Brinegar v. Dallas NAACP On Writ of Certiorari to the US Court of Appeals for the Fifth Circuit

    tMtig *
O ctober

No. 78-28!:
R alph  F. B rinegab, et al ,

'etitioners

U .r ., et al.; 
espondents,

No. 78-253
N olan E stes, et al?

\Petitioners,

'.espondents,

Q ^gN  o. 78-282j H H  
ONALD E.. ChRRY,ET~AlT

’etitioners,

espondents,

Consolidated)

N WRIT OF CERTIORARI TO THE UNITED STATES-*v» — *. -■ Kr ***** «***■■•. to*-1-* %•» - 'Hi*
:;COURT OF APPEALS FOR THE FIFTH CIRCUIT £

HE P ETmoanSRS, BAI^HT ^ B ip nEGAll, ET AL?

J ames A. D onohoe,
'3.1700 Republic National

*Bank Building’/^ y t iff iS H  
^Dallas, Texas 75201/^ 

yss-Counsel for Petitioners g i H M



INDEX

Page

Opinions Below .............................................................  1
Jurisdiction ....................................................................  2
Questions Presented .....................................................  2
Constitution and Statutory Provisions Involved . . . .  3
Statement of the C ase...................................................  3

1. Brinegar Petitioners.............................................  3
2. History of Litigation ............................................ 4
3. Findings of vestiges because of

predominantly minority one-race schools............ 5
•I. Original Plan adopted by District Court

in 1971 ....................................................................  6

5. 1975 remand by Court of Appeals for
more desegregation................................................ 6

6. Development of current desegregation plan . . . .  7
7. Findings that vestiges of the dual system do

not exist in naturally integrated areas...............  12

8. Trends in the DISD toward integration through
normal housing patterns ......................................  13

9. Changing ethnic trends in inner-city, effect of 
school desegregation plan on efforts to
combat urban blight in inner-city....................... 15

10. Findings of the DISD’s good faith after 1971 . . .  17
11. Implementation of the current plan was 

nonviolent and received financial support
from the voters .....................................................  18

12. 1978 Court of Appeals decision to remand for 
findings of why more desegregation tools
weren’t used by the District C ourt.....................  19



(ii)
Summary of Argument...............................................
Argument ............................................................

1. There have been no findings of fact which 
under this Court’s decisions define the specific 
vestiges of the unconstitutional dual system 
in the DISD upon which a desegregation plan 
designed to eliminate such specific vestiges 
could be formulated ...........................................
a. Court of Appeals remand was for the

wrong reason ...................................................
b. First the vestiges of the dual system must

be determined, then a plan formulated to 
eliminate those vestiges o n ly .........................

c. The District Court has never made the
necessary findings that vestiges of a dual 
system exist in the D IS D ..............................

d. Similarities of the instant case to
Dayton .................................................

e. At minimum this Court should remand for
further findings...............................................

f. Based on the record this Court could
find the DISD to be unitary..........................

g. Summary ........................................................
2. The areas of the DISD in which the school

populations are ethnically mixed by reason of 
normal housing patterns cannot be vestiges of a 
state-imposed dual system. The continuation, 
preservation and encouragement of such 
naturally integrated areas is a guiding principle 
to be considered when formulating a desegrega­
tion plan to remedy other vestiges of a dual 
system ..........................................................

Page
19
23

23 ® $
23

24

25

26

30

31
35

© >

(in)

Page
3. In formulating school desegregation plans, 

the courts must consider the effect of such plans 
upon other activities of the communities in which 
such plans operate, in particular those which 
the court finds tend to encourage natural 
integration through residential housing
patterns ..................................................................  41

Conclusion ......................................................................  42
Proof of Service.............................................................  44
Appendix A — Map .....................................................  A-l

35



(iv)

CITATIONS
Cases:

Page
Austin Independent School District v. U. S.,

429 U.S. 990, 97 S.Ct. 517, 50 L.Ed.2d 603
(1977) (Austin II) ......................... 20,21,23,24,32,40

Britton v. Folsom, 350 F.2d 1022 (5 Cir 1965) .............  4

Brown v. Board of Education, 347 U.S. 4S3,
74 S.Ct. 686, 98 L.Ed 873 (1954) (Brown I ) .............  4

Brown v. Board of Education, 349 U.S. 294,
75 S.Ct. 753, 99 L.Ed. 1083 (1955) (Brown II) . .  22,40

Dayton Board of Education v. Brinkman,
433 U.S. 417, 97 S.Ct. 2766, 53 L.Ed.2d 861
(1977) (Dayton) . . . .  20.21,23,24,25,27,28,29,30,31

Green v. County School Board of New Kent County,
391 U.S. 430, 8S S.Ct. 16S9, 20 L.Ed.2d 716
(1968) .............................................................................  5

Keyes v. School District No. 1, 413 U.S. 189,
93 S.Ct. 2686, 37 L.Ed.2d 54S (1973) ........................  24

Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112,
41 L.Ed.2d 1069 (1974) ......................... 7,20,22,25,40

Pasadena City Board of Education v. Spangler,
427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599
(1976) (Pasadena) .............  20,23,24,25,30,31,32,34

School Board of City of Richmond v. State Board
of Education, 412 U.S. 92, 93 S.Ct. 1952,
36 L.Ed.2d 771 (1973) .................................................  6

Singleton v. Jackson Municipal Separate School 
District, 419 F.2d 1211 (5 Cir. 1970)
(Singleton) .................................................................... 6

( v )

o t

I

o »

Page
Swann v. Charlotte-Mecklenhurg Board of 

Education, 402 U.S. 1, 91 S.Ct. 1267,
28 L.Ed2d 544 (1971)
(Swann) . . .  .5,19, 20, 22. 24, 25, 30, 31, 34, 38,40, 41,42

Taring v. Estes, 342 F.Supp. 945 (X.D. Tex. 1971) . . . .  5

Tasby r. Estes, 517 F.2d 92 (5th Cir. 1975) ...........  7. 29

Tashy v. Estes, 412 F.Supp. 1185 (X.D. Tex. 1975) . . .  7

Tasby v. Estes, 412 F.Supp. 1192 (X.D. Tex. 1976) .. 1, 7

Tasby v. Estes, 572 F.2d 1010
(5th Cir. 1978) ........................................ 2,19,23,37,38

Village of Arlington Heights v. Metropolitan 
Housing Development Corporation, 429 U.S. 252,
97 S.Ct. 555, 50 L.Ed.2d 450 (1977)
(Arlington H eights).............................................  23,24

Washington v. Davis, 426 LLS. 229, 96 S.Ct. 2040,
48 L.Ed.2d 597 (1976) ...................  20, 24, 27, 29, 30. 3S

Constitutional and Statutory Provisions:
Equal Protection Clause of the Fourteenth 

Amendment ........................................... 2, 3, 27, 28

20 U.S.C. §1701 ...............................................................  3

20 U.S.C. §1712 ...............................................................  3

2S U.S.C. §1254(1) ..........................................................  2

Miscellaneous:
Wolf, Northern School Desegregation and 

Residential Choice, 1977 The Supreme Court 
Review 63 ......................................................... 33



I n  T he

• ft

• •

j^uprem? (Enurt of %  TUnxttb Stairs
October T erm , 1978 

No. 78-283
R alph F. B rinegar, et al.,

Petitioners,
v.

M etropolitan B ranches of T he  D allas N .A .A .C .P ., et al.,
Respondents.

No. 7S-253
N olan E stes, et al .,

Petitioners.
V.

Dallas N.A.A.C.P., et al.,
Respondents.

No. 78-282
D onald E . Curry, et al.,

V.
Petitioners,

D allas N.A.A.C.P., et al.,
Respondents.

(C onsolidated)

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

TO THE HONORABLE COURT:

B rief for P etitioners R alph  F. B rinegar, et al

OPINION BELOW

The opinions, orders and judgment of the District Court 
are reported in part at 412 F.Supp. 1192 and are more



o

fully set out in the Petition of Nolan Estes, et al, Petition­
ers (“ Petitioners Estes” ) (Estes Pet., App. “ B” , 4a-129a). 
The opinion of the Court of Appeals (Estes Pet., App. 
“ C”, 130a-146a) is reported at 572 F.2d 1010. Additional 
references to petitions for rehearing and motions for stay 
of mandate are as set forth in the Estes Petition (Estes 
Pet, 2).

JURISDICTION

As stated in the Estes Petition, the judgment of the 
Court of Appeals was entered on April 21, 1978, with a 
timely Petition for Rehearing being denied on May 22, 
197S. The Estes Petition was filed August 14. 1978, the 
Petition of Ralph P. Brinegar, et al, Petitioners for whom 
this brief is filed, (“ Petitioners Brinegar” ) Avas filed Au­
gust 19, 1978, as was the petition of Petitioners Donald E. 
Curry, et al (“ Petitioners Curry” ), all of Avhich A\-ere con­
solidated and granted on February 21, 1979. This court’s 
jurisdiction is invoked under the proA-isions of 2S U.S.C. 
§1254(1).

QUESTIONS PRESENTED

1. Whether the formulation of a desegregation plan to 
eliminate unconstitutional A-estiges of a dual school system 
is required under the Equal Protection Clause Avhere the 
only fact finding supporting the existence of unconstitu-

y tional vestiges of a dual system Avas the existence of
N one-race schools.

2. Whether the continuation, encouragement and preser­
vation of naturally integrated schools should be a guiding 
principle in the formulation of a desegregation plan as 
compared with the principle of eliminating all one-race 
schools.

• »

• ♦

3. Whether a desegregation plan’s effect upon efforts of 
urban renewal and rehabilitation of inner-city neighbor­
hoods, particularly those Avhich are naturally integrated or 
are tending toAA'ards predominantly minority population, 
should be a factor in fashioning the constitutional reme­
dies for removal of vestiges of a dual school system.

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

The Equal Protection Clause of the Fourteenth Amend­
ment to the Constitution of the United States provides in 
pertinent part as follows:

“ . . . nor shall any state . . . deny to any person Avitliin 
its jurisdiction equal protection of the laAvs.”

Certain statutes of the United States hereafter quoted in 
pertinent part, may also apply:

“ The failure of an educational agency to attain a 
balance on the basis of race, color, sex or national 
origin of students among its schools shall not consti­
tute a denial of equal educational opportunity or equal 
protection of the laAvs.” (20 P.S.C. § 1701).
“ In formulating a remedy for denial of equal educa­
tional opportunity or denial of equal protection of 
the laAvs, a court, department or agency of the United 
States shall seek or impose only such remedies as are 
essential to correct particular denials of equal educa­
tional opportunitv or equal protection of laAvs.” (20 
U.S.C. §1712)

STATEMENT OF THE CASE

1. Brinegar Petitioners.
Petitioners Brinegar are a group of persons (listed in 

Estes Pet. App. “ A ” , 3a-4a) who the District Court per-



mitted on September 17, 1975, to intervene. They represent 
a class of persons living in the naturally integrated area of 
East Dallas (Estes Pet. App. “B”, da). East Dallas for this 
purpose generally includes the traditional J. L. Long Junior 
High School zone and certain adjacent areas (Brinegar 
Ex. 1 and 2. R. Vol. VIII, 335. 337, 342). The class repre­
sentatives include three Blacks, four Mexican-Americans 
and ten Anglos.

2. History of Litigation.

Petitioners Brinegar have reviewed and agree with the 
Statement of the Case in the Petitioners Estes’ brief for 
the Dallas Independent School District (hereafter called the 
“ DISD '’).1 However, further amplification is necessary 
to understand the questions presented by Petitioners 
Brinegar.

As more fully explained in the DISD brief, this case is 
part of a continuing series of suits involving the DISD 
going back to 1955 immediately following Brown v. Board 
of Education, 347 U.S. 483, 74 S.Ct. 686. 9S L.Ed. 873 
(1954) (Brown I).

In 1965, after years of transitional plans, pursuant to 
the order of the Court of Appeals, all students in the DISD 
were assigned to the schools in the zo?ies in which they 

1 resided, without regard to their race. Britton v. Folsom,
350 F.2d 1022 (5th Cir. 1965).

iDISD is the eighth largest school district in the U. S. and 
covers 351 square miles (Estes Pet. App. “B”, 14a). It includes sub­
stantial portions of the City of Dallas as well as Kleberg and Seago- 
ville to the southeast. At March 1, 1979, according to the DISD 
report to the District Court dated April 15, 1979 (“DISD 1979 
Report”, Vol. 1, App. “A”, 304), there were 133,648 students in the 
DISD.

o

• •

0 >

In 1970, subsequent to this Court’s decision in Green v. 
Count)/ School Board of New Kent County, 391 l:.S. 430, 
8S S.Ct. 1689, 20 L.Ed 2d 716 (1968). the current case 
was filed by new plaintiffs, and was deckled by the district 
court subsequent to this Court’s decision in Swann r. 
Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 
91 S.Ct. 1267, 2S L.Ed. 2d 544 (1971) {Swann).

3. Findings of Vestiges Because of Predominantly Minority
One-Race Schools.

The District Court in its Memorandum Opinion filed 
July 16, 1971 (Brinegar Pet. App. “A ” , A -l - A-6 ; also 
342 F.Supp. 945 (N.D. Tex. 1971)) made the only findings 
of fact to date in this case regarding the existence of ves­
tiges of an unconstitutional state-imposed dual system in 
the DISD as follows:

“When it appears as it clearly does from the evidence 
in this case that in the [DISD] 70 schools are 90% or 
more white (Anglo), 40 schools are 90% or more black, 
and 49 schools with 90% or more minority, 91% of 
black students in 90% or more of the minority schools, 
3% of the black students attend schools in which the 
majority is white or Anglo, it would be less than honest 
for me to say or to hold that all vestiges of a dual 
system have been eliminated in the [DISD], and 
I find and hold that elements of a dual system still 
remain.
“ The School Board has asserted that some of the all 
black schools have come about as a result of changes 
in the neighborhood patterns but this fails to account 
for many others that remain as segregated schools . . . ” 
(Brinegar Pet. App. “ A ” A-2-A-3)

In the July 16, 1971 Memorandum Opinion, the District 
Court specifically found that the plaintiffs did not sustain



the burden of showing that there was some form of de jure 
segregation against Mexican-Americans as an ethnic mi­
nority, though the District Court did say that Mexican- 
Americans would be taken into consideration in the formu­
lation of a plan or remedy as a separate and clearly identi­
fiable ethnic group. (Brinegar Pet. App. “A ” , A-3-A-4)

4. Original Plan Adopted by District Court in 1971.

As a result of a series of orders, the Plan adopted by the 
District Court in July and August of 1971 provided among 
other things for the satelliting of some secondary students, 
and for a “television plan” for inter-classroom participa­
tion in the elementary grades utilizing television and 
occasional transfers by bus. The District Court also 
ordered the desegregation of faculty and staff according 
to the formula mandated in Singleton v. Jackson Municipal 
Separate School District, 419 F.2d 1211, 1217-18 (5th Cir. 
1979) (Singleton), the so-called Singleton ratio, but pro­
viding for a 10% variance in each school, a majority to 
minority transfer program for secondary students, ap­
pointment of a tri-ethnic committee, development of a site 
selection and school construction policy and regular deseg­
regation reports to the District Court. At the request of 
the plaintiffs, the Court of Appeals immediately stayed the 
implementation of the television plan.

5. 1975 Remand by Court of Appeals for More Desegrega­
tion.

Appeals were taken by various parties to the Court of 
Appeals. Approximately four years later, apparently hav­
ing delayed their decision awaiting this Court’s decision in 
School Board of City of Richmond v. State Board of Edu­
cation, 412 U.S. 92, 93 S.Ct. 1952, 36 L.Ed. 771 (1973), and

G

I •

• >

Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 
1069 (1974) (Milliken), the Court of Appeals reversed and 
remanded the case to the District Court. Tasby v. Estes, 
517 F.2d 92. 108, 110 (5th Cir. 1975), cert, denied 423 U.S. 
939. Among the many issues considered by the Court of 
Appeals was the 1971 student assignment plan (517 F.2d 
at 104), faculty and staff desegregation (517 F.2d at 107), 
certain school site and construction controversies (517 F.2d 
at 104-106), and the contention by a group of intervenors 
that a number of adjacent school districts be consolidated 
with the DISD for purposes of a desegregation plan. 517 
F.2d at 1 OS-109. The Court of Appeals affirmed the District 
Court’s decision to treat Mexiean-American students as a 
distinct minority group for the purpose of school desegre­
gation. 517 F.2d at 106-107.

6. Development of Current Desegregation Plan.

The District Court immediately began the necessary 
actions for formulating a school desegregation plan which 
culminated in a trial of over a month.2 The District Court 
tiled its first Opinion and Order on March 10. 1976 
with supplemental orders later completing the plan out­
lined in the first Opinion and Order. (Estes Pet. App. “ B”, 
4a-129a) Also at 412 F.Supp. 1192. All the plans consid­
ered by the District Court and how the District Court 
arrived at the Plan it ordered are discussed in the District 
Court’s March 10, 1976 Opinion. (Estes Pet. App. “ B”, 
7a-32a) However, it would be fair to say that the Plan

7

2The Court had previously conducted a trial of the issues of 
whether the Highland Park School District should be consolidated 
and found against including the Highland Park School District. 
Tasby v. Estes, 412 F.Supp. 1185 (N.D. Tex. 1975), affirmed by the 
Court of Appeals in the Opinion below, but not among the issues 
presented to this Court. 572 F.2d at 1015-1016.



developed was the result of a tremendous community effort 
initiated by the District Court’s concern that the Plan, 
in addition to establishing a unitary, non-racial system of 
public education in the DISD, would provide quality edu­
cation for all students. (Estes Pet. App. “B”, 6a-7a, 13a, 
52a: R. Sept. 16, 1975, Hearing in District Court, 83-91; 
R. December 18, 1975 Hearing in District Court, 14.) As 
stated in its March 10, 1976 Opinion and Order, the Dis­
trict Court challenged the business leaders of Dallas and 
received offers of assistance from churches and other civic 
organizations.

The Dallas Alliance3 itself an organization of many if 
not most of the business and civic organizations of Dallas 
and many church organizations (Dallas Alliance Amicus 
Curiae Brief to Ct. of App., App. “B” , B -l), sponsored a 
group called the Educational Task Force of the Dallas Alli­
ance made up of seven Anglos, seven Mexican-Americans, 
six Blacks and one American Indian, which included a mix 
of lawyers, blue collar workers, civic leaders, clergymen, 
housewives, governmental professionals and educators. 
(R. Vol. V, 7, 117-118; Ct.’s Ex. 1, R. Vol. V, S. 20) It had a 
paid staff and executive director who is a well regarded 
educator, Dr. Paul Geisel. (Estes Pet. App. “ B” , 6a, R. Vol. 
V, 4-6) The basic concepts of the Plan developed by the 
Dallas Alliance Task Force, after months of weekly meet­
ings and studies, were adopted by the Court as its Plan, 

d ^  (Estes Pet. App. “ B”, 26a-35a, 37a-40a, 47a-49a)

The Plan was characterized by the Dallas Alliance in 
their brief as Amicus Curiae to the Court of Appeals as

324 members of the Dallas Alliance’s 40 member Board of 
Directors represent racial and other groups according to their pro­
portion of the Dallas population. The rest represented various 
governmental entities. (R. Vol. V, 51-52)

8 9

I #

t »

a careful balancing of many varied desegregation remedies 
and as a sophisticated interplay and working out of the 
problems and desires of Anglos, Mexican-Americans and 
Blacks in the DISD. (Dallas Alliance Amicus Curiae Brief 
to Ct. of App. 5, 18-19; R. \ ol. V, 24, 102, 361-374) As a 
result of the work of the District Court and the Dallas 
Alliance, the major Black. Anglo and Mexican-American 
organizations in Dallas endorsed the District Court’s Plan, 
with the exception of the X.A.A.C.P. branches who are re­
spondents in this case before this Court. (Dallas Alliance 
Amicus Curiae Brief to Ct. of App., 23)

The Plan reorganized the DISD into six subdistricts, 
the Northwest, Northeast, East Oak Cliff, Southeast, South­
west and Seagoville. (Estes Pet. App. “ B”, 53a-56a) Except 
for the Seagoville Subdistrict, which extends to the south­
eastern fringe of the DISD, its north borders being the 
Southeast Subdistrict, the subdistricts radiate roughly from 
the central business district of the City of Dallas and form 
wedges extending out to the DISD boundaries except for 
the Southeast Subdistrict, which extends out to the northern 
border of the Seagoville Subdistrict. (For reference a map 
of the DISD showing the Subdistrict’s boundaries as estab­
lished in the District Court’s Final Order as supplemented 
(Estes Pet. App. “ B", 53a-56a, 121a-122a) which was pub­
lished in the Dallas Times Herald, August 15, 1976, Sec. B, 
7 is attached as Appendix “ A ” to this brief).

The Southeast Subdistrict includes within its boundaries 
Pleasant Grove. The Southwest Subdistrict includes and is 
made up of Western Oak Cliff. Both the Pleasant Grove 
and Western Oak Cliff areas were found by the District 
Court to have achieved integration of school population 
through natural housing patterns. (Estes Pet. App. “B ’,



10

36a) Thus, the East Oak Cliff Subdistriet which had a 
predominantly minority student population was located 
between subdistricts found to be naturally integrated. 
(Estes Pet. App. “B”, 31a)

The areas of the Northeast and Northwest Subdistricts 
immediately to the north, west and east of the central busi­
ness district are generally minority occupied. (Compare D. 
Ex. 2, R. 1 ol. I, 17. 85 and D. Ex. 3, R. Yol. I, 81, 85, with 
Appendix “A" to this brief)

Moving out into the Northeast and Northwest Subdis­
tricts, but adjacent to predominantly minority areas, are 
areas found by the District Court to be integrated through 
natural housing patterns. These include in the Northwest 
Subdistrict, the area of the attendance zone for Thomas 
Jefferson High School, and in the Northeast Subdistrict, 
the naturally integrated area of East Dallas, which approxi­
mates the J. L. Long Junior High School zone. (Hall’s Ex. 
3 and 4, R. 1 ol. 123, 12S: Estes Pet. App. ‘‘B", 14a-15a) 
Substantial parts of the remaining areas of those sub­
districts were considered majority Anglo at the time of the 
District Court’s order. (Compare Appendix “ A ’’ to this 
brief and D. Ex. 2, R. Yol. I, 77, 85).

The Seagoville Subdistrict then had a higher Anglo 
population than the District as a whole, though the Court 

t projected that Seagoville schools would have minority popu-
*** lations ranging from 13.7% to 30.4%. (Estes Pet. App. 

“B”, 44a)

The Plan provided that grade configurations were stan­
dardized throughout the DISD as K-3 Early Childhood 
Education Centers, grade 4-6 Intermediate Schools, grade

11

»  •

!

>  I

7-8 Middle Schools and grade 9-12 High Schools. (Estes 
Pet. “ B” , 56a).

The ethnicity of the school populations of the subdis­
tricts, other than East Oak Cliff and Seagoville, was to 
be the same as the DISD as a whole, plus or minus 5%. 
(Estes Pet., App. “ B” , 26a) Except for students attending 
many of the schools located in naturally integrated areas, 
the students in grades 4-8 were assigned to schools in an 
effort to provide an ethnic and racial mix approximating 
that of the subdistrict in which they resided, plus or minus 
10%. (Estes Pet. “ B'’, 27a) In the Northeast and Northwest 
Subdistricts this required extensive transportation of both 
minority and Anglo students. (Estes Pet. “ B”, 121a) The 
grade 4-6 Intermediate Schools and grade 7-8 Middle 
Schools in those subdistricts were to be located in the cen­
tralities to minimize time and distance of transportation. 
(Estes Pet. App. “B”, 33a, 57a).

The Plan also provided for majority to minority trans­
fers (Estes Pet. App. “B” , 39a-40a, 68a-71a), continuation 
of the court appointed tri-ethnic committee (Estes Pet. App. 
“B” , 38a-39a), annual audits by an independent agency 
(Estes Pet. App. “ B” , 36a-3Sa, 78a-81a), personnel alloca­
tions (Estes Pet. App. “ B” , 39a, 76a-78a), continued super­
vision of school construction (Estes Pet. App. “ B”, 75a), 
and site acquisition, continuation and establishment of mag­
net schools (Estes Pet. App. “B” , 33a-35a), special pro­
visions giving priority to locating magnet schools in the 
East Oak Cliff Subdistrict (Estes Pet. App. “B” , 33a, 5Sa, 
61a-62a), and special exemplary development and demon­
stration classes in the East Oak Cliff Subdistrict. (Estes 
Pet. App. “ B”, 59a-60a) The District Court retained juris­
diction. (Estes Pet. App. “B ” , 83a)



12

7. Finding That Vestiges of Dual System Do Not Exist in 
Naturally Integrated Areas.

The District Court made no findings in its 1976 hearings 
on formulation of a desegregation plan as to the existence 
of vestiges of the dual system other than to point to pre­
dominantly minority schools continuing to exist but it did 
make findings as to the non existence of such vestiges in 
naturally integrated areas:

“Although the DISD in 1975-76 cannot be considered 
to be wholly free of the vestiges of a dual system, 
significant strides in desegregation have been made 
since the [District] Court’s 1971 order as a result of 
natural changes in residential patterns in the past 
three years. In the 1970-71 school year, 91.7% of all 
black students in the DISD attended predominantly 
minority schools, whereas in the 1975-76 school year, 
the percentages dropped to 67.6%. Testimony during 
the hearings showed that large areas of Dallas which 
formerly reflected segregated housing patterns are now 
integrated, namely Western Oak Cliff, Pleasant Grove, 
East Dallas, the area of North Dallas included in the 
attendance zone for Thomas Jefferson High School.” 
(Estes Pet. App. “ B”, 14a-15a)

“ E. The Concept of Naturally Integrated Areas

“As mentioned above, there is a substantial number of 
schools in the DISD in which the racial makeup of 
the student population reflects naturally integrated 
housing patterns. Two groups of intervenors represent 
parents and students living in several of these resi- 
dentially integrated areas — namely the Strom inter­
venors, representing Western Oak Cliff and Pleasant 
Grove, and the Brinegar intervenors, representing 
East Dallas. These intervenors maintain that where 
integration in schools has been achieved through natu­
ral housing patterns, the present student assignments

13

•  #

•  I

should be retained, since no vestiges of a dual system 
remain in these areas. The [District] Court is in agree­
ment with this concept. There is no denial of the right 
of educational opportunity in these areas, and, as all 
parties recognized, there would be no benefit, educa­
tional or otherwise, in disturbing this trend toward 
residential integration.”
(Estes Pet. App. “ B” , 36a) (emphasis ours)

8. Trends in the DISD Toward Integration Through
Normal Housing Patterns.

The Court had ample evidence of trends in the DISD 
toward natural integration of school populations, though 
some might argue that the trend is toward a predominantly 
minority school population in the DISD as a whole. The 
DISD in 1970 had a 69% Anglo student population. The 
DISD in 1975 had a student population of Anglo 41.1%, 
Black 44.5% and Mexican-American 13.4%. (Estes Pet. 
App. “B” , 14a) The DISD on March 1, 1979, reported 
to the District Court (the DISD 1979 Rept. Yol. 1, App. 
“A ” , 301) student populations of Anglo 33.5%, Black 
49.11%, and Mexican-American 16.37%. While the ethnic 
balance of the DISD student population for the Iv-3 grade 
levels is not broken out in separate totals in the DISD 
April 1979 Report, the projections of future DISD school 
population indicates that the mix of current Iv-3 levels 
may be lower than the DISD as a whole. (R. Vol. I, 67-68)

The District Court also had evidence that many of the 
older areas of the DISD in particular were becoming 
through housing patterns either naturally integrated or 
predominantly minority. The Court attached as Appendix 
B to its March 10, 1976 Opinion and Order charts showing 
the changes in the ethnic composition between 1970 and



14

1976 of most of the junior and senior high schools in the 
DISD. (Estes Pet. App. “B’\ 43a-44a)

That the DISD is trending towards integration of a 
substantial part of its student population through residen­
tial housing patterns is indicated in the DISD April 1979 
Report. Under the District Court's Plan the only schools 
having populations based almost exclusively on the resi­
dential areas in which they are located are the grade Iv-3 
Early Childhood Education Centers because there is no 
assignment and transportation of students from other 
areas.4 While majority to minority transfers are permitted 
in the Iv-3 centers (Estes Pet. App. “B”, 6Sa-69a), it is 
believed that few students compared with the total K-3 
population have done so. (The DISD April 1979 Rept., 
7-10, shows M&M transfers for elementary grades Iv-6 
separately but does not break out M&M’s to Iv-3 centers 
separately.) Petitioners Brinegar’s analysis of the April 
1979 Report shows that of the 129 Early Childhood Educa­
tion Centers in the DISD5, there are 76 schools with a 
minority population of more than 10% but less than 90%, 
and there are no K-3 centers with 100% Anglo population. 
(DISD April 1979 Rept. App. “A ”, Vol. 1, 62-298)

Where is no assignment and transportation of students for 
purposes of desegregation to the high schools; however, there are 
at the high school level a substantial number of majority to minority 
transfers, plus a large number of students attending various magnet 
schools which makes these numbers difficult to analvze. (DISD 
April 1979 Rept. 8).

5This excludes two one-grade centers, but includes one two- 
grade centers and two three-grade centers.

15

I #

J •

9. Changing Ethnic Trends in Inner-City, Effect of School 
Desegregation Plan on Efforts to Combat Urban Blight
in the Inner-City.

The District Court also had the benefit of testimony re­
garding changing ethnic demographics of housing patterns 
in Dallas, particularly in older neighborhoods, from various 
expert witnesses. The evidence showed that the City of 
Dallas and the DISD were actively involved in inner city 
programs. (R. Vol. VIII, 377-3S1, Estes Pet. App. “B", 
16a)

Mr. Irving Statman and Mr. James Calhoun, who studied 
housing trends as part of the staff of the Department of 
Housing and Urban Rehabilitation for the City of Dallas, 
testified regarding the statistical studies and trends in 
ethnicity of the residential population in the Western Oak 
Cliff area and the City of Dallas generally. (R. Vol. VI, 
164-174, Vol. VII, 178-179, 1S3-19S) Mr. Calhoun testi­
fied that statistically minorities living in integrated neigh­
borhoods were on the uptrend and that the number of inte­
grated neighborhoods was increasing as of 1974 when he 
had last conducted his tests. (R. Vol. VII, 184-187)

Mr. Ram Singh (R. Vol. VIII, 351-354, Brinegar Ex. 4, 
352. 354) and Mrs. Susan Murphy (R. Vol. VIII, 331-337), 
who were experts on demographics and neighborhood 
studies for the City of Dallas, testified regarding the special 
studies done by the City of certain statistical communities, 
which overlap the area occupied by the class represented 
by the Brinegar Intervenors, which indicated their racial 
and ethnic trends and the existence in many sections of 
urban blight and the inner-city character of certain areas. 
(R. Vol. VIII, 335-341, 342-345, 347-351, 355-364, 364-370, 
370, 372, 373, Brinegar Ex. 3, 5, 6, 7, 8, R. Vol. VIII, 347,



349, 355, 357, 364, 370, 372, 373, 381-383; compare Brinegar 
Ex. 1 and 2, R. Vol. VIII, 335, 337, 342; Brinegar Ex. 6, 
2, R. Vol. VIII. 355, 370 and the J. L. Long Junior High 
School zone on Hall's Ex. 3, R. Vol. 123, 128)

Mr. William Darnell, also an expert in urban rehabilita­
tion (R. Vol. VIII. 374-377) and Mrs. Murphy as well as 
representatives of the neighborhoods involved, testified 
regarding a pilot program called the “ East Dallas Dem­
onstration Project” , considered at the time to be unique, 
combining efforts of area businesses, residents, the City 
and the DISD to combat urban blight and rehabilitate the 
older neighborhoods of East Dallas. (R. Vol. VIII, 345-346, 
381-3S7, 399-403: R. Vol. IX, 16-17, 19) One of the criteria 
for selecting East Dallas for the Demonstration Project 
was that it be ethnically or racially mixed. (R. Vol. VIII, 
383) In Dallas the socioeconomic mix was of particular 
concern to the city planning experts in trying to develop 
a strategy to combat urban blight. (R. Vol. VIII, 386-391)

The testimony was that, in Dallas a plan to combat urban 
blight, that is, revitalize deteriorating neighborhoods, will 
promote natural integration as it would tend to stop the 
out-migration of Anglos from the area and would encourage 
in-migration of middle income Anglos. (R. Vol. VI, 167-169, 
R. Vol. VIII, 393-396.) The growth of Dallas generally 
comes from in-migration. (R. Vol. VTI, p. 197)

The Court also had the benefit of testimony from experts 
that a desegregation plan involving transportation of stu­
dents out of the inner-city blighted neighborhoods with the 
demographic and family income spreads of core or inner- 
city neighborhoods may discourage the needed in-migration

16 17

9  #

9  I

of Anglos and other middle income families. (R. Vol. VI, 
167-169, 170-171; Vol. VII, 1S7-1SS; Vol. VIII, 395-396) 
and, that assignment of Blacks into such a neighborhood 
may have a similar effect. (R. Vol. VI, 171, 173)

The plaintiffs’ (Respondents herein) expert, Dr. AVillie, 
(R. AMI. Ill, 151-160) and attorney Edward Cloutman, and 
the Intervenors X.A.A.C.P.’s (Respondents herein) ex­
pert, Dr. Hunter (R. AMI. IAr, 106) agreed that racial bal­
ance through changes of housing patterns was a preferable 
method to a plan calling for assignment and transportation 
of students outside of the areas of their residence. (Though, 
the witnesses did emphasize their primary concern was 
desegregation of the schools.)

10. Findings of the DISD’s Good Faith After 1971.

The District Court found that the DISD was in good 
faith facing up to the educational problems of minorities 
in the DISD including inequalities and its own prejudices. 
(Estes. Pet. App. “ B” , 15a-18a, 40a, 51a) Indeed, the plain­
tiffs’ own witnesses supported this finding in several ma­
terial respects. Dr. Jose Cardenas testified to the favorable 
comparison between bilingual education in the DISD and 
elsewhere. (R. AMI. II, 334-338, 340) Ms. Evonne Ewell, 
■who wras an assistant superintendent in the DISD deal­
ing with textbooks, testified that while textbooks containing 
no racially prejudicial material vrnre not available, the 
DISD was seeking to remedy the situation. (R. AMI. II, 
193-194, 202-204, 206, 213-218) Dr. Francis Chase, from 
vdiose 200 page report (the “ Chase Report” ) the District 
Court quoted at length, stated that the DISD, while not per­
fect, wras “ either preeminent or close to the top among



IS

public school systems” . (Estes Pet. App. “ B”, 15a) In this 
regard the Chase Report pointed to the DISD's

“ [f]rank acknowledgment of barriers to equal educa­
tional opportunity, followed by constructive measures 
such as the Affirmative Action Program, the extension 
of Multi-Ethnic Education, the implementation of Plan 
A for better treatment of learning disabilities, and 
support for inner-city school renewal projects.” (Estes 
Pet. App. ‘*B”, 16a)

11. Implementation of the Plan and Receipt of Financial 
Support from the Voters.

The implementation of the Plan in the DISD was with­
out the extreme protests and violence which has so often 
accompanied the start of desegregation plans.7 (Dallas 
Alliance Amicus Curiae Brief to Ct. of App., 20-23) 
This was brought about by the District Court’s wise chal­
lenging, and bringing in to participate, of the Dallas com­
munity through the Dallas Alliance. On December 11, 1976, 
the DISD's voters, who are predominantly Anglo6, voted 
the authority for bonds in the amount of $80,000,000 for 
purchase of sites and construction and equipment of school 
buildings. (R. Feb. 24, 1977 hearing in District Court, 6-7)

6The exact ethnicity of the actual population of the areas within 
S the DISD is not known, but it is believed by the DISD to be 

predominantly Anglo. (Estes Pet. 6. R. Yol. I, 279, 405-406)

’ Of the 133,64S students in the DISD as reported March 1, 
1979. to the District Court. 11.973 were transported for purposes 
of the Plan. (DISD April 1979 Rept.. 4-5) In addition, 4,590 stu­
dents were voluntarily assigned and transported to the magnet 
schools (called Vanguards, Academies and Magnets in the Plan) 
(Estes Pet. App. “B”, 61a-62a; DISD April 1979 Rept., 6).

19

12. 1978 Court of Appeals Decision to Remand for Findings 
When Various Desegregation Tools Were Not Used by 
District Court.

Against this background the Court of Appeals on April 
21, 197S, sent the case back to the District Court. 572 F.2d 
1010 (Estes Pet. App. “ C” , 130a-146a). The Court of 
Appeals appeared to be primarily concerned with the con­
tinued existence of one-race schools, stating with regard 
to the student assignment part of the Plan:

“We cannot properly review any student assignment 
plan that leaves many schools in a system one race 
without specific findings by the district court as to the 
feasibility of these techniques, [citation] There are no 
adequate time-and-distanee studies in the record in 
this case. Consequently, we have no means of deter­
mining whether the natural boundaries and traffic con­
siderations preclude either the pairing and clustering 
of schools or the use of transportation to eliminate the 
large number of one-race schools still existing, [cita­
tion] ”  572 F.2d at 1014. (Estes Pet. App. “ C” , 137a)
“ . . .  If the district court determines that the utilization 
of pairing, clustering, or other desegregation tools is 
not practicable in the DISD, then the district court 
must make specific findings to that effect.”
572 F.2d at 1015. (Estes Pet., App. “ C” , 13Sa)

SUMMARY OF ARGUMENT

1. The Court of Appeals incorrectly ordered remand for 
further findings in view of the number of one-race schools 
in the DISD to determine why the Swann remedies of pair­
ing and clustering were not ordered as part of the DISD's 
desegregation plan, particularly citing the need for time 
and distance studies for assignment and transportation of 
students outside of the areas in which they reside, i.e.,



20

busing. In fact, the only finding that vestiges of a state- 
imposed dual system exist in the DISD were made in 1971 
by the District Court, based solely on the existence of one- 
race schools, with no findings that such one-race schools 
were in existence by reason of the intended acts of the 
DISD. In 1976 the District Court had made no other find­
ings with respect to the existence of vestiges but had found 
correctly that vestiges of the unconstitutional dual system 
did not exist in large areas of the DISD in which the school 
population was naturally integrated through changing resi­
dential housing patterns. Under this Court's decisions no 
desegregation plan should be formulated without a determi­
nation of the specific unconstitutional wrongs to be rectified. 
Predominantly Anglo or minority schools cannot be ves­
tiges of a state imposed school system unless they result 
from the intended acts of the DISD. Washington r. Davis, 
426 U.S. 229, 239, 96 S.Ct. 2040, 2047, 4S L.Ed.2d 597 
(1976); Dayton Board of Education v. Brinkman, 433 U.S. 
417, 97 S.Ct. 2766. 2770, 2772, 2774, 53 L.Ed.2d 861 (1977); 
Austin Independent School District v. U.S., 429 U.S. 990, 
97 S.Ct. 517, 50 L.Ed.2d 603 (1977); see also Pasadena 
City Board of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 
2697, 49 L.Ed.2d 599 (1976).

2. There were no findings that the plan ordered was neces­
sary to eliminate vestiges of a state-imposed dual system, 
as is required in order for the Federal Court to intervene 

1 «s in the operation of a school system. Dayton, 97 S.Ct. at 
2770, 2774; Swann v. Charlotte-Mecklenburg Board of Edu­
cation, 402 U.S. 1, 16, 31-32, 91 S.Ct. 1267, 2704-2706, 28 
L.Ed.2d 544 (1971); Pasadena, supra, 427 U.S. at 434-440, 
96 S.Ct. at 2704-2706; Milliken v. Bradley, 418 U.S. 717, 73S, 
94 S.Ct. 3112, 3124,41 L.Ed.2d 1069 (1974).

21

0 ; •

3. This analysis suggests that the Court should, as it did 
in Austin II and Dayton, return this case to the lower courts 
for findings as to whether predominantly minority or Anglo 
schools in the DISD are in fact vestiges of a dual system 
with the instruction that they can only be so if the current 
existence of predominantly majority or minority popula­
tions in these schools is a result of intended actions of the 
DISD. A further instruction would be required in view of 
the District Court’s formulation of the current DISD plan 
without any findings which support the conclusion that 
the system wide plan adopted for the DISD is necessary for 
the elimination of specific vestiges of the dual system; that
is, that such findings are required.

4. However, this Court, on the opinions and record before
it, could determine that the DISD has achieved current 
unitary status, thus eliminating the need for further court 
action. The record has been developed over years of litiga­
tion beginning in 1971. There is no evidence in the record 
that any school has a predominantly Anglo or minority 
population as a result of the intended acts of the DISD. 
Even schools which may have a minority population prior 
to the DISD ceasing to be a dual system have been operat­
ing in a freedom of choice assignment pattern mandated 
by the Federal Court since 1965, thereby making it unlikely 
that any students are currently in the DISD who were there 
at a time when any part of the DISD may have been con­
sidered to be a dual system. Further, the District Court 
found in 1976 that the DISD has undertaken in good faith 
and on its own to equalize the educational opportunities 
for all children in the DISD. The DISD, like all major 
metropolitan areas, is experiencing demographic shifts 
which are not the result of its actions. Not the least of these 
is in the inner-city areas which are trending towards either 
predominantly minority or ethnically mixed residential



patterns. In these circumstances and after 14 years of 
freedom of choice under Federal Court mandate, the exist­
ence of one-race schools cannot be charged to the DISD.

5. Areas in which a school population resides because of 
residential housing patterns cannot be vestiges of a dual 
system as the District Court correctly concluded. However, 
the principle emphasized by the Court of Appeals for 
elimination of one-race schools through assignment and 
transportation of students outside the areas of their resi­
dence. when applied to a school district like the DISD, may 
mistakenly be interpreted by the District Court as calling 
tor busing of students from naturally integrated areas. 
Petitioners Brinegar respectfully request that the Court 
instruct the lower courts that preservation, continuation 
and encouragement of naturally integrated areas is a 
guiding principle to be followed in the formulation of school 
desegregation remedies because of necessity, such areas 
cannot be vestiges of a state-imposed dual system, nor can 
their preservation do anything but encourage the elimina­
tion of any vestiges that may exist.

G. Petitioners Brinegar also respectfully request that this 
Court instruct the lower courts to consider the effect of 
school desegregation plans upon other activities of the 
communities in which the plans operate, including those of 
other governmental agencies, and particularly those actions 
which tend to encourage natural integration through resi­
dential housing patterns. These actions in and of themselves 

s reduce one-race schools and thus tend to eliminate any 
vestiges of a state-imposed dual system. Swann, supra, 402 
U.S. at 21-22, 28, 91 S.Ct. at 1278, 12S2; Brown v. Board of 
Education, 349 U.S. 294, 300, 75 S.Ct. 753, 756, 99 L.Ed. 
1083 (1955); Milliken, supra, 418 U.S. at 738, 94 S.Ct. 
at 3112.

22 23

I )  •

• )  I

ARGUMENT
1. There have been no findings of fact which under this 

Court’s decisions define the specific vestiges of the uncon­
stitutional dual system in the DISD upon which a dese­
gregation plan designed to eliminate such specific vest­
iges could be formulated.

a. Court of Appeals’ remand was for the wrong reason.

The Court of Appeals’ reasons for remand centered on 
the continued existence of one-race schools in the DISD and 
the absence of findings of fact which justified their con­
tinued existence, primarily it appears meaning time-and-dis- 
tanee studies having to do with assignment and transporta­
tion of students to areas of the DISD other than that in 
which they reside. 572 F. 2d at 1014-1015. “Busing” has 
become the common word for this kind of assignment and 
transportation as part of a desegregation plan. The 
Brinegar Petitioners contend that the Court of Appeals’ 
purpose for the remand was in error.

If the Court of Appeals was to remand this case, it should 
have done so for the same reasons this court ordered 
remand for further findings in Austin Independent School 
District r. United States, 429 U.S. 990, 97 S.Ct. 517, 50 
L.Ed. 2d 603 (Austin II),  and in Dayton Board of Educa­
tion v. Brinkman, 433 U.S. 417, 97 S.Ct. 2766, 53 L.Ed. 
2d 861: (1977) (Dayton). See al so Pasadena City Board of 
Education v. Spangler, 427 U.S. 424. 96 S.Ct. 2697, 49 
L.Ed. 2d 599 (1976) (Pasadena); Village of Arlington 
Heights v. Metropolitan Housing Development Corporation, 
429 U.S. 252, 97 S.Ct. 555, 50 L.Ed. 2d 450 (1977) (Arling­
ton Heights). That is to say, the District Court should 
have been ordered to reexamine its earlier decision that 
vestiges of a dual system existed in the DISD in light of



this Court's decision in Washington v. Davis, 426 U.S. 229, 
96 S.Ct. 2040, 48 L.Ed. 2d 597 (1976) {Washington v. 
Davis), which was decided on June 7, 1976 subsequent to 
the District Court’s decisions of March 10, 1976, as finally 
ordered on April 7, 1976. Indeed, by the time of the Court 
of Appeals’ decision in April 1978, the Court of Appeals 
had the benefit of Austin II, Dayton, Pasadena and Arling­
ton Heights.

h. First the vestiges of the dual system must be determined, 
then a plan formulated to eliminate those vestiges only.

Quoting from Keyes v. School District No. 1, 413 U.S. 
ISO. 205, 93 S.Ct. 2686, 2696, 37 L.Ed. 2d 54S (1973), the 
majority opinion in Washington v. Davis, stated, “ the es­
sential element of de jure segregation is ‘a current condi­
tion of segregation resulting from intentional state action’ 
Supra, 426 U.S. at 240, 96 S.Ct. at 2048. And, the court 
rejected the proposition that an official act, without regard 
to whether it reflects a racially discriminating purpose, is 
unconstitutional solely because it has a racially dispropor­
tionate impact. Washington v. Davis, supra, 426 U.S. at 239; 
96 S.Ct. at 2047. See also Arlington Heights, supra, 97 S.Ct. 
at 563.

Washington v. Davis really stated and reaffirmed the 
same legal principles which would be required in any other 
legal proceeding dealt with by our courts, that before grant­
ing equitable relief, which in law is considered ex­
traordinary, one must first carefully delineate (make 
findings) as to what is the violation that gives rise to the 
relief. Then, the relief itself must be tailored to remedy 
the violation. Su-ann, supra, 402 U.S. at 15-16, and 91 
S.Ct. at 1276. Equity does not punish, it remedies. And the

24 25

* >  #

•  I •

remedy should not exceed the limit of the violation. M ini- 
ken, 418 U.S. at 738: 94 S.Ct. at 3124. Also there must be 
consideration of alternative remedies, the more extraor­
dinary and extreme should be reserved for the extreme sit­
uations. “ As with any equity case, the nature of the 
violation determines the scope of the remedy.” Sicann, 
supra, 402 U.S. at 16, 91 S.Ct. at 1276. Any interference 
by a court through injunctive order carrying with it 
the threat of fine or imprisonment if violated, in a 
duly elected school board’s operation of a school dis­
trict is. after all. extreme, especially where as in the DISD 
there is no suggestion of discrimination in the election 
of the Board members. Pasadena, supra, 427 U.S. at 438- 
440: 96 S.Ct. at 2706.8

As stated by the majority of this court in Dayton :
“ • • • But our cases have just as fairly recognized that 
local autonomy of school districts is a vital national 
tradition [citations] It is for this reason that the case 
for displacement of the local authorities by a federal 
court desegregation case must be satisfactorily estab­
lished by factual proof and justified by a reasoned 
statement of legal principles. [Cf citation]”
Dayton, supra. 97 S.Ct. at 2770.

c. The District Court has never made the necessary findings 
that vestiges of the dual system exist in the DISD.

The fact is that the District Court has never made the 
necessary findings of fact required by those decisions of 
this court -with regard to the continued and current exist­
ence of vestiges of an unconstitutional dual system in the

8The members of the DISD Board of Trustees are elected from 
single member districts and the members are of differing ethnic 
backgrounds.



26

DISD which would support ordering a system wide desegre­
gation plan such as the one the District Court adopted.

The applicable findings of the District Court can be 
summarized as follows:

1. In its 1971 Opinion the District Court found that 
“ vestiges” of the dual system remained, because of the 
existence of one-race schools. The District Court did not 
find that the DISD was a system wide dual system. 
(Brinegar Pet. App. “A ”, A-2)

2. In its 1976 Opinion, the District Court found 
that while “ . . .  significant strides in desegregation 
had been made since the [District] Court’s 1971 order 
as a result of natural changes in residential pat­
terns . . .” , the DISD in 1975-7976 could not be con­
sidered to be wholly free of the vestiges of a dual 
system, pointing again to predominantly minority schools. 
(Estes Pet. App. “B", 14a-15a)

Lpon that record, and with no finding that the current 
existence of predominantly minority schools were a result 
of intentional actions of the DISD, the District Court 
ordered a system wide desegregation plan (though exclud­
ing naturally integrated areas from the student assignment 
plan) including a projected nonvoluntary assignment and 
transportation of 1<,328 students to schools located outside 
the areas of their residence for purposes of desegregation. 
(Estes Pet. App. “B” , 120a)

d. Similarities of the instant case to Dayton.

In Dayton, this Court was faced with a situation involv­
ing a school district in which this Court’s description of the 
District Court’s findings may be summarized as (i) that a 
great majority of the district’s schools were racially im­

»)> >

♦ ) ' #

balanced, but there was no evidence (as there is none in 
the instant case) of racial discrimination in the establish­
ment or alteration of attendance boundaries or in the site 
selection and construction of new schools and school addi­
tions; (ii) that high school optional attendance zones, two 
in particular, may have had significant potential effects in 
terms of increased racial separation; and (iii) that a newly 
elected Board’s rescission of resolutions of a previous 
Board which had acknowledged a role played by the Board 
in the creation of segregated racial patterns and had called 
for various types of remedial means, together were 
cumulatively a violation of the Equal Protection Clause. 
This Court then reiterated the principle expressed in 
Washington r. Davis, stating:

“ [t]he finding that the pupil population in the various 
Dayton schools is not homogeneous, standing by itself, 
is not a violation of the Fourteenth Amendment in the 
absence of a showing that this condition resulted from 
intentionally segregative actions on the part of the 
Board . . . ”

and, went on to state that the District Court’s findings as 
to the effect of optional attendance zones must also meet 
the test of Washington v. Davis, but that even if such effect 
was an intentionally segregative action it only was so as to 
the high school districting. In other words, the unconstitu­
tional vestige was limited. The finding that the rescission by 
the newly elected school board of a prior board’s actions 
was an unconstitutional act, the majority decision noted was 
of questionable validity. That question could only be re­
solved by determining if the rescinded resolution was con­
stitutionally required, a finding that had never been made. 
Dayton, supra 97 S.Ct. at 2772.



28

As in the instant case, the Court of Appeals seemed to 
have viewed the present structure of the Dayton school 
system as a sort of “fruit of the poisonous tree”, referring 
to the possibility that some of the racial imbalance may 
have resulted from the three instances of segregative action 
found by the District Court. Dayton, supra, 97 S.Ct. at 
2774. This Court observed that the Court of Appeals was

“. . .  vaguely dissatisfied with the limited character of 
the remedy which the District Court had afforded plain­
tiffs, and proceeded to institute a far more sweeping 
one of its own, without in any way upsetting the Dis­
trict Court’s findings of fact or reversing its conclu­
sions of law.” Dayton, supra, 97 S.Ct. at 2774.

The District Court had instituted a large scale plan in­
volving transportation of a large number of students con­
cluding there existed no other feasible way to comply with 
the Court of Appeals’ mandate. As this Court observed 
“. . . the District Court would have been insensitive indeed 
to the nuances of the repeated reversals of its orders by 
the Court of Appeals had it not reached this conclusion.” 
(Dayton, supra, 97 S.Ct. at 2774)

The Dayton situation has many similarities to the instant 
case. The District Court’s orders in the instant case had 
been reversed by the Court of Appeals in 1975 and 1978 
with strong language implying the need for desegregation 
tools which could only mean busing since most other tools 
are already in use, including an affirmative action plan for 
the faculty, majority to minority transfers, appointment 
of a tri-ethnic committee, and control of site selection and 
construction, coupled with the development of magnet 
schools with district wide attendance zones, and special edu­

29

cational programs for disadvantaged children. (Estes Pet. 
App. “B”, 15a-18a, 33a)

While in view of the language of the Court of Appeals 
in its 1975 decision (517 F.2d at 109-110), the District 
Court in the instant case, can hardly be blamed for ordering 
in 1976 a system wide student assignment plan for the 
DISD; nevertheless, with respect to the one-race schools in 
the DISD, the District Court as in Dayton, has not found

1) that the existence of any of such schools in the DISD 
has come about because of the intended acts of the DISD; 
or

2) that the current condition of any of those schools 
having a minority school population is the result of the 
intended acts of the DISD.

In fact, even with respect to the one-race schools which 
the District Court acknowledged became such after the 
DISD ceased to be a dual system, the District Court made 
no effort to distinguish between those schools and those that 
were predominantly one-race prior to the time students were 
assigned to those schools on a nondiscriminatory basis. 
(Brinegar Pet. App. “A”, A-2 - A-3) Obviously any schools 
remaining in the DISD which became predominantly minor­
ity at a time when the dual system still existed may require 
close scrutiny to determine if vestiges still remain in those 
schools, though that distinction itself would not be enough 
to show that vestiges remain in those schools, since a finding 
that the current condition of the school was a result of the 
intended acts of the DISD, would still be required. See 
Washington v. Davis, supra, 426 U.S. at 239, 96 S.Ct. 
at 2047.



Again, as in Dayton, because we do not know what ves­
tiges existed in the DISI), there is no basis on this record 
recoi d to conclude that the I dan ordered was necessary for 
the removal of vestiges of the dual system.

e. At minimum, this Court should remand for further 
findings.

The foregoing analysis can lead to the conclusion that 
this Court should remand to the lower courts, with instruc­
tions to the District Court,

1. to determine if the population of any school in the 
DISD is currently predominantly Anglo or minority be­
cause ot the intended actions oi the DISD, specifvmg 
which schools, if any; that is to say. the District Court 
should determine whether such schools are specific vestiges 
of the state-imposed dual system utilizing the test of 
Washington v. Davis, as developed in Dayton; and

2. if the Dmtnet Court finds any such vestige to exist, 
to formulate a remedy which will eliminate that vestige 
°nlj 5 w ith findings showing that the remedv is necessary to 
eliminate that vestige. Swann, supra, 402 U.S. at 16. 31-32. 
91 S.Ct. at 12(6, 1283-12S4; Pasadena, supra, 427 U.S. at 
4o4-40, 96 S.Ct. at 2704-2706; and Dayton, supra, 97 S.Ct. 
at 2774.

f. Based on the record this Court could find the DISD to be 
unitary.

However, an alternative exists. This Court has the power 
to review this record and determine if the record clearly

31

*)> »

♦)) •

supports tlie finding that no vestiges of a dual system exist 
in the DISD.'1 1 o find the existence of predominantlv minor­
ity schools constitutes a “ vestige” of the unconstitutional 
dual system, requires a finding that such were the intended 
results of actions of the school board of the DISD as its 
governing body. As stated in Dayton :

“ . . . the question of whether demographic changes 
resulting in racial concentration occurred from purely 
neutral public actions or were instead the intended 
result of actions which appeared neutral on their face 
but were in fact invidiously diseriminatorv is not an 
easy one to resolve.” {Supra, 97 S.Ct. at p.'2772)

Hov e\ er, as this Court has observed in Pasadena, human 
migration resulting in changes in residential patterns of 
racial and ethnic groups is normal and is not necessarilv 
the result of school board actions. {Supra, 427 U.S. at 436, 
96 S.Ct. at 2704). Communities served by unitary school 
systems will not necessarily remain demographically stable 
and in fact few will do so. Swann, supra, 402 U.S. at 31-32, 
91 S.Ct. at 12S3-1284. Certainly the evidence in the instant 
case indicates that the demographics of the DISD both 
residentially and in school population, have been rapidly 
shifting for many years. (See Defendants’ Exhibits 1, 2 and 
3, R. "\ ol. I, 76, 77, 81, 85, and Statement of Case, supra, 
12-16).

The question of whether the current demographics of 
the DISD were not the intended result of the DISD’s school 9

9It need not be assumed that all matters covered in the District 
Court s Plan will be dismantled and abandoned because the District 
Court no longer mandates the Plan. Many aspects of the Plan have 
been in effect for many years, such as majority to minority transfers 
and the magnet schools, and have proven educationally sound. The 
DISD s commitment to these concepts is on the basis of their being 
educationally sound, and good faith would probably require their 
continuance.



32

board’s actions may not be so difficult because all students in 
the DISD have been assigned since 1963 pursuant to the 
orders of the federal court. And, indeed, the District Court 
has found that the DISD “has acted in good faith since this 
[District] Court s order in 1971 and has made reasonable 
efforts to fulfill the obligations imposed by that order.” 
(DISD Pet. App. "B ’\ p. 40a)

The lecord is complete and represents a careful review 
of the facts about the DISD. In large measure those facts 
■which bear on the issue of whether vestiges of the dual 
system exist in the DISD are undisputed.

Since 1965, all students in the DISD have been assigned 
to schools under orders of the federal courts. In 1979, it is 
unlikely that any students remain in the DISD who were 
registered in 1965. The implication of the District Court’s 
decision in 1971 was that the DISD was not then a dual 
system. The evidence is that population trends as in other 
dynamic metropolitan areas, were and are constantlv chang­
ing with a tendency on the part of older areas to become 
either ethnically mixed or predominantly minority. (R. Yol. 
VII, 175-1SS) The demographics of this pattern are recog­
nized to occur for reasons unrelated to state or school board 
action. See Pasadena, supra, 427 U.S. at 435-436, 96 S.Ct. 
at 2704; Austin II, supra, 97 S.Ct. at 591.

Even with respect to school populations in schools which 
may have been predominantly minority before 1965, it must 
be assumed that after a period of 14 years of nondiscrimi- 
natoix student assignment, the fact those schools remain 
such is not the result of the DISD’s actions. In view of the 
rapid growth and shift of population in the DISD, the 
assignment of students pursuant to court order for the last 
14 years, and the District Court’s findings of the DISD’s

33

9) •

good faith, it is difficult to see how the DISD actions can 
be said to have had the intended result of currently con­
tinuing vestiges of the dual system.

To say they did would be to suggest that the only way 
such vestiges can be eliminated is to continue to transport 
Anglos to those schools because of events which occurred 
man} years ago which neither the Anglo nor minority stu­
dents, or, chances are, their parents, had anything to do 
with. If this were the rule, in view of the apparent fact that 
ethnic and racial groups very often freely choose to live in 
groups and not mix, and to continue to live together rather 
than in so-called desegregated environments of multiple 
racial and ethnic groups, such schools might never be found 
to be unitary on the basis of residential housing patterns.10

Eleanor P. Wolf in her article Northern School Desegregation 
ana Residential Choice, 1977, The Supreme Court Review, p. 63, 
v hich reviews the literature and studies of the effect of school de­
segregation plans on residential choice of races, observed:

Although there are thousands of examples of mixed areas 
temporarily creating mixed schools and manv instances 
where a reasonably biracial area with few white children 
in it has coexisted with a predominantly black school, 
there is no noted instance where a mixed school produced 
a mixed neighborhood.” (1977 The Supreme Court Review 
at p. 69)

She concludes:

“There is no research to suggest that, even in the absence 
of discrimination, blacks would distribute themselves ran­
domly. All that we know about the social construction of 
black ethnicity would argue against such an outcome. If 
an approximately random distribution continues to be 
the core meaning attached by the NAACP to school de­
segregation. a continued system of racial quotas would be 
required. There is little reason to anticipate that metro­
politan-wide racial dispersion in schools would affect black 
residential preferences, except to remove one of the 
motives sometimes reported bv blacks for seeking homes 
in white neighborhoods.” (1977 The Supreme Court Re­
view, at p. 78-79)



After passage of some period of time, absent overt actions 
of the school board intended to continue the existence of 
segregated schools, it should be apparent that even schools 
originally part of a dual system are no longer vestiges of 
such. To say otherwise results in a system of racial quotas 
which this Court has repeatedly prohibited. Swann, 
supra, 402 U.S. at 31-32, 01 S.Ct. at 12S3-12S4; Pasadena, 
supra, 427 U.S. at p. 434-436, 96 S.Ct. at 2704-2705.

The real question is, what constitutes elimination of the 
dual system where schools continue to be predominantly 
minority? The answer must be that so long as the school 
district does not cause by its intentional acts the continua­
tion of that condition, the fact that such schools remain 
predominantly majority will not be considered an element or 
“ vestige” of a state-imposed dual system. It is difficult to 
see how, in an environment of freedom of choice, majority 
to minority transfers, magnet schools, faculty allocations 
by ethnicity and court scrutiny of site selection of new 
school construction, all going on for a period of years, 
that the continuation or coming into existence of predom­
inantly one-race schools can be laid at the DISD’s door.

Indeed, there is no evidence that the DISD's actions have 
caused any school to become predominantly one ethnic 
group. In fact, all school site selection and construction 
since 1971, has been done only with specific approval of the 
federal courts after hearing. The DISD has been found by 
the District Court to be in good faith as far as providing 
equal educational opportunities to all students, the very 
antithesis of actions intended to be discriminatory. This was 
supported by testimony of witnesses called by the plaintiffs 
at trial — notably Dr. Francis Chase, a highly regarded 
educator. Dr. Jose Cardenas, an expert regarding bilingual 
education and Evonne Ewell, herself a Black person and

34 35

>

m »

an expert on bias in educational materials, who was* As­
sistant Superintendent of the DISD charged with review­
ing curriculum and textbooks. (Estes Pet., App. “B” , 15a- 
18a; Statement of the Case, supra, 11, 17)

The DISD’s research and evaluation of its programs 
was considered by Dr. Chase to be competent to indi­
cate deficiencies in program implementation or opera­
tion, with good faith efforts being made to remedy the prob­
lems discovered. (Estes Pet. App. “B” . 15a-16a, 17a) 
Certainly the fact that the DISD is not perfectly meeting all 
of its problems is not unconstitutional but the fact that it is 
competent in determining them and follows up with solu­
tions, especially in the area of equality of education, 
strongly supports the District Court’s conclusion as to its 
good faith.

g. Summary.

In summary, the District Court’s failure to define ves­
tiges of the dual system or to make the findings of inten­
tional discriminatory action called for by the decisions of 
this Court, make it impossible to justify the system wide 
remedy the District Court ordered, or for that matter, any 
particular aspect of the Plan which constitutes the remedy, 
except the finding that vestiges of the dual system no longer 
exist in areas which the District Court specifically found to 
be desegregated through changes in residential housing 
patterns.

2. The areas of the DISD in which the school populations 
are ethnically mixed by reason of normal housing pat­
terns cannot be vestiges of a state-imposed dual system. 
The continuation, preservation and encouragement of 
such naturally integrated areas is a guiding principle to



36

be considered when formulating- a desegregation plan to 
remedy other vestiges of a dual system.

As more fully explained in the Statement of the Case 
{supra, 11-12), the District Court found large areas of 
the DISD to be integrated through normal residential hous­
ing patterns, including the area represented by Petitioners 
Brinegar. The District Court had ample evidence of the 
trend in the DISD of the changing ethnic mix of school 
populations through residential patterns and so noted in 
its opinion. (Estes Pet. App. “ B” , 13a-15a, 36a. 42a-44a; 
Statement of the Case, supra, 12-14) For example. Carter 
High School in Oak Cliff in 1970 had an Anglo population 
oi 96.G%, no Blacks and a Mexican-American population 
of 3.1%. As part of the desegregation remedy ordered in 
19%, Black students were bused into Carter High School 
from other areas. By 1975 Carter High School had become 
30.9% Anglo, 65.2% Black and 3.S% Mexican-American, 
with most of the Black students residing in the school zone. 
Similar developments had occurred in other schools. (Estes 
Pet. App. “B” , 43a-44a)

The student assignment portion of the Plan adopted 
by the District Court did not substantially affect those 
areas. (Estes Pet. App. “B”, 27a)11 The Court of 
Appeals generally noted the existence of naturally inte­
grated areas and the statement in the Plan that “ [w]her-

i n Even so, the Plan which was ordered by the District Court
N  affected the naturally integrated areas in that "it required uniform 

grade level configurations in new standardized school units of 
grades K-3, 4-6, 7-8 and 9-12 and in the case of the Thomas Jeffer­
son and J. L. Long (East Dallas) zones, because those areas are 
located in the centralities of the subdistricts in which they are 
located, some of the grade 4-6 and 7-8 centers those into which 
students from other areas are assigned and transported, were 
located in those areas. (Estes Pet. App. “B”, 57a, 86a-8Sa, 93a-95a). 
Also the non-student assignment features of the Plan affected every­
one in the DISD including those in the naturally integrated areas/

37

$  )

0) I

ever possible student assignments are retained in ‘naturally 
integrated’ areas” (572 F.2d at 1013 and 1014), but did 
not discuss the District Court’s conclusion that vestiges of 
the dual system no longer exist in those areas.

The Court of Appeals decision does not specifically hold 
that students must be assigned or transported from areas 
found to be naturally integrated to other areas for desegre­
gation purposes. And, the Brinegar Petitioners do not 
contend that it did.

Nevertheless, the Court of Appeals has, as stated else­
where. remanded for more findings on why pairing, cluster­
ing or other desegregation tools were not utilized by the 
District Court (which unutilized desegregation tools, by a 
process of elimination, had to involve busing) referring 
specifically to the need for time-and-distance studies. 572 
F.2d at 1015. For the following reasons, this might be 
interpreted to imply the need to reassign and transport 
students from naturally integrated areas:

1. In the DISD, the naturally integrated areas are adja­
cent and therefore close to the predominantly minority 
areas. (Statement of the Case, supra. 9-10) The naturally 
integrated areas around Thomas Jefferson High School 
and J . L. Long Junior High School are between areas 
which are predominantly minority and those having 
concentrations of Anglo population; thus, in those nat­
urally integrate areas the students, both Anglo and 
minority, are closer for assignment and transportation 
purposes to both the predominantly minority and the 
majority Anglo areas.

2. The Anglo population in the DISD available to be 
utilized for the purpose of assignment and transportation 
to other areas is small and becoming smaller. [The Anglo 
student population declined from 69% in 1971, to 41.1% 
in 1975, and to 33.5% at March 1, 1979 (Ct. of App. Op.,



38

572 F.2d at 1013, fn. 6; DISD 1979 Kept. Vol. 1, App.
“A", 301.]

The Court of Appeals emphasizing the need to eliminate 
one-race schools comes close to suggesting in practical 
effect that the principle of eliminating one-race schools 
overrides all else in forming a desegregation plan. 572 
F.2d at 1011-1015.

Petitioners Brinegar urge this Court that the continua­
tion. preservation and encouragement of naturally inte­
grated areas, that is, areas where school population is 
ethnically mixed through changing residential patterns, 
should be a guiding principle in the formulation of a dese­
gregation plan; because by definition, as the District Court 
concluded, such areas do not contain vestiges of a state- 
imposed dual system, therefore, there is no constitutional 
violation to remedy in those areas. The desegregation tech­
niques sanctioned in S v̂aml were designed to eliminate one- 
race schools. In those areas they are eliminated. Swann, 
supra. 402 U.S. at 26. 91 S.Ct. at 1280-1281. Under the 
TT ashington v. Davis test, there could be no intention on 
the part of the DISD to impose a dual system in these areas.

The use of desegregation tools involving assignment and 
transportation to other areas does tend to cause people 
who have the ability to do so, particularly Anglo, to leave 
the public schools for other school districts or private 
schools12, and reduce the likelihood of in-migration of

12There is little dispute that a desegregation plan causes some 
out-migration. The Plaintiffs’ Dr. Willie conceded as much. (R. 
Vol. Ill, 159) The Petitioners Curry put on extensive testimony of 
the effects of such a plan on out-migration. The testimony of Dr, 
Armor was particularly dramatic (R. Vol. VII, 239-240)] stating 
that in the 16 school districts he studied the loss of white students 
jumped from 2%  per year to 10% for each of the two years follow ­
ing implementation of a mandatory' desegregation plan. The effect

39

*  )

m  >

of these plans was also indicated by Dr. James Coleman’s deposi­
tion testimony on written interrogatories (R. Vol. VIII, 314-31S), 
in particular the testimony in answer to cross interrogatories, at p. 
9-11 of his deposition:

“Q If your answer to Question No. 7 above is affirmative [it 
was] state the nature and extent of such effect on the number of 
white students enrolled in the DISD. If, in your opinion, such 
effect would be to reduce the number of white students enrolled 
in the DISD, state which of the following factors, if any, would 
be expected to influence the decision of white parents to remove 
their children from the DISD, and the nature and extent of each 
such influence:

a) The family income of the white parents, and their 
financial abilitv to send their children to schools outside the 
DISD.

b) The racial composition of the schools in which the white 
students are presently enrolled.

c) The racial composition of the schools to which the white 
students are reassigned (referred to below as ‘new schools’ ).

d) The location of, and environment surrounding, the new 
schools.

e) The distance from the students’ homes to the new
schools.

f) The manner of transporting students to the new schools.
g) The relabve quality of education expected at the new

schools.
h) The expectation of physical harm to students at the 

new schools. State all other factors which, in your opinion, 
would influence the decision of white parents to remove their 
children from DISD schools, and state the nature and extent 
of each such influence.
“A My opinion is that such reassignment would substantially 

reduce the number of white students enrolled in the DISD. The 
amount of such reduction would depend on the number of 
students reassigned as described in Question 7. It is my opinion 
that all the factors described in (a) through (h) would influence 
the decision of white parents to remove their children from the 
DISD, with the possible excepbon of (f).  This opinion is not 
based on statistical analysis, because effects of these factors 
cannot be easily separated, but on general knowledge gained 
in the course of my research.



40

Anglos to many naturally integrated areas which are 
coterminous with older inner-city areas. (R. Vol. VII, 187- 
1SS; R. \ ol. \ III, 318, 394-396). Mr. Justice Powell’s 
obsei \ ations in his footnote to his concurring opinion in 
Austin II, apply very much in this situation:

1 he individual interests at issue here are as personal 
and important as any in our society. They relate to the 
family, and to the concern of parents for the welfare 
and education of their children — especially those of 
tender age. Families share these interests wholly 
■without regard to race, ethnic origin, or economic 
status.”

This will tend to cause the naturally integrated areas to 
become predominantly minority which would frustrate the 
purpose of a desegregation plan. Brinegar Petitioners do 
not suggest that “white flight” or for that matter any flight 
of students from the DISD in and of itself should be a 
reason to not remedy a constitutional violation. But in a 
naturally integrated area there is no constitutional viola­
tion to be remedied. To take action which jeopardizes the 
ethnic balance of such a neighborhood would not accord 
with the balancing of public and private needs and interests 
which this Court in Swann, Brown II and Milliken, has 
called for. Swann, supra, 402 U.S. at 12, 91 S.Ct. at 1274; 
Brown II, supra, 349 U.S. at 300, 75 S.Ct. at 756; Milliken, 
supra, 418 U.S. at 73S, 94 S.Ct. at 3112.

Again, if the goal of a desegregation plan is the elimina- 
1 tion of one-race schools which are vestiges of the dual sys-

Q In your opinion, is there any way to reassign students as 
described in Question No. 7 above without a resulting reduction 
in enrollment of white students in the DISD? If so, how could 
that be accomplished?

“A No.”

41

0  >

tern as stated in Swann, then that purpose is best served bv 
encouraging the coming into existence and continuation of 
schools which are integrated through neighborhood and 
residential patterns. As most school districts recognize, 
neighborhood assignments of students fit the traditions and 
desires of the population of the school district and there­
fore are more stable.

3. In formulating school desegregation plans, the courts 
must consider the effects of such plans upon other activi­
ties of the communities in which such plans operate, in 
particular those which the court finds tend to encourage 
natural integration through residential housing patterns.

If elimination of one-race schools, particularly minoritv 
one-race schools, which are vestiges of a state-imposed dual 
system is a proper goal of a desegregation plan, it follows 
that the Courts should consider all actions which will affect 
the attainment of that goal. Obviously, school districts do 
not exist in a vacuum. They are located in and are a part of 
communities. Actions of communities interrelate. (R. Vol. 
VIII, 393-395) The services provided by a school district 
are one of the services required by the community from its 
governmental units, along with police protection, fire 
departments, building code enforcement, road maintenance, 
zoning, and the like.

The District Court had before it evidence that the plan 
would affect the efforts of the City of Dallas and various 
private groups to try to revitalize inner-city neighborhoods 
in Dallas. (R. Vol. VI, 169-172, 173-174; Vol. VII, 187-188; 
Vol. VIII, 34S, 294-296) This evidence indicated that those 
efforts not only tend to maintain existing naturally inte­
grated areas but encourage others coming into existence by 
encouraging the in-migration of middle income families



42

including Anglos to those areas. (Statement of the case, 
supra, 14-10) Indeed, this Court recognized the influence 
of neighborhoods of the location of schools in Swann, supra, 
402 U.S. at 21-22; 91 S.Ct. at 127S, noting:

“ People gravitate toward school facilities, just as 
schools are located in response to the needs of people. 
The location of schools may thus influence the patterns 
of residential development of a metropolitan area and 
have important impact on composition of inner-city 
neighborhoods.”

Because the effect of the Court of Appeals instructions 
on remand (Statement of the Case, supra, 1S-19) may be 
interpreted to put the emphasis on assignment and trans­
portation of students for racial and ethnic mixing regard­
less of where the students reside, Brinegar Petitioners ask 
this Court to acknowledge and instruct the lower courts 
that consideration of the effect of a desegregation plan upon 
actions of otner agencies, particularly those which tend to 
encourage naturally integrated areas, is not only entirely 
proper but is necessary when determining the limits beyond 
which the courts cannot go in formulating a desegregation 
remedy. Swann, supra, 402 U.S. at 28, 91 S.Ct. at 1282.

CONCLUSION

This Court is requested by these Petitioners either (i) 
based on the opinions below, the findings of the District 
Court and the uncontroverted facts in the record before it, to 
determine that the DISD is now a unitary system, or (ii) 
to remand this case with instructions to the District Court 
to determine if in fact vestiges or elements of a state- 
imposed dual system remain in the DISD with respect to 
student assignment, with the further instruction that the

43

existence of one-race schools is not in itself a vestige of 
such a dual system, unless resulting from the intended 
actions of the DISD. Further, if remand is ordered, this 
Court is respectfully petitioned to instruct the lower courts 
that in formulating a school desegregation plan, the plan 
must be designed to remedy the specific unconstitutional 
wrong and no more, that a guiding principle in such a plan 
should be to continue, preserve and encourage integration 
of neighborhoods through residential patterns, but in any 
event, to not interfere with them, and in this connection to 
consider and make findings as to the effects such plans have 
on actions of other governmental agencies, particularly 
those which have the effect of encouraging, preserving and 
continuing integration through neighborhood housing 
patterns.

Respectfully submitted,

• I
James A. D onohoe

1700 Republic National Bank 
Building

Dallas, Texas 75201

Attorney for Petitioners 
Brinegar, et al



44

PROOF OF SERVICE

I, James A. D oxohoe, attorney for Petitioners Brinegar, 
et al herein, a member of the Bar of the Supreme Court 
of the United States, hereby certify that on the day 
of May, 1979, I served a copy of the foregoing Brief for 
Petitioners Brinegar et al, upon the following Counsel:

for Petitioners Nolan Estes, et al:
Mr. Warren Whitham 
210 Adolphus Tower 
Dallas, Texas 75202

Mr. Mark Martin 
1200 One Main Place 
Dallas, Texas 75250

for Petitioners Curry, et al:

Mr. Robert L. Blumenthal 
Mr. Robert H. Mow, Jr.
3000 One Main Place 
Dallas, Texas 75250

and to the following counsel for Respondents:

Mr. Edward B.
Cloutman, III 

8204 Elmbrook Drive,
Suite 200 

P. O. Box 47972 
Dallas, Texas 75247

Ms. Vilma S. Martinez 
Mexican-American Legal 

Defense and 
Educational Fund 

28 Geary Street 
San Francisco, Calif. 94108

45

• >

• I

Mr. Nathaniel R. Jones 
1790 Broadway, 10th Floor 
New York, N. Y. 10019
Mr. Lee Holt, City 

Attorney 
New City Hall 
Dallas, Texas 75201
Mr. James G. Vetter, Jr.
Suite 920
555 Griffin Square Building 
Dallas, Texas 75202
Mr. Thomas E. Ashton, III 
Dallas Legal Services 

Foundation, Inc.
810 Main, Room 320 
Dallas, Texas 75202
Mr. E. Brice Cunningham 
2606 Forest Avenue, Suite 202 
Dallas, Texas 75215
Mr. John Bryant 
8035 East R. L. Thornton 
Dallas, Texas 75258
Mr. Martin Frost 
Suite 120
777 South R. L. Thornton 
Dallas, Texas 75203

and to the following Respondent pro se:
Mr. James T. Maxwell 
4440 Sigma Road, Suite 112 
Dallas, Texas 75240

and to the following Counsel for Amicus Curiae:
Mr. H. Ron White
1907 Elm Street, Suite 2100
Dallas, Texas 75201



46

by mailing same to such Counsel and Respondent pro se 
at their respective addresses and depositing the same in a 
United States mailbox in an envelope properly addressed 
to such addresses with first class postage prepaid.

I further certify that all parties required to be served 
have been served.

James A. Donohoe
Attorney for Petitioners 

Brinegar, et al

N

A -l

APPENDIX “ A ”