Estes v. Dallas NAACP Brief Amicus Curiae

    N os. 78-253, 78-282 and 78-283

3tt %  ( ta r t  of Iff? Itttf States
October T erm , 1978

N olan  E stes, et a l ., petitioners

v.
Metropolitan  Branches of th e  Dallas 

N.A.A.C.P., ET AL.

D onald  E. Curry, et a l ., petitioners

v.
M etropolitan  Branches of th e  D allas 

N.A.A.C.P., ET AL.

R alph  F. Brinegar , et a l ., petitioners

v.
Metropolitan  Branches of the Dallas 

N.A.A.C.P., ET AL.

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

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE

Wade H. McCree, Jr.
Solicitor General

Drew S. Days, III
Assistant Attorney General

Lawrence G. Wallace
Deputy Solicitor General

Sara Sun Beale
Assistant to the Solicitor General

Brian K. Landsberg 
Mildred M. Matesich 

Attorneys
Department of Justice 
Washington, D.C. 20530

a



I N D E X

Questions presented...............
Interest of the United States 
Statement ................................

Page
2
2
3

A. The previous desegregation suits against 
the D IS D ...................................................

B. The institution of the present suit and 
the district court’s first order ................

C. The first appeal.........................................
D. The proceedings on remand in the dis­

trict court .................................................
1. The plans submitted to the district

court.....................................................
2. The district court’s desegregation

order ........................ ..........................
E. The second appeal

Summary of argument
Argument ........................................................

I. A systemwide remedy is appropriate be­
cause the Board has not fulfilled its con­
tinuing obligation to eliminate the ves­
tiges of the former dual school system 
that persist throughout the district.....
A. Vestiges of the DISD’s dual school 

system remain throughout the dis­
trict ...................................................

4

5
12

14

14

17
22
24
28

28

28
B. The DISD was under a continuing 

obligation to eliminate these ves­
tiges .................................. ............... . 32



II

Argument— Continued Page.
II. The court of appeals properly remanded 

the case for consideration of the feasi­
bility of desegregating the remaining 
one-race schools .......................................  39
A. The East Oak Cliff Subdistrict--—. 43
B. Grades 9-12, K-3 outside East Oak

Cliff ..............-....................................  46
C. The use of student transportation.. 48

Conclusion   ..................— ................................. 51

CITATIONS
Cases:

Albemarle Paper Co. v. Moody, 422 U.S.
405 ................. -...........................................  37

Alexander v. Holmes County Board of
Education, 396 U.S. 1 9 ----------- ------—  2

Borders v. Rippy, 247 F.2d 268 .......... - 4
Boson v. Rippy, 275 F.2d 850 .................... 4
Boson v. Rippy, 285 F.2d 43 .........—-........ 4-5
Britton v. Folsom, 348 F.2d 1 5 8 ................ 5
Britton v. Folsom, 350 F.2d 1022 ............ 5
Brown v. Board of Education, 347 U.S.

483 (Brown I) ...... ..................... 2, 4, 24, 28, 37
Brown v. Board of Education, 349 U.S.

294 (Brown II) .... ------------—-..........—2, 44, 49
Brown v. Rippy, 233 F.2d 796, cert, de­

nied, 352 U.S. 878 ..................................  4
Columbus Board of Education v. Penick,

No. 78-610 (July 2, 1979) ...........3, 32, 33, 36,
42, 46, 50

Cooper v. Aaron, 358 U.S. 1 ......................  2



Cases— Continued Page
Davis v. Board of School Commissioners,

402 U.S. 33 ........................................... 26, 39, 42
Dayton Board of Education v. Brinkman,

433 U.S. 406 (Dayton 1) ..........3, 33, 39, 40, 44
Dayton Board of Education v. Brinkman,

No. 78-627 (July 2, 1979) (Dayton
II) ................................................3 ,31,33,34 ,35

Green v. County School Board, 391 U.S.
430 .........................................2,10,12, 35, 36, 39

Keyes v. School District No. 1, 413 U.S.
189 .................................     2

McDaniel v. Bam'esi, 402 U.S. 3 9 ............... 33
Milliken v. Bradley, 418 U.S. 717 (Milli-

ken I) .......   3
Milliken v. Bradley, 433 U.S. 267 (Milli­

ken II) .....................................................  3
Pasadena City Board of Education v.

Spangler, 427 U.S. 424 ..... .................. 3, 37
Rippy v. Borders, 250 F.2d 690 ................ 4
Runyon v. McCrary, 427 U.S. 160... ........ 3
School Board of City of Richmond v. State

Board of Education, 412 U.S. 92 ......... 2
Singleton v. Jackson Municipal Separate

School District, 419 F.2d 1211 ..........10, 11, 31
Swann v. Charlotte-Mecklenburg Board

of Education, 402 U.S. 1 ...............2, 31, 36, 37,
39, 41, 42, 49

United Jewish Organizations v. Carey,
430 U.S. 144 ...........................................  37

United States v. Scotland Neck City
Board of Education, 407 U.S. 484 .......  50

University of California Regents v. Bakke,
438 U.S. 265 .............................................

Washington v. Davis, 426 U.S. 229 .........
37
34



Wright v. Council of City of Emporia,
407 U.S. 451 ........................................... 2, 34, 35

Constitutions and statutes:
United States Constitution, Fourteenth 

Amendment, Equal Protection Clause.... 34
Texas Constitution, Article 7, § 7 ............ 28
Civil Rights Act of 1964, 42 U.S.C. 1971 

et seq.:
Title IV, 42 U.S.C. 2000c-6.............  2
Title VI, 42 U.S.C. 2000d ................  2
Title IX, 42 U.S.C. 2000h-2 .............. 2

Equal Educational Opportunities Act of
1974, 20 U.S.C. 1701 et seq. ..................  2, 49

Section 204, 20 U.S.C. 1703 .............. 49
Section 205, 20 U.S.C. 1704 .............. 49

IV
Cases— Continued Page

f t



In thr Bnpmm ©Hurt of %  Hotted States
October T erm , 1978

No. 78-253
N olan  E stes, et a l ., petitioners

v.

Metropolitan  Branches of th e  Dallas 
N.A.A.C.P., ET AL.

No. 78-282
D onald E. Curry, et a l ., petitioners

v.

M etropolitan  Branches of th e  Dallas 
N.A.A.C.P., et a l .

No. 78-283
R alph  F. Brinegar , et a l ., petitioners

v.

M etropolitan  Branches of the Dallas 
N.A.A.C.P., ET AL.

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

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE

(1)



2

QUESTIONS PRESENTED

1. Whether systemwide relief was warranted to 
eliminate the vestiges of Dallas’ dual school system.

2. Whether the court of appeals erred in remand­
ing the case for additional findings regarding the 
feasibility of reducing or eliminating the one-race 
schools not affected by the district court’s remedial 
order.

INTEREST OF THE UNITED STATES

The United States has substantial enforcement re­
sponsibility with respect to school desegregation under 
Titles IV, VI, and IX of the Civil Rights Act of 
1964, 42 U.S.C. 2000c-6, 2000d and 2000b-2, and 
under the Equal Educational Opportunities Act of 
1974, 20 U.S.C. 1701 et seq. The Court’s resolution 
of the issues presented in this case will affect that 
enforcement responsibility. The United States has 
participated either as a party or as amicus curiae 
in this Court’s previous school desegregation cases, 
including Brown v . Board of Education, 347 U.S. 
483 (1954), 349 U.S. 294 (1955); Cooper v. Aaron, 
358 U.S. 1 (1958); Green v. County School Board, 391 
U.S. 430 (1968); Alexander v. Holmes County Board 
of Education, 396 U.S. 19 (1969); Swann v.
Charlotte-Mecklenburg Board of Education, 402 U.S. 
1 (1971); Wright v. Council of City of Emporia, 407 
U.S. 451 (1972); School Board of City of Richmond 
v. State Board of Education, 412 U.S. 92 (1973); 
Keyes v. School District No. 1, 413 U.S. 189 (1973);



3

Milliken v. Bradley, 418 U.S. 717 (1974); Runyon v. 
McCrary, 427 U.S. 160 (1976); Pasadena City Board 
of Education v. Spangler, 427 U.S. 424 (1976); 
Milliken v. Bradley, 433 U.S. 267 (1977); Dayton 
Board of Education v. Brinkman, 433 U.S. 406 
(1977); Columbus Board of Education v. Penick, 
No. 78-610 (July 2, 1979); and Dayton Board of 
Education v. Brinkman, No. 78-627 (July 2, 1979).

STATEMENT

The Dallas Independent School District ( “ the 
DISD” or “ the Board” ) is the eighth largest urban 
school district in the United States (Pet. App. 14a).1 
Its boundaries (which are not coterminous with the 
City of Dallas) embrace an area of about 351 square 
miles, and it has an enrollment of more than 130,000 
students (Pet. App. 14a; Estes Br. 7 ).2 Although 
a majority of the students in the DISD were Anglos 
when this suit was commenced in 1970, by the 1975- 
1976 school year, when the district court conducted 
hearings on relief, the student population was 41.1%

1 “Pet. App.”  refers to the petition filed in No. 78-253.

2 “ Estes Br.” refers to the brief filed by the petitioners in 
No. 78-253, Nolan Estes, et al. V. Metropolitan Branches of 
the N.A.A.C.P., et al. We will refer to petitioners’ brief in 
No. 78-282, Donald E. Curry, et al. v. Metropolitan Branches 
of the Dallas N.A.A.C.P., as the “Curry Br.,” and to petition­
ers’ brief in No. 78-283, Ralph F. Brinegar, et al. v. Metro­
politan Branches of the Dallas N.A.A.C.P., as the “ Brinegar 
Br.”



4

Anglo, 44.5% black, 13.4% Mexican-American, and 
1% other races (Pet. App. 13a-14a).3

A. The previous desegregation suits against the DISD

At the time of this Court’s decision in Brown v. 
Board of Education, 347 U.S. 483 (1954), Dallas 
maintained a racially segregated school system re­
quired by state law.

In 1955 a group of black school children and their 
parents instituted litigation to desegregate the Dallas 
schools, and in 1960 the Fifth Circuit ordered the 
district court to require the Board to implement a 
stair-step plan, under which one grade per year would 
be removed from the dual educational structure and 
administered in a unitary fashion.4 Boson v. Rippy,

3 The earliest enrollment figures by race that the DISD has 
supplied are for the 1966-1967 school year.

In its earliest opinion, the court of appeals used the terms 
“white,” “ Mexican-American,” and “black,” defining a Mexi- 
can-American as a person with a Spanish surname (see 517 
F.2d at 96 n .l). Since then, the parties and the courts below 
have generally used the terms “Anglo,” “Mexican-American,” 
and “black;” and we do the same. The DISD initially included 
Mexican-American students in the same ethnic category as 
Anglo students. The DISD first established a separate cate­
gory for Mexican-American students in the 1968-1969 school 
year, at which time Mexican-Americans made up 7.7 % of the 
total DISD student body (Answers to Plaintiffs’ Interroga­
tories (First Set), App. Vol. 3, filed Nov. 18, 1970).

4 The original desegregation suit went through numerous 
appeals before the stair-step plan was finally adopted. See 
Brown V. Rippy, 233 F.2d 796 (5th Cir.), cert, denied, 352 
U.S. 878 (1956) (reversing the district court’s order dis­
missing the suit as premature) ; Borders v. Rippy, 247 F.2d 
268 (5th Cir. 1957) ; Rippy V. Borders, 250 F.2d 690 (5th 
Cir. 1957) ; Boson v. Rippy, 275 F.2d 850 (5th Cir. 1960)



5
285 F.2d 43. The stair-step plan obligated the DISD 
to eliminate the use of racial criteria in assigning 
students to its schools. The DISD was not required 
to implement any other measure to remove the ves­
tiges of its prior dual system by techniques such as 
“pairing” or “majority-to-minority” transfers.

On June 23, 1965, the DISD board adopted a reso­
lution providing for the phased desegregation of 
elementary, junior high, and high schools, and for 
the establishment of single attendance districts for 
each school (Deft. Ex. 1 (1971)). The superintend­
ent was vested with discretion to carry out the reso­
lution by establishing the boundaries of the attend­
ance districts (ibid.). The result was the institution 
of a “ neighborhood school” assignment policy in the 
DISD. On September 7, 1965, the DISD adopted a 
resolution to expedite implementation of the stair­
step plan to include all twelve grades as of September 
1, 1967 (Deft. Ex. 4 (1971)). The district court 
conducted no subsequent monitoring of the stair-step 
plan, nor did it ever declare the DISD to have 
achieved unitary status.

B. The institution of the present suit and the district 
court’s first order

In 1970 a group of black and Mexican-American 
students and their parents instituted the present class

(holding that the district court had erred in failing to require 
the DISD to submit a desegregation plan). Even after the 
stair-step plan had been ordered, the court of appeals found it 
necessary to issue two additional orders requiring the district 
court to include the twelfth grade in the plan. Britton v. 
Folsom, 348 F.2d 158 (5th Cir. 1965), and Britton V. Folsom, 
350 F.2d 1022 (5th Cir. 1965).



6

action in the United States District Court for the 
Northern District of Texas seeking to eliminate the 
remaining segregative effects of the prior dual sys­
tem. Although the racial composition of the DISD’s 
student body was approximately 59% Anglo, 33% 
black, and 8 % Mexican-American when the complaint 
was filed, 67 of the 187 schools in the system had a 
student enrollment that was at least 90% Anglo; 40 
of the schools had an enrollment that was 90% or 
more black; and in 9 additional schools the combined 
enrollment of black and Mexican-American students 
was more than 90% (Pltf. Ex. 5 (1971)). In 1970,
91.4% of all black students in the DISD attended 
schools where blacks or blacks and Mexican-Americans 
made up at least 90% of the student body, and only 
2.72% of the black students attended schools where 
the student body was 57% or more Anglo (Pltf. Ex.
2 (1971)). Plaintiffs sought an injunction to desegre­
gate the DISD meaningfully, assignment of faculty 
to reflect the overall racial composition of the district, 
termination of site acquisition and school construe- 0  
tion that would increase or continue racial segrega­
tion in the district, and adoption of policies to lower 
the dropout rate among Mexican-American students.

The Board contended that no further court-ordered 
desegregation was warranted, since the Dallas schools 
were in compliance with the stair-step desegregation 
plan that the court of appeals had approved in 1960.
The DISD claimed that the large number of one-race 
schools remaining in the district was the result of



7
changes in residential patterns since the institution 
of the stair-step plan.

On July 12, 1971, trial on the issue of liability 
began. Several parents testified that their children 
did not attend integrated schools, and that their chil­
dren had not been assigned to the schools nearest 
their homes (I Tr. 19-20, 32 (1971); II Tr. 384 
(1971 )).5 6 An employee who had drawn school at­
tendance zone maps for the DISD testified that there 
were indeed a number of areas in the school district 
where students were not assigned to elementary, 
junior high, or high schools nearest their homes (I 
Tr. 64-70 (1971); Pltf. Exs. 7, 8, 11, 13, 15 and 16 
(1971)). He used maps prepared from 1970 census 
data to illustrate the close correlation between zone 
lines for the DISD schools and racial population pat­
terns (I Tr. 47-50, 59-60, 62-63 (1971)).

At the conclusion of the plaintiffs’ case the DISD 
moved for summary judgment on the ground that 
“ housing patterns * * * are the only things which 
resulted in any alleged all black school or all white 
school” (II Tr. 401 (1971)). The district court de­
nied the motion, finding that the plaintiffs had made 
out a prima facie case (ibid.).

The DISD called two witnesses, School Superin­
tendent Nolan Estes and William H. Fuller, Director 
of Pupil Accounting. On direct examination, Dr.

5 The record includes five volumes of testimony from the
1971 proceedings, numbered I-V, and ten volumes of testi­
mony from the 1976 proceedings, numbered I-X. We will refer 
to the year as well as the volume number in citing these 
transcripts.



Estes listed 19 schools that he believed had shifted 
from a predominantly Anglo student enrollment to a 
predominantly black student enrollment because of 
changes in residential patterns occurring after 1965 
(II Tr. 514-520 (1971)). The DISD introduced no 
evidence on the reason for the racial imbalance in the 
97 other schools in the DISD that had student enroll­
ments either 90% or more Anglo, or 90% or more 
black and Mexiean-American.

On cross-examination, Dr. Estes stated that there 
were sixteen schools built since 1965 in which Anglos 
made up more than 90% of the student body, or in 
which blacks or blacks and Mexican-Americans made 
up more than 90% of the student body (II Tr. 566- 
578 (1971)). Dr. Estes confirmed the fact that stu­
dents in the DISD did not always attend schools 
nearest their homes, even where that would have 
promoted integration. He acknowledged that in 1970, 
Julia Frazier Elementary School, which had a 100% 
black enrollment, was so overcrowded that the use of 
ten portable classrooms was necessitated, while 
Ascher Silberstein Elementary School, which had a 
97.8% Anglo enrollment, was only half-filled— even 
though Silberstein was actually closer than Frazier 
to some of the families in the Frazier zone (II Tr. 
618-619 (1971)). Nonetheless, the DISD had not 
altered the attendance boundaries between Frazier 
and Silberstein (II Tr. 619-621 (1971)). He tes­
tified that capacity, distance, geographic barriers, 
traffic arteries, curriculum and projected enrollment 
had played a part in the DISD’s drawing of attend­



9
ance zones, but that the racial composition of the 
student body was not considered (II Tr. 527, 590- 
591 (1971)).

On July 16, 1971, the district court issued an opin­
ion 6 finding that “ elements of a dual system still 
remain” in the DISD (342 F. Supp. at 947):

When it appears as it clearly does from the 
evidence in this case that in the Dallas Inde­
pendent School District 70 schools are 90% or 
more white (Anglo), 40 schools are 90% or 
more black, and 49 schools with 90% or more 
minority, 91% of black students in 90%= or more 
of the minority schools, 3% of the black students 
attend schools in which the majority is white or 
Anglo, it would be less than honest for me to say 
or to hold that all vestiges of a dual system have • 
been eliminated in the Dallas Independent School 
District, and I find and hold that elements of a 
dual system still remain.

The court rejected the Board’s contention that the 
continued existence of one-race schools was the result 
of changes in residential patterns, reasoning that 
(ibid.) :

The School Board has asserted that some of 
the all black schools have come about as a result 
of changes in the neighborhood patterns but this 
fails to account for many others that remain as 
segregated schools.

Finally the district court rejected the Board’s claim 
that it had completely fulfilled its constitutional obli-

6 The opinion, which is not reprinted in the appendices, is 
reported at 342 F. Supp. 945.



10

gations once it implemented the 1965 court-ordered 
stair-step plan. The district court pointed out {id. at 
947-948) that the Board’s arguments ignored this 
Court’s ruling in Green v. County School Board, 391 
U.S. 430, 439 (1968), that a segregated school system 
must “ ‘come forward with a plan that promises 
realistically to work * * * now * * * until it is clear 
that state-imposed segregation has been completely 
removed’ ”  (emphasis the Court’s). Nor had the 
Board made any attempt to comply with the court of 
appeals’ ruling in Singleton v. Jackson Municipal 
Separate School District, 419 F.2d 1211 (5th Cir. 
1969), that faculty and staff must be desegregated.7

7 The DISD’s policy of assigning- faculty on a racial basis 
persisted throughout implementation of the stair-step plan, 
so that in 1971 black teachers were still assigned almost ex­
clusively to black schools, and white teachers to white schools 
(Answer to Interrogatory 1(d), Answers to Plaintiffs’ Inter­
rogatories (First Set), filed Nov. 18, 1970). When the racial 
composition of the student body in a school changed, the 
faculty changed as well. For example, Holmes and Zumwalt 
Junior High Schools, and Pease and Stone Elementary 
Schools, which had all-white faculties in 1963-1964, opened 
with all-black faculties the very next year (ibid.). Although 
the record includes no statistics on the racial makeup of the 
schools in question during the 1963-1964 school year, by the 
1966-1967 school year each of these schools had an all-black 
student body (Answers to Plaintiffs’ Interrogatories (First 
Set), App. Yol. 4, filed Nov. 18, 1970).

The first indication that the DISD planned to abandon its 
segregated teacher assignment practices was Dr. Estes’ testi­
mony in 1971 that beginning in the 1971-1972 school year 
the Singleton guidelines would be implemented (II Tr. 414 
(1971)).



11
The district court ordered the DISD to submit a 

desegregation plan, and after conducting further 
hearings on relief, it approved a plan with the fol­
lowing terms:8 (1) elementary students would remain 
in their neighborhood schools but predominantly black 
and Mexican-American classrooms would be grouped 
with predominantly Anglo classrooms for closed cir­
cuit television classes and weekly visits; (2) second­
ary students would be assigned on a “ satellite”  zone 
basis and some secondary schools would be paired; 
(3) faculty desegregation would be carried out in 
accordance with the Singleton guidelines; (4) a ma- 
jority-to-minority transfer program would be im­
plemented for secondary students; (5) a tri-ethnic 
advisory committee would be established;9 and (6) 
site selection and school construction would be carried 
out in a way calculated to “prevent the recurrence of 
a dual school structure.” The district court subse­
quently stayed the student assignment provisions for 
secondary students on the grounds that the satelliting 
and pairing would be disruptive and would impose 
undue burdens on black students (342 F. Supp. at 
953, 955-957).

8 The remedial order, which is not reprinted in the appen­
dices, is reported at 342 F. Supp. at 949-954.

9 The district court also found that the plaintiffs had not 
proved de jure discrimination by the DISD against Mexican- 
Americans, but it concluded that Mexican-Americans are a 
sufficiently separate and identifiable ethnic group in the 
DISD to warrant their being taken into consideration in any 
desegregation plan. Accordingly, the court appointed a tri­
ethnic advisory committee that included representatives of 
the Mexican-American community (ibid.).



12

C. The first appeal

The Board did not appeal the district court’s find­
ing that elements of its former dual school system 
remained, but the plaintiffs appealed from the dis­
trict court’s remedial order.10 The court of appeals 
affirmed portions of the district court’s order, but 
held that neither the “ television plan” for elementary 
students nor the assignment plan for secondary stu­
dents was adequate to eliminate the lingering vestiges 
of segregation in the Dallas schools.11 Because the 
“ television plan” would not have altered the racial 
characteristics of the DISD’s elementary schools, the 
court of appeals concluded it could not be accepted as 
“ a legitimate technique for the conversion of the 
DISD from a dual to a unitary educational system 
* * * without a “ white” school and a “ Negro” school, 
but just schools’ ” (517 F.2d at 103, quoting Green v. 
County School Board, supra, 391 U.S. at 442). With

10 In two consolidated appeals the plaintiffs also sought 
reversal of the district court’s refusal to enjoin various 
school construction and renovation projects.

11 The court of appeals’ opinion, which is not included in 
the appendices, is reported at 517 F.2d 92. The court of appeals 
affirmed the district court’s decision to treat Mexican- 
Americans as a separate ethnic minority for purposes of 
developing a desegregation plan, and that portion of the 
lower court’s rulings is not challenged here. The court of 
appeals also approved the district court’s creation of a tri­
ethnic advisory committee, and it declined, at that time, to 
disturb the district court plan for the desegregation of the 
faculty and staff of the DISD. Finally, the court of appeals 
affirmed the district court’s refusal to order interdistrict 
busing, as well as its refusal to exclude from its remedial 
order recently developed areas of the DISD.



respect to secondary schools, the court of appeals 
found that the plan’s “ extremely limited objective” of 
reducing the proportionate share of a single racial 
group’s enrollment at a particular school to just be­
low the 90% mark “ is short of the Supreme Court’s 
standard of conversion from a dual to a unitary sys­
tem” (517 F.2d at 104). Finally, the court of 
appeals concluded that the Board had erred in plan­
ning its site selection and construction on the basis 
of the attendance zones established by the district 
court’s remedial orders, which it found (id. at 106) —

* * * were, for the most part, the same zones 
which had been employed by the DISD over 
previous academic years to implement its “neigh­
borhood school concept.” As the district court 
found in this case, the “neighborhood school 
concept” has resulted in the perpetuation of the 
vestiges of the dual school system in the DISD.

The court of appeals remanded the case to the 
district court for the formulation of a new plan, 
directing the district court to use and adapt “ the 
techniques discussed in Swann [v. Charlotte-Mecklen- 
burg Board of Education, 402 U.S. 1 (1971)]” (517 
F.2d at 110) to dismantle the dual structure of the 
Dallas school system by the middle of the 1975-1976 
school year.

This Court denied the Board’s petition for a writ 
of certiorari. Estes v. Tasby, 423 U.S. 939 (1975).



D. The proceedings on remand in the district court

1. The plans submitted to  the district court

On remand the district court conducted hearings in 
late 1975 and early 1976. The participants in these 
hearings were the parties and several groups of in­
terveners, including local branches of the N.A.A.C.P. 
The Curry interveners, petitioners in No. 78-282, 
represented a group of residents in the northern 
section of the DISD, and the Brinegar intervenors, 
petitioners in No. 78-283, represented a group of 
parents and students from the residentially integrated 
East Dallas section of the DISD.

Six plans were considered by the district court and 
described in some detail in its opinion (Pet. App. 
18a-29a). The DISD and N.A.A.C.P. plaintiff- 
intervenors each filed desegregation plans, and the 
district court appointed its own expert, Dr. Josiah C. 
Hall, to prepare an additional student assignment 
plan. Plaintiffs filed alternative plans A and B, and 
the sixth plan was submitted by the Educational 
Task Force of the Dallas Alliance, a community serv­
ice organization that was granted amicus curiae 
status for the purpose of submitting its proposal (Pet. 
App. 6a).12 The student assignment provisions of 
each plan were as follows.

The DISD’s proposal used pairing and clustering 
to desegregate grades 4 through 12 in 72 schools in

12 The court also received plans and suggestions from 
various other groups, including a proposal from a group of 
students at Skyline High School (Pet. App. 7a n.4).



predominantly Anglo parts of the district; it left un­
disturbed 48 one-race schools serving predominantly 
minority areas and 55 schools serving naturally inte­
grated areas (Pet. App. 18a-19a & n.17). Under the 
DISD’s proposal about 67% of the DISD’s black 
students would have attended schools where the mi­
nority enrollment exceeded 90% (Deft. Ex. 11 
(1976 )).13

The plaintiffs’ Plan A  divided the DISD into seven 
elementary subdistricts, with each school reflecting 
the racial composition of its subdistrict (Pet. App. 
21a). Naturally integrated subdistricts retained 
their prior assignment patterns and all other schools 
were paired or clustered {ibid,.). This plan left fewer 
than 1 % of the black students in schools where 
minority enrollment exceeded 90% (Pltf. Ex. 16 
(1976)). Plaintiffs’ alternative Plan B divided the 
DISD into eight subdistricts, one of which-—South 
Oak Cliff— remained predominantly minority, con­
tinuing its existing student assignment patterns but 
with enhanced facilities and programs aimed at at­
tracting students from the other seven subdistricts 
(Pet. App. 22a & n.32). In the other seven subdis­
tricts, pairing and clustering were used to achieve 
desegregation, except where residential integration 
made such tools unnecessary {ibid.). Plan B left 
about 23% of the DISD’s black students in schools 18

18 All of the proposed plans also advocated the use of 
“magnet” schools, which are schools with special curriculums 
or programs designed to attract students from throughout the 
school district.



where minority enrollment exceeded 90% (Pltf. Ex, 
16 (1976)).

The plan proposed by the N.A.A.C.P. plaintiff- 
intervenors sought to achieve racial balance in every 
school to reflect the proportions in the DISD student 
population as a whole using pairing and clustering, 
except in naturally integrated areas, and eliminating 
one-race schools entirely (Pet. App. 23a).

Dr. Josiah Hall, the court’s expert, presented a plan 
continuing existing attendance zones in naturally 
integrated areas, and pairing and clustering schools 
in predominantly Anglo areas with schools in pre­
dominantly black and Mexican-American areas (Pet. 
App. 24a). Students in kindergarten and first grade 
were to attend schools nearest their homes, and ex­
isting attendance zones were retained for other grades 
if transportation time to another school exceeded 
thirty minutes each way (Pet. App. 24a-25a & n.40). 
Under the Hall plan, 44% of the black students would 
have attended schools in which the black enrollment 
exceeded 90% (Hall Ex. 5 (1976)).

The plan submitted by the Educational Task Force 
of the Dallas Alliance divided the DISD into five sub­
districts (Pet. App. 26a). All the subdistricts but 
one— South Oak Cliff— reflected the racial proportions 
of the DISD as a whole (ibid.). Students in grades 
K through 3 were to attend the nearest school that 
would promote integration, with the distance not to 
exceed four miles from their homes (ibid.). In grades 
4 through 8, students living in naturally integrated 
areas remained in their existing attendance zones and 
students in other areas were assigned to schools in

16



17

the subdistrict that would reflect the racial propor­
tions of the subdistrict (Pet. App. 27a). The attend­
ance zones for students in grades 9 through 12 were 
not altered, but students were to be given the option 
of attending magnet schools or participating in a 
majority-to-minority transfer program (Pet. App. 
27a-28a).

2. The district court’s desegregation order

After conducting hearings on the various desegre­
gation proposals, the district court filed an opinion 
and order requiring implementation of a revised 
version of the Dallas Alliance Task Force plan (Pet, 
App. 4a-41a, 46a-120a).14 The district court’s plan 
divided the DISD into six subdistricts (Pet. App. 
53a). Four of these subdistricts had approximately 
the same racial make-up as the system as a whole; the 
remaining two subdistricts— Seagoville and East Oak 
Cliff— had an 82% Anglo student population and 
98% black student population respectively (Pet. App. 
53a, 135a). Within the subdistricts elementary stu-

14 On March 10, 1976, the district court entered an opinion 
and order generally approving the concepts of the plan sub­
mitted by the Dallas Alliance Task Force (Pet. App. 29a-41a). 
The court subsequently entered a supplemental opinion and 
final order (Pet. App. 46a-120a) setting forth the details of the 
Task Force plan as modified. The actual plan submitted by 
the Dallas Alliance contained no projected enrollment figures 
by which the district court could compare its desegregative 
impact with those of the other proposed plans. Projected en­
rollments were only supplied later when the DISD submitted 
its proposal for implementing the Dallas Alliance plan.



dents in grades K through 3 were to remain in their 
neighborhood schools (Pet. App. 57a). In areas that 
were not naturally integrated, students in grades 4 
through 8 were assigned to centrally located inter­
mediate and middle schools in the subdistrict (ibid.). 
In naturally integrated areas, prior attendance pat­
terns were continued for grades 4 through 8 (Pet. 
App. 57a, 136a). High school students were to remain 
in their neighborhood schools unless they chose to 
attend magnet schools or to participate in a transfer 
program (Pet. App. 58a). Majority-to-minority 
transfers were permitted at all grade levels (Pet. 
App. 68a-71a), and the magnet school concept wTas 
expanded at the high school level and extended to 
create “ academies” and “vanguard schools”  with 
special programs at the middle and intermediate 
school level (Pet. App. 61a-63a).15 *

The student assignment provisions approved by the 
district court maintained approximately 66 schools 
in the DISD in which either the Anglo, the black, or 
the combined black and Mexican-American enroll­
ments exceeded 90% (Pet. App. 132a-133a & n.3). 
The plan provided that all the schools serving the 
East Oak Cliff subdistrict— which enrolled 27,500 
students, including 41% of the black students in the 
DISD— would have student bodies more than 90%

15 The plan approved by the district court also includes 
a number of provisions regarding accountability, personnel, 
and other matters that are not at issue here (Pet. App. 67a-
68a, 73a-83a).



19

black, or more than 90% black and Mexican-American 
(Pet. App. 113a-118a, 132a-133a n.3).16

Approximately 50 one-race schools17 remained in 
subdistricts other than East Oak Cliff, including high 
schools in three of the five other subdistricts (Pet. 
App. 133a). In the Southeast subdistrict, Lincoln 
High School had a 100% black enrollment, while the 
enrollment at Samuell High School was 89% Anglo 
(Pet. App. 104a). In the Northeast subdistrict, 
Bryan Adams High School was 95.2% Anglo, while 
James Madison High School had 98.1% black stu­
dents and 1.7% Mexican-Americans (Pet. App. 97a). 
In the Northwest subdistrict, both Hillcrest High 
School and White High School were 96% Anglo, 
whereas Pinkston High School had a combined black

16 Appendix A to the district court’s opinion erroneously 
listed James Bowie elementary school, which had 29.7% Anglo 
students, in the East Oak Cliff subdistrict (Pet. App. 114a), 
but that error was corrected in the district court’s supple­
mental opinion, which indicated that Bowie was in the South­
west district (Pet. App. 125a).

The earliest enrollment statistics by race in the record, 
those for the 1966-1967 school year (before full implementa­
tion of the stair-step plan), reveal that eight of the schools 
serving East Oak Cliff were already more than 90 % black in 
enrollment that year (Answers to Plaintiffs’ Interrogatories 
(First Set), App. Vol. 4, filed Nov. 18, 1970).

17 The court of appeals used the term “ one race” to describe 
a school where either the Anglo enrollment or the combined 
black and Mexican-American enrollment exceeded 90% (Pet. 
App. 132a n.3), and we do the same.



20

and Mexican-American enrollment of 95.1% (Pet. 
App. 90a).18 *

The remaining one-race schools are found pri­
marily among the elementary schools serving grades 
K through 3. This group includes 21 schools outside 
East Oak Cliff which had either Anglo, black, or 
combined black and Mexican-American enrollments 
of more than 90% in 1966-1967, the first year for

18 In 1966-1967 Hillcrest, Adams and Samuell were 100% 
white schools, and White had only one black student (Answers 
to Plaintiffs’ Interrogatories (First Set), App. Vol. 4, filed 
Nov. 18, 1970). That same year Lincoln and Madison had 
100% black enrollments (ibid.). Thus, of the seven one-race 
high schools remaining outside East Oak Cliff under the dis­
trict court’s order, six were one-race schools the year before 
full implementation of the stair-step plan in 1968.

The racial separation in these schools has decreased slightly 
as a consequence of the voluntary integration accomplished 
by students exercising majority-to-minority transfer options. 
The April 15, 1979 report of the DISD to the district court 
contains the following figures:
Lincoln Samuell Bryan Adams

.18% Anglo 74.53% Anglo 86.26% Anglo
99.82% Black 18.19% Black 4.86% Black

James Madison

6.79% Mexican-American 6.82% Mexican-
American

Hillcrest

98.81% Black
.75% Mexican-American

.30% Anglo 78.14% Anglo 
18.15% Black 

1.81% Mexican-American

W. T. White Pinkston

90.38% Anglo 
4.39% Black
3.61% Mexican-American

1.06% Anglo 
82.08% Black 
16.45% Mexican-American



21

which the DISD has provided racial statistics.19 Al­
though the district court’s assignment plan employs 
grade configurations of K-3, 4-6, and 7-8, most of the 
DISD elementary schools include grades K through 
6 (Pet. App. 136a n.9), so that in a single elementary 
school children in grades K-3 would be in one-race 
classes, but those in grades 4-6 would be in inte­
grated classes. Looking only at grades K-3, there are 
53 schools in the DISD in which the Anglo or com­
bined black and Mexican-American enrollments for 
those grades exceed 90% .20

Although the district court’s plan did have some 
integrative effect on students in grades 4 through 8, 
it did not result in any overall desegregation of black 
students. Prior to implementation of the plan, ap­
proximately 59.19% of the black students and 16.41% 
of the Anglo students in the DISD attended one-race 
schools.21 As of the 1978-1979 school year, the third 
year under the district court’s plan, the percentage 
of Anglo students enrolled in one-race schools had

19 The schools are Arlington Park, Brown, Cabell, Carr, 
Carver, Colonial, Darrell, Dunbar, Frazier, Gooch, Harris, 
Hassell, Hexter, Kramer, Lagow, Moseley, Ray, Rice, Thomp­
son, Tyler, and Wheatley (Answers to Plaintiffs’ Interroga­
tories (First Set), App. Vol. 4, filed Nov. 18, 1970).

20 These figures are derived from the April 15, 1979 report 
of the DISD to the district court.

21 This figure is derived from the DISD’s report to the 
district court on December 1, 1975. Data from that report 
are contained in the DISD’s Answers to Interrogatories of 
Strom Intervenors, filed with the district court on December 
5, 1975.



declined to 8% , but 59% of the black students in the 
district were still enrolled in one-race schools.22

E. The second appeal

Both the plaintiffs and the N.A.A.C.P. plaintiff-in- 
tervenors appealed from the district court’s remedial 
order, contending that the student assignment pro­
visions were inadequate to eliminate the continuing 
effects of the DISD’s past segregation. On April 21, 
1978, the court of appeals, in the order challenged 
here, remanded the case for formulation of a new 
student assignment plan including findings that would 
“ justify the maintenance o f any one-race schools that 
may be a part of that plan” (Pet. App. 145a).

The court of appeals did not hold that a remedial 
plan for Dallas must eliminate all one-race schools; 
it held only that the district court must make findings 
regarding the reasons, if any, why one-race schools 
could not be eliminated by application of the various 
techniques previously approved by this Court (Pet. 
App. 137a-138a):

The district court was instructed in the opinion 
of the prior panel to consider the techniques for 
desegregation approved by the Supreme Court in 
Swann v. Charlotte-Mecklenburg Board of Edu­
cation, 402 U.S. 1, 91 S.Ct. 1267 (1971). We 
cannot properly review any student assignment 
plan that leaves many schools in a system one 
race without specific findings by the district

22 These figures are derived from the April 15, 1979 report 
of the DISD to the district court.



28

court as to the feasibility of these techniques. 
Davis v. East Baton Rouge Parish School Board, 
No. 75-3610 (5th Cir. April 7, 1978). There are 
no adequate time-and-distance studies in the re­
cord in this case. Consequently, we have no 
means of determining whether the natural 
boundaries and traffic considerations preclude 
either the pairing and clustering of schools or 
the use of transportation to eliminate the large 
number of one-race schools still existing. See 
Mims v. Duval County School Board, 329 F. Supp. 
123, 133-134 (M.D. Fla. 1971).

Focusing on the problem presented by the continued 
existence of one-race high schools, the court of ap­
peals stated (Pet. App. 138a; footnotes om itted):

Although students in the 4-8 grade configura­
tions are transported within each subdistrict to 
centrally located schools to effect desegregation, 
the district court’s order leaves high school stu­
dents in the neighborhood schools. Within three 
of the four integrated subdistricts, this results 
in high schools that are still one-race schools. 
The district court is again directed to evaluate 
the feasibility of adopting the Swann desegrega­
tion tools for these schools and to reevaluate the. 
effectiveness of the magnet school concept. If the 
district court determines that the utilization of 
pairing, clustering or the other desegregation 
tools is not practicable in the DISD, then the 
district court must make specific findings to that 
effect.

The court of appeals also considered several other 
aspects of the district court’s remedial order that are



not at issue here. It held the district court had erred 
in not requiring the Board to provide transportation 
for students who choose to participate in the majority- 
to-minority transfer plan (Pet. App. 138a-139a). 
The appellate court affirmed the district court’s re­
fusal to include the separate Highland Park school 
system in the student assignment plan (Pet. App. 
141a).28 And, in a related appeal, the court rejected 
the claims of a group of citizens who opposed a 
DISD plan to convert a shopping center in East Oak 
Cliff into a school complex (Pet. App. 141a-145a).

On May 22, 1978, the court of appeals denied the 
DISD’s petition for rehearing (Pet. App. 146a-147a).

SUMMARY OF ARGUMENT 

I

As required by the Texas Constitution, the DISD 
operated separate schools for black students and 
white students both before and after Brown v. Board 
of Education, 347 U.S. 483 (1954). In 1965-1967 
the DISD, for the first time, implemented a federal 23

23 The plaintiffs had sought unsuccessfully in the district 
court to include various independent school districts in the 
desegregation plan. All of these except the Highland Park 
Independent School District were dismissed on the plaintiffs’ 
motion. Highland Park serves two virtually all-white com­
munities surrounded by the DISD. The district court had 
concluded that for the past twenty years the Highland Park 
school district had not engaged in segregation and that its 
prior policy of discrimination had but a negligible effect on 
the DISD, and on this basis the court refused to include High­
land Park in the student assignment plan for the DISD. The 
court of appeals affirmed (Pet. App. 141a).



25
court order requiring the elimination of segregatory 
assignments by race, but it took no other steps to 
dismantle its dual system, and the enrollment figures 
at the time of trial in 1971 revealed the continua­
tion of the racial separation so long mandated by 
law. Almost all of the schools that were all-black at 
the time of the first court-ordered desegregation re­
mained virtually all-black. More than 90% of the 
black students in the DISD continued to attend 
schools where more than 90% of the students were 
black. Moreover, by the time of trial the DISD had 
not desegregated its faculty.

The district court correctly recognized that the 
high degree of racial separation still found through­
out the system was a vestige of the dual system that 
had not been dismantled.

The DISD had an affirmative duty to dismantle 
the dual system and eliminate its vestiges. Its ob­
ligation was to remedy the continuing effects of its 
longstanding segregation. This duty was not satis­
fied when the DISD— under court order— eliminated 
racial criteria for admission in 1965, which was 
only the first step in dismantling the dual system. 
The DISD had a duty to adopt a plan that would 
be effective to desegregate its school system. It had 
not done so at the time of trial.

II

Since the DISD had not dismantled its dual sys­
tem, the district court’s responsibility was to fashion 
a remedy to convert to a unitary system and elimi­
nate the vestiges of the prior dual system root and



branch. The task of its remedial decree was to 
achieve “ the greatest possible degree of actual de­
segregation, taking into account the practicalities of 
the situation.” Davis v. Board o f School Commis­
sioners, 402 U.S. 33, 37 (1972).

The district court’s remedial order left intact ma­
jor elements of the prior dual system: 66 one-race 
schools, many of which were operating as one-race 
schools before the first court-ordered desegregation. 
The court of appeals properly remanded the case for 
reconsideration of the remedial order because the rec­
ord did not establish that the order achieved the 
greatest degree of desegregation that was practical.

The court of appeals correctly recognized that in 
a district, like the DISD, with a long history of seg­
regation, there is a presumption against the con­
tinued existence of so many one-race schools, and 
that the DISD had the burden of showing that racial 
composition of the schools was not the result of its 
own past segregative actions. Since the DISD failed 
to carry the burden of showing that its past segrega­
tive acts had not affected the remaining one-race 
schools, the court of appeals correctly remanded the 
case for reconsideration and further findings to per­
mit the district court accurately to determine the 
greatest degree of desegregation that would be 
practical.

The district court stated that desegregation of the 
all-black East Oak Cliff subsection would be imprac­
tical, but the record did not include studies showing 
that the times and distances for the necessary student 
transportation (proposed in several plans before the

26



27

district court) were too great to be practical. The 
court of appeals properly remanded the case for spe­
cific findings why tools such as pairing and cluster­
ing of schools could not be used to desegregate part 
or all of East Oak Cliff, which contained more than 
27,000 black students.

The district Court also stated that desegregation 
of the high schools would not be practical— even 
though it ordered desegregation of the smaller junior 
high schools. Again the court of appeals properly 
remanded the case for specific findings why the high 
schools could not, with practicality, be desegregated 
as well.

The district court concluded that students in grades 
K through 3 were not mature enough to be assigned 
anywhere but their neighborhood schools. The dis­
trict court did not consider whether desegregation 
of some or all of the one-race elementary schools 
could be achieved if transportation time were care­
fully limited because of the students’ age. Again, 
the court of appeals properly remanded the case for 
more specific findings regarding the feasibility of 
greater desegregation.

The court of appeals did not err in remanding the 
case for reconsideration of plans involving more stu­
dent transportation. The district court’s limited use 
of pairing, clustering, and student transportation—  
together with its heavy reliance on magnet schools—  
had not been effective to achieve the desegregation of 
the DISD’s former dual system. Accordingly, the 
court of appeals properly directed the district court



2 8

to consider the feasibility of making greater use of 
techniques that promised to be effective to dismantle 
the dual system.

ARGUM ENT

I
A  SYSTEM W ID E R EM EDY IS APPROPRIATE BE­
CAUSE TH E BOARD H AS NOT FULFILLED ITS  
CONTINUING OBLIGATION TO ELIM IN ATE THE  
VESTIGES OF THE FORMER DUAL SCHOOL SYS­
TEM  TH AT PERSIST THROUGHOUT THE DISTRICT

A. Vestiges of the DISD’s dual school system remain 
throughout the district

Until its repeal on August 5, 1969, Article 7, § 7 
of the Texas Constitution required racial segregation 
in the public schools throughout the State, and Dallas 
operated a constitutionally and statutorily mandated 
dual school system both before and after Brown v. 
Board of Education, 347 U.S. 483 (1954) (Brown 
7 ).24

Although a court-ordered stair-step desegregation 
plan eliminated separate racial assignment zones for 
all grades by 1967, new attendance zones were drawn 
without any effort to encourage integration, and in 
most cases the schools attended by black students be­
fore the implementation of the stair-step order re­
mained all-black.24 25 26 Enrollment figures for the 1966-

24 Many state statutes effectuating Article 7 § 7 are set
forth in Respondents’ Br. at 11-12 n.4.

26 Although there are no school-by-school enrollment figures 
by race for years prior to 1966-1967, it is possible to identify 
many schools attended by blacks in earlier years because the 
faculties were segregated as well and the record includes the 
all-black faculties in the early 1960’s (Answer to Interroga-



29

1967 school year reveal that the student bodies in 
101 of the DISD’s 171 schools were either 100% 
black or 100% Anglo.26

At the time of trial in 1971, this high degree of 
racial separation persisted. The schools that blacks 
had attended before 1965 remained virtually all­
black. More than 90% of the black students in the 
DISD attended schools where less than 10% of the 
students were Anglo, and 63% of the black students 
attended schools where less than 1% of the students 
were Anglo (Answers to Plaintiffs’ Interrogatories 
(First Set), App. Yol. 1, filed Nov. 18, 1970). More 
than two-thirds of the Anglo students attended 
schools where Anglos made up 90% or more of the 
student body (ibid.). And the Board had made no 
provision for majority-to-minority transfers (see II 
Tr. 560-563, 645-647 (1971)).

After conducting a full hearing on the current 
conditions in the DISD, the district court concluded 
that the extreme racial separation throughout the

tory 1(d), Answers to Plaintiffs’ Interrogatories (First Set), 
filed Nov. 18, 1970). There were 37 schools that had all-black 
faculties before 1965. The 1966-1967 enrollment figures for 
these 37 schools reveal that 29 continued to have black en­
rollments exceeding 90%, three had closed (Attucks, Eagle 
Ford, and Starks), and five others had changed to less than 
90 % black enrollment (Sequoyah, Pinkston, Douglass, Roberts, 
and Miller). The extent to which the change in these five 
schools is attributable to enrollment of Mexican-American, 
rather than Anglo, students is not reflected in the record (see 
note 26, infra).

26 As previously noted (page 4, supra, note 3), until the 
1967-1968 school year the DISD counted Mexican-American 
students as white.



30
DISD was the legacy of the prior dual system that 
had never been effectively dismantled. The basis for 
that conclusion was the court’s finding (page 9, 
supra) that 119 schools in the DISD were either 90% 
or more Anglo or 90% or more black and Mexican- 
American in their enrollments and that 91% of the 
black students attended predominantly minority 
schools, while only 3% of the black students attended 
majority Anglo schools.27

The DISD’s faculty assignments also evidenced 
the continuing effects of the DISD’s prior dual sys­
tem. No effort was made to desegregate the faculty 
of the DISD during the years the court-ordered stair­
step plan was being implemented. Although Superin­
tendent Estes testified that a phased faculty deseg­
regation program affecting 20 schools was adopted 
in 1968 (II Tr. 455 (1971)), by the time of trial 
in 1971, 88.8% of the black teachers in the DISD 
were still assigned to schools where the student body 
was at least 90% black, and less than 5% of the

27 Petitioners and respondents engage in a heated debate 
over the question whether the district court found that the 
DISD was operating a dual system, or merely that there were 
still vestiges of the prior dual system. The district court 
did not focus on this distinction and its 1971 liability finding 
refers to vestiges, whereas its April 7, 1976 supplemental 
opinion assumes that in 1971 the court found the DISD was 
operating a dual system (412 F. Supp. 1211).

In our view, the narrow distinction petitioners seek to draw 
between the vestiges of a dual system and the dual system 
itself is meaningless where, as here, school officials have 
taken no action to alter the racial characteristics of the schools 
that were once segregated and what remained is a system 
where more than 90% of the black students remain in all­
black schools.



black teachers were assigned to schools where 90% 
or more of the students were Anglo (Plaintiffs’ Ex­
hibit 4 (1971)). Only after trial of this case began 
did the DISD announce a plan to desegregate all its 
faculty in accordance with the Fifth Circuit’s 1969 
decision in Singleton. As this Court pointed out in 
Dayton Board of Education v. Brinkman, No. 78- 
627 (July 2, 1979), slip op. 11-12 (Dayton II),  such 
continuing faculty segregation is “ strong evidence 
that the Board was continuing its efforts to segre­
gate students.” See also Swann v. Charlotte-Mecklen- 
burg Board of Education, 402 U.S. 1, 18 (1971).

The district court correctly rejected the DISD’s 
claim that the racial separation in the schools was 
not attributable to the lingering effect of state-im­
posed segregation, but to changes in residential pat­
terns since the institution of the stair-step plan in 
1965. Once the plaintiffs have established, as they 
did here, that the school board’s intentional past acts 
created a dual school system, it becomes the burden of 
the school authorities to show that the current segre­
gation “ is not the result of present or past discrimina­
tory action on their part.”  Swann v. Charlotte- 
Mecklenburg Board of Education, supra, 402 U.S. 
at 26. Where, as here, the record establishes that 
there has been a dual system, “ the systemwide na­
ture of the violation funishefs] prima facie proof 
that current segregation in the * * * schools was 
caused at least in part by prior intentionally segrega­
tive official acts.” Dayton II, supra, slip op. 9.

The evidence introduced by the DISD did not carry 
this burden. Superintendent Estes testified that be­



32

tween 1965 and 1970— during and after implementa­
tion of the stair-step plan-—he believed approximately 
19 schools in the district had changed from ma­
jority Anglo to majority black and Mexican-Ameri­
can because of changes in residential patterns (II 
Tr. 514-520 (1971)). As the district court observed, 
this evidence fell far short of demonstrating that the 
Board’s prior segregative acts had not caused the 
conditions of racial separation that were still so evi­
dent throughout the district, since Estes’ testimony 
accounted for only a fraction of the one-race schools, 
providing no explanation for the existence of 97 other 
one-race schools throughout the DISD in 1970-1971, 
most of which had the same racial composition be­
fore and after implementation of the stair-step plan. 
Moreover, even assuming that changes in residential 
patterns did influence the racial composition of the 
19 schools Estes identified, school segregation— which 
often contributes to housing segregation— may never­
theless have played an important part in determining 
the racial composition of the schools. See Columbus 
Board of Education v. Penick, No. 78-610 (July 2, 
1979), slip op. 14-15 n.13.

B. The DISD was under a continuing obligation to 
eliminate these vestiges

1. As this Court reaffirmed most recently last 
Term in Columbus Board of Education v. Penick, 
supra, slip op. 8 (citations omitted), a school system, 
like the DISD, that has operated dual schools is—

“ clearly charged with the affirmative duty to take 
whatever steps might be necessary to convert to



33

a unitary system in which racial discrimination 
would be eliminated root and branch.” * * * 
Each instance of a failure or refusal to fulfill 
this affirmative duty continues the violation of 
the Fourteenth Amendment.

The DISD’s “ continuing ‘affirmative duty to dis­
establish the dual school system’ is therefore beyond 
question.”  Columbus Board of Education v. Penick, 
supra, slip op. 10, quoting McDaniel v. Barresi, 402 
U.S. 39, 41 (1971).

2. Relying on Dayton Board of Education v. 
Brinkman, 433 U.S. 406 (1977) (Dayton I ) ,  the 
Brinegar petitioners contend that the district court 
erred in focusing on the question whether the one- 
race schools throughout the district were vestiges of 
the prior dual system, rather than the question 
whether the current racial separation in the schools 
had been caused by the Board’s intentionally segre­
gative actions.28 But as this Court’s opinion in Day- 
ton 11 makes clear, the DISD had an affirmative duty

28 The record before the Court in Dayton 1 showed only 
isolated instances of segregative acts in a system where 
“mandatory segregation by law * * * ha[d] long since ceased.” 
433 U.S. at 420. As this Court observed in Columbus Board of 
Education V. Penick, supra, slip op. 7 n.7, Dayton I held that 
record was “ insufficient to give rise to an inference of system- 
wide institutional purpose and * * * did not add up to a 
facially substantial systemwide impact.”

Here, in contrast to the record in Dayton I, statutory segre­
gation ceased when the stair-step plan was fully implemented 
in 1967, less than four years before the district court’s lia­
bility finding, and almost all of the schools that had been 
black schools in 1966-1967 were still more than 90% black.



34

to desegregate, a duty that required it “ to do more 
than abandon its prior discriminatory purpose”  (slip 
op. 11), and the lower courts were “quite justified in 
utilizing the Board’s total failure to fulfill its affirma­
tive duty * * * to trace the current, systemwide seg­
regation back to the purposefully dual system of the 
1950’s and to the subsequent acts of intentional dis­
crimination” (slip op. 14). Dayton II holds “ the 
measure of the post-Brown conduct of a school board 
under an unsatisfied duty to liquidate a dual system 
is the effectiveness, not the purpose, of the actions in 
decreasing or increasing the segregation caused by 
the dual system” (slip op. 10-11). In the instant 
case, petitioners concede that the DISD deliberately 
maintained separate schools for black and white chil­
dren in Dallas until the mid-1960’s. So long as the 
effects of that intentional conduct remain unremedied, 
no additional finding of intent is necessary before the 
court may act to remedy the DISD’s perpetuation or 
aggravation of those effects.29

29 The Brinegar petitioners also rely heavily on this Court’s 
statement in Washington v. Davis, 426 U.S. 229, 240-248 
(1976), that evidence of a racially discriminatory purpose is 
necessary to prove a violation of the Equal Protection Clause. 
Davis is fully consistent with Dayton II. The Brinegar peti­
tioners overlook the portion of the Davis opinion stating that 
where there is an unremedied purposeful violation of equal 
protection, subsequent related conduct would be unconsti­
tutional if it has an impact which perpetuates the past dis­
crimination or if it was performed with a discriminatory pur­
pose. Citing Wright V. Council of City of Emporia, 407 U.S. 
451 (1972), the Dams opinion explained, 426 U.S. at 243, that 
no independent showing of invidious intent underlying the



3, The Board’s affirmative duty was not, as the 
Curry petitioners contend (Curry Br. 17-21), satis­
fied by the implementation of the court-ordered stair­
step plan. The Fifth Circuit pointed out in its opin­
ion on the first appeal that the stair-step plan was 
a limited remedy that replaced overtly racial student 
assignments with a “neighborhood school”  policy, but 
was not designed to eliminate all vestiges of state- 
imposed segregation ( Tasby v. Estes, supra, 517 
F.2d at 95 ):

The “stair-step” desegregation process we di­
rected in 1960 and implemented by the DISD 
the following year merely involved the elimina­
tion of racial criteria for the admission of stu­
dents to the DISD’s schools. The DISD was not 
directed to take affirmative action to remove the 
vestiges of its formerly statutorily-required dual 
education system through such techniques as 
“ freedom-of-choice” , “pairing” , or “majority-to- 
minority transfer program.” In fact the DISD 
took no further steps to eliminate the traces of 
segregation than required to do by the terms of 
our 1965 desegregation order.

As this Court stated in Green v. County School Board, 
supra, 391 U.S. at 437, “ [i]n  the context of the state- 
imposed segregated pattern of long standing,” the 
fact that a school board has “ opened the doors of the

school district’s decision to divide and form a new district 
was necessary in Wright, where the effect of that action was 
to undermine a court-ordered plan to remedy purposeful dis­
crimination previously found in the Emporia public schools. 
The same general principle was reaffirmed in Dayton II.



36

former ‘white’ school to Negro children and of the 
‘Negro’ school to white children merely begins, not 
ends, our inquiry whether the Board has taken steps 
adequate to abolish its dual, segregated system.”

The circumstances of this case are much like those 
of Swann v. Charlotte-Mecklenburg Board of Edu­
cation, supra. As this- Court recently noted in Co­
lumbus Board of Education v. Penick, supra, slip op. 
9, “an initial [de] segregation plan had been entered 
[in Swann] in 1965 and had been affirmed on appeal. 
But the case was reopened, and in 1969 the school 
board was required to come forth with a more effec­
tive plan.”  In Swann, as here, the earlier remedial 
order did not fulfill the Board’s obligation because it 
“ fell short of achieving [a] unitary school system.” 
402 U.S. at 7. Although the racially neutral geo­
graphic zoning plan had been in force for several 
years, two-thirds of all black students were still at­
tending schools where 99% or more of the student 
body was black (ibid.).30 Accordingly, it was neces­
sary to implement a more effective desegregation 
plan.

As we have shown, supra at pages 28-31, the DISD’s 
racially neutral zoning plan was equally ineffective in 
eliminating the effects of the prior system of segre-

30 Similarly, in Green V. County School Board, supra, 391 
U.S. at 441, the Court found the school board’s adoption 
of a freedom of choice student enrollment plan had not satis­
fied its obligations when after three years of operation, 85% 
of the black students were still in a one-race school.



gation, and accordingly the DISD’s duty had not been 
satisfied.31

4. The Curry petitioners also contend (Curry Br. 
30) that the far North Dallas area where they re­
side was settled after Brown I, and that the district 
court erred in including North Dallas in its remedial 
plan because the racial composition of the schools in 
that area was solely the result of pi edominantly 
white residential settlement, not the DISD s segrega­
tive actions.33

37

81 This is clearly not a case like Pasadena City Board of 
Education V. Spangler, 427 U.S. 424 (1976), where the dis­
trict court had implemented a comprehensive scheme that 
effectively desegregated the student bodies of every school 
throughout the district, and then ordered the school board 
to take further action to realign attendance boundaries from 
year to year in order to maintain a permanent racial balance 
throughout the district. Pasadena follows up on the Court s 
cautionary comment in Swann that “ ‘ [n] either school author­
ities nor district courts are constitutionally required to make 
year-by-year adjustments of the racial composition of student 
bodies once the affirmative duty to desegregate has been ac­
complished and racial discrimination through official action 
is eliminated from the system.’ ” 427 U.S. at 436, quoting 
Swann, supra, 402 U.S. at 31-32. But here, as in Swann itself, 
a second remedial order is necessary where an apparently 
neutral assignment plan has been insufficient to counteract 
the continuing effects of past school segregation. 402 U.S. at 
28. See also University o f California Regents V. Bakke, 438 
U.S. 265, 300-302 (1978) (opinion of Powell, J-), 353-355 
(opinion of Brennan, White, Marshall, and Blackmun, JJ.) ; 
United Jewish Organizations V. Carey, 430 U.S. 144, 159-161 
(1977) (opinion of White, J.) ; Albemarle Paper Co. V. Moody, 
422 U.S. 405, 425, 435 (1975).

82 The court of appeals rejected a similar claim by the 
Curry petitioners on the first appeal (Tasby V. Estes, supra, 
517 F.2d at 108).



38
The record does not support this claim. It estab­

lishes that all but one of the eight schools in the far 
North Dallas area were established as one-race schools 
before full implementation of the stair-step plan that 
was the first step toward eliminating the dual sys­
tem in the DISD.33 All but one of these schools opened 
with all-white faculties between 1958 and 1965,34 35 
and all but one had more than 90% white enrollment 
during the 1966-1967 school year, the first year for 
which enrollment data by race are available.85 The 
remaining school, Nathan Adams, opened in the 1967- 
1968 school year with a more than 90% white enroll­
ment and an all-white faculty.36 Since the far North 
Dallas schools were thus part of the dual system 
operated by the DISD, the district court did not err 
in including those schools in its remedial order.37

33 The schools are Nathan Adams, Cabell, Degolyer, Gooch, 
Marcus, Withers, and Marsh Junior High Schools, and W. T. 
White High School.

34 Answer to Interrogatory 1(d), Answers to Plaintiffs’ 
Interrogatories (First Set) App. Vol. 4, filed Nov. 18, 1970.

35 Answers to Plaintiffs’ Interrogatories (First Set) App. 
Vol. 4, filed Nov. 18, 1970.

38 Ibid.
37 There is no merit to the Curry petitioners’ contention 

(Curry Br. 30) that the district court, made a finding that 
their schools were not affected by the DISD’s segregative acts. 
The following passage, on which the Curry petitioners base 
their argument, is simply a general statement about the 
difficulty of constructing a remedial order; the district court 
was discussing the question of remedy rather than violation 
and was not referring specifically to North Dallas or to any 
particular section of the city (342 F. Supp. at 951) :

The adoption of a plan of desegregation for a school 
system of the size and complexity of DISD has been



39

II

THE COURT OF APPEALS PROPERLY REMANDED 
THE CASE FOR CONSIDERATION OF THE FEASI­
BILITY OF DESEGREGATING THE REMAINING 
ONE-RACE SCHOOLS

In a school desegregation case, “ [a]s with any 
equity case, the nature of the violation determines 
the scope of the remedy.”  Swann v. Ckarldtte-Meck- 
lenburg Board of Education, supra, 402 U.S. at 16. 
See Dayton I, supra, 433 U.S. at 420. Where, as 
here, the condition that violates the Constitution is 
the creation of a dual system, with separate schools 
for black and white students, the appropriate remedy 
is conversion to a unitary system where there are 
no longer black schools or white schools, but “ just 
schools.”  Green v. County School Board, supra, 391 
U.S. at 442. In effecting that conversion, the goal 
is “ to achieve the greatest possible degree of actual 
desegregation, taking into account the practicalities 
of the situation.” Davis v. Board of School Commis­
sioners, 402 U.S. 33, 37 (1971). The obligation im­
posed by the Constitution, however, “ does not mean 
that every school in every community must always 
reflect the racial composition of the school system 
as a whole.”  Swann v. Charlottee-Mecklenburg Board 
of Education, supra, 402 U.S. at 24.

The court of appeals faithfully applied these prin­
ciples in reviewing the district court’s remedial or-

commented upon briefly. The problems result, of course, 
from private housing patterns that have come into ex­
istence and not from any action of the DISD.



40

der. It remanded for further consideration of the 
student assignment provisions— which left intact ma­
jor elements of the prior dual system— because the 
record did not establish that those provisions would 
accomplish the maximum desegregation practical in 
the circumstances.38

38 Despite petitioners’ criticisms of the court of appeals 
(see Brinegar Br. 28), it is clear that that court did not order 
the district court to eliminate all one-race schools, and did 
not exceed the proper bounds of appellate review. The court 
of appeals expressly recognized the possibility that the dis­
trict court’s revised student assignment plan might include 
some one-race schools, and accordingly it remanded not only 
“ for the formulation of a new student assignment plan,” but 
also “ for findings to justify the maintenance of any one-race 
schools that may be a part of that plan” (Pet. App. 145a). 
By remanding to the district court for further findings and 
reformulation of the student assignment plan, the court of 
appeals scrupulously adhered to the proper role of an appel­
late court. It attempted to review the district court’s findings 
in support of its remedial order, and, upon determining that 
the district court’s generalized findings were insufficient, it re­
manded the case for further findings and reformulation of the 
plan instead of instituting its own more sweeping remedy. 
Cf. Dayton I, supra, 433 U.S. at 417-418.

Petitioners also criticize the length, delay, and uncertainty 
that often characterizes school desegregation litigation. But 
these problems do not stem from the courts. The cases where 
there have been excessively long delays have generally in­
volved school districts that have operated dual systems for 
decades and that have been grudging—if not recalcitrant—in 
converting to a unitary system. In this case, for example, six 
appeals were required before the school district implemented 
the stair-step plan and ceased using racial criteria to make 
student assignments. See supra pages 4-5, note 4.



The district court's order left intact 66 one-race 
schools, most of which were operating as one-race 
schools in 1965 before the DISD began to implement 
the first court-ordered desegregation of its statutory 
dual system. The court’s plan divided the DISD into 
six subdistricts, one of which— East Oak Cliff— “ is 
nearly all black and contains only one-race schools 
(Pet. App. 132a). The plan provided that except 
for those who elect to exercise the option of majority- 
to-minority transfers, all of the more than 27,500 
students in the subdistrict would continue to attend 
the all-black schools located within the subdistrict. 
Outside of East Oak Cliff, the district court’s plan 
left 50 one-race high schools and elementary schools 
for grades K through 3; only in grades 4 through 8 
was nearly complete desegregation achieved by the 
use of techniques such as pairing and clustering. 
Despite the integration of grades 4 through 8, the 
majority of black students in the DISD— 59%— re­
mained isolated in one-race schools both before and 
after implementation of the district court s plan.

The court of appeals correctly recognized (Pet. 
App. 137a) that the continued existence of so many 
one-race schools required special scrutiny of the dis­
trict court’s plan, and that such schools could be 
maintained only to the extent that the practicalities 
of the situation prevent their desegregation. As this 
Court explained in Swann v. Charlotte-Mecklenburg 
Board of Education, supra, 402 U.S. at 26, the ex­
istence of one-race schools ‘ is not in and of itself 
the mark of a system that still practices segregation



42

by law,”  but in a system, like the DISC, where there 
has been a long history of segregation, there is “ a 
presumption against schools that are substantially 
disproportionate in their racial composition” :

Where the school authority’s proposed plan for 
conversion from a dual to a unitary system con­
templates the continued existence of some schools 
that are all or predominantly of one race, they 
have the burden of showing that such school as­
signments are genuinely nondiscriminatory. The 
court should scrutinize such schools, and the 
burden upon the school authorities will be to 
satisfy the court that their racial composition is 
not the result of present or past discriminatory 
action.

The court of appeals properly remanded the case 
because the record before it was insufficient to es­
tablish that the 66 one-race schools left intact under 
the district court’s plan had not resulted from the 
DISD’s past and present segregative acts, or that the 
desegregation of some or all of the schools was im­
practical.39

39 Petitioners attack the remedial principles of the Swann 
decision. But in view of this Court’s reaffirmance of those 
principles in Columbus Board of Education V. Penick, supra, 
slip op. 8-9, we will not offer an elaborate defense of that 
decision. We note, however, that the principles of Swann and 
its companion case, Davis V. Board of School Commissioners, 
402 U.S. 33 (1971), have served well over the past eight 
years in guiding courts and school districts in desegregating 
numerous schools. Since hundreds of school districts with a 
combined enrollment in the hundreds of thousands are pres­
ently operating under court-ordered desegregation plans based 
on Swann, overruling or limiting Swann would call into ques-



43

A. The East Oak Cliff Subdistrict

1. The record before the district court included 
testimony that plaintiffs’ plan A  and the N.A.A.C.P. 
plan were designed to desegregate all of the East 
Oak Cliff schools (III Tr. 293 (1976); IV Tr. 41 
(1976)). The NAACP plan would have employed 
bus trips, in each direction, of approximately 40 
minutes to accomplish this (IV  Tr. 53-54 (1976)). 
Plaintiffs’ plan B was designed to desegregate more 
than half of the East Oak Cliff schools with maxi­
mum bus trips, in each direction, o f 30 minutes (III 
Tr. 261 (1976)). The district court made no findings 
on the practicality of any of these plans. It never­
theless held (Pet. App. 31a) that no desegregation 
of the many all-black schools throughout the East 
Oak Cliff subdistrict could be accomplished “given 
the practicalities of time and distance, and the fact 
that the DISD is minority Anglo.”

On appeal, the Fifth Circuit found (PeCwApp. 
137a) that the record included “ no adequato-iime-and- 
distance studies” to permit it to evaluate the district 
court’s generalized finding that no desegregation of 
East Oak Cliff was practical. Accordingly, the court 
of appeals concluded (ibid.) that it had “no means of 
determining whether the natural boundaries and 
traffic considerations preclude either the pairing and 
clustering of schools or the use of transportation to 
eliminate the large number of one-race schools still

tion the validity of every one of these plans. Stare decisis 
carries more than its ordinary force here, where the original 
rule is well-grounded in logic and equity, has proven fair and 
workable, and has not been shown to lead to an unjust result.



44

existing.”  The court of appeals therefore remanded 
the case for more specific findings that would allow 
the appellate court to determine whether the remedial 
decree achieved the maximum degree of desegrega­
tion that would be practical. The remand order was 
necessary to permit both the district court and the 
court of appeals to perform their respective func­
tions. See Dayton I, supra, 433 U.S. at 417-419; 
Brown v. Board of Education, 349 U.S. 294, 299- 
300 (1955).

2. The Curry petitioners suggest a second ground 
-—not relied upon by the district court— for excluding 
the East Oak Cliff schools from any remedial order.40 
They argue that the all-black schools throughout East 
Oak Cliff are the result of residential segregation, 
not the actions of the DISD. The only evidence sup­
porting this claim is Superintendent Estes’ testimony 
that 19 schools— among them 12 of the 26 schools in 
East Oak Cliff— had become all-black between 1965

40 The district court grounded its decision not to extend 
its remedial order to the East Oak Clift schools solely on 
“the practicalities of time and distance, and the fact that the 
DISD is minority Anglo” (Pet. App. 31a). The Curry peti­
tioners nevertheless contend (Curry Br. 9-10, 29) that in its 
August 17, 1971 order, partially staying an earlier order, 
the district court found that the primary cause for the one- 
race schools in East Oak Cliff was residential segregation. 
Petitioners make far too much of this comment, on which the 
district court itself did not subsequently rely. Indeed, the 
district court could not properly have relied on such a finding 
to deny relief throughout the subdistrict since the only evi­
dence that might conceivably support such a finding related 
to some—but not all—of the schools in the subdistrict. See 
pages 44-45, infra.



and 1970 because of residential changes (II Tr. 514- 
520 (1971)).

The DISD introduced Estes’ testimony in an effort 
to show that the DISD was not responsible for any 
of the current segregation throughout the school 
district. The district court rejected this argument on 
grounds that answer as well the Curry petitioners’ 
more limited argument regarding East Oak Cliff. 
The district court found Superintendent Estes’ testi­
mony about 19 of the more than 170 schools in the 
district unpersuasive because it provided no explana­
tion whatsoever for the existence of 97 other one- 
race schools throughout the DISD. Similarly, as ap­
plied to East Oak Cliff alone, Estes’ testimony is un­
persuasive because it provides no explanation for the 
majority of the schools in East Oak Cliff, including 
many schools that were black schools before the first 
court-ordered desegregation.41

Moreover, evidence that black residents moved to 
an area, such as East Oak Cliff, including an enclave 
of schools designated for many years as black schools 
in a dual school district does not prove that the 
schools affected by the changes in residential pat­
terns were not also affected by the longstanding pat­
tern of segregation in the schools. Particularly 
where, as here, the dual system had noi been com­
pletely dismantled, this evidence of residential change

41 Nine schools in East Oak Cliff are identifiable as black 
schools before 1965 because they had all-black faculties, in­
cluding some that opened with all-white faculties and were 
subsequently converted to all-black faculties (see Respondents 
Br. 81 n.47 for a listing of these schools).



46

affecting some schools would not overcome the pre­
sumption against the continuance of one-race schools. 
See Columbus Board of Education v. Penick, supra, 
slip op. 14-15 n.13.

B. Grades 9-12, K-3 outside East Oak Cliff

1. The district court also made a general finding 
that it would not he feasible to reassign students in 
order to desegregate any of the one-race high schools 
throughout the city (Pet. App. 33a-35a). But as the 
court of appeals pointed out (Pet. App. 137a), this 
finding seems to be clearly at odds with the district 
court’s conclusion that it was feasible to desegregate 
the junior high schools throughout the district. Under 
the district court’s plan, the high schools generally 
had substantially larger enrollments and drew stu­
dents from larger geographic areas than the junior 
high schools (compare Pet App. 88a, 95a, 102a, 109a, 
and 115a with 90a, 97a, 104a, 111a, and 117a).42 
The district court’s plan used pairing, clustering, and 
transportation of students to desegregate the smaller 
schools serving the seventh and eighth grades, yet the 
district court found— without further explanation—  
that it could not desegregate the larger high school 
districts. As a logical matter, however, desegregation 
of the high schools should have been an easier task, 
since they served larger geographic areas.

Finding that the district court’s failure to desegre­
gate the high schools left one-race schools in three of

42 Grades 7 through 12 are combined in Seagoville sub­
district (Pet. App. 119a).



47

the five integrated subdistricts, the court of appeals 
again directed the district court “ to evaluate the 
feasibility of adopting the Swann desegregation tools 
for these schools, and to reevaluate the effectiveness 
of the magnet school concept” (Pet. App. 138a; foot­
note omitted). Mindful of the generalized nature of 
the findings in the opinion before it, the court of 
appeals stressed (ibid.) that “ [ i ] f  the district court 
determines that the utilization of pairing, cluster­
ing, or the other desegregation tools is not prac­
ticable in the DISD, then the district court must 
make specific findings to that effect.”  In view of the 
district court’s failure to make the findings necessary 
to support the conclusion that desegregation of the 
high schools throughout the DISD was not practical, 
this portion of the remand order was also fully justi­
fied.

2. Finally, the district court observed (Pet. App. 
32a) that Superintendent Estes had testified that 
children in grades K through 3 should be allowed to 
attend their neighborhood schools because they “had 
not matured sufficiently to cope with the problems of 
safety and fatigue associated with significant trans­
portation.”  The court held (ibid.) that “ this conclu­
sion is sound, in terms of age, health, and safety of 
children in grades K-3,”  and accordingly the court 
excluded those grades from its desegregation plan.

In making this generalized finding, the district 
court took no account of the fact that some of the 
elementary attendance zones in the DISD were quite 
large and some pupils were already being trans-



48

ported (II Tr. 452 (1971)). Nor did the district 
court consider the possibility of using pairing and 
clustering and allowing the transportation of stu­
dents in grades K through 3, but placing stricter 
limitations on travel time for children in the lower 
grades. And the record included no time and distance 
studies showing that desegregation of students in 
grades K-3 would be impractical if  travel times were 
carefully limited because of the students’ age.

The district court’s plan left intact 53 elementary 
schools in which grades K through 3 were in excess 
of 90% Anglo or 90% minority. This group includes 
21 schools outside East Oak Cliff that have had an 
enrollment of black students, or of black and Mexican- 
American students, in excess of 90% since 1966-1967, 
the first year for which the DISD supplied enroll­
ment data by race.43 Since the district court’s general 
findings were insufficient to show that it would not 
be practical to desegregate some or all of these one- 
race elementary schools, the court of appeals’ remand 
for reconsideration and more specific findings as to 
these schools was appropriate.

C. The use of student transportation

The Curry petitioners contend (Curry Br. 31-49) 
that the district court erred in approving the use of 
student transportation (or “mandatory busing” ), and 
that the court of appeals compounded this error by 
remanding the case for consideration of techniques

43 See note 19, supra.



49

that would require still more student transportation. 
Both they and the DISD argue that busing encour­
ages white flight, thereby increasing racial isolation, 
and does not improve academic achievement on the 
part of minority students.44 Respondents introduced 
substantial evidence controverting the Curry petition­
ers’ claims, including evidence that student transpor­
tation does not have an adverse educational impact 
(IX  Tr. 290-291 (1976) (testimony of Dr. E vans); 
IX Tr. 354-355 (1976) (testimony of Dr. Feagin)).

The district court properly declined (Pet. App. 34a 
n.50) to resolve the so-called “battle of the socio­
logical experts,”  observing that Brown v. Board of 
Education, supra, 349 U.S. at 300, establishes that 
“ the vitality of these constitutional principles cannot 
be allowed to yield simply because of disagreement

44 The Curry petitioners also argue (Curry Br. 31) that the 
Equal Educational Opportunities Act of 1974, 20 U.S.C. 
1701 et seq., “prohibit[s] [the] imposition of busing as a 
so-called remedial action to attain racial balances in schools.” 
The Equal Educational Opportunities Act does provide that 
“ [t]he failure of an educational agency to attain a balance, 
on the basis of race * * * of students among its schools shall 
not constitute a denial of equal educational opportunity, or 
equal protection of the laws,” 20 U.S.C. 1704, but the Act does 
not relieve school officials of their duty to convert a dual sys­
tem—with separate schools for white and black students— 
into a unitary system. To the contrary, Section 204 of the 
Act, 20 U.S.C. 1703, provides that “ [n]o State shall deny 
equal educational opportunity to an individual on account of 
his or her race * * *, by— * * * (b) the failure of an educa­
tional agency which has formerly practiced such deliberate 
segregation to take affirmative steps, consistent with part 4 
of this subchapter, to remove the vestiges of a dual school 
system.”



with them.” The district court also recognized (Pet. 
App. 34a n.50) that this Court’s prior opinions re­
quire the adoption of “ the plan which promises real­
istically to be most effective.” See United States v. 
Scotland Neck City Board of Education, 407 U.S. 
484,491 (1972).

Despite the district court’s hope that the magnet 
schools would be an effective means of desegregation, 
in 1979, three years after adoption of the district 
court’s plan, less than 10% of the high school students 
in the DISD attended magnet schools (1979 DISD 
Keport to the District Court). Since the portions of 
the district court’s plan that did not include student 
reassignments were not achieving desegregation, the 
court of appeals properly required the district court 
to reassess the effectiveness of magnet schools and to 
consider the feasibility of using techniques, including 
student transportation, that had been effective in 
many other cases to convert dual school systems to 
unitary systems free of the vestiges of state-imposed 
segregation. Since Swann this Court has consistently 
approved the district courts’ use of student transpor­
tation as one tool to achieve desegregation when “ a 
constitutional violation of sufficient magnitude has 
been found,” Columbus Board of Education, supra, 
slip op. 2 (Burger, C.J., concurring), and it should 
continue to do so unless the parties propose other 
means that will achieve as much or more desegrega­
tion. Petitioners have failed to do so here.

Moreover, petitioners’ attack on the use of busing 
as a remedy is premature where, as here, no final 
order has been approved and the degree of student



51
transportation that will be required has not yet been 
determined.

The Brinegar petitioners urge (Brinegar Br. 35- 
41) that the plan ultimately adopted by the district 
court should not require student reassignments and 
transportation in the residentially integrated area 
where they reside. This contention is also premature, 
since petitioners themselves concede (Brinegar Br. 
36) that the district court has to date attempted to 
leave neighborhood schools intact in residentially in­
tegrated areas. Moreover, the court of appeals’ re­
mand does not jeopardize the continued existence of 
these neighborhood schools so long as the DISD im­
plements a plan that effectively eliminates the re­
maining vestiges of the dual system where those 
vestiges still exist.

CONCLUSION
The judgment of the court of appeals should be 

affirmed.

Respectfully submitted.

W ade H. McCree, Jr.
Solicitor General

Drew S. Days, III
Assistant Attorney General

Lawrence G. W allace 
Deputy Solicitor General

Sara Sun Beale
Assistant to the Solicitor General

Brian K. Landsberg
Mildred M. Matesich 

A ugust 1979 Attorneys
☆ . GOVERNMENT PRINTING OFFICE; 1 9 7 9 2 9 9 5 2 5  5 8