Board of Public Instruction of Bay County, Florida v. Youngblood Brief for the United States in Opposition

    T h e  B oard op P ublic I nstruction of B ay County', 
F lorida, et al., petitioners

-Jean Carolyn Y oungblood, et al., and U nited 
S tates of A merica

• —  * ■ ;-*■. '

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED 
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN  OPPOSITION

ERW IN N. GRISWOLD,
Solicitor General, 

JERRIS LEONARD,
Assistant Attorney General, 

BERNARD H. SHAPIRO,
Attorney,

Department of Justice, 
Washington, D.C. S05SO.



<git tU of tin U n ited
October T erm, 1970

No. 784

T h e  B oard of P ublic I nstruction of B ay County, 
F lorida, et al., petitioners 

v.
J ean Carolyn Y oungblood, et al., and U nited 

S tates of A merica

ON P E T I T I O N  F O R  A  W R I T  OF C E R T I O R A R I  TO T H E  U N IT E D  
S T A T E S  C O U RT OF A P P E A L S  F O R  T H E  F I F T H  C IR C U IT

BRIEF FOR THE UNITED STATES IN OPPOSITION

o p in io n s  belo w

The opinion of the court of appeals (Pet. App. A i 
A ll) is not reported. The decision of the district court 
is also unreported.

j u r i s d i c t i o n

The decision of the court of appeals was entered on 
July 24, 1970, and the mandate issued immediately. A 
timely petition for rehearing was denied on Septem­
ber 11, 1970. The petition for a writ of certiorari was 
filed on October 1, 1970. The jurisdiction of this Court 
is invoked under 28 U.S.C. 1254(1).

(i)

408- 556— 70}



2

Q U E S T IO N  P R E S E N T E D

Whether the court of appeals correctly rejected the 
attendance zones in petitioners’ school desegregation 
plan, which would effectively maintain three segre­
gated schools, when feasible alternatives existed which, 
if adopted, would desegregate all schools.

C O N S T IT U T IO N A L  P R O V IS IO N S  A N D  S T A T U T E S  IN V O L V E D

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 3-4 of the 
petition.

S T A T E M E N T

This case, involving the desegregation of schools in 
Bay County, Florida, was brought by private plain­
tiffs in 1963. The United States intervened in 1966 
pursuant to Section 902 of the Civil Rights Act of 
1964. 42 IT.S.C. 2000h-2. The Bay County school 
system, which includes the city of Panama City, has 
approximately 17,934 students enrolled during the 
1970-71 school year, of whom approximately 2,969 (18 
percent) are black. Involved in this petition is the 
desegregation of three historically black schools (one 
junior high school and two elementary). All other 
schools in the system, have been desegregated by order 
of the district court and are not in issue here.

On January 30, 1970, the district court ordered the 
implementation of a desegregation plan proposed by 
the school board which utilized geographic zones as



3

the method of student assignment.1 The three tradi­
tionally black schools in question, Rosenwald .Junior 
High School and Harris and Patterson Elementary 
Schools, are located in the Panama City portion of the 
district. Each of the three schools is located approxi­
mately 2-to-2i/2  miles from one or more traditionally 
white schools serving the same grades. The geographic 
zones for the two elementary schools were admittedly 
drawn without regard to the effect the zones would 
have on desegregation (Pet. 13). The zone for the 
junior high school was drawn to fill approximately 
half of the schools’ capacity, with a resulting student 
enrollment that is very predominantly black. Under 
the plan approved by the district court, the February 
1970 enrollment for the three schools was as follows:

F e b ru a ry  1970 en ro llm e n t

School W h ite B la ck T o ta l

R o se n w a ld  J u n io r  H ig h  S ch o o l----------------- --------- ........... . 75 275 350
3 472 475

P a tte r s o n  E le m e n ta ry ......... ............................. .............. ________ 115 473 508

The court of appeals noted that an extant HEW 
plan, if adopted, would have effectively desegregated 
the three schools (Pet. App. A4),2 and held the plan

1 During the 1969-70 school year, the school district operated 
under a freedom of choice student assignment plan. During 
that school year, two of the three schools in question remained 
all black and the third enrolled two white students.

2 The district court rejected a plan formulated by the Depart­
ment of Health, Education and Welfare that would have estab­
lished a larger attendance zone around the junior high school,



4

approved by the district court to be unacceptable 
(Pet. App. A3-A4). It concluded that the board had 
adopted a student assignment plan “that to a great 
extent perpetuates ‘the comfortable security of the 
old, established discriminatory pattern,’ ” even though 
the record contained alternatives “available to the 
Board which would totally eradicate all vestiges of 
the dual school system and deal with the problems of 
the flight of white parents and resegregation” (Pet. 
App. A6-A7). The court of appeals reversed and 
remanded the case to the district court with the sug­
gestion that the school district work with HEW to 
revise the geographic zones proposed by HEW on 
the basis of current demographic information. The 
district court was ordered to hold a hearing and up­
bringing that school closer to its capacity, and would have 
paired the two elementary schools with adjoining white schools 
each approximately 2-to-2% miles distant. The projected en­
rollment under the HEW  plan was as follows:

P ro je c te d  e n ro llm e n t

School W h ite B la c k T o ta l

R o se n w a ld  J u n io r  H ig h  S ch o o l-.......... ....... ______  629 191 820
H a rr is  E le m e n ta ry _________ .............  256 82 338
P a t te r s o n  E le m e n ta ry .......... ______  324 84 408

There were also two other plans in the record that were re­
jected by the district court: a plan formulated by the school 
board which would convert the three black schools to special 
centers and assign the students formerly enrolled in those 
schools to traditionally white schools and a plan proposed by 
the United States that would convert the two black elementary 
schools to sixth grade centers serving all sixth graders in the 
Panama City area. The black elementary students in grades 
1-5 would be assigned to traditionally white elementary schools.



5

prove a more effective desegregation plan to be imple­
mented in September 1970 (Pet. App. A10-A11).

On remand the district court approved a desegre­
gation plan that modified the zone line of Rosenwald 
Junior High School and created sixth grade centers 
at Harris and Patterson Elementary Schools.3 The 
enrollment at each of these schools as of September 
10,1970, was as follows: 4

E n ro l lm e n t

School W h ite B la c k T o ta l

R o se n w a ld  J u n io r  H ig h --------- ----------------------- ............. .............. 400 280 680
H a rr is  E le m e n ta ry ............... ........ ............................. .............................  374 144 518
P a tte r s o n  E l e m e n ta r y . . --------------------------------_______ _____427 88 515

ARGUMENT

The issue presented is whether the plan previously 
approved by the district court disestablished the dual 
school system.6 As the court of appeals noted, under 
that plan the attendance zone lines for the elementary 
schools were drawn without regard to their impact on 
desegregation and the zone lines for the junior high 
school were drawn so as to underutilize the facility

3 The plan approved by the district court constituted a revised 
version of a plan drawn by the Department of Justice (see note 
2, supra). Revisions were formulated by the school district and 
all parties agreed that the plan would establish a unitary school 
system (Pet. App. A13, A15, A17, A19).

* Since there has been no evidentiary hearing concerning the 
court-ordered plan, the- record contains no information concern­
ing the number of students transported under the plan.

5 Insofar as petitioners are complaining of orders of the dis­
trict court rendered subsequent to the decision of the court of 
appeals (see Pet. 2, 9-10) they are, of course, before the wrong 
court. 28 U.S.C. 1291.



6

when its full utilization would have resulted in de­
segregation. We believe that the court of appeals was 
correct in holding that the plan was constitutionally 
inadequate, in the face of feasible alternative plans 
which would desegregate the three schools. The court’s 
decision, of course, merely follows this Court’s direc­
tions in Green v. County School Board, 391 U.S. 430, 
439:

The obligation of the district courts, as it 
always has been, is to assess the effectiveness 
of a proposed plan in achieving desegregation. 
There is no universal answer to complex prob­
lems 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 cir­
cumstances present and the options available 
in each instance. I t is incumbent upon the school 
board to establish that its proposed plan prom­
ises meaningful and immediate progress toward 
disestablishing state-imposed segregation. I t  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 effective­
ness.

Petitioners, nonetheless, contend that the “classifi­
cation of school children by race in order to end the 
evils of racial classification” is unlawful (Pet. 14); in 
short, that the Constitution precludes benign as well 
as invidious uses of race by the State. But it was 
settled in Green that a school board must take race 
into account in order to disestablish a dual school



/

system. 391 U.S, at 437-36, 440, 442 u. 6. As the court 
of appeals explained the matter in this ease: “At this 
point, and perhaps for a long time, true nondiscrimi­
nation may be attained, paradoxically, only by taking 
color into consideration” (Pet. App. Alt)).11 See 
United States v. Jefferson County Board of Edu­
cation, 372 P. 2d 836, 876 (C.A. 5), affirmed on re­
hearing, 380 F. 2d 385 (C.A. 5) (en banc), certiorari 
denied sub nom. Caddo Parish School Board v. United 
States, 389 U.S. 840; Offerman v. Nitkowski, 378 P. 
2d 22 (C.A. 2) ; Norwalk Core v. Norwalk Redevelop­
ment Agency, 395 F. 2d 920, 931 (C.A. 2). See, also, 
Louisiana v. United States, 380 U.S. 145, 154.

Finally, the petitioners are, of course, mistaken in 
their assertion that the court of appeals has required 
racial balance in the schools in question. The decision 
below, as we have shown, merely requires petitioners 
to adopt feasible means to desegregate all schools that 
remain as vestiges of the dual school system, and in 
this there is no novelty.

6 Equally misplaced is petitioners’ reliance upon Sections 
401(b) and 407(a) of the Civil Eights Act of 1964. As we 
explained in our Memorandum in McDaniel v. Barrest, No. 420, 
this Term (Pet. 11-12), the purpose of these provisions was 
to make clear that the 1964 Act did not grant to federal 
officials or courts the power to require remedial action by school 
systems which were already in compliance with the Fourteenth 
Amendment. Since, for the reasons stated above, the decision 
of the court of appeals does not require racial balance and the 
case does not involve the issue of whether purely adventitious, 
de facto segregation gives rise to remedial obligations under 
the Fourteenth Amendment, the disclaimers of the Civil Eights 
Act are totally inapposite here.



8
CONCLUSION

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

Respectfully submitted.
E rw in  1ST. Griswold,

Solicitor General.

N ovember 1970.

J erris L eonard,
Assistant Attorney General.

B ernard H . Shapiro,
Attorney.

U .S . GOVERNMENT PRINTING O FFICE : 1970



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