Table of Awards for the Earl Warren Legal Training Program 1964-1979

    I n the

imprem? (tart nf %  Unite?! But?b
O ctober T erm , 1970 

No. 745

T h e  B oard of P ublic I nstruction  of M anatee C o u n ty ,
F lorida, et al.,

Petitioners,
— v .—

Caroline H arvest, et al.

on petition  for a w rit  of certiorari to

T H E  U N IT E D  STATES COURT OF APPEALS FOR T H E  F IF T H  C IR C U IT

BRIEF IN OPPOSITION TO CERTIORARI

J ack  Greenberg 
J ames M. N abrit, III 
N orman  J . C h a c h k in  
D rew  S. D ays, III

10 Columbus Circle
New York, New York 10019

E arl M . J ohnson

625 West Union Street 
Jacksonville, Florida 32202

Attorneys for Respondents



TABLE OF CONTENTS

PAGE

Opinions B elow ..........................    1

Jurisdiction ..........................................................................  1

Questions Presented............................................................  2

Constitutional Provisions and Statutes Involved .........  2

Statement ..............................................................................  2

A rgu m en t  ..........................................................................    9

Conclusion  .........................................................................................  12

T able of A uthorities

Cases:

Alexander v. Holmes County Board of Education, 396 
U.S. 19 (1969) ...................   9

Brown v. Board of Education, 347 U.S. 483 (1954).......  9
Brown v. Board of Education, 349 U.S. 294 (1955)....... 9

Carter v. West Feliciana Parish. School Board, 326 U.S.
290 (1970) .............................................  4,9

Carter v. West Feliciana Parish School Board, 396 U.S.
226 (1969) ....     3

Davis v. Board of School Commissioners of Mobile 
County, No. 436, O.T. 1970 ............................................. 11

Ellis v. Board of Public Instruction of Orange County, 
Florida, 423 F.2d 203 (5th Cir. 1970).............................  8



11

PAGE

Green v. County School Board, 391 U.S. 430 (1968).... 2, 9,
10,11

Harvest v. Board of Public Instruction of Manatee 
County, 421 F.2d 136 (5th Cir. 1969) ........................... 3

Louisiana v. United States, 380 U.S. 145, 154 (1965).... 11

Raney v. Board of Education, 391 U.S. 443, 449 (1968) 11

Singleton v. Jackson Municipal Separate School Dis­
trict, 419 F.2d 1211 (5th Cir. 1969)......... ....................  3,5

Swann v. Charlotte-Mecklenburg Board of Education,
Nos. 281 and 349, O.T. 1970 ..........................................  11

United States v. Jefferson. County Board of Education,
380 F.2d 385 (5th Cir. 1967)..........................................  2

Statutes:

28 U.S.C. 1254(1) ..............................................................  1

28 U.S.C. 2106............... .......................................................  8



(tort nf tljr Inttrti States
I n the

O ctober T erm , 1970 

No. 745

T he  B oard op P ublic I nstruction  of M anatee C o u n ty , 
F lorida, et al.,

Petitioners,
— v .—

Caroline H arvest, et al.

o n  p e t i t i o n  f o r  a  w r i t  o f  c e r t i o r a r i  t o  

T H E  U N IT E D  STATES COURT OF A PPEALS FOR T H E  F IF T H  CIRCU IT

BRIEF IN OPPOSITION TO CERTIORARI

Opinions Below

The opinion of the Court of Appeals (Pet. App. A .l) 
is reported at 429 F.2d 414 (5th Cir. 1970). The decision 
of the district court is unreported.

Jurisdiction

The decision of the Court of Appeals was entered on 
June 26, 1970. The petition for certiorari was filed on 
September 23, 1.970. The jurisdiction of this Court rests 
on 28 IT.S.C. 1254 (1).



2

Questions Presented

Whether the Court of Appeals was correct in ruling that 
the District Court did not abuse its discretion by approv­
ing an HEW-prepared plan that totally desegregated a 
previously dual school system.

Constitutional Provisions and Statutes Involved

Pertinent excerpts from the Fourteenth Amendment to 
the Constitution of the United States and the Civil Rights 
Act of 1964 are set forth at pages 2-3 of the petition.

Statement

This school desegregation case was commenced in Jan­
uary of 1965 as a class action seeking injunctive relief 
against the continued operation of a dual, racially segre­
gated school system in Manatee County, Florida. The 
board (petitioners herein) initially adopted a freedom of 
choice plan which was subsequently altered by district 
court decree of May 15, 1967 to comply with a then-recent 
decision in United States v. Jefferson County Board of 
Education, 380 F.2d 385 (5th Cir. 1967). In October, 1968, 
plaintiffs (respondents here) filed a motion for further 
relief in accord with this Court’s decision in Green v. 
County School Board, 391 U.S. 430 (1968). At that time, 
the Manatee County school system operated 29 schools of 
which 5 were all-black or virtually all-black (90%—99.9% 
black). Seventy-six percent of black school population at­
tended these five facilities and over 50% of the black teach­
ers in the system taught at these all-black or virtually all­
black schools.

In response to this motion, the district court required 
the board to submit a plan for the conversion of Manatee 
County schools to a unitary, non-racial system. The 
board’s geographic zoning plan, submitted in February,



3

1969, left four schools—three elementary and one middle 
school (grades 6-8)-—all-black. AVith respect to faculty 
desegregation, the board proposed to establish a minimum 
ratio of 51% white teachers in all schools in the system. In 
April, 1969 the district court rejected the board’s plan to 
the extent that it permitted the continued existence of 
several all-black schools. It instructed the board to revise 
zone lines in order to achieve some desegregation in the 
three all-black elementary schools, thereby desegregating 
as well the all-black middle school into which the elemen­
tary schools were to feed. The board moved for a new 
trial which was denied in June, 1969. An appeal was taken 
from that denial in July, 1969; plaintiff filed a notice of 
cross-appeal in August, 1969. On that appeal, the board 
argued, in essence, that the district court erred in requir­
ing desegregation of the four all-black schools. Plaintiffs, 
on the other hand, contended on cross-appeal that the 
lower court’s order, requiring only alteration of zone lines 
to desegregate the four all-black schools and approving the 
faculty provisions, did not go far enough under existing 
constitutional doctrines. In December, 1969, the court of 
appeals, acting on the cross-appeal, reversed and remanded 
the order of the district court for compliance with the re­
quirements of its decision in Singleton v. Jackson Municipal 
Separate School District, 419 F.2d 1211 (5th Cir. 1969). 
It found that the plan proposed by the school board and 
later amended by the district court did not establish a 
racially unitary school system. Harvest v. Board of Public 
Instruction of Manatee County, 421 F.2d 136 (5th Cir. 
1969). On January 7, 1970, in response to a motion by 
plaintiffs, the court of appeals recalled and amended its 
mandate to conform with the decision of this Court in 
Carter v. West Feliciana Parish School Board, 396 U.S. 
226 (1969).



4

On January 26, 1970, subsequent to this Court’s deci­
sion in Carter v. West Feliciana Parish School Board, 326 
U.S. 290 (1970), the district court held a hearin g in order 
to consider alternative plans of desegregation—three for­
mulated by the Florida School Desegregation Consulting 
Center (H.E.W.), two formulated by the board, and one 
other plan presented to the court by intervenors.

The three plans presented to the court by H.E.W. were 
denominated as Plans A, B, and C, all directed in differ­
ing degrees toward achieving desegregation of three vir­
tually all-black elementary schools, one all-black middle 
school, and with achieving faculty desegregation so that 
all schools in the system had ratios of black to white 
teachers in accordance with the ratio of black to white 
teachers employed in the system as a whole. Plan A rec­
ommended the pairing of each of the three predominantly 
black elementaries with three adjacent, predominantly 
white schools. The effects of the implementation of Plan 
A would be, according to the H.E.W. report, to decrease 
the percentage of black students in the three black ele­
mentaries from 98.3% to 65.6%, from 98.2% to 60.4% and 
from 100% to 66.5%, respectively. The second alterna­
tive, Plan B, involved the clustering of the three black 
elementaries respectively with separate groups of three, 
four and two adjacent predominantly white elementaries. 
The implementation of Plan B would have the effect of 
reducing the percentage of black students in the first black 
elementary from 98.2% to 17.8%, in the second elementarv 
from 98.3% to 36.2%, and in the third elementary from 
100% to 24.4%. The final plan prepared by H.E.W., Plan 
C, recommended pairing one black school with an adjacent 
predominantly white school, and clustering the second and 
third black elementaries with two adjacent predominantly 
white schools each. Under this plan the third black ele­
mentary would serve as a fifth and sixth grade center for



5

all children in its zone, in the second black school’s zone 
and in the zones of the white schools with Avhich they were 
clustered (six schools in all). Plan C would reduce the 
percentage of black students in the three black elemen- 
taries from 98.2% to 38.9%, from 98.3% to 48.9% and 
from 100% to 49.3% respectively. All three plans pre­
sented to the court by H.E.W. contained identical recom­
mendations for desegregating the all-black middle school 
and for faculty desegregation. H.E.W. recommended pair­
ing the all-black middle schools with a nearby predomi­
nantly white middle school. And it proposed the achieve­
ment of the system-wide ratio of black and white faculty 
in each school in the county.

In addition to the plans submitted by H.E.W., two other 
plans, denominated No. 1 and No. 2, were presented by 
the board for the court’s consideration. Plan No. 1 was 
a classic freedom-of-choice plan. Plan No. 2 envisioned 
a partial implementation of H.E.W.’s Plan C. Students 
would spend one-half their day in the schools to which 
they were already assigned and the other half in the 
schools to which they would be assigned under Plan C. 
The last of the six plans submitted to the court, that of 
interveners, was a modified freedom-of-choice plan in which 
any child might select any school to attend, school offi­
cials were to urge students to transfer and notify their 
parents of this right to do so, and all students electing to 
transfer were to be provided with transportation. Like 
the plans submitted by H.E.W. and the board, faculties 
were to be desegregated according to a system-wide for­
mula. In the “Notification of Compliance” filed on January 
26, 1970, to which frequent reference is made in the peti­
tion (pp. 4-5), the board indicated that it had met the 
requirements of Singleton, supra, with regard to faculty 
desegregation and, on that basis alone, sought the dis­



6

trict court’s approval of the Manatee County school sys­
tem as unitary.

In its order of January 29, 1970, prior to the ruling on 
the alternative plans of desegregation submitted to it, the 
district court found with regard to the Manatee County 
school system that:

As to faculty, the system is not unitary. Teachers 
are not assigned so that the percentage of black teach­
ers at each school is substantially the percentage of 
black teachers throughout the system at that level, as 
is required by Singleton. As to students, the system is 
unitary as to secondary schools, with the exception of 
Lincoln Middle School, which is all-black. The elemen­
tary schools are segregated; it is the elementary 
schools which most fall short of the law of the land 
and which account overwhelmingly for Manatee’s 
status as a dual system. Three elementary schools 
(Bradenton, Memorial and Tillman) are virtually all­
black. Ten elementary schools (Anna Maria, Duette, 
Myakka, Bayshore, Daughtrey, Ellenton, Miller, Palma 
Sola, Prine, Samoset) are virtually all-white. (Petition 
A. 7)

Turning to a consideration of the alternative plans of 
desegregation recommended by H.E.W., the district court 
rejected alternative Plan A  and alternative Plan C. The 
court indicated in rejecting Plan A  that its result would 
be to increase unconscionably the percentage of black stu­
dents at presently desegregated schools and to decrease 
inadequately the percentage in predominantly black schools 
leading, therefore, inevitably to resegregation. Plan C was 
rejected by the court first, because many schools continued 
as all-white facilities, secondly, because under such a plan 
the percentage of black, students in already desegregated



7

predominantly white schools would be altered so as to 
invite resegregation and, finally, because the predomi­
nantly black schools would not be satisfactorily desegre­
gated.

With regard to the plans proposed by the board, the 
court rejected Plan No. 1 because freedom-of-choice had 
traditionally failed to disestablish dual systems and because 
such methods shifted the affirmative duty of abolishing the 
dual system from the shoulders of the school boards, where 
it belonged, to the students and their parents. Plan No. 2 
was rejected by the court for the same reasons that H.E.W.’s 
Plan C was rejected. The plan submitted by the intervenors 
was rejected on the same grounds given by the court for 
rejecting the board’s Plan No. 1. Having considered five 
of the six plans presented to it, the district court indicated 
its approval of Plan B, stating as follows:

Plan B effectively desegregates Manatee County 
schools and establishes a unitary system as to students. 
All but three elementaries, all of which are distantly 
located, are effectively integrated and the nature of the 
desegregation is such that no resegregation will result. 
(Petition A. 5)

As to the desegregation of the all-black middle school, the 
court accepted the H.E.W. proposal o f pairing it with a 
nearby predominantly white middle school as the only way 
to end its segregated status. On the matter of faculty de­
segregation, the board was ordered to assign teachers so 
that the faculty composition of each and every school con­
tained a ratio of black to Avhite teachers substantially the 
same as the ratio of black to white teachers in the school 
system as a whole at the educational level. The board was 
ordered to implement Plan B on or before April 6, 1970 to 
establish a unitary system in Manatee County.



8

On February 24, 1970, the board filed notice of appeal, 
seeking review of the district court’s January 29,1970 order. 
No stay was granted pending appeal. However, as a re­
sult of several ancillary proceedings in the district court, 
the court of appeals and this Court involving opposition by 
the Governor of Florida to the proposed desegregation of 
Manatee County schools,1 Plan B was implemented on April 
13, 1970, one week later than the deadline required by the 
lower court’s order.

By order of April 15, 1970, the court of appeals, acting 
pursuant to 28 U.S.C.A. § 2106, directed the district court 
to supplement its findings of fact in the instant case with 
respect to the following matters: (1) the present racial 
composition of the student population in every school in 
Manatee County school system; (2) the number of white 
students who could be assigned to the predominantly black 
schools if an Ellis2 type neighborhood assignment plan were 
implemented in Manatee County; (3) maps showing loca­
tion of each school in the system and the attendance area 
served; (4) a description of the school transportation sys­
tem; (5) a description of present or proposed construction 
or expansion of school facilities; and (6) the existence of a 
bi-racial advisory committee. After hearing both parties 
and permitting them to file proposed findings of fact, the 
district court submitted its supplemental findings of fact on 
April 24, 1970.

On June 26,1970, the 5th Circuit unanimously affirmed the 
district court’s ruling stating:

1 Details of these proceedings can be found at 425 F.2d 1224 
(5th Cir. 1970), 90 S. Ct. 1254 (1970) and 312 F. Supp. 269 (M.D. 
Fla., 1970).

2 Ellis v. Board of Public Instruction of Orange County, Fla., 
423 F.2d 203 (5th Cir. 1970).



9

The issue on this appeal is not whether the district 
court selected the best possible plan for unitizing the 
Manatee County School System but rather whether that 
court abused its discretion by adopting an unworkable 
plan or one based on an incorrect legal standard [cita­
tions omitted]. Expressed in other terms the appellate 
question is : Did the district court invoke a remedy so 
extreme as to constitute an abuse of its discretion? 
However put, the answer clearly is: No, (Petition A. 
1-2 ) .

In affirming, the court of appeals indicated that its action 
was “without prejudice to further consideration by the dis­
trict court of the present student assignment plan in light 
of the experience gained since its implementation.” (Peti­
tion A. 2). In accordance with this directive, the lower court 
has subsequently approved two board-suggested modifica­
tions of Plan B in orders of August 24, 1970 and January 4, 
1971.

ARGUMENT

Petitioners seek review by this Court of the same issue 
presented to the Court below, namely, whether the district 
court abused its discretion by ordering a plan implemented 
that totally desegregated a formerly dual school system. 
The district court was obligated by rulings of this Court in 
Brown v. Board of Education, 347 U.S. 483 (1954); 349 U.S. 
294 (1955), Green v. County School Board, supra, Alexan­
der v. Holmes County Board of. Education, 396 U.S. 19 
(1969) and Carter v. West Feliciana Parish School Board, 
326 U.S. 290 (1970) to disestablish immediately the dual 
school system in Manatee County.

Specifically, Green, supra established that:

The obligation of the district courts, as it always has 
been, is to assess the effectiveness of a proposed plan



10

in achieving desegregation. There is no universal an­
swer to complex problems of desegregation; there is 
obviously no one plan that will do the job in every case. 
The matter must be assessed in light of the circum­
stances present and the options available in each in­
stance. It is incumbent upon the school board to estab­
lish that its proposed plan promises meaningful and 
immediate progress toward disestablishing state im­
posed segregation. It is incumbent upon the district 
court to weigh that claim in light of the facts at hand 
and in light of any alternatives which may be shown 
as feasible and more promising in their effectiveness. 
391 U.S. 430, 439

In accordance with this responsibility, the district court 
considered three plans prepared by educational experts 
from an H.E.W. Center, two plans prepared by the board 
and one other prepared by intervenors to determine which 
plan would most effectively disestablish the dual school 
system in Manatee County. Notable vestiges of the dual 
system were four all-black schools and continuing segrega­
tion of faculty.

The court’s rejection of the two fredom-of-choice plans 
proposed by the board and by intervenors was clearly in 
line with this Court’s holdings in Green, supra. Nor did it 
act improperly in disapproving the half-and-half modifica­
tion proposed by the board of H.E.W. Plan C. After evalu­
ating the three remaining plans, the court chose Plan B as 
the most effective since it clearly reduced to the lowest level 
the percentage of black children in the formerly all-back 
schools. Plan B, contrary to petitioners’ assertions, was 
prepared by educational experts who considered it as a 
feasible and workable plan of desegregation. H.E.W. pre­
ferred Plan C to Plan B solely because it regarded the lat­
ter as “more extensive than necessary and would meet with



11

considerable adverse community reaction.” In reviewing 
the district court’s order, the court of appeals found noth­
ing to indicate that Plan B was infeasible or unworkable. 
To the extent that petitioners claim that the courts below 
erred in considering the prospects of resegregation in order 
to determine the most feasible plan, that argument is fore­
closed as well by decision of this Court. Since Brown 11, 
supra, this Court has pressed district courts to exercise 
their broad powers in order to eliminate segregated schools 
“ root and branch” and has declared that a district court has 
not only the power, but in fact “ the duty to render a decree 
which will so far as possible eliminate the discriminatory 
effects of the past as well as bar like discrimination in the 
future.” Green, supra, at 438; Louisiana v. United States, 
380 U.S. 145, 154 (1965); and Raney v. Board of Education, 
391 U.S. 443, 449 (1968). Green, supra, indicated that the 
question of desegregation must be assessed by the district 
court “ in light of the circumstances present” in each case. 
The district court was not clearly in error in viewing re­
segregation as one of the circumstances that should be con­
sidered in this case to evaluate the relative effectiveness of 
the plans presented to it. Petitioners present no argument 
to establish that the requirements of Green, supra were 
violated in any way. Since the principles established by this 
Court in the Green case dispose of the only significant issue 
raised by the record in this case, the petition for a writ of 
certiorari should be denied.

Insofar as petitioners seek review of the questions of 
racial balance and busing which they contend are raised by 
this record, this Court presently has before it two cases, 
Swann v. Charlotte-MecMenburg Board of Education, Nos. 
281 and 349, this Term, and Davis v. Board of School Com­
missioners of Mobile County, No. 436, this term, in which 
those issues have already been extensively briefed and



12

argued. To the extent that decisions in those cases may 
affect the issues decided in this case, appropriate motions 
for supplemental relief or modification may be presented 
to the courts below.

CONCLUSION

For the foregoing reasons, the petition for a writ of 
certiorari should be denied.

Respectfully submitted,

J ack  G reenberg 
J am es M. N abrit, III 
N orman  J . C h a c h k in  
D rew  S. D ays, III

10 Columbus Circle 
New York, New York 10019

E arl M. J ohnson

625 West Union Street 
Jacksonville, Florida 32202

Attorneys for Respondents



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