Myers v. Gilman Paper Corporation Brief for Defendants-Appellants

    No. 82-702

I k  the

OJonri nf tfj? Itutpi B td U s
October Term, 1982

Metropolitan County B oard of E ducation of Nashville 
and D avidson County, Tennessee, et al.,

Petitioners,
v.

R obert W. K elley, et al.

ON P E T IT IO N  POE A W R IT  OP CERTIORARI 
TO T H E  U N IT E D  STATES COURT OP A PPEALS 

POE T H E  S IX T H  C IR C U IT

MOTION FOR LEAVE TO FILE AND RESPONDENTS’ 
REPLY TO BRIEF OF THE UNITED STATES

Jack Greenberg 
J ames M. Nabrit, III 
T heodore M. Shaw 
B ill- L a w  L ee*

Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

A von N. W illiams, Jr.
R ichard H. D inkins

203 Second Avenue, North 
Nashville, Tenn. 37201 
(615) 244-3988

Attorneys for Respondents 

* Counsel o f Record



No. 82-702
IN THE

SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM, 1982

METROPOLITAN COUNTY BOARD OF EDUCATION 
OF NASHVILLE AND DAVIDSON COUNTY, 
TENNESSEE, et al .,

Petitioners, 
v.

ROBERT W. KELLEY, et al.

On Petition For A Writ Of Certiorari 
To The United States Court of Appeals 

For The Sixth Circuit

MOTION FOR LEAVE TO FILE REPLY BRIEF

Respondents respectfully request leave 
to file the attached reply to the brief of 
the United States.

The petition for a writ of certiorari 
was filed October 22, 1982. Respondents' 
brief in opposition was filed November 2,



2

1 982 , The brief for the United States as 
amicus curiae in support of petitioner was 
filed on or around November 12, 1982,
and not received by respondents ' counsel 
until November 17, 1982. Accordingly,
respondents have had no opportunity to 
respond to the brief of the United States.

Respectfully submitted,

’JACK GREENBERG 
'JAMES M. NABRIT, III THEODORE M. SHAW 
BILL LANN LEE*

Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

AVON N. WILLIAMS, 'JR.
RICHARD H. DINKINS203 Second Avenue, North 

Nashville, Tenn. 37201 
(615) 244-3988

*Counsel of Record
Attorneys for Respondents



Table of Cases
Page

Brown v. Board of Education, 349
U.S. 294 (1 955) .............  3

Columbus Board of Education v.
Penick, 443 U.S. 449
( 1 979 ) ......................  3,9

Cooper v. Aaron, 358 U.S. 1
(1975) ......................  4

Davis v. Board of School Com'rs,
402 U.S. 33 (1 971) ..........  4,7,8

Dayton Board of Education v.
Brinkman, 443 U.S. 538
(1979) ......................  3,9

Estes v. Metropolitan Branch,
Dallas NAACP, 444 U.S.
437 ( 1 980) ..................  9

Monroe v. Board of Com'rs, 391
U.S. 450 (1968) .............  4

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

United States v. Scotland Neck 
Bd. of Educ., 467 U.S.
484 (1 972) ..................  4

l



Page

Wright v. Council of City of 
Emporia, 407 U.S. 451(1972) ......................  4

Other Authority:
Brief for the United States as 

Amicus Curiae, October 
Term 1970, Nos. 281, 349,436 ........................ . 8

1 1



No. 82-702
IN THE

SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM, 1982

METROPOLITAN COUNTY BOARD OF EDUCATION 
OF NASHVILLE AND DAVIDSON COUNTY, 
TENNESSEE, et al., Petitioners, 

v .

ROBERT W. KELLEY, et al.

On Petition For A Writ Of Certiorari 
To The United States Court of Appeals 

For The Sixth Circuit

RESPONDENTS' REPLY TO BRIEF 
OF THE UNITED STATES

Respondents reply as follows to 
several arguments advanced by the United
States.

1. The United States asserts that the 
district court interpreted Swann v. Char­
iot te-Mecklenburg Board of Education, 402



2

U.S. 1 (1971), as permitting consideration
of certain "educational, social and econo­
mic costs in fashioning relief" with 
respect to pupil assignment. Brief, pp. 
9-12. That claim has no basis in the 
record. The district court was of the 
erroneous view that Swann no longer had 
precedential value because "the definition 
of a 'unitary' school system has expanded 
from Brown to Milliken from a mere destruc­
tion of barriers, to pupil assingment, to 
remediation and quality education." A-106, 
see A-105-113. The court, therefore, 
rejected as altogether inapplicable the use 
of any "Swann-type remedy" as "a 'more-of- 
the-same' type of remedy," A-108, 109,
after "weighing benefits of the Swann-type 
remedy against its burdens." A-136. As 
the court of appeals properly concluded: 
"[t]he errors ... we found in the District



3

Court's opinions and orders, originate with
his apparent conclusion that the unanimous
opinion of the Supreme Court in Swann has
somehow been overruled or eroded." A-9.
The district court, in short, did not start
out with the aim of achieving desegregation
of students. That was a fundamental legal

1/error.—
The only "educational, social and 

economic cost" of a "Swann-type remedy," 
Brief, 10-11, discussed by the district 
court was the hostility of segments of the 
white community and expense. A-109-113, 
A—114—116. Bowing to community hostility 
and cost considerations was fundamental

_1_/ Columbus Board of Education v. Penick, 
443 U.S. 449, 458-59 ( 1 979); Dayton Board 
of Education v. Brinkman, 443 U.S. 526, 538 
(1979).



4

i i 2 /legal error.—
2. The United States asserts that the 

Sixth Circuit barred the district court 
from considering whether the transportation 
of students in grades 1-4 "riskfs] the 
health of the children or significantly 
impinge[s] on the educational process," 
Brief, p. 12, quoting Swann, supra, 402
U.S. at 30-31. That claim has no basis in 
the record. The district court, in reli­
ance on its discussion of white hostility 
and expense, opted for neighborhood schools

2/ United States v. Scotland Neck Bd. of 
Ed u c ., 467 U.S. 484 (1972); Wright v .Council of City of Emporia , 407 U.S.
451 (1972); Monroe v. Board of Com'rs, 391U.S. 450, 459 (1968); Cooper v. Aaron, 358 
U.S. 1 (1957); Brown v. Board of Education, 
349 U.S. 294, 300 (1955) (white hostility); 
Swann, supra, 402 U.S. at 29-31; Davis v. Board of School Com'rs, 402 U.S. 33, 36-38
(1971) (expense not a factor in considering 
feasibility of student transportation remedy).



5

for all students in grades 1-4— without 
conducting any particularized time and 
distance studies. A—116—117. Subsequent 
efforts to present evidence about the 
feasibility of pairing and noncontiguous 
zoning for most students in the lower 
grades was precluded. A-136. The court of 
appeals reversed and specifically ordered 
the district court to "include these 
children within a pupil assignment program 
drafted in compliance with this opinion, 
except where inclusion would "risk the 
health of the children or significantly 
impinge on the educational process' within 
the meaning of Swann." A-19.

3. The United States asserts that 
there is a need for "guidance regarding the

3 /

3/ Kindergarten students would attend 
neighborhood schools under all the plans 
submitted by the parties.



6

proper interpretation of Swann." Brief, p. 
12. The record, as discussed above, 
shows that the remand and the instructions 
of the Sixth Circuit to the district court 
to apply Swann raise no such question. 
Even assuming arguendo that a substantial 
question is presented, certiorari is not 
appropriate at this juncture of the litiga­
tion where the district court has had no 
opportunity to apply Swann.

Moreover, the very issue in Swann was 
whether "the pairing and grouping of 
elementary schools would place an unreason­
able burden on the board or the system's 
pupils." 402 U.S. at 10. The unanimous 
holding of Swann was that the transporta­
tion of students, including students in 
grades 1-4, was "reasonable, feasible and 
workable." 402 U.S. at 31. Indeed, in the



7

companion case, Davis v. Board of School 
Com1 rs, 402 U.S. 33, 38 (1971), the dis­
trict court's elementary school neighbor­
hood assignment plan was unanimously 
rejected because, as here, "inadequate 
consideration was given to the possible use 
of bus transportation and split zoning." 
As Chief 'Justice Burger's opinion put it, 
neighborhood school zoning "is not the only 
constitutionally permissible remedy; nor is 
it per se adequate to meet the remedial 
responsibilities of local boards." 402 
U.S. at 37. ~

4/ The United States asserts that the 
failure of the district court to use a 
range based on districtwide white and black 
student enrollment as a "starting point" 
for middle and high school students was not 
erroneous because use of a 15% either race 
minimal quota was nevertheless effective. Brief, pp. 13-14, quoting Swann, supra, 402 
U.S. at 25. However, the United States 
does not and cannot assert that a more 
effective secondary student remedy cannot



8

What the government actually seeks is
to overrule Swann and Davis, and to have
the Court adopt a position against student
assignment remedies which the government
advanced and this Court rejected more than 

, 5/a decade ago. Such a course of action 
is wholly inappropriate in light of the 
sanction given the transportation remedy 
scarcely three years ago where, as here, "a 
constitutional violation of sufficient

4/ continued
be devised within the guidelines of Swann. 
That the proposed secondary student enroll­
ment is more effective under the 1971 plan 
is not determinative because, as the 
government concedes, the board's implemen­
tation of the court's order [of 1971] 
amount [ed] to a d_e j_ure segregation. " 
Brief, p. 12 citing A-45.
5/ The position of the government that 
the neighborhood schol system "is constitu­
tionally acceptable in desegregating urban schol systems" was originally advanced in 
its brief in Swann and Davis. Brief for 
the United States as Amicus Curiae, October Term 1$70, Nos. 281, 349, 436, p. 24.



9

g /magnitude has been found."— Columbus 
Board of Education v. Penick, 443 U.S. 449 
(1979); Dayton Board of Education v. 
Brinkman, 443 U.S. 526 (19779). Indeed,
the issue presented by the government is 
the precise issue which the Court declined 
to reconsider as recently as two years ago. 
Estes v. Metropolitan Branch, Dallas NAACP, 
444 U.S. 437 ( 1980) (writs of certiorari
dismissed as improvidently granted).

6/ Columbus Board of Education v. Penick, 
443 U.S. 449 , 469 (1 979 ) (Burger, C .'J. , 
concurring) ("[0]ur prior decisions have sanctioned [the] use [of student transpor­
tation] when a constitutional violation of 
sufficient magnitude has been found. We 
cannot retry these sensitive and difficult 
issues in this Court; we can only set the 
general legal standards and, within the 
limits of appellate review, see that they 
are followed").



Respectfully submitted,

MACK GREENBERG 
■'JAMES M. NABRIT, III 
THEODORE M. SHAW 
BILL LANN LEE*

Suite 2030 
10 Columbus Circle 
New York, New York 10019 (212) 586-8397

AVON N. WILLIAMS, JR.
RICHARD H. DINKINS

203 Second Avenue, North 
Nashville, Tenn. 37201 (615) 244-3988

*Counsel of Record
Attorneys for Respondents

November 18, 1982



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