Estes v. Dallas NAACP Brief in Opposition to Certiorari

    In th e

Glmurt of %  •Hutted States
October Term, 1978 

No............

Nolan Estes, et al., 

—versus—
Petitioners,

Oak Cliff Branch, South Dallas Branch 
and John F. Kennedy Branch of the 

Metropolitan Branches of Dallas, NAACP,
Respondents,

and
Ralph P. Brinegar, et al,, 

—versus—
Petitioners,

Oak Cliff Branch, South Dallas Branch 
and John P. Kennedy Branch of the 

Metropolitan Branches of Dallas, NAACP,
Respondents,

and
Donald R. Curry, et al., 

—versus—
Petitioners,

Oak Cliff Branch, South Dallas Branch 
and John P. Kennedy Branch of t h e  

Metropolitan Branches of Dallas, NAACP,
Respondents.

BRIEF IN OPPOSITION TO CERTIORARI

Nathaniel R. Jones 
1790 Broadway 
New York, N. Y. 10019

E. Brice Cunningham
Cunningham, Greenidge & Gaines 
2606 Forest Ave., Suite 216-219 
Dallas, Texas 75215

Of Counsel:
Louis R. Lucas

Ratner, Sugarmon, Lucas,
Salky & Henderson 
625 Commerce Title Bldg.
Memphis, Tenn. 38103



TABLE OF CONTENTS
PAGE

Opinions B elow .................................................... -..............  2

Jurisdiction ............................................ -............. —......—- 2

Question Presented ............................................................  2

Statement .............................................................................. 3

Reasons Why the Writ Should Be Denied—

A. The Swann Mandate  ........ .......... : —.......... . 5

B. Petitioners Misread Milliken II as Mandating
Ancillary Relief in Lieu of Desegregation ___  8

C. Piecemeal Appeals: The Remand Below Was
a Correct Exercise of Jurisdictional Power of 
the Court of Appeals .....................-.... ............... 11

D. Fear of “White Flight” Not a Proper Basis for
Maintaining One-Race Schools ............— ........  13

Conclusion ................ - ...................... ..................................—-  14

T able of A uthorities

Cases :

Board of Education of City School District of the City
of New Rochelle v. Taylor, 82 S.Ct. 11 (1961) ____ 12

Brown v. Board of Education, 349 U.S. 294 (1955) .....  3, 7
Brown v. Swann, 10 Pet. [U.S.] 497 (1836) ................... 10
Brown Shoe Co. v. U.S., 370 U.S.............. .................. . 12
Brunson v. Bd. of Trustees, 429 F.2d 820, 823-827 (CA 

4) ............................ '...................... -.................................. 14

Cooper v. Aaron, 358 U.S. 1 (1958) .................. ........ ...7,14



11

PAGE

Davis v. Board of School Commissioners of Mobile Co.,
402 U.S. 33 (1971) ....... ....... ......... ......... .’............ ...... ...3,13

Dayton Board of Education v. Brinkman, 433 U.S. 406
6, 7 ,12n

Evans v. Buchanan, 393 F.Supp. 428, a f d  423 IJ.S.
963 (1975) pet. denied, 423 U.S. 1080 (1975) stay 
denied, Brennan, J., (in chambers) 1978 ........ ..........  10

Green v. County School Board of New Kent County,
391 U.S. 430 (1968) ........................................................3,13

Hills v. Gautraux, 425 U.S. 284 (1976) ______________  lln
Hobson v. Hensen, 269 F.Supp. 401 (DJD.C. 1967), 

appeal dismissed, 393 U.S. 801 (1968) .... ........ .........  14

Milliken v. Bradley, 418 U.S. 717 .................................. 10,13
Milliken v. Bradley, 419 U.S. 815, 42 L.Ed. 2d 41, 95

S.Ct. 30, 31 (1974) ..... ....... .......... .......... .......... .........  9,10
Monroe v. Bd. of School Comm., 391, 429 F.2d 820 (CA

4) (en banc) (Sobeloff, Jr., Concurring) ...............13,14
Morgan v. Kerrigan, 530 F.2d 401 (1st Cir. 1976), cert, 

denied sub nom.; White v. Morgan, 426 U.S. 935 
(1976) ........... ........ ...... ............ ............ .................... .....13,14

Swarm v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1 (1971) ................... .................... ......2,3,5,10,13

Tasby v. Estes, 412 F.Supp, 1192 (N.D. Tex. 1976) ..... 3
Tasby v. Estes, 517 F.2d 92 (5th Cir. 1975), cert, de­

nied, 424 U.S. 939 (1975) ........ ............................ ...... . 3
Tasby v. Estes, 572 F.2d 1010 (5th Cir. 1978) ........... 2, 4, 8
Taylor v. Board of Education of New Rochelle, 288 

F.2d 600 (1961) ............................. ........ ................. .......  i 2

U.S. v. Louisiana, 389 U.S. 145 (1956) 10



I n  t h e

©Hurt of tfye States
O ctober T eem, 1978 

No..............

Nolan E stes, et al., 

—versus—
Petitioners,

Oak Cliff B eanoh, South D allas B banch 
and J ohn F. K ennedy B ranch of the 

M etropolitan B ranches of D allas, NAACP,

and
Respondents,

R alph F. B rinegar, et al., 

—versus—
Petitioners,

Oak Cliff B ranch , South D allas B ranch 
and J ohn F . K ennedy B ranch of the 

Metropolitan B ranches of D allas, NAACP,

and
Respondents,

Donald R. Curey, et al., 

—versus—
Petitioners,

Oak Cliff B ranch , South D allas B ranch 
and J ohn F. K ennedy B ranch of the 

M etropolitan B ranches of D allas, NAACP,
Respondents.

BRIEF IN OPPOSITION TO CERTIORARI



2

Opinions Below

The remand opinion of the United States Court of Ap­
peals for the Fifth Circuit now at issue appears as the 
Appendix C to the Petition of Nolan Estes, et al., at pages 
130a-146a, and reported at 572 F.2d 1010. Other opinions, 
orders and judgments of the District Court are found in 
Appendix B to Petition of Estes, pp. 4a-129a.

For a full listing of other opinions, rulings and judg­
ments, see 512 F.2d 92, 95 (5th Cir.), cert, denied, 423 U.S. 
939 (1975).

Jurisdiction

The Court of Appeals’ judgment remanding the pupil 
assignment portion of a school desegregation plan for the 
elimination of de jure segregation to the District Court, 
was entered on April 21, 1978. This court’s certiorari ju­
risdiction is invoked under 28 U.S.C. 1254.

Question Presented

Whether any issue warranting this Court’s review is 
presented by the Court of Appeals’ remand of the case to 
the District Court for the formulation of a new student 
assignment plan for an unremedied statutory dual system, 
along with instructions to consider the feasibility of adopt­
ing Swann v. Charlotte-Mecklenburg Bd. of Education, 402 
U.S. 1 (1971) desegregation tools or to make specific find­
ings of facts in connection therewith.



3

Statement

Negro children and their parents have sought the de­
segregation of the Dallas Independent School District 
(DISD) since July, 1955 when an action was brought to 
desegregate the facilities of DISD,1 After extensive liti­
gation, including appeals, the law of this case is that DISD 
is a state-imposed dual school system.2 Remedial steps to 
dismantle the segregated condition were ordered by the 
Fifth Circuit, Tasby v. Estes, 517 F.2d 92 (5th Cir. 1975), 
cert, denied, 424 U.S. 939 (1975). On remand this respon­
dent was allowed to intervene on behalf of the Metropolitan 
Branches of the Dallas NAACP and individual parents 
and children to participate in the remedial phase. Tasby 
v. Estes, 412 F.Supp. 1192 (N.D. Tex. 1976). From the 
district court’s approval of a plan respondents appealed 
on the ground the “plan” approved by the district court 
did not meet minimum constitutional standards.3 Swann 
v. Charlotte-Mechlenburg Board of Educ., 402 U.S. 1 
(1971); Green v. Co. School Bd, of New Kent Co., 391 U.S. 
403 (1968) ; Davis v. Bd. of School Commissioners of 
Mobile, 402 U.S. 33 (1971).

The Court of Appeals found that the plan divided DISD 
into six subdistricts, one of which is nearly all black and 
contains only one-race schools. It has 27,500 students at­
tending sixteen schools. (A one-race school was defined as

1 For a chronology of this litigation, see Tasby v. Estes, 517 F.2d 
92, 95 (5th Cir.), cert, denied, 423 U.S. 939 (1975).

2 As the Court of Appeals noted at fn. 18, “Even after the 
Supreme Court’s decision in Brown v. Board of Education, 349 
U.S. 294 (1955), Texas laws required segregation. The penalties 
for violating the statutes included loss of funding and accredita­
tion. 412 F. Supp. at 1189.

3 Under the present plan in operation since 1975 seventy-three 
(73) one-race schools remain segregated. Of these fifty-nine (59) 
are elementary schools, six 4-8 schools and eight 9-12 high schools. 
Tasby, 572 F.2d 1010 at 1012.



4

one with a student body with approximately 90% or more 
of the students being either Anglo or combined minority 
races.) In the other five subdistricts, containing some 160 
schools, over fifty are still essentially one-race schools.

Furthermore, the Court of Appeals found that the dis­
trict court’s order leaves high school students in the neigh­
borhood schools. Within three of the four integrated sub- 
districts (exclusive of East Oak Cliff, the black subdistrict, 
and Seagoville, the one predominately Anglo subdistrict), 
this results in high schools that are still one-race schools.

Moreover, contrary to Swann, 402 U.S. at 26-27, the 
district court’s order placed the burden of transporting 
children participating in the majority to minority transfer 
option, on students and parents rather than on the school 
board.

After a thorough analysis of the components of the 
desegregation plan adopted by the district court, the Fifth 
Circuit again remanded the student assignment portion 
for further consideration. The remand order required the 
district court to modify the student assignment plan only 
if the continued existence of one-race schools is not jus­
tified by findings of facts. Tasby v. Estes, 572 F.2d 1010 
(5th Cir. 1978), Petitioners applied for a rehearing and 
rehearing en banc. Both were denied by the Fifth Circuit 
on May 22, 1978. Defendants’ Appendix D. Estes Peti­
tioners moved for a stay of mandate pending certiorari 
and same was denied by the Court of Appeals on August 
14, 1978. A Petition for Certiorari together with an Ap­
plication for Stay were filed with this court. The latter 
was referred to Mr. Justice Powell who denied same in 
Chambers.4 *

. 4 Two other issues were appealed by respondents, i.e. the exclu­
sion of Highland Park Independent School District from the de­
segregation plan and the acquisition and sale of certain property.



5

Reasons Why the Writ Should Re Denied

A. The Swann Mandate

All of the petitioners6 are attempting an end run to this 
court around the clear and common-sense remand direction 
of the Court of Appeals. That court held that a remand 
was necessary because:

“We cannot properly review any student assignment 
plan that leaves many schools in a system one-race 
without specific findings by the district court as to the 
feasibility of these techniques . . . .  There are no ade­
quate time-and-distance studies in the record in this 
case. Consequently, we have no means of determining 
whether the natural boundaries and traffic considera­
tions preclude either the pairing and clustering of 
schools or the use of transportation to eliminate the 
large number of one-race schools still existing. 572 
F.2d at 1014. (Other citations omitted)

Such a remand was required by this court’s holding in 
Swann v. Charlotte-M'ecklenburg Board of Education, 402 
U S. 1 (1971), that where de jure segregation is found to 
exist one-race schools are subject to strict scrutiny be­
cause :

[Wjhere the school authority’s proposed plan for 
conversion from a dual school system to a unitary 
system contemplates the existence of some schools that 
are all of predominately one-race, they have the bur­
den of showing that such school assignments are gen­
uinely non-discriminatory. The court should scruti­
nize such schools, and the burden upon the school 
authorities will be to satisfy the court that their racial

6 The issues raised by Brinegar petitioners and the Curry peti­
tioners in their petitions for certiorari will be treated in this 
section.



6

composition is not the result of present or past dis­
criminatory action on their part. Swann, 402 U.S. at 
26.

The Court of Appeals found as a fact that the DISD 
acknowledged the harmful effect of one-race schools upon 
“the finding of a unitary system.” It also noted that the 
district court had failed to make the specific findings as to 
why these schools could not be desegregated using and 
adopting the techniques approved in Swann. This failure 
by the district court impaired the ability the reviewing 
court to properly evaluate the plan. Consistent with the 
holding in Dayton Board of Education v. Brinkman, 433 
U.S. 406 (1977), 53 L.Ed.2d 851, 97 S.Ct. 2766 the Court of 
Appeals remanded for the findings of appropriate facts. 
As Mr. Justice Rehnquist wrote in Dayton, a basic sig­
nificance of Dayton was its holding with respect to the 
proper allocation of functions for factual determination 
by district courts and their review by appellate courts.

The Court of Appeals was the appropriate tribunal in 
position to determine whether a fact circumstance was in 
sufficient posture for an appellate evaluation. Also, the re­
mand here must be read in the context of the history of this 
21 year old litigation. On several occasions during the life 
of this case the district court has been advised to invoke 
the Swann inquiry with respect to one-race schools with 
respect to this statutorily created dual system and to as­
say the feasibility of the assignment methods which should 
be considered, or, in the alternative, to make appropriate 
findings.

Once again, the district court has neither made those 
specific feasibility findings, nor has it ordered the utiliza­
tion of the Swann desegregative tools. It is clear that with­
out such findings of fact by the district court, the Court of



7

Appeals is unable to review the judgment or ascertain 
whether the school district has met the Swann burden of 
justification, i.e. lack of feasibility in assigning children so 
as to eliminate the dual system, or that the segregation was 
not the result of present or past discriminatory action.

The only justification advanced by the petitioners and 
which they implore this court to adopt are (1) there is a 
majority of minority students in the system, and that (2) 
the system is large, (3) that they have devised “ innovative” 
plans, and (4) “white flight” will result if total desegrega­
tion is ordered.

Petitioners submit that such assertions do not rise to 
the level of Swann-required justification. They are con­
stitutional irrelevancies. At this point, to the extent that 
facts have not been found, they cannot be reviewed. To 
the extent they are unreviewed by the Court of Appeals 
they are not in a posture for consideration by this Court, 
Dayton v. Brinkman, 433 U.S. 407. To the extent the peti­
tioners assert legal principles which run contra to the 
unanimous holdings of this Court the Court of Appeals has 
no duty to adopt them. Indeed it is dutybound to reject 
them.

Petitioners argue as though Brown v. Board of Educa­
tion had never been decided and that Cooper v. Aaron’s 
lesson has no application today. Brinegar petitioner, for 
instance, suggest that popular acceptance of a plan some­
how relaxes the constitutional imperative to eliminate de 
jure segregation from the Dallas school system. Brown 
and Cooper v. Aaron have been reaffirmed time and again 
as controlling, i.e. that disagreement with desegregation 
is no justification for thwarting it.

Brinegar petitioners, in grabbing at every straw, argue 
that the district court should be required to make Davis,



8

Austin and Brinkman findings on the subject of intent. 
The simple fact is that the law of the case is that DIDS 
is a de jure segregated system, which has never rid itself 
of the unconstitutional duality.

Segregation in Texas, unlike in Ohio, was mandated by 
law until after 1954. The Court of Appeals and the Dis­
trict Court have already found that segregation is state 
imposed, that the segregated schooling in Dallas has never 
been eliminated and that there still exists a current con­
dition of racial segregation. The lower courts have held 
that this dual system has been perpetuated through con­
stitutional violations. This constitutes the law of the case. 
In such a situation where explicit findings of de jure segre­
gation exists and there is as here, an explicit finding that 
the de jure system has not been dismantled, “ root and 
branch” is mandated.

B. Petitioners Misread Milliken 11 as Mandating Ancillary 
Relief in Lieu of Desegregation

But as a substitute for eliminating that which offends 
the Constitution, the petitioners’ claims of “ innovations” 
do bear close scrutiny. Magnet schools, alternative schools 
and the like have been found to be singularly ineffective 
desegregation devices for systems with system-wide segre­
gation, although their use as educational programs in con­
junction with actual desegregation has been found unex­
ceptional.

In Dallas, the experience with such plans as the primary 
tool of desegregation has been, like its predecessor pupil 
placement plans of the 1950’s, totally inadequate to elim­
inate the dual system.*

6 The NAACP’s brief cites a statement to the press by Dr. Nolan 
Estes, Superintendent of the DISD, that the magnet school concept 
has not been effective in desegregating the school system in Dallas. 
Tashy, supra, 572 F.2d at 1015, and n. 15.



9

The Court of Appeals ordered:

“ The district court is again directed to evaluate the 
feasibility of adopting the Swann desegregation tools 
for these schools and to reevaluate the effectiveness 
of the magnet school concept.”

In their attempt to suggest a conflict between the hold­
ing of this Court in Milliken II infra and the remand action 
of the Fifth Circuit Court of Appeals, petitioners imply 
that the reviewing court questioned the propriety of ancil­
lary relief. Even a casual reading of the opinion demon­
strates that the Court of Appeals specifically deferred to 
the judgment and widest possible discretion of local educa­
tors. In language most clear the court stated: “ We defer 
to the DISD’s expertise in establishing suitable programs 
for the school children of Dallas.”  Emphasis added.

While the Court did caution, that on remand the district 
court should reconsider the other provisions of its plans in 
the light of the relief it ultimately orders, it allowed in 
Note 8, that:

“Because we wish to grant the district court enough 
latitude on remand to devise a plan that will be work­
able, we are not binding it to the present non-student- 
assignment portions of its orders.”

Tasby 1017

Considering that de jure segregation is the law of the 
case, Milliken II  permits a federal court to compel the 
various ancillary programs as a part of the remed3n Here, 
an imposition of those programs was not necessary: the 
school authorities and community affirmatively developed 
their own. The only problem they encounter, constitution­
ally, is in seeking to implant them in lieu of pupil “ root 
and branch” desegregation. For sure, the lack of necessity



10

for the court to impose those programs can not logically 
be convoluted, as petitioners seek to do, into a disregard­
ing by the Court of Appeals of the traditional equitable 
authority and duty of the federal courts to root out the 
violation by rendering “a decree which will so far as pos­
sible eliminate the discriminatory effects of the past as 
well as bar like discrimination in the future,” United States 
v. Louisiana, 380 U.S. 145, 154, 156 (1956), for it is “ the 
historic purpose of equity to ‘secur[e] complete justice.’ 
Brown v. Swann, 10 Pet. [U.S.] 497, 503 (1836).” This 
principle has been reiterated over and over again by this 
court. Swann v. Charlotte Mecklenburg, 402 U.S. 1, Keyes 
15 (1971), Dayton v. Brinkman, 403 U.S. 406, Milliken I, 
418 U.S. 717 and Milliken 11, 419 U.S. 815. Also see: Evans 
v. Buchanan, 423 U.S. 1080, and Stay Denied, J. Brennan, 
in Chambers, 1978.

The district court having left a large number of children 
locked into segregated one-race schools, Swann renders 
them suspect. The Court of Appeals properly remanded 
to the district court for it to require the DISD to justify 
their continued existence. So long as this burden has not 
been met, and the other Swann techniques, i.e. pairing and 
clustering, untried and time and distance facts absent, the 
Court of Appeals is not in a position to responsibly dis­
charge its reviewing functions.7 It is thus clear that no 
conflict exists between the remand here, and Swann, Milli­
ken and Dayton.

Not until the Court of Appeals has an opportunity to 
fully evaluate the “plan” of desegregation will it be able 
to reach a judgment with respect to its squaring with the 
Constitution. The granting of certiorari at this stage would

7 “ [T]be case is every bit as important for the issues it raises 
as to the proper allocation of functions between the District Court 
and the Court of Appeals within the federal system.” Dayton p. 
857, supra.



11

be premature, subversive of the authority and responsibility 
of the district court to make factual findings, in the first 
instance.8

C. Piecemeal Appeals; The Remand Below W as a Correct 
Exercise of Jurisdictional Power of the Court of 
Appeals

We have made it abundantly clear that this is a par­
ticularly inappropriate case, and this is a particularly in­
appropriate juncture for the exercise of this Court’s 
certiorari jurisdiction in view of the fact that piecemeal re­
view is particularly unsuited to school desegregation cases. 
The legal arguments of petitioners are not only unconvinc­
ing and contradictory, they are clearly wrong. On the one 
hand they argue for Dayton, which affirms Swann, and on 
the other, they are challenging the Dayton-type remand to 
the district court for the purpose of engaging in fact­
finding to supplement a deficient record. Thus, respondents 
deem it advisable to discuss the issue of piecemeal appeals, 
which this court discourages, but which petitioners seek 
here.

When the record is supplemented and reviewed, peti­
tioners will have an opportunity to test those conclusions 
which will emanate from that review. The course of action 
sought here by petitioners, on issue unreached and un­
resolved by. the Court of Appeals, would result in effect, 
in a direct review of those matters directly from district 
court. See Rule 20 of the Supreme Court Rules. This 
would, indeed he judicial leap frogging of the most un­
seemly type.

8 “The District Court, in the first instance, subject to review by 
the Court of Appeals, must make new findings. . . .  It must then 
fashion a remedy in the light of the rule laid down in Swann, 
supra, and elaborated upon in Hills v. Gautreaux, 425 U.S. 284, 
(1976).” Dayton, supra.



12

There can be no justifiable reason for such an exceptional 
exercise of this court’s certiorari jurisdiction. Clearly, 
then, logic and precedent argue loudly against review of 
these matters at this time.

And there are the practical considerations set forth by 
Judge Friendly in Taylor v. Board of Education of New 
Rochelle, 288 F.2d 600 (1961) which apply with increased 
force to the determination whether to utilize an extraor­
dinary procedure which “deprives . . . this Court of the 
benefit of consideration by a Court of Appeals.” Brown 
Shoe Go. v. United States, 370 U.S. at 355. The vital role 
which the Court of Appeals could play in resolving factual 
disputes and narrowing the issues is apparent from the 
nature of this case and of the primarily factual deficiencies 
noted by the Court of Appeals.

This court sits principally to correct legal, not factual 
errors.

While there may be occasions when the importance of an 
issue merits dispensing with intermediate appellate review 
(see cases cited in Rule 20 Supreme Court Rules), it is 
hardly conceivable that this court could render anything 
but advisory pronouncements if it is to interpose its 
power between the intermediate and district courts, there­
by barring the development of a full factual record.9

9 On appeal, the task of a Court of Appeals is defined with rela­
tive clarity; it is confined by law and precedent, just as are those 
of the district courts and of this court. If it concludes that the 
findings of the District Court are clearly erroneous, it may reverse 
them under Fed. Rules Civ. Prae. 52(b). If it decides that the 
District Court has misapprehended the law, it may accept that 
court’s findings of fact but reverse its judgment because of legal 
errors. Dayton, supra.



13

D. Fear of “ White Flight”  Not a Proper Basis for Main­
taining One-Race Schools

The remedy for a system-wide violation is “ all out de- 
segreation” Keyes, 413 U.S. at 214. And in Davis v. Board 
of Education Commissioners, 402 U.S. 33, 37, this court 
stated that having once found a violation, which was done 
here, “ the district judge or school authorities should make 
every effort to achieve the greatest degree of actual de­
segregation, taking into account the practicalities of the 
situation.” Of course “desegregation” can be neither more 
nor less than the elimination of racial discrimination and 
all of its lingering effects, “ root and branch.” Swann, su-pra, 
Green, supra, Davis, Morgan, infra, Milliken I, supra.

Petitioners totally misapprehend the foregoing and in­
stead contend that the Court of Appeals, in insisting upon 
a factual record sufficient to permit proper appellate re­
view, is acting with judicial audaciousness. In so doing 
petitioners unleash a number of reasons as to why the 
schools of DISD should continue segregated, including 
fear of “white flight.” They invite a ruling from this court 
that would permit the Constitution to have a different 
meaning in the urban areas than it has in a rural setting. 
The justification for such a new rule is the so-called urban 
education crisis.

The inappropriateness of such a call in the context of 
and the posture of these proceedings is obvious. This is 
not to say that a district court or Court of Appeals can he 
absolutely insensitive to the reality of and variety of 
private reactions to desegregation plans. Most courts are 
extremely alert to this possibility and accordingly, select 
plans that promise to cause the least adverse private re­
action and yet transform a dual system into one of “ just 
schools.” Green, supra,

Where so-called “white flight” is a concern, as petitioners 
insist that it is here, courts are free to address that prob­



14

lem by the inclusion of programs that will address the 
perception of some schools being “ inferior.” Under no 
circumstance can fear of private reaction be the basis for 
perpetuating the condition which offends the Constitution, 
or for otherwise abandoning, even so slightly, the goal of 
eliminating racial discrimination and all of its lingering 
effects. See: Morgan v. Kerrigan, 530 F.2d 401, C.A. 1, 
cert, denied sub nom.; White v. Morgan, 426 U.S. 935; 
Hobson v. Hansen, 269 F.Supp. 401 (D. D.C.) appeal dis­
missed 393 U.S. 801; Cooper v. Aaron, 358 U.S. 1; Monroe 
v. Bd. of School Comm., 391, 429 U.S. 450, 459; Brunson 
v. Board of Trustees, 429 F.2d 820, 823-827 (CA 4) (en 
banc); (Sobeloff, J. concurring). Also see Millikenl, supra.

CONCLUSION

W herefore, for the foregoing reasons, these Respondents 
respectfully pray that the petition for a Writ of Certiorari 
be denied.

Nathaniel R . J ones 
1790 Broadway 
New York, New York 10019

E. B rice Cunningham

Cunningham, Greenidge & Gaines 
2606 Forest Ave., Suite 216-219 
Dallas, Texas 75215

Of Counsel:

Louis R. L ucas

Ratner, Sugarmon, Lucas, Salky 
& Henderson
625 Commerce Title Bldg.
Memphis, Tenn. 38103



15

Certificate o f Service

I, Nathaniel R. Jones, one of the counsel for the Re­
spondents, certify that a copy of the foregoing Brief was 
served upon the following counsel of record by regular 
mail by postage prepaid, this 18th day of September, 1978.

Nathaniel R. J ones

Mr. Edward B. Cloutman, ITT 
8204 Elmbrook Drive, Suite 200 
P. 0 . Box 47972 
Dallas, Texas 75247

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

Ms. Yilma S. Martinez 
Mexican-Ameriean Legal Defense 

and Educational Fund 
28 Oeary Street 
San Francisco, Calif. 94108

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

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

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

Mr. Thornton E. Ashton, III 
Dallas Legal Services 

Foundation, Inc.
912 Commerce, Street,

Em. 202
Dallas, Texas 75202
Mr. Robert H. Mow, Jr.
Mr. Robert L. Blumenthal 
3000 One Main Place 
Dallas, Texas 75250
Mr. James A. Donohoe 
1700 Republic National Bank 

Building
Dallas, Texas 75201
Mr, Martin Frost 
777 South R. L. Thornton 

Freeway, Suite 120 
Dallas, Texas 75203
Mr. James T. Maxwell 
4440 Sigma Road, Suite 112 
Dallas, Texas 75240



MEILgN FI?ESS INC —  N. Y. C 219