Motion for Leave to File Brief and Brief Amicus Curiae for the National Education Association

    IN. THR 

Supreme Court of the United States 
OcroBeEr TERM, 1969 

No. 632 

BEATRICE ALEXANDER, ET AL., Petitioners, 

V. 

HoLMEs County BOARD OF EDUCATION, ET AL., 

Respondents. 

On Writ of Certiorari to the United States Court of Appeals 
for the Fifth Circuit 

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE 
AND FOR IMMEDIATE CONSIDERATION THEREOF 

AND 
BRIEF AMICUS CURIAE FOR 

THE NATIONAL EDUCATION ASSOCIATION 

RicHARD B. SoBOL 
1823 Jefferson Place, N. W. 
Washington, D. C. 20036 

Davip RuBIN 
1201 16th Street, N. W. 
Washington, D. C. 20036 

Attorneys for Amicus 
Curiae, National Educa- 

Of Counsel: tion Association 

RrcuARD T. SEYMOUR 
1823 Jefferson Place, N. W. 
Washington, D. C. 20036 

  

  

PRESS OF BYRON S. ApAMs PRINTING, INC., WASHINGTON, D. C. 

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TABLE OF CONTENTS 

Page 

Motion ror LEAVE To Fire Brier AMicus CURIAE AND 

FOR IMMEDIATE CONSIDERATION THEREOF 

Brier AMicus CURIAE 

I. Interest of the National Education Association 

II. Summary of the Argument 

ITI. Argument 

A. Segregated Education Results in Enormous 

and Irreparable Injury to Black Children 

B. The Considerations Relied Upon by the Gov- 
ernment and the Court Below Do Not Justify 

Delay in Desegration 

IV. Conclusion 

TABLE OF AUTHORITIES 

CasEs: 

Brown v. Board of Kducation, 347 U.S. 483, 494 
(1954) 

United States v. Hinds County School Board, — F. 2d 
—, Docket Nos. 28030 and 28042, August 28, 1969, 
slip opinion at 5 

United States v. Jefferson County Board of Education, 
380 F. 2d 385 (5th Cir.) (en banc), cert. denied 
389 U.S. 840 (1967) 

STATUTES : 

Title 42 U.S.C. Section 2000c-1 
Elementary and Secondary Kducation Act of 1965  



  

il Contents Continued 

Page 

OTHER AUTHORITIES : 

National Education Association, Commission on Pro- 
fessional Rights and Responsibilities, Wilcox 
County, Alabama: A Study of Social, Economic 
and Educational Bankruploy ........vvesisvuins 

United States Commission on Civil Rights, Racial 
Isolation in the Public Schools ................ 

Transcript of Hearmmg wm Montgomery, Alabama 

United States Department of Health, Education, and 
Welfare 

Office of Education, Equality of Educational Op- 
Terr d EUR IS el a ea oh a 

Progress Report on Civil Righis .............. 

   



IN THE 

Supreme Comet of the United States 
OctoBER TERM, 1969 

No. 632 

BEATRICE ALEXANDER, ET AL., Petitioners, 

y 

HorLMES CouNTY BOARD OF EDUCATION, ET AL., 

Respondents. 

On Writ of Certiorari to the United States Court of Appeals 
for the Fifth Circuit 

MOTION FOR LEAVE TO FILE BRIEF AMICUS 

CURIAE AND FOR IMMEDIATE 

CONSIDERATION THEREOF 

The National Education Association hereby moves, 
pursuant to Rule 42(3) of the Rules of this Court, 

for leave to file the attached brief amicus curiae in  



  

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the above-entitled cause. Petitioners and respondent 

United States of America have consented to the filing.’ 

Consent has been denied by the respondent school 

boards. Because of the expedited schedule that has 

been established by the Court in this case, movant 

requests immediate consideration of this motion, with- 

out awaiting the receipt of written opposition by the 

respondent school boards, so that the attached brief 

may be considered along with the other briefs that 

will be filed before argument. 

The National Education Association (‘‘the Associa- 

tion’’) is an independent, voluntary organization of 

educators open to all professional teachers, supervisors 

and administrators. It presently has over one million 

regular members, and is the largest professional organi- 

zation in the world. The Association was first or- 

ganized in 1857 and was chartered by a special act 

of Congress in 1906. Its statutory purpose is 

. . . to elevate the character and advance the in- 
terests of the profession of teaching and to promote 
the cause of education in the United States. 

Overall policies of the Association are determined 

by its Representative Assembly, a body composed of 

approximately 7,000 delegates representing affiliated 

local and state education associations. The Associa- 

tion has long been committed to the principle that 

racial segregation in education adversely affects the 

quality of the education received by both black and 

white students. It has conducted detailed studies of 

the educational implications of the maintenance of 

  

1 The written consent of these parties has been filed with the 
Clerk. 

   



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dual segregated school systems. At its June, 1969 

Convention, the Representative Assembly adopted a 

formal resolution urging adherence by the Federal gov- 

ernment to the established timetable for complete de- 

segregation of Southern school districts. The resolu- 

tion instructed the officers and staff of the Association 

‘““to exert every effort to reestablish the September, 1969 
deadline for full compliance.” 

It has long been settled that the complete disestab- 
lishment of formerly de jure segregated school sys- 

tems is required under constitutional mandates. The 

issue before the Court in this case does not so much 

concern legal requirements, but rather educational rea- 

sons purportedly justifying a further delay in the im- 

plementation of those requirements. While movant 
fully supports the position of the petitioners that there 

are no acceptable reasons justifying further delay in 

school desegregation, it, as the principal association 

of educators in this country, is particularly well 

equipped to inform the Court as to the substance, or 

lack thereof, of the non-legal justifications for delay 

on which the court below, the Government and the 
respondent school boards have relied. 

Accordingly, the National Education Association re- 

spectfully requests that this Court grant leave to file 

the attached brief amicus curiae, without waiting for 
the receipt of papers in opposition, and that the Court 

  

2 The National Education Association and its state associations 

have participated as amicus curiae in other major proceedings 

involving issues of education and race. See Smuck v. Hobson, 408 
F. 2d 175 (D.C. Cir. 1969) ; Lee v. Macon County Board of Educa- 
tion, 283 F. Supp. 194 (M.D. Ala. 1968).  



  

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consider said brief together with the briefs of the 
parties, and with the other papers in the case. 

Rspectfully submitted, 

RicHARD B. SoBOL 
1823 Jefferson Place, N. W. 
Washington, D. C. 20036 

Davip RuBiN 
1201 16th Street, N. W. 
Washington, D. C. 20036 

Attorneys for Amicus 
Curiae, National Educa- 
tion Association 

Of Counsel: 

Ricaarp T. SEYMOUR 
1823 Jefferson Place, N. W. 
Washington, D. C. 20036 

October 17, 1969 

 



IN THE 

Supreme Conet of the United States 
OctoBER TERM, 1969 

No. 632 

BEATRICE ALEXANDER, ET AL., Petitioners, 

Ya. 

HoLMES CouNTY BOARD OF EDUCATION, ET AL., 

Respondents. 

On Writ of Certiorari to the United States Court of Appeals 
for the Fifth Circuit 

BRIEF AMICUS CURIAE FOR 

THE NATIONAL EDUCATION ASSOCIATION 

1. 

INTEREST OF THE NATIONAL 

EDUCATION ASSOCIATION 

The National Education Association is an independ- 
ent, voluntary organization of professional educators. 

It has over one million members, including teachers, 

supervisors, and administrators. As stated in the As- 

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sociation Charter, its purpose is ‘‘to elevate the charac- 

ter and advance the interests of the profession of teach- 
ing and to promote the cause of education in the United 
States.”” Both the Association and its members have a 

deep interest in the quality of education received by the 

children of all races. For this reason, it has conducted 

investigations of the problems of race and education in 

the school systems of Wilcox County, Alabama, Balti- 

more, Maryland, Hyde County, North Carolina, and 

Detroit, Michigan. For this reason also, it has actively 

supported litigation in numerous school desegregation 

cases. 
11. 

SUMMARY OF THE ARGUMENT 

Segregated education imposes enormous and irrep- 

arable injury on black children. First, there is the psy- 

chological damage to the black student, recognized by 

this Court in 1954, flowing from official maintenance of 

separate black schools. Second, it is established that 

black children, particularly in the South, are substan- 

tially less able to learn in an environment of racial 

isolation than in an integrated educational setting. 
Third, some school districts across the South still pro- 

vide facilities for black students that are markedly 

inferior to those provided for whites, thus further 
reducing the quality of the education afforded black 

children. 

The disastrous consequences of racial segregation in 

education have been established and accepted for many 
years, but the judicial attitude toward the question of 

speed of desegregation has often failed to consider that 

these consequences are accruing daily and cannot be 

reversed. A year’s delay means that tens of thousands 

of black school children will endure another important 

   



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segment of their education in racial isolation; many of 

these children will complete their education during 

that period. It is time that the question of delay be put 

in these human terms. The National Education Asso- 

ciation believes that neither administrative inconven- 

ience, nor a general warning of ‘‘chaos, confusion, 

and a catastrophic educational setback’ justified the 

delay granted in these cases. The administrative incon- 

venience in the immediate implementation of desegre- 

gation plans is, in the opinion of the Association, read- 

ily surmountable. Considerations of the quality of 

education call for speed, not for delay. 

Tit, 

ARGUMENT 

A. Segregated Education Results in Enormous and Irreparable 
Injury to Black Children 

In 1954, this Court recognized that the fact of offi- 

cially-sponsored segregation, without more, causes seri- 

ous psychological damage to children in elementary 

and secondary schools: 

To separate them from others of similar age and 
qualifications solely because of their race generates 

a feeling of inferiority as to their status in the 

community that may affect their hearts and minds 

in a way unlikely ever to be undone. 

The isolation of black students from other children 

with varying backgrounds and aspirations is injurious 

in another respect. The United States Office of Edu- 

cation, in an official report based on a nationwide sur- 

vey, found that ‘‘the achievement of minority group 

children increases’’ in proportion to the level of ‘‘the 

! Brown v. Board of Education, 347 U. S. 483, 494 (1954).  



  

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educational aspirations and backgrounds of fellow stu- 
dents, . J” 

It is those Negroes who are in the South whose 

achievement appears to vary most greatly with 

variations in the characteristics of their fellow 

students. Here, where the most educationally dis- 

advantaged backgrounds are found, and where 

achievement is lowest, is where student body char- 

acteristics make most differences for Negro 

achievement. It is in these more stable, less urban 

areas where exposure to children of different edu- 
cational backgrounds has in the past been least 

possible for Negro children.’ 

These findings are corroborated by the United States 
Commission on Civil Rights, which concluded that ‘‘the 

effects of racial composition of schools are cumulative. 

The longer Negro students are in desegregated schools, 
the better is their academic achievement. . . . Con- 
versely, there is a growing deficit for Negroes who re- 

main in racially isolated schools.” * 

A third major cause of educational harm to children 

attending all-black schools is the continued disparity in 

quality between black-attended and white-attended 

schools in the South. For example, the Commission on 
Civil Rights found that, in a sixteen-county area of 

Alabama, white-attended school buildings and their 
  

2 Office of Education, United States Department of Health, Edu- 
cation and Welfare, Equality of Educational Opportunity (1966) 
at 302. In sec. 402 of the Civil Rights Act of 1964, 42 U.S.C. sec. 
2000¢-1 (1964), Congress directed that this study be made. 

81d. at 304-05. 

* Racial Isolation in the Public Schools (1967) at 204, Finding 
No. 9 on ‘‘Racial Isolation and the Outcomes of Education’’. 

   



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contents were worth an average of $981.00 per pupil. 

Those attended by blacks in the same area were worth 

only $283.00 per pupil.’ The National Education As- 

sociation found similar disparities in its investigation 

of the Wilcox County, Alabama school system.’ 

5 Transcript of Hearing held before the U. S. Commission on Civil 

Rights, Montgomery, Alabama (1968), Exhibit No. 26 at 863. 

At the hearing, the State Superintendent of Education displayed 
a marked lack of interest in correcting these disparities: 

Mr. Glickstein [for the Commission]: Dr. Stone, have you 
been moving ahead to bring about this equalization of schools 
and consolidation and elimination of inadequate schools? 

Dr. Stone [Alabama State Superintendent of Education] : 
We have been obeying the court order. 

Mr. Glickstein : For example, Dr. Stone, our information in- 
dicates that five Negro schools each with an enrollment of less 
than 100 and one enrolling only 30 students continue to op- 
erate in Marengo County. Our information also indicates that 
in Clarke County only one white school has an insurance 
evaluation of less than $110,000, and that school has a valua- 

tion of $52,000. Eight of the other 11 Negro schools on the 
other hand have an insurance valuation of less than $20,000. 
Six of these have a valuation of less than $5,000, and two actu- 
ally have a valuation of $750. 

* * * 

Dr. Stone: I would assume that the building that is assessed 
for $120,000 is a more expensive building than the one that 
is assessed for $750, that would be a reasonable assumption. 
Now, it is up to—the State had nothing to do with the building 

of either one of the buildings. All the plans were promulgated 
by the local school system. It is a little something that we call 
democracy and we think that it has worked pretty well. 

Transcript at 547-48, 550. 

¢ Commission on Professional Rights and Responsibilities, Na- 
tional Education Association, Wilcox County, Alabama: A Study 

of Social, Economic and Educational Bankruptcy (1967). 
The NEA unit established per-pupil resources and expenditures 

for white-attended and black-attended schools showing twofold and 
sometimes greater discrepancies in favor of white students. Id. at 
31, 37, 39, 41, 43, and 47.  



  

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The Office of Education survey established that the 

quality of the educational facility has a stronger effect 

on the achievement of disadvantaged students than it 
does on the achievement of students from more advan- 

taged backgrounds. It also found that the quality of 

the facility was most important for Negroes in the 

South.’ 

Since early 1967, almost every school district in the 

Fifth Circuit desegregating under court order has 
been ordered to equalize the facilities in its schools, 

United States v. Jefferson County Board of Educa- 
tion, 380 F. 2d 385 (5th Cir.) (en banc), cert. demed, 

389 U.S. 840 (1967), but without discernible effect. 

In the opinion of the Association, the only practical 

procedure for the elimination of the qualitative differ- 
ences in black and white schools is complete integra- 
tion. 

These three separate phenomena combine to produce 

irremediable educational harm. Thus, according to the 

Office of Education survey, in the rural South black 

students in the 12th grade are an average of 3.9 grades 

behind white students in reading comprehension. 

B. The Considerations Relied Upon by the Government and the 
Court Below Do Not Justify Delay in Desegregation 

The action of the court below, suspending its earlier 

mandate that terminal desegregation plans be imple- 

mented this Fall, was premised entirely on an August 

19, 1969 letter written by the Secretary of the Depart- 
  

7 Office of Education, United States Department of Health, Edu- 

cation and Welfare, Equality of Educational Opportunity (1966) 
at 312. 

$Id. at 274. In urban school systems in the South, black students 
in the twelfth grade were 3.5 grades behind whites in reading com- 
prehension. 

   



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ment of Health, Education and Welfare, seeking such 

a delay. In his letter, Secretary Finch asserted that the 

plans submitted by the Office of Education, pursuant to 

the July 3rd mandate of the Court of Appeals, were 

developed without adequate time and that this imple- 

mentation ‘‘in the terribly short space of time remain- 

ing’’ presented ‘‘administrative and logistical difficul- 
ties’’ which could not be met without producing ‘chaos, 

confusion and catastrophe. ...”? 

No explanation of those conclusions was afforded by 

the Secretary. Moreover, they run directly counter to 

all previous expressions of the Executive Branch on 

the issue. In acceding to the requested delay, the Court 

of Appeals noted that the Government had proposed 
a more rigid timetable than that established by the 

court in its July 3, 1969 decision: 

Questions were specifically directed to the Assist- 

ant Attorney General appearing on behalf of the 

Government. Without qualification, in response 
to precise inquiries, he affirmed the Government’s 

view that the timetable proposed by the Govern- 

ment was reasonable. And . . . he affirmed that 

sufficient resources of the Executive Department 

would be made available to enable the Office of 

Education of the United States Department of 

Health, Education and Welfare to fulfill its role 
as specified in the order proposed by it... ." 

The court further noted that, until Secretary Finch’s 

August 19 letter, there had been no suggestion that the 
  

9 The letter is set forth at pp. 53a-54a of the petition for certiorari 

in this case. 

10 United States v. Hinds County School Board, ___ F.2d ___, 

Docket Nos. 28030 and 28042, August 28, 1969, slip opinion at 5. 

 



  

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timetable ordered on July 3 ‘‘should be relaxed or ex- 

tended, or that such timetable was unattainable.” ** 

Moreover, Dr. Gregory R. Anrig, then Director of 

the Division of HKqual Educational Opportunities in 

HEW’s Office of Education, stated in his August 11 
letter transmitting the plans to the district court: 

I believe that each of the enclosed plans is educa- 

tionally and administratively sound, both in terms 

of substance and in terms of timing." 

Dr. Anrig never deviated from that view and declined 

to testify in support of Secretary Finch’s position at 

the August 25, 1969, hearing in the district court. 

Both of the HEW officials who did testify in the 

district court hearing following the Finch letter con- 
tradicted Secretary Finch by asserting that ‘‘adequate 

time was had to develop the basic plans in question.’’ ** 
But these officials did support Secretary Finch’s argu- 

ment that implementation of the plans in the available 

time would not be practicable. 

In supporting that view, they listed the following 
factors: 

(a) the necessity to publicize newly established zone 
lines; * 

(b) the necessity to reorganize transportation sys- 

tems; *° 
  

11 Jd., slip opinion at 6. 

12 The letter, addressed to Judge Cox, is contained in Appendix 

C to the petition for certiorari in this case, beginning at 40a. The 
quoted language appears at 44a. 

13 Findings of Fact and Conclusions of Law, in Appendix D 
of the petition for certiorari in this case, at 56a, 64a-67a. The 

quoted language appears at 66a. 

1 74. at 67a. 

15 Id. 

   



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(¢) the necessity to consider changes in curricu- 

lam; * 

(d) the necessity to effect physical changes in class- 

rooms, lavatories and other facilities; *' 

(e) the necessity to reassign some teachers; '® 

(f) the necessity to reconsider the expenditure of 

federal funds available under the Elementary 

and Secondary Education Act of 1965.*° 

The only additional points in justification for delay 
were references to the desirability of conditioning 

teachers, students and the community to the strains of 

school desegregation.® 

The National Education Association does not believe 

that any of these reasons, or the combination of them, 

pose such educational or administrative problems as to 
justify further delay in desegregation. First, what- 

ever may be the fact in large, complicated school sys- 

tems, the asserted considerations have little relevance 
to small districts operating only a few schools. Yet 

very small systems® were lumped together with larger 

districts in the common assertions of difficulty. 

Second, for even the largest systems involved here, 

the asserted difficulties are not sufficiently significant 
to justify delay. 

16 Id. at 64a-65a. 

17 Id. at 65a. 

37d. 

13.1d. at 67a. 

20 Id. at 65a, 67a. 

21 Among the cases at bar, the Anguilla Line Consolidated School 

District has only three schools, the Canton Municipal Separate 

School District has only four schools, and the Wilkinson County 

and the North Pike County Consolidated School Districts have 
only four schools apiece.  



  

  

  

(a) 

(b) 

(¢) 

(d) 

(e) 

(£) 

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Publicity for new school zone boundaries can 

be accomplished by a notice in a local news- 

paper and, to the extent necessary, by redirecting 

persons who report to the wrong school on open- 
ing day. 

Drawing up school bus routes in an integrated 

school system is far less complicated than the 

planning of school bus routes under a freedom- 

of-choice plan, and can normally be accom- 

plished in a matter of days. 

The references to supposed changes of curric- 

ulum is unclear, but since neither the number of 

students at each grade level nor the number of 

teachers would necessarily change, the problem 

seems only that of allocating given numbers of 

students to given classes—a problem managed 

at the beginning of semesters by school systems 

across the country. 

The minor changes necessary to accommodate 

different ages of children than were formerly 

in a school building—installing desks, restroom 

facilities and water fountains of a different 

size—can be, and normally are, accomplished in 

a short period. 

  

The assignment of teachers to classes they are 

qualified to teach is a normal educational task, 

requiring but a few days to accomplish. 

Any change in the use of federal funds required 

by desegregation need not be resolved before 
school opening, and with the assistance of HEW 

officials, there is no reason why altering plans 

for the expenditure of Title I funds should pre- 
sent a burden of any size. 

   



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And the suggestion that the community, the teachers 

or the students need more time to become acclimated 

to desegregation is simply impermissible fifteen years 

after Brown. 

The tasks referred to by the HEW witnesses should 

together require a week or, at most, two weeks to com- 

plete. Where a school district could not complete the 

necessary work in the available time,” the district court 

could have ordered a short delay in scheduled school 

opening. But there are no educational reasons—pre- 
sented or existing—which would support a year’s delay 

in effecting desegregation. Kducators in the Office 
of Education concluded, after intensive investigations, 

that none of the districts here involved have sound 

reasons for delaying implementation of the plans sub- 

mitted. There is nothing in this record to suggest that 

that conclusion was incorrect. 

A further compelling reason for this Court to pro- 

hibit further delay in desegregation concerns the re- 

lationship of cases such as these, where compliance with 

constitutional requirements has not been achieved, to 

the many school districts in the South where school 

officials have eliminated the dual system. In many 

of the latter cases, compliance was possible in the face 

of substantial resistance in the community because 

of the assumption that the judicial and executive state- 

ments concerning the timetable for desegregation would 

be enforced. An abandonment of that timetable at 

this time seriously weakens the position of those who 
advocated the peaceful transition to a unitary system, 

22 As Secretary Finch’s letter pointed out, some of the school dis- 
tricts involved did not begin their school year until September 11. 

Petition for certiorari at 53a. 

  

 



    

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and threatens to precipitate resegregation in many 

of these districts.” 

Implementation of the plans proposed in these cases 

by HEW during the course of this school year presents 

problems of disruption that would not have been pre- 

sented had the Government not sought delay in August. 

On balance, however, the National Education Associa- 

tion believes that the adverse effects of the continued 

maintenance of segregated schools for any additional 

period outweighs the adverse effects of a change dur- 
ing the school year, and urges this Court to order the 

immediate implementation of the HEW plans. 

IV. 

CONCLUSION 

Any further delay in desegregation would result in 

enormous and irreparable harm to black children. The 

educational and administrative reasons that have been 

advanced to justify a delay in desegration in the case at 

bar are without merit. Sound educational policy calls 
not for delay, but for terminal desegregation, even at 
the cost of reassigning students during the course of a 

school year. 

Accordingly, amicus National Education Association 

urges that the August 28, 1969 order of the Court of 

Appeals be reversed, that this Court hold that admin- 
istrative difficulties will no longer be permitted to post- 
pone desegregation in any case, and that this matter be 
  

23 A report of the Department of Health, Education, and Wel- 

fare states that there were ‘‘29 last-minute reneges on plans’’ by 
school districts desegregating under HEW-approved voluntary 
plans, at the beginning of the 1969-70 school year. Progress Re- 

port on Civil Rights (1969) at 2. 

   



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remanded with instructions that the District Court 

enter orders requiring the immediate implementation 

of the plans drawn up by the Office of Education of 
HEW for these school districts. 

Respectfully submitted, 

RicHARD B. SoBOL 

1823 Jefferson Place, N. W., 

Washington, D. C. 20036 

DAviD RUBIN 

1201 16th Street, N. W. 
Washington, D. C. 20036 

Attorneys for Amicus 

Curiae, National Educa- 
tion Association 

Of Counsel: 

RicHARD T. SEYMOUR 

1823 Jefferson Place, N. W. 

Washington, D. C. 20036