Pasadena City Board of Education v. Spangler Brief for the United States

    N o .  7 5 -1 6 4

<|« the fl̂ urt of ife Itititat States
October Term, 1975

P asadena City B oard of Education, et al.,
PETITIONERS

,'TI;

; Nancy A nne Spangler, et al., and 
U nited States of A merica

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

BRIEF FOR THE UNITED STATES

R O B E R T  H . BO RK ,
Solicitor General, 

J. S T A N L E Y  P O T T IN G E R ,
Assistant Attorney General, 

L A W R E N C E  G. W A L L A C E ,
Deputy Solicitor General, 

F R A N K  H. EAST E R B R O O K .
Assistant to the Solicitor General, 

B R IA N  K. LA N D SB E R G ,
N E A L  J. TO N K EN ,

Attorneys,
Department of Justice. 

Washington, D.C..205SO.



I N D E X

Opinions below____________ _____________________________
Jurisdiction_____________________________________________
Questions presented__________________.__ _________ ____
Constitutional provisions and statutes involved——___ ;_-
Statement:     _________ _____________________ , - ___ -  

A. Procedural history__________ __ ____________ _____
1. The desegregation proceedings__________ ■—
2. The present proceedings_:_________ ______ _

B. F acts_______ - ___________________________________
1. The district court’s 1970 findings of fact__
2. The Pasadena Plan and its implementation-
3. The proposed “ Integrated Zone/Educa-

tional Alternatives Plan”_- _____________
C. The district court’s opinion____________ - _________
D. The court of appeals’ opinions_______________ _____

Summary o f argument________________ _____________ ___J.
Argument: _- - __________ _____________________ __ A

I. The district court did not abuse its discretion by 
declining to dissolve its injunction, terminate the 
Pasadena Plan, or implement the proposed alter­
native plan______ ________ _____ ___ __________ „■

A. Most of petitioners’ arguments are not
properly presented in the present posture 
o f this case____________________________ .

B. The district court is required to retain juris­
diction in a desegregation case until the 
effects o f segregation have been elimi­
nated and further discriminatory acts are 
not a foreseeable possibility-__________

C. Continuous and active supervision by the
district court is necessary until it can de­
termine with Confidence that the vestiges 
o f segregation have been eliininated___

D. The district court properly rejected peti­
tioners’ alternative plan— :_____

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II

Argument—Continued
II. A  desegregation case in which the United States v&ge

is a plaintiff cannot become moot__ __________ 65
Conclusion___________ ________________ ___________________  68
Appendix ____________________________________ _________  1a

CITATIONS
Cases:

Alexander v. Holmes County Board of Education,
396 U S . 19____________________________________  42, 52, 68

Arvizu v. Waco Independent School District, 495 F. 2d,
499, modified, 496 F. 2d 1309___________________ _ 63

Board of School Commissioners y. Jacobs, 420 US'.
128_______________________________________   ___ 67

Brooks v. County School Board, 324 F. 2d 303________  45
Brown v. Board of Education, 347 U S . 483 {Brown

I )  ------------------------------------------ 1— ------------  39,42, 54, 65
Brown v. Board of Education, 349 U S . 294 (Brown

I I )  -----------------------------------------------------  40, 42, 57, 65, 68
Brunson v. Board of Tmstees, 429 F. 2d 820_________ __ 55
Calhoun v. Cook, 451 F. 2d 583______________________  56
Calhoun v. Cook, 522 F. 2d 717, rehearing denied,

525 F. 2d 1203____________________ ______________ 38
Garter v. West Feliciana Parish School Board, 396

U S . 290__________________________________   .__ 42
Chrysler Coip. v. United States, 316 U S . 556_____  47
Comstock v. Group of Institutional Investors, 335 U S .

211 --------------------------------------------------------  54
Davis v. School Commissioners, 402 U.S. 33_______  39,47, 55
Dombrowski v. Pfister, 380 U S . 479_____________ ____  47
Goldberg v. Ross, 300 F. 2d 151______________________  45
Goss v. Board of Education, 373 U S . 683____________  63
Green v. County School Board, 391 U S . 430__________  28,

36, 42, 46, 47, 52, 59, 60, 61, 63, 68
Hart v. Community School Board, 512 F. 2d 37______ 62, 63
Keyes v. School District No. 1, Denver, Colorado, 413 

U.S. 189 on remand, 521 F. 2d 465, certiorari denied,
No. 75-701, January 12, 1976------------------------  28, 36,53,63

Lee v. Macon County Board of Education, 455 F. 2d
978 ---------------------------------------------------------------------- - 56

Louisiana v. United States, 380 U S . 145_____________  41



I l l

Cases— Continued
Lubben v. Selective Service System Local Board No. £7, page

453 F. 2d 645— ____________________ - _____________ 46,47
Mapp v. Board of Education, 525 F. 2d 169__________  38
Mays v. Sarasota Coun ty Board of Public Instruction,

M.D. Fla., No. 4242, decided September 3,1975_____ 43
Millilcen v. Bradley, 418 IJ.S. 717_____________  30-31,46, 54
Monroe v. Board of Commissioners, 391 IJ.S. 450_____ 55,

59, 60, 63, 64
Morgan v. Kerrigan, C.A. 1, No. 75-1184, decided

January 14, 1976_______________________________ 38, 55, 63
Northcross v. Board of Education, 412 IJ.S. 427_____ 68
Raney v. Board of Education, 391 IJ.S. 443____ 42, 52, 60, 68
Rizzo v. Goode, No. 74-942, decided January 21,1976 46, 56
Rogers v. / W .  382 IJ.S. 198________________________  ' 68
Steele v. Board of Public Instruction, 448 F. 2d 767:__ . 57
Swann v. Charlotte-Mecldenburg Board of Education,

402 U.S. 1__ ______________________ __________ :__ passim-
System Federation v. Wright, 364 IJ.S. 642__________  46
Tobin v. Alma Mills, 192 F. 2d 133  ________________  45
United States v. Crescent Amusement Co., 323 U.S.

173— —_____________________________ ____ 50-51,58-59
United States v. Montgomery County Board of Educo

tion, 395 U.S. 225-------------------------------------------------- 51
United States v. Scotland Neck Board of Education.

407 U.S. 484______________ ______________________ _ 55
United States v. Swift & Co., 286 U.S. 106_ 31,46,47, 54, 56
United States v. Texas (San Felipe Del Rio Consoli­

dated ISD), 509 F. 2d 192------------ -------------------------- 56
United: Stales v. Texas Education Agency (Austin

ISD ), 467 F. 2d 848_______________________________ 63
United States r. W. T. Grant Co., 345 U.S. 629__ 30,44-45,67
Wailing v. IlamiscTifeger Corp., 242 F. 2d 712__ _____  45
Wirtz y . Graham Transfer and Storage Co., 322 F. 2d

650 __________     45
Wright v. Board of Public Instruction, 445 F. 2d

1397 _______          57
Youngblood v. Board of Public Instruction, 448 F. 2d 

770 __________    56-57'



IV

Constitution and statutes:
Constitution o f the United States, Fourteenth Amend- Fnge

ment — _----------------------------------------------- _ 2,29,36,40, 64
Civil Rights Act o f 1964, Title IX , Section 902,78 Stat.

266, 42 U.S.C. 2000h-2____________________ 3,33, 65, 66, 67
Education Amendments o f 1974, Pub. L. 93-380, Title 

II , 88 Stat. 514, et seq., 20 U.S.C. (Supp. IV ) 1701, et 
seq :

20 U.S.C. (Supp. IV ) 1706__________________1___ 66
20 U.S.C. (Supp. IV ) 1707______________________  . 38
20 U.S.C. (Supp. IV ) 1718__:__________ _ 48, 56

42 U.S.C. 2000c(b)__________________________________  67
42 U.S.C. 2000c-6_________ ._________________________  67

Miscellaneous:
Bell, Wailing on the Promise of Brown, 39 L. and Con-

temp. Prob. 341 (1975)_________________________ .__ 65
Comment, Dissolution and Modification of Federal 

Decrees on Grounds of Change of Attitude, 25 U.
Chi. L. Rev. 659 (1958)___________ _________________  45

Comment, School Desegregation A fter Swann: A  
Theory of Government Responsibility, 39 U. Chi. L.
Rev. 421 (1972) ___________________________________  39

Fiss, The Jurisprudence of Busing, 39 L. and Contemp.
Prob. 194 (1975)_____________ _'_______________ 55

Goodman, De Facto School Segregation: A  Constitu­
tional and Empirical Analysis, 60 Cal. L. Rev. 275
(1972)----------------------------------     39

Mills, The Great School Bus Controversy (1973)____ 39
Note, The Mootness Doctrine in the Supreme Court, 88

Harv. L. Rev. 373 (1974)__________________ _____   67
Pettigrew, Racial Discrimination in the United States

(1975)----------------------------     39
St. John, School Desegregation Outcomes for Children

(1975) ____-----------------------------   39
S. Conf. Rep. No. 93-1026,93d Cong., 2d Sess. (1974) __ 48
Symposium, The Courts, Social Science, and School 

Desegregation, 39 L. and Contemp. Prob. 1-432
(1975) ____________-----------------------------------------____ 39

Tomlinson, Modification and Dissolution of Adminis­
trative Orders and Injunctions, 31 Md. L. Rev. 312 
(1971) 45



Jit litt $tt$mttt (Jfowvt »f itxt Kniicit pities
October Term, 1975

No. 75-164

P asadena City B oard of Education, et al., 
PETITIONERS 

V.

Nancy A nne Spangler, et al., and 
U nited States of A merica

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

BRIEF FOR THE UNITED STATES

O PIN IO N S B E L O W

The opinions of the court of appeals (Pet. App. 
A1-A33) are reported at 519 P. 2d 430. The opinion 
and order of the district court (App. 452-465) is 
reported at 375 P. Supp. 1304. Other opinions in this 
litigation appear at 427 P. 2d 1352, 415 F. 2d 1242, 384 
P. Supp. 846, and 311 P. Supp. 501 (App. 3-4, 97- 
133).

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2

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

Tlie judgment of the court of aq)peals was entered 
on May 5, 1975. The petition for a writ of certiorari 
was filed on July 30, 1975, and was granted on No­
vember 11, 1975. The jurisdiction of this Court rests 
upon 28 U.S.C. 1254(1).

QUESTIONS P R E SE N TE D

1. Whether a school system automatically becomes a 
“unitary school system’ ’ immediately upon compliance 
with a desegregation plan developed by order of the 
district court.

2. Whether the district court’s injunctive super­
vision of the pertinent activities of a school system 
that has engaged in racial discrimination should be 
lifted before the school system has established that it 
has been purged of the effects of that discrimination.

3. Whether a desegregation case in which the 
United States has intervened as a plaintiff becomes 
moot when the individual plaintiffs leave the school 
system.

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

The Fourteenth Amendment to the United States 
Constitution provides in relevant part:

No State shall * * * deny to any person 
within its jurisdiction the equal protection 
of the laws.

The relevant statutory provisions are set out at 
Pet. Br. A1-A18.



3
S T A T E M E N T

A. PROCEDURAL HISTORY

1. THE DESEGREGATION PROCEEDINGS

On August 28, 1968, several students in the pub­
lic schools of Pasadena, California, and their par­
ents filed a class action complaint seeking injunctive 
relief from alleged unconstitutional racial segrega­
tion in the district’s high schools. On November 19, 
1968, the United States moved to intervene in the 
case pursuant to Title IN, Section 902, of the Civil 
Eights Act of 1964, 78 Stat. 266, 42 U.S.C. 2G00h-2.1 
The court granted the motion on December 6, 1968.1 2

The trial commenced on January 6, 1970, and the 
court heard testimony for nine clays. On January 23, 
1970, the district court entered a judgment holding 
that the school system was segregated as a result of 
the intentional acts and omissions of the defendants. 
It enjoined racial discrimination throughout the school 
district and directed the defendants to develop a de­

1 The compaint In intervention “brought into the case the entire 
Pasadena Public School system.”  415 F. 2d at 1243. It asked the 
district court to enjoin further discriminatory practices at all 
schools and to order the school board to develop and implement a 
plan that would eliminate the effects o f past discrimination. Ibid.

2 On February 14, 1969, the district court granted the school
board’s motion to strike the allegations concerning elementary, 
junior high, and special schools. On August 28, 1969, the court 
o f appeals reversed and remanded with instructions to reinstate 
the allegations. 415 F. 2d at 1248. It held that “ the district court 
erroneously concluded that the UnitedJjtates was limited in the 
relief it could obtain, to the relief souht bv the plaintiffs”  (id. 
at 1247). A



4

segregation plan under which no school would enroll 
“ a majority of any minority students,” and under 
which teachers and professional staff members would 
be hired, assigned, and promoted on a non-discrimina- 
tory basis (App. 3-4). An extensive opinion (App. 
97-133) explaining the court’s decision was released 
later.

The school board voted not to appeal the judgment 
(App. 271-272) and, on February 18, 1970, filed its 
proposed plan, the “Pasadena Plan” (App. 5-57).3 On 
March 2, 1970, parents of other children attending the 
Pasadena public schools sought to intervene for the 
purpose of appealing (App. 453). The district court 
denied the motion on March 4, 1970, and the court of 
appeals affirmed. 427 F. 2d 1352, certiorari denied, 402 
U S . 943.

On March 10, 1970, the district court approved the 
Pasadena Plan (App. 96).4

2 . TH E PRESENT PROCEEDINGS

On January 15, 1974, the school board filed a mo­
tion to dissolve the district court’s injunction or to 
implement an alternative plan (App. 232-233). On 
May 3, 1974, after a comprehensive hearing on the

3 Two weeks later the school board submitted an amendment 
designed to reduce costs and to achieve more contiguous attendance 
areas and better proximity to school facilities (see App. 58-95).

4 Certain amendments were proposed by the school board. After 
the parties had agreed upon them, the district court approved 
them in August 1970 (App. 134-136).



motion, the court denied the motion (App. 452-459).5 
The district court denied petitioners’ motion for a 
stay pending appeal.6 On May 5, 1975, the court of 
appeals affirmed the judgment of the district court 
(Pet. App. A1-A33).

B. PACTS

The Pasadena Unified School District includes the 
city of Pasadena, the town of Altadena, the city of 
Sierra Madre and portions of Los Angeles County 
(App. 98). At its broadest points, the district meas­
ures approximately 9.37 miles from east to west and 
6.31 miles from north to south (see the map in App. 
Rear Folio). As of October 5, 1973, its thirty-three 
regular schools 7 and eight “ special”  schools enrolled 
25,414 students, of tvliom 11,188 (44 percent) were 
white and 10,155 (40 percent) were black. 3,087

5 Evidence presented at the hearing showed that petitioners had 
appointed five persons to administrative positions in July 1973 
without following the procedures set forth in the Pasadena Plan. 
Compare App. 51A-518 with App. 49-56. On August 12, 1974, the 
court adjudged petitioners in contempt for having violated the 
Plan in making those appointments. 384 F. Supp. 846. Petitioners’ 
appeal from that judgment was heard by the court of appeals on 
November 5,1975.

0 We are lodging with the Clerk o f this Court copies o f petition­
ers’ June 28,1974, motion for stay; of their memorandum of points 
and authorities and affidavits in support thereof; and o f our 
J'illy 12,1974, response and supporting memorandum.

* Fourteen “primary” (grades K -3 ) schools; eleven “ elemen­
tary” (grades 4-6) schools; four junior high schools (grades 7-8) ; 
and four high schools (App. 413-417).



6

students of Spanish origin made up the majority 
of the remaining 16 percent (App. 417).

1. THE DISTRICT COURT’S 19 70  FINDINGS OF FACT

The district court found that the Pasadena school 
system had been unconstitutionally segregated for 
fifteen years because of the acts and omissions of the 
school board (App. 97-126). It expressed the appli­
cable legal standard as follows (App. 128) :

A  violation of the Fourteenth Amendment 
has occurred when public school officials have 
made a series of educational policy decisions 
which were based wholly or in part on consid­
eration of the race of students or teachers and 
which have contributed to increasing racial 
segregation^] in the public school system.

The court observed that, in the preceding fifteen 
years, Pasadena had experienced a high degree of ra­
cial separation, especially in its elementary schools.8 9

8 Although the court used the terms “ racial segregation”  and 
“ racial imbalance” interchangeably in its findings and conclusions 
(App. 99, n. 4), the findings and conclusions expressly recognize 
a distinction between ude facto or adventitious segregation” and 
the situation presented this case, in which “ the existing segrega­
tion o f pupils and teachers is inseparable from the discriminatory 
practices and policies of the defendants” (App. 132).

9 In each of those years, more than 90 percent o f the district’s 
white elementary-age children had attended majority-white 
schools, while more than '50 percent o f its black elementary-age 
children had attended majority-black schools (App. 100). During 
the 1969-1970 school year, 85 percent o f the district’s black elemen­
tary-age children attended its eight majority-black elementary 
schools, and 93 percent o f its white elementary-age children at­
tended the remaining elementary schools (App. 99);  o f the 30,622 
students then enrolled, 9,173 (30 percent) were black (App. 98);  
but thirteen o f the district’s elementary schools were less than five



7

The United States presented extensive evidence, and 
the district court made detailed findings, that this sep­
aration had resulted, in large measure, from a series 
of deliberate actions by the school board.

a. The court described a series of racial gerryman­
ders and manipulations of student assignments de­
signed to avoid assignment of white students to near­
by majority-black schools and designed to confine most 
blacks to such schools (App. 100-109). The court 
found, for example, that although the school board 
often had changed attendance zones in order to com­
bine areas of predominantly black attendance (App. 
102-103), it had never since 1954 “ made an attendance 
area change that involved assigning students from a 
majority white residential area to a majority black 
school”  (App. 100).

b. The court gave examples of the transportation 
of white students past under-enrolled majority-black 
schools to more distant (and often overcrowded) ma­
jority white schools (App. 100-104, 109, 122-123).

c. The court found that the school board had 
“ granted transfers that they knew or should have 
known were wholly or at least in part motivated by 
racial considerations, including baseless transfers that 
had the effect of intensifying racial segregation in the 
Pasadena schools” (Ajjp. 125).10

percent black in enrollment, two were more than 90 percent black, 
three were more than 80 percent black, two were more than 60 per­
cent black, and another was 59 percent black (App. 99).

10 The school board also experimented with a variety of “ open 
enrollment” and “ free choice” plans of student assignment (App.



8

cl. The court found that the school board had a 
“ policy and practice of assigning most black teachers 
to black schools” (App. 116) and that it also dis­
criminated in the hiring of black teachers and admin­
istrators (App. 112-118). Some identifiably white 
schools had never been assigned a black teacher or 
administrator (App. 112). Other schools had been 
assigned only one. The court found that the school 
system had hired only one black nurse, who was as­
signed to predominantly black schools (App. 114). 
Officials assigned black substitute teachers to majority- 
black schools and allowed white substitute teachers 
to avoid teaching at identifiably black schools (App. 
113-114), and they assigned less experienced teachers 
with less education to majority-black schools more fre­
quently than to majority-white schools (App. 114).

e. The court found that the school board planned 
the construction of new facilities, additions, to exist­
ing facilities, and the placement of transportable, class­
rooms in a manner that contributed to racial segre­
gation (App. 103, 119-123). The school board selected 
both the location and the capacity of new schools in a 
manner calculated to ensure that each new school

105-106, 150, 151, 153-163, 113-197, 198-216, 217-220, 222-223, 
225-231) that, “ until 1968, permitted a small number of both 
black and white students to escape Negro schools” (App, 106). 
None of these experiments diminished the racial separation that 
had been created, in part, by other school board actions (App. 106, 
137-149, 165-172, 193-195, 197, 198-200, 209-216, 221-227). Nor 
did a “ free choice”  summer school experiment in 1973 (App. 
510-511).



9

would be racially imbalanced at its opening. Several 
of these schools were abnormally small, apparently in 
order to serve only a single, racially-identifiable 
neighborhood (App. 120). When a small school in a 
black neighborhood became overcrowded, the school 
board added several transportable classrooms; a 
nearby school with overwhelmingly white enrollment 
was not used to capacity (App. 103, 121-122). The 
same pattern was followed in building permanent 
additions to schools in black neighborhoods (App. 
121).

2. THE PASADENA PLAN AND ITS IMPLEM ENTATION

a. The Pasadena Plan “ represents the work and 
thinking of the Pasadena City Board of Educa­
tion, the superintendent, and the [school district] 
staff under his direction” (App. 9). Its student as­
signment provisions were designed to comply with 
the district court’s mandate that no school have an 
enrollment of which any one minority group consti­
tutes the majority (App. 9).11

The Plan divides the elementary schools of the 
district into four “ ethnically balanced areas,”  each 
served by a number of “primary”  (grades kinder­
garten (“K ” ) to 8) and “upper grade” (grades 4-6) 
schools (App. 9-10). The Plan reorganized Pasa­
dena’s traditional elementary (K -6) schools into 
separate K -3 and 4—6 facilities in order to enable the 11

11 The Plan also includes detailed procedures for the hiring and 
promotion of teachers and administrators (App. 47-57).



10

school system to “ provide specialization which is im­
portant to guarantee improvement in basic skills.” 12 
The reorganization also facilitates retention of “ neigh­
borhood” schools by allowing students to “ walk to 
a nearby school for part of their elementary school­
ing and be transported with students in their neigh­
borhoods to another school” for the other part (App. 
10). The district’s junior high schools serve grades 
7 and 8 (App. 27); its senior high schools serve 
grades 9-12 (App. 134).

The Plan allows students to transfer from their 
assigned schools to other schools in situations of “ur­
gent hardship” involving “ family circumstances and/ 
or medical, safety, psychological, or curriculum con­
siderations”  (App. 35). The school district provides 
transportation of “ all pupils attending schools outside 
their normal areas” (App. 45). The Plan contem­
plated the need for continuing evaluation, modifica­
tions and adjustments in attendance zones and stu­
dent assignments in order to achieve and maintain 
suecesful integration (App. 9, 10, 27, 37).

b. Pasadena’s white enrollment had been declining 
for many years (App. 347-348, 379, 421, 600, 601).13

12 App. 10. Superintendent Cortines, responding to questions at 
a public meeting o f the school board on January 15, 1974, stated 
that the majority o f his administrative staff preferred the K-3, 
4-6 grade structure (App. 584).

13 In 1984, for example, 21,695 white students were enrolled in 
the district’s public schools; in 1986, 20,958; in 1968, 19,008; and 
in 1969,17,859. In 1970, the year in which the Pasadena Plan was 
implemented, the number was 15,647. White enrollment continued 
to decline after 1970 but at a steadily decreasing rate. See App. 421.



11

The school board submitted evidence that this decline 
accelerated during the twelve-month period prior to 
implementation of the Pasadena Plan (App. 421, 601) 
and asked the court to infer that the pending imple­
mentation of the Plan was the sole cause of this.14

The United States presented evidence showing that 
the decline in white enrollment was not necessarily at­
tributable to the school system’s desegregation efforts 
(App. 386-387, 393, 531-543).15 We presented a study 
of ninety-one California school districts, including de­
segregating systems, which revealed that “ those dis­
tricts that decline[d] the most in white enrollment 
were districts that were becoming more segregated 
rather than desegregated”  (App. 561).

Evidence introduced by the plaintiffs and the United 
States disclosed that many factors may have con­
tributed to Pasadena’s loss of white students (App. 
377-379, 505). These factors included the declining 
birth rate and an economic retrenchment that had di­
minished the availability of employment in the Pasa­
dena area. The evidence indicated that some of the loss 
in the months prior to implementation of the Pasa­
dena Plan could have been anticipated (App. 393, 
540-542) because the trend of declining white enroll­
ment in Pasadena had closely paralleled the Califor­
nia statewide trend for several years (App. 393, 505),

14 See Tr. Feb. 28, 1974, at pp. 493-541.
“ Henry Marclieschi, then president of the school board, stated 

at the December 18, 1973, meeting of the board that “ it would be 
folly to blame all of this drop [in white enrollment between 1970 
and 1973] to [si'c] the Pasadena Plan” (App. 298).



12

and that school district employees who developed the 
Pasadena Plan were aware of the trend at that time, 
in fact anticipated its continuation under the Plan, 
and took account of it in preparing the Plan (App. 
508-510).16 In addition, evidence demonstrated that 
following implementation of the Pasadena Plan the 
district’s racial composition began to stabilize (App. 
325, 380).17

The district court resolved the conflict in the evi­
dence by concluding that there was no proof that 
any “ white flight” was attributable to the Plan (App. 
454). The court of appeals did not disturb these find­
ings. See Pet. App. A8 (opinion of Ely, J . ) ; id. 
at A26 (Wallace, J., dissenting).

In subsequent proceedings petitioners have pre­
sented evidence “ that if  the school district is per­
mitted to maintain the status quo in the assignment 
of students under the Pasadena Plan, the ethnic 
changes that are occurring at the present time 
throughout the school district will stabilize and the 
ethnic imbalance now being experienced in grades 4 
through 8 will disappear” (June 28, 1974, Affidavit

10 The school board acknowledged in the Pasadena Plan itself 
the district’s history of white enrollment decline and black enroll­
ment increase (App. 8) ;  the Plan provided that “ minor modifica­
tions and adjustments”  ih student assignments might be necessary 
in the future (App. 9).

17 See also App. 476 (former school board president Henry 
Marcheschi testifying that “ what we are experiencing now is no 
longer a phenomenon o f white flight but one o f white boycott” ).



13

of Peter F. Hagen, at p. 4).18 This prediction now 
has been supported by testimony given during pro­
ceedings subsequent to the decision of the court of 
appeals. During a hearing on September 15, 1975, 
concerning the conversion of a “ regular”  K -3 school 
to a “ fundamental”  K -3 school, school board presi­
dent Dr. Henry S. Myers, Jr., testified (Sept. 15, 
1975, Tr. 16) :

We had a large increase in enrollment last 
year, about 600 more students than we had the 
year before. This year I have done a lot of 
preliminary checking, and all of our principals 
report significant increases of enrollment—pre­
enrollment, pre-to-school opening. It is entirely 
possible that we have reversed the flight, the 
white flight, if you will, from Pasadena and 
have a significant amount new enrollment.

18 In affidavits dated December 19, 1973, and submitted in sup­
port o f petitioners’ January 15, 1974, motion for relief, Mr. Mar­
cheschi and Superintendent Ramon C. Cortines stated that de­
creasing white enrollments and increasing minority enrollments 
would make it a “ practical impossibility” to comply with the Pasa­
dena Plan in the future (App. 236, 237). In an affidavit filed by 
petitioners in support o f their June 28, 1974, motion for a stay of 
the district court’s judgment, however, Peter F. Hagen, the dis­
trict’s administrative director for planning, research and develop­
ment, directly contradicted the Marcheschi and Cortines affidavits. 
Based on his post-trial analysis o f demographic and enrollment 
data compiled by district employees, Mr. Hagen predicted that 
trends evident as of June 28, 1974, would make full compliance 
with the Pasadena Plan progressively easier. Superintendent Cor­
tines subscribed to that prediction in his own supporting affidavit 
of the same date, and both he and Mr. Marcheschi testified, at trial, 
that full compliance with the Pasadena Plan can be achieved 
(App. 468-M69, 473). The June 28, 1974, Hagen and Cortines 
affidavits have been lodged with the Clerk of this Court.

201-03S— 76- -2



14

See also id. at 146 (Peter Hagen, the school dis­
trict’s administrative director of planning, research 
and development, testifying that as of February 1975 
Pasadena’s enrollment in grades K -3 was only 39.1 
percent black, and in grades 4-6 was 43.8 percent).

c. Petitioners offered evidence in an effort to estab­
lish that the Pasadena Plan had been educationally 
counterproductive. They attempted to show that the 
performance of the district’s students on certain 
standardized tests had declined and that the perform­
ance of its black students had not improved vis-a-vis 
that of their white counterparts in either the school 
district or the Nation as a whole (App. 520-523; Pet. 
Exhs. AC, AK, AL, AM, AN, AO ).19

The United States presented evidence tending to 
show that the plan has been an educational success 
in several ways. The learning environment of the dis­
trict’s schools, as measured by student self-esteem, 
attitude toward school, anxiety, and other criteria, 
has been stable (App. 389-391, 543-549; U.S. 
Exh. 24) .20 Serious disciplinary problems have been 
few (App. 383-385). And, under the Plan, the dis­
trict has been able successfully to implement a variety 
of innovative educational programs and “ alterna­
tives,” including special programs at its regular

19 “ Pet. Exh.” refers to exhibits introduced by petitioners at the 
February-March 1974 hearing of this case. “U.S. Exh.” refers to 
exhibits introduced by the United States at that hearing.

20 Indeed, the study conducted by our expert witness disclosed 
a significant decrease in the anxiety level o f black children be­
tween 1972 and 1973 (App. 546-547).



15

schools and the creation of special schools (App. 
841-346, 356-375, 382, 512-513, 525, 527-528).21

We also presented expert testimony on academic 
achievement. Our expert analyzed petitioners’ achieve­
ment charts and concluded that the rate of black and 
white students’ academic growth disclosed by those 
charts properly should be viewed as a net gain for 
black students, an indication of academic success not 
evident prior to desegregation (App. 557-560, 564- 
565). In addition, the expert pointed out that the dis­
trict’s white students have suffered no academic set­
back, as compared with national norms, during the 
desegregation process (App. 564-566).

The district court was unpersuaded by petitioners’ 
effort to demonstrate that the Pasadena Plan has been 
an educational failure (App. 458), and none of the 
judges of the court of appeals found any error in the 
district court’s resolution of the issue.

The district court’s resolution of this dispute has 
been supported by the testimony of Dr. Myers in a 
subsequent hearing. Dr. Myers testified (Sept. 15, 
1975, Tr. 17-18, 33) :

We believe that the successes of the funda­
mental school, the spectacular upturn in test 
scores, particularly for black students and 
others as well, but the narrowing of the gap, 
the disparity between the Anglos and the blacks 
which, in our opinion, is the answer to the seg­
regation problem; the results have been so spec-

21 Superintendent Cortines testified that such innovations can 
continue, and the kinds of “ alternatives” envisioned by the Alter­
native Plan (see App. 210, 213-214) can be implemented, under 
the Pasadena Plan (App. 511-512, 527-529).



16

taeular in narrowing this gap in keeping- the 
black students’ scores from dropping off that 
we just think that it is vital that we get the 
black community more involved in fundamental 
basic-type education.

*  *  *  *  *

We reversed our test scores dramatically 
after a horrible decline for the last five or six 
years, a dramatic upturn in all areas, not only 
the fundamental schools, but because of the 
competition that the fundamental school is giv­
ing the regular schools, their scores turned up 
as well.

d. The Plan has succeeded as an instrument of de­
segregation (see App. 403-409, 416-417, 441-447). The 
school board has not, however, entirely succeeded in 
complying with the literal terms of the district court’s 
order that there be “ no majority of any minority” in 
any school. During the 1971-1972 school year the black 
enrollment at Loma Alta school exceeded 50 percent of 
that school’s total enrollment (App. 445, 585-586). By 
October 1972 four schools (Edison, Franklin, Loma 
Alta, and Sierra Mesa) had black enrollments in ex­
cess of 50 percent of their respective total enrollments 
(App. 403, 404, 406, 407, 585-586). A  fifth school 
(Eliot Junior High) joined this group a year later 
(App. 417, 585-586). There has, therefore, been a 
slight deviation from the student assignment provi­
sions of the Plan and the 1970 order, as interpreted by 
the district court.22

22 The plaintiffs and the United States had not understood the 
decree to require continued adherence to the “no majority o f any 
minority”  provision (App. 268-269; see also Pet. App. A16, n. 4).



17

3. THE PROPOSED “ INTEGRATED ZONE/EDUCATIONAL ALTERNATIVES
p l a n ”

In a recall election of October 13, 1970, Mr. Henry 
Marcheschi and two other candidates for school board 
membership unsuccessfully attempted to unseat the 
three board members who had voted against appeal 
of the district court’s 1970 judgment (App. 453).

Mr. Marcheschi ultimately was elected to the board 
in the spring of 1971 (App. 471-472). He testified 
that “very early in [his] tenure as a board member”  
he began to develop alternatives to the Pasadena Plan 
(App. 474, 498). The first of the Marcheschi alterna­
tive proposals—“ The Hew Pasadena Plan: A  Recom­
mended Hew Approach to Achieve Voluntary Integra­
tion and Equality of Educational Opportunity in the 
Pasadena Unified School District”  (App. 422-434, 474, 
570-580)—was presented to the school board in the 
fall of 1971 (App. 376, 475). The second proposal— 
“neighborhood School/Integrated Zone Plan for 
Grades K -6 : A  Proposed Plan to Restore neighbor­
hood Schools [etc.]”  (App. 474-475, 587-599)—was 
presented on January 9, 1973 (App. 340, 475).

Both of these proposals were designed to create 
freedom of choice in student enrollment; they were an 
outgrowth of their author’s commitment to the neigh­
borhood school concept (see, e.g., App. 497) and of his 
belief that, although voluntary integration is desirable, 
racial separation in public education is preferable to 
desegregation compelled by court order (see App. 
480-484).



18

Petitioners Myers, Newton and Vetterli were elected 
to the school board on March 3, 1973 (App. 468) on a 
pledge to “ restor[e] neighborhood schools [and] elimi- 
nat[e] excessive educational experiments on our chil­
dren” (App. 283). Mr. Marcheschi became president 
of the board in July 1973 (App. 472).

On July 10, 1973, the school board, on the votes 
of petitioners Myers, Newton and Vetterli, voted to 
appoint three persons to administrative positions in 
the school system without following the staff recruit­
ment and selection procedures of the Pasadena Plan. 
This action has become the basis for a contempt 
citation by the district court (384 P. Supp. 846). 
Later in the same month, joined by Mr. Marcheschi, 
this majority appointed two persons to principal- 
ships without adhering to the Pasadena Plan’s pro­
cedures. For this, too, these petitioners have been 
held in contempt. See 384 F. Supp. at 847-851; App. 
514-518.23

The student enrollment plan that petitioners pro­
posed as a substitute for portions of the Pasadena 
P lan24 was primarily the work of Mr. Marcheschi 
(App. 473M74). He presented the Alternative Plan 
to the board on December 18, 1973 (App. 297) as a 
further development of his earlier proposals (App. 
479-480). The Alternative Plan, like Mr. Marcheschi’s 
earlier proposals, allows students to choose which

23 The district court’s judgment o f contempt is sub judice on 
appeal, having been argued on November 5,1975. Petitioners have 
conceded that they did not follow the plan’s procedures, but have 
argued that they were not obliged to follow them.

24 The proposed substitute, referred to as the “Alternative 
Plan,” is reproduced at App. 239-245.



19

school they will attend, and it was designed to facili­
tate the selection by students or their parents of neigh­
borhood schools.25 26

The Alternative Plan is limited to student enroll­
ments in elementary (K -6 ) schools (App. 241-242).20 
It would eliminate specific school attendance bound­
aries in favor of “ four racially and ethnically 
balanced zones * * * whose boundaries [would] coin­
cide with the four existing areas on which the pres­
ent Pasadena Plan is designed”  (App. 241). Stu­
dents would be permitted to attend any school within 
the zone of their residence; necessary transportation 
would be provided (App. 241). The present division 
of elementary schools into “primary” and “ upper 
grade”  schools would be replaced by the traditional 
K -6 organization, in order to “provide a sufficient 
number of school sites within each zone from which 
parents can choose the type of education most ap­
propriate for each of their children” (App. 239).

The Alternative Plan proposes the “ establishment 
of unique educational alternatives at each K -6 school 
site in addition to the ongoing traditional program 
being taught there” (App. 239). Parents could choose 
to place their children in either the regular or the 
“ unique alternative” program at their chosen school 
(see App. 485). Although it briefly describes some 
possible “ unique alternatives” (see App. 240, 243- 
244), the Alternative Plan is skeletal. It does not ex­

25 Both the Alternative Plan ( App. 239, 241, 242; cf. App. 299, 
355) and Mr. Marcheschi’s testimony (App. 479,481,482-484,488- 
490,497,500,502) make this clear.

26 The Pasadena Plan would be retained for grades 7-12.



20

plain, for example, what “ alternatives” would be 
offered, at what schools they would be offered, or 
whether each of the “ unique” programs ultimately 
offered by the district would be represented in each 
zone. Mr. Marcheschi testified that these decisions had 
not yet been made (App. 484-485).

Petitioners hope that the “ unique alternatives” will 
encourage voluntary integration by acting as “mag­
nets,” that is, by attracting students of varied back­
grounds from all parts of each zone (App. 239). 
Petitioners offered no evidence that this would in fact 
occur, however, and conceded that if parents and 
students select “ neighborhood” schools, it will not 
occur. The Alternative Plan acknowledges that “ the 
ethnic balance at some sites may be altered from what 
it is at present” (App. 2 4 1 );27 nothing in the Plan 
precludes schools from regaining their former racial 
identifiability. When schools become racially identifi­
able as a result of the operation of the Alternative 
Plan, it provides for part-time “ pairing” of “ sister 
schools” of divergent racial compositions. For one- 
half day each week, students could visit the “ sister 
school” to take advantage of any special programs at 
that school (App. 241).

The Alternative Plan does not establish what 
procedures wrould be followed to determine students’ 
initial school selections or what would be done in 
the event more students chose a particular school 
than that school could accommodate. Mr. Marcheschi

27 See also App. 299,481-488.



21

testified that “ the first priority for seats in [each] 
school would go to children who are in the neighbor­
hood served by that school and the priority would also 
extend equally to children whose race is in the minor­
ity in that particular school” (App. 479). He indi­
cated, however, that “ [t]here is no way * * * to 
anticipate” enrollments by race under the Alternative 
Plan, because parents’ choices of schools cannot be 
foreseen (App. 486-487, 492). He also acknowledged 
that school officials do not know how many white 
students would be attracted back to the school district 
under the proposed Alternative Plan (App. 501), 
and he informed the district court (App. 502) :

Your honor, I  believe that returning to a sys­
tem which enables Caucasian families, that pro­
vides them the right to attend their neighbor­
hood school if  they so desire is a very critical 
and important element in reversing the actions 
■which I have referred to as the white boycott of 
our school system.
* * * I  believe that once we have these families 

. moving back into our neighborhood, into our 
district, that it seems to me we at least have them 
here and can begin to be persuaded and can be­
gin to apply the kind of incentives that it will 
be necessary to apply to get them to move out 
of their neighborhood school.

Superintendent Certifies testified that he preferred 
the Pasadena Plan to the Alternative Plan (App. 519, 
525). and that the one-half day pairing arrangement 
envisioned in the Alternative Plan “ does not provide



22

the kind of interchange among the different ethnic 
groups that I  believe is worthwhile” (App. 526).

The district court found that at least some schools 
would regain their former racial identifiability if the 
Alternative Plan were implemented (App. 455-457; 
cf. App. 329, 395, 396, 485-486, 499-500, 583)28 and 
that an effective implementation of the Alternative 
Plan would require as much (or more) student trans­
portation as has proved necessary under the Pasadena 
Plan (App. 458; ef. App. 492-493, 513). Neither of 
these findings was disturbed by the court of appeals. 
Judge Ely expressly agreed that the Alternative Plan 
would produce racially identifiable schools (Pet. App. 
A8, A14) ; Judge Wallace, apparently agreeing (id. 
at A26-A27), disputed only the standard used by the 
district court to evaluate the legal consequences of that 
effect.

C. THE DISTRICT COURT’S OPINION

The district court denied petitioners’ January 15, 
1974 motion in its entirety (App. 452-459).

The district court offered several reasons for de­
clining to dissolve its injunction and terminate its 
supervision over the Pasadena schools. It found that 
there had not been full compliance with the Pasadena 
Plan because several schools were operating in viola­
tion of the “ no majority of any minority” rule (App. 
454). It concluded that the school officials had resisted

28 In the Pasadena Unified School District neighborhood schools 
would be, to a substantial degree, racially identifiable schools 
(App. 329,471,506-507, 583, Bear Folios).



23

the Plan and had declined to cooperate with it, so that 
it would be unreasonable to infer that, if left to their 
own devices, they would assiduously foster desegre­
gation (App. 458). It observed that, if  petitioners 
were allowed to return to a ‘ ‘neighborhood school” 
policy or a “ freedom of choice” plan, much of the 
Pasadena Plan would be undone and the schools would 
regain their former racial identifiability (App. 455- 
456, 459). And it found that the Pasadena Plan had 
not become an instrument of wrong: it was not demon­
strably the cause of “ white flight” (App. 454), and it 
was not demonstrably the cause of any educational 
deficiencies (App. 458). I f  the latter were the ease, 
the court reasoned, the educational deficiencies could 
be corrected by making suitable alterations in the 
Pasadena Plan, without the need to dissolve it (App. 
457).

The district court also declined to replace the Pasa­
dena Plan with the Alternative Plan, holding that the 
Alternative Plan would be unsuccessful as an instru­
ment of desegregation (App. 455-456). Referring to 
petitioners’ argument that the Pasadena Plan had 
been the cause of “ white flight” and that the Alterna­
tive Plan could both solve this problem and desegre­
gate the schools, the court answered (App. 457, foot­
note omitted) :

Hope may spring eternal, but realism exposes 
the folly of the belief that one who left a school 
district because his children were forced to at­
tend schools with Negro children would now 
voluntarily choose that alternative.



24

‘ ‘ Freedom of choice”  plans had failed before in 
Pasadena and elsewhere in California, the court 
found, and it concluded that petitioners had not 
demonstrated that such a plan would not fail again. 
Finally, the court found that if the Alternative Plan 
were to be an effective plan of desegregation it would 
require as much busing of students as was being used 
to implement the Pasadena Plan (App. 458).

D. THE COURT OF APPEALS’ OPINIONS

A divided court of appeals affirmed and remanded 
for further proceedings; each member of the panel 
wrote a separate opinion (Pet. App. A1-A33). None 
of the opinions questions the district court’s findings 
of fact.

Judge Ely began by emphasizing “ the narrow am­
bit of * * * review”  (Pet. App. A2). The propriety 
of the original judgment and injunction, and of the 
Pasadena Plan itself, were not before the court, 
Judge Ely concluded (ibid.) :

The only question before us now is whether 
the District Court erred in its determination 
* -* * that events and circumstances occur­
ring * * * since the Pasadena Plan was or­
dered implemented do not justify relief from 
the January 23, 1970, Decree * * * or the sub­
stitution of a substantial alteration of the 
original Pasadena Plan.

Judge Ely wrote that two tests governed the exer­
cise of the district court’s discretion to retain juris­
diction and continue its injunction (Pet. App. A6-



25

AT) : whether the dangers that caused the issuance of 
the injunction had been attenuated to a shadow, and 
whether intervening events had converted the in­
junction into an instrument of wrong. He found that 
the district court had not abused its discretion in 
the evaluation of either factor. The dangers of segre­
gation had not been sufficiently attenuated, Judge 
Ely thought, in light of the violations of the “ no 
majority o f any minority” rule and in light o f the 
perceived intransigence of the school board, culmi­
nated by the submission of a substitute plan that the 
board should have known was inadequate to eliminate 
the effects of its earlier acts of segregation. A or had 
the injunction become counterproductive; petitioners’ 
assertions that it had caused “ white flight” and edu­
cational degradation had been discredited by the dis­
trict court in findings that were not clearly erroneous 
{id. at A8-A10). Judge Ely concluded that because it 
was not yet “ clear” that disestablishment of the dual 
school system had been achieved, the district, court 
was required to retain jurisdiction (id. at A11-A12).

As to the proposal to substitute the Alternative 
Plan for portions of the Pasadena Plan, Judge Ely 
reasoned that, once it had been established that the 
district court was empowered to retain jurisdiction 
over the Pasadena schools, it followed that the court 
had substantial equitable discretion to select an ef­
fective remedy (Pet. App. A13). The district court 
properly exercised that discretion in preferring the 
Pasadena Plan, which had been devised by the school 
board in 1970, over the school board’s 1974 submis­



26

sion, because the latter held out less promise of suc­
cessfully producing desegregation. Judge Ely con­
cluded that, whatever virtues the Alternative Plan 
may possess, there was ample support for the dis­
trict court’s conclusion that it would not discharge 
petitioners’ duty to achieve the greatest possible 
amount of desegregation {id. at A14), and that the 
district court therefore properly rejected it.

Chief Judge Chambers wrote (Pet. App. A20) 
that “ a school district surely should not be kept 
under injunctions of a court forever.” He found, 
however, that because the school board had not fully 
discharged its duty of compliance with the district 
court’s unappealed 1970 injunctive degree, the judg­
ment must be affirmed. Judge Chambers concluded 
(Pet. App. A21) :

I  interpret Judge Ely’s opinion as requiring 
a termination of the mandatory injunction 
within a very short time after the school [>>•] 
again gets in compliance and I  think the mes­
sage is clear to the district court.

* * * I  have some doubt that one will find 
any de jure segregation after the decree has 
been complied with again—if all that is done 
is to let residence patterns shift by themselves.

Judge Wallace dissented. In his view, the district 
court erroneously had equated de jure and de facto 
segregation (Pet. App. A23, A26) and consequently 
had neglected to consider the question “whether the 
segregation foreseeable upon dissolution of the in­
junction is attributable to intentionally segregative 
actions of the school district” {id. at A27, footnote



27

omitted). Believing that a desegregation decree must 
be dissolved, and the jurisdiction of the district court 
terminated, once a school board demonstrates that the 
effects of its earlier segregative acts have been eradi­
cated (id. at A27-A28), Judge Wallace would have 
remanded “ for a determination whether de jure 
segregation still exists in the Pasadena schools” (id. 
at A30). Under this proposed remand, a “ heavy 
burden of proof” (ibid.) would have been imposed 
upon petitioners, who would have been required to 
prove both the extent of segregation caused by the 
school board’s acts and that all of the effects of these 
acts had been overcome. I f  petitioners can carry 
those burdens, Judge Wallace wrote, the district court 
should terminate its active supervision.

All three judges of the court of appeals expressly 
disapproved both any perpetual application of the 
“no majority of any minority”  provision of the 1970 
judgment and any requirement of annual redistrict­
ing in response to demographic changes. See Pet. 
App. A l l  (opinion of Ely, J.) ; id. at A20 (Cham­
bers, J., concurring) ; id. at A25 (Wallace, J., dis­
senting) .

S U M M A R Y  OF A R G U M E N T

I

A. Most of petitioners’ arguments are not perti­
nent to the consideration or decision of this case. 
Petitioners’ repeated assertions that this case in­
volves the pursuit of racial balance for its own sake 
are inaccurate, for the district court’s 1970 opinion



28

catalogued extensive and systematic segregaterv con­
duct by school officials that contributed substantially 
to the creation of racially identifiable schools in 
Pasadena. Those pervasive acts of segregation, quite 
similar to those considered by this Court in Keyes 
v. School District No. X, Denver, Colorado, 413 U.S. 
189, required the district court to conclude that a 
dual school system had been established by law, and 
consequently to take whatever action was required 
to eliminate racial discrimination “ root and branch”  
( Green v. County Sdhool Board, 391 U.S. 430, 438). 
The “no majority of any minority” provision in the 
1970 decree was, in 1970, “ a useful starting point in 
shaping a remedy to correct past constitutional vio­
lations”  (Swann v. Charlotte-Mecklenburg Board of 
Education, 402 U.S. 1, 25).

To the extent the “no majority of any minority”  
provision of the decree may have become a continuing 
requirement of racial balance, it has properly been dis­
approved by the court of appeals. Likewise, the court 
of appeals correctly disapproved any requirement that 
students be reassigned to different schools annually in 
order to compensate for demographic changes. Peti­
tioners disregard these aspects of the court of appeals’ 
decision; their insistent attack upon statements of the 
district court disapproved by the court of appeals is 
wholly gratuitous.

Petitioners also intimate that this is a “busing”  ease 
and request the Court to determine whether, and to 
what extent, federal courts can require school authori­



29

ties to use transportation to implement a system of 
student assignments. Concern about the use of trans­
portation is legitimate. But the current law of equi­
table remedies (see, e.g.. Swann, supra,) authorizes 
the use of transportation in a case such as this. 
In the district court petitioners did not challenge 
particular transportation requirements, but at­
tempted instead to prove that the entire student 
assignment plan (rather than its transportation com­
ponent in particular) was educationally disadvan­
tageous and had led to “white flight.”  They failed 
in their proof, and the court of appeals held that 
the district court’s findings were not clearly erroneous.

We submit that the only three points requiring con­
sideration by the Court are whether the district court 
was required at the present stage of the case to termi­
nate entirely its supervision over the Pasadena 
schools; whether, if some supervision is still appro­
priate, it can include a “regulatory” desegregation 
plan; and whether, if regulatory supervision is ap­
propriate, the district court should have substituted 
the Alternative Plan for the Pasadena Plan.

B. As to the first point, this Court has repeatedly 
recognized that full implementation of the constitu­
tional guarantees of the Fourteenth Amendment can­
not be achieved unless the district courts retain juris­
diction until it is clear that disestablishment of the 
dual school system and all of its effects has been ac­
complished. Even if petitioners were correct in their

201-058- — 6



30

argument that the Pasadena schools became “ unitary” 
the moment the Pasadena Plan was implemented, this 
would not support petitioners’ claim for termination 
of the district court’s “passive” supervision. Continu­
ing supervision, with or without judicial enforcement 
of a desegregation plan, is necessary to deter future 
acts of segregation by making the contempt power 
available and allowing the district court promptly to 
rectify such acts if they occur. I f  an injunction is ap­
propriate even when individuals have voluntarily and 
completely desisted from illegal acts (see United 
States v. W. T. Grant- Co., 345 IT.S. 629, 633), it fol­
lows that continuing judicial supervision of some sort 
is appropriate here, where the injunction was neces­
sary to compel the school officials to abandon their 
unconstitutional practices. Judicial supervision should 
last until a unitary school system has been achieved 
and maintained for a significant length of time with­
out additional judicial compulsion.

C. Petitioners direct a major challenge to the dis­
trict court’s continuation of active or regulatory 
supervision, including the enforcement of a manda­
tory desegregation plan. They contend that even if 
such regulatory supervision was necessary in 1970 it 
should now be discontinued.

Injunctions in desegregation cases, like other in­
junctions, are subject to the usual standards govern­
ing the equitable powers of federal courts. Milliken 
v. Bradley, 418 U.S. 717, 737-738; Swann, supra, 402



31

U.S. at 16. A motion for modification or dissolution 
of a desegregation plan therefore is an appeal to the 
equitable discretion of the district court. The dis­
trict court may modify the injunction because of an 
intervening and unexpected change of circumstances, 
because it has achieved its purpose, or because it has 
become an “ instrument of wrong” ( United States v. 
Swift & Co., 286 U.S. 106, 115). None of these condi­
tions is present in this case.

The original decree plainly has not yet achieved its 
purpose. Some decisions of school officials that create 
or maintain racially identifiable schools have long-last­
ing effects. For example, school siting and capacity de­
cisions often will have racial effects that persevere for 
much or all of the building’s lifetime. For this and 
other reasons, the findings of the district court pro­
vide substantial support for the conclusion of the 
courts below that the past segregation in the Pasadena 
schools would have substantial, lingering effects. Since 
petitioners had not come forward with an adequate 
alternative remedy for those effects, continued regula­
tory supervision by the district court was required. 
See Swann, supra, 402 U.S. at 28.

Nor have changed circumstances made the Pasadena 
Plan an “ instrument of wrong.” Petitioners argued in 
the district court that the Pasadena Plan had precipi­
tated “white flight” and had caused deterioration in 
the quality of education offered by the Pasadena 
schools. But the district court found these arguments



32

to be unsupported by the facts, and the court of ap­
peals concluded that its findings are not clearly er­
roneous. Petitioners therefore have not established the 
foundation for their contention that the regulatory 
supervision of the district court must come to an end.

More than 100 school systems have demonstrated 
that the effects of segregation have been eliminated 
to the fullest extent possible and have been released 
from the regulatory supervision of the district courts. 
Such relief is a goal shared by school systems, the 
federal courts (see Swann, supra), the Congress (see 
20 IT.S.C. (Supp. IV ) 1718), and the federal Execu­
tive Branch. Petitioners will have ample opportunity 
to obtain release from regulatory supervision once the 
vestiges of segregation have been eliminated from the 
Pasadena schools.

I). If, as we have argued, it was proper for the 
district court to continue its regulatory supervision 
of the Pasadena schools, it follows that it was 
proper for the court to reject the Alternative Plan. 
The Alternative Plan is little more than a disguised 
abandonment of active judicial supervision, for it 
has no provision for overcoming the effects of dis­
criminatory school siting and capacity decisions and 
other vestiges of the de jure segregation carried on 
by school authorities. The Alternative Plan is es­
sentially a “ freedom of choice” plan. “ Freedom of 
choice” plans have been unsuccessful in ending seg­
regation in Pasadena and elsewhere in California,



33

and the district court properly concluded that noth­
ing in the Alternative Plan held out any realistic 
probability of greater success.

II

The private plaintiffs have graduated from the 
Pasadena schools. Whether or not this moots the 
case as to the private plaintiffs, the presence of 
the United States as a plaintiff is sufficient to pre­
serve a live case or controversy. The United States 
intervened pursuant to 42 U.S.C. 2000h-2, which 
provides that “ the United States shall be entitled 
to the same relief as if it had instituted the action.”  
In this case the United States sought desegregation of 
the entire school system, relief more extensive than 
had been sought by the private plaintiffs. The school 
authorities argued that the United States should be 
confined to the relief that had been sought by the 
private plaintiffs; the court of appeals rejected that 
argument, holding that our complaint in intervention 
properly brought into the case “ the entire Pasadena 
Public School system” (415 P. 2d at 1243). The At­
torney General has certified that this case is of gen­
eral public importance—in other words, that the 
United States has an interest in addition to that of 
the private plaintiffs. Such a general public interest 
survives their graduation.



34
A R G U M E N T

I
THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY 

DECLINING TO DISSOLVE ITS INJUNCTION, TERMINATE 
THE PASADENA PLAN, OR IMPLEMENT THE PROPOSED 
ALTERNATIVE PLAN

A. MOST OF PETITIONERS’ ARGUMENTS ARE NOT PROPERLY PRESENTED 
IN  THE PRESENT POSTURE OF THIS CASE

This is a narrow case. Neither the correctness of the 
district court’s 1970 judgment that the Pasadena 
school system had been segregated by the deliberate 
acts of its officials, nor the initial validity of the 
court’s 1970 directive that no school in the system 
enroll “ a majority of any minority students” (App. 
3-4), was before the court of appeals. Yet petitioners 
seek to raise those issues here (Pet. Br. 3, 11-18), con­
tending that the decisions of the district court are 
inconsistent with Swcmn v. Charlotte-Mecklenburg 
Board of Education, 402 TJ.S. 1. Petitioners direct 
most of their argument against certain dicta in the 
opinions of the district court29 and a remark that the 
district court made during a hearing.30 But the dicta

29 See App. 456, n. 10, in which the district court equates cle facto 
and de jure segregation. Cf. App. 99, n. 4 (“ [r]acial segregation 
and racial imbalance are two names for the same phenomenon, 
racial separation” ).

30 See App. 270, where the district court stated during an oral 
argument that the Pasadena Plan “meant to me that at least 
during my lifetime there would be no majority of any minority 
in any school in Pasadena.”



35

of the district court are not on review here; the court 
of appeals has relieved petitioners of the portions of 
the district court’s order to which they might legiti­
mately object, and has disapproved the district court’s 
statements upon which petitioners dwell. As a result, 
most of the arguments of petitioners are misdirected.

1. Petitioners proceed on the assumption that this 
case is one in which the district court has sought to 
bring about “ racial balance”  for its own sake. They 
contend, for example, that “ [t]he failure of the 
Pasadena School Board to correct * * * racial im­
balance was the primary basis on which the system 
was found to be a dual system”  (Pet. Br. 3; see also 
Pet. Br. 11-13). This is a gross misinterpretation of 
the proceedings in this ease. Absence of racial balance 
was not the basis for the original finding of cle jure 
segregation.

In 1970 the district court was presented with exten­
sive proof, and made detailed findings, that over a 
period of fifteen years the Pasadena school board had 
engaged in a series of deliberate, unconstitutionally 
discriminatory actions that created significant racial 
separation of students and faculty, particularly in 
elementary schools. See App. 97-126, 128, and our 
summary of these findings at pages 6-9, supra. 
The actions described by the court—among them, 
racial gerrymandering and the manipulation of 
student assignments designed to lock black students 
into heavily black schools and to avoid assigning 
whites to such schools, the transportation of white



36

students past under-enrolled majority-black schools to 
more distant “ white” schools, the granting of racially- 
motivated transfer requests that intensified racial seg­
regation, the practice of assigning most black teachers 
and black substitute teachers to black schools and per­
mitting white substitutes to shun those schools, and 
the racially-motivated manipulation of school con­
struction and transportable classroom placement—- 
were deliberate acts that served to identify certain 
schools as intended, by the school board, for blacks, 
and others as intended for whites. Green v. County 
School Board, 391 U.S. 430, 435; Swann, supra, 402 
U.S. at 18. Those pervasive, deliberate acts of segre­
gation, causing the district’s schools to become vehicles 
of racial discrimination, closely paralleled the segre- 
gatory acts which this Court held in Keyes v. School 
District No. 1, Denver, Colorado, 413 U.S. 189, to 
require a district court to conclude that a dual school 
system had been established by law. Accordingly, the 
board’s pattern of discriminatory conduct here be­
stowed upon the district court

the affirmative duty to take whatever steps 
might be necessary to convert [Pasadena] to a 
unitary system in which racial discrimination 
would be eliminated root and branch.

Green, supra, 391 U.S. at 437-438.
The 1970 decree thus responded to well-entrenched, 

systemic violations of the Fourteenth Amendment. 
The “no majority of any minority”  provision of the 
1970 decree was, in 1970, “ a useful starting point in



37

shaping a remedy to correct past constitutional vio­
lations.”  Swann, supra, 402 U.S. at 25.

2. Petitioners nevertheless contend that, by 1974, 
the “no majority of any minority”  requirement had 
become nothing more than a requirement of racial 
balance for its own sake (Pet. 33r. 11-13). Petitioners 
contend that this requirement is a rigid racial quota 
(Pet. Br. 11), and that its status as such is demon­
strated by the district court’s statement during a 
hearing in 1974 that “ at least during my lifetime 
there [will] be no majority of any minority in any 
school in Pasadena” (App. 270). However, each of 
the judges of the court of appeals (quite properly, 
in our view) disapproved both the district court’s 
statement and the “no majority of any minority”  rule, 
to the extent that either indicated a continuing, rigid 
insistence upon some particular degree of racial bal­
ance. See Pet. A l l  (Ely, J.) ; id. at A20 (Chambers, 
C.J., concurring) ; id. at A25 (Wallace, J., dissenting). 
Petitioners’ insistent attack upon these statements of 
the district court is therefore wholly gratuitous.

3. Petitioners also contend that the district court 
lacks the power to compel them to undertake the 
annual reassignment of students in order to achieve 
a particular degree of racial balance (Pet. Br. 13-14, 
16-18). To the extent such a requirement may be im­
puted to the district court, it was an outgrowth of 
the “ no majority of any minority” provision in the 
1970 judgment. It, too, has been disapproved by the 
court of appeals. See pet, App. A l l  (Ely, J.) ; id.



38

at A20-A21 (Chambers, C.J., concurring); id. at 
A25 (Wallace, J., dissenting). The court of appeals 
correctly held that there is no need for annual stu­
dent reassignment to achieve the maximum feasible 
degree of racial balance. Accord, Mapp v. Board 
of Education, 525 F. 2d 169 (C.A. 6 ); Calhoun v. 
Cook, 522 F. 2d 717 (C.A. 5), rehearing denied, 525 
F. 2d 1203 (C.A. 5) ; Morgan v. Kerrigan, C.A. 1, No. 
75-1184, decided January 14, 1976, slip op. 32-33. 
A  redrawing of school attendance zones after the 
desegregation decree is first approved may sometimes 
be necessary in order to eliminate the continuing 
effects of past segregation, and, to that extent, the 
district court in this case retains the authority to 
revise its injunction. See 20 U.S.C. (Supp. IV ) 
1707.31 But this case no longer presents the problem 
of redrawing of attendance zones for any other pur­
pose. As Chief Judge Chambers wrote (Pet. App. 
A21), it is not an act of segregation for racial im­
balance to occur under a court decree “ if  all that is 
done is to let residence patterns shift by themselves.”  
See also Swann, supra, 402 U.S. at 31-32.

4. Petitioners intimate that this is a “ busing”  case 
requiring the Court to decide whether, and to what 
extent, federal courts can require school authorities 
to use transportation to implement a system of stu­
dent assignments (Pet. Br. 4-5, 11). Cf. Swann, 
supra, 402 U.S. at 30-31.

31'20 U.S.C. (Supp. IV ) 1707 provides that reassignment is not 
necessary if residential patterns change after a district court has 
determined that all vestiges o f segregation have been eliminated.



39

The concern about transporting school children to 
accomplish desegregation is a legitimate one that may 
call for the further attention of the Court in an appro­
priate case. But petitioners made no record in the 
district court that would now permit a reexamination 
of busing as a remedy on the basis of experience with 
that remedy here,32 and in light of accumulated experi­
ence in other communities across the nation.33 The cur­
rent law of equitable remedies in school desegregation 
cases supports transportation in a case such as this. 
Swann v. Board of Education, supra; Davis v. School 
Commissioners, 402 U.S. 33. It is, of course, always 
open to litigants to seek judicial reassessment of prec­
edent, but the materials for reassessment must be 
provided. To do so is not to question Brown Vs dis­
positive constitutional objection to de jure segrega­
tion. Swann shows that transportation is an equitable 
remedy whose “ task is to correct, by a balancing of the 
individual and collective interests, the condition that 
offends the Constitution.” 402 U.S. at 16.

32 To the extent that petitioners attempted to show in the district 
court that the Pasadena Plan had caused “ white flight” or deteri­
oration in educational quality, they failed in their proof. See pages 
11-16, supra ; pages 54-55, infra.

33 See, e.g., Symposium, The Courts, Social Science, and School 
Desegregation , 39 L. and Contemp. Prob. 1-432 (1975); Goodman, 
De Facto School Segregation: A  Constitutional and Empirical 
Analysis, 60 Cal. L. Eev. 275 (1972); Pettigrew, Racial Discrimi­
nation in the United States (1975); St. John, School Desegregation  
Outcomes fo r  Children (1975); Comment, School Desegregation  
A fter  Swann : A  Theory o f  Government Responsibility, 39 U. Chi. 
L. Eev. 421 (1972); Mills, The Great School Bus Controversy 
(1973).



40

town I I  also remarked the “ practical flexibility”  
that characterizes equitable decrees. 349 U.S. at 300. 
If, as appears to be the case, petitioners now seek to 
challenge court-ordered transportation as a futile or 
damaging response to de jure segregation, they did 
not focus their case below to that end.34 Their proof 
below was not guided by an articulation of the pur­
pose of student transportation under a decree— 
whether it is designed to produce the approximate 
degree of integration, that would have existed absent a 
violation of the Fourteenth Amendment, to repair 
psychological injury inflicted by the state, to cure 
educational deficiencies traceable to de jure segrega­
tion, or perhaps to achieve some other or additional 
purpose (see n. 42, infra). Accordingly, petitioners 
failed to prove that transportation lacks utility in 
achieving the articulated remedial goal. In its present

84 Instead, in the board’s closing argument during, the hearings 
on its present motion in the district court, counsel for the board 
stated (App. 568) :

“ * * * I  as a lawyer in this court have not regarded the busing 
problem or the busing question as an issue in this case. W e are 
going to have busing, your Honor. The board intends to continue 
busing. Any child may bus, as I  have said, under the alternative 
plan within his zone.”

The district court found that “ the evidence shows that as much 
or more busing would be necessary to accomplish the ends o f an 
integrated school system under the Alternative Plan as is currently 
required to achieve the same ends under the Pasadena Plan” (App. 
458). See App. 492-493,513.



41

posture, this ease is not an appropriate vehicle for 
the kind of reassessment petitioners ask this Court to 
undertake.

We submit, therefore, that much of petitioners* 
presentation in this Court is superfluous. This case in 
its present posture does not require the Court to pass 
upon the arguments we have discussed above. The 
case does, however, require disposition of three points:
(1) whether the district court was required to termi­
nate entirely its supervision of the Pasadena schools;
(2) whether, if continuing supervision is appropriate, 
that supervision can include a “ regulatory” injunc­
tion ; and (3) whether, if  “ regulatory” supervision is 
appropriate, the district court should have substituted 
the Alternative Plan for the Pasadena Plan. We dis­
cuss these points in turn.

B. THE DISTRICT COURT IS REQUIRED TO RETAIN JURISDIC­
TION IN A DESEGREGATION CASE UNTIL THE EFFECTS OF 
SEGREGATION HAVE BEEN ELIMINATED AND FURTHER 
DISCRIMINATORY ACTS ARE NOT A FORESEEABLE POSSI­
BILITY

In a desegregation case the district court “has not 
merely the power but the duty to render a decree 
which will so far as possible eliminate the discrimina­
tory effects of the past as well as bar like discrimina­
tion in the future.”  Louisiana v. United States, 380 
I7.S. 145, 154. In the exercise of that power and duty



42

a district court usually must retain jurisdiction over 
the case for a lengthy period of time, a practice this 
Court has discussed and approved as a necessary tool 
to achieve the goal of “ eliminat[ing] from the public 
schools all vestiges of state-imposed segregation.” 
Swann, supra, 402 U.S. at 15.

In 1955 this Court recognized that full implemen­
tation of the constitutional commands of Brown v. 
Board of Education, 347 U.S. 483 (Brown I ) ,  “may 
require solution of varied local school problems.” 
Brown v. Board of Education, 349 U.S. 294, 299 
(Brown II) .  Accordingly, it directed the courts to 
“ retain jurisdiction * * * [djuring this period of 
transition” (id. at 301). Retention of jurisdiction by 
district courts in school desegregation cases has been 
required since Brown II. In Raney v. Board of Edu­
cation, 391 U.S. 443, 449, the Court wrote:

In light of the complexities inhering in the 
disestablishment of state-established segregated 
school systems, Brown I I  contemplated that the 
better course would be to retain jurisdiction 
until it is clear that disestablishment has been 
achieved.

And in Green, supra, 391 U.S. at 439, the Court 
stated:

the [district] court should retain jurisdiction 
until it is clear that state-imposed segregation 
has been completely removed.

See also Swann, supra, 402 U.S. at 21, 28. Cf. Alex­
ander v. Holmes County Board of Education, 396 U.S. 
19, 21; Carter v. West Feliciana Parish School Board, 
396 U.S. 290, 292 (Harlan, J., concurring).



43

The need to retain jurisdiction until the objectives 
of the decree have been achieved is plain. In “ a 
system that has been deliberately constructed and 
maintained to enforce racial segregation”  (Swann, 
supra, 402 TJ.S. at 28) it is not enough to undo that 
segregation for an instant. The deeply ingrained na­
ture of state-imposed racial separation, which has been 
caused by deliberate acts of elected officials that serve 
to stamp an enduring racial label on each school, 
makes it necessary and proper for the court to super­
vise the desegregation process, not only to achieve 
desegregation, but also to ensure the perpetuation 
of that status (i.e., a status in which de jure segre­
gation and the effects of past de jure segregation have 
been eliminated; see pages 49-58, infra).

So far as we are aware, only one school district 
ever has been completely released from the juris­
diction of a district court upon successfully deseg­
regating its schools.35 Other school districts have been 
released from the active supervision of the district 
court (see pages 56-57, inf raj). Because the defendants 
in school desegregation cases are public officials, and 
because federal courts should not become permanently

35 In Mays v. Sarasota Gou/aty Board of Public Instruction, 
M.D. Fla., No. 4242, decided September 3, 1975, the district court 
found that (Order, p. 2) “ [vjestiges o f state imposed segregation 
have been removed from the operation of the public school system 
in Sarasota County. There is no evidence countering the conclu­
sion that the. unitary school system now established in Sarasota 
County has stabilized.” Accordingly, the court dismissed the 
action. The plaintiffs expressly consented in a memorandum that 
praised the defendants’ fulfillment o f their constitutional duty.



44

involved in the administration of local schools, de­
tailed “ regulatory” injunctions ultimately should give 
way to general permanent injunctions against racial 
discrimination. In this latter or “ passive” stage the 
district court would act only if one of the parties to 
the case alleged that the officials were violating its 
general injunction against discrimination.

Petitioners have sought, however, not only termina­
tion of the regulatory supervision of the district court, 
but also termination of its general injunction. In 
support of this petitioners argue here (Pet. Br. 4, 
14-16), as they did in the district court, that the 
Pasadena schools became “ unitary” the moment the 
Pasadena Plan was implemented. Even if this argu­
ment were correct,36 it would not support petitioners’ 
claim for termination of the district court’s passive 
supervision. Continuing supervision is necessary to 
deter future acts of segregation by making the con­
tempt power available and by insuring prompt 
rectification if such acts occur. Since the school board 
has demonstrated a proclivity to engage in such un­
constitutional acts (the injunction otherwise would 
not have been necessary), the danger of repetition is 
present whether or not Pasadena is, at this moment, 
a “ unitary” school system.

Even if petitioners had voluntarily and completely 
desisted from their pattern of unconstitutional acts, it 
still would be appropriate to enjoin them from future 
unconstitutional acts. United States v. W. T. Grant

36 But see pages 51-53, infra.



45

Co., 345 U.S. 629, 633. A fortiori it is appropriate to 
continue judicial supervision when judicial interven­
tion was necessary to force the school board to aban­
don its unconstitutional practices. The judicial supervi­
sion should last until a unitary school system has been 
achieved and maintained for a significant period of 
time without the need for additional judicial inter­
vention. Whether complete dissolution would then be 
appropriate should rest, as do other matters of equity, 
in the informed discretion of the district court.37

C. CONTINUOUS AND ACTIVE SUPERVISION BY THE DISTRICT
COURT IS NECESSARY UNTIL IT CAN DETERMINE WITH
CONFIDENCE THAT THE VESTIGES OF SEGREGATION HAVE
BEEN ELIMINATED

Petitioners direct their major challenge not to the 
district court’s retention of jurisdiction, but to the 
continuation of active or regulatory supervision of the

37 Courts o f appeals have declined to dissolve general prohibi­
tory injunctions after even extended periods o f compliance. See, 
e.ff., 'Walling v. H am ischfeger Corp ., 242 F. 2d 712, 718 (C.A. 7) 
(dissolution refused after 12 years o f compliance because “ com­
pliance is just what the law expects” ) ; Goldberg v. Ross, 300 F. 2d 
151 (C .A . 1) (dissolution refused after eight years o f compliance); 
W irts  v. Graham Transfer and Storage Go., 322 F. 2d 650 (C.A. 5) 
(dissolution refused after six years o f compliance); Tobin  v. Alma  
Mills, 192 F. 2d 133 (C.A. 4) (dissolution granted after nine years 
on showing o f “ specific hardship” ). See also Brooks v. County 
School Board , 324 F. 2d 303 (C.A. 4) (dissolution denied in the 
absence of hardship caused by the injunction). See generally Tom­
linson, Modification and Dissolution o f  Administrative Orders and 
Injunctions, 31 Md. L. Rev. 312 (1971); Comment, Dissolution  
<md Modification o f  Federal Decrees on Grounds o f  Change o f  
Attitude, 25 U. Chi. L. Bev. 659 (1958).

201-03S— 76



46

affairs of the school system. Their reliance on what 
we may characterize as an “ instant unitariness” the­
ory (see, e.g., Pet. Br. 4) is both unsupported and un- 
persuasive.

The injunctions through which district courts 
carry out their duty to eliminate racial discrimina­
tion “ root and branch”  {Green, supra, 391 U.S. at 
438) are, like other injunctions, subject to the usual 
standards governing the equitable powers of fed­
eral courts. Swann, supra, 402 U.S. at 16; Milliken 
v. Bradley, 418 U.S. 717, 737-738. Cf. Rizzo v. Goode, 
No. 74-942, decided January 21, 1976, slip op. 13- 
14. A  motion for approval of a modification of a 
desegregation decree, or for termination of regu­
latory supervision, therefore, is an appeal to the 
equitable discretion of the court, and a federal court 
has the power to modify or suspend an injunction 
that it has imposed. Systenx Federation v. Tf rig h.[ 
864 U.S. 642, 646—647; United States v. Swift & 
Go., 286 U.S. 106. The power is “ inherent in the 
jurisdiction of the chancery.”  Id. at 114; Lubben v. 
Selective Service System Local Board No. 27, 453 
P. 2d 645, 651 (C.A. 1).

The distiiet couit need not exercise this power 
simply upon the request of the person enjoined, or 
upon his assurance of good faith compliance in the 
future. The court has a right to be skeptical about 
such assurance; it was, after all, the deliberate seg­
regative acts of the school system that brought about 
the need for an injunction. The regulatory supervision 
of the district court need not, and indeed should not,



47

come to an end until the injunction has served its pur­
pose of disestablishing the dual school system and 
producing a system “without a ‘white’ school and a 
‘Negro’ school, but just schools.”  Green, supra, 391 
U.S. at 442.38

Modification of the injunction may, under equitable 
principles, be appropriate for other reasons. A  show­
ing of changed circumstances may be sufficient to 
justify the exercise of the power (Dombrowski v. 
Pfister, 380 U.S. 479, 492), but the changes alleged 
either must have been “ unforeseen”  ( United States v. 
Swift d  Co., supra, 286 U.S. at 119) or must have 
caused the injunction to become an “ instrument of 
wrong”  {id. at 115; Lubben v. Selective Service Sys­
tem Local Board No. 27, supra, 453 F. 2d at 651). 
And, in either event, the party seeking relief from 
the injunction must bear the burden of proving that 
the change will not “ prejudice * * * the interests of 
the classes whom * * * [the injunction] was intended 
to protect,”  Swift, supra, 286 U.S. at 117-118. Cf. 
Chrysler Corp. v. United, States, 316 U.S. 556, 567 
(Frankfurter, J., dissenting). Unless the “ dangers, 
once substantial, have become attenuated to a shadow”  
{Swift, supra, 286 U.S. at 119), the district court 
should hesitate to grant the modification. 3

3S This, of course, does not preclude the possibility that some 
“ one-race, or virtually one-race, schools” may properly exist 
within the district as a result o f de facto segregation, once the 
racial identifiability of schools and other segregative effects caused 
by the board’s discriminatory acts have been eliminated. Swann, 
supra, 402 U.S. at 26. See also Davis v. School Commissioners, 
supra, 402 U.S. at 36-38.



This approach has been adopted by Congress in 
Title II  of the Education Amendments of 1974, Pub. 
L. 93-380, Section 219, 88 Stat. 518, 20 U.S.C. (Supp. 
IV ) 1718 (emphasis added):

Any court order requiring, directly or in­
directly, the transportation of students for the 
purpose of remedying a denial of the equal 
protection of the laws may, to the extent of 
such transportation, he terminated if the court 
finds the defendant educational agency has 
satisfied the requirements of the fifth or 
fourteen amendments to the Constitution, 
whichever is applicable, and will continue to he 
in compliance with the requirements thereof.

This provision commits the question of termination 
of regulatory supervision of transportation to the 
sound discretion of the district courts; indeed, it 
seems to recognize the propriety of continued regula­
tory supervision unless the court finds that the school 
officials will continue to adhere to the Constitution 
after the termination of supervision. Congress specif­
ically rejected a proposal—similar to petitioners’ 
position here (Pet. Br. 10, 14-16)—that would have 
required the termination of regulatory supervision as 
soon as the “ court finds the defendant educational 
agency is not effectively excluding any person from 
any school because of race, color, or national origin.” 
See S. Coni Rep. No. 93-1026, 93d Cong., 2d Sess. 
155 (1974).

The plain fact is that it takes time to eradicate 
the effects of segregation that has continued for tens 
of years. The racial identifiability of schools consists 
not only in their student populations, but in how they



49

are perceived by the people of the school district; a 
racial identity established at least since 1930 (in the 
case of several schools in this case) will not vanish 
simply because, for four years and under court order, 
some children of another race also attended the school.

Some of the decisions of a school board that create 
and maintain racially identifiable schools have espe­
cially long-lasting effects. School siting and capacity 
decisions will often have racial effects that persevere 
for much or all of the building’s lifetime. I f  a school 
board that desires white and black children to go to 
separate schools builds a school in the geographic 
center of a “ black neighborhood,” and the school’s 
capacity is exactly what is necessary to serve the chil­
dren of that neighborhood, the school will be racially 
identifiable so long as a “ neighborhood schools” policy 
is in force and the racial character of the neighbor­
hood remains unchanged. Moreover, the racially-moti­
vated decisions of a school board may in turn influ­
ence the decisions of parents to take up residence in 
particular neighborhoods. See Swann, supra, 402 U.S. 
at 21,

The findings in the present case provide ample sup­
port for the conclusion of the courts below that the 
past segregation in the Pasadena school system would 
have substantial, lingering effects in the absence of 
continued regulatory supervision by the district court. 
The district court expressly found that school siting 
and capacity decisions had been racially motivated 
(App. 119-123). As a consequence, “ ‘ [rjacially neu­
tral’ assignment plans proposed by school author!-



50

ties to a district court may be inadequate; such plans 
may fail to counteract the continuing effects of past 
school segregation resulting from discriminatory lo­
cation of school sites or distortion of school size in 
order to achieve or maintain an artificial racial sepa­
ration. When school authorities present a district 
court with a ‘ loaded game hoard,’ affirmative action 
in the form of remedial altering of attendance zones 
is proper to achieve truly non-discriminatory assign­
ments” (Swann, supra, 402 U.S. at 28). Moreover, 
the board’s segregatory siting and capacity decisions, 
combined with its other discriminatory acts, had con­
tributed to a pattern of racial identifiability of. schools 
which the district court found still likely to persist 
in the absence of remedial measures (see pages 23-24, 
supra).

In these circumstances, the district court was war­
ranted in concluding that petitioners, who had an­
nounced a policy hostile to the Pasadena Plan and 
who had not come forward with a proposal for 
effective alternative remedial measures, should not 
be entrusted with the unsupervised responsibility 
to eradicate the continuing effects of past discrimi­
nation in Pasadena. See App. 452-454, 459. Indeed, 
petitioners’ proclaimed desire was to implement a 
policy that threatened to perpetuate the effects of 
the board’s past discriminatory conduct (see pages 59- 
65, infra). The district court therefore properly con­
cluded that its continued, active supervision had 
not yet become unnecessary. “ The pattern of past 
conduct is not easily forsaken. Where the procliv­



51

ity for unlawful activity has been as manifest as here, 
the decree should operate as an effective deterrent 
to a repetition of the unlawful conduct * * *” 
('United States v. Crescent Amusement Co., 323 U.S. 
173, 186). Continuing regulatory supervision is neces­
sary here.39

In an attempt to forestall the force of all this, peti­
tioners present two arguments: first, that the
Pasadena schools became “unitary” on the day the 
Pasadena Plan was implemented, and second, that the 
Pasadena Plan has been counterproductive. Neither 
argument is persuasive.

The “ instant unitariness” argument (Pet. Br. 4, 
14-16) is wrong because it fails to acknowledge, let 
alone to grapple with, the continuing effects of the 
school board’s acts of segregation. The argument fails 
for another reason as well: if, as petitioners assert, 
the “ unitariness” of the Pasadena school system is 
attributable to the Pasadena Plan, then for the dis­
trict court to terminate its supervision, and to allow 
petitioners to set aside the Pasadena. Plan (as they

39 A  need for continuing active supervision may also have been 
perceived by the court upon the disclosure, during the hearings on 
petitioners’ motion to be relieved of the court’s injunction, that 
petitioners had appointed five persons to administrative positions 
in violation of the provisions o f that injunction. This revelation 
has led to a citation for contempt. 384 F.Supp. 846, appeal pend­
ing, C.A. 9, No. 74-2530. The board’s disregard of the procedures 
set forth in the Pasadena Plan for recruiting and selecting admin­
istrators is an indication that all vestiges o f racial discrimination 
have not been eliminated. Swann, swpra, 402 U.S. at 18; United 
States v. Montgomery County Board of Education, 39'5 U.S. 225, 
231-232,



52

have indicated they would do), would be to allow peti­
tioners to destroy the foundation for the dissolution 
of supervision. The very idea of “ instant unitariness” 
is inconsistent with this Court’s cases which hold that 
the district court must retain jurisdiction to super­
vise the sometimes difficult transition to a unitary 
system. See Raney, supra, 391 U.S. at 449; Green, 
supra, 391 U.S. at 439; Swann, supra, 402 U.S. at 21. 
We submit, in sum, that the imposition of a desegre­
gation decree is not immediately equivalent to the 
creation of a unitary school system.40

This is not to say that a school system cannot be­
come unitary while under a desegregation injunction. 
The injunction is intended to facilitate just such a 
transition from a dual school system to a unitary 
school system. But, as with other equitable reme­
dies, the party seeking relief from the injunction 
must demonstrate that the purposes of the injunction 
have been served and that the discontinuation of regu­
latory supervision is appropriate. See pages 46-48, 
supra; see also Swann, supra, 402 U.S. at 32; Raney, 
supra, 391 U.S. at 449.

Perhaps, if continuing regulatory supervision is 
justified only by the long term effects of past segre­
gation, petitioners would be entitled to prove that spe-

40 Petitioners appear to argue that this case should be governed 
by a different rule because “ [u]nlike many, i f  not most, desegrega­
tion plans, the Pasadena plan, effected integration in one fell 
swoop” (Pet. Br. 14). But all school systems that have been placed 
under desegregation orders since 1969 have been required to inte­
grate “ in one fell swoop.” Alexander v. Holmes County Board of 
Education, 396 U.S. 19.



53

eific short term effects41 had been eliminated, and to 
seek modification of the injunction on that basis. But 
petitioners never attempted to make such a showing in 
the district court. By relying upon the “ instant uni­
tariness”  theory they eschewed whatever relief prop­
erly would be available to them upon proof that some 
or all of the effects of past discrimination had, in 
fact, been eliminated. Of. Keyes v. School District No. 
1, Denver, Colorado, supra, 413 U.S. at 203-205, 208- 
211. Petitioners have a continuing opportunity to 
make such a factual showing in the district court. 
Until they have done so, however, it is unnecessary 
for the Court to speculate about the consequences of 
such proof.42

41 For example, the gerrymandering of school attendance zones 
(App. 100-109), the transportation o f white students past “black” 
schools to more distant “ white” schools (App. 101, 109), the 
racially-motivated placement of transportable classrooms (App. 
121-122), and discriminatory faculty assignments (App. 112-119).

42 Proof o f this nature would, in our view, require the district 
court to re-evaluate the busing and other relief previously ordered 
in light of an analysis o f the specific purposes to be achieved by the 
relief. To the extent that the relief has been designed to overcome 
the specific segregatory effects of discriminatory siting and capac­
ity decisions, long-term remedial measures might be required. I f  
so, termination of the court’s regulatory supervision could 
properly be made dependent upon petitioners’ willingness to pro­
vide for adequate measures to remedy those specific effects. On the 
other hand, to the extent that the relief has been designed for more 
prophylactic purposes—such as assuring the elimination o f possi­
ble additional, nonapparent segregatory effects of the board’s dis­
criminatory practices; overcoming the racial identifiability of 
schools to which the board’s segregatory conduct had contributed; 
and assuring that such racial isolation as remains in the schools

(Continued)



54

Instead of introducing proof that the lingering 
effects of past segregation had been removed, peti­
tioners attempted to demonstrate that the Pasadena 
Plan, which the school board itself had designed, had 
become an “ instrument of wrong” (Swift, supra, 286 
U.S. at 115) because it had precipitated “ white 
flight” and because it had caused educational quality 
to deteriorate. Petitioners repeat those assertions 
here (Pet, Br. 5-6, 21) as if they were established 
as facts.

But the district court found otherwise, and the 
court of appeals did not disturb its findings of fact.43 
See pages 10-16, supra. Individual petitioners, and 
some employees of the Pasadena school system, subse­
quently have testified that whites are returning to the 
Pasadena schools and that students’ academic per­
(Continued)
is not, and is not perceived to be, the “ inherently unequal” product 
of de jure segregation (Brown  v. Board o f  Education, 347 U.S. 
483, 495)—those purposes can ordinarily be achieved in a much 
shorter time, and such prophylactic aspects o f the relief should no 
longer be required after they have served their proper purpose. 
This follows from the general principle that a court o f equity 
should not interfere with the self-government decisions o f duly 
constituted school authorities (either in an initial desegregation 
decree, in the exercise of the court’s regulatory supervision, or in 
refusing to terminate that supervision) except to the extent neces­
sary to remedy a constitutional violation. See, e.g ., Swann, supra, 
402 U.S. at 16; M illiken  v. Bradley, supra.

43 None of the judges of the court o f appeals disputed any o f the 
district court’s findings of fact. Because “ concurrent findings of 
two courts below [are] final here in the absence o f very exceptional 
showing o f error,” Comstock v. Group o f  Institutional Investors, 
335 U.S. 211, 214, the district court’s findings o f fact should be 
accepted here. See also Milliken  v. Bradley , supra, 418 U.S. at 738, 
n. 18.



55

formance has improved. This ease, accordingly, pre­
sents no occasion to consider how a district court 
should respond to a demonstration that “white flight” 
or educational deterioration is a consequence of a de­
segregation plan.44

Petitioners have presented the question (Pet. Br. 2) 
whether a “ unitary school system” must “ remain sub­
ject indefinitely”  (emphasis added) to the regulatory 
supervision of the district court. For the reasons we 
have discussed above, it is unnecessary for the Court 
to address this question. Petitioners have not shoul­
dered, let alone discharged, the burden of proving that 
Pasadena has become a “ unitary” school system.

The burden upon the school system to establish that 
it has become unitary, and consequently is entitled 
to the termination of regulatory supervision, is a 
heavy one, but it can be discharged. This is not the 
first case to be concerned with defining the duration 
of regulatory supervision or the conditions under 
which it will be terminated. More than 100 school sys-

44 We note, however, that in seeking to raise considerations of 
alleged “ white flight”  before this Court in this case, petitioners fail 
to discuss or cite United States v. Scotland Neele Board o f  Educa­
tion, 407 U.S. 484, 490-491. See also Monroe v. Board o f  Commis­
sioners, 391 U.S. 450, 459; Morgan  v. Kerrigan , supra, slip op. at 
29-34 (collecting cases); Brunson v. Board o f  Trustees, 429 F. 2d 
820,823-827 (C.A. 4) (en banc) (Sobeloff, C. J., concurring). But 
cf. Swann, supra, 402 U.S. at 31 (relief should be “ reasonable, feas­
ible and workable” ) ; Davis, supra, 402 U.S. at 37 (“ the district 
judge * * * should make every effort to achieve the greatest pos­
sible degree o f actual desegregation, taking into account the prac­
ticalities o f the situation.” ). And see generally Fiss, The Jurispru­
dence o f Busing, 39 L. & Contemp. Prob. 194 (1975).



56

terns that the United States has sued to eradicate seg­
regation have achieved unitary status and have been, 
relieved of the continuing active supervision of the 
district courts. Relief from such supervision is a goal 
shared by school systems, the federal courts (see 
Swann, supra), the Congress (see 20 U.S.C. (Supp. 
IV ) 1718), and the federal Executive Branch. Cf. 
Rizzo v. Goode, supra, slip op. 15-17. The school sys­
tems that have obtained such relief have done so by 
demonstrating their continued fidelity to the principle 
of nondiscrimination and by convincing the lower courts 
that the “ dangers, once substantial, have become attenu­
ated to a shadow.”  United States v. Swift & Co., 
supra, 286 U.S. at 119.

The United States Court of Appeals for the Fifth 
Circuit has established guidelines for determining 
whether a school system has achieved the “ full com­
pliance”  to which the Court referred in Swann, supra, 
402 U.S. at 31-32, and which justifies the termina­
tion of active supervision. A school system that has 
been operating under an injunctive decree of desegre­
gation is entitled to dissolution of the regulatory in­
junction only after it has become, and been de­
clared, unitary, and only if it has maintained that 
status for a sufficient period of time (three years is 
the adopted rule-of-thumb) to indicate that a regres­
sion to its prior status is not likely to occur. See 
United States v. Texas (San Felipe Del Rio Consoli­
dated ISD ), 509 F. 2d 192; Lee v. Macon County 
Board of Education, 455 F. 2d 978; Calhoun v. Cook, 
451 F. 2d 583; Youngblood v. Board of Public Instruc­



tion, 448 F. 2d 770; Steele v. Board of Public Instruc­
tion, 448 F. 2d 767; Wright v. Board of Public 
Instruction, 445 F. 2d 1397.

There is no litmus paper test by which a court can 
determine when the time is at hand to end active 
judicial supervision. Each of the more than 100 
cases has turned on its own facts: each district court 
has been required to determine whether the effects 
of discrimination have been eliminated, whether the 
officials then in charge of the schools were likely to 
discharge their constitutional duties without the need 
for intense judicial scrutiny. In this regard the Court 
must “ rely to a large extent * * * on the informed 
judgment of the district courts in the first instance” 
{Swann, supra, 402 U.S. at 28; see also Brown II, 
supra, 349 U.S. at 299-301). Perhaps rules will evolve 
from this process as additional districts seek such 
relief and as, through experience, courts compile the 
criteria that favor relaxed supervision and those that 
indicate the contrary. We have set out in an appen­
dix to this brief a description of many of the eases 
granting such relief, and we have reprinted for the 
Court’s convenience illustrative orders granting relief. 
Illustrative memoranda for the United States discuss­
ing the propriety of such relief in particular cases 
have been lodged with the Clerk of this Court.

Here, however, mam Pasadena has not yet shown 
that it qualifies for relaxed supervision under these 
evolving standards. Its compliance with the Pasadena 
Plan has been grudging at best (App. 452-454, 458- 
459). It has been adjudged in contempt for violations



58

of the Plan. 384 P. Supp. 846. Cf. App. 514-518. And 
petitioners have announced their intention, upon 
securing freedom from active judicial supervision, to 
discard the Pasadena Pan and to institute a system of 
student assignments that would perpetuate in the Pas­
adena schools the racial indentifiability that had re- 
suited in substantial part from the board’s segijstgatory 
conduct. Petitioners thus have failed to demonstrate 
their readiness, in the absence of judicial supervision, 
to eliminate the still-lingering effects of the board’s 
past discriminatory conduct. The extent of racial bal­
ance resulting from a judicial decree may often 
change after the decree is lifted. That is no objection 
to the end of judicial supervision if all de jure segre- 
gatory conduct has ended, the effects of the prior de jure 
segregation have been elimintaed, and the new configu­
ration merely reflects demographic patterns. See 
Swann, supra, 402 U.S. at 31-32. But petitioners have 
not shown that that sage has been reached here.

D. THE DISTRICT COURT PROPERLY REJECTED PETITIONERS’
ALTERNATIVE PLAN

If, as we have argued, it was proper for the dis­
trict court to continue its active supervision of the 
Pasadena schools, the only issue remaining in this 
ease is whether it was required to adopt the proposed 
Alternative Plan as the instrument of that supervi­
sion. We submit that the court of appeals correctly 
decided that it was not. There is “ a wide range of dis­
cretion in the District Court to mould the decree



59

to the exigencies of the particular case; and where 
the findings of violations are sustained, we will not 
direct a recasting of the decree except on a showing 
of abuse of discretion.”  United States v. Crescent 
Amusement Co., supra, 323 U.S. at 185. There was 
no abuse of discretion here.

The Alternative Plan was properly rejected be­
cause it would be the equivalent of the termination 
of active supervision. It is primarily a “ freedom of 
choice”  plan designed to allow students to receive 
their education in their neighborhood schools; 45 it is 
in effect a disguised abandonment of judicial super­
vision. But that is inappropriate: “ freedom of choice”  
has failed to produce or achieve desegregation in Pas­
adena itself and elsewhere in California (App. 395- 
396, 455-457, 549-557; Pet. App. A12-A14); it follows 
that, to be effective, a plan of desegregation for Pasa­
dena must include at least some compulsory student 
assignment provisions, the very sort of provisions the 
Alternative Plan would abolish.

In Green, supra, and its companion case, Monroe v. 
Board of Commissioners, 391 U.S. 450, this Court 
unanimously expressed its disapproval of “ free 
choice” and “ free transfer” plans of student enroll­
ment that do not promise realistically to achieve de-

45 As Judge Wallace stated in his dissenting opinion below, “ the 
Alternative Plan is a freedom-of-choice plan and therefore an 
unlikely remedy for past de jure segregation * * * ”  (Pet. App. 
A27). See also id. at A13 (opinion o f Judge E l y ) ; App. 455.



60

segregation. Recognizing in Green (391 U.S. at 440) 
that “ the general experience under ‘ freedom of choice’ 
to date has been such as to indicate its ineffectiveness 
as a tool of desegregation,” the Court concluded (id. 
at 440-441):

Where it offers real promise of aiding a de­
segregation program to effectuate conversion 
of a state-imposed dual system to a unitary, 
nonracial system there might be no objection to 
allowing such a device to prove itself in opera­
tion. On the other hand, if there are reasonably 
available other ways * * * promising speedier 
and more effective conversion to a unitary, 
nonracial school system / ‘ freedom of choice” 
must be held unacceptable.

Similarly, in Monroe the Court rejected a plan 
under which students could “ freely transfer” to a 
school of their choice. The Court wrote (391 U.S. at 
458-459):

Plainly, the plan does not meet respondent’s 
“ affirmative duty to take whatever steps might 
be necessary to convert to a unitary system in 
which racial discrimination would be eliminated 
root and branch.” Green v. County School 
Board, supra, at 437-438. * * * Like the trans­
fer provisions held invalid in Goss v. Board of 
Education, 373 U.S. 683, 686, “ [i]t is readily 
apparent that the transfer [provision] lends 
itself to perpetuation of segregation.”

See also Raney v. Board of Education, supra. A 
“ freedom of choice” plan is unacceptable if it “ op­
erate [s] simply to burden children and their parents 
with a responsibility [to desegregate] which Brown



61

I I  placed squarely on the School Board” {Green, 
supra, 391 U.S. at 441-442).

The Alternative Plan is unacceptable under these 
standards. Pasadena already has a method of desegre­
gation “ promising speedier and more effective” results 
than freedom of choice. That method, the Pasadena 
Plan itself, has largely desegregated the district’s 
schools and, according to the school system’s adminis­
trative director of planning and research, can continue 
to do so with increasing ease in the future (see note 
18, supra). Moreover, the Pasadena Plan has not 
been unsuccessful educationally; serious disciplinary 
problems have decreased; students’ attitudes toward 
school, toward themselves, and toward their peers has 
remained stable or improved; and a variety of inno­
vative educational programs have been successfully 
implemented (see pages 14-16, supra). Petitioners’' 
claim that the Pasadena Plan has been responsible for 
“ white flight” was not supported by proof (see pages 
10-14, supra). And, according to Superintendent Cor- 
tines, the kinds of innovative “ educational alterna­
tives” envisioned in the Alternative Plan can be im­
plemented under the Pasadena Plan (see note 21r 
supra) and are as likely to attract white families to 
the school district under the Pasadena Plan "as under 
the proposed modification (App. 529).

The evidence also shows that the Alternative Plan 
is not one which “ promises realistically to work, and 
promises realistically to work now ”  Green, supra, 391 
U.S. at 439. Pasadena’s past experiments with “ free 
choice” and “ open enrollment” plans have not re­

201-03S— 7< ■5



62

suited in desegregated schools (see note 10, supra). 
Plans of voluntary desegregation in the San Bernar­
dino and Richmond, California school districts have 
failed, despite strenuous efforts by school officials to 
make minority neighborhood schools attractive to all 
students (a “ magnet” effort), and despite the fact 
that those plans—like the petitioners’ proposal— 
assured transportation for any student wishing to 
attend a school outside his or her neighborhood 
(App. 395-396, 549-557).

The Alternative Plan’s “ unique educational alterna­
tives” concept—the only device purportedly designed 
to produce desegregation—is not a concrete proposal 
but merely a suggestion of the sorts of programs which 
eoukl be instituted if parents were to express an interest 
in such programs. There is no assurance that the Plan’s 
alleged catalysts of desegregation would be imple­
mented at all,46 let alone that they would in fact de­
segregate the schools.47 In the last analysis the pro­

48 Indeed, petitioners Myers, Newton, and Vetterli apparently 
oppose such innovations (see App. 283).

47 The petitioners cite Hart v. Community School Board, 512 
F. 2d 37 (C.A. 2 ), as an example of a case holding that “ plans 
including specialized schools * * * with an opportunity for 
parental choice among them, are appropriate even where the plan 
is directed to the translation of a dual system into a unitary one” 
(Pet. Br. 22-23).

The establishment of a so-called “magnet school” was approved 
in Hart as part of a plan to desegregate that district’s schools. 
However, the school board resolution relating to the establishment 
o f the “ magnet school” contained a provision that promised attain­
ment of a specific quantum of desegregation (5l2 F. 2d at 42-43, 
n. 5), and the district court added a proviso to the plan which de-

(Continued)



63

posed Alternative Plan is nothing more than a pro­
posal to return to schools mirroring the racial image 
of the surrounding area.48 But in a school system like 
this one, involving (among other things) the continu­
ing effects of discriminatory siting and capacity de­
cisions in school construction, desegregation “ cannot 
be limited to the walk-in school.”  Swann, supra, 402 
U.S. at 30.

In Green, supra, the Court said (391 U.S. at 438) : 
[A ] plan that at this late date fails to provide 
meaningful assurance of prompt and effective 
disestablishment of a dual system is * * * in­
tolerable.

In Monroe, supra, 391 U.S. at 459, the Court reas­
serted the earlier holding of Goss v. Board of Edu­
cation, 373 U.S. 683, 689, that
manded certain minimal levels of attendance at the school in that 
approximate ratio and ordered the development of a “ back-up 
plan,” based on zoning and transportation, which would be kept 
up-to-date and implemented in the event o f failure of the magnet 
school plan. Id. at 43. The plan approved by the court of appeals 
in Hart was quite different from the plan rejected here. The court 
of appeals affirmed the remedy in Hart only because the district 
court “hedged the ‘magnet school’ plan * * * with conditions 
which, if not met on schedule, would require reversion to * * * 
the ‘back-up plan’ ”  (id. at 52) and the plan was “not free of 
coercive elements” (id. at 54). See also Morgan v. Kerrigan, supra, 
slip op. 34—39.

48 The Plan’s proposed part-time pairing of “sister schools”  o f 
“ opposite ethnic make-up”  is not an acceptable substitute for de­
segregation. See, e.g., Morgan v. Kerrigan, supra, slip op. 12-13; 
Keyes v. School District No. 1, Denver, Colorado, 521 F. 2d 465 
477-479 (C.A. 10), certiorari denied, January 12,1976, No. 75-701 : 
Arvizu v. Waco Independent School District, 495 F. 2d 499 (C.A. 
5), modified, 496 F. 2d 1309 (per curiam) ; United States v. Texas 
Education Agency (Austin I  SI)), 467 F. 2d 848, 858-859, 873 
(C.A. 5) (enbanc).



64

no official transfer plan or provision of which 
racial segregation is the inevitable consequence 
may stand under the Fourteenth Amendment. 

In seeking relief beyond that already afforded them 
by the court of appeals in the present posture of this 
case,49 petitioners seek no less than a retreat from 
these principles. They are asking this Court to declare 
that a school system with a history of unconstitution­
ally segregated schools may, after a brief court- 
ordered interlude without systemic violations of the 
Fourteenth Amendment, implement a plan of student 
enrollment that holds no promise of maintaining an 
effective remedy against the still-remaining segrega- 
tory effects of the board’s discriminatory conduct. 
Such a declaration—permitting, in important re­
spects, a return to the conditions that existed in Pasa­
dena prior to 1970—would be inconsistent with a gen­
eration of decisions from Brown through Swann. 40

40 As we understand the opinions below, there is little ultimate 
disagreement among the court of appeals judges concerning the 
governing legal principles; they differed, instead, principally in 
their interpretation of the grounds upon which the district court 
had acted. Judge Wallace, in dissent, expressed the view that the 
district court had failed “ to consider whether the racial imbal­
ance foreseeable upon dissolution o f the injunction [or implemen­
tation of the Alternative Plan] is attributable to intentionally 
segregative actions of the school district” (Pet. App. A26). As we 
have explained in detail, we agree that under this Court’s deci­
sions, such a failure to distinguish for remedial purposes between 
de facto and de jure segregation would be error. In our view, 
however, the district court’s findings and opinion, while not free 
from ambiguity in their use o f terms (see pages 6, 34, supra), 
sufficiently show that its decision is properly based on its duty to 
remedy the effects of de jure segregation (see pages 6-10, supra).



65

While those decisions do not contemplate indefinite 
judicial regulatory supervision of school affairs or 
sanction judicial efforts designed to create racially 
balanced schools rather than to remedy constitutional 
violations, they do require the adoption of effective 
measures to eliminate the segregative effects of a 
school board’s discriminatory conduct. Where, as here, 
the need for such measures remains to a substantial 
degree, it would be improper for a court to hold that 
the promise of Brown has been satisfied by the dis­
trict’s brief experience with a desegregated system.50

II

A DESEGREGATION CASE IN WHICH THE UNITED STATES 
IS A PLAINTIFF CANNOT BECOME MOOT

The private plaintiffs have now graduated from 
the. Pasadena Schools. Petitioners contend (Pet. Br. 
24-25) that this makes the case moot and {id. at 
25) that “ the presence of the United States is insuffi­
cient to preclude the dismissal of the action as moot.”  
We disagree.

The United States intervened pursuant to Title IX  
of the Civil Rights Act of 1964, 42 U.S.C. 2000h-2. 
That section provides that “ the United States shall be 
entitled to the same relief, as if it had instituted the 
action.”  The United States is not limited to the relief 
the private plaintiffs sought or even to the relief the

50 Cf. Bell, Waiting on the Promise of Brown, 89 L. & Contemp. 
Prob. 341 (1975).



6 6

private plaintiffs could have sought. In this case the 
United States sought relief much more extensive than 
that requested by the private plaintiffs. The role of 
the United States has not been, as petitioners assert 
(Pet. Br. 25), “ purely ancillary to that of the plain­
tiffs.”  The case was instituted as a class action suit 
to desegregate the district’s high schools,51 but our 
complaint in intervention “ brought into the ease the 
entire Pasadena Public School system.”  415 P. 2d 
at 1243. It requested an injunction to prevent further 
unconstitutionally discriminatory practices and to re­
quire the school board to develop and implement a 
plan that would eliminate the effects of past dis­
crimination. See 415 F. 2d at 1243.

Petitioners err in stating that the United States 
“ asserted no right to relief except in terms of the 
plaintiffs’ demands” (Pet. Br. 25) and that, if it 
had asserted a right to additional relief, it would be 
“precluded” (Pet. Br. 26) by statute from doing 
so. The United States did not commence this action 
pursuant to 20 U.S.C. (Supp. IV ) 1706, which au­
thorizes it to bring suit to vindicate the rights of 
particular individuals. It intervened pursuant to 42 
U.S.C. 2000h~2, which authorizes the United States 
to assert claims in addition to the grievances of pri­
vate parties. It did so here.

For are petitioners correct in stating (Pet. Br. 26) 
that “ there is no authorization in Title I X  for the 
United States to file such a suit except on behalf 
of wronged individuals who could not secure ade­

51 August 28,1968, Complaint at 1-2.



67

quate counsel in some other fashion.” Title IX  author­
izes the intervention of the United States in actions 
“ seeking relief from the denial of equal protection of 
the laws under the fourteenth amendment * *, * if the 
Attorney General certifies that the case is of general 
public importance”  (emphasis added).52 This certifi­
cation requirement ensures that the Attorney General 
will intervene only in eases significant enough to give 
the United States an interest separate from the in­
terests of the private parties. The United States’ in­
terest in the present case therefore is its own.53 That 
interest survives the graduation of the private plain­
tiffs.54

Even if the United States were not a party, it is 
far from certain that Board of School Commissioners 
v. Jacobs, 420 U.S. 128, would indicate that the ease is 
moot. This case, unlike Jacobs, involves the continu­
ing duty of a district court to supervise the progress

52 42 TT.S.C. 2000h-2.
53 Petitioners rely upon 42 TT.S.C. 2000&-6 and 2000c (b ), which, 

they assert (Pet. Br. 26), preclude the United States from bring­
ing an action merely to achieve racial balance. As we demonstrated 
at pages 6-10, supra, however, the Pasadena schools became seg­
regated because o f discriminatory actions o f the school board. The 
United States’ complaint sought an injunction directing the 
school authorities to cease their discriminatory actions and to 
purge the school system of the effects o f those actions. The United 
States has not sought racial balance for its own sake.

54 See also United States v. W. T. Grant Go., 345 U.S. 629, 633, 
which holds that cases brought by the United States are not moot 
even if the defendant voluntarily discontinues its illegal activity, 
so long as there is any reasonable expectation that a wrong will be 
repeated. Cf. Note, The Mootness Doctrine in the Supreme Court, 
88 Harv. L. Rev. 373, 380-395 (1974).



6 8

of a school district that has begun the desegregation 
process pursuant to a court order entered at a time 
when the case was clearly not moot. The court has a 
duty to retain jurisdiction until that process has been 
completed. Brown II, supra, 349 U.S. at 301; Green, 
supra, 391 U.S. at 439; Raney v. Board of Educa­
tion, supra, 391 U.S. 449; Alexander v. Holmes 
County Board of Education, supra, 396 U.S. at 21. 
A  desegregation order, even when entered at the 
behest of private plaintiffs, vindicates not just pri­
vate rights and the rights of students as a class but 
national policy as well. Northcross v. Board of Edu­
cation, 412 U.S. 427, 428. Premature dismissal of the 
case on the ground that the nominal plaintiffs have 
graduated would defeat the vindication of that 
policy.53

55 The ease was brought as a class action. The district court’s 
neglect so to certify it—entirely understandable in light o f the 
intervention by the United States—does not make the case moot, 
because the continuing power o f the court is derived from the 
nature o f the wrong and the nature o f the relief, not from the 
identity o f the plaintiffs. In any event, any defect caused by failure 
to certify the class can be rectified by the addition of new plaintiffs 
similarly situated. See Rogers v. Paul, 382 U.S. 198, 199.



69

CONCLUSION

The judgment of the court of appeals should be 
affirmed.

Respectfully submitted.
R obert H. B ork,

Solicitor General.
J. Stanley P qttinger, 

Assistant Attorney General. 
L awrence G. W allace,

Deputy Solicitor General. 
F rank H. E asterbrook, 

Assistant to the Solicitor General. 
B rian K. L andsberg,
R eal J. Tonken,

F ebruary 1976.
Attorneys.



APPE N D IX

In more than 100 eases o f which we are aware dis­
trict courts have released school systems from detailed 
regulatory supervision and substituted general perma­
nent injunctions. In other cases, apparently a substan­
tial number, detailed supervision has been discontinued 
and the case transferred to the district court’s inactive 
docket, but the original injunction has not been dis­
solved. For examples of the former category see the 
orders set out at App. 248-257 and see, e.g., Lee v. 
Macon County Board of Education, N.D. Ala., Civil 
Action No. 70-251-S (ten school districts) (order filed 
February 19, 1975); id. (eight school districts) (order 
filed July 25, 1974); id. (seven school districts) 
(order filed July 11,1974) ; id. (three school districts) 
(order filed July 3, 1974) ; United States v. State of 
Georgia, S.D. Ga., Civil Action No. 3009 (eighteen 
school districts) (order filed February 14, 1974) ; id., 
M.D. Ga., Civil Action No. 2771 (thirty-five school 
districts) (consent order filed January 24, 1974); 
Smith v. North Carolina State Board of Education 
( Goldsboro City), E.D. N.C., Civil Action No. 2572 
(order filed November 6, 1973); United States v. 
Baker County School District (Pasco County), M.D. 
Fla., Civil Action No. 70-298-CIV-T (order signed 
November 7, 1973).

At least two elements have combined in each of these 
cases before the district court has been willing to dis­
solve the regulatory injunction. First, there has been 
satisfactory compliance with the injunction for a term 
of years, during which the school district has (so far 
as it is possible) eliminated the continuing effects of 
segregation. Second, the school officials then in office



2 a

have demonstrated a willingness to cooperate in the 
future so that desegregation can be maintained with­
out the need for intrusive judicial supervision. Often, 
it has appeared likely that the school officials would 
maintain attendance zones or patterns similar to those 
developed under under the court’s supervision, so that 
the former racial identifiability of the schools would 
be unlikely to reassert itself.

The terminating order itself may contain a variety 
of provisions addressed to the needs and problems of 
particular school districts. Almost every terminating 
order contains a general permanent injunction against 
future racial discrimination in student or faculty 
assignments, school construction and placement, and 
the allowance of transfers to another school. Other 
orders also have contained provisions directing the 
school officials: (1) to continue assigning students in 
a manner consistent with the former regulatory in­
junction; (2) to allow any student who is a member of 
a race in the majority at his school to transfer to some 
school at which his race is in the minority, and to 
provide transportation for that purpose; or (3) not to 
allow more than a small proportion of the school dis­
trict’s children to attend public schools outside the dis­
trict. At least one terminating order contains a pro­
vision automatically dissolving the general permanent 
injunction after seven additional years of compliance. 
For the convenience of the Court we have reprinted 
in this appendix the terminating orders in eight sepa­
rate cases, involving 79 separate school systems. See 
also App. 248-257. We are also lodging with the Clerk 
of the Court copies of the memoranda for the United 
States setting out the position of the Department of 
Justice in several of those cases and balancing the 
factors that seemed to us to militate for and against 
termination of regulatory supervision.



Civil Action No. 70-251-S 

A nthony T. L ee, et al., plaintiffs 

U nited States of A merica, plaintiff-intervenors,
AND AMICUS CURIAE

National Education A ssociation, plaintiff-
INTERVENOES

V.

Macon County B oard of Education, et al., 
DEFENDANTS

ORDER

It having been shown to the satisfaction of this 
Court that certain defendant school systems have been 
operating a unitary school system for the past three 
years, and that all litigation pertaining to compli­
ance with the orders of the Court have been satisfac­
torily resolved, this Court, deeming it proper so to do, 
hereby orders, adjudges and decrees that:

1. The detailed regulatory injunctions issued by this 
Court and by the United States District Court for the 
Middle District of Alabama as against the following 
school systems, the individual board members and the 
superintendents thereof, are dissolved 

Carbon Hill City 
Fayette County

In the United States District Court for the Northern
District of Alabama, Southern Division

(3a )



4a

Franklin County 
Lamar County 
Marion County 
Muscle Shoals City 
Russellville City 
Tuscumbia City 
Winston County 
Winfield City

and the permanent injunction in paragraph 2, below 
substituted.

2. The above-named defendant school district, the 
individual board members and the superintendents 
thereof, are permanently enjoined from operating a 
dual system of racially identifiable schools. In addi­
tion, operation of the above-named defendant school 
districts shall be subject to the following provisions:

a. Defendants shall take no action which 
tends to segregate or otherwise discriminate 
against students or faculty by or within school 
on the basis of race, color, or national origin.

b. Staff members who work directly with 
children, and professional staff who work on 
the administrative level will be hired, assigned, 
promoted, paid, demoted, dismissed, and other­
wise treated without regard to race, color, or 
national origin.

c. Bus routes and the assignment of students 
to buses will be designed to ensure the trans­
portation of all eligible pupils on a nonsegre- 
gated and otherwise nondiseriminatory basis.

d. All school construction, school consolida­
tion and site selection (including the location 
of any temporary classrooms) in the system 
shall be done in a manner which will prevent 
the reoccurrence of the dual school structure.

e. I f  the school district grants transfers to 
students living in the district for their attend­
ance at public schools outside the district, or if



5a

it permits transfers into the district of students 
who live outside the district, it shall do so on a 
nondiscriminatory basis, except that it shall not 
consent to transfers where the cumulative effect 
will reduce desegregation in either district.

3. The actions pertaining to the above-named dis­
tricts are hereby placed on the inactive docket of this 
Court subject to being re-activated on proper applica­
tion by any party, or on the Court’s motion, should it 
appear that further proceedings are necessary.

The provisions of previous orders in this case as 
they relate to other defendants not named in para­
graph 1, above, remain in full force and effect and are 
in no way affected by this order.

Done this 19th day of February, 1975.
J. F o y  Gum, Jr., 

United States District Judge.



Civil Action No. 70-251-S

A nthony T. L ee, et al., plaintiffs 

U nited States of A merica,, plaintiff-inter venobs
AND AMICUS CURIAE

National E ducation A ssociation,
PLAINTIFF-INTERVENOBS

In the United States District Court for the
Northern District of Alabama, Eastern Division .

V.

Macon County B oard of E ducation et al.,
DEFENDANTS

ORDER

It having been shown to the satisfaction of this 
Court that certain defendant school systems have 
been operating a unitary school system for the past 
three years, and that all litigation pertaining to com­
pliance with the orders of the Court have been satis­
factorily resolved, this Court, deeming it proper so 
to do, hereby orders, adjudges and decrees that:

1. The detailed regulatory injunctions issued by 
this Court and by the United States Court for the 
Middle District of Alabama as against the following 
school systems, the individual board members and 
the superintendents thereof, are dissolved 

Attalla City 
Cherokee County 
DeKalb County



7a

Etowah County 
Ft. Payne City 
Guntersville City 
Marshall County 
St. Clair County

and the permanent injunction in paragraph 2, below, 
substituted.

2. The above-named defendant school district, the 
individual board members and the superintendents 
thereof, are permanently enjoined from operating a 
dual system of racially identifiable schools. In addi­
tion, operation of the above-named defendant school 
districts shall be subject to the following provisions:

a. Defendants shall take no action which 
tends to segregate or otherwise discriminate 
against students or faculty by or within school 
on the basis of race, color or national origin.

b. Staff members who work directly with 
children, and professional staff who work on 
the administrative level will be hired, assigned, 
promoted, paid, demoted, dismissed, and other­
wise treated without regard to race, color, or 
national origin.

c. Bus routes and the assignment of students 
to buses will be designed to ensure the trans­
portation of all eligible pupils on a nonsegre- 
gated and otherwise nondiseriminatory basis.

d. All school construction, school consolida­
tion and site selection (including the location 
of any temporary classrooms) in the system 
shall be done in a manner which will prevent 
the reoccurrence of the dual school structure.

e. I f  the school district grants transfers to 
students living in the district for their attend­
ance at public schools outside the district, or if 
it permits transfers into the district of students 
who live outside the district, it shall do so on a 
nondiseriminatory basis, except that it shall not 
consent to transfers where the cumulative effect 
will reduce desegregation in either district.

201-038— 76-------6



8 a

3. The actions pertaining to the above-named dis­
tricts are hereby placed on the inactive docket of this 
Court subject to being re-activated on proper applica­
tion by any party, or on the Court’s motion, should it 
appear that further proceedings are necessary.

The provisions of previous orders in this case as 
they relate to other defendants not named in para­
graph 1, above, remain in full force and effect and are 
in no way affected by this order.

Done this 25th day of July, 1974.
Sam C. P ointer, 

United States District Judge.



Civil Action No. 70-251-S

A nthony T. Lee, et at.., plaintiffs

U nited States of A merica, plaintiff-intervenors
AND AMICUS CURIAE

National E ducation A ssociation, 
plaintiff-intervenors

In the United States District Court for the Northern
District of Alabama, Southern Division

V.

Macon County Board of E ducation et al.,
DEFENDANTS

ORDER

It having been shown to the satisfaction of this 
Court that certain defendant school systems have been 
operating a unitary school system for the past three 
years, and that all litigation pertaining to compliance 
with the orders of the Court have been satisfactorily 
resolved, this Court, deeming it proper so to do, 
hereby orders, adjudges and decrees that:

1. The detailed regulatory injunctions issued by 
this Court and by the United States District Court 
for the Middle District of Alabama as against the 
following school systems, the individual board mem­
bers and the superintendents thereof, are dissolved 

Clay County 
Cullman County

(9a )



Cullman City 
Jacksonville City 
Morgan County 
Seottsborb City 
Sylacanga City : ■

and the permanent injunction in paragraph 2, below, 
substituted.

2. The above-named defendant school district, the 
individual board members and the superintendents 
thereof, are permanently enjoined from operating a 
dual system of racially identifiable. schools. In addi­
tion, operation of the above-named defendant school 
districts shall be subject to the following provisions:

a. Defendants shall take no action which 
tends to segregate or otherwise discriminate 
against students or faculty by or within school 
on the basis of race, color, or national origin.

b. Staff members who work directly with 
children, and professional staff who work on the 
administrative level will be hired, assigned, 
promoted, paid, demoted, dismissed, and other­
wise treated without regard to race, color, or 
national origin.

e. Bus routes and the assignment of students 
to buses will be designed to ensure the trans­
portation of all eligible pupils on a nonsegre- 
gated and otherwise nondiseriminatory basis.

d. All school construction, school consolida­
tion and site selection (including the location of 
any temporary classrooms) in the system shall 
be done in a manner which will prevent the re­
occurrence of the dual school structure.

e. I f  the school district- grants transfers, to 
students living in the district for.their attend­
ance at public schools outside the district, or if 
it permits transfers into the district of stu­
dents who live outside the district, it shall do 
so on a non-discrimatorv basis, except that it 
shall not consent to -transfers where the annul a-



11a

tive effect will reduce desegregation in either 
district.

3. The actions pertaining to the above-named dis­
tricts are hereby placed on the inactive docket of this 
Court subject to being re-activated on proper appli­
cation by any party, or on the Court’s motion, should 
it appear that further proceedings are necessary.

The provisions of previous orders in this ease as 
they relate to other defendants not named in para­
graph 1, above, remain in full force and effect and are 
in no way affected by this order.

Done this 11th day of July, 1974.
J ames H. TIancoch, 

United States District Judge.

201- 038— 76------------7



Civil Action No. 70-251-S 

A nthony T. L ee, et al., plaintiffs 

U nited States of A merica, plaintiff-intervenors
AND AMICUS CURIAE

National E ducation A ssociation, 
plaintiff-intervenors

V.

Macon County B oard of Education et al.,
DEFENDANTS

ORDER

It having been shown to the satisfaction of this 
Court that certain defendant school systems have been 
operating a unitary school system for the past three 
years, and that all litigation pertaining to compliance 
with the orders of the Court have been satisfactorily 
resolved, this Court, deeming it proper so to do, 
hereby orders, adjudges and decrees that:

1. The detailed regulatory injunctions issued by 
this Court and by the United States District Court for 
the Middle District of Alabama as against the follow­
ing school systems, the individual board members and 
the superintendents thereof, are dissolved and 

Blount County 
Oneonta City 
Mountain Brook City

(12a )

In the United States District Court for the Northern
District of Alabama, Eastern Division



13a

the permanent injunction in paragraph 2, below, 
substituted

2. The above-named defendant school district, the 
individual board members and the superintendents 
thereof, are permanently enjoined from operating a 
dual system of racially identifiable schools. In addi­
tion, operation of the above-named defendant school 
districts shall be subject to the following provisions:

a. Defendants shall take no action which 
tends to segregate or otherwise discriminate 
against students or faculty by or within school 
on the basis of race, color, or national origin.

b. Staff members who work directly with 
children, and professional staff who work on 
the administrative level will be hired, assigned, 
promoted, paid, demoted, dismissed, and other­
wise treated without regard to race, color, or 
national origin.

c. Bus routes and the assignment of students 
to buses will be designed to ensure transpor­
tation of all eligible pupils on a nonsegregated 
and otherwise nondiscriminatory basis.

d. All school construction, school consolida­
tion and site selection (including the location of 
any temporary classrooms) in the system shall 
be done in a manner which will prevent the 
reoccurrence of the dual school structure.

e. I f  the school district grants transfers to 
students living in the district for their attend­
ance at public schools outside the district, or if  
it permits transfers into the district of students 
who live outside the district, it shall do so on a 
nondiscriminatory basis, except that it shall not 
consent to transfers where the cumulative effect 
will reduce desegregation in either district.

3. The actions pertaining to the above-named dis­
tricts are hereby placed on the inactive docket of this



14a

Court subject to being re-activated on proper applica­
tion by any party, or on the Court’s motion, should it 
appear that further proceedings are necessary.

The provisions of previous orders in this case as 
they relate to other defendants not named in para­
graph 1, above, remain in full force and effect and are 
in no way affected by this order.

Done this 3rd day of July, 1974.
Fkank H. McFadden,

United States District Judge.



Civil Action Ho. 3009 
United States op A mebic a, plaintiff

Charlie R idley, et al., plaintiff-intervenok

v.

State of Georgia, et al., defendants

CONSENT ORDER

This case was originally filed by the United States 
on August 1, 1969, in the United States District Court 
for the Horthern District of Georgia against the State 
of Georgia and various school agencies and officials of 
the state. United States v. State of Georgia, et al., 
C.A. Ho. 12,972 (H.D. Ga.). That Court entered a 
number of orders for the purpose of effecting desegre­
gation of the public schools of 81 school districts1 
located throughout the State of Georgia, and on 
September 5, 1972 in compliance with the directions 
of the United States Court of Appeals for the Fifth 
Circuit, the Court issued an order which, inter alia 
added as parties defendants each individual school 
district and transferred to this Court’s jurisdiction 
the 21 school districts involved in these proceedings.

1 The 18 original school districts in the case were reduced to 79 
by the consolidation o f two city districts with their respective 
county counterparts.

In the United States District Court for the Southern
District of Georgia, Savannah Division

(15a )



16a

On December 27, 1973, the State defendants moved 
this Court to dismiss the State of Georgia, the State 
Board of Education and the State Superintendent of 
Schools as parties defendant, or, in the alternative, 
to “ enter and order—similar to an order entered in 
the Northern District on June 23, 1973, placing on an 
inactive docket those local county and city school 
systems within the Southern Judicial District which 
by virture of compliance with all court orders have 
achieved and maintained a ‘unitary status’— ”  The 
State defendants, the intervenors and the United 
States have agreed that the alternative relief re­
quested by the state would appropriately dispose of 
the motion.

On the basis of the record in this case, the Court 
has determined that the Appling County School Dis­
trict, the Atkinson County School District, the Bryan 
County School District, the Camden County School 
District, the Candler County School District, the 
Charieton County School District, the Jefferson Davis 
County School District, the Jenkins County School 
District, the McDuffie County School District, the 
Melntoch County School District, the Montgomery 
County School District, the Tatnall County School 
District, the Toombs County School District, the 
Treutlen County School District, the Vaidalia City 
School District, the Warren County School District, 
the Wayne County School District and the Wilkes 
County School District have for three years assigned 
students to the public schools in accordance with the 
plans approved by the Northern District and have 
become “ unitary”  in the sense required by the Su­
preme Court’s decisions in Green v. County School 
Board, 391 U.S. 430 (1968) and Swann v. Board of 
Education, 402 U.S. 1 (1971).



17a

The bi-annual reports submitted by Columbia 
County School District and the Jefferson County 
School District in October, 1973, indicate that for 
certain schools in the systems the ratio of faculty 
assigned to those schools on a full-time basis deviates 
by more than two positions from the system-wide 
faculty quotient.

On February 22, 1972, the Dublin School System’s 
desegregation plan was substantially modified in order 
to bring the system into compliance with the standing 
orders of the Court regarding student assignment. 
This plan was not implemented until the 1972-73 
school year.

The parties to this consent order agree that the 
above findings accurately represent the present status 
of the indicated school districts as shown by the rec­
ord in this case and the bi-annual reports filed by the 
school districts. As indicated by the signatures of 
counsel below, the parties have also agreed on the 
form of this decree, and the Court being of the 
opinion that the entry of this decree will effectuate 
federal law, now therefore:

It is ordered, adjudged, and decreed, that:
1. The detailed regulatory injunction issued by the 

United States District Court for the Northern District 
of Georgia on December 17, 1969, as subsequently 
modified, is dissolved for the Appling County School 
District, the Atkinson County School District, the 
Bryan County School District, the Camden County 
School District, the Candler County School District, 
the Charleton County School District, the Jefferson 
Davis County School District, the Jenkins County 
School District, the McDuffie County School District, 
the McIntosh County School District, the Montgomery 
County School District, the Tatnall County School



1 8  a

District, the Toombs County School District, the 
Treutlen County School District, the Vidalia City 
School District, the Warren County School District, 
the Wayne County School District and the Wilkes 
County School District and the following permanent 
injunction substituted for each school district:

(a) The school district shall take no action which 
tends to segregate students or faculty by or within 
schools on the basis of race, color, or national origin.

(b) Staff members who work directly with children, 
and professional staff who work on the administrative 
level will be hired, assigned, promoted, paid, demoted, 
dismissed, and otherwise treated without regard to 
race, color, or national origin.

(e) Each school district shall permit a student at­
tending a school in which his race is in the majority 
to choose to attend another school where his race is in 
the minority. Any student transferring under this ar­
rangement must be provided with free transportation 
and space must be made available in the school to 
which the student desires to move.

(d) Bus routes and the assignment of students to 
buses will he designed to insure the transportation of 
all eligible pupils on a non-segregated and otherwise 
nondiseriminatory basis.

(e) All school construction, school consolidation and 
site selection (including the location of any temporary 
classrooms) in the system shall be done in a maimer 
which will prevent the reoccurrence of the dual school 
structure.

( f ) I f  the school district grants transfers to students 
living in the district for their attendance at public 
schools outside the district, or if it permits transfers 
into the district, it shall do so on a nondiseriminatory



19a

basis, except that it shall not consent to tranfers where 
the cumulative effect will reduce desegregation in 
either district.

2. Each of the school districts listed in paragraph 1 
above shall be placed on this Court’s inactive docket, 
subject to being reactivated on proper application by 
any party, or on the Court’s motion, should it appear 
that further proceedings are necessary.

3. The State of Georgia, the State Board of Educa­
tion, its individual members, and the State Superin­
tendent of Schools have a continuing duty to promote 
compliance by the school districts in this cause with 
orders of this Court and shall remain as active parties 
to this case until all of the school districts in this 
cause have been placed on the inactive docket.

4. The July 16, 1971, Order in this case provides:
“ The ratio of faculty and staff assigned . . . 
[each] facility on a full-time basis [must be]
. . . substantially the same as the faculty quo­
tient; system-wide personnel are to be counted 
in such ratio proportionately to the number of 
schools served; ‘substantially’ means as near to 
exact as possible and in no event to exceed over 
2 positions from exact.”

Since the bi-annual reports of the Columbia County 
School District and the Jefferson County School Dis­
trict show that these districts have schools, the facul­
ties of which exceed two positions from the exact sys­
tem-wide faculty ratio, they will remain on the active 
docket of this Court. Further special orders will sub­
sequently issue to the school officials of the two dis­
tricts concerning this matter.

5. Since the Dublin City School System’s plan for 
desegregation has not been in effect for a three year 
period due to its modification in February, 1972, the



20a

Dublin City School System will remain on the active 
docket of this Court.

6. The State of Georgia, the State Board of Educa­
tion, its individual members, the State Superintendent 
of Schools, the school districts which remain active 
parties in this cause as indicated in paragraphs 4 and 
5 of this Order shall continue to comply with all of 
the requirements of the December 17, 1969 Order of 
the United States District Court for the Northern 
District of Georgia, as subsequently, modified, with 
the following exceptions:

(a) School districts remaining as active parties in 
this cause, in lieu of providing the information 
required by the December 17, 1969 Order, as sub­
sequently modified, in their bi-annual reports may pro­
vide the information reported in the School System 
Summary Reports (Forms 101 & 102) which are filed 
with the Department of Health, Education and Wel­
fare and the information reported in the Elementary- 
Secondary Staff Information (Form EEO-5) which 
is filed with the Equal Employment Opportunity Com­
mission. However, all school districts which remain as 
active parties in this cause shall continue to file bi­
annual reports to the State Board of Education and 
the Department of Health, Education and Welfare.

(b) The provisions of the detailed regulatory in­
junction of December 17, 1969, issued by the United 
States District Court for the Northern District of 
Georgia, as subsequently modified, specifying the 
duties of the State defendants in this cause, shall 
automatically be dissolved as they pertain to each 
school district which this Court has placed on the in­
active docket and the following permanent injunction 
substituted:



21a

The State of Georgia; the State Board of 
Education, its individual members and the 
State Superintendent of Schools (a) shall not 
take any action which may result in the re­
establishment of the former dual school system 
in any of said school districts; (b) shall not 
permit any action by any of said school dis­
tricts which would violate the terms of the 
permanent injunction provided for in para­
graph 4 of this order; (c) shall not provide 
any state funds to any of said school districts 
which has been found in violation of the terms 
of the permanent injunction provided for in 
paragraph 4 of this order; and (d) shall make 
appropriate inquiries whenever the State De­
partment of Education receives information or 
complaints reflecting possible violation by any 
of said school districts of the terms of the 
permanent injunction provided for in para­
graph 4 of this order.

8. The Clerk is directed to send a copy of this 
Order to all attorneys who have entered an appear­
ance on behalf of any of the individual school districts 
named herein, and in the event that no attorney has 
appeared on behalf of an individual school district, 
a copy of this Order shall be mailed to the school 
superintendent of that district. Any individual school 
district that objects to any of the provisions of this 
Order must file notice of the objection with this Court 
within ten (10) days from the date of this Order, 
which shall become final and conclusive as to each 
school district which does not object within that time. 
I f  objections are filed, a hearing will be set on the 
objections at a subsequent date.

Done this 14th day of February, 1974.
A lexander J. L awrence,

United States District Judge.



22a

Approved as to form:
K aydell O. W eight,

Counsel for Plaintiff.
A lfred L. Evans, Jr.,

Counsel for Defendants. 
Elizabeth R. R indskobf, Jr.,

Counsel for Plaintiff-Intervenor.



In the United States District Court for the 
Middle District of Georgia, Macon Division

Civil Action No. 2771

U nited States of A merica, plaintiff 

Charlie Ridley, et al., plaintiff-intervenor

v.

State of Georgia, et al., defendants 

consent order

This ease was originally filed by the United States 
on August 1, 1969, in the United States District Court 
for the Northern District of Georgia against the State 
of Georgia and various school agencies and officials of 
the state. United States v. State of Georgia, et al., 
C.A. No. 12,972 (N.I). Ga.). That Court entered a 
number of orders for the purpose of effecting desegre­
gation of the public schools of 81 school districts1 
located throughout the State of Georgia, and on 
September 5, 1972, in compliance with the directions 
of the United States Court of Appeals for the Fifth 
Circuit, that Court issued an order which, inter alia 
added as parties defendants each individual school 
district and transferred to this Court’s jurisdiction 
the 47 school districts involved in these proceedings.

1 The 81 original school districts in the case were reduced to 79 
by the consolidation o f two city districts with their respective 
county counterparts.

(23a )



24a

On December 27, 1973, the State defendants moved 
this Court to dismiss the State of Georgia, the State 
Board of Education and State Superintendent of 
Schools as parties defendant, or, in the alternative, to 
“ enter an order . . . similar to an order entered by 
the Northern District on June 23, 1973, placing on an 
inactive docket those local county and city school 
systems within the Middle Judicial District which by 
virtue of compliance with all court orders have 
achieved and maintained a ‘unitary status’. . . . ”  The 
State defendants, the intervenors, and the United 
States have agreed that the alternative relief re­
quested by the state would appropriately dispose of 
the motion.

On the basis of the record in this case, this Court 
has determined (1) the Bleckley Comity School Dis­
trict, the Butts County School District, the Calhoun 
County School District, the Chattachoochee County 
School District, the Clay County School District, the 
Cochran City School District, the Cook County School 
District, the Crawford County School District, the 
Dooly County School District, the Grady County 
School District, the Hancock County School District, 
the Harris County School District, the Hart County 
School District, the Hawkinsville City and Pulaski 
County School District, the Jasper County School 
District, the Jones Comity School District, the Lee 
County School District, the Macon County School Dis­
trict, the Marion County School District, the Miller 
County School District, the Monroe County School 
District, the Morgan School District, the Peach 
County School District, the Pelham City School Dis­
trict, the Putnam School District, the Quitman School 
District, the Randolph County School District, the 
:Schley County School District, the Terrell County



25a

School District, the Turner County School District, 
and the Wilcox County School District have for three 
years assigned students to the public schools in ac­
cordance with the plans approved by the Northern 
District and have become “ unitary” in the sense re­
quired by the Supreme Court’s decisions in Green v. 
County School Board, 391 U.S. 430 (1968) and Swann 
v. Board of Education, 402 U.S. 1 (1971).

(2) The following school systems have made the 
indicated modifications in the original desegregation 
plans which have not previously received court 
approval:

a. The Echols County School District has designated 
grades 1-3 within the Echols County Elementary and 
High School as the Echols County Primary School.

b. The Irwin County School District has added the 
Irwin County Middle School, serving grades 4-6, and 
the creation of the Middle School has resulted in 
alteration of grade structure at Irwin County Elemen­
tary, formerly serving grades K -4 and now serving 
K-3, and at the Irwin County Junior High, formerly 
serving grades 5-8, and now serving grades 7-8.

c. The Mitchell County School District altered its 
grade structures by combining Mitchell County Pri­
mary and Mitchell County Middle, formerly serving 
grades 6-9, now serving grades 6—8; Sumner Elemen­
tary School serving grades 1-6 and by combining 
Mitchell County Junior High and Mitchell County 
Senior High, formerly serving grades 7-9 and 10-12, 
into the Mitchell County High School serving grades 
7-12.

d. The Worth County School District rearranged 
grade structures in Holley Jr. High, formerly serving 
grades 6-9, now serving grades 6-8; Sumner Elemen­
tary, formerly serving grades 5-9, now serves grades



5-8; Ossie Wheary, formerly serving grades 1-8, now 
serves grades K  and 5; and Worth County High,, 
formerly serving grades 10-12, now serves grades 
9-12.

Hone of the above modifications have adversely 
effected desegregation of the public schools in the 
respective school districts and they have become “uni­
tary” in the sense required by Green, supra, and 
Swann, supra.

The Court further determines that the bi-annual 
reports filed on October 10, 1973, by the following 
school districts show student transfers being made 
from, or being received by, the school system as 
indicated:

a. Brooks County. This district has reported 6% 
(68 white students) of its minority white enrollment 
transferring to Thomas County. Brooks County has 
a student racial enrollment of 65% black and 35% 
white (1949 black, 1067 white), whereas Thomas 
County has a student racial enrollment of 58% black 
and 42% white (3318 black, 2371 white). Brooks 
County District reports an additional 10% of its 
minority enrollment (119 white students) transfer­
ring to Lowndes County which has a 75% white 
student enrollment.

b. Early County. This district has reported 7% 
(80 white students) of its minority white enrollment 
transferring to Seminole County. Early County has 
a 38% white student enrollment (1731 black, 1039 
white) whereas Seminole County has a student racial 
enrollment of 44% black and 56% white.

c. Sumter County. This district has reported 18% 
(138 white students) of its minority white enroll­
ment transferring to Americus City School District. 
Sumter County has a student racial enrollment of

2 6 a

201--03S— 7 8



27a

72% black and 28% white (1604 black, 609 white) 
whereas Amerieus City has a student racial enroll­
ment of 54% black and 46% white (194 [stc] black, 
1259 white).

d. Twiggs County. This district has reported 14% 
(65 white students) of its minority white enrollment 
transferring to Wilkinson County. Twiggs has a 21% 
white student enollment (1504 black, 403 white) 
whereas Wilkinson County has a student racial en­
rollment of 57% black and 43% white.

The record also shows that the Lamar County 
School system continues to assign students to public 
schools under a plan which provides for sex segrega­
tion, and no hearing has yet been held where the school 
officials could demonstrate that the plan is based on 
educational rather than racial reasons. In addition, 
the record shows the following active litigation pend­
ing with respect to the indicated school districts:
(a) the Baker County School District was the subject of 
a motion for supplemental relief, concerning the sale 
of a formerly public school for the use of a private 
segregated school, which was resolved by an order of 
this Court dated January 4, 1974, and though the time 
for filing appeal has not run, the Court believes the 
Baker County School District can also be placed on 
the inactive docket because the January 4, 1974, order 
does not relate to student assignment. This action by 
the Court in no way will affect the January 4, 1974, 
order which will remain in full force and effect, but 
the detailed regulatory injunction concerning student 
assignment against the Baker County School District 
is dissolved and the permanent injunction outlined in 
paragraph 2 below, subparagraphs a through f, is 
substituted therefor; (b) the Elbert County School 
District is the subject of a pending motion to modify



28a

the desegregation plan presently in effect; (c) the 
Taylor County School District is the subject of a 
pending motion to eliminate sex segregation in its 
schools; (d) the Wilkinson County School District is 
the subject of a pending motion concerning alleged 
aid to a private segregated school.

The parties to this consent order agree that the 
above findings accurately represent the present status 
o f the indicated school districts as shown by the record 
in this case and the bi-annual reports filed by the 
school districts. As indicated by the signatures of 
counsel below, the parties have also agreed on the 
form of this decree and the Court being of the opinion 
that the entry of this decree will effectuate federal 
law, now therefore: it is ordered, adjudged and 
decreed that

1. The modifications in the desegregation plans for 
the Worth County School District, Mitchell County 
School District, Irwin County School District and 
Echols County School District described above are 
approved.

2. The detailed regulatory injunction issued by the 
United States District Court for the Northern District 
of Georgia on December 17, 1969, as subsequently 
modified, is dissolved for the Bleckley County School 
District, the Butts County School District, the Cal­
houn County School District, the Chattahoochee 
County School District, the Clay County School Dis­
trict, the Cochran City School District, the Cook 
County School District, the Crawford County School 
District, the Dooly County School District, the Echols 
County School District, the Grady County School Dis­
trict, the Hancock County School District, the Harris 
County School District, the Hart County School Dis-



29a

triet, the Hawkinsville City and Pulaski County 
School District, the Irwin County School District, the 
Jasper County School District, the Jones County 
School District, the Lee County School District, the 
Macon County School District, the Marion County 
School District, the Miller County School District, the 
Mitchell County School District, the Monroe County 
School District, the Morgan School District, the Peach 
County School District, the Pelham City School Dis­
trict, the Putnam School District, the Quitman School 
District, the Randolph County School District, the 
Schley County School District, the Terrell County 
School District, the Turner County School District, 
the Wilcox County School District, and the Worth 
County School District and the following permanent 
injunction is substituted for each school district:

(a) The school district shall take no action which 
tends to segregate students or faculty by or within 
schools on the basis of race, color, or national origin.

(b) Staff members who work directly with children 
and professional staff who work on the administrative 
level will be hired, assigned, promoted, paid, demoted, 
dismissed, and otherwise treated without regard to 
race, color, or national origin.

(c) Each school district shall permit a student at­
tending a school in which his race is in the majority 
to choose to attend another school where his race is in 
the minority. Any student transferring under this ar­
rangement must be provided with free transportation 
and space must be made available in the school to 
which the student desires to move.

(d) Bus routes and the assignment of students to 
buses will be designed to insure the transportation of 
all eligible pupils on a non-segregated and otherwise 
non-discriminatory basis.



30a

(e) All school construction, school consolidation and 
site selection (including the location of any tempo­
rary classrooms) in the system shall be done in a man­
ner which will prevent the reoccurrence of the dual 
school structure.

(f )  I f  the school district grants transfers to stu­
dents living in the district for their attendance at 
public schools outside the district, or if it permits 
transfers into the district, it shall do so on a non-dis- 
criminatory basis, except that it shall not consent to 
transfers where the cumulative effect will reduce de­
segregation in either district.

3. Each of the school districts listed in paragraph 2 
above shall be placed on this Court’s inactive docket, 
subject to being reactivated on proper application by 
any party, or on the Court’s motion, should it appear 
that further proceedings are necessary.

4. The State of Georgia, the State Board of Educa­
tion, its individual members, and the State Superin- 
tendant of Schools have a continuing duty to promote 
compliance by the school districts in this cause with 
orders of this Court and shall remain as active parties 
to this case until all of the school districts in this cause 
have been placed on the inactive docket.

5. The July 16, 1971, order in this case provides:
“ [I ]n  no event, shall more than 5% of the 
minority students be allowed to transfer to 
other districts where they are either in the 
majority or made a larger part of a minority 
percentage than in the district from which they 
have transferred. . .”

Since the bi-annual reports of the Brooks County 
School District, the Thomas County School District, 
the Early County School District, the Seminole County 
School District, the Sumter County School District,



31a

the Americus City School District, the Twiggs County 
School District, and the Wilkinson County School 
District show that those districts are either sending or 
receiving nonresident students in excess of five (5) per 
cent of the minority students of the sending school 
district under circumstances where the transferring 
students are either in the majority or made a larger 
part of a minority percentage than in the district 
from which they have transferred, they will remain 
on the active docket of this Court. Further special 
orders will subsequently issue to the school officials of 
those districts concerning the issues raised by the stu­
dent transfers shown on the bi-annual reports.

6. Those school districts which are the subjects of 
pending motions—the Elbert County School District, 
the Taylor County School District, and the Wilkin­
son County School District—and the Lamar County 
School District, which continues to assign students to 
school on the basis of sex segregation, shall remain 
on the active docket of this Court.

7, The State of Georgia, the State Board of Educa­
tion, its individual members, the State Superintendent 
of Schools the school districts which remain as active 
parties in this cause as indicated in paragraphs 5 and 
6 of this Order shall continue to comply with all of 
the requirements of December 17, 1969, Order of the 
United States District Court for the Northern Dis­
trict of Georgia, as subsequently modified with the 
following exceptions:

(a) School districts remaining as active parties in 
this cause, in lieu of providing the information re­
quired by the December 17, 1969 Order, as subse­
quently modified, in their bi-annual reports may 
provide the information reported in the School Sys­
tem Summary Reports (Forms 101 and 102) which



32a

are filed with the Department of Health, Education, 
and Welfare and the information reported in the 
Elementary-Secondary Staff Information (Form 
EEO-5) which is filed with the Equal Employment 
Opportunity Commission. However, all school districts 
which remain as active parties in this cause shall 
continue to file bi-annual reports to the State Board 
of Education and the Department of Health, Educa­
tion, and Welfare.

(b) The provisions of the detailed regulatory in­
junction of December 17, 1989, issued by the United 
States District Court for the Northern District of 
Georgia, as subsequently modified, specifying the du­
ties of the State defendants in this cause, shall auto­
matically be dissolved as they pertain to each school 
district which this Court has placed on the inactive 
docket and the following permanent injunction sub­
stituted :

The State of Georgia; the State Board of 
Education, its individual members and the 
State Superintendent of Schools (a) shall not 
take any action which may result in the rees­
tablishment of the former dual school system 
in any of said school districts; (b) shall not 
permit any action by any of said school dis­
tricts which would violate the terms of the per­
manent injunction provided for in paragraph 4 
of this order; (c) shall not provide any state 
funds to any of said school districts which has 
been found in violation of the terms of the per­
manent injunction provided for in paragraph 4 
of this order; and (d) shall make appropriate 
inquiries whenever the State Department of 
Education receives information or complaints 
reflecting possible violation by any of said 
school districts of the terms of the permanent 
injunction provided for in paragraph 4 of this 
order.



33a

8. The Clerk is directed to send a copy of this 
Order to all attorneys who have entered an appear­
ance on behalf of any of the individual school districts 
named herein, and in the event that no attorney has 
appeared on behalf of an individual school district, a 
copy of this Order shall be mailed to the school super­
intendent of that district. Any individual school dis­
trict that objects to any of the provisions of this 
Order must file notice of the objection with this Court 
within ten (10) days from the date of this Order, 
which shall become final and conclusive as to each 
school district which does not object within that time. 
I f  objections are filed, a hearing will he set on the 
objections at a subsequent date.

Done this 24th day of January, 1974.
W ilbur D. Owens, Jr., 

United States District Judge..
Approved as to form :
J. Gerald H ebert,

Counsel for Plaintiff.
A lfred L. Evans, Jr.,

Counsel for Defendants.
Elizabeth R. Rindskopf,

Counsel for Plaintiff-Intern enor.



Civil Action No. 2572

Everett DeCarl Smith, Jr., et al., plaintiffs
and

U nited States of A merica, plaintiff-inteevenor

In the United States District Court for the Eastern
District of North Carolina, Raleigh Division

v.

North Carolina State Board of Education, Golds­
boro City Board of Education, et al., defendants

order

This cause was heard before his Honor, E. T. 
Dupree, Jr., District Judge, upon motion of the de­
fendant, Goldsboro City Board of Education, (here­
inafter sometimes called Goldsboro) to dismiss this 
action as it relates to such defendant. The original 
plaintiffs, plaintiff-intervenor and Goldsboro, were 
all represented by counsel upon oral argument. Plain­
tiff-intervenor and Goldsboro filed legal memoranda 
with the Court. The following facts are established by 
the record:

1. The defendant Goldsboro was made a party to 
this proceeding on September 18, 1970, upon motion 
o f Plaintiff-intervenor, the United States of America.

2. Thereafter, in October, 1970, Goldsboro filed an 
answer to the complaints of the private plaintiffs and 
plaintiff-intervenor, and at the same time filed with 
the Court its plan of organization and desegregation 
adopted and implemented for the school year 1970-71.

(34a )



35a

3. The only exception or objection taken to the 
Goldsboro 1970-71 desegregation plan by private 
plaintiffs and plaintiff-intervenor was to the exist­
ence of one all black elementary school located in the 
Western part of Goldsboro in the center of an all 
black residential area known as the School Street 
School.

4. On April 7, 1971, Goldsboro formally adopted a 
modified school desegregation plan to be implemented 
during the school year 1971-72. This modified plan 
eliminated the one all black school which remained in 
the system.

5. The Goldsboro plan for 1971-72 is set forth in a 
consent decree filed in this proceeding on May 18,1971. 
One of the recitals contained in the order of May 18, 
1971, reads as follows:

“ The plan adopted by the defendant Goldsboro 
City Board of Education for the school year 
1971-72 (Appendix A ) has been examined by 
counsel for the private plaintiffs and plaintiff- 
intervenor and all parties are in agreement that 
said plan as adopted by the defendant Golds­
boro City Board of Education meets the require­
ments imposed upon [Goldsboro] by the law of 
the land.”

6. Before signing the consent order this Court also 
examined said plan and concluded that the plan, when 
implemented, would establish a unitary school system 
within the district administered by Goldsboro.

7. The plan described in the court order Avas imple­
mented by Goldsboro for the school year 1971-72 and 
has been folloAved for the succeeding school years of 
1972-73 and 1973-74.

8. In faithful compliance with the order, Goldsboro 
has filed each school year, on or before October 15, a



36a

report to the Court containing the information, statis­
tics, and other data required under the reporting pro­
visions of Appendix B of the order. These reports 
demonstrate, and the Court so finds, that Goldsboro 
has fully implemented the 1971-72 plan and has other­
wise complied with the order of May 18, 1971. Indeed, 
there has been no complaint of non-compliance filed 
by any party to this proceeding. Counsel for plaintiff- 
intervenor concedes in oral argument that Goldsboro 
is in compliance.

9. There is nothing before the Court to indicate that 
Goldsboro, or any other agency of the State, has at­
tempted to fix or alter demographic patterns so as to 
affect the racial composition of any of the schools 
within the system. Furthermore, there is nothing in 
the record to indicate or suggest Goldsboro will not 
continue to act in good faith and to operate a unitary 
school system.

10. The Court has been informed that the defendant, 
Jerry i ). Paschall, is no longer serving as Superin­
tendent of the Goldsboro City Schools.

Based on the foregoing findings and entire record 
the Court concludes it has retained jurisdiction over 
Goldsboro for a reasonable and sufficient period of 
time to insure that the school system has been oper­
ated in compliance with its previously entered order, 
and in the exercise of its broad discretionary author­
ity, the Court is of the opinion that there is no need 
or justification for it to continue to exercise a super­
visory role and for these reasons the motion to dismiss 
ought to be granted;

Now therefore, it is ordered, adjudged and decreed:
1. That the defendant, Goldsboro City Board of 

Education, continue to operate a unitary school system



37a

in substantial compliance with its plan of desegrega­
tion previously approved by the Court on May 18, 
1971, and with the Constitution of the United States;

2. That this action be and the same is hereby dis­
missed, without prejudice, as it relates to the defend­
ant Goldsboro City Board of Education and the 
defendant Jerry D. Pasehall, former Superintendent.
See Harper, et als.,------F. 2 d ---------- —  (No. 73-1853,
Fourth Circuit, October 15, 1973).

This the 6th day of November, 1973.
F. T. Dupree, Jr.,

U.S. District Judge.



Civil Action Ho. 70-298-CIV-T 
(Pasco County School District)

United States of A merica, plaintiff

v.

Baker County School District, et al., defendants

ORDER

The parties, by and through their counsel, having 
agreed to entry of the following order, it is hereby 
ordered, adjudged and decreed:

1. The detailed regulatory injunction issued by this 
Court on August 5, 1970, is dissolved.

2. The defendant school district is permanently en­
joined from operating a dual system of racially iden­
tifiable schools. In addition, operation of the defend­
ant school district shall be subject to the following 
provisions:

a. Defendants shall take no action which 
tends to segregate students or faculty by or 
within schools on the basis of race, color, or 
national origin.

b. Staff members who work directly with 
children, and professional staff who work on 
the administrative level will he hired, assigned, 
promoted, paid, demoted, dismissed, and other­
wise treated without regard to race, color, and 
national origin.

c. The school district shall permit a student 
attending a school in which his race is in the

(38a )

In the United States District Court for the Middle
District of Florida, Tampa Division



39a

majority to choose to attend another school, 
where his race is in the minority. Any student 
transferring under this arrangement must be 
provided with free transportation and space 
must be made available in the school to which 
he desires to move.

d. Bus routes and the assignment of stu­
dents to buses will be designed to insure the 
transportation of all eligible pupils on a non- 
segregated and otherwise non-discriminatory 
basis.

e. All school construction, school consolida­
tion, and site selection (including the location 
of any temporary classrooms) in the system 
shall be done in a manner which will prevent 
the reoccurrence of the dual school structure.

f. I f  the school district grants transfers to 
students living in the district for their attend­
ance at public schools outside the district, or if 
it permits transfers into the district of students 
who live outside the district, it shall do so on 
a non-discriminatory basis, except that it shall 
not consent to transfers where the cumulative 
effect will reduce desegregation in either 
district.

3. This action is hereby closed as an active case of 
this Court subject to being reopened on proper appli­
cation by any party, or on the Court's motion, should 
it appear that further proceedings are necessary.

Done this 7th day of November, 1973.
W m . Terrell H odges, 

United States District Judge.
Approved as to form and content:
Joe A. McClain,

Attorney for Defendants.
Thomas M. K eeling,

Attorney for Plaintiff.

V.S  GOVERNMENT PRINTING O F P IC E «l97f