Hoots v. Pennsylvania Brief for Plaintiffs-Appellees

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT

Nos. 81-1691 81-1692 81-1693
81-1694 81-1695 81-1790
81-1986 81-1987 81-1988

DOROTHY HOOTS, et al..
Appellants,

v.
COMMONWEALTH OF PENNSYLVANIA, et al..

Appellees.

THOMAS J. HENDERSON
10th Floor, Allegheny Building 
429 Forbes Avenue 
Pittsburgh, Pennslyvania 15219 
(4i2) 255-6700

JACK GREENBERG 
JAMES M. NABRIT, III 
JAMES S. LIEBMAN 

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

ATTORNEYS FOR PLAINTIFFS-APPELLEES



TABLE OF CONTENTS

Cross-Reference Index of Arguments ................. iv
Table of Authorities ...............................  xi
List of Tables ..........................  xviii
Statement of the Issues ........  1
Summary of the Argument ............................  1
Statement of the Case .................    3

A. Prior Proceedings ................... 3
B. Facts ...............................  9

1. The Reorganization Acts and
administrative guidelines ......  9' *■ s

2. The creation of GBASD and the
four former districts .........   13

Argument ............................................ 20
I. THE DISTRICT COURT'S DETERMINATION THAT 

PENNSYLVANIA AUTHORITIES INTENTIONALLY 
SEGREGATED SCHOOL DISTRICTS AMPLY SUP­
PORTS ITS CONSTITUTIONAL-VIOLATION FIND­
ING, AND IS NOT CLEARLY ERRONEOUS .......  20
A. Relying on Proper Fourteenth Amend­

ment Standards, the District Court 
Has Repeatedly Found that Pennsyl­
vania School Officials Intentionally 
Segregated GBASD and Neighboring 
School Districts on the Basis
of Race .............................  22
1. The district court applied 

the correct Fourteenth Amend­
ment standard in its 1973
violation decision .............  22

2. Between 1973 and 1981, following
additional argument and hearings, 
the district court repeatedly 
reaffirmed its legally un­
assailable violation finding .... 31

Page

- i -



Page
B. The Trial Court's Findings of Inten­

tional Racial Segregation Are Not
Clearly Erroneous ...............   34
1. The "direct" evidence of

intent ..........................  36
2. The "circumstantial" evidence of

intent ..........................  40
C. The District Court's De Jure-Dis- 

crimination Finding Is Strongly 
Supported by the State Board's 
Peculiar Construction of Its "Race"
Guideline ........... ...............  42

II. THE DISTRICT COURT DID NOT ABUSE ITS BROAD 
REMEDIAL DISCRETION IN CONSOLIDATING FIVE 
SCHOOL DISTRICTS, WHOSE BOUNDARIES WERE ALL 
UNCONSTITUTIONALLY DRAWN, INTO ONE DESEGRE­
GATED DISTRICT...... ....................  50

A. The District Court Applied Proper 
Standards in Determining that the Vio­
lation Was Interdistrict in Nature
and Involved School Districts on
Either Side of Unconstitutionally
Formulated Boundaries ..............  51

B. The District Court Applied Proper 
Standards and Correctly Determined,
Based on Extensive Evidence, that 
the Scope of the Violation Encom­
passed GBASD and the Four Former
Districts ...........................  56
1. The district court applied 

proper standards in determining 
that the violation affected all 
central eastern Allgheny
County ..........................  56

2. The district court's findings 
that each of the former school districts was directly impli­
cated in the State's line­
drawing violation are supported
by extensive record evidence .... 62

- ii -



Page

a. Churchill .........................  63
b. Edgewood ..........................  66
c- Swissvale .....................  68
d. Turtle Creek ...........    69

3. The district court applied proper legal 
standards in concluding that the vio­
lation was, and that the remedy could 
be, "system-wide" ..................  71

C. The District Court Did Not Abuse Its Broad 
Remedial Discretion in Concluding That 
Five of the School Districts that Could 
Properly Be Included in a Remedy Should 
be Included in a Single-District-Consolida­
tion P l a n .........     74

III. THE DISTRICT COURT AFFORDED THE FORMER DISTRICTS 
A LEGALLY SUFFICIENT OPPORTUNTY TO PARTICIPATE 
AND BE HARD ON ALL RELEVANT ISSUES .............  78

Conclusion ................    65
Certification........................................... xix

- iii -



CROSS-REFERENCE INDEX OF ARGUMENTS
Appellants 1 Contentions- y

Page
•kit /

Section Page

Response

Edqewood, Turtle Creek

I. THE DISTRICT COURT COMMITTED CONSTI­
TUTIONAL ERROR WHEN IT HELD THAT 
DEFENDANTS HAD VIOLATED THE FOUR­
TEENTH AMENDMENT EVEN THOUGH DEFEN­
DANTS' ACTIONS WERE UNDERTAKEN WITH 
NO SEGREGATIVE INTENT OR PURPOSEFUL
DISRIMINATION 15 I 20
A. The District Court Erred in

Holding that the Fourteenth 
Amendment Was Violated in 
the Absence of Any Segrega­
tive Intent Or Purposeful 
Discrimination

B. The District Court Erred in 
Holding That the Fourteenth 
Amendment Imposed upon the 
State an Affirmative Duty to 
Reduce Any De Facto Segrega­
tion that May be Foreseen

C. The District Court Erred in 
Holding That the Fourteenth 
Amendment Was Violated be­
cause School District Bound­
aries Conformed to Patterns 
of Residential Segregation.

D. The District Court Erred in 
Holding That the Fourteenth 
Amendment Is Violated by a 
State's Refusal to Consider 
Racial Criteria in Its 
Official Actions.

E. The District Court's Re­maining Conclusions of Law 
Are Irrelevant to this Case.

V  These contentions are drawn fromin the respective briefs, except
Turtle Creek, the contentions of
the text of the brief.

**/ See Table of Contents, supra.

16 I.A.1,2 22

19 I.A.1,2 22

25 I.A.1 22

29 I.C. 42

I.A.1,2 22,31

the tables of contents in the case of Edgewood- 
which are drawn from

iv



Appellants' Contentions Response

Page Section Page

II. THE DISTRICT COURT ERRED IN
FASHIONING THE MULTI-DISTRICT 
REMEDY IT CHOSE 41 II 50
A. The District Court Erred in 

Merging School Districts That 
Were Not Shown To Be Involved 
in the Supposed Violation of 
the Fourteenth Amendment 41 II.A.B.1 50,51,56

B. The District Court Erred in
Failing To Join the Appellant 
School Districts For A Hearing 
on Their Involvement or Non- 
Involvement in the Constitu­
tional Violation 44 III 75

C. The District Court Erred in 
Ordering Edgewood School Dis­
trict Merged Because the Evi­
dence Affirmatively Shows That 
Edgewood Would Not Have Been 
Merged By the County and State 
Boards In the Absence of a
Constitutional Violation 46 II.B,1,2 56,62,

C. The District Court Erred in 
Ordering Turtle Creek Area 
School District Merged Be­
cause the Evidence Affir­
matively Shows That Turtle 
Creek Would Not Have Been 
Merged By The County and 
State Boards In the Ab­
sence of a Constitutional
Violation 48 II.B.1, 56,62,

Swissvale

I. THE DISTRICT COURT'S 1973
DETERMINATION THAT THE BOARDS 
VIOLATED THE FOURTEENTH AMEND­
MENT RESTED ON ERRONEOUS LEGAL
AND FACTUAL PREMISES 3 I. 20

(b)3,II.C. 66,81

2(d),3 
II. C.

68,71

v



Appellants' Contentions Response

Section Page

A. The District Court, Without 
Finding Segregative Intent, 
Erroneously Concluded That 
the Action of the Boards 
Violated the Fourteenth 
Amendment Merely Because 
It Produced Segregative
Effects 3 I.A. 22
1. The District Court Made

No Finding That the Boards 
Acted With Segregative 
Intent 5 I.A.1,2 22,31

2. The Record Would Not Have 
Supported Such a Finding 13 I.B.1,2 23,36,40

The District Court Erroneourly 
Concluded That the Boards' 
Action Violated the Fourteenth 
Amendment Because It Yielded 
To The Racially Motivated 
Desires of the Surrounding 
Municipalities 24 I.B.1,2 34,36,40
1. The Findings That the Boards' 

Action Was Designed To Ac­
commodate The Desires of the 
Surrounding Municipalities 
Were Clearly Erroneous As To 
Some, if Not All, Municipal­
ities 26 I.B.1,2 34,36,40

2. The Finding That the Municipal' 
ities Were Racially Motivated 
Was Clearly Erroneous 28 I.B.1,2 34,36,40

3. The Finding of Racial Motiva- 
vation On the Part of the 
Municipalities Would Not In 
Any Event Establish a Con­
stitutional Violation By the 
Boards In the Absence of 
Evidence Or Findings That 
the Boards Themselves 
Shared or Knew of That 
Motivation 31 I.A.1,2 20,22,31

vi -



Appellants' Contentions Response

II.

III.

Page Section

4. The Court's Conclusion That 
the Fourteenth Amendment 
Was Violated Failed For Want 
of a Finding That Either the 
Municipalities or the Board 
Would Have Acted Differently 
But For The Racial Factor

C. The District Court Erroneously 
Concluded That Discrimination 
By Real Estate Brokers Con­
verted De Facto School Segre­
gation Into De Jure Segrega­
tion

D. The District Court Erroneously 
Concluded That the Boards 
Violated the Constitution
By Refusing To Consider Racial 
Criteria

EVEN IF THERE WAS A CONSTITUIONAL 
VIOLATION, THE DISTRICT COURT ERRED
IN INCLUDING SWISSVALE IN THE REMEDY 43 II.A.B.

1 ,B.2(c ) 
B. 3 ,C

IF THIS COURT CONCLUDES THAT CHURCH­
ILL MUST BE EXCLUDED FROM THE REMEDY,
IT SHOULD REMAND THE CASE TO THE 
DISTRICT COURT FOR A CONSIDERATION
OF REMEDIAL ALTERNATIVES 47 II.C

Churchill
IT IS NOT A VIOLATION OF THE FOUR­
TEENTH AMENDMENT FOR A STATE TO 
MAINTAIN ADJACENT SCHOOL DISTRICTS 
WHICH HAVE DISPARATE PROPORTIONS
OF MINORITY STUDENTS 18 I.A.l 2

32 I.A.1,2

35 I.A.1

38 I.C.

- vii -

Page

20,22,31

22

42

50,57,
56,68,
71

74

20,22,31



Appellants' Contentions Response

Page Section Page

II. IT IS NOT A VIOLATION OF THE 
FOURTEENTH AMENDMENT FOR THE 
STATE TO DRAW BOUNDARY LINES 
SEPARATING SCHOOL DISTRICTS SO 
THAT A DISTRICT ON ONE SIDE OF 
THE LINE HAS A DISPARATE NUMBER
OF MINORITY STUDENTS 18
A. There Can Be No Violation of 

the Constitution in the 
Absence of Evidence of Segre- 
gatory Intent. There is No
Such Evidence in This Record... 21

B. The District Court Exacerbated 
Its Error of Avoiding Any 
Finding of Intent by Putting 
the Burden of Proof of 
Absence of a Violation on
the Defendants 22

C. The Court Erred in Finding 
Tht the School Authorities 
Acted to Satisfy the Desires
of Surrounding Municipalities 23

D. Refusal to Consider Race as 
a Factor in Drawing School 
District Lines Was Not the 
Establishment of an Improper
Racial Classification 24

III. THE COURT ERRED BY INCLUDING 
CHURCHILL IN THE REMEDY. IT WAS 
NEITHER INVOLVED IN NOR AFFECTED
BY ANY CONSTITUTIONAL VIOLATION THAT 
MIGHT HAVE OCCURRED 26
A. There Is No Evidence in the 

Record to Establish That Church­
ill Was Involved in or Affected
by Any Constitutional Violation 27

B. Churchill Was Established Under 
Act 299 and Could Not Have Been 
Merged With General Braddock
Under Act 150 34

I.A.1,2 

I.B.1 ,2

I.A.1,2 

I.B.1,2

I. C

II. A,B , C

II.B,1,2 
(a),3 ,C

II.A,B,1

20,22,31

34,36,40

20,22,31

34,36,40

42

50,51,56

50,51,56

50,51,56

- viii -



Appellants' Contentions Response

gage Section Page

IV. THE SCHOOL DISTRICTS SUBJECT TO 
THE REMEDIAL ORDER SHOULD HAVE 
BEEN AFFORDED A COMPLETE HEARING 
ON THE NATURE AND EXTENT OF THE
ALLEGED VIOLATIONS 37 H I

Commonwealth
I. THE DISTRICT COURT ERRED IN FINDING 

A CONSTITUTIONAL VIOLATION WHEN IT 
DID NOT FIND AND COULD NOT HAVE 
FOUND THAT DEFENDANTS ACTED WITH a
PURPOSE OR INTENT TO SEGREGATE 18 I.A.1,2 78

II. THE DISTRICT COURT ERRED IN ITS 
DENIAL OF THE COMMONWEALTH 
DEFENDANTS' PRE-TRIAL MOTIONS TO
JOIN THE APPELLANT SCHOOL DISTRICTS 21 III 78

III. THE LOWER COURT ERRED IN FAILING TO
PROVIDE THE APPELLANT SCHOOL DISTRICTS 
A HEARING ON THEIR INVOLVEMENT OR NON­
INVOLVEMENT IN THE CONSTITUTIONAL 
VIOLATION 26

Allegheny Intermediate Unit
1. Was the District Court's 1973 decision 

holding that the State and County 
Boards of Education violated the 14th 
Amendment in establishing the General 
Braddock Area School legally erro­
neous and factually unsupported by the Record? 4

(a) Did the State and County Boards 
have an affirmative constitutional duty to 
reduce interdistrict racial imbalance not of their own making? 4

I.B.1,2 34,36,40

I.A.1,2 20,22,31

- ix -



Appellants' Contentions Response

Paqe Section Page

(b) Did the State and County Boards 
violate the Constitution by refusing to con­
sider race in their redistricting plan? 4 I.C. 42

(c) Was the District Court's 
holding of unconstitutional de jure 
segregation legally erroneous in the 
absence of any finding, or any factual 
bassi for a finding, that the Board acted 
with segregative intent? 4 I.B.1,2 34,36,40

Amicus Curiae, Pennsylvania School Board Ass'n
I. THE LOWER COURT ERRED IN FINDING 

UNCONSTITUITONAL SEGREGATION IN 
THE CREATION OF THE GENERAL 
BRADDOCK AREA SCHOOL DISTRICT 
WHERE THERE WAS NO INTENTIONAL 
OR PURPOSEFUL SEGREGATIO AND THE 
GENERAL BRADDOCK AREA SCHOOL 
DISTRICT WAS NOT A SEGREGATED 
SCHOOL DISTRICT 6 I 20
A. General Braddock was not 

created with segregative 
intent or purpose 7 I.A.1,2 22,31

B. No segregated condition was 
created by the creation of 
General Braddock 14 B.1,2 34

II. THE LOWER COURT ERRED IN ABOLISH­ING FIVE (5) SCHOOL DISTRICTS AND 
CREATING A NEW ONE WHERE THERE WAS 
NO EVIDENCE THAT MERGER WAS NEC­
ESSARY OR THAT IT WAS CONSISTENT 
WITH THE NATURE OF THE VIOLATION 
FOUND BY THE LOWER COURT 18 II.A.B.C. 50,51 

56,71
A. The abolition of school districts

is not supportable 9 II.A.C. 50,51 
74

. B. A merger is not necessary to
achieve better racial balance 21

- x -
II.C 74



TABLE OF AUTHORITIES

Cases
ACLU v. Board of Public Works, 357 F. Supp. 877 (D. Md.

1972) ............................................... 84
Aguayo v. Richardson, 473 F.2d 1090, 1100-01 {2d Cir.),

cert, denied, 414 U.S. 1 146 (1973) .... ............  83
Appeal of Braddock Hills, 445 Pa. 343, 285 A.2d 880

(1971 ) ......... .................................... 67,68
Arthur Nyquist, 573 F.2d 134 (2d Cir. 1978), cert

denied, 439 U.S. 860 (1979) ........................  25,26,29,42
Barr v. Rubber Products Co. v. Sun Rubber Co., 425 

F.2d (2d Cir. 1970), cert, denied, 400 U.S.878 ( 1971 ) ......... ......................... ...... 83
Brown v. Board of Education II, 349 U.S. 294 (1955) ....  35
C.F. Richardson v. Pennsylvania Department of Health,

561 F. 2d 489 (3d Cir. 1977) .................. ..... 29
Chartiers Valley Joint Schools v. Countv Board, 418 Pa.

250, 21 1 A.2d 487 ( 1965) ........ ..................  10,1 1 ,84
City of Memphis v. Greene, U.S. , 67 L.Ed.2d

769 ( 1981 ) .........................................  25
Columbus Board of Education v. Penick, 443 U.S. 449

(1979) ..................    28,29,35,42,52,
72,73

Continental Insurance Co. v. Cotten, 427 F.2d 48
(2d Cir. 1970 ) ..............................    83

Davis v. Schnell, 81 F. Supp. 872 (S.D. Ala.), aff'd,
336 U.S. 933 (1949) .....................    25

Davis v. School District, 443 F.2d 573 (6th Cir. 1971),
cert.denied, 404 U.S. 913 (1972) ...... ............  27

Dayton Board of Education v. Brinkman I, 433 U.S.
406 ( 1977) .........................................   39,71,73

Dayton Board of Education v. Brinkman II, 443 U.S.
526 (1979) ....................................  28,29,42,72,73

Page

- xi -



gage
De La Cruz v. Tormey, 582 F.2d 45, 58 (9th Cir. 1978),

cert, denied, 441 U.S. 965 (1979) .................. 29
Diaz v. San Jose Unified School District, 612 F.2d 411

(9th Cir. 1979) ...................................  27,28,29
Donohue v. Board of Electors, 435 F. Supp. 957 (E.D.

N.Y. 1 976) ..........................................  83
Evans v. Buchanan II, 393 F. Supp. 428 (D. Del) (3-judge

court), aff'd, 423 U.S. 963 (1975) ............... 47,48,49,58,
82,83

Evans v. Buchanan III, 416 F. Supp. 328 (D. Del. 1976), 
aff'd, 555 F.2d 373 (3d Cir. 1977)(en banc),
cert, denied, 434 U.S. 934 (1978) ...... ....51,52,53,55,57,58,

71,72,73,75,76
Evans v. Buchanan V, 555 F.2d 373 (3d Cir. 1977)

(en banc), cert, denied, 434 U.S. 934 (1978) ___ 50,51,52,53,
56,57,77

Evans v. Buchanan VI, 435 F. Supp. 832 (D. Del. 1977), 
aff'd, 582 F.2d 750 (3d Cir. 1978) (D. Del 1977), 
cert, denied, 446 U.S 923 (1980) .......... . 75

Evans v. Buchanan VIII, 582 F.2d 750, 762-67 (3d Cir.
1978), (en banc), cert, denied, 446 U.S. 923
(1980 ) ............     50,51,55,72,73,

75,77
Flores v. Pierce, 617 F.2d 1386 (9th Cir. 1980),

cert, denied, 101 S. Ct. 268 ( 1 981 ) ....... ....... 27,30
Franks v. Bowman Transportation Co., 424 U.S 747

(1 976) ............................................  50
Gentry v. Smith, 487 F.2d 511 (5th Cir. 1973) .........  82
Gilmore v. City of Montgomery, 417 U.S. 556 (1974) ....  50,74
Gomillion v. Lightfoot, 364 U.S. 339 (1960) ...........  28
Government of Virgin Islands v. Gereau, 523 F.2d 140(3d Cir. 1975) ...........................    41
Griffin v. Board of Education, 239 F. Supp. 560 (E.D.

Va. 1965) (3-judge court) ......................... 84

xii



Page

Griffin v. County School Board, 377 U.S. 218 (1964) ....  26
Hadco Products, Inc. v. Frank Dini Co., 401 F.2d 462

(3d Cir. 1968) ............................. ....... 34,39
Haney v. Board of Education of Sevier County, 410

F.2d 920 (8th Cir. 1969) ........................... 55
Hazelton Area Shool District v. State Board, 364 

A.2d 660 (Pa. 1976), aff'q 347 A.2d 324
(Cmwlth Ct. 1975) ....... ..........................  84

Hills v. Gautreaux, 425 U.S. 284 ( 1 975) ...........  51,52,53,56,57,
71,73

Hoots v. Commonwealth of Pennsylvania (Hoots I),
334 F. Supp. 820 (W.D. Pa. 1 971 ) ................ . 4,21,68,78

Hoots v. Commonwealth of Pennsylvania (Hoots II),
359 F. Supp. 807 (W.D. Pa. 1973), appeal dism'd,
495 F.2d 1095 (3d Cir.), cert, denied, 419 U.S.
884 (1974) ..........................................  passim

Hoots V. Commonwealth of Pennsylvania (Hoots III), 495 
F.2d 1095 (3d Cir.), cert, denied, 419 U.S. 884 
(1974) .......................................  4,5,34,79,82,83

Hoots v. Commonwealth of Pennsylvania (Hoots IV),
587 F. 2d 1340 (3d Cir. 1 978) .... ............... 4,6,10,34

Hoots v. Commonwealth of Pennsylvania (Hoots V ), 639 
F.2d 972 (3d Cir.), cert, denied, U.S. ,
69 L. Ed. 2d 974 (1981 ) .....................777....  4,6,7,34,

50,74,77,81
Hoots v. Commonwealth of Pennsylvania (Hoots VI), 510

F. Supp. 615 (W.D. Pa. 1981) ........................ passim
Hoots v. Commonwealth of Pennsylvania (Hoots VII),

No. 71-538 (W.D. Pa. Apr. 6, 1981 ) ...... ......... 4,8,9,75,77
Hoots v. Commonwealth of Pennsylvania (Hoots VIII),

No. 71-538 (W.D. Pa. Apr. 28, 1981) .......  4,8,9,14,34,38,41,
59,67,73,75,76,77

Husbands v. Commonwealth of Pennsylvania,
359 F. Supp. 925 (E.D. Pa. 1973) .................  84

Hunter v. Erickson, 393 U.S. 385 ( 1965) ................  46,47

xii i



Insurance Group Committee v. Denver & Rio Grande R.,
329 U.S. 607 ( 1947 ) ............................ . 79

Kaplan v. International Alliance, 525 F.2d 1354 (9th
Cir. 1975) .......... ..................... ......... 82

Keyes v. School District No. 1, 412 U.S. 189 (1973) __ 31,32,33,39,
72,73,79

Lee v. Macon County, 267 F.2d 458 (M.D. Ala.) (3-judge
court), aff'd, 389 U.S. 215 (1967) .................. 84

Lee v. Nyquist, 318 F. Supp. 710 (W.D.N.Y. 1970)
(3-judge court), aff'd, 401 U.S. 935 (1971) ......  46,48,49

Loving v. Virginia, 388 U.S. 1 (1967) ..................  46,47
McLaughlin v. Florida, 379 U.S. 184 (1964) ............. 47
Milliken v. Bradley I, 418 U.S. 717 (1974) ......... 7,32,33,34,51,

42,53,54,55,61
72,74,77,79,80,

81,82,84
Milliken v. Bradley II, 433 U.S. 267 (1977) ............  51
Mobile v. Bolden, 446 U.S. 55 (1980) ..........  26
Moore v. Knowles, 482 F.2d 1070 (5th Cir. 1973) ........ 83
Morrilton School District No. 32 v. United States,

606 F.2d 222 (8th Cir. 1979), cert, denied,
444 U.S. 107 ( 1 980 ) ................................  52,53,55

NAACP v. Lansing Board of Education, 559 F.2d 1042 
(6th Cir. 1977), cert.' denied, 434 U.S.
997 (1978) .....................................   29

National Welfare Rights Organization v. Wyman,
304 F. Supp. 1346 (E.D.N.Y. 1967) ............... . 83

North Carolina Board of Education v. Swann, 402
U.S. 31 (1971) .....................................  48

Personnel Administrator v. Feeney, 442 U.S. 256
(1979) ............................................  23,24,29,

35,42
Provident Tradesmen Bank & Trust Co. v. Patterson,390 U.S. 102 (1968) ...........................    82

Page

- xiv -



Page
Reed v. Rhodes, 607 F.2d 714, 735 (6th Cir. 1979),

cert, denied, 445 O.S. 935 ( 1980 ) .................. 28,29
Regents of the University of California v. Bakke,

438 U.S. 265 ( 1978) ................................ 47
Reitman v. Mulkey, 387 U.S. 369 (1967) .......... . 25,47
Resident Advisory Board v. Rizzo, 564 F.2d 126 (3d Cir.

1977), cert, denied, 435 U.S. 908 (1978) ........  24,25,26,27,
30,35,42,46

Sealy v. Department of Public Instruction, 252
F. 2d 989 (3d Cir. 1 958) ............... ............  32

Seattle School Dist. No. 1 v. Washington, 633 F.2d1338 (9th Cir. 1980) ...............................  48
South Carolina v. Katzenbach, 388 U.S. 301 (1966) ......  83
State Board v. Franklin Township School District,

209 Pa. Super. 410, 288 A.2d 221, 224 (1967) ......  15
Swann v. Charlotte-Mecklenburg Board of Education,

401 U.S. 1 (1971) .............................  32,47,48,50,74
Toney v. White, 476 F.2d 203 (5th Cir. 1973) ...........  83
Turner v. Warren County Board, 313 F. Supp. 380 (E.D.N.C. 1970)   56
United Jewish Organizations v. Carey, 430 U.S. 144(1977) ..................................   47
United States v. Board of School Commissioners, 513 

F.2d 400 (7th Cir.), cert, denied, 439 U.S.
824 (1978) .....................................  27,28,29,35,42,52,

53,55,56
United States v. Missouri, 363 F. Supp. 739 (E.D.

Mo. 1973), aff'd, 515 F.2d 1368 (8th Cir.), .
cert, denied, 423 U.S. 951 ( 1975) .................  55,56

United States v. Missouri, 388 F. Supp. 1058 (E.D.
Mo*)» aff'd, 515 F.2d 1365 (8th Cir.), cert, denied,423 U.S. 951 ( 1975) .....................  53,55,

United States v. Missouri, 515 F.2d 1365, 1369-71 
(8th Cir.), cert, denied, 423 U.S. 951
(1975) .......................................   53,55,56

- xv -



Page

United States v. School Dist. 151, 301
F. Supp. 201 (N.D. 111. 1969), aff*d, 432 
F.2d 1147 (7th Cir.) cert, denied, 402
U.S. 943 (1970) .......... .........................  25,27

United States v. School District of Omaha, 565 F.2d 
127 (8th Cir. 1977), cert, denied, 434 U.S.
1064 (1978) ..... ........................... ....... 29

United States v. Texas, 321 F. Supp. 1043 (E.D. Tex.),
aff'd, 447 F. 2d 441 (5th Cir. 1971) .......... ..... 56

United States v. Texas Education Agency, 564 F.2d 162 (5th Cir. 1977), cert, denied, 443 U.S. 915
(1 979) ............................................  26,27,28,29

United States v. Unified School District No. 500,610 F. 2d 688 ( 10th Cir. 1979) ...................... 29
United States v. United States Gypsum Co., 333 U.S.

374 ( 1948) ............................... ..........  35
United States v. United States Smelting, Refining &

Mining Co., 339 U.S. 186 (1949) .................... 32
United States v. Yellow Cab Co., 338 U.S. 338

( 1 949) ............................. ................  35
Village of Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252 (1977) ....___  22,23,24,25,26,
27,28,29,30,31, 

32,34,35
Washington v. Davis, 426 U.S. 229 (1976) .......  23,28,29,30,32,35
Whiting v. Jackson State University, 616 F.2d 116

(5th Cir. 1980 ) ................ ...................  27
Williams v. Anderson, 562 F.2d 2082 (8th Cir. 1977) ....  26

Zaslawsky v. Board of Education, 610 F.2d 661
(9th Cir. 1979) ....................................  47

CONSTITUIONAL PROVISIONS
U.S. Const., amend. 5 ...................................  83

- xvi -



Page

STATUTES AND ROLES
Fed. R. Civ. P. 1 9 .................................  4,78,82,83,85
Fed. R. Civ. P. 24 ...............................   4,78
Fed. R. Civ. P. 46 ................................. 39
Fed. R. Civ. P. 52 .................................   39
Fed. R. Evid. 201 ..............................   41
Act 561, September 12, 1961, P.L. 1283

No. 561 , 24 P.S. § 2-291, et. seq. ............  passim
Act 299, August 8, 1963, P.L. 564, No. 299, 24

P.S. § 2-290 se. seq. ......................... passim
24 P.S. § 2-291 ...............................  11
24 P.S. § 2-292 ...............................  1 1
24 P.S. § 2-293 ............. .................  10,1 1
24 P.S. § 2-295 .....................    10
24 P.S. § 2-296 ...............................  10

Act 150, July 8, 1968, P.L. 299, No. 150, 24 P.S.
§ 2400.1 ....................................... passim

OTHER AUTHORITIES
Final Report of the Governor's Committee on

Education .....................................  10
3A Moore's Federal Practice .......................  84
Pennsylvania Human Relations Commission, Policy

on Education.... .............................  12
Sedler, Metropolitan Desegregation After Milliken,

1975 WASH. U. L. Q. 535    34
Wright & Miller, Federal Practice and Procedure,

Civil ........................................  82,83

-xvii-



LIST OF TABLES

Table(i): School Districts, 1961; Enrollment,
1964, 1967 .........................  13

Table (ii): County Board Plan Under Act 561
(1964 Figures) ..................... 15

Table (iii): Final County Board Plan Under Act
299 (1967 Figures) ................  16

Table (iv): Final Plan (1971, 1975, 1981
Enrollment Figures) ................  20

Page

xviii



STATEMENT OF THE ISSUES

(1) Whether the district court's repeated finding, based on 
extensive evidence, that Pennsylvania public school officials inten­
tionally created GBASD and its neighbors as racially segregated 
school districts is a sufficient basis for the court's constitutional- 
violation determination.

(2) Whether the district court abused its discretion in conclud- 
ing that the proper remedy in this case is to consolidate into one, 
desegregated school district five pre-existing school districts that 
public officials unconstitutionally created as segregated units in 
the 1960's.

(3) Whether, over the course of ten years of litigation, during 
all of which the former school districts were invited to, and during 
much of which they did, participate, the district court as a matter of 
law or fact denied the districts the requisite opportunity to be heard.

SUMMARY OF THE ARGUMENT
Notwithstanding Appellants' attempt to cloud these appeals with 

a scatter-gun attack on various alternative findings and offhand 
remarks by the district court over the ten-year course of this "long 
and complex" litigation, Hoots v. Commonwealth of Pennsylvania, 639 
F.2d 972 (3d Cir. 1981), their contentions amount to no more than a 
feeble assault on the sufficiency of the voluminous evidence support­
ing the district court's violation and remedial determinations.

Applying the Fourteenth Amendment standard and multiple "eviden­
tiary source[s]" test endorsed in Village of Arlington Heights v. Metro­
politan Development Corp., 429 U.S. 252, 265-67 (1977), the district

1



court properly concluded in 1973, and repeatedly since, that Pennsylva­
nia officials violated the Constitution by drawing segregative 
school-district boundaries "based wholly or in part on" and "because 
of" the race of the students involved. Hoots v. Commonwealth of 
Pennsylvania, 359 F. Supp. 807, 822 (W.D. Pa. 1973). Although appel­
lants microscopically analyze certain statements by the district 
court that are "ancillary and supportive of" its "deliberate segrega­
tion" conclusion, Hoots v. Commonwealth of Pennsylvania, 334 F. Supp. 
820, 822 (W.D. Pa. 1971), their only attack on that principal holding 
is a futile sufficiency of the evidence argument belied by extensive 
"direct" and "circumstantial" record evidence of intentional discrimi­
nation.

Likewise, the district court properly applied the clear standards 
in Milliken v. Bradley, 418 U.S. 717, 745 (1974), in granting inter­
district relief "where district lines have been deliberately drawn on 
the basis of race." Furthermore, the court properly defined the 
scope of the violation, and determined, based on extensive record 
evidence cementing each district to the State's invidious line-drawing 
activities, that each of the districts was the product of and affected 
by the violation. See Hills v. Gautreaux, 425 U.S. 284, 298-300 
(1975); Keyes v. School District No. 1, 413 U.S. 189, 208 (1973).

The record also demonstrates that, despite their deliberate 
and inequitable resistance to participation, the appellant districts 
all had a full opportunty to —  and did —  participate in the disposi­
tion of every issue in this case. In any event, state law deprives 
those districts of any vested interest in their state-drawn boundaries, 
and they accordingly were not subject to mandatory joinder under 
Fed. R. Civ. P. 19.

2



STATEMENT OF THE CASE
A. Prior Proceedings

Plaintiffs are a class of parents (black and white) whose
children attended the public schools in General Braddock Area School1/District (GBASD) —  a tiny (2.64 square miles; 2,042 pupils),
predominantly (63%) black school district located in central eastern 
Allegheny County, Pennsylvania, east of Pittsburgh, and bordered by 
the predominantly or all-white Churchill (99.2% white), Turtle Creek 
(98.1% white), Edgewood (97.8% white) and Swissvale (87.3% white) 
school districts. (3233a.)

On June 9, 1971, plaintiffs filed this action, alleging that the 
Pennsylvania State Board of Education ("the State Board") and the 
Allegheny County Board of Education ("the County Board," later super­
seded by "the Intermediate Unit"), in reorganizing school districts in 
central eastern Allegheny County pursuant to three school-district-re­
organization statutes enacted bv the Pennsylvania legislature in the 1/1960's, deliberately created GBASD as a segregated and identifiably 
black school district in order to maintain the immediately contiguous 
school districts (Churchill, Edgewood, Swissvale and Turtle Creek) as 
segregated and identifiably white school districts. (20a-35a.) Named 
in the complaint as defendants were the Commonwealth of Pennsylva­
nia, the State Board, the County Board and several of their officers.

1/ By Order dated April 28, 1981 , the district court dissolved 
GBASD and the four neighboring school districts and consolidated 
them into one desegregated district. (896a.) Appellants' repeated 
efforts to stay that order in the district court, this Court and the 
Supreme Court were unsuccessful, and accordingly these districts are 
no longer in existence. (3180a, 3181a, 3185a, 3186a, 3372a.)
2/ Act of September 12, 1961, P.L. 1283, No. 561, 24 P.S. § 2-281, 
et seq. ("Act 561"); Act of August 8, 1963, P.L. 564, No. 299, 24 
P.S. § 2-290, et se£. ("Act 299"); Act of July 8, 1968, P.L. 299,No. 15U, 24 P.S. § 2400.1 ("Act 150").

3



to dismiss the complaint for failure to state a cause of action,
concluding that "allegations of deliberate creation of a racially
segregated school district state a cause of action." Hoots I, 334

3/
F. Supp. at 822 (959a). The district court also rejected 
motions by defendants seeking involuntarily to join as defendants 
the five school districts discussed in the complaint. The district 
court held that, because the defendant State and County Boards 
"created [the five districts] without their assent and could ... 
alter [them] similarly," those districts were not essential parties 
whose joinder was mandatory under Fed. R. Civ. P. 19.. However, the 
district court stated that it would permit the school districts 
voluntarily to "intervene in this action under Fed. R. Civ. P. 24 if 
they so desire.'" Id. at 823 (962a). The school districts did not so 
desire. Instead, after the district court "instructed [the Common­
wealth] to give notice" of the suit to the those school districts, 
and after the Attorney General of Pennsylvania wrote the five dis­
tricts "urg[ing]" them "to intervene in this action immediately," the 
districts informed the district court that they had "no interest in 
being" in the lawsuit, and were "deliberately not intervening."
(56a-61 a, 6l4a-18a, 2712a, 3383a, 3389a.) See Hoots II, 359 F. Supp. 
at 821 (775a); Hoots III, 495 F.2d at 1097 (2848a).

In December 1971, the district court denied defendants' motion

3/ During its ten-year history, this case has been the subject of 
six published opinions. A seventh and eighth opinion have not yet 
been published. All eight opinions are captioned Hoots v. Common­
wealth of Pennsylvania, and will be referred to here as Hoots I - 
VIII, as indicated below: Hoots I, 334 F. Supp. 820 (W.D. Pa. 1971) 
^958a); Hoots II, 359 F. Supp. 807 (W.D. Pa. 1973) (749a); Hoots 
III_, 495 F. 2d 1095 (3d Cir.), cert, denied, 419 U.S. 884 ( 1974)
(2846a); Hoots IV, 587 F.2d 1340 (3d Cir. 1978) (2653a); Hoots V,
639 F.2d 972 (3d Cir.), cert, denied, ___ U.S. , 69 L.Ed.2d 974
(1981) (2769a); Hoots VI, 510 F. Supp. 615 (W.D. Pa. 1981) (866a); 
Hoots VII, Order and Opinion of April 6, 1981 (W.D. Pa.) (1378a); 
Hoots VIII, Order and Opinion of April 28, 1981 (W.D. Pa.) (883a).

4



Trial was held on December 5 and 6, 1972. Plaintiffs intro­
duced the testimony of three expert and five lay witnesses, as well 
as 63 documentary, summary and/or graphic exhibits, which were admitted 
into evidence pursuant to a stipulation of the parties. (696a.)

On May 15, 1973, the district court issued an opinion and order
holding that the State and County Boards' creation in the 1960's of
identifiably black GBASD and identifiably white Churchill, Edgewood,
Swissvale and Turtle Creek Districts "constituted an act of de jure
discrimination in violation of the Fourteenth Amendment." Hoots II,
359 F. Supp. at 823 (779a). The district court thereupon ordered
defendants to "prepare and submit to this Court within 45 days from
the date of this Order a comprehensive plan of school desegregation"
which "shall alter the boundary lines of [GBASD] and as appropriate of
adjacent and/or nearby school districts." Id. at 824 (781-82). Defen-

1/dants did not appeal.
Defendants did not submit a "comprehensive plan of school 

desegregation" within 45 days. Indeed, over the course of the next 
eight years, after granting defendants numerous extensions of time 
within which to develop effective desegregation plans, the district 
court found it necessary to reject as inadequate all six plans 
(Plans 22W, A, B and Z, the Tuition Plan and the Upgrade Plan) sub-

4/ After the district court entered its May 15, 1973 decision, 
Churchill, Edgewood, Swissvale and Turtle Creek petitioned to 
intervene. The district court granted these petitions insofar as 
they sought prospective intervention, but denied them insofar as 
they also sought retroactive intervention. (996a.) Two districts 
(Churchill and Turtle Creek) appealed the partial denial of their 
motions. This Court affirmed the district court, holding that the 
retroactive intervention petitions were "untimely." Hoots III, 495 
F.2d at 1097 (2848a.) The Supreme Court denied certiorari. 419 U.S. 884 (1974).

5



1031a, 1378a-81a.) All but one of defendants' plans were inter­
district in nature, and all but two called for the consolidation of 
some or all of the school districts presently involved in this case 
into one or more new school districts. See generally, Hoots IV, 587 
F.2d at 1344-46 (2657a-59a); Hoots V , 639 F.2d at 975-77; id. at 
984-86 (Higginbotham, J., concurring) (2772-74a, 2781a-83a). During 
this 1973-1980 period, the district court also twice (in October 1975 
and October 1980) permitted defendants to present additional evidence 
and argument relevant to the violation (as opposed to the remedy). 
(2684a-706a, 2929a-3015a.) On both occasions, the district court 
reaffirmed its finding of a constitutional violation based on all of 
the evidence before it. (874a, 892a, 2761a-62a, 3201a-02a.)

Plaintiffs twice appealed during this period. In both in­
stances, plaintiffs asked this Court for a remedial order ending 
school segregation in central eastern Allegheny County, which re­
mained unremedied —  and worsened (3233, 3243a-57a) —  during the 
1973, 1974, 1975, 1976, 1977, 1978, 1979 and 1980 school years. 
Although this Court dismissed plaintiffs' first appeal in 1978, it 
stated that it was "confident that —  an appropriate final order" 
would "be entered by year end" 1978. Hoots IV, 587 F.2d at 1351 
(2664a.) In August 1980, after the district court denied plaintiffs'

5/ In addition to the Commonwealth and the Intermediate Unit, the 
Swissvale and Churchill districts participated as defendants in all 
of the proceedings in this case from October 1973 to the present. GBASD voluntarily intervened in February 1979 (2588a), and the Court 
mandatorily joined the Edgewood and Turtle Creek districts in May 
1979 (853a). During the 1973-1975 period, the district court 
thrice remanded the case to the State Board for remedial hearings, 
the transcripts of which are part of the record. (1128a-29a, 3194— 
95a.) All of the school districts presently involved in this case 
participated actively in the State Board's hearings. E.q., 9/10/73 St. Bd. Tr.; 3/6/74 St. Bd. Tr.

mitted by the Commonwealth and the defendant districts.-  (843a,

6



motion for injunctive relief for the second school year since 
1978, plaintiffs again appealed. In Hoots V , issued on January 26, 
1981, this Court granted plaintiffs the following relief:

We believe it to be essential that the 
district court afford relief to [plaintiffs] 
that will be effective in the fall of 1981.
Under no circumstances should a new school 
year begin in the fall of 1981 without an 
acceptable remedial plan in place.

Accordingly, we order the district court 
... within ninety days of the issuance of the 
mandate [to]: (1) complete all hearings and 
necessary proceedings on the merits of the 
competing remedial plans for the desegregation i 
of GBASD; (2) decide the Milliken v. Bradley 
issue of which school districts may be included 
within an interdistrict remedy; and (3) enter 
an appropriate final order granting [plain­
tiffs] the relief to which they are entitled 
under the district court’s order of May 15,
1973, such relief to be effective and imple­
mented by the beginning of the first semester 
of the school year in the fall of 1981.

Hoots V , 639 F.2d at 980-81 (2777a-78a).
On March 5, 1981, the district court entered an opinion and 

order deciding the so-called Milliken v. Bradley issue. The district 
court reaffirmed its 1973 "interdistrict violation" finding, concluded 
that the racially motivated "drawing or redrawing of ... boundaries" 
involved seven central eastern area school districts (including the 
five districts presently involved in the case), and determined that 
"a multi-district remedy" involving some or all of those districts 
was "appropriate." Hoots VI, 510 F. Supp. at 619 (874a). On March 
26, 1981, plaintiffs filed a five-district consolidation plan con­
forming to the district court's March 5 guidelines. (1409a.)

Subsequently, on April 6, 1981, the district court rejected the 
only two remedial plans filed by defendants since 1975— the Upgrade 
Plan and the Tuition Plan —  because neither could "achieve effective

7



desegregation." Hoots VII, at 2, 4 (1379a, 1381a). Based on "all 
of the hearings held," the district court also concluded "that only 
an interdistrict remedy is feasible here, and ... that only a single 
district formed from the consolidation" of pre-existing districts 
would solve the "many difficulties" revealed in "prior hearings" on 
defendants' plans. Id. at 3 (1380a). The court accordingly 
scheduled hearings tor April 20-23, 1981, "to determine the districts 
to be consolidated" in a single new district. Id. at 4 (1381a). At 
those hearings, plaintiffs presented expert testimony favoring a 
five-district consolidation of Churchill, Edgewood, GBASD, Swissvale 
and Turtle Creek. The school districts other than GBASD (using only 
one of the two days that the district court allotted to them) pre­
sented lay and expert testimony in opposition to a five-district 
plan. (1690a, 3215a.) GBASD supported plaintiffs' plan. (3435a.)

On April 28, 1981 ,. the district court entered its first remedial 
order since it found the constitutional violation in 1973. Hoots

(883a). Reiterating its prior finding that the "intentional 
creation [of GBASD] as a racially identifiable black district 
constituted the constitutional violation found in this case," the 
district court held "that a new school district composed of the 
present school districts of Churchill, Edgewood, Swissvale, General 
Braddock and Turtle Creek would achieve desegregation [and] the 
highest beneficial results over and above the results of any other 
plan submitted to this Court by any party during the whole period of 
this litigation." Id. at 6, 9 (889a, 892a). The court accordingly 
ordered those five districts consolidated into a "New School Dis­
trict," which it then ordered to desegregate itself. _Id. at 17 
(900a).

8 -



Finally, after still further hearings, the district court 
entered two orders on July 23 and August 13, 1981, setting forth 
the details of a plan of desegregation of the*8 New District. That 
plan was implemented on September 8, 1981, and the school children of 
central eastern Allegheny County are presently attending desegregated 
schools for the first time in ten years. Orders of July 23 and 
August 13, 1981.

None of the defendants, including the newly joined New School
District, appealed the district court's final desegregation orders.
However, some of the defendants appealed certain aspects of the
district court's 1973 decision in Hoots II and its spring 1981

6/decisions in Hoots VI, Hoots VII, and Hoots VIII. This Court 
consolidated those appeals by order of August 20, 1981.

B. Facts
1. The Reorganization Acts and administrative guidelines 

In the I960's, the Commonwealth of Pennsylvania em­
barked on an ambitious program of mandatory statewide reorgan­
ization and consolidation of existing school districts. In fur­
therance of this program, the Pennsylvania legislature passed 
three statutes, Act 561 in 1961, Act 299 in 1963 and Act 150 
in 1968. See note 2, supra. "[T]he legislative objective em-

6/ Six defendants below, the former Churchill, Edgewood, Swiss- 
vale and Turtle Creek School Districts ("the former school dis­
tricts"), the Commonwealth of Pennsylvania ("the Commonwealth"), 
and the Allegheny County Intermediate Unit Board of School Direc­
tors ("the Intermediate Unit") have appealed. Three defendants 
below, the school districts of East Allegheny, Gateway and the "New 
School District," have not appealed. GBASD is proceeding here as 
an appellee. The term "appellants" will be used to refer collec­
tively to those defendants that have appealed.

- 9 -
I



bodied in [these statutes was] the prompt and expeditious reorgani­
zation of the Commonwealth's public school system in order to

/
accomplish fewer and larger administrative units." Chartiers 
Valley Joint Schools v. County Board, 418 Pa. 250, 211 A.2d 487, 494 
(1965). Accord, Hoots IV, 587 F.2d at 1342 (2655a); Hoots VI, 510 F. 
Supp. at 617 (869a).

Although the three acts (each of which superceded all earlier 
legislation) differed in certain procedural respects, they were 
virtually identical in substance. Because of the failure of 
earlier voluntary reorganization efforts, the acts emphasized the

7/
Boards' responsibility to mandate school district consolidations, 
and required the County Board to propose, and the State Board 
to review, revise (if necessary), and then order, school district 
consolidations. E.g., 24 P.S. §§ 2-293(a), 2-295, 2-296. The acts 
also gave the State and County Boards authority to require dis­
tricts that were previously formed by the voluntary merger of two 
or more districts to consolidate into even larger districts, and to 
merge existing districts that already met statutory requirements

7/ The reorganization statutes were passed in response to the 
Final Report of the Governor's Committee on Education, see 
Chartiers Valley Joint Schools v. County Board, 211 A.2d at 494-95 
n.18, which concluded that:

There can be no doubt that most of our school 
districts and even our joint school systems are 
too small to offer an adequate program. ... The 
lesson is plain. There can be no true reorganiza­
tion of school districts unless it is mandated 
by the state. The choice is simple. Either we 
mandate reorganization or we do not reorganize.

Report, supra, quoted in id.

10



into larger districts, so long as such a merger would aid the 
less healthy districts involved in the merger. Hoots VI, 510 F.
Supp. at 617-18 (870a); 304a, 307a-08a, 446a, 585a.

In carrying out their district-consolidation responsibilities,
the County and State Boards were directed by the acts to comply with
certain reorganization standards set forth in the statute and with
such additional guidelines as the State Board promulgated. E.g. , 24
P.S. §§ 2-291, 2-292. Chief among the statutory reorganization
standards was the requirement that no reorganized school district
"contain a pupil population of less than four thousand (4,000),"
except in "unusual" circumstances, ^d. § 2-293(a); Chartiers Valiev
Joint Schools v. County Board, 211 A.2d at 494. The State Board's
reorganization guidelines interpreted this 4000-pupil standard as
only a starting point, and required reorganized school districts, in
addition, to "include the largest feasible pupil population which
assures the maximum efficiency of operation, and which justifies
curricular offerings and other essential services not economically

8/possible in smaller administrative units." (320a; see also 660a.)
The district court also found as a fact that two race-related 

administrative regulations governed the State and County Boards' 
district-consolidation activities during the 1960's. Hoots II, 359 
F. Supp. at 812, 819-20 (754a, 771a-72a). The first was an "Affirma­
tive Action Policy on Education" promulgated by the Pennsylvania

8/ Additional statutory and administrative standards required the 
Boards to consider contiguity, transportation, existing facilities, 
community characteristics, future population changes, and in 
general to make each district large enough to "promote a comprehen­
sive program of education." 24 P.S. § 2-291; 319-21 a, 660-61 a; see 
Hoots II, 359 F. Supp. at 819-20 (771a-72a); note 31, infra.



Human Relations Commission (HRC) in the early 1960's (simultaneously 
with Act 299) and repromulgated in 1968. (246a-52a, 574a, 652a.)
Under that Policy, the HRC required public school officials in Penn­
sylvania to take certain steps to end all forms of segregation in the

1/public schools of Pennsylvania —  de facto as well as de jure.
The second applicable guideline on race was promulgated by the

State Board in 1963 (under Act 299) and again in 1968 (under Act
150). This guideline provided that:

Race, religion, national origin and differ­
ences in the social and economic levels of 
the population shall not be factors in 
determining administrative boundaries.

(660a; see 320a.) The existence of two conflicting interpreta­
tions of this latter guideline caused considerable controversy during 
the 1960's. (256a-58a.) One ("segregation blind") interpretation,

9/ The HRC Policy on Education states:
Even when school segregation is the result 

of housing conditions and not because of deliberate 
discrimination, the Commission feels it is necessary 
that affirmative steps must be taken by boards of 
public school districts to alleviate racial imbalance, 
regardless of its cause....

To help eliminate de facto segregation and 
to accelerate total integration, the boards of 
education of the public school districts throughout 
Pennsylvania should observe the following guidelines:

1. Every public school district must strive to 
foster desegregation and integration of schools....

2. Each public school should enroll pupils 
from varied backgrounds to the fullest possible 
extent. Public school enrollment should be a
part of a comprehensive plan for the entire district 
rather than local neighborhood interests.

3. Boundary lines within public school 
districts should be redrawn to effect integrated 
student bodies.

(575a-76a.)
1 2



which placed this guideline directly in conflict with the HRC regula­
tion quoted in note 9, supra, permitted officials to draw boundary 
lines that maintained and perpetuated pre-existing racial segregation 
among school districts, even where such segregation was "recognized" 
as a gravely serious problem. (701a-02a, 2702a.) The second 
("segregation opposed") construction prohibited both "de facto 
segregation on the basis of race" and "de jure segregation, through
the fixing of school boundaries ... for racial __ reasons." (573a,
see 256-58a.) Although late in 1968, after all of the school-district 
reorganiztion decisions relevant to this case had been made, the 
State Board officially acknowledged that the "segregation opposed" 
intrepretation was the proper one, the County and State Boards 
stipulated that when they drew the school district boundaries in 
central eastern Allegheny County, they applied the improper, "segrega­
tion blind," interpretaion. Hoots II, 359 F. Supp. at 818-19 (767a- 
68a); 257a-58a, 573a, 701-02a.

2. The creation of GBASD and the former districts
When the Pennsylvania legislature passed Act 561 in 1961, 

the following school districts were operating in central eastern 
Allegheny County:

Table (i): School Districts, 1961; Enrollment, 1964, 1967

1961 District (Post-Re­
organization District)

(331a-36a, 417a- 
1964 Enrollment

-20a, 
1 967

476a, 498a 
Enrollment

Total % Black Total % Black
Braddock (GBASD) 1436 56% 1303 63%
Rankin (GBASD) 678 46% 614 51 %
N. Braddock (GBASD) 2293 14% 2071 20%
Brad. Hills (Swissv.) 433 10% "V 2350 10%
Swissvale (Swissv.) 1897 6% JE. Pitts . (T. Creek) 516 14% 411 6%T. Creek (T. Creek) 1709 0% 1487 0%
Edgewood (Edgewood) 824 0% 976 0%
Wilkins (Church. ) -nF. Hills (Church.) V 4828 0% 5810 0%
Chalfant (Church. )

13



Although administratively distinct, all of these districts
had important interconnections during the early 1960's in the form of
"tuition" arrangements (under which one district educated another
district's students in return for tuition payments), commercial

11/ties and voluntary-merger negotiations. Opposed to these 
centripetal forces, however, was an important centrifugal force: "the 
State and County Boards in devising the plan of administrative units 
for the central eastern portion of Allegheny County were influenced 
by the desires of the sourrounding municipalities to avoid being 
placed in a district with Braddock and Rankin because of the high 
concentration of blacks in these two municipalities." Hoots II, 359 
F. Supp. at 821. Although the district court based its intentional- 
segregation finding on numerous factors (see pp. 25-31, infra), it 
placed particular emphasis on the Boards' unbroken pattern of compli­
ance with their constituents' racially motivated demands. Hoots II, 
359 F. Supp. at 816-17, 821, 822 (764a, 774a, 777a-78a). Accordingly, 
the remainder of this factual statement is devoted to a discussion of 
the portions of the record cited by the district court in support

19/

10/ In Hoots VI, 510 F. Supp. at 617 (870a), the district court 
found that on "May 15, 1962," i.e., after Act 561 was effective, but 
"before the County Board had established [an Act 561] plan for 
reorganization, Chalfant, Wilkins and Forest Hills voted to voluntar­
ily merge into a single district, [Churchill, which] was later 
approved by the State Board on June 25, 1962."
11/ For example, prior to merging into the Churchill district, the pre-existing districts of Chalfant, Wilkins and Forest Hills: 
educated their high school children in Edgewood and Turtle Creek 
pursuant to tuition arrangements; discussed the possibility of 
merging with Braddock Hills and Turtle Creek; and had commercial ties 
with Rankin, Edgewood, Braddock Hills, and Turtle Creek. Similar 
ties linked North Braddock with Braddock Hills, Turtle Creek and East 
Pittsburgh; Rankin with Forest Hills and Swissvale; and Edgewood with 
Braddock Hills and Wilkins. (117a-26a, 303a, 446a-49a, 582a, 585a, 
589a-90a, 622a, 642a) See Hoots II, 359 F. Supp. at 817-18 (766a); 
Hoots VIII. at 9-11 (892a-94a).

14



of that conclusion. See id. at 816-17 (764a).
In September 1962, the County Board proposed the following 

Act 561 reorganization plan for the school districts in central 
eastern Allegheny County:

Table (ii): County Board Plan Under Act 561 (1964 Figures)
(292a, 331a-37a, 476a , 498a..

UNIT: Districts involved Enrollment % Black
UNIT 12: Gateway/T. Creek 8660 1%
UNIT 13: Wilkins/Chalfant/F. Hills 4836 0%
UNIT 14: Braddock/Rankin/N.Brad./ 

E. Pitts./Brad. Hills 5356 29%
UNIT 15: Swissvale/Edgewood/

Wilkinsburg 7350 14%
TOTAL 27,211 10%

This proposal encountered immediate opposition from Braddock 
Hills, which objected to being placed in an adminstrative unit that 
included Braddock and Rankin but did not include the recently formed 
Wilkins-Chalfant-Forest Hills (i.e., Churchill) district. (447a-48a; 
see note 10, supra.) Because the legislature repealed Act 561 in 
1963, the Allegheny County plan was never formally adopted. See 
State Board v. Franklin Township School District, 209 Pa. Super. 410, 
228 A.2d 221, 224 (1967).

In place of Act 561, the legislature enacted Act 299, pursuant 
to which the bulk of the violational activity cited by the district 
court occurred. Hoots VI, 510 F. Supp. at 617-18 (879a-21a). The 
first reorganization plan considered by the County Board under Act 
299 simply replicated its Act 561 proposal. See Table (ii), supra. 
Once again, however, Braddock Hills vehemently objected to its

15



inclusion in a unit with Braddock and Rankin but without its neighbor 
to the east, Churchill. (585a-91a. ) Braddock Hills officals at­
tributed the County Board's exclusion of Churchill to that district's 
"objections ... based on politics, race, color and creed [that] are 
not acceptable under the law known as Act 299." (588a.)

In a May 1964 compromise designed to mollify Braddock Hills 
(585a), the County Board removed Braddock Hills from the Braddock/ 
Rankin unit, but included it in a sub-4,000-pupil district with 
Swissvale and Edgewood rather than in a 4000-plus district with 
Churchill. (331a-37a, 585a.) Turtle Creek was substituted for 
Braddock Hills in the Braddock/Rankin unit:

Table (iii): Final County Board Plan Under Act 229 (1967 Figures)
(331a-37a, 476a, 696a-97a)

UNIT: Districts involved (present district) enrollment % Black
UNIT 15: Wilkins/Chalfant/F.Hills (Church.) 5810 0%
UNIT 16: Braddock GBASD) 1303 64%Rankin (GBASD) 614 51%N. Braddock (GBASD) 2079 20%E. Pittsburgh (T. Creek) 41 1 6%T. Creek (T. Creek) 1487 0%Total 5894 27%
UNIT 19: Swissv./Brad. Hills (Swissv.) 2350 10%Edgewood (Edgewood) 976 0%Total 3326 7%
TOTAL 1,5030 12%

Following Braddock Hills' example, Turtle Creek (0% black) and 
East Pittsburgh (6% black) now began to place intense pressure on 
the State and County Boards to remove them from the unit with 
Braddock (64% black) and Rankin (51% black). These secessionist 
efforts began with a letter and petition campaign in which Turtle

16



Creek and East Pittsburgh citizens informed the Boards that they 
did not want to "send [their] child[ren]" to school with "colored 
people [of] the kind that live in North Braddock, Braddock and 
Rankin. (299a-301a, 698a~99a.) The Turtle Creek and East Pitts­
burgh municipal governments also officially protested their inclu­
sion with Braddock, Rankin and North Braddock in the County Board's 
plan. As had Braddock Hills before them, they sought to have 
Churchill included in their district. (698a; Pretrial Statement of 
County Board, Docket No. 54, at K 7.) Alternatively, they were 
willing to merge with Gateway or East Allegheny, or be joined in a 
sub-4,000 pupil unit composed solely of themselves. (307a-10a, 
579a-80a, 698a.) In August 1964, State Board staff members reported 
to the Board that, faced with the East Pittsburgh-Turtle Creek 
campaign, some County Board members were now of the opinion that 
predominantly white Turtle Creek and East Pittsburgh should be
separated from predominantly black Braddock and Rankin and placed

_12/together in a "socio-economic[ally] homogenous unit."
In response to this campaign, Braddock School Board Member 

Thomas Harper and NAACP Chapter President LaRue Frederick jointly 
wrote to State and County Board officials opposing the efforts to 
isolate Braddock and Rankin from their neighbors. Harper and 
Frederick attributed those efforts to fears of an "influx of a large 
number of Negro students into heretofore predominantly white units." 
(592a-93a.) These claims were verified in court by Joseph Suley, a 
member of the North Braddock Board of School Directors during the

~ /  "Economically," Braddock and Rankin, on the one hand, and 
East Pittsburgh and Turtle Creek, on the other, were virtually 
identical communities in the 1960's. (341a-79a, 599a-613a.)
Socially, " they differed in only one respect— race. Hoots II,■359 F. Supp. at 816 (762a-64a).

17



reorganization battles. Mr. Suley testified that, throughout the 
1960's, municipal officials in the area opposed merger with Braddock, 
Rankin and North Braddock because of "the black issue," which he 
defined as the "bitterness" of "whites" toward "the blacks" in 
Braddock, Rankin and North Braddock. (117a-26a.)

An important juncture was reached at a State Board meeting in 
September 1964. Hoots VI, 510 F. Supp. at 618 (871a). "Although 
aware" of the various school districts' "strenuous objections" to 
being placed with Braddock and Rankin, at least in the absence of 
Churchill or one of the other larger and richer districts in the 
area, the Board nonetheless voted to allow Churchill, East Allegheny 
and Gateway to stand alone. Id; see 305a, 580a, 698-99a. By rejec­
ting the proposals to include these stronger districts in a unit with 
some or all of the smaller neighboring districts, the State Board 
left itself thereafter "with few options with which to deal" with the 
smaller, chronically controversial districts in the area, particularly 
Braddock and Rankin. Hoots VI, 510 F. Supp. at 618 (871a).

With Churchill and the other richer districts in the area thus 
immunized, Turtle Creek and East Pittsburgh concentrated their 
efforts on withdrawing from the Braddock/Rankin unit and forming 
their own, sub-4000-pupil district. Following hearings in 1964 and 
1965, State Board staff members recommended that the Board approve 
the Braddock/Rankin/North Braddock/East Pittsburgh/Turtle Creek unit 
because such a combination was "a natural," given reasonable trans- 
portational interconnections, the 4000-plus-pupil population and 
other favorable factors. Hoots II, 359 F. Supp. at 817 (765a). The 
post-hearing report noted, however, that East Pittsburgh and Turtle 
Creek officials were still seeking to have their municipalities 
"established as a [separate] unit," in part because of "[t]he non-



white population ... factor." (309a-10a, 699a.)
In 1965, the State Board rejected the recommendation of its 

staff and granted the request of Turtle Creek and East Pittsburgh 
to be placed in a separate sub-4000 unit. This decision completed 
the isolation of Braddock, Rankin and North Braddock from all of the 
surrounding municipalities, and the Board merged those districts into 
a soon-to-be sub-4000, and predominantly black, unit. Hoots II, 359 
F. Supp. at 819-20 (771a). State Board Chairman Dr. Paul Christman 
later testified in the district court that State Board members 
"recognized" when they took this action "that there was a black-white
factor that was improperly dealt with __ [which] in years to come
... would become even worse than it was at the time." (2702a-03a.)

Although appeals kept the Braddock/Rankin/North Braddock, Brad­
dock Hills/Swissvale/Edgewood and Turtle Creek/East Pittsburgh mer­
gers from going into effect before Act 299 expired in 1966, those

J Vunits later became effective under Act 299's extension, Act 150.
When Act 150 was passed early in 1968, the County Board resurrected 
the State Board's final Act 299 plan. In a hearing on North Braddock's 
objection to this plan, County Board President L.W. Earley noted that 
Board members were "painfully aware" that "over the years" the other 
"surrounding school districts had [successfully] avoid[ed] a school 
merger which would include Braddock and Rankin in their school 
district and that ... North Braddock was going to be 'left holding 
the bag.'" (701a.) Nonetheless, the County Board approved the plan, 
and the State Board followed suit. (700a-02a.) As Dr. Christman testi-

13/ The only change the State Board made between 1965 (Act 299) and 
1968 (Act 150) was to free Edgewood of inclusion with Swissvale and 
Braddock Hills, thereby leaving 0%-black Edgewood intact as a 900- 
pupil district, while merging Swissvale and Braddock Hills into a 
9%-black, 2300-pupil district. Hoots VI, 510 F. Supp. at 618 (871a-72a).

19



fied, these 1968 occurrences were preordained by the Board's earlier 
actions under Act 299 (particularly the approval and immuniza­
tion of Churchill, East Allegheny and Gateway) since thereafter the 
Board had "no further options." (2688a.)

All of the reorganized districts in central eastern Allegheny
11/County were operating by 1971. The final configuration of cen­

tral eastern area districts is shown below, along with the resulting 
and continuing pattern of racial segregation among the school districts.

Table (iv): Final Plan (1971, 1975, 1981 Enrollment Figures)
(3233a, 3246a)

GBASD Swissvale Churchill
(Braddock- (Swissv.- (Wilkins- Edgewood T. Creek TOTALRankin-No. Braddock Chalfant (Edge- (T. CreekBraddock) Hills) For.Hills) wood) E. Pitts.)

Year Total % B. Total % B. Total % B. Total % B. Total % B. Total % B.
1971 3735 45% 2275 9% 5773 1% 970 0% 1825 1 % 14,578 12%1975 2668 55% 2051 10% 4892 1% 869 1% 1515 2% 11,995 14%1981 2042 63% 1757 13% 3342 1% 731 2% 1260 2% 9,132 17%

ARGUMENT

I. THE DISTRICT COURT'S DETERMINATION THAT PENNSYLVANIA 
AUTHORITIES INTENTIONALLY SEGREGATED CENTRAL EASTERN 
AREA SCHOOL DISTRICTS AMPLY SUPPORTS ITS CONSTITUTIONAL- 
VIOLATION FINDING AND IS NOT CLEARLY ERRONEOUS

On December 8, 1971, the district court denied defendants' 
motion to dismiss plaintiffs' June 1971 complaint for failure to

j_4/ Immediately after its creation, the State concluded that GBASD was 
unable to support itself financially, declared it a "distressed dis­
trict" and placed it in receivership. (703a.) GBASD's financial diffi­
culties continued throughout its 10-year existence. (2171a, 3232a.)

20



state a cause of action. In its opinion, the district court
described the principal violation issue in the case:

Plaintiffs' Complaint contains allegations that:
(a) In preparing and adopting the school re­
organization plans defendants intentionally and 
knowingly created racially segregated school 
districts....

We have no doubt that the allegations of 
deliberate creation of a racially segregated 
school district state a cause of action, and 
that the remaining allegations are ancillary 
and supportive, of this claim. 15/

Hoots I, 334 P. Supp. at 821-22 (958a-59a). After trial the district
court concluded in 1973 that plaintiffs had proved their principal
allegations by establishing that Pennsylvania authorities drew
school district boundaries "based wholly or in part on consideration
of the race of students." Hoots II, 359 F. Supp. at 822 (777a).
The district court also ruled favorably on some (see pp. 46-50,

16/
infra), but not all, of plaintiffs' "ancillary and supportive" 
allegations. See Hoots I, 334 F. Supp. at 822 (959a).

Appellants devote the major part of their briefs to an attack 
on the district court's conclusion that Pennsylvania school offi­
cials violated the Equal Protection Clause of the Fourteenth 
Amendment. However, in a transparent,effort to draw the Court's 
attention away from the crucial issue in the case, appellants

15/ Plaintiffs' complaint alleged that school officials drew 
boundary lines in the central eastern area "for racial reasons."
(29a, 35a.) Defendants themselves acknowledged at the violation 
trial in 1972 that "the gravamen of [the] complaint goes to the 
motivation of state officers, county officers, local officers."
(79a. )
16/ Plaintiffs' complaint included an "economic discrimination" 
cause of action. The district court rejected this claim, as did the 
Supreme Court in its contemporaneous decision in San Antonio Indepen­
dent School District v. Rodriquez, 411 U.S. 1 (1973).

21



focus their attack entirely on the district court's self-styled 
"ancillary and supportive" findings, while virtually ignoring Chief 
Judge Weber's principal holding that Pennsylvania officials inten­
tionally segregated school districts in central eastern Allegheny 
County. As is discussed infra, the district court's ancillary 
findings {for example, on "forseeability," see note 24, infra, 
and on the Board's application of an "explicit racial classification," 
see PP* 46-49, infra) are appropriate bases for the violation found 
by the district court and strongly "supportive" of the court's 
principal holding. Nonetheless, whatever the propriety of those 
"ancillary" —  or, as appellants call them, "alternative" (Brief of 
Swissvale at 9-10) —  findings, it is absolutely clear as a matter of 
both law and fact, that the district court's principal, intentional- 
segregation holding is a sufficient basis in itself for the court's 
ultimate conclusion that Pennsylvania school authorities violated the 
Fourteenth Amendment by creating racially segregated school districts.

A. Relying on Proper Fourteenth Amendment Standards, the 
District Court Has Repeatedly Found that Pennsylvania 
School Officials Intentionally Segregated GBASD and 
Neighboring School Districts on the Basis of Race
1. The district court applied the correct Fourteenth Amendment standard in its 

1973 violation decision.
In finding a constitutional violation based on deliberate dis­

crimination, the district court applied precisely the same "well- 
established" legal standards as the Supreme Court endorsed and 
elaborated on in the following passage in Village of Arlington Heights 
y- Metropolitan Housing Development Corp., 429 U.S. 252 (1977):

22



[The requirement of] proof of racially discrimi­
natory intent or purpose is ... well-established 
in a variety of contexts.

[This principle] does not require a plain­
tiff to prove that the challenged action rested 
solely on racially discriminatory purposes.
Rarely can it be said that a legislature or 
administrative body operating under a broad 
mandate made a decision motivated solely by a 
single concern, or even that a particular purpose 
was the "dominant" or "primary" one. ... But 
racial discrimination is not just another com­
peting consideration. When there is a proof that 
a discriminatory purpose has been a motivating 
factor in the decision, judicial deference is no 
longer justified.

Determining whether invidious discriminatory 
purpose was a motivating factor demands a sensi­
tive 'inquiry into such circumstantial and direct 
evidence of intent as may be available. The 
impact of the official action— whether it "bears 
more heavily on one race than another," Washing­
ton v. Davis, 426 U.S. [229,] 242 [(1976)]— may 
provide an important starting point. Sometimes 
a clear pattern, unexplainable on grounds other 
than race, emerges from the effect of the state 
action even when the governing legislation appears 
neutral on its face....

The historical background of the decision is 
one evidentiary source, particularly if it reveals 
a series of official actions taken for invidious 
purposes. The specific sequence of events leading 
up to the challenged decision also may shed some 
light on the decisionmaker's purposes.... Depar­
tures from the normal procedural sequence also 
might afford evidence that improper purposes are 
playing a role. Substantive departures too may be 
relevant, particularly if the factors usually 
considered important by the decisionmaker strongly 
favor a decision contrary to the one reached.

Id. at 265-67 (citations and footnotes omitted).
Embodied in this passage from Arlington Heights are both 

the legal standard for a violation of the Equal Protection Clause 
and a discussion of the "evidentiary source[s]" that courts may 
consider in determining whether that standard is met. _Id. at 267.
See Personnel Administrator v. Feeney, 442 U.S. 256, 279 n.24 (1979)

23



Resident Advisory Board v. Rizzo, 564 F.2d 126, 142-45 (3d Cir.
1977). Hoots II clearly conforms both to that legal standard and 
to the prescribed method for assessing if it has been satisfied.

First, in its 1973 decision in Hoots II, the district court 
found that "race was a factor" in the formation of school districts 
(Finding 60), and it thereupon concluded that a "violation of 
the Fourteenth Amendment has occured" because Pennsylvania "public 
school authorites ... made [segregative] educational policy deci­
sions:" (i) "based wholly or in part on considerations of the race 
of students" (Conclusion 2), (ii) "because of community sentiment" 
favoring "segregated schools" (Conclusion 3), and (iii) in order to 
"conform[J to and buil[d] upon patterns of residential segregation" 
(Conclusion 5). Hoots II, 359 F. Supp. at 821-23 (774a, 777-78a). 
These findings and conclusions embody precisely the determination 
that the Equal Protection Clause requires the courts to make: that 
"a discriminatory purpose has been a [not necessarily "the 'dominant' 
or 'primary'"] motivating factor in the decision," Arlington Heights, 
429 U.S. at 265 (emphasis added), and that the decision was made 
"'because o f  ... its adverse effects upon [blacks]." Personnel 
Administrator, 442 U.S. at 279.

Second, not only in Hoots II in 1973, but also in its thorough 
reexamination of the evidence in Hoots VI in 1981, the district 
court clearly premised the conclusion that race was a motivating 
factor on "a sensitive inquiry into such circumstantial and 
direct evidence as [was] available," Arlington Heights, 429 U.S. at 
266, including at least eight proper and convincing "evidentiary 
sources," with regard to which the district court made the findings 
set out below:

24



(a) "The State and County Boards in devising the plan of 
organization of administrative units for the central 
eastern portion of Allegheny County were influenced 
by the desires of the surrounding municipalities to 
avoid being placed in a school district with Braddock 
and Rankin because of the high concentration of blacks 
within those two municipalities." Hoots II, 359 F.
Supp. at 821 (774a), reaffirmed in Hoots VI, 510 F.Supp. at 619 (873a).

The courts, this one included, have long and consistently 
recognized official conformance to the racially motivated desires 
of constituents as sufficient in itself to prove an invidious racial 
motivation. E.q., Arthur v. Nyguist, 573 F.2d 134, 144 (2d Cir.
1978) (finding intentional discrimination because the school board 
was "strongly influenced by residents who opposed integrated school­
ing"); Resident Advisory Board v. Rizzo, 564 F.2d 126, 144 (3d Cir.
1977) ("shift in the City's position [following] protests by demonstra-

17/tors manifesting racial bias" evidences a constitutional violation).

17/ Accord, Davis v. Schnell, 81 F. Supp. 872, 875, 880-82 (S.D. 
Ala.), aff'd, 336 U.S. 933 (1949), cited with approval in Arlington Heights, 429 U.S. at 267; Reitman v. Mulkey, 387 U.S. 369, 373-76 
(1967); cited with approval in Arlington Heights, 429 U.S. at 267; 
United States v. Board of School Commissioners, 573 F.2d 400, 412 
n.31 (7th Cir. 1978); United States v. School Dist. 151, 301 F. Supp. 
201, 230 (N.D. 111. 1969), aff'd, 432 F.2d 1147 (7th Cir. 1970), 
cited in Hoots II, 359 F. Supp. at 822-23 ("A school board may not, 
consistently with the Fourteenth Amendment ... permit educational 
choices to be influenced by a policy of racial segregation in order 
to accommodate community sentiments"); note 42, infra (citing relevant interdistrict cases).

City of Memphis v. Greene, ___ U.S. ___, 67 L.Ed.2d 769 (1981),
supports this conclusion. In Greene, the court noted that the 
Fourteenth Amendment focuses on the intent of the public officials 
whose actions are challenged, id. at 782 n.23, and that this inquiry 
includes consideration of evidence of constituent pressures that 
demonstrably influenced those officals in formulating their intent.
2d. at 782-83 & nn. 24, 26. Thus, in upholding the district court's 
finding of an absence of discriminatory intent, the Greene Court 
relied on proof that public officals conformed to the neutral, 
non-racially motivated desires of their constituents. Id.. By like 
reasoning, of course, proof, such as the district court relied on 
in Hoots II, that public officials conformed their decisions to the 
invidiously motivated demands of their constituency supports the

25



(b) The "history of the reorganization of school 
district boundaries in the central eastern 
portion of Allegheny County pursuant to Acts 
561, 299 and 150," reveals that the State and 
County Boards, over a period of several years, 
repeatedly rejected the proposals of their staffs 
and substituted boundary lines that conformed to 
"the desires of as many of the surrounding 
municipalities as possible to be placed in a 
district which did not include" blacks. Hoots 
VI, 510 F. Supp. at 619 (873a-74a), reaffirming 
Hoots II, 359 F. Supp. at 811-13, 816-18 (763a~66a).

As this Court has recognized, "the historical background of the 
attacked decision," as well as the "administrative history" and the 
"specific sequence of events leading to the challenged decision," are 
often among the most revealing "’evidentiary source[s]' to be con­
sidered" under Arlington Heights. Resident Advisory Board v. Rizzo, 
564 F.2d at 143-44 & n.22, quoting Arlington Heights, 429 U.S. at

W264-65. The great bulk of the factfindings in both Hoots II 
and Hoots VI are devoted to just such an historical and sequential 
inquiry.

(c) "The Boards' plants] disregarded [the State 
Board's] Standards for School Reorganization 
as well as recdgnized educational standards."
Hoots II, 359 F. Supp. at 819-20 (769a), reaf­
firmed in Hoots VI, 510 F. Supp. at 618-19 
(872a).

"[D]epartures from normal substantive criteria," provide addi­
tional, important evidence of intentional discrimination under the

17/ Continued
conclusion that those decisions violated the Constitution. The 
crucial requirement, clearly satisfied here, is that the improper 
"desires" of the constituency must be "related" to, or have "influ­
enced," the official action under scrutiny. Mobile v. Bolden, 446 
U.S. 55, 74 n.20 (1980). See Hoots II, 359 F. Supp. at 821 (774a).
11/ Accord, e.q., Griffin v. County School Board, 377 U.S. 218 
(1964); Arthur v. Nyguist, 573 F.2d 134, 144 (2d Cir. 1978);
United States v. Texas Education Agency, 564 F.2d 162, 172-74 (5th 
Cir. 1977); Williams v. Anderson, 562 F.2d 1082 (8th Cir. 1977).

26



multiple "evidentiary sources" test in Arlington Heights. Resident 
Advisory Board v. Rizzo, 564 F.2d at 144, quoting Arlington Heights, 
429 U.S. at 267.

(d) "The County and State Boards" rejected "alterna­
tive" school district configurations "that would 
have been more consistent with" applicable 
reorganization standards in favor of alternatives 
that "maximized racial segregation in the pub­
lic schools." 20/ Hoots VI, 510 F. Supp. at 618—
19 (872a-73a), reaffirming Hoots II, 359 F. Supp. 
at 817, 820 (764a, 769a).

Proof that official decisions "produce[d] the maximum feasi­
ble separation" of the races, United States v. Texas Education 
Agency, 564 F.2d 162, 166 (5th Cir. 1977), and "that the govern­
ment ignored less segregative options which would have furthered 
its policies as effectively as the more segregative option it chose" 
provide convincing evidence "of discriminatory intent" under 
the Arlington Heights standard. United States v. Board of School

19/ Accord, Flores v. Pierce, 617 F.2d 1386, 1389 (9th Cir. 1980); 
Whiting v. Jackson State University, 616 F.2d 116, 125-26 (5th Cir. 
1980); Diaz v. San Jose Unified School District, 612 F.2d 411, 413 
(9th Cir. 1979).
20/ The district court found that the State and County Boards 
achieved this segregation-maximizing end by conforming boundary 
lines "to the pattern of residential segregation” within central 
eastern Allegheny County. Hoots II, 359 F. Supp. at 821 (774a).
It is in this context that the district court discussed the "perva­
sive" housing discrimination and residential segregation in the 
central eastern area. Id. at 816 (763a). In so doing, however, the 
district court did not base the violation on private housing dis­
crimination per se, but instead on a series of official actions, 
prompted by the racially motivated agitation of the beneficiaries of 
that discrimination, which had the "intended and inevitable effect 
[of] preserving] residential segregation" as a matter of school 
attendance areas. United States v. School District 151, 301 F. Supp. 
201, 230 (N.D. 111. 1969), aff'd, 432 F.2d 1147 (7th Cir. 1970), 
cited in Hoots II, 359 F. Supp. at 822-23 (777a-79a). As the courts 
have consistently held, school officials may not "intentionally 
utilize the power at their disposal to ... arrange boundaries in such 
a way as to perpetuate a pattern of segregation." Davis v. School 
District. 443 F.2d 573, 574 (6th Cir. 1971), cited in Hoots II, 359 
F. Supp. at 822-23.

27



(e) "The school district boundaries established [by] 
the County and State Boards ... are [not] 
rationally related to any legitimate purpose,"
"do not promote any valid state interest," and 
can be explained only by "consideration of the 
race of students." Hoots II, 359 F. Supp, at 821,
822 (775a, 777a), reaffirmed in Hoots VI, 510
F. Supp. at 619 (873-74a).

"[A] series of Board actions and practices that cannot 
reasonably be explained without reference to racial concerns" and 
that causes "racial separation in the schools" strongly evidences
intentional discrimination. Columbus Board of Education v.

22/Penick, 443 O.S. 449, 461-62 (1979).
(f) "The State and County Boards knew ... they 

were creating a racially segregated school 
district" and "knew they were heading into 
a segregation problem" when they "proposed 
and approved" the school district boundaries 
for central eastern Allegheny County. Hoots 
II, 359 F. Supp. at 818 (768a); 10/24/75 D. Ct.
Tr. at 72 (2762a), reaffirmed in Hoots VI, 510 
F. Supp. at 169 (873a).

"Adherence to a particular policy or practice with full 
knowledge of the predictable effects of such adherence upon 
racial imbalance in a school system is one factor among many 
others which may be considered by a court in determining whether 
an inference of segregative intent should be drawn." Columbus

Commissioners, 573 F.2d 400, 413 (7th Cir. 1978).

21/ Accord, Gomillion v. Lightfoot, 364 U.S. 339 (1960), cited 
with approval in Arlington Heights, 429 U.S. at 266; Diaz v. San 
Jose Unified School District, 612 F.2d 411, 413 (9th Cir. 1979), 
citing Dayton Board of Education v. Brinkman II, 443 U.S. 526 (1979). ----------------------------- --------
22/ Accord, Washington v. Davis, 426 U.S. 229, 242 (1976); Reed 
y. Rhodes, 607 F.2d 714, 725 (6th Cir. 1979); Arthur v. Nyquist, 
573 F.2d 134, 142 (2d Cir. 1978); United States v. Board of School 
Commissioners, 573 F.2d 400, 413 (7th Cir. 1978); United States v. 
Texas Education Agency, 564 F.2d 162, 168 (5th Cir. 1977).

28



Board of Education v. Penick, 443 U.S. 449, 465 (1979).—
(g) "The natural, forseeable and actual effect 

of [the Boards' decisions] was to perpet­
uate, exacerbate and maximize racial segre­
gation within the public schools of the 
central eastern portion of Allegheny County."
Hoots_II, 359 F. Supp. at 821 (773a), reaffirmed 
in Hoots VI, 510 F. Supp. at 618 (87217:

The Supreme Court has repeatedly held, and this Court has also 
recognized, that "proof of forseeable consequences is one type of 
quite relevant evidence of racially discriminatory purpose." Dayton 
Board of Education v. Brinkman II, 443 U.S. 526, 536 n.9 (1979); C.F.

23/

Richardson v. Pennsylvania Department of Health, 561 F.2d 489, 492
24,(3d Cir. 1977), citing Washington v. Davis and Arlington Heights.

23/ Accord, Diaz v. San Jose Unified School District, 612 F.2d 411, 
414-15 (9th Cir. 1979); Reed v. Rhodes, 607 F.2d 714, 734 (6th Cir.
1979)? De La Cruz v. Tormey, 582 F.2d 45, 58 (9th Cir. 1978); Arthur 
v. Nyquist, 573 F.2d 134, 144 (2d Cir. 1978); NAACP v. Lansing'Board 
of Education, 559 F.2d 1042, 1055, 1055 (6th Cir. 1977).
11/ Accord, Personnel Administrator v. Feeney, 442 U.S. 256, 279 
n* 25 ( 1979); United States v. Unified School District No. 500, 610 
F•2d 688, 692 (10th Cir. 1979); Reed v. Rhodes, 607 F.2d 714, 734 
(6th Cir. 1979); United States v. Board of School Commissioners, 573 
F.2d 400, 413 (7th Cir. 1978); United States v. School District of
Omaha, 565 F.2d 127, 128 (8th Cir. 1977); United States v7.Texas
Education Agency, 564 F.2d 162, 168 (5th Cir. 1977).

Appellants' contention that the foreseeability of a racially 
segregative_result, by itself, can never establish intentional 
discrimination is directly refuted by the Supreme Court's last words 
on the question, Dayton Board of Education v. Brinkman II, 443 U.S. 
526, 536 n.9 (1979) and Personnel Administrator v. Feeney, 442 U.S. 
256, 279 nn.24 & 25 (1979), which hold that in certain circumstances, 
forseeability can create "a strong inference," Feeney, 442 U.S. at 
279 n.25, or "a prima facie case," Dayton II, 443 U.S. at 536 n.9, of 
deliberate discrimination.

More to the point, in the present case, appellants' emphasis 
on forseeability is a disingenuous attempt to edit out, blow up, 
and focus exclusively on one individual frame of what is essentially 
a "moving picture" of purposeful discrimination composed by the dis­
trict court out of many separate indicia of invidious intent. As

29



(h) The impact of the Boards' decision to merge 
Braddock, Rankin and North Braddock with each 
other, but with no other districts, in the area, 
was strikingly segregative because "at the time 
the State approved [GBASD], no other combina­
tion of school districts in the area would have 
created a district with as large a percentage 
of non-white enrollment." Hoots VI, 510 F. Supp. 
at 618 (872a), reaffirming Hoots II, 359 F. Supp. 
at 819 (769a).

"Disparate racial impact is of unquestioned relevance in provid­
ing the forbidden intent to discriminate," Flores v. Pierce, 617 F.2d 
1386, 1389 (9th Cir. 1980), since "it is ... not infrequently true 
that the discriminatory impact ... may for all practical purposes 
demonstrate unconstitutionality." Washington v. Davis, 426 U.S. 229, 
242 (1976). As in Resident Advisory Board v. Rizzo, 564 F.2d 126 (3d 
Cir. 1977), "(h]ere, the discriminatory impact of the [Boards' deci­
sions] could hardly be clearer," ic3. at 143, because, as the district 
court found, that impact could not possibly have been greater.

Although the district court relied on additional "evidentiary
25/

source[s]" beyond the eight discussed above, it is clear from

24/ Continued
appellants concede, the district court's forseeability analysis was 
at most an "alternative" basis for the violation (see Brief of 
Swissvale at 9-10), supplementing the court's principal conclusion 
that the Board drew lines "wholly or in part based on considerations 
of race." Hoots II, 359 F. Supp. at 822 (777a). And the cases cited 
above clearly establish that findings (supplementary or otherwise) 
on the forseeability of a segregative result strongly support a 
determination that defendants deliberately segregated the races.
25/ For example, the district court relied on evidence of "depar­
tures from 'normal procedural sequences.'" Resident Advisory Board 
v. Rizzo. 564 F.2d 126, 143 (3d Cir. 1977), quoting Arlington 
Heights. 429 U.S. at 267. Thus, the court found that the State 
Board repeatedly rejected the recommendations of its staff members 
and of the County Board regarding how boundary lines should be drawn 
in the central eastern area in favor of alternatives that "maximized 
racial segregation." Hoots II, 359 F. Supp. at 817, 819 (764a,
769a). Further, "although aware of strenuous objections" to allow-

30



these eight not only that the district court made the requisite 
Fourteenth Amendment determination that race was a "motivating 
factor," Arlington Heights, 429 U.S. at 266, but also that it 
relied on precisely the "evidentiary source [s]" that the Supreme 
Court has consistently instructed courts to consider in making such 
a determination. _Id. at 267. Under these circumstances, the 
propriety of the district court's legal conclusion in Hoots II that 
Pennsylvania school officials violated the Constitution by making 
educational policy decisions which were based wholly or in part on 
considerations of the race of students and which contributed to 
increasing racial segregation in the public schools" is beyond 
question. Hoots II, 359 F. Supp. at 822 (777a).

2* Between 1973 and 1981, following additional 
argument and hearings, the district court 
repeatedly reaffirmed its legally unassail­
able violation finding.

Appellants assert that the district court's May 1973 violation
finding was insufficient because it preceded by a month the Supreme
Court's announcement of a supposedly new, "purpose or intent" standard

26/m  Keyes v. School District No. 1, 413 U.S. 189, 208 (1973). This

25/ Continued
ing Churchill, East Allegheny and Gateway to stand alone rather than 
be merged with the smaller districts in the area, the State Board 
approved those three districts without reaching any final decision 
on Braddock, North Braddock, Rankin, Turtle Creek, East Pittsburgh, 
Swissvale, Edgewood and Braddock Hills. The court found that this 
irrationally piecemeal decisionmaking "left the State with few 
options with which to deal " thereafter with the smaller districts 
in the area. Hoots VI, 510 F. Supp. at 618 (871a.) See also pp. 
4^~46' infra, discussing the evidence of intentional segregation 
that the district court found in the State Board's counterintuitive 
and^admittedly improper interpretation of its regulation forbidding racial segregation.
26/ The inequity of appellants' position is palpable. Having either 
deliberately" avoided the opportunity to participate in the original

31



theory founders, first, on the rocks of the district court's deliber­
ate-discrimination holding in its 1973 opinion, a holding that fully 
satisfied the by-then "well established" requirement, see Arlington 
Heights, 429 U.S at 265, of a finding of "an intent to discriminate." 
Sealy v. Department of Public Instruction, 252 F.2d 898, 901 (3d 
Cir. 1958). Accord, Swann v. Charlotte-Mecklenburg Board of Educa­
tion, 401 U.S. 1, 17-18 (1971), expressly reaffirmed in Keyes, 413 
U.S. at 208 & n,16, and cited in Hoots II, 359 F. Supp. at 823-24.

Moreover, after having intent language in Keyes, Milliken v. 
Bradley, 418 U.S. 717, 744-45 (1974), Washington v. Davis, 426 U.S. 
at 238-42, and Arlington Heights, 429 U.S. at 264-66, drawn to its 
attention, the district court, on at least five separate occasions 
between 1975 and the present, pointedly reaffirmed its violation 
conclusion based on findings of purposeful offical segregation.
Most notably, in the fall of 1975, after the former districts filed 
motions to dismiss based on the alleged absence of "deliberate 
purposeful intent to segregate ... as required by Keyes and Milliken," 
the district court reopened the violation issue and permitted the 
former districts to present what their pretrial statements des­
cribed as testimony "by the State Board explaining actions [in the

26/ Continued
violation trial in 1972 (in the case of the former school districts) 
or determined not to appeal the district court's original violation 
determination in 1973 (in the case of the Commonwealth and the 
Intermediate Unit), and having then induced the district court to 
spend eight years considering their ineffective remedial proposals 
(e.q., 843a, 1031a, 1379a-81a) and myriad motions "interposed solely 
for delay” (1693a), appellants now claim that, during the course of 
those eight delay-ridden years, the district court's violation 
finding somehow became obsolete. Far from countenancing such argu­
ments, the courts in analogous situations have instead applied the 
"sound policy that when an issue is once litigated and decided, that 
should be the end of the matter." United States v. United States 
Smelting, Refining & Mining Co., 339 U.S. 186, 199 (1949).

32



1960 s] that may have appeared to be racially motivated" but asser— 
tedly were "not." (2673a, 2799a.) When the former districts called 
State Board Chairman Paul Christman to testify, however, he candidly 
acknolwedged that the Board approved GBASD in the 1960's only 
because its guidelines (as then improperly interpreted) permitted 
Board members to be "oblivious" to what they "recognized ... was a 
black-white factor that was improperly dealt with." (2702a.)

After hearing argument, the district court rejected appellants' 
"no violation" contentions, based in part on Dr. Christman's admission 
that Board members "knew they were heading into a segregation prob­
lem" in the central eastern area. (2737a, 2762a.) When counsel 
for Churchill asserted that the district court "would have come to a 
different conclusion [in Hoots II] if [it] were making [its] order 
... after Keyes," Chief Judge Weber flatly disagreed:

This is one place where you can say [you are]100 percent wrong.
(2739.) Instead, the court reaffirmed its earlier holding that 
the Board "purposefully" segregated GBASD. (2761a.)

Similarly, in 1979, 1980 and 1981, after hearing yet addi­
tional argument and evidence on the intent question (e.g., 857a,
1059a, 1652a, 3188a, 3193a-2Q2a; see note 56, infra) the district 
court again and again reaffirmed that plaintiffs had established 
"de jure" discrimination, 11/7/79 Memorandum Order, at 1 (Docket No. 
260); "segregative intent," 10/2/80 Tr. at 53-54 (3201a-02a); "ra­
cially discriminatory acts of the state [that] have been a substan­
tial cause of interdistrict segregation," Hoots VI, (1981), 510 P.
SuPP* at 619 (874a); that "district lines have been deliberately 
drawn on the basis of race," i<3. at 616 (868a), quoting Milliken v . 
Bradley, supra, 418 U.S at 744-45; and that GBASD was "intentional[ly]

33



Hoots VIIIcreat[ed] as a racially identifiable school district,"
27/

(1981) at 9 (892a). See also 2/5/81 Tr. at 28 (2842a).
* * *

As early as 1971, the district court clearly perceived that 
allegations of deliberate segregation lay at the heart of this 
litigation, and the court subsequently centered its 1973 violation j 
conclusion on findings of invidious segregation. Moreover, although 
Hoots II predated Keyes, Milliken and Arlington Heights, that 
decision scrupulously adhered to the "well-established" legal 
standard that those cases elaborate upon, and, in any event, the 
court repeatedly reaffirmed its violation finding after those cases 
were decided and brought to its attention. Under these circum­
stances, appellants' disagreement with the district court's liability 
determination, even when couched in legal terms, is nothing more 
than a contention that the district court’s factual findings underly­
ing its intentional-segregation determination are "clearly erroneous." 
It is to that more modest, but still wholly incaccurate, claim that 
plaintiffs now turn.

B. The Trial Court's Findings of Intentional Racial 
Segregation Are Not Clearly Erroneous___________

As this Court has long recognized, it is the task of the 
district courts to find facts. E.g., Hadco Products, Inc, v. Frank 
Dini Co., 401 F.2d 462, 464 (3d Cir. 1968). A trial court's factual 
determinations may not be overturned on appeal unless they are clearly

27/ This Court itself has thrice interpreted the district court's 
1973 deci sion in Hoots II as a proper finding "of de jure discrimi­
nation in violation of the Fourteenth Amendment." Hoots IV, 587 
F-2d at 1341 (2654a); accord, Hoots III, 495 F.2d at 1095 (2846a);
Hoots V , 639 F.2d at 974 (2771). See also Sedler, Metropolitan 
Desegregation After Milliken, 1975 WASH. U.L.Q. 5357 605 (interpret- 
ing Hoots II as embodying "a specific finding" that "school district 
lines were deliberately drawn on the basis of race").

34



erroneous, i.e., unless an appellate court is "left with the definate
and firm conviction that a mistake has been committed." United 
States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). These 
principles apply with particular force in this case both because of 
the trial court's "proximity to local [school] conditions," Brown v . 
Board of Education II, 349 U.S. 294, 299 (1955), and because the 
trial court's "[f]indings as to design, motive and intent ... depend 
[so] peculiarly upon the credit given to witnesses by those who see 
them and hear them," United States v. Yellow Cab Co., 338 U.S. 338, 
341-42 (1949), and address such "difficult and subtle factual 
questions." Columbus Board of Education v. Penick, 443 U.S. 449, 
470-71 (1979) (Stewart, J., concurring). See id. at 457 n.6 (majority 
opinion); Resident Advisory Board v. Rizzo, 564 F.2d 126, 144-45 (3d 
Cir. 1977).

Although the Supreme Court has sanctioned reliance on both 
"direct and circumstantial evidence of intent," Arlington Heights,
429 U.S. at 266, it has recognized that "[p]roof of discriminatory 
intent must necessarily usually rely on objective factors," Per­
sonnel Administrator v. Feeney, 442 U.S. 256, 279 n.24 (1979), since 
"it is unfashionable for state officials to openly express racial 
hostility [or] overt bigotry." United States v. Board of School 
Commissioners, 573 F.2d 400, 412 (7th Cir. 1978). See Washington 
v. Davis, 426 U.S. 229, 253-54 (1976) (Stevens, J., concurring). In 
this regard, the present case is highly unusual, for the district 
court premised its violation determination on extensive "direct" 
evidence of "overt bigotry" and "racial hostility," as well as on 
substantial and multifaceted "circumstantial" proof of invidious 
intent.

35



1. The "direct" evidence of intent.
Among the examples of direct evidence on which the district 

court expressly relied (see record citations in Hoots II, 359 F.
Supp. at 816-17 (764a)), particularly in concluding that Pennsylvania 
officials segregated central eastern area school districts "because 
of community sentiment" favoring that result, _id. at 816-17, 821, 822 
(764, 777a-78a), are the following: (i) constituent demands in 1964 
that the Boards shield white children from school attendance with 
"colored people [of] the kind that live in North Braddock, Braddock 
and Rankin" (300a); (ii) in-court admissions by a central eastern 
area municipal official Joseph Suley, that he and his colleagues 
pressured State and County Board members in the 1960's to insulate 
their municipalities (Braddock Hills, Turtle Creek and East Pittsburgh 
being mentioned by name) from merger with Braddock and Rankin because 
of "the black issue," i.e., the "bitterness" felt by "whites” toward 
"blacks" in the area (118a-26a); (iii) the 1964 statement of a County 
Board member advocating the separation of predominantly black Braddock 
and Rankin from neighboring, predominantly white municipalities in 
order to create "socio-economic[ally] homegenous units" (308a), see 
note 12, supra; (iv) the admission under oath by State Board Chairman 
Dr. Paul Christman that he approved the isolation of Braddock, Rankin 
and North Braddock from all of its neighbors in 1965 despite his 
"recogni[tion]" of "a black-white factor there that was improperly 
dealt with [that] ... in years to come would become even worse" 
(2702a-03a); (v) the suggestion in a 1965 State Board staff report 
that "the non-white population ... factor" contributed to the various 
municipalities' "opposition" to proposals to merge all those districts

36



with Braddock and Rankin (310a, 699a); (vi) statements by 
Braddock Hills officials in a brief to the County Board in 1964 
attributing the Board's unwavering refusal to merge Churchill with 
any of its neighbors to political pressure emanating from Churchill 
"based on politics, race, color, or creed" (588a); (vii) a letter to 
State and County Board members jointly signed by a Braddock School 
Board member and the President of the area NAACP chapter attributing 
the opposition of neighboring municipalities to merger with Braddock 
and Rankin to fear of an "influx of a large number of Negro students 
into heretofore predominantly white units" and of the placement of 
"Negroes on the School Board [and in] professional and non-profes­
sional [staff positions] in the school system" (592a-93a); and (viii) 
a statement made by County Board President L.W. Earley during hear­
ings in 1968 on North Braddock's appeal conceding "that over the 
years the surrounding school districts had sought to avoid a school 
merger which would include Braddock and Rankin in their school 
district and that it looked like Braddock was going to be 'left 
holding the bag.'" (701a). * •

28/

28/ After noting Turtle Creek’s and East Pittsburgh's objections 
to merger with Braddock and Rankin, and North Braddock's objections 
to merger with Turtle Creek, the staff report stated that "the 
non-white population is not a factor in opposition to Turtle Creek 
since the percent of nonwhite is as follows; Braddock 55%, Rankin 
51%, Braddock Hills 10%, East Pittsburgh 20% [sic, 6%, see 332a], 
North Braddock 10%, Turtle Creek none." (310a.) The clear nega­
tive implication of this comment is that, while not a factor in

• opposition to 0-percent-black Turtle Creek, the "non-white popula­
tion" was a "factor in opposition" to 50-percent-plus-black Braddock and Rankin.\

Not only this report but substantial additional evidence sup­ports the conclusion that the Boards knew of and were influenced 
by the wishes of local officials and citizens such as those ex­
pressed in items (i) and (ii) above. (299a-08a, 580a, 586a-90a, 
592a-93a, 620a-45a, 697-701a.)

37



In addition, plaintiffs' educational expert, John Finger, 
testified that it was "a public assumption" in central eastern 
Allegheny County in the 1960's that "race" was a "factor" "in the 
formation of" school districts. (230a.) Dr. Finger further testi­
fied that, in his professional opinion, it was possible to "infer 
from some of the [public] documents that ... race, indeed, was taken 
into consideration" by public officials "in recreating school dis­
tricts," and that those officials "exclude [d] Rankin and North
[Braddock] and Braddock" from consolidation with neighboring white

29/districts "because they are black." (230a, 237a-38a.)
Appellants do not even purport to challenge most of this

direct evidence of invidious discrimination (i.e., items (iii),
(iv), (v), (vi) and (viii), as well as Dr. Finger's testimony), and
these uncontradicted and undisputed portions of it, by themselves,
provide sufficient support for the district court's purposeful-
discrimination conclusion. Moreover, the challenges leveled at
isolated items of this direct evidence are blatant attempts by
appellants to have this Court substitute its credibility judgments

30/
for those of the district court, and draw inferences from 
the evidence different from, but no more reasonable than, those 
drawn by the district court. E.g., Brief of Swissvale, at 18;

29/ During Dr. Finger's testimony, the district court wondered 
whether "we are interested" in individual "people's motives," 
apparently anticipating the Supreme Court's subsequent discussion 
of the pitfalls of "subjective" evidence of intent. (238a.) See p. 
35, supra. Whatever the purport of this off-the-cuff remark at 
trial, however, the district court has repeatedly held in its con­
sidered written opinions that the "intentional creation" of "racially 
identifiable" school districts "constituted the constitutional 
violation found in this case." E.g., Hoots VIII, at 9 (892a).
30/ Appellants' attack on Mr. Suley's testimony (item (ii) above) is particularly egregeous in this respect. Mr. Suley courageously

- 38 -



Brief of Edgewood/Turtle Creek at 29. Plaintiffs submit, in the 
first place, that the credibility judgments and inferences appel­
lants would have this Court make —  e.g., that a remark by a Turtle 
Creek citizen about "colored people [of] the kind that live in 
North Braddock, Braddock and Rankin" embodies an objection moti­
vated entirely by "socio-economic" concerns having nothing to do 
with race, id. —  are patently unreasonable. Even more to the point, 
however, "[i]t is settled that where evidence would sustain a conclu­
sion either way, and the trial court decided it to weigh more heavily 
for [one party], such a choice between two permissible views of the 
weight of the evidence is not "clearly erroneous" within the meaning 
of [Fed. R. Civ. P.] 52." Hadco Products, Inc, v. Frank Dini Co.,
401 F .2d 462, 464 (3d Cir. 1968).

Under these circumstances, the district court's critical 
findings that the Boards segregated school districts in central 
eastern Allegheny County for the purpose and with the intent of

30/ Continued
consented to take the stand and testify to his own improper, racially 
motivated behavior, as well as that of officials with whom he worked 
during the 1960's. (E.g., 117a-26a.) In offering such sensitive
testimony, Mr. Suley was understandably nervous (see 130a-31a), as 
the district court noted in occasionally sustaining objections to 
individual aspects of Mr. Suley"s testimony. (123a, 134a.) In Hoots 
II_, however, the district court clearly found certain portions of Mr. 
Suley's testimony credible, including his highly probative, since 
against-interest, admissions that he and his colleagues made racially 
motivated districting decisions and encouraged the Boards to do the 
same. Hoots II, 359 F. Supp. at 817 (764a), citing T. 82-100 (117a-28a). 
In these circumstances, appellants' suggestion that this Court, 
having not seen Mr. Suley testify, make a different credibility 
judgment offends "the proper allocation of functions between the 
district courts and the courts of appeals" on matters of fact.
Dayton Board of Education v. Brinkman I, 433 U.S. 406, 409-10 (1977).

Appellants' attempt to raise evidentiary objections to this and other evidence, all of which was introduced at trial by stipulation 
or without objection, is untimely. (62a-63a, 149a-50a, 696a.)See Fed. R. Civ. P. 16.

39



satisfying the invidiously motivated "desires," "wishes" and 
"sentiments" of municipal officials and citizens in that area are 
amply supported by substantial, indeed clear and convincing, 
evidence. Hoots II, 359 F. Supp. at 816-17, 821, 822 (774a, 777-78a). *

2. The "circumstantial" evidence of intent.
The district court's violation finding is not only amply sup­

ported by the above-described "direct" evidence of racial motivation, 
but is also sustained by the "objective" evidence of intent on 
which the court relied in Hoots II. Indeed, appellants do not 
challenge the sufficiency of the evidence supporting any of the 
district court's findings (see pp. 25-31, supra) with regard to the 
various "circumstantial" indicia of invidious discrimination on which 
it relied, including: (i) the administrative history of the reorgani­
zation decisions; (ii) the Boards' rejection of alternative school- 
district configurations in favor of segregation-maximizing alterna­
tives; (ii) the Boards' massive violations of statutory and ad-

11/ministrative reorganization standards; (iv) the Boards' formula­
tion of boundaries that did not promote any interest other than

32/
racial segregation; (v) Board members' admitted knowledge 
that their redistricting decisions would cause and perpetuate

3V  This finding is supported by extensive evidence demonstrating 
that the Boards violated such crucial guidelines as: (a) the statu­
tory 4000-pupil requirement (violated as to Edgewood, GBASD, Swiss- 
vale, and Turtle Creek); (b) the requirement that existing (as 
opposed to new) facilities be used where possible (violated as to 
Churchill, Edgewood, GBASD, and Turtle Creek); (c) the requirement 
of racial and cultural diversity (violated as to Churchill, Edgewood, 
GBASD, Swissvale and Turtle Creek); and (d) the requirement that each 
district be capable of providing a comprehensive educational program 
(violated at least as to GBASD). 359 F. Supp. at 819-20; see 158a- 
266a, 310a, 385a, 446a-48a, 565a, 582a, 589a.
11/ Although appellants do not dispute the substantial record sup­
port for this finding, they feebly assert that an undated, unsigned,

40



segregation; (vi) the forseeability of that segregative result;
(vii) the dramatically segregative impact of the Boards' deci- 33/
sions; (viii) the numerous departures from normal procedural

32/ Continued
and unauthenticated document entitled "Supplemented Order 2-10,” 
which is admittedly not in the record, suggests that one of the many 
administrative actions found by the district court to violate the 
Constitution (the State Board's separation of Turtle Creek and East 
Pittsburgh from Braddock, Rankin and North Braddock) was justified by 
a valid state interest (i.e., transportation problems). See Brief 
for Swissvale at 19 & n.*. Appellants' last-ditch effort to reliti­
gate, with evidence presented for the first time in this court, an 
issue that they have thrice been permitted to litigate through 
evidence in the district court (in 1972, 1975 and 1980, see pp. 78-81 
infra) violates every imagineable canon of orderly judicial proceed­
ings, including the judicial notice principles in Fed. R. Evid. 201.
See Plaintiffs' Motion to Strike ... Appendix, referred to merits panel, Order of August 20, 1981.

"'With respect to judicial notice of adjudicative facts, the 
tradition has been one of caution in requiring that the matter be 
beyond reasonable controversy.'" Government of Virgin Islands v. 
Gereaux, 523 F.2d 140, 147 (3d Cir. 1975), quoting Advisory Com­
mittee Note to Fed. R. Evid. 201. That caution is particularly 
appropriate here for two reasons. First, the "facts" in so-called 
"Supplemented Order 2-10" are not "capable of immediate ... determi­
nation by resort to easily accessible sources," Gereau, at 147, 
because appellants have admittedly been unable to determine the 
genesis of this unsigned, undated document. Swissvale's Response to 
Plaintiffs' Motion to Strike, at 2. Second, the transportation- 
problem "fact" on which appellants rely is not a matter of "indis­
putable accuracy," Gereaux, at 147, since it is refuted by evidence 
properly introduced in the record. See 310a, 699a (State Board staff 
report concluding in 1965 that there were no unusual transportation 
difficulties between Turtle Creek and Braddock/Rankin/North Braddock); 
see also Hoots VIII, at 10 (893a) ("Turtle Creek ... has adequate 
transportational connection" with GBASD and the other former districts).

In any event, that the State Board may have premised one of 
its many segregative decisions on a pretext, which even its own 
staff rejected, if anything, bears out the district court's finding 
that no "legitimate" state interest supported the segregative 
decisions made by the State Board.
33/ Although appellants concede that the Boards' decisions had a 
segregative impact, they attempt to downplay its importance by 
arguing that, by merging 20%-black North Braddock with 64%- and 51%- 
black Braddock and Rankin, the Boards improved the racial balance 
in the latter two areas. The Reorganization Acts required the 
Boards to consolidate districts, especially those, like Braddock

41



sequences characterizing the State Board's decisional process; and 
(ix) the State Board's admittedly improper interpretation of its own 
''race1' regulation to endorse the very segregation the regulation was 
originally designed to prevent (see pp. 42-46, infra).

Even were the violation here "necessarily [premised] on 
objective" evidence of intent, Personnel Administrator, 442 U.S. at 
279 n.24, the multifarious and unchallenged circumstantial findings 
listed above —  which either parallel or exceed the proof found 
sufficient, for example, in Dayton Board of Education v. Brinkman 
rr, 443 U.S. 526, 534-37 (1979); Columbus Board of Education v. 
Penick, 443 U.S. 449, 456-63 (1979); United States v. Board of 
School Commissioners, 573 F.2d 400, 412-13 (7th Cir. 1978); Arthur 
v. Nyquist, 573 F.2d 134, 143-45 (2d Cir. 1978); and Resident 
Advisory Board v. Rizzo, 564 F.2d 126, 142-45 (3d Cir. 1977) —  
by themselves, supply a wholly sufficient evidentiary basis for the 
intentional segregation found by the district court. In any event, 
once the extensive "direct" and "circumstantial" evidence is 
aggregated, the futility of appellants' attack on the sufficiency of 
the evidence of intent is manifest. See also pp. 62-71, infra.

C. The District Court's De Jure-Discrimination Finding 
Is Strongly Supported by the State Board's Peculiar 
Construction of its "Race" Guideline_______________

In carrying out the Reorganization Acts, the State Board 
promulgated guidelines, including that "[r]ace ... shall not be [a] 
factor[] in determining administrative boundaries." (320a, 660a;

33/ Continued
and Rankin, that were tiny and virtually bankrupt. That the Boards 
could have flouted that requirement entirely and left Braddock and 
Rankin alone, rather than purposely carrying out their consolidation 
duties in the most segregative manner possible, Hoots II, 359 F.
Supp. at 819-20 (769a), does not ameliorate the starkly segregative 
impact of their actions.

42



see pp. 11-13, supra.) The State and County Boards' counterintui­
tive and admittedly improper interpretation of this guideline, which 
they applied in creating all of the school districts involved in 
this litigation, provides additional proof of de jure discrimination, 
as the district court found.

Although persistently misrepresented by appellants, the crucial 
facts surrounding the Boards' peculiar interpretation of the "race" 
guideline are the subject of uncontradicted district court findings 
and record evidence. From 1963 to 1968, state officials gave the 
guideline two conflicting interpretations —  (i) the "segregation- 
opposed" interpretation, which not only prohibited state officials 
from drawing boundary lines to segregate the races intentionally but 
also required them to consider "community racial characteristics" in 
order to avoid drawing boundaries that were segregative in fact; and 
(ii) the "segregation blind" interpretation, which permitted officials 
to be "oblivious" to the known segregative effects of their decisions. 
Hoots II, 359 F. Supp. at 818 (767a-68a); see 256a-58a, 573a, 701a-G2a, 
2702a. Most state officials, including the Attorney General and the 
State Human Relations Commission (HRC), applied the former, segrega­
tion-opposed interpretation, in keeping with applicable HRC regulations 
(quoted in 9 supra) and established national educational standards, 
both of which prohibited the drawing of school boundaries in a de 
jure or de facto segregative manner and required school officials to 
take affirmative steps to assure racially diverse school districts. 
Hoots II, 359 F. Supp. at 818, 820, (767a, 771a-72a), citing 171a-79a, 
227a-37a, 246a-63a, 575a-78a, 655a-56a.

In drawing the boundary lines in central eastern Allegheny County, 
however, State and County Board members admittedly applied the segre­
gation-blind interpretation of the guideline, despite their knowl-

43



edge that such an interpretation conflicted with HRC regulations and 
state policy and would result in the perpetuation and aggravation of 
pre-existing segregation in the central eastern area. Hoots II, 359 
F. Supp. at 818-19 (767a-68a); see 256a-58a, 701a-02a, 2690a, 2702a- 
03a, 2761a-62a. Not until late 1968, after all of the reorganization 
decisions in this case were made, did the Attorney General and HRC 
finally prevail upon the State Board to renounce the segregation-blind 
interpretation as improper, and to announce that the guideline would 
thereafter be construed in the segregation-opposed manner, i.e., "to 
prevent de jure segregation through the fixing of school district 
boundaries .. for racial ... reasons" and to enforce state policy 
that "de facto segregation ... is ... prohibited." Hoots II, 359 F. 
Supp. at 812, 820 (754a, 772a), citing 256a-58a, 573a.

The district court held that these facts evidenced a violation 
of the Equal Protection Clause in two independent, but mutually sup­
portive, ways. First, the court concluded that the Boards' adoption 
of a mangled and counterintuitive interpretation of the "race" guide­
line —  in the face of the seemingly clear, segregation-opposed 
language of the guideline (230a, 276a-61a); contrary state (i.e., HRC) 
policy; the conflicting construction applied by other state officials 
(including the Attorney General); State Board members' recognition 
that their interpretation would have distressingly segregative effects 
in the central eastern area; and, particularly, the State Boards' 
subsequent acknowledgment that the segregation-blind interpretation 
was improper —  provided convincing proof that the Boards' otherwise- 
inexplicable choice of that segregative interpretation was invidiously

44



motivated, and that the resulting segregation was "purposeful." 
2761a; see Hoots II, 359 F. Supp. at 820 (771a-72a).

In reaching this conclusion, the court applied well-estab­
lished Fourteenth Amendment law. Just as "departures from normal

11/

34/ The district court's findings, following the reopening of the 
violation issue and presentation of new evidence by the former 
districts in the fall of 1975, strongly support this conclusion.
At the 1975 hearings, the following colloquy occurred between 
the district court and the former districts' witness, State Board 
Chairman Paul Christman:

THE COURT: [On its face, the "race" guideline] would
appear to mean that [the State Board] would not create 
any racially segregated districts, but it was inter­
preted that [the Board] should be blind to any such 
divisions that do exist.
DR. CHRISTMAN: That's right. May I say as a member
of the hearing panel [that approved GBASD] that I 
recognized ... that there was a black-white factor 
there that was improperly dealt with ....

(2702a.) Based on this and other testimony, the court made the 
following oral findings:

THE COURT: They [State Board members] knew they
were doing it purposefully, but their ["own adminis­
trative guideline"] said they were to close their 
eyes to that.

★  * *  *

I interpret that for good or evil, Christman 
says, sure, it was a creation of a segregated 
district, but the guidelines we followed [said] we 
weren't to be deterred by that.
MR. MAXWELL [for Churchill]: Judge, he never
said that.
THE COURT: I interpreted what he said as that.
This is the inference I draw .. I heard him, 
and you get ... this ... inference ... from 
hearing the testimony, observing the manner of 
testifying. I think that clear inference to 
me is that they knew they were heading into a 
segregation problem, but the guidelines said you 
are not to pay attention to that.

(2761a-62a; accord, 2737a.)
45



substantive criteria" in making segregative decisions convincingly 
evince an improper purpose, so, too, does a blatant departure 
from the reasonable and well-accepted interpretation of a substan­
tive criterion. Resident Advisory Board v. Rizzo, 564 F.2d 
126, 143 (3d Cir. 1977); see pp. 26-27, supra. As the district 
court found, see note 34, supra, the strenuousness of the Boards' 
interpretive gymnastics in devising this excuse for their knowingly 
and dramatically segregative decisions —  stretching the words of the 
guideline and straining against contrary state policy and the 
conflicting interpretation of fellow state officials —  rules out

35/every inference but that those decisions were improperly motivated.— / 
The district court found that the Boards' interpretation of the 

"race” guideline evidenced a constitutional violation in a second, 
alternative way: Whatever the motivation behind that counter­
intuitive construction, its substantive content —  the Boards' 
express "refusal to consider racial criteria" in the formulation of 
school district boundaries —  "constituted an explicit racial class­
ification, in that educational matters related to racial criteria 
were treated differently from educational matters relating to other 
criteria." Hoots II, 359 F. Supp. at 823-24 (780a), citing Lee v. 
Nyquist, 402 U.S. 935 (1971), aff'g 318 F. Supp. 710 (W.D.N.Y. 1970) 
(3-judge court); Hunter v. Erickson, 393 U.S. 385 (1965). As the deci­
sions cited by the district court clearly establish-, this explicit ra­
cial classification is unconstitutional on its face because it is not 
justified by a "compelling state interest." See generally Loving v.

35/ Given well-established Pennsylvania state policy mandating 
affirmative efforts to end pre-existing de jure and de facto segrega­
tion (see note 9, supra), the district court's conclusion that the 
Boards improperly "proceed[ed] in a fashion that [did not] lessen 
previously existing school segregation" also strongly supports the 
violation finding. Hoots II, 359 F. Supp. at 823 (779a),

46



Virginia, 388 U.S. 1 (1967); McLaughlin v. Florida, 379 U.S. 184 
(1964).

The courts have held that state and local governments may
validly consider racial criteria in order voluntarily to ameliorate
or avoid racial imbalance in, for example, public schools, voting
districts, and housing, and that the interest of citizens (and
particularly minorities) in achieving such governmental action is
commensurate with the interest of citizens in pursuing any other

36/
proper governmental action. Consequently, where a state 
statute or "state administrative procedure" makes it more difficult 
for minorites to advance their interest in ending racial imbalance 
through governmental action than it is for everyone else to pursue 
other valid interests in that manner, that statute or administrative 
policy embodies a "constitutionally suspect" "explicit racial classif­
ication," Hunter v. Erickson, 393 U.S. at 392, which the courts must 
subject to the "most rigid scrutiny," Ld, and invalidate in the 
absence of "a particularly strong justification." Evans v. Buchanan 
TI, 393 F. Supp. 428, 441 (D. Del.) (3-judge court), aff'd, 423 U.S. 
963 (1975).

Applying these principles, the Supreme Court has invalidated a 
municipal charter provision imposing a referendum requirement solely 
on ordinances forbidding racial discrimination in private housing, 
Hunter v. Erickson, supra, and it has upheld the invalidation of a 
statute requiring the state Commissioner of Education to obtain 
local approval of "plans which have as their purpose the assignment

36/ B.q., Regents of the University of California v. Bakke, 438 U.S. 
265, 320, (1978); United Jewish Organizations v. Carey, 430 U.S. 144 
(1977); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 
16 (1971); Reitman v. Mulkey, 387 U.S. 369 (1969); Hunter v. Erickson, 
supra; Zaslawsky v. Board of Education, 610 F.2d 661, 663-64 (9th 
Cir. 1979) (citing cases).

47



of students to alleviate racial imbalance" since the Commissioner's
powers were not so restricted in any other area, Lee v. Nyquist,
318 F. Supp. at 718, aff'd, 402 U.S. 935 (1971). Accord, Evans v .
Buchanan II, 393 F. Supp. 428, 440-41 (citinq cases), aff'd, 423

37/
U.S. 963 (1975).

In the present case, the State Board's construction of the
"race" guideline, which prohibited the Board from alleviating and
avoiding school segregation through the arrangement of boundary
lines, accomplished precisely what these cases prohibit. Particularly
given the district court's unchallenged finding that state policy,
nationally accepted reorganization standards, and even the "race"
guideline itself, as properly interpreted by the Attorney General,

38/
identified racial balance as an important reorganization goal, 
the State Board's explicit interpretive refusal to consider "racial 
balance," while it countenanced consideration of all other valid 
educational goals (see 575a~78a, 655a-56a), created a "clearly racial 
classification." Lee v. Nyquist, 318 F. Supp. at 719. For that 
interpretation "made it more difficult to deal with racial im-

37/ Indeed, more recently, the courts have applied this doctrine in much less aggravated situations than the present one, in which the 
racial-balance-opposed classification is implicit, rather than, as here, 
explicit. E.g., Seattle School Dist. No. 1 v. Washington, 633 F .2d 
1338, 1343-44 (9th Cir. 1980) (invalidating a statute, neutral on its 
face, which forbade the voluntary assignment of school children to 
schools other than those "geographically nearest ... to the students' 
residence" because, the court concluded, such a statute implicitly 
"enumera[tes] those purposes for which there may be student assignment 
[while] omitting from the enumeration ... assignment ... to achieve 
racial balance".)
38/ "[S]chool authorities have wide discretion in formulating school
policy, and __ as a matter of educational policy —  may well
conclude that some kind of racial balance in the schools is desirable 
quite apart from any constitutional requirements." North Carolina 
School Board of Education v. Swann, 402 U.S. 31, 45 (1971); accord,Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. T~, 16 
(1971 ).

48



balance in the public schools than with all other educationally
relevant problems." Id. at 718. "Where a ["state administrative
procedure"] ... explicitly .. makes the goals of a racial minority
more difficult to achieve than other related governmental interests,
the [procedure] embodies a suspect racial classification and requires
a particularly strong justification." Evans v. Buchanan II, 393 F.
Supp. at 441, citing with approval, Hoots II. In the "absolute []"
absence here of "evidence showing that the State Board's actions"
were "rationally related to ... any valid state interest," Hoots
II, 359 F. Supp. at 821, the Boards' suspect racial classification

39/
violates the Equal Protection Clause. Accordingly, the Boards' 
application of that interpretation in drawing boundary lines in 
central eastern Allegheny County —  quite apart from the racial 
animus motivating the placement of those lines —  establishes a clear 
and unequivocal violation of the Fourteenth Amendment, which justifies 
the district court's remedial action.

39/ These principles apply even "in the absence of de jure segrega­
tion" because the Board's construction "places burdens on the imple­
mentation of educational policies designed to deal with race on the 
local level [and accordingly] the discrimination is clear based on 
race alone ...." Lee v. Nyquist, 318 F. Supp. at 719. Similarly, an 
unjustified explicit racial classification violates the Constituion 
whether or not its authors were motivated by racial animus in creating 
it. Id. Accordingly, the district court's "intentional segregation" 
holding and its alternative "racial classification" analysis provide 
entirely independent and wholly sufficient bases for the violation 
conclusion. The two holdings are fully consistent, however, since, as 
here, an administrative interpretation that embodies an explicit 
racial classification prejudicial to blacks may well have been adopted 
for the purpose of prejudicing blacks.

49



II. THE district court did not abuse its broad remedial
DISCRETION IN CONSOLIDATING FIVE SCHOOL DISTRICTS,
WHOSE BOUNDARIES WERE ALL UNCONSTITUTIONALLY DRAWN,
INTO ONE DESEGREGATED DISTRICT____________________

"In litigation as long and complex as this, the fashioning of 
relief should normally 'be entrusted in large measure to the sound 
discretion of the District Court Judge who has lived with [it] for so 
many years.'" Hoots V , 639 F.2d at 979 (2776a), quoting Gilmore v.
City of Montgomery, 417 U.S. 556, 577 (1974) (Marshall, J., concurring). 
Moreover, the "district court's equitable power to remedy past wrongs 
is broad, for breadth and flexibility are inherent in equitable 
remedies," Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S.
1, 15 (1971), and because breadth is necessary "'to allow the most 
complete achievement of the [remedial] objecives ... attainable 
under the facts and circumstances of the specific case.'" Evans v. 
Buchanan VIII, 582 F.2d 750, 760 (3d Cir. 1978)(en banc), quoting 
Franks v. Bowman Transportation Co., 424 U.S. 747, 770-71 (1976). 
Consequently, as this Court has held in an interdistrict school 
desegregation case strikingly like the present one, "a reviewing court 
is not empowered to consider the matter de novo," and may overturn the 
district court's exercise of discretion "only when the judicial action 
is arbitrary, fanciful or unreasonable, or when improper standards, 
criteria, or procedures are used." Evans v. Buchanan VIII, 582 F.2d at 
760, quoting Evans v. Buchanan V , 555 F.2d 373, 378 (3d Cir. 1977)(en 
banc).

The remedy implemented by the district court in this case is the 
result of a reasoned application of controlling precedent, is uniquely 
effective under the circumstances of the case, and should be affirmed.

50



A. The District Court Applied Proper Standards in
Determining that the Violation Was Interdistrict 
in Nature and Involved School Districts on Either 
Side of Unconstitutionally Formulated Boundaries

The established standards governing the imposition of inter­
district relief are set forth in Milliken v. Bradley I, 428 U.S.
717 (1974), Hills v. Gautreaux, 425 U.S. 284 (1975) and, in this 
Circuit, in the various opinions in the Wilmington school desegrega— j 
tion litigation, notably Evans v. Buchanan III, 416 F. Supp. 328 (D. 
Del. 1976), aff1d, 555 F.2d 373 (3d Cir. 1977)(en banc) and Evans v. 
Buchanan VIII, 582 F.2d 750 (3d Cir. 1978) (en banc).

Adhering to the equitable principle that the nature and scope of 
the violation should determine the nature and scope of the remedy 
(e.g., Milliken v. Bradley II, 433 U.S. 267, 280 (1977)), Milliken I 
and Gautreaux teach that a court may impose interdistrict relief when
racially discriminatory acts of state or local authorities have caused.         ... .. "" ' ' ... - *     -   **—
substantial racial_segregation among or effecting two or more school 
districts. Milliken I, 418 U.S. at 744-45, cited in Hoots VI, 510 F. 
Supp. at 616, 619 (868a, 874a); Milliken I, at 755 (Stewart, J., 
concurring); Gautreaux, 425 U.S. at 293-94. Specifically with regard 
to the "nature" of the violation, Milliken I identifies two types of 
constitutional violations that justify "an interdistrict remedy... to 
eliminate the interdistrict segregation directly caused by [that] 
violation:" (i) "where the racially discriminatory acts of one or more 
school districts [or other governmental authorities] caused racial 
segregation in an adjacent district," or (ii) "where district lines 
have been deliberately drawn on the basis of race," or, as Justice 
Stewart stated in concurrence, where state officials contributed to the

51



separation of the races by drawing or redrawing school district lines." 
M/AM^en A .' 428 U.S. at 745, 746; id. at 755 (Stewart, J., concurring) 
(citing cases); accord, Gautreaux, 425 U.S. at 294, 297, 296 & n.12; 
see Hoots VI, 510 P. Supp. at 616, 619-20 (868a, 875a-76a).

Whatever difficulties might be encountered in determining the 
"scope" of the first type of violation identified in Milliken (by 
assessing, for example, the segregative effects of one district's 
discriminatory policies on another), "where school district lines 
have been deliberately drawn on the basis of race" —  the second 
type of violation —  the scope of the violation is clear: The
"relevant geographic area," of the violation, see Gautreaux, 425 U.S. 
at 299; pp. 56—62, infra, includes each of the districts whose lines 
have been unconstitutionally drawn, for it is the very existence of 
those boundaries and the districts they define that constitutes the
violation and has the effect of segregating students by race.

40/Milliken I, 418 U.S. at 744-45, 746-47.
Further, where the State has drawn school district boundaries 

for the purpose of segregating the races, the school districts that 
are the products of that line-drawing activity may be included in a 
remedy regardless of their own culpability or innocence. Milliken I

40/ Accord, Milliken I, 418 U.S. at 755 (Stewart, J., concurring) 
(citing cases); Evans v. Buchanan III, 416 P. Supp. at 340, aff'd,
555 F.2d 373 (3rd Cir. 1977), quoted in Hoots VI, 510 F. Supp"! at 620 
(876a)? Morrilton School District No. 32 v. United States, 606 F.2d 222, 228 (8th Cir. 1979), cited in Hoots VI, 510 F. Supp. at 619-20 
(875a) (interdistrict-relief is appropriate because "[t]he boundaries 
of the [black] district, and consequently, the boundaries of the 
[white] school districts in the [area] were not neutrally drawn," and 
the effects of the unconstitutional state action are [accordingly] 
felt in both districts"); United States v. Board of School Commis­
sioners , 573 F.2d 400, 410 (7th Cir. 1978), quoted in Hoots VI, 510 
F. Supp. at 620 (875a); see Columbus Board of Education v. Penick.443 U.S. 449, 465-67 & n.16 (1979). ----------

52



plainly states that "[s]chool district lines and the present laws
with respect to local control are not sacrosanct and if they conflict 
with the Fourteenth Amendment, federal courts have a duty to prescribe 
appropriate remedies." Milliken I, 418 U.S. at 744, 745 (citing 
cases)l accord, id_. at 755 (Stewart, J., concurring); Gautreaux, 425 
U.S. at 297. See also Milliken I, 418 U.S. at 745 (interdistrict 
remedy permissible even if violation occurs in only one district, but 
affects another, even innocent, district). Accordingly, this Circuit > 
and others have uniformly held that the innocence of a district
itself is no defense to its inclusion in an interdistrict remedy 
where a governmental authority unconstitutionally drew that district's 
lines to separate the races. Evans v. Buchanan III, 416 F. Supp. at 
339—40, aff'd, 555 F.2d 373 (3d Cir. 1977); Morrilton School District 
No. 32 v. United States, 606 F.2d at 228-9 & n.5; United States 
Board of School Commissioners, 573 F.2d at 410 & n.23; United States 
v. Missouri, 388 F. Supp. 1058, 1059-60 (E.D. Mo.), aff'd, 515 F.2d 
1365, 1369-70 (8th Cir. 1975).

Applying these principles to the present case, it is clear that 
the district court correctly held that state and county officials 
were guilty of "an interdistrict," "linedrawing" violation justifying 
a "multidistrict remedy" encompassing some or all of the districts 
whose connecting boundaries were unconstitutionally drawn. Hoots 
VI, 510 F. Supp. at 619 (874a).

In the first place, it has been clear from the inception of the 
action that plaintiffs were alleging that the State and County Boards 
"intentionally and knowingly created racially segregated school 
— >" Hoots 1, 334 F. Supp. at 821 (958a) (emphasis added), and

53



were seeking to alter" school district lines to desegregate the 
schools in GBASD "and surrounding communities." Plaintiffs' Amended 
Complaint, f 99 C-F (52a); see Hoots II, 359 F. Supp. at 824-25 
(781-82a).

Moreover, based on the extensive and multifaceted evidence of 
invidious discrimination discussed at pp. 25-46, supra, the district 
court granted relief on that complaint, finding that the State and 
County Boards intentionally "created" GBASD and its neighbors as 
identifiably black and white districts, and that this "interdistrict 
violation conducted by the State [occurred] during the reorganization 
P*-Oc®ss in the 1 960 s and "included the redrawing of school boundaries 
in that part of [i.e, central eastern] Allegheny County." Hoots VI,
510 F. Supp. at 619 (874a)(emphasis added). More specifically, the 
district court defined the constitutional violation as "the manner in 
which the school district lines were drawn," including both the 
racially motivated —  and locally influenced —  refusal of the County 
and State Boards to exercise their "expressly retained ... power to 
force further merger" of GBASD's component municipalities with the 
surrounding white municipalities, and "the very elimination [of GBASD] 
from consideration for merger with [the predominately white] districts." 
Id. at 620-21 (876a-77a). Having thus defined and located the consti­
tutional violation, the district court quite properly concluded, in 
accordance with Milliken I and its progeny, that school districts in 
central eastern Allegheny County were implicated in -- indeed created by 

that violation and that "[a] multidistrict remedy can be applied to 
[those] surrounding districts" whose "boundaries were drawn or redrawn 
during the course of the ... violation." Id. at 619 (874a). Milliken I,

54



418 U.S. at 744 (citing cases), 745, 746-47; id. at 755 (Stewart, J., 
concurring) (citing cases).— /

Correctly relying on the well-established legal standards
discussed above, the district court also properly held that the:

State and County Boards violated the constitu­
tion in the manner in which the school district 
lines were drawn and so all surrounding 
districts can be implicated in a remedy, 
despite their alleged lack of involvement in the process.

"Where the State has contributed to the 
separation of races by redrawing school lines, 
necessarily the districts on both sides of the 
lines are part of the violation itself, and 
exclusion of the suburban districts cannot be 
predicated on their own purported innocence 
when their present lines were drawn or redrawn 
in the course of a violation."

Hoots VI, 510 P. Supp. at 620 (876a), quoting Evans v. Buchanan III, 
416 F. Supp. at 340. In any event, the district court expressly found 
that "the surrounding districts" were not "innocent" of violational
activity, since they "continually," invidiously —  and successfully —  
"sought to avoid being included in a school district with [Brad- 
dock and Rankin] due to the high concentration of blacks" in those 
areas. Hoots VI, 510 F. Supp. at 620-21 (877a). The inclusion in an 
interdistrict remedy of school districts whose officials influenced 
and contributed to the violation is, of course, appropriate and 
justified. Milliken I, 418 U.S at 745 (interdistrict remedy appro-

41/ Accord Morrilton School District No. 32 v. United States, 606 
F.2d 222, 226-29 (1979); Evans v. Buchanan VIII, 582 F.2d 750, 762-67 
(3d Cir. 1978); United States v. Board of School Commissioners,
573 F .2d 400, 407-08, 410 (7th. Cir. 1978); United States v. Missouri, 
515 F . 2d 1365, 1369-71 (8th Cir. 1975), aff'g 388 F. Supp. 1058~ 
1059-60 (E.D. Mo. 1975) and 363 F. Supp. 739, 745-46, 747-50 (E.D.
Mo. 1973); Haney v. Board of Education of Sevier County, 410 F.
2d 920, 924, 926 (8th Cir. 1969), citedwith approval in Milliken I, 
418 U.S. at 744; Evans v. Buchanan III, 416 F. Supp. at 334-36.340-41 n.43, 343, 350-53.-------------

55



priate where acts of local districts have caused substan-
42/

tial interdistrict desegregation).
B. The District Court Applied Proper Standards And

Correctly Determined, Based on Extensive Evidence, 
that the Scope of the Violation Encompassed GBASD 
and the Four Former Districts

1. The district court applied proper standards 
in determining that the violation affected 
all of central eastern Allegheny County, 
including GBASD and the four former districts.

Having properly established that the State committed an inter­
district line-drawing violation, the district court undertook to 
identify the specific school districts that were unconstitutionally 
created by the Board, and therefore, subject to inclusion in the 
remedy. In so doing, the district court exercised its broad "remedial 
discretion” in keeping with "proper legal precepts." Evans v. Buchanan 
V, 555 F.2d 373, 378, 380 (3d Cir. 1977).

(The Supreme Court first described how the scope of an inter­
district remedy should be determined in Hills v. Gautreaux, 425 U.S.

43/
284 (1975). The Court held that locating the "relevant geographic

42/ . Accord, United States v. School Commissioners, 573 F.2d 400,
405-08 (7th Cir. 1978), on remand, 456 F. Supp. 183, 187-89 (inter­
district remedy ordered where racially motivated objections of local 
officials and citizens influenced state officials to exclude Indianapo­
lis from mergers with other districts with the purpose of "perpetuating 
the segregated white schools in" surrounding "suburban" areas);
United States v. Missouri, 363 F. Supp. 739, 745-46 (E.D. Mo. 1973), 
aff'd, 515 F.2d 1365, 1367 (8th Cir. 1975); United States v. Texas,
321 F. Supp. 1043, 1048 (E.D. Tex.), aff'd, 447 F.2d 441 (5th Cir.
1971); Turner v. Warren County Board, 313 F. Supp. 380, 384 (E.D.N.C. 
1970).
43/ In Gautreaux, the Supreme Court upheld an interdistrict remedy 
because such a remedy would not interfere with the autonomy of 
local governmental units. Gautreaux, 425 U.S. at 300-01. However, 
its discussion of how the courts should determine the scope of that 
interdistrict remedy has been applied in situations precisely 
like the present one. E.g., Evans v. Buchanan III, 416 F. Supp. at 
343-34, aff'd, 555 F.2d 373 (3d Cir. 1977).

56



area" of the violation so as to make the remedy "commensurate with 
the 'nature and extent of the constitutional violation,'" _id. at 
299-300, requires the assessment of four factors: (i) the area in 
which the persons discriminated against were confined; (ii) the area

v---- --_____-----______
from which the persons discriminated against were excluded; (iii) the
area in which the discriminating governmental entity or entities were
authorized to act; and (iv) the area in which the discriminating
governmental entity could or might have acted in complying with

--- —... 44/
applicable standards and guidelines. Id_. at 298-300.

C - " - ~  <

The leading case applying Gautreaux to determine the precise 
scope of an interdistrict school desegregation remedy is Evans v. 
Buchanan III, 416 F. Supp. at 343-44, aff'd,555 F.2d 373 (3d Cir. 
1977). There, the court defined the "relevant geographic area" of 
the violation as Northern New Castle County because: (i) the black
student population of that area of the county was largely confined 
to the identifiably black Wilimington district, which had been 
unconstitutionally "reserved" from the statewide reorganization 
process, id_. at 336 & n.1 1 , 343; (ii) the black students in Wilming­
ton were excluded from the "other districts in this [Northern New 
Castle County] area [which] were being consolidated or considered for

44/ In Gautreaux, the Supreme Court located the "relevant geographic 
area" of the violation in "metropolitan Chicago/ i.e., the City of 
Chicago and its immediate suburbs, based on the following conclusions: 
(i) within the Chicago metropolitan area, black families had been 
confined to segregated public housing sited in identifiably black 
neighborhoods in the City of Chicago; (ii) black families had been 
precluded from living in white suburban areas adjacent to the 
city of Chicago by the refusal of HUD or the local housing authority 
to build low-income housing in those areas; (iii) both HUD and the 
housing authority were authorized to operate both within and outside 
of the Chicago city limits; and (iv) HUD standards indicated that in 
order to accomplish its program objectives it could have acted beyond 
the city limits. Id_. at 299-300.

57



consolidation," _id. at 335-6, 343; (iii) during the reorganiztion 
process the State Board of Education was authorized to consolidate 
school districts across the State (with the unconstitutional excep­
tion of Wilimington), _id. at 336 & n.14; Evans v. Buchanan II,
393 F. Supp. at 438-39; and (iv) State educational officials had in 
the past treated the entire northern county area as a single region 
for many school purposes.

Unlike the Wilmington litigation, in which this Court and the
lower court did not focus on the exact area of the violation until
after remedial hearings were held, the district court in this case
explicitly described the metes and bounds of the "relevant geographic
area"in the opening portion of the violation opinion itself:

School Districts Established by the State and County Boards
In the central eastern area of Allegheny 
County, east of the City of Pittsburgh 
and north of the Monongahela River, the 
County and State Boards established the 
General Braddock Area School District; 
the School Districts of Turtle Creek,
Swissvale Area, [and] Churchill Area ... 
which border on the General Braddock Area 
School District; and the Edgewood School 
District which is situated within approxi­
mately one mile of the General Braddock 
Area School District.

Hoots II, 359 F. Supp. at 813 (emphasis added). 45/

45/ This same five-district "central eastern portion of Allegheny 
County" has consistently been identified as the violation area 
throughout this litigation. For example, the five districts of 
Churchill, Edgewood, GBASD, Swissvale and Turtle Creek were the 
only units: (i) specifically singled out in Plaintiffs' Amended 
Complaint (21a, 27a-34a, 40a); (ii) provided written pretrial notice 
from the Attorney General of Pennsylvania that, if successful, this 
action would result in the alteration of their boundaries (614a-618a); 
and (iii) were explicitly listed, identified and described, either by 
present district or past (component) districts in Hoots II, 359 F. 
Supp. at 813, 816-20, and repeated again in Hoots VI, 510 F. Supp. at 
617-18.

58



In Hoots VI, decided in March 1981, the district court reaffirmed
that "Churchill, Turtle Creek, Swissvale [and] Edgewood" were
included in that line-drawing violation and, along with GBASD,
could be included in any remedial plan." Hoots VI, 510 F.2d at 619,

46/620, 622 (874a, 876a, 879a). In concluding in Hoots II and 
Hoots VI that the "relevant geographic area" of the violation, and 
thus, potentially, of the remedy, was "central eastern Allgheny 
County," encompassing Churchill, Edgewood, GBASD, Swissvale and 
Turtle Creek, Chief Judge Weber properly applied the four-part 
Gautreaux standard described above.

First, the district court identified the area in which the 
Boards unconstitutionally confined blacks as GBASD, which the Boards 
composed out of municipalities (particularly Braddock and Rankin, but 
also North Braddock, see 300a) that the "surrounding municipalities" 
and "school districts ... continually sought to avoid being included 
[with] in a [merged] school district ... due to the high concentra­
tion of blacks." Hoots VI, 510 F. Supp. at 619, 621 (873a, 877a). 
Indeed, "no other combination of school districts within this 
portion of Allegheny County would have created a [4000-pupil] school 
district with as large a percentage of non-white enrollment as

46/ In the "metes and bounds" description of the violation area in 
Hoots II, see p. 58, supra, the district court also included a sixth 
district, East Allegheny, Hoots II, 359 F. Supp. at 813 (755a), while 
upon reexamination of the evidence in Hoots VI, the court included a 
seventh district, Gateway, as well. Hoots VI, 510 F. Supp. at 622 
(879a). However, no party thereafter proposed a plan including those 
two districts, and the court subsequently resolved to exclude them 
from the remedy on practical grounds. Hoots VIII at 8-9 (891a-92a). 
Because East Allegheny and Gateway are not involved in this appeal, 
plaintiffs will not discuss the district court's findings and the 
record evidence linking them to the violation.

59



[GBASD]," Hoots II at 819; see id. at 813-16, 816-19; Hoots VI at
618-19.

Second, the court identified the area from which the Boards 
excluded blacks as including Churchill, Edgewood, Swissvale and 
Turtle Creek. The court found that "black residents" had always been 
"excluded from [the component] municipalities" of those four districts 
(which are listed in Hoots II, 359 F. Supp. at 816 (762a)) by "perva­
sive racial discrimination [in] housing," and that the Boards inten­
tionally "select [ed] school district boundaries .. which conformed to 
and built upon [this] pattern of residential segregation," in order 
to "satisfy the desires" of white residents to remain in racially 
segregated school districts. Id. at 816, 823 (762a, 788a); Hoots VI,
510 F. Supp. at 619, 621 (873a, 877a.)

Third, the district court found that the State and County Boards 
"at all times under Act 561 and 299" were "effectively operating from 
a clean state" and "expressly retained the power to force" all of the 
districts in Allegheny County to merge with nearby districts. Hoots 
VI, 510 F. Supp. at 621 (877a); Hoots II, 359 F. Supp. at 811-13.
Although with the passage of Act 150 in 1968, the Boards' reorganiza­
tion authority was limited to those school districts (as relevant here, 
the four former districts minus Churchill) that had not previously been 
approved by the State Board and gone into operation under the earlier Act 
299, the district court expressly found that "the constitutional viola­
tion was not only committed under Act 150, but pursuant to the entire 
reorganization process" "under "Act 561, 299 and 150," Hoots VI, 510 
F. Supp. at 618, 621 (874a, 877a), and included such Act 299 events as 
the 1964 approval of Churchill, and the State Board’s initial proposal of

60



the ill-fated GBASD merger in 1965. Id. at 618 (871a). Accordingly,
the district court properly found that the three reorganization acts
under which the violation occurred gave the Boards plenary authority,
either throughout or during most of the violation period, to determine

47/the boundaries of each of the four former districts.
Finally, the district court found that a proper adherence by 

the Boards to applicable statutory, administrative and Human Relations 
Commission standards would have led those agencies to merge GBASD's 
components with some or all of the four former districts, but that 
in deliberately drawing boundaries on the basis of race, the Boards 
"failed to meet," and rejected "alternatives" that were "more

£7/ While expressly not "determining the matter" (845a), the dis­
trict court, in a 1977 remedial memorandum, questioned whether 
Churchill could be included in a remedy consistently with Milliken I, 
given its post-1968 "grandfather" status under Act 150. (840a-41a,
845a-46a.) The court's 1977 speculations on this issue, however, 
proceeded under two factual misassumptions, which the district court 
expressly rejected in Hoots VI in light of the evidence in the 
record. Thus, while assuming in 1977 that the violation was confined 
to the post-1968 Act 150 reorganization period, and thus that Churchill 
was not involved since it was created earlier, when the district 
court did actually "determine the matter" in 1981, it expressly 
concluded that the "constituional violation was accomplished by the 
State and County Boards through the reorganization process through 
Acts 561, 299 and 150." Indeed, the court went further in Hoots VI 
and found that the Board's 1964 approved of Churchill —  over the 
"strenuous objections" of its neighbors — ■ lay at the core of 
the violation, since by invidiously "eliminating [Churchill] from 
consideration for merger" with Braddock, Rankin and some or all of 
their neighbors, the State Board thereafter left itself with no 
viable "options" with which to deal with those smaller, predominantly 
black districts. Hoots VI, 510 F. Supp. at 618, 622 (871a, 877a): see 588a, 699a.

In short, the 1977 memorandum (although clearly evidencing the district court's application of the proper "segregative intent" 
standard for a Fourteenth Amendment violation (843a)) merely raised 
questions on the Milliken v. Bradley issue. Not until after the 
presentation of additional evidence and argument, see note 56, infra, 
did the court finally answer those questions, concluding in Hoots VI 
that Churchill lay well within the ambit of the Boards' reorganiza­
tion authority during the period of the constitutional violation.

61



consistent" with, "many of" those standards. Hoots VI, 510 F. Supp.
at 618-19 (872a-73a). Indeed, in listing the alternative configura­
tions actually considered, but unconstitutionally passed over, by the 
Boards, the district court expressly mentioned each of the five 
former districts as potential merger candidates with GBASD's compo­
nents under properly formulated plans. Hoots II, 359 F. Supp. at 
817-18 (Braddock Hills, East Pittsburgh, Turtle Creek, Swissvale and 
Edgewood); Hoots VI, 510 F. Supp. at 621 (878a) (Churchill and 
Braddock Hills).

In sum, the five-district area actually included in the district 
court's remedy is congruent with the locus of the segregative effects 
caused by the Boards' invidious confinement of blacks to GBASD and 
exclusion of blacks from the neighboring areas, and lies within the 
region in which the Boards could, and did exercise their plenary
reorganization authority. Under Gautreaux and Evans III, therefore,

..... .... '
the district court adhered to proper standards in determining the 
scope of the remedy.

2. The district court's findings that each of the 
former school districts was directly implicated 
in the State's line-drawing violation are sup­
ported by extensive record evidence.

Like their challenge to the district court's violation determina­
tion, see p. 34, supra, the former district's attack on their inclu­
sion in the remedy boils down to nothing more than a claim that the 
district court's implication of them in the Board's unconstitutional 
line-drawing activities is clearly erroneous. Here, however, the 
barrenness of the former district's "clearly erroneous" contentions is 
especially manifest, for each district, while claiming that it. had 
no part in the violation, vehemently points its finger at the others.

62



E.g. , Brief for Swissvale, at 44; Brief for Churchill, at 31.
As a district-by-district review of the record reveals, the 

district court relied on extensive and compelling evidence in conclud­
ing that the "effects of the unconstitutional state action [were] 
felt in" each of the four former districts, Hoots VI, at 510 F. Supp. 
at 620 (875a), that each was "involved in the [unconstitutional 
process of] consolidation or merger ... which eventually led to 
[GBASD's] creation" and their own immunization, i_d. at 622 (880a), 
that in immunizing each, "the County and State Boards ... failed 
to meet many of the essential requirements of th[e] Act[s] and 
recognized educational standards," id. at 618 (872a), and that 
each avoided alternative merger arrangments "more consistent" 
with the applicable standards. Id. at 621 (873a). See Hoots VI,
359 F. Supp. at 817-18, 819-20, 821 (764a-67a, 769a-73a).

(a) Churchill
Segregative effects. The dominant feature of the Boards1 

conduct toward Churchill was the total insulation of its all-white 
student body from black school children in Braddock and Rankin and in 
all other districts in the area with even a few black pupils. See 
Hoots VI, 510 F. Supp. at 621 (878a).

At the time the State Board approved Churchill in 1964 — • over 
the "strenuous objections" of, for example, Braddock Hills (587a) and 
East Pittsburgh (698a), id at 618 (871a) —  that distict (as the 
State Board well knew, Hoots II, 359 F. Supp. at 818 (768a), citing 
(260a, 588a, 592a) had a non-white school population of .17%, compared 
to 57%, 45% and 14% in Braddock, Rankin and North Braddock, respec­
tively. Hoots II, 359 F. Supp. at 619 (770a); see 331a-32a. Moreover,

63



while GBASD's non-white population increased by nearly 20 percentage 
points (44%-63%) over the ten-year course of its existence, Churchill' 
analogous black population "growth" was less than a third of one 
percentage point (.46% to .78%, 333a, 3227a), bearing out for Church­
ill the district court's finding that the violation "built upon [and] 
maximize[d] [pre-existing] racial segregation." Hoots II, 359 F.
Supp. at 821, 823 (774a, 778a).

Inclusion in alternative plans. As the court expressly 
found, Churchill was deeply involved in the administrative process 
through which the Boards immunized one district after another during 
the 1960's until they had no "option" but to leave GBASD's predomi­
nantly black component districts "in an isolated position." Hoots 
VI, 510 F. Supp. at 618, 621 (871a, 877a). For example, Braddock 
Hills (under both Act 561 and Act 299) and East Pittsburgh and Turtle 
Creek (under Act 299) all exhorted the County and State Boards not to 
merge them with Braddock and Rankin, at least in the absence of 
Churchill. Hoots II, 359 F. Supp. at 816-17 (764a), citing, 447a-48a, 
585a-91a, 698a; see Hoots VI, 510 F. Supp. at 621 (878a). By 
ignoring these repeated pleas (which the State Board concededly 
heard, e.g., 589a) and allowing Churchill to stand alone, the Boards 
removed an obvious and substantial inducement to other predominantly 
white districts in the area to join willingly with Braddock and 
Rankin, thereby justifying the district court's finding that the 
"refusal to force ... a merger" between Churchill and its neighbors 
"contributed to the isolation of General Braddock." Id. at 621 
(877a.) In this instance, too, there is "direct" evidence in the 
record that the Boards' immmunization of Churchill, as Braddock Hills
officials charged, was due to "objections" and "political" pressure- 64 -



from Churchill "based on race. Hoots II, 359 F. Supp. at 817
(764a), citing 588a? see pp. 15-16, supra.

Violation of standards. By shielding Churchill from 
merger with other districts in the area during the 1960's, the Boards 
violated numerous applicable reorganization standards. For example, 
by permitting Churchill, which had long tuitioned its high school 
students to neighboring districts for lack of a high school, to stand 
alone, the Boards assured that a new high school would have to be 
built there (446a, 448a, 589a, 3009a), even though the Boards' 
standards set a preference for "use of existing buildings" (661a). and 
even though, at the time, the secondary school facilities in the 
nearby districts of Rankin, Turtle Creek and Edgewood were grossly 
underutilized (384a, 419a). See Hoots II, 359 F. Supp. at 820 
(772a).

The isolation of Churchill also doubly violated the full 
range of applicable statutory, educational and Human Relations 
guidelines requiring the inclusion in each district, as part of 
the provision of a comprehensive education, of "children from 
varied economic and cultural backgrounds" and different races. Id. 
citing 251a-52a; 260a, 575a-77a; see note 9, supra. First, the 
areas combined into the Churchill district were homogeneously well- 
to-do, white and middle class, thereby depriving the student body 
there of the comprehensive educational experience that the requisite 
economic, cultural and racial diversity was supposed to provide. E.g., 
341a, 379a, 646a, 714a; see Hoots II, 359 F. Supp. at 816 (762a). 
Second, by withdrawing what, along with Edgewood, was the only 
consistently well-to-do and well-educated populace in the area 
from merger with the other consistently and substantially less

65



well-off districts in the area (e^. , 341a, 379a, 646a, 714a) —  not 
to mention the withdrawal of Churchill's all-white student body from 
contact with Braddock's and Rankin's predominantly black pupil 
population —  the State and County Boards deprived all of the other 
districts of this aspect of diversity, which experts at trial identi­
fied as crucial to the academic achievement of children from poor, 
uneducated backgrounds. See id. at 820 (772a), citing 171a, 236a,
251-52a.

Based on considerations such as those discussed above, a number 
of prominant educational experts, over the ten-year course of this 
litigation, have singled out Churchill as the most likely candidate 
under applicable reorganization standards for incusion in a merger 
with Braddock and Rankin. E.g., 1215a-16a, 1229a, 1234a (Dr. Armor); 
10/21/75 Tr. at 23 (Dr. Christman); 2338a-39a (Dr. Crain); 1801a-02a 
(Dr. Hillman). See also 236a (Dr. Finger).

(b) Edgewood.
Segregative effects. Edgewood, like Churchill, was a prime 

beneficiary of the segregative effects of the Boards' actions, since 
its exclusion from a merger with Braddock and Rankin enabled it to 
maintain its pre-reorganization 100-percent-white racial characteris­
tics, even as GBASD "tipped" (Hoots II, 359 F. Supp. at 815 (760a)) 
from 45 percent to 65 percent black. (333a, 3227a.)

Inclusion in alternative plans. As the district court 
found, since Edgewood and nearby Rankin were repeatedly proposed for 
merger with Swissvale (120a-21a, 420a, 448a, 498a, 540a, 642a), all 
three of those districts would likely have been merged in the absence 
of racial discrimination. Hoots II, 359 F. Supp. at 817-18, 766a).
As it was, 0% black Edgewood repeatedly and, in the end, successfully

66



avoided merger with 10%-black Swissvale and 50-percent- 
black Rankin. (333a-36a, 448a, 562a, 585a.)

Violation of standards. The "redrawing" of Edgewood's
boundaries during the reorganization process provides the clearest
example of how thoroughly the Boards abandoned applicable standards,
including: (i) the 4000-pupil standard (below which 900-pupil Edgewood
fell by 80%, 333a); (ii) the "use of existing facilities" standard
(given Edgewood's 40 percent underutilization of its secondary
facility —  at a time when Braddock and North Braddock's secondary
facilities were rapidly deteriorating —  and its need of a new elementary
facility, having for years educated its younger students in a church,
9/10/73 Tr. at 83; 562a); (iii) the "comprehensive education" standard
(in the wake of its re-creation by the Boards, as the district court
found, Edgewood has increasingly had to rely on tuition revenues and
"has entered the business of private education ... contrary to ...
school district reorganization policy," 8/26/81 Tr. at 5385; Hoots
VIII, at 11 (894a)); and (iv) the "economic, cultural and racial
diversity" standards (violated in much the same way as in Churchill's
case, since Edgewood's population was homogenously Caucasian, upper-
income, and well educated, 333a, 341a, 379a, 646a, 714a). At the
violation trial in 1972, plaintiffs' principal educational expert,
Dr. Finger, identified Edgewood as a particularly suitable candidate
for merger with Braddock and Rankin under a proper application of

48/appropriate reorganization and educational standards. (E.g.,
232a, 236a.)

48/ Edgewood contends that a state court administrative-review deci­
sion, Appeal of Braddock Hills, 445 Pa. 343, 285 A.2d 880 (1971),

67



(c) Swissvale
Segregative effects. Although not as stark as in Churchill 

and Edgewood, the segregative effects of the violation are also quite 
visible in Swissvale. As of 1967, Braddock Hills and Swissvale had 
a combined black enrollment of 9.6% percent, which had only risen to 
12.7 percent by 1980, while the comparable rise in GBASD was from 45 
percent in 1967 to 63 percent 13 years later. Hoots II, 359 F.
Supp. at 816 (763a); 334a-36a? 3227a.

Inclusion in alternative plans. Both of Swissvale’s 
component municipalities, Swissvale and Braddock Hills, were deeply 
implicated in the unconstitutional reorganization process in the 
central eastern area. As noted above, the County Board's original 
Act 561 and Act 299 proposals included Braddock Hills in a unit with 
Braddock and Rankin (419a, 447a, 582a), but the Board abandoned that 
proposal (which was strongly supported by its staff for educational 
reasons, 447a) under heavy pressure from Braddock Hills —  pressure

48/ Continued
somehow immunizes it from the dictates of the Fourteenth Amendment in 
this case. In Braddock Hills the state court considered one exceeding 
ly narrow question only: whether the State Board was guilty of "bad 
faith, fraud, capricious action or abuse of power" in separating 
Edgewood from Swissvale/Braddock Hills in 1968. Id. at 883, 885. As 
such, that decision did not consider — • indeed, the parties did not 
even raise —  the crucial questions at issue here: i.e., the "consti­
tutional" propriety of, or "the motivation for, letting Edgewood stand 
alone (and] the segregative effect of that action." Hoots I, 334 F. 
Supp. at 823 (962a); Hoots VI, 510 F. Supp. at 622 (879a). Nor were 
Braddock, Rankin or the other districts in the area even involved in 
the suit.

As the district court noted in twice rejecting this argument in 
Hoots I and Hoots VI, unlike "[t]he [state] court [which] refused to 
interfere with administrative decisions," the federal courts "must 
interfere with decisions which are made during the course of a 
constitutional violation." Id.

68 -



that municipal official Joseph Suley attributed at trial to "the 
racial problem." Hoots II, 359 F. Supp. at 816-17, citing 117a-18a; 
see PP* 15-16, supra. A like motive, according to Mr. Suley, led 
Swissvale successfully to eschew merger with Rankin —  even though 
the two districts share an extensive border and even though State 
Board members recognized that merging the two. was "the logical 
geographic thing to do," (120a-21a, 642a.) See Hoots II, 350 F.
Supp. at 817-18 (765a-67a).

Violation of standards. As the County Board itself in­
timated (585a), the creation of the 2300-pupil Swissvale district 
(336a) violated: (i) the 4000-pupil minimum? (ii) the "use of existing 
facilities" standard (Swissvale/Braddock Hills did not have enough 
secondary or library capacity, but was grossly underutilizing its 
elementary capacity —  precisely the opposite of Edgewood's facilities 
problem, 540a, 585a); and (iii) the "economic, cultural and racial 
diversity" standards (since Braddock Hills and Swissvale were almost 
identical 5-10 percent black, lower to middle income areas, 333a,
341a, 379a, 646a, 714a).

(d) Turtle Creek
Segregative effects. Like Churchill and Edgewood, Turtle 

Creek's creation maintained and exacerbated the racial identifiabil- 
ity of its two component municipalities, Turtle Creek and East 
Pittsburgh. Together, those two areas had a combined black enroll­
ment in 1967 and 1971 of 1.3 percent (332a, 336a), and in 1980 of 
1.9 percent (3327a), despite their contiguity with substantially and 
increasingly black GBASD. See Hoots II, 359 F. Supp. at 816, 819 
(763a, 770a); Hoots VI, 510 F. Supp. at 618 (871a).

69



Involvement in alternative plans. Until the final isola­
tion of GBASD was accomplished in 1965, at least one and often both 
of Turtle Creek's two component municipalities were included with the 
component GBASD districts in every plan proposed by both Boards under 
all three Acts. (291a, 293a, 419a; see pp. 15-16, supra.) Moreover, 
it was in the context of the East Pittsburgh-Turtle Creek campaign to 
secede from the Braddock/Rankin unit that citizens implored the 
Boards not to send their children to school with "colored [students 
of] the kind that live in North Braddock, Braddock and Rankin"
(299a-304a, 698a-99a), and that county and state officials spoke of 
the need for "socioeconomic ... homogen [eity]" and of the "non-white 
population ... factor in opposition" to merger with Braddock and 
Rankin. (307a-08a, 310a.) Not surpirsingly, municipal officer 
Joseph Suley identified East Pittsburgh and possibly Turtle Creek at 
trial as districts fleeing Braddock and Rankin because of the "black 
and white issue" (117a, 121a, 126a), just as another municipal 
officer (Braddock School Board member Thomas Harper) informed the 
Boards by letter in 1964. (592a.) See Hoots II, 359 F. Supp. at 
816-17 (764a) (relying on all of the exhibits cited in this paragraph).

Violation of standards. The Boards' creation of Turtle 
Creek violated: (i) the 4000-pupil standard (since the district fell
60 percent short of the 4000 mark in 1971, and 75 percent short in 
1980, 336a, 3227a); (ii) the "use of existing facilities" standard 
since 40 percent of the district's high school capacity was unused at 
the time of the merger, (564a), at the same time as Churchill, 
Swissvale, Braddock and North Braddock were in need of high school 
space, 307a-08a, 384a, 582a); and (iii) the "economic, cultural and 
racial" diversity standard (given the culturally homogeneous nature

- 70 -



of its two municipalities (331a-32a, 341a, 343a-44a, 349a). Thus, 
the staffs of both the State and County Board repeatedly reported to 
their superiors throughout the 1960's that an East Pittsburgh/Turtle 
Creek merger would not meet applicable reorganization standards. 
(307a-08a, 310a, 446a, 582a.)

Taken as a whole, the exhibits and testimony in this case 
fully and comprehensively support the district court's findings that 
the boundaries of each of the four former districts were "drawn or 
redrawn in the course of the same violation" and that each district 
was sufficiently "implicated" and "involved" in the violation to 
warrant its inclusion in a remedy. Hoots VI, 510 F. Supp. at 620-22.

3. The district court applied proper legal standards
in concluding that the violation was, and thus that 
the remedy could be, "system-wide".
The district court conformed Hoots IV to precisely the 

"relevant geographic area" analysis in Gautreaux, and thereby located 
the violation in central eastern Allegheny County, and, specifically, 
in the area comprised of GBASD and the four former districts (plus 
East Allegheny and Gateway, see note 46, supra). Relying on Dayton 
Board of Education v. Brinkman I, 433 U.S. 406 (1977), however, the 
former districts assert that the district court erred by including 
them in the remedy without specifically finding that, "but for" the 
violation, the Boards would have merged each of them with GBASD.
This argument mischaracterizes the law applicable in school desegrega­
tion situations such as this one.

As the Supreme Court recently held, the Dayton I "but for," or 
"incremental segregative effects," burden on plaintiffs applies 
"only" in cases revealing no more than "isolated instances of 
intentional segregation, which [are] insufficient to give rise to an

71



inference of systemwide institutional purpose and which [do] not add 
up to a facially substantial systemwide impact." Columbus Board of 
Education v. Penick, 433 U.S. 449, 458 n.7 (1979). Accord, Dayton 
Board of Education v. Brinkman II, 443 U.S. 526, 540-42 (1979). In 
all other cases, however, it is established that "[p]roof of purpose­
ful and effective maintenance of a body of separate black schools," 
Columbus Board of Education v. Penick, 443 U.S. at 448, "in a meaning­
ful portion of a school system ... creates a presumption that [all] 
other schools within the system" are the result of "an unlawful 
segregative design on the part of school authorities, and shifts to 
those authorities the burden of proving that [those] other schools 
are not the result of intentionally segregative actions." Keyes v. 
School District No. 1, 413 U.S. 189, 208 (1973), reaffirmed in id. 
accord, Evans v. Buchanan VIII, 582 F.2d at 766.

The present case clearly falls within the Keyes-Columbus- 
Dayton II remedial standard described above. For the district court 
here clearly found that the line-drawing "violation was ... committed 
pursuant to the entire [decade-long] reorganization process that 
began with Act 561" and that the violation was a "substantial cause 
of interdistrict segregation" and produced "a significant segregative 
effect" throughout central eastern Allegheny County. Hoots VI, 510 
F. Supp at 616, 621 (868a, 877a), quoting, Milliken v. Bradley I, 418 
U.S. at 744-45. Indeed, when, as here, the "nature" of the violation 
is "the manner in which the school district lines were drawn," id. at 
620 (876a), the violation almost assuredly affects a "meaningful por­
tion" of the area as whole, Keyes v. School Dist. No. 1, 413 U.S. at 
208, because the districts "on both sides of the lines" owe their 
very existence, not to mention their geographic configuration and
their overall racial make-up, to the segregative violation. Evans v.- 72 - ' If



Buchanan III, 416 P. Supp. at 340, aff'd, 555 F.2d 373 (3d Cir. 1977).
Nor can it be argured that the Keyes principle does not apply in 

interdistrict school desegregation cases. For even before Columbus 
Dayton II reaffirmed Keyes, this Court concluded that the Keyes, 

rather than the Dayton I, test applied in an interdistrict school 
desegregation situation similar to the present one:

That the "condition that offends the Consti­
tution" was found to be inter-district in nature 
and extending throughout the [seven]-district area 
required that the remedy be congruent with the af­
fected geogaphic area. Given the pervasive nature 
of the condition and the extensive area implicated 
by the findings of the [district] court, the court 
fashioned a remedy that was prima facie reasonable, 
to—wit, a plan that sought to root out segregative 
effects in the [entire] inter-district area....

Evans v. Buchanan VIII, 582 F2.d at 764.
Having found a "substantial," "significant," area-wide, and decade-

long violation, the district court was fully justified under Keyes,
Cplumbus and Dayton II in presuming that the violation affected the
entire area and that a remedy could do the same, "absent sufficient
contrary proof by [the former districts], which was not forthcoming

49 /here." Columbus Board of Education v. Penick, 443 U.S. at 458.

49/ Having unequivocally located each of the former districts 
within the "relevant geographic area," the district court did not, 
u?<3er Gautreaux and Keyes, have to make the particularized "but for" 
finding required in the peculiar circumstances of Dayton I. Rather, 
the district court was only required to find, as it clearly did, that 
the Boards could have or might have reorganized each of the former 
districts in another, less segregative manner. Accord, Evans v. 
_Buchanan III, 416 F. Supp. at 355 (no requirement of "certainty that 
[a given district] would have been included in any reorganization" so 
long as under proper circumstances it "might" have been so affected).

In this case, the district court went beyond the dictates of 
Evans v. Buchanan III, supra. Thus, in fashioning relief, the court 
affirmatively conformed the remedy to a likely configuration of central 
eastern area districts if no violation had occurred, since, in design­
ing the remedy, the court scrupulously adhered to the reorganization 
standards that the Boards presumably would have followed themselves had they not instead been intent on segregating school districts. See Hoots VIII, 6-8, 8-9, 9-12 (1889a-91a, 891a-92a, 892a-95a). ---

73



c. The District Court Did Not Abuse Its Broad Remedial 
Discretion in Concluding that Five of the School 
Districts that Could Properly Be Included in a 
Remedy Should Be Included in A Single-District- Consolidation Plan

In Hoots V , this Court ordered the district court
"to insure that de jure discrimination in [the] public schools is
remedied 'forthwith.'" Hoots V , 639 F.2d at~980, quoting Swann v.
Charlotte-Mecklenburg Board of Education, 402 U.S. at 14-15:

Although the primary responsibility for remedying past discrimination rests with the school author­
ities, in^default by the school authorities of 
their obligation to proffer acceptable remedies, 
a district court has broad power to fashion a 
remedy that will assure a unitary school system."

Hoots V , 639 F. 2d at 980, quoting id. at 16. Likewise, the Court
held that:

In school desegregation cases " [f]ormulating 
a realistic, practical, and effective remedy is a 
job peculiarly within the province of the trial 
court, whose position gives it quantum advantage 
over an appellate court in weighing the 'prac­
ticalities of the situation"'.

Hoots V , 639 F. Supp. at 979, quoting Gilmore v. City of Montgomery,
417 U.S. at 577.

The district court thereupon took the following actions: First, 
on February 5, 1981, the court held a status conference and informed 
the parties that it would immediately decide the "Milliken v. Bradley 
issue," unless they had further evidence to present. The parties all 
agreed that no further proceedings were necessary on that issue (2834a- 
35a, 2838a-40a), and on March 5, 1981, the court issued Hoots VI, con­
cluding that seven districts — GBASD, the four former districts, and 
East Allegheny and Gateway —  could properly be included in a remedy.

Second, on April 6, 1981, after plaintiffs filed a five-district 
consolidation plan conforming to the district court's March 5 guide­
lines, the court rejected the only two plans that defendants had filed

- 74 -



since 1975, the Tuition Plan and the Upgrade Plan, since both were
incapable of remedying the segregative effects of the violation, and

50/
the latter was inequitable. Hoots VII at 2-3 (1379a-980a);
see Hoots VIII, at 3 (886a). The court further concluded, based on
the voluminous remedial record, that only a consolidation plan could

v 51/
properly remedy the "misconsolidation" violation, and that only 
consolidation into a single new district would avoid the many problems 
observed in defendants' prior consolidation remedies, all of which 
(e«g» r Plans A, B and Z) had "broken up" GBASD into two or more

-52/pieces. Id.. at 3 ( 1380a). The court, did not adopt plaintiffs' 
plan, however, but instead ordered hearings to determine which of the 
seven districts still in the case should, as a practical matter, be 
included in a single-new-district consolidation.

At the April 20-21 hearings, plaintiffs presented extensive 
expert testimony favoring the inclusion in a single consolidated 
district of Churchill, Edgewood, GBASD, Swissvale and Turtle Creek.
(1703a-1812a.) No other party suggested an alternative single-new- 
district configuration, nor presented any evidence other than testimony 
suggesting that it should not be included because of opposition from its

50/ In rejecting the Upgrade Plan, the district court adhered closely 
to the principles applied in Evans v. Buchanan III, 416 F. Supp. at 344, 
in rejecting an analogous intradistrict plan. Similarly, the district 
court's rejection of the Tuition Plan was presaged in Evans v. Buchanan 
VITI, 582 F .2d at 760-61, aff'g Evans v. Buchanan VI, 435 F. S u d d . 832. 840-41 (D. Del. 1977). ~
5_1/ Here again, the district court followed policies first estab­
lished in this circuit in the Wilmington litigation. See Evans v. 
Buchanan III, 416 F. Supp. at 350 (when the violation consists of an 
unconstitutional failure to consolidate a black district with white 
ones, "reorganization [relief is] peculiarly suited [to] remedy" the 
violation and to "placfe] the victims —  in the position they would have occupied had the violation not occurred").
52/ Accord, Evans v. Buchanan III, 416 F. Supp. at 352-53 (refusing to create several separate Northern New Castle County school districts 
and resolving, instead, to merge the entire area into a single district).

75 -



citizens, (e.g., 2021a—22a, 2973a, 2075a—76a.) No party favored the
inclusion of East Allegheny or Gateway. See Hoots VIII, at 8-9 (891a-92a).

Third, following these hearings, the district court issued Hoots
Y Y Y ®n April 28, 1981 , concluding —— based on a studied district—by-
district application of the same reorganization standards ignored by
the Boards in the 1960's —  that a new district composed of Churchill,
Edgewood, GBASD, Swissvale and Turtle Creek, would "achieve the
highest beneficial results of any plan submitted to this court by any
party during the whole [eight-year] period of this [remedial] litiga- 53/
tion. Hoots VIII, at 6 (889a). East Allegheny and Gateway were
excluded from the remedy, largely on the basis of their inordinate
size and the distances separating their school facilities from the54/
other districts. The court accordingly ordered the creation of 
a "New School District" composed of the five segregated districts 
listed above, and ordered the New District to desegregate itself, id. 
at 13-17 (896a-900a), which the district has now done through a 
desegregation plan that went into operation on September 8, 1981, and 
which no party has appealed.

Aside from attempting to obscure the orderly progression of 
events leading from this Court's January 26, 1981 mandate, through the 
consolidation of the five districts on April 28, 1981, to the desegrega­
tion of the district on September 8, appellants do not challenge any of

5

53/ The district court made detailed findings on the propriety of 
including each of the five districts in the remedy pursuant to 
applicable reorganization standards, such as contiguity, transporta- 
tion, enrollment size, community interconnections, use of exiting 
buidlings, potential population changes, and capability of providing 
a comprehensive education. Hoots VIII, at 6-8, 8-9, 9-12 (889a-91a, 
891a-92a, 892a-95a), applying standards in 3221a-25a. See Evans v! Buchanan III, 416 F. Supp. at 354-55. -----------
11/ Accord, Evans v. Buchanan III. 416 F. Supp. at 353-54 (analog­ous exclusion of Appoquinimink district.)

76



the district court's discretionary remedial actions during this 
period, reserving their arguments solely to a misguided legal 
assault on the district court's entirely proper resolution of the 
Milliken v. Bradley issue in Hoots VI. See pp. 50-73, supra. Nor 
could appellants assail the district court's equitable remedy 
determinations, given the breadth of the trial court's discretion in 
such matters, the extensiveness of the eight-year remedial record on 
which those determinations are premised, the district court's clear 
and detailed findings in support of its determinations (see Hoots VI, 
Hoots VII and particularly Hoots VIII), the conformance of the 
district court's exercise of discretion to this Court's mandate in 
Hoots V and to similar decisions made throughout the Wilmington 
litigation (see notes 51-54, supra) and, finally, given the present 
effectiveness of the desegregation plan actually in operation.

Because the district court scrupulously applied appropriate 
legal standards in describing both the interdistrict line-drawing 
nature, and the central-eastern-area-wide scope, of the constitutional 
violation, and because the court exercised its remedial authority 
within that area in an orderly, conscientious and rational fashion, 
it cannot by any means be said that the court's remedial "action is 
arbitrary, fanciful or unreasonable, or [premised] on improper 
standards, criteria, or procedures." Evans v. Buchanan VIII, 582 
F•2d at 760, quoting Evans v. Buchanan V , 555 F.2d at 378. The 
district court's exercise of remedial discretion must accordingly be 
affirmed.

III. THE DISTRICT COURT AFFORDED THE FORMER DISTRICTS 
A LEGALLY SUFFICIENT OPPORTUNITY TO PARTICIPATE 
AND BE HEARD ON ALL RELEVANT ISSUES_____________

Appellants Churchill, Edgewood and Turtle Creek ("the complain­
ing districts") contend that the court erred in failing to join them,

77



at the request of another party and against their wills, as parties 
defendant in 1971. Appellants studiously avoid citing it, but the 
record demonstrates that the district court afforded them the opportu­
nity to —  and that they did in fact —  participate fully in the litiga­
tion of all relevant issues and that, in any event, they did not have a 
sufficient legal interest to require their involuntary joinder.

In their 1971 complaint, having alleged that the Commonwealth, 
through the State and County Boards, drew boundaries "for racial 
reasons," plaintiffs named those three parties as defendants. (26a- 
27a, 29a.) The district court subsequently denied motions to dismiss 
for failure to name GBASD and the four former districts because it 
could "not find," as Fed. R. Civ. P. 19 requires, that the "absence 
from the action" of those districts, which were "created by the 
[Boards] .. without their assent, ... as a practical matter impair[ed] 
their ability to protect such interests as they have." Hoots I, 334 
Supp. at 823 (962a); accord Hoots II, 359 F. Supp. at 821 (775a).

In Hoots I, however, the court held that the former districts 
"might intervene in this action under Fed. R. Civ. P. 24 if they so 
desire," Id., and it "instructed [the named parties] to give notice 
[of the suit] to the proposed parties." (56a.) The Attorney General 
thereupon sent letters to GBASD and the four former school districts 
in May 1972 (614a-18a), "informing them of the action, ... enclosing a 
copy of the complaint, ... advis[ing] them that if relief were 
granted the present boundaries of their districts [would] undoubtedly 
be changed, ... and urg[ing] their immediate intervention." Hoots 
II, 359 F. Supp. at 823 (776a) . None chose to act." Id. Indeed, 
after the Attorney General sent pretrial telegrams to the five 
districts again urging them to appeal —  at a time when whatever

- 78



interest they had in the suit "was apparent" from the parties' 
pretrial statements and stipulation, Hoots III, 495 F.2d 1097 & n.5 
(2848) —  the districts informed the court directly, according to 
Chief Judge Weber, that they "deliberately" and "specifically chose 
not to come in" because they "had no interest in being" in the suit. 
(57a, 3383a, 3389a? see Hoots II, 359 F. Supp. at 822 (776a).)

Not until "two years after the case was filed, six months 
after trial, and almost a month after the district court's opinion 
and order [Hoots II] was filed," did Churchill and Turtle Creek seek 
to intervene, followed by Edgewood four months later. Hoots III, 495 
F.2d at 1097 (2838a); see 784a, 986a, 1638a. The district court 
denied all petitions seeking retroactive intervention —  i.e., to 
reopen prior proceedings (987a-89a, 996a) —  and this Court affirmed 
on "untimeliness" grounds, Id., which are now law of the case.
Insurance Group Committee v. Denver & Rio Grande R., 329 U.S. 607,
612 (1947).

The district court permitted the districts to intervene prospec­
tively, however, and Churchill and Swissvale did so in October 1973, 
and have participated fully since. (996a.) In fact, in the Fall of 
1975, on Churchill's motion to "present testimony and other evidence" 
in support of its motion to dismiss for lack of proof "of deliberate, 
purposeful intent to discriminate ... (as required by Keyes and 
Milliken)" (2799a? see especially Churchill's Supplemental Pretrial 
Statement, 2673a), the district court permitted the former districts 
to reopen the violation issue and call Dr. Paul Christman, longtime 
chairman of the State Board, to testify concerning the Board's reorgani-

79



zation activities in the 1960's. (Excerpts, 2684a-705a.)—
>

Moreover, all of the former districts participated fully in State 
Board hearings held in 1973, 1974 and 1975 on remand from the district 
court, and the transcripts of those hearings are part of this record 
and have regularly been relied on in the district court. (E.g.,
1128a-29a, 3194a-95a.)

Furthermore, since May 1979, when the district court granted 
P.l;.aintiffs motion mandatorily to join all of the former districts 
(849a, 853a), the appellant school districts have all participated 
fully in this suit and presented evidence and argument not only on 
remedy, but also on violation-related issues raised in their motions 
to dismiss, including: (i) whether a Fourteenth Amendment violation 
occurred and (ii) whether the disticts could each be included in a 
remedy consistent with Milliken v. Bradley I. 418 U.S. 717 (1974).—  
Notably, none of the complaining districts, during this entire May

55/

55/ After Dr. Christman admitted on cross-examination that Board 
members knowingly segregated school districts in the central eastern 
area, fully recognizing that the result would be severe economic 
and educational "problems" for GBASD (2702a-03a), the district 
court reaffirmed its prior conclusion that the Board "purposefully" 
segregated those districts. (2761a; see pp. 32-33; note 34, supra.)
56/ ^During the 1979-81 period, the district court heard, inter alia, 
the following evidence and argument from the former districts on the 
violation and Milliken issues: (i) motions to dismiss because of 
an alleged absence of "proof of invidious discrimination ... and ... 
of significant segregative effects" (854a, 857a, 1958a, 1962a, 1966a, 
2600a); (ii) Extensive evidence allegedly demonstrating the former 
school districts' neutral creation (2929a-3014a, 1486a-506a), received 
into evidence in September and October 1980 (2929a, 2648a, 3187a,
3193-97a, 3291a) pursuant to the court's orders setting the districts' 
dismissal motions down for disposition in October 1980 (2849a-51a; 
see 7/30/80 Tr. at 103-24), and relied on by appellants in this Court 
as well, e^., Brief for Churchill, at 11 , 29; (iii) hundreds of

of briefs and attachments filed by the former districts pursuant to the distict court's Fall 1980 orders (2849a-51a), including 
extensive arguments on the violation and Milliken issues; and (iv) 
oral argument on those same^questions presented on October 2, 1980 (excerpts, 3196a-210a).

80



1979-March 1981 period, during which they were all mandatorily
joined, ever notified the court below of any evidence or argument it
wanted the court to consider, on any question (violation, Milliken v.
Bradley, or remedy), but was prevented from adducing by the court's

57/failure to join it at some earlier stage.
In this procedural context, the complaining districts' joinder 

arguments lack any merit whatsoever. First, since those districts

57/ After reaffirming the violation and deciding which school 
districts could be part of the remedy in March 1981 (Hoots VI), 
the court then set hearings for April 20-22, 1981 to determine which 
districts should be included. (1622a.) Some of the districts 
suggest that the court erred in placing time limits at these hearings 
on their cross-examination (one hour per party per witness) and their 
direct cases (two days for the four former districts' witnesses).
(1622a-23a.) As the Manual for Complex Litigation, at §§4.30, 4.53, 
4.57, establishes, the district court was fully justified in imposing 
these restrictions on the parties, particularly given the inordinate 
length of the litigation, e.q., Hoots V , 639 F.2d at 974-78 (2771a-75a) 
the district court's finding that the former districts were engaging 
in tactics "for delay" (1693a), and this Court's 90-day mandate, id. at 981 (2778a). —

In any case, the former districts cannot possibly demonstrate 
any prejudice from the court's restrictions, because they did not 
even use the full number of hours allotted to their cross-examination 
of any witness (1991a-93a), and their own lay and expert witnesses 
required only one of the two days set aside for their testimony by the court. (1395a, 2102a-03a.)

The further suggestion that the former districts were improperly 
deprived of the opportunity to adduce evidence on the Milliken v. 
Bradley issue at the April hearings is even more absurd. The court 
set aside parts of August, September and October 1980 for the parties' 
presentations on this issue, described in note 56, supra, and then 
decided it on March 5, 1981, under order of this Court, _id. At no 
time during that August 1980 to March 1981 period did any former 
district suggest that it had more evidence to present on that 
issue. Indeed, at a February 5, 1981 status conference, the Court 
directly asked the parties if they had "fully" addressed the Milliken 
v. Bradley issue or needed further "evidentiary hearings," to which 
counsel for the former districts replied that their presentations on 
that issue were "made and briefed." (2816a, 2818a, 2834a, 2848a.) 
Accordingly, any new-found desire on the districts' part to offer evidence on that issue in April was patently out of time.

-  81



actually participated in several years of State Board and district- 
court proceedings —— includxng the 1975 and 1980—81 proceedings on 
reconsideration of the violation, the 1980—81 proceedings on the

_Zz_Bradley issue, and all of the proceedings on the plan
actually imposed —  each of the complaining districts was in fact 
"joined as a party in the action," Fed. R Civ. P. 19(a), for purposes 
of fully litigating every relevant issue at least once. Rule 19 
requires no more, including in interdistrict school desegregation 
cases. E^£., Evans v. Buchanan II, 393 F. Supp. at 430-31 , aff'd,
423 U.S. 963 (1975).

Second, even during the pre-1973 period (as well as at all times 
since), the former districts were all fully "aware" of the lawsuit,
?̂ ~s—AAj.> 495 F.2d at 1097 & n.5 (2848a), and "had notice and an 

opportunity to come in." (3198a; see 56a-59a, 2729a, 3389.) That 
those fully informed districts inequitably "chose," in Chief Judge 
Weber s words, "to dance a stately minuet, not coming into this 
Court, but taking an appeal" and complaining that they were not 
forced into the case against their wills (2724a), deprives them of 
Rule 19's flexible and "equitable" protection. See Provident Trades­
men Bank & Trust Co. v. Patterson, 390 U.S. 102, 119 (1968). Rule 19 
affords federal trial courts "wide lattitude" in balancing the 
interests of the absent litigant against the named parties and the 
court itself, Gentry v. Smith, 487 F.2d 571, 579-80 (5th Cir. 1973); 
accord, Kaplan v. International Alliance, 525 F.2d 1354, 1361 (9th Cir. 
1975), and will not countenance dismissal "when [the] circumstances 
would make it inequitable to do so." Wright & Miller, Federal

82 -



Practice and Procedure, Civil § 1611 at 118. Here, the Rule's 
equitable concerns were surely satisfied, inasmuch as the absent 
districts informed the court that they had "no interest in being" in 
the suit (57a), and the court found that its interests and those of 
the named parties were better served by not forcibly joining the 
districts. (58a-61a.) Accord, National Welfare Rights Organization 
v. Wyman, 304 F. Supp. 1346, 1350 (E.D.N.Y. 1969) (Weinstein, J.).

Finally, the complaining districts did not have a sufficient 
"interest relating to the subject of the action" to require their 
involuntary joinder. Fed. R. Civ. P. 19(a)(2). The "interest" 
protected by Rule 19(a)(2) "must be a legally protected interest, 
not merely a financial interest or interest of convenience,"

58/ Among the equitable "circumstances" that deprive an absent litigant of any Rule 19 right to mandatory joinder are (i) the absent 
litigant's knowledge of the action and failure to intervene, Toney v . 
White, 476 F.2d 203, 207 (5th Cir. 1973); (ii) the participation in 
the suit by a party governmentally related to the absent litigant or 
otherwise capable of protecting whatever interest that litigant has, 
id.; Moore v. Knowles, 482 F.2d 1079, 1075 (5th Cir. 1973); Donohue v. 
Board of Electors, 435 F. Supp. 957, 965 (E.D.N.Y. 1976); (iii) the 
inordinate length or peculiar pace of the litigation, id.; Barr Rubber 
Products v. Sun Rubber Co., 425 F.2d 114, 1126-27 (2d Cir. 1970); and 
(iv) the failure of the allegedly injured party to assert its Rule 19 
interest in a timely fashion, id.; Continental Insurance Co. v.
Cotten, 427 F.2d 48, 51 (2d Cir. 1970). Notably, these are precisely 
the factors this Court relied on in Hoots III in concluding that the 
complaining districts' intervention petitions were untimely. Hoots 
III, 495 F.2d at 1097 (2848a).

As the foregoing decisions hold, the trial court's exercise of 
discretion should not be overturned unless it has offended due 
process notions. In the present context, even if the complaining 
governmental bodies were "persons" accorded due process rights under 
the Fifth Amendment (which they are not, e.g., South Carolina v. Katzenbach, 383 U.S. 301, 323-24 (1966); Aguayo v. Richardson, 473 
F.2d 1090, 1100-01 (2d Cir. 1973)), such rights were fully protected. 
The essence of due process in this situation is "appropriate notice" 
and "an opportunity to intervene," Evans v. Buchanan II, 393 F.
Supp. at 430, aff'd , 423 D.S. 963 (1975) —  both of which the com­
plaining school districts clearly had from the beginning of this 
lawsuit. E.g., Hoots III, 495 F.2d at 1097 (2848a).

83



3A Moore's Federal Practice 1( 10.97-1 [2] at 129-30, and it is estab­
lished Pennsylvania law that the legislature of that State "did not
intend to create vested rights in [school] districts" —  particularly
in the 1960's violational period when state- and county-level
administrative officials could reorganize districts at will. Chartiers
Valley Joint Schools v. County Board, 418 Pa. 520, 211 A.2d 487, 501
(1967); accord, Hazelton Area School District v. State Board, 364

59/A.2d 660 (Pa. 1976), aff'q 347 A.2d 324, 328 (Cmwlth. Ct. 1975).
"In a desegregation suit [in a state where] a school board has no 
legal right not to have its boundaries changed, the boards of contigu­
ous districts that might be affected are not necessary parties in 
[the violation part of] a suit against a district seeking to change 
its boundaries." 3A Moore's Federal Practice K 19.07-1 [2] & n.4, at
129-30, citing with approval, Hoots II; Husbands v. Commonwealth of

60/Pennsylvania, supra, note 59.

59/ Accord Hoots II, 359 F. Supp. at 821 (775a) and Husbands v. 
Commonwealth of Pennsylvania, 359 F. Supp. 925, 937 (E.D. Pa. 1973) 
(simultaneously concluding that Pennsylvania law does not afford 
school districts a legally cognizable interest in their boundaries 
requiring their mandatory joinder in the violation portion of 
suits alleging that state officials unconstitutionally drew those 
boundaries); see Hoots VI, 510 F. Supp. at 621-22 (878a), quoting 
Chartiers Valley Joint Schools v. County Board, 495 A.2d at 500-01.

Appellants' suggestion that the Court apply the Michigan law 
discussed in Milliken v. Bradley, 418 U.S. 717, 741-42 (1974), to 
determine the interest of Pennsylvania school districts in their 
boundaries is patently absurd, and stands federalism on its head. E.g. , Brief for Churchill at 38-39.

- 7 -
60/ Accord, Lee v. Macon County, 267 F.2d 458, 479 (M.D. Ala.) 
(3-judge court), aff'd, 389 U.S. 215 (1967). See ACLU v. Board of 
Public Works, 357 F. Supp. 877, 884-86 (D. Md. 1972); Griffin v. 
Board of Education, 239 F. Supp. 560, 566 (E.D. Va. 1965) (3-judge 
court). As these authorities indicate, it is only at the remedial 
stage, when specific changes in actual boundaries are contemplated, 
that the surrounding school districts may become necessary parties. 
When that point was reach in this case, the former districts were joined. (853a.)

84



In sum, appellants' joinder arguments are utterly lacking in 
any basis in the actual procedural history of this case or in the 
equitable principles embodied in Rule 19.

CONCLUSION

For the foregoing reasons, plaintiffs respectfully request that 
the decisions of the district court in Hoots II and Hoots VI-VIII be 
affirmed.

10th Floor, Allegheny Building 
429 Forbes Avenue 
Pittsburgh, Pennslyvania 15219 
(412) 255-6700

Respectfully submitted,

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

ATTORNEYS FOR PLAINTIFFS-APPELLEES

85



CERTIFICATION

I, JAMES S. LIEBMAN, Counsel for plaintiffs-appellees, 
hereby certify that I was admitted to the bar of this Court on 
October 9, 1980, and that I continue to be a member in good 
standing.

JAMES ''fiT. ytEBMAN 
ftorney for Plaintiffs~Appellees



CERTIFICATE OF SERVICE

If JAMES S. LIEBMAN, Counsel for plaintiff s-appelleesr hereby 
certify that, because of a break-down in photo-copying machinery, 
only one copy of the foregoing brief was served upon all counsel 
of record, on September 14, 1981, by placing same in the United 
States Mail, postage prepaid, and addressed as set forth below, 
the second copy being served in the same manner on September 15,
1981:

Allen C. Warshaw 
Deputy Attorney General 
Office of the Attorney General 
1641 Strawberry Square 
Harrisburg, PA 17120
J. Robert Maxwell 
Maxwell and Huss 
Farmers Bank Building 
301 Fifth Avenue 
Pittsburgh, PA 15222
G. N. Evashavik 
Evashavik, Capone, Evans 

and Della Vecchia 
1218 Frick Building 
Pittsburgh, Pa 15219
Robert H. Bork 
Kirkland and Ellis 
1776 K Street, N.W.
Washington, D.C. 20006
J. Frank McKenna 
Thorp, Reed and Armstrong 
2900 Grant Building 
Pittsburgh, PA 15219
Michael I. Levin 
Cleckner and Fearen 
31 North Second Street 
Harrisburg, PA 17101

Thomas M. Rutter 
Geohring, Rutter, and Boehm 
324 Frick Building 
Pittsburgh, PA 15219

Carl W. Brueck, Jr. 
Brueck and Houck 
1420 Grant Building 
Pittsburgh, PA 15219

Anton Bigman 
210 Fort Pitt Commons 
445 Fort Pitt Boulevard 
Pittsburgh, PA 15219

Philip B. Kurland 
Rothschild, Barry and Myers 
Two First National Plaza 
Chicago, IL 60603
Fank Goodman
3400 Chestnut Street
Philadelphia, PA 19104

Linda R. Blumkin 
Fried, Frank, Harris, Shrive 

& Jacobson 
One New York Plaza 
New York, New York 10004

Dated: September 15, 1981.



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