Kelly v. Guinn Supplemental Brief for Plaintiffs

    IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

NO. 71-2332
HERBERT E. KELLY, SR., et al.,

Plaintiffs-Appellees, 
v.

KENNETH GUINN, Supt. of Schools, Clark County School District, et al.,
Defendants-Appellants.

NO. 71-2340
HERBERT E. KELLY, SR., et al.,

Plaintiffs-Appellees
v.

KENNETH GUINN, Supt. of Schools, Clark County School District, et al.,
De fendants-Appe11ant

NO. 71-2422
HERBERT E. KELLY, SR., et al.,

Plaintiffs-Appe11ants.
v.

KENNETH GUINN, Sup£. of Schools, 
Clark County School District, et al.,

De fendants-Appe1lants. 
[Cross-Appeals]

Appeal from the united States District Court 
for the District of Nevada

SUPPLEMENTAL BRIEF FOR PLAINTIFFS

JACK GREENBERG NORMAN J. CHACHKIN 
10 Columbus Circle 
New York, New York 10019

CHARLES L. KELLAR
1042 West Owens Avenue 
Las Vegas, Nevada 89106

Attorneys for Plaintiffs as 
Appellees and Appellants



IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

NO. 71-2332
HERBERT E. KELLY, SR., et al.,

Plaintiffs-Appellees, 
v.

KENNETH GUINN, Supt. of Schools, Clark County School District, et al.,
Defendants-Appellants.

NO. 71 
HERBERT E. KELLY, 

Plai

NO. 71-2340
HERBERT E. KELLY, SR., et al.,

Plaintiffs-Appellees 
v.

KENNETH GUINN, Supt. of Schools, Clark County School District, et al.,
De fendants-Appel1ant

2422
SR., et al., 
tiffs-Appellants,

v.
KENNETH GUINN, Supt. of Schools, 
Clark County School District, et al.,

De fendants-Appel1ants. 
[Cross-Appeals]

Appeal from the United States District Court 
for the District of Nevada

SUPPLEMENTAL BRIEF FOR PLAINTIFFS

Pursuant to leave granted by the panel at the oral argument 
in this matter on November 11, 1971, plaintiffs file this 
Supplemental Brief explaining in detail the use made of the 
various maps in the record by plaintiffs' counsel at the oral 
argument. We are also taking the opportunity in this format



to provide the Court with the citations to the two cases 
mentioned by counsel for plaintiffs at oral argument which 
were not contained in the brief.

I
With respect to a possible theory that black faculty 

members were assigned to black schools because the district 
felt black students should be provided with role models whom 
they could emulate, counsel for plaintiffs mentioned Dove v. 
Parham. 282 F.2d 256 (8th Cir. 1960).

Counsel for plaintiffs also mentioned this Court's decision 
holding segregation imposed by administrative action without 
the sanction of state law unconstitutional in Westminster 
School District of Orange County v. Mendez. 161 F.2d 774
(9th Cir. 1947).

II
The following comments about the maps in the record 

relate to subjects discussed at the oral argument and are 
elaborated in detail for the convenience of the Court.

One of the subjects at issue in this case is the construc­
tion by the school district in 1965 and 1966 of the black Gilbert 
and Mackey Elementary Schools. it is instructive in considering 
this matter to examine the 1964-65 zoning map for the Highland 
Elementary School found at page 61 of the record, the 1965-66 
zoning maps for the Highland and Mackey Elementary Schools 
found at page 113 of the record, and the 1966-67 map of the 
zones for Highland, Gilbert and Mackey found at page 116 of 
the record. Enrollment statistics by race for each school are



available only for the 1964-65 (record at p. 50) and 1966-67 
(record at p. 114) school years. Although the comparison is 
made more difficult because the 1964-65 zoning maps are photo­
copies of street maps with individual zones delineated by cross- 
hatching, while the 1965-66 and 1966-67 maps are schematic, it 
is apparent from a comparison of the three maps mentioned 
above that the area presently served by Highland (subsequently 
renamed Booker), Gilbert and Mackey is essentially the same 
area served by Highland Elementary alone in 1964-65. During 
that year the record shows that Highland had an enrollment of 
1,014 black students and 46 "other" (white) students. The map 
at page 61 of the record very clearly shows the northern 
boundary of the Highland zone to have run along Cheyenne 
Avenue from the railroad tracks on the east to Simmons Street 
on the west (the Xerox copy of the map in the record does not
show the entire street name, but an arrow pointing to the
western boundary of Highland running south from its intersection 
with Cheyenne can be seen and part of the words Simmons Street 
are visible). The zone runs south to Smoke Ranch Road (again 
the entire street name is not visible, but the last e of Smoke 
and the word Ranch can be made out) over to Luning and south 
to Lake Mead Boulevard. The zone then takes in the entire area 
north of Lake Mead Boulevard and east to the railroad tracks 
except for a small area at the eastern edge which is marked
"Valley View Estates." Examination of the record at page 73,
showing the zone for Matt Kelly Elementary shows the dispo­
sition of that small area north of Lake Mead Boulevard and

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south of Miller Avenue, west of the railroad tracks and east 
of Revere.

Comparing the original Highland zone with the maps at 
pages 113 and 116 of the record, the first striking fact 
revealed is that the northern boundary line for Highland, 
Gilbert or Mackey has consistently been drawn along Cheyenne 
Avenue. At the same time, Gilbert, Mackey and Highland have 
remained black schools while Lois Craig, the elementary school 
serving the area north of Cheyenne, has been predominantly 
white. in 1964-65 when Lois Craig served a large area north 
of Cheyenne as well as a small area between Simmons and the 
Thunderbird Air Field, south to Cartier (record at p. 71), 
it enrolled 725 white students and 32 black students (record 
at p. 50). in 1965-66, it served essentially the same area.
In 1966-67, it served virtually the same area but lost to 
C.V.T. Gilbert the small space between Simmons and the Air 
Field; it actually lost a few black students in the process, 
enrolling 389 white students and 44 black students. Thus, the 
comment in the Reply Brief of the school board that Mackey was 
so located as to provide for future growth north of Cheyenne 
Avenue (page 6 of Reply Brief) is belied by the school district' 
practice of drawing a rigid boundary between the black area 
south of Cheyenne and the predominantly white area north of 
Cheyenne.

In 1966—67 Lois Craig was considerably below its capacity, 
enrolling 433 students compared to its 1964-65 enrollment of 
757. Yet no black students residing south of Cheyenne Avenue



between the railroad tracks and the air field were assigned to 
Lois Craig nor were white students north of Cheyenne assigned 
to either Gilbert or Mackey. Instead, whites living north of 
Cheyenne near the air field, who are obviously much closer to 
Gilbert or Mackey, travelled all the way east to Lois Craig.
In 1966-67 Gilbert enrolled 516 blacks and only 5 whites,
Mackey 761 blacks and no whites, and Lois Craig 389 whites and 
44 blacks.

Except for the addition of the area between Simmons and 
the air field to Gilbert, all of the zone changes necessitated 
by the construction of Gilbert and Mackey took place within the 
original Highland zone which was overwhelmingly black. Not 
surprisingly, three schools which now served that area, instead 
of one, became racially identifiable as black schools. There 
was no extension of the Lois Craig zone south or vice versa. 
There was no adjustment in the zones for other black schools, 
Kelly, Carson, Madison and Westside, despite the construction 
of Gilbert and Mackey to relieve the pressure on Highland.

The effect of closing Washington and Jefferson Elementary 
Schools was also discussed at the oral argument. We refer the 
Court in this connection to the 1964-65 zoning maps for Washing­
ton (record at p. 92), Jefferson (record at p. 62), Kit Carson 
(record at p. 68), and McCall (record at p. 88) Schools as well 
as to the 1966-67 zoning maps (record at p. 116).

In 1964-65, the Kit Carson zone extended from Lake Mead 
Boulevard to West Owens between the railroad tracks and Holmes 
Street (record at p. 68) just as it did in 1966-67 (record at

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P - 116>- In 1964-65 Carson enrolled 719 bla ,v
"*=Call School in 1964 MaCkS and 14

A r t i e r  between the rail SerV"d *" " "  S°Uth °f EVana a"dne raj-lroad tracks on
Boulevard on the east but extend
Boulevard (record at p 80) A °"ly *°. . P* 80)* At that time it enrolls *:i/.
whites and no black students. * „  area _  “
tracks and Las Ve,as Bo , " “ “  railroadegas Boulevard south of Lake m« h n ,
*“  “ ***» «  1964-65 by the Wash' t
«  -oiled 185 whites and 9 b SCh°01 “  P'
Jefferson B i n a r y  School “  t"  ‘

^  ~  —  Boulevard (record at ^
whites and no blacks (record at p. so). ^  “ 9 196

After Washington and Jefferson were closed at th 
t ^ e  as new capacity was made available west of th 
tracks by the construction of the Gilbert and M k
the zone for Kit Carso y SCh00ls-
e-nded to th e "  ^  —  -  not
either facility “ “  Integratetocuxty. Instead the Mcc=.n
ward below Lake M „ —  extended south-low Lake Mead Boulevard (record at p 116) _ ,Q
McCall enrolled 5i2 w h ^  ' 1966-67512 whites and 42 black*, „ ^
Jefferson been retained th ' Waahington or
1968 th ’ Superintendent testified that in-L968 they would have bee n  i k  i_

transcript, p . 201) ^
for desegregat- ’ ^  “  fUrth6r Cle*r °PP°rtunitiesSegregation at Carson and Westside 
of Washington and Jeff Presented by the closingand Jefferson were not taken.

The maps also assisted ■
mentioned in oral a ^  °f Gxan,Plesoral argument of the way in „hich uhite students

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have been assigned to white schools even if closer to black 
schools. The 1964-65 map for Highland Elementary (record at 
p. 61) shows an area south of Smoke Ranch Road, north of Lake 
Mead Boulevard and west of Luning which is much closer to the 
Highland School than most of the northeast portion of the zone. 
However, it is excluded from the zone. The zoning map for the 
McWilliams Elementary School for the same year (record at p. 67) 
shows that the area referred to next to the Highland School 
has been obviously gerrymandered into McWilliams? in 1964-65, 
McWilliams enrolled 989 white students and no blacks while 
Highland enrolled 1,014 blacks and 46 whites (record at p. 50). 
The 1966-67 map (record at p. 116) shows the same area cut out 
of the Gilbert zone and the map on page 119 of the record 
shows that that area is zoned to McWilliams, a school located 
so far west that it cannot be shown on the map. Obviously 
students from that area are bused at the school district's 
expense to McWilliams, which in 1966-67 enrolled 843 whites and 
19 blacks while Gilbert enrolled 516 whites and 5 blacks (record 
at p. 114). Dr. Lawrence confirmed that this white area has 
historically been zoned away from the closest black school, 
either Highland or Gilbert, and transported to McWilliams or 
Ronzone (June, 1971 transcript, p. 301-02).

Plaintiffs greatly appreciate the opportunity to elucidate 
for the Court what the inspection of the maps in the record 
shows. We regret that because of the short time available to 
work with the maps we were unable to include these detailed

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verbal descriptions in our main brief.

Respectfully submitted.

10 Columbus Circle 
New York, New York 10019

CHARLES L. KELLAR
1042 West Owens Avenue 
Las Vegas, Nevada 89106

Attorneys for Plaintiffs as Appellees and Appellants

CERTIFICATE OF SERVICE
I hereby certify that on this 16th day of November, 1971, 

I served a copy of the foregoing Supplemental Brief for 
Plaintiffs upon Robert L. Petroni, Esq., 225 East Bridger,
Las Vegas, Nevada, attorney for defendants-appellants, and 
Frank A. Schreck, Esq., 717 South Third Street, Las Vegas,
Nevada, attorney for intervenors, by united States Mail, first 
class, postage prepaid. c

JACK GREENBEI 
NORMAN J. CHACHKIN

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