to 

the adoption and implementation of desegregation plans in many 

school districts. See United States v. City of Yonkers, 96 F. 3d 

600, 605 (2d Cir. 1996) (noting early, "active[] attempt[s by 

State officials] to bring an end to the racial imbalances that 

existed in public schools"); U.S. Commission on Civil Rights, 

Racial Isolation in the Public Schools (1967) at 186 (recognizing New 

York as one of two states with most advanced legal requirements 

concerning racial isolation).14 For more than two decades, the 

State has provided financial support for the Rochester Program, 

first underwriting transportation costs and, with the 1988 

enactment of N.Y. Educ. Law Section 3202(36), undertaking to 

provide its operating expenses. 1988 Laws ch. 53 § 47. See also 

J.A. 132 (adoption of implementing regulations) (identifying "a 

growing need to voluntarily reduce racial isolation in the 

elementary and secondary schools of New York State").

As this Court's opinion in Yonkers makes clear, the 1960s 
and early 1970s marked a high point in the State's readiness to 
pursue the most aggressive, mandatory strategies for overcoming 
racial segregation. But even during periods of relative 
retrenchment, there has been broad support for locally initiated, 
voluntary measures. Indeed, even the statute invalidated in Lee' 
v. Nyquist excepted voluntary plans from its restrictions on the 
powers of appointed school boards . See 318 F. Supp. at 715.

27



Finally, as is documented above, the research of independent 

educators and social scientists, supplies powerful confirmation 

of the judgment of federal and state officials as to the 

compelling need to combat the harms of racially isolated 

schooling and pursue the benefits of school integration. See 

generally Wittmer, 87 F.3d at 920 (stressing relevance of 

academic . . . study" in determining existence vel non of

compelling interest). There is no basis for concluding that the 

importance of these benefits is less urgent than other 

governmental interests recognized as compelling in other 

settings. See Grayned v. City of Rockford, 408 U.S. 104, 119 

(1972) (compelling interest in having an undisrupted school 

session conducive to the students' learning); Board of Dirs.

Rotary Int'1 v. Rotary Club, 481 U.S. 537, 549 (1987)("compelling 

interest in assuring equal access to women extends to the 

acquisition of leadership skills and business contacts"); Michael 

M. v. Sonoma County Superior Court, 450 U.S. 464, 476 

(1981)(compelling interest in preventing teenage pregnancy).15

15 See also Mackey v. Montrym, 443 U.S. 1, 17-19 (1979) 
(noting government's "compelling interest in highway safety"). 
Although not all these cases arose in the Equal Protection 
setting, a strong argument has been made that the "compelling 
interest" requirement is more stringent in the First Amendment 
setting. Simon & Schuster v. Crime Victims Bd., 502 U.S. 105,

28



4. Defendants Have a Compelling Interest in Avoiding 
Participati°n in a "System of Racial Exclusion"

Although the discussion above and the case law speak largely 

in terms of the State's constitutional power to implement 

measures to combat "de facto" segregation, that label is, in 

respects relevant here, misleading. Even if it is assumed -- as 

have the parties -- that the conditions of racial isolation at 

issue in this case are not directly traceable to an official 

policy requiring that students be separated by race, i.e., de 

jure segregation within the remedial jurisdiction of a federal 

court, the implication that racial isolation is a matter of 

"fact," unrelated to any discrimination, is fundamentally

erroneous. As New York's Education Commissioner, Ewald Nyquist 
observed:

124 (1991) (Kennedy, J., concurring in judgment).

The court below accepted the Hopwood panel majority's view 
that "non-remedial" justifications are categorically insufficient 
to withstand strict scrutiny. As will be explained below, 
whatever the sufficiency of the "remedial"/"nonremedial" 
distinction in this case, as Chief Judge Posner explained in 
Wi ttmer, the Fifth Circuit's statement was inaccurate as a 
description of current law and without basis in Fourteenth 
Amendment principle. Indeed, even Justice Sca.lia's opinion in 
Croson - one of the narrowest assessments of governmental power 
to take race-conscious action -- implicitly rejected the 
remedial" limitation, indicating that such action might be 

upheld in case of a "social emergency." 488 U.S. at 520

29



Negroes in this country do not reside today in ghettos as 
the result of free choice and the attendance of their 
children in racially isolated schools is not an accident of 
fate wholly unconnected with deliberate segregation and 
other forms of discrimination.

See Hearings on H.R. 2266 and H.R. 4 8 4 7  before the Subcomm. on 

Educ. of the House Comm, on Educ. and Labor, 92d Cong. 1 5 9 ,  1 6 9  

( 1 9 7 1 ) . To the extent that racial isolation in Metropolitan 

Rochester is the result of residential segregation, it is 

unlikely that intentional racial discrimination played no role in 

shaping such living patterns. The evidence of the role of 

governmental discrimination in isolating African Americans in 

inner city neighborhoods is so overwhelming as to be the subject 

of judicial notice. See Gautreaux v. Romney, 4 4 8  F.2d 7 3 1 ,  737- 

40  (7th Cir. 1 9 7 1 )  (public housing site selection); Arthur v. 

Nyguist, 4 1 5  F. Supp. 9 0 4 ,  9 6 0 - 6 7  (W.D.N.Y. 1 9 7 6 )  (describing the 

role of federal, state, local, and private discriminators in the 

creation of severe racial segregation in Buffalo), aff'd in part, 

rev'd on other grounds, 5 7 6  F.2d 1 3 4  (2d Cir. 1 9 7 8 ) ;  K.  J ackson,

Crabgrass Frontier ( 1 9 8 5 )  (federal role in suburban exclusion); D. 

Massey & N. Denton at 5 1 - 5 7 ;  see also Roisman, The Lessons of 

American Apartheid, 81 Iowa L. Rev. 4 7 9 ,  4 9 0 - 9 3  ( 1 9 9 5 )  • Roisman, 

Intentional Racial Dsicrimination by the Federal Government as a 

Principal Cause of Concentrated Poverty: A Response to Schill &

30



Wachter, 143 U. Penn. L. Rev. 1351, 1351-60 (1995). And although 

there is understandably limited evidence on the point in the 

record so far developed in this case, see infra, there no reason 

to believe that the Rochester area's experience has been 

exceptional. Cf. Warth v. Seldin 422 U.S. 490, 522-23 (1976)

(Brennan, J., dissenting) (noting allegations of intent to keep 

"nonwhite person . . . from residing within . . . [Rochester

suburb of] Penfield" and that "the portrait which emerges from 

the allegations and affidavits is one of total, purposeful, 

intransigent exclusion of certain classes of people from the 

town, pursuant to a conscious scheme never deviated from").16

Under these circumstances, the law is clear that 

governmental actors have the power, if not the duty, to assure 

that such discriminatory acts not be given unnecessary further 

effect. See Croson, 488 U.S. at 492 (government may take race­

Nor can it seriously be disputed that private racial bias 
m  the form of both discrimination by property owners and 

their agents and of race-based decisions to relocate to all-white 
suburbs -- have helped to entrench rigid patterns of residential 
segregation by race. j. Yinger, Closed Doors Opportunity Lost (1995) 
(documenting extent of private housing discrimination). As 
Croson held, the government's compelling interest applies with 
equal force to private discrimination. See Palmore v. Sidoti, 466 
U.S. 429, 433 (1984) ("Private biases may be outside the reach of
the law, but the law cannot, directly or indirectly, qive them 
effect") .

31



conscious measures to avoid "passive participation in a system of 

^scial exclusion"); Bob Jones Univ. v. United States, 461 U S 

574, 604 (1983)(First Amendment right of church-affiliated 

college to engage in racial discrimination yields to "the 

Government['s] . . . fundamental, overriding interest in 

eradicating racial discrimination in education"). Although 

combatting the educational harms of racial isolation -- whatever 

their origins -- is in itself a constitutionally sufficient 

governmental objective and has been held to be such, see supra, 

any assumption that efforts to overcome the effects of 

residential segregation are prohibited because they are 

"nonremedial" for purposes of compelling interest analysis is 

therefore mistaken. Cf. Kromnick 739 F.2d at 905 ("because our 

society has not yet achieved full integration among its component 

races in important areas of public life, including housing, 

employment, and public education, a reasonable plan designed to 

foster racial balance of public school teachers must be 

considered as directed toward remedying still existing racism,

even without an applicable court order or pending administrative 

proceeding") .17

11A hard-to-escape, though presumably unintended effect of 
the reasoning below is (by operation of the Supremacy Clause) to

32



B. The Program Is Narrowly Tailored to the Accomplishment 
of Its Objective

The narrow tailoring analysis of the opinion below is 

infected with equally serious legal errors. Most fundamentally, 

rather than test the Program to determine whether it is narrowly 

tailored to the accomplishment of its avowed objective of 

reducing racial isolation, the District Court faulted the Program 

for not narrowly accomplishing a different objective: promoting 

the "true diversity" recognized in Justice Powell's Bakke opinion 

as conducive to the "robust exchange of ideas." 438 U.S. at 312 

(quoting United States v. Associated Press, 52 F. Supp. 362, 372 

(S.D.N.Y. 1943)). Although that interest is surely compelling -- 

and a policy that purported to promote the "exchange of ideas," 

but ultimately gave no consideration to factors other than race

leave States essentially powerless to take steps to overcome 
racial problems that have not been held to rise to the level of 
Equal Protection violations. As noted above, that would be a 
surprising rule of law, see Bustop, Inc. (Rehnquist, J., in- 
Chambers) , one that is cause for far more than academic concern. 
In Sheff v. O'Neill, the Connecticut Supreme Court has construed 
the State Constitution to reach school segregation beyond that 
actionable under federal law. And the efforts of the New York 
Education Commissioner -- including those approved of in Andrew 
Jackson and those found insufficiently aggressive by this Court 
m  Yonkers -- would be similarly vulnerable.

33



might indeed be constitutionally suspect, cf. Wessman -- it is 

not the aim of the Program at issue here.18

As all parties recognized, this Program's aim is to reduce 

conditions of racial isolation, and if that objective is a 

constitutional one, see supra, it simply makes no sense, as a 

matter of law or principle, to suggest that "narrowly tailoring" 

requires that this problem -- identifiable in racial terms -- no 

be addressed using racial means. Cf. Board of Education v. 

Swann, 402 U.S. at 46 (1971) ("assignments made on the basis of 

race are "the one tool absolutely essential to 

eliminat[ion] of existing dual school systems"); McDaniel v.

Although there is a substantial overlap between the First 
Amendment interest cited by Justice Powell and the objectives of 
policies such as the one at issue here, there are important 
differences, as well. Whereas it is "essential to the quality of 
higher education" to promote "speculation and experiment," Bakke, 
438 U.S. at 312, a major focus of public education at the primary 
and secondary level is "preparing individuals for participation 
as citizens and . . . preserving the values on which our society
rests," Ambach v. Norwick, 441 U.S. 69, 76 (1979). See also 
United States v. Fordice, 505 U.S. 717, 728-29 (1992) ("[a] state
university system is quite different in very relevant respects 
from primary and secondary schools"). Indeed, the sorts of 
diversity that the Hopwood majority explicitly approved, e.g., 
recruitment of students able' to "make a downfield tackle," 78" 
F.3d at 946, is expressly prohibited under the regulations 
implementing New York State's law. See 8 N.Y.C.R.R. 175.24 
(transfers may not be used to "improv[e] the receiving districts 
programs, activities, or other areas of non-academic pursuit: 
such as athletics or interclass activities")

34



Barresi, 402 U.S. 39, 41 (1971) ("In this remedial process, steps 

will almost invariably require that students be assigned 

'differently because of their race' . . . .  Any other approach 

would freeze the status quo that is the very target of all 

desegregation processes"). Whatever benefits might conceivably 

derive from adding characteristics such as those considered under 

the "Harvard Plan" approved in Bakke to the eligibility criteria 

for Program transfers, doing so surely would not help reduce 

— cial isolation. By definition -- and as the District Judge 

forcefully acknowledged at oral argument -- allowing white 

violinists or white children from disadvantaged backgrounds to 

attend school in the suburbs rather than the City, far from 

accomplishing the government's purpose in a less race-conscious 

way, could not help but worsen the problem that Defendants are 

seeking to address.

Nor was the decision below correct in suggesting that, as a 

matter of narrow tailoring law, Defendants were required to 

reduce racial isolation by indirection, i.e., by conditioning 

eligibility on nonracial characteristics that correlate with 

racial minority status. There is no basis for concluding that 

such a regime would be constitutionally preferable: the Supreme

Court has held that a policy for which "race was the predominant

35



factor motivating the legislature's decision" is subject to the 

same constitutional scrutiny as one that rests on an explicit 

racial classification. See Miller v. Johnson, 515 U.S. 900, 916 

(1995). Indeed, as a policy that used factors that correlate 

with race in order to accomplish the aim of reducing racial 

isolation would, inescapably, show a worse "fit" between means 

and ends than does the Program, see Croson, 488 U.S. at 493 

(describing "narrow tailoring" analysis as inquiry into fit 

between ends and means). It is hard to see how any distinction 

drawn between a white student denied a suburban transfer because 

he did not share a characteristic predominant in the minority 

population and a white student granted a transfer because he 

happened to have the proxy characteristic would be less 

controversial than any distinction involved in the current 

Program. As a practical matter, in light of the voluntary nature 

of the Program, a requirement that school districts accept 

transfer students who do not advance the Program's goals (and the 

possibility that such transfers might wind up 

aggravating the problem the Program was intended to combat) might

36



well induce participating districts to withdraw from and/or

terminate the Program.19

II* The Court Should Not Have Reached the Equal Protection Issues

It was plain error for the court to reach the broad 

constitutional conclusions it did on the record before it.

Indeed, as Defendants argued below, expanding the Program 
to include white students interested in attending suburban 
schools not only would have an adverse effect on the Program, it 
would pose a real danger that the Program would be supporting 
students affirmatively interested in attending a school with 
fewer minority classmates, cf. infra. Even if that did not pose 
a legal problem for Defendants, but see Reitman v. Mulkey, 387 
U.S. 369, 376 (1967) (policy that "unconstitutionally involves 
the State in [private] racial discriminations is . . invalid
under the Fourteenth Amendment"), the prospect that it might 
occur might deter them from continuing to participate.

The decision below further disparaged the Program both for 
having a relatively modest effect and for alleged imprecision in 
its definition of "racial isolation." The first criticism is 
answered by this Court's caution in Andrew Jackson that "we must 
be careful not to discourage Voluntary plans that go beyond the 
constitutional requirements because they do not go far enough," 
598 F.2d at 713. As for "imprecision," to the extent that the 
court was accepting the constitutionality of State law (which 
aims to reduce "racial isolation"), there is nothing about the 
term "as applied" here that gives rise to constitutional concern. 
To the contrary, whatever room there will always be to criticize 
any particular choice of numerical benchmark, cf. Andrew Jackson 
II, 738 F.2d at 584 (Winter, J, dissenting), the present 
conditions of the Rochester and suburban schools would qualify.

37



Federal courts are duty bound not to anticipate constitutional 

questions in advance of the necessity of deciding them, see 

Ashwander, and that principle applies with special force at the 

preliminary stages of a proceeding. See Kennedy v. Silas Mason 

Co., 334 U.S. 249, 256-57 (1948) (observing that "summary

procedures, however salutary where issues are clear-cut and 

simple, present a treacherous record for deciding issues of

import" and vacating judgment because it lacked "the 

thoroughness that should precede judgment of this importance").

The record in this case was an especially "treacherous" one 

on which to decide the "issues of far-flung import" the decision 

below undertook to address. Although, as the decision noted, 

there is no absolute requirement that a court conduct an 

evidentiary hearing before issuing a preliminary injunction, 

particularly when the "parties are content to rest on 

affidavits," Drywall Tapers v. Operative Plasters, 954 F.2d 69,

77 (2d Cir. 1992), that exception does not fairly describe what 

happened below. Defendants' indication that no further 

development of the record was needed was offered only after 

Plaintiff's repeated, express concessions that the objective of 

reducing racial isolation was not only "lawful," but "laudable." 

Against the background of these concessions (and of Circuit law

38



holding that the objective of reducing de facto segregation 

"survive[s] strict scrutiny as a matter of law"), it is 

understandable that Defendants would forego introducing the sort 

of evidence that might have further buttressed their compelling 

governmental interest claim. Cf. Woe by Woe v. Cuomo, 801 F.2d 

637 (2d Cir. 1986) .20

Had the court below followed rules of restraint, addressing 

the broad constitutional questions (which Plaintiff declined to 

raise) only as a last resort, if no other less consequential rule 

of decision presented itself -- and then, only after affording 

Defendants an opportunity to have relevant evidence considered - 

the legal errors noted above could have been avoided.

A. Equitable Relief Should have Been Denied on 
Nonconstitutional Grounds

The evidence that was before the court suggests at least 

three reasons why the decision need not even have addressed the 

Equal Protection issues, let alone give the answers it did.

20Indeed, if contrary to the evident teaching of Andrew 
Jackson, the governmental interest question is not one that can 
(and has been) settled "as a matter of law," amici are aware of 
substantial evidence -- much of it discussed above, but 
relatively little in the record so far -- concerning the benefits 
of the racial integration generally and this Program, in 
particular. If necessary, amici would welcome the opportunity to 
present such evidence to the District Court.

39



, Defendants submitted an affidavit suggesting that 

Plaintiff s transfer application had been motivated by her 

mother's desire that she not attend her Rochester "school with 

all those Blacks and Hispanics,'" J.A. 104 -- an assertion that . 

went unrebutted in the Reply Affidavit sworn by Plaintiff's 

mother. See J.A. 399. If it were, in fact, true - the court 

made no contrary finding - that Plaintiff's objectives were so 

powerfully at odds with the Program's broad goal of promoting 

intercultural learning, principles of Equal Protection, see 

Edmonson v. Leesville Concrete Co., 500 U.S. 614, 624 (1991) and

equity, would have argued strongly against ordering the transfer. 

In view of the "extraordinary" nature of the relief involved, 

Niagra Hooker Employees Union v. Occidental Chem. Corp. , 935 F.2d 

1 3 7 0 ,  1 3 7 4  (2d Cir. 1 9 9 1 ) ,  the court should have resolved this

threshold question of Plaintiff's entitlement to enlist its 

powers before granting any equitable relief, let alone the 

broadly based Equal Protection injunction issued.

Second, although the District Court's opinion discussed 

extensively (if erroneously, see supra) the likelihood that 

Plaintiff would "succeed" on her Equal Protection claim, it 

failed to ask the at least equally relevant question whether she 

was "clear[ly] . . . entitled to the relief requested."' Tom

40



Doherty Assoc., Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 34 

(2d Cir. 1995) (emphasis supplied); see Borey v. National Union 

Fi-re Ins. Co., 934 F.2d 30, 33 (2d Cir. 1991) (preliminary

injunction gives movant "a measure of his final relief in advance 

of proving that he is entitled to final relief"). In fact, 

whatever the strength of Plaintiff's "merits" arguments, it is 

exceedingly unlikely that she could obtain on a permanent basis 

the interim relief awarded below. See Heckler v. Matthews, 465 

U.S. 725, 738 (1984) (noting that a court's ruling of

unconstitutionality can result in either nullification or 

expansion of the policy challenged). First, there is a real 

danger that a judgment ruling that Defendants could pursue 

reduction of racial isolation only through unspecified, indirect 

means, see supra, would mean termination of the voluntary Program 

for all students, including Plaintiff. And a conclusion that 

reduction of racial isolation is not a constitutionally 

permissible governmental purpose would necessarily have that 

effect. Whatever "victory" might ultimately bring Plaintiff by 

way of damages or other relief, it would almost surely not leave 

her in Iroquois School.21

21By contrast, had Plaintiff already started attending 
fourth grade at Iroquois (and sought a "status quo" preliminary

41



Finally, the court failed to consider the interests of 

not before the Court who might be affected by its 

decision, i.e., those students who hope to participate in the 

Program in the future -- and those at receiving schools, who 

stand to benefit from less racially isolated experiences.

Although the court confined its order to Plaintiff, its reasoning 

was broad enough to create a serious risk that Defendants would 

terminate the Program and/or that individual districts would 

withdraw their participation. As has been discussed above, the 

educational hardships that such a result would work for amici and 

for students throughout the Rochester Metropolitan area exceeds 

by orders of magnitude any arguable imposition in Plaintiff's 

continuing to attend the school to which she has been assigned by 

operation of state law.

B. The Decision Below Lacks an Adequate Factual Basis

Although the Federal Rules oblige courts to support orders 

granting preliminary injunctive relief with findings of fact, see 

NAACP v. Town of East Haven, 70 F.3d 219 (2d Cir. 1995), the

injunction), the educational hardship of being removed from 
school mid-year might outweigh the relative unlikelihood of her 
being allowed to stay permanently). See Tom Doherty, 60 F.3d at
33 34, Cf. Liddell, 731 F.2d at 1337 (Heaney, J., concurring in 
part).

42



court below made no formal findings, and its key determinations 

rest on broad speculation without support in -- and in critical 

respects contradicted by -- the evidence before the court. 

Notably, the decision offered no support for its finding that the 

Program s limitation to students making integrative moves "tends 

to promote racial stereotypes rather than eliminate them." in 

fact, the evidence before the court strongly suggested the 

opposite. See, e.gr., J.A. 160 (statements by participants that 

Program helped them "realize that all people in different ethnic 

groups are not alike"). The court committed clear error, as 

well, both in finding that the Program "does not achieve anything 

other than . . . facial diversity" -- a conclusion that wholly

ignored substantial evidence, both anecdotal and systematic, of 

the Program's achievements -- and in suggesting that it "does 

little to reduce so-called racial isolation." Although the 

numbers of students are admittedly modest, data in the record,

J.A. 109-23 -- considered in conjunction with publicly available 

enrollment reports, www.nysed.gov/emsc/info/NYDIST,HTML -- 

suggests that, absent the Program, the suburban districts would 

experience dramatic drop-offs in minority enrollment: between 23% 

(48 of 212 in Brockport) and 70% (153 of 217 in Pittsford) of 

American Americans enrolled in suburban districts are Program

43

http://www.nysed.gov/emsc/info/NYDIST,HTML


participants. Finally, notwithstanding the rule that the burden 

is on Equal Protection plaintiffs to show that a race-conscious 

policy is not narrowly tailored, see Wygant v. Jackson Bd. of 

Educ, 476 U.S. 267, 293 (1986), and the even heavier preliminary 

injunction burden, the decision below grounded its narrow 

tailoring ruling on observation that " JjJ_t is not cl p a r . . .that 

defendants could not devise a program that might result in racial 

isolation without making one's race a conclusive criterion," 

(emphasis supplied). Plaintiff had offered no evidence on that 

point, and, as is discussed above, the regime hypothesized is 

likelY a practical, if not a logical impossibility.

C. The Decision Below Transgressed Rules of Restraint
Even if the court below were correct in its assessment of 

the relative equities, sound application of principles of 

judicial restraint would have prevented it from relying on the 

broadest possible rule of decision. After dwelling considerably 

on the circumstances unique to Plaintiff's case, i.e., the 

singular manner in which she came to be excluded from the 

Program, the decision below declined to consider whether those 

facts had any legal significance, opting to announce (on a 

preliminary injunction motion in a case not filed as a class 

action) a rule of virtually limitless application. In so doing,

44



the court neglected its obligation to inquire either whether 

Defendants' policy could be construed, under the circumstances 

peculiar to her case, as authorizing the relief awarded 

Plaintiff, see, e.g., United States v. Monsanto, 924 F.2d 1186, 

1200 (2d Cir. 1991), or, if not, whether the manner in which the 

Program was administered in Haak's particular case might give 

rise to a far narrower constitutional claim. Plaut v. 

Spendthrift Farm, Inc., 514 U.S. 211, 217 (1995) (federal courts 

must decide narrowest constitutional question presented) .22

Conclusion
This case involves nothing as controversial as mandatory 

busing or as philosophically complex as affirmative action. 

Rather, it presents the stark question whether the Equal 

Protection Clause requires governmental actors to be strictly 

neutral between segregation and integration or whether it 

permits them to provide financial support to parents and children

22For example, although the Program generally imposes no 
burdens on students ineligible for transfers, Plaintiff was 
subject to the unsettling experience of being removed after being 
offered admission --an occurrence that is not necessary to the 
achievement of the Program's'goals and one that (as the court 
recognized) might have been avoided had Defendants been less 
circumspect in explaining the Program's design to applicants or 
less ad hoc in verifying eligibility. Cf. Wygant, 476 at 294 
(White, J., concurring) (drawing constitutional distinction 
between race-conscious hiring and layoff plans).

45



willing to take action against racial isolation that redound to 

the educational benefit of all. In short, if the court below was 

right, then the spirit of Brown v. Board of Education, if not 

its letter, was wrong. See Kenneth Clark, Racial Progress & 

Retreat: A Personal Memoir, in H. Hill & J. Jones, Race in America at 

3,18 (1993) ("Reluctantly, I am forced to face the likely 

possibility that the United States will never rid itself of 

racism and reach true integration . . . .  I am forced to 

recognize that my life has, in fact, been a series of glorious 

defeats"). The lower court's ruling should not stand.

Respectfully submitted,

Elaine R. Jones 
Director Counsel

Theodore M . Shaw 
Norman J . Chachkin 
Dennis D . Parker 
Victor A. Bolden

David T. Goldberg ^
NAACP Legal Defense and 
Educational Fund, Inc.
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

Janell M. Byrd 
NAACP Legal Defense and 
Educational Fund, Inc. 
1444 Eye Street, N.W., 
10th Floor 
Washington, D.C. 20005 
202-682-1300

46



CERTIFICATE OF COMPLIANCE

Pursuant to Fed.R.App. 32(a)(7)(B), I hereby certify that the 

brief of amici curiae contains 6,854 words, as determined by the 

word-processing system used to prepare this brief.

/• JdJui)iK/u.k-DAVID T. GOLDBEI&3



CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing AMICI CURIAE 

BRIEF OF NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. AND 

HERSHELL REDDITT, AS PARENT OF DESMON REDDITT, A MINOR, IZORA 

WILCOX, AS GUARDIAN OF HER MINOR CHILDREN, PARRIS WILLIAMS AND 

KEITH AND KEISHA WARE, JULIUS PORTER AND DEBORAH CUMMINGS, AS 

PARENTS Of NYHJA PORTER, A MINOR, AND VAN HANI WHITE, AS PARENT 

OF HIS MINOR CHILDREN, BRANDON AND BRITTANY WHITE have been 

served by depositing two (2) copies of same in the United States 

mail, first class postage prepaid, on this 22nd of April, 1999, 

addressed to the following:

Jeffrey Wicks, Esq.
Bansbach, Zohghlin, Wicks 
& Wahl P.C.
31 Erie Canal Drive, Suite A 
Rochester, New York 14526

Kevin S. Cooman, Esq. 
Peter J. Weishaar, Esq. 
Zicari, McConville, 
Cooman, Morin & Welch, 
P.C.
25 East Main Street 
Rochester, New York 14614

DAVID T. GOLDBERi