Morton v. Charles County Board of Education Petitioners' Reply Memorandum in Support of Certiorari

    IN THE

Supreme OXuttrt nf %  ImtTfr States
O ctober  T e r m , 1975

No. 75-609

J oseph  H. M orton , et a l ., Petitioners
v,

C h arles  C ou n ty  B oard of E du cation , et a l .,
Respondents.

PETITIONERS' REPLY MEMORANDUM 
IN SUPPORT OF CERTIORARI

J oseph  L . R a u h , J  r .
J o h n  S h a r d  
E llio tt  C. L ic h t m a n  

R a u h , S ilard  an d  L ic h t m a n  
1001 Connecticut Avenue, N. W. 
Washington, D. C. 20036

Mrs. J u a n it a  J ackson  M it c h e l l  
M it c h e l l  and  M it c h e l l  
1239 Druid Hill Avenue 
Baltimore, Maryland 21217

Attorneys for Petitioners
J a c k  G reenberg  
J a m e s  M. N abrit  I I I  
J a m e s  C. G r a y , J r .

10 Columbus Circle 
New York, New York 10019

P ress of B yron S. A dam s P rinting, Inc., W ashington, D . C.

9





IN THE

OXmtrt of %  Inttri* States
O otobeb T e r m , 1975

No. 75-609

J oseph  H. M orton , et  a l ., Petitioners
V.

C h arles  C o u n ty  B oard oe E du cation , et a l .,
Respondents.

PETITIONERS' REPLY MEMORANDUM 
IN SUPPORT OF CERTIORARI

Respondents;’ patent effort to factualize the clear 
legal issues presented by the Petition evidences their 
own recognition of the unusual significance of those 
legal issues. And it could not be otherwise, for it is in­
contestable that the District Judge applied the wrong 
legal standards to the facts before him.

All three legal issues raised by the Petition are clear­
ly before the Court. Thus, the majority and dissenting 
opinions both expose the issue whether the District 
Court properly placed the burden on the plaintiffs 
rather than requiring defendants to justify their prac­
tices which indisputably sharply reduced the black



2

faculty component when student desegregation was 
undertaken in 1967. The equally clear question of 
law presented is whether a “ discriminatory effect”  or 
a “ racial animus”  standard applies to those School 
Board hiring and promotion practices which have 
had a strongly adverse impact on the employment of 
minority teachers and principals. And equally pre­
sented is the question whether the District Court, could 
totally shrug aside the State of Maryland’s own de­
terminations and remedial orders addressed to the 
Charles County school officials’ discriminatory hiring 
and promotion practices. Thus, respondents’ attempt 
to defuse and diffuse the Petition through a factual 
justification o f their conduct cannot vitiate the three 
central legal errors which tainted the District Court’s 
resolution of this case.

Moreover, the School Board’s factual recitation to 
this Court wholly fails in its attempt to undermine the 
points on which we base our petition for review:

(i) In attempting to explain the adoption of an an­
nual hiring ratio of four whites to one black in a school 
system which had approximately equal racial repre­
sentation before black teachers were first generally as­
signed to teach white students, respondents repeatedly 
cite inapposite and inconsequential facts. Thus, they 
rely (Opp. pp. 7-8, 11) on a decrease in the proportion 
o f black Charles County residents and a decrease in the 
proportion of black students in the Charles County 
School System during the 1960s which are totally ir­
relevant to the hiring of teachers. Further they point 
(id.) to the low percentages of Charles County black 
residents who hold college degrees, which equally fail 
to justify the School Board’s failure to hire blacks 
when, as the record shows, the teacher hires come from



3

more than half the states in the nation (A. 1225-26, 
1231, 1235-38. See Petition p. 15 n.8),

(ii) Concerning the School Board's discriminatory 
recruitment policies, respondents’ reliance (Opp. p. 11) 
on the eonclusory satisfaction of the majority below 
with the Board of Education’s recruitment efforts can­
not gainsay the undisputed fact that the School 
Board’s recruiting was at mostly white colleges with 
mostly white recruiters (see Petition, pp. 6-7, 10).

(iii) Concerning the undisputed evidence that the 
Charles County School System hired numerous whites 
with the lowest State qualifications while hiring vir­
tually no blacks with such limited qualifications, it is 
no answer for respondents to rely (Opp. p. 11) on the 
District Court’s statement that such persons were hired 
from the local area just before the school year opened. 
The uncontested record shows that 60% of all new hires 
were usually hired that late in the school year (A. 873- 
908), and there is no evidence that these hires were 
drawn only from the local area. The only relevant 
evidence is the the School Board in general hires ap­
plicants from the majority of states in the nation.1

All apart from respondents’ attempt to cloud the 
salient facts in this case, it is clear that petitioners were 
entitled to have the District Court review those facts 
under the proper legal standards. There is no possible 
dispute that the District Court refused to shift the bur­
den of justification to the School Board for its hiring 
and promotion practices which sharply reduced the

1 Respondents ’ reliance on their teacher assignments after this 
action was commenced in the one year just prior to the 1973 trial 
(Opp. pp. 11-12) hardly undercuts the undisputed record that dur­
ing the preceding six years the school system assigned teachers on a 
racially identifiable basis in the majority of its schools.



4

black faculty component immediately after the desegre­
gation of the student bodies.2 There is thus squarely 
presented the issue of whether Keyes-Chambers re­
quires transfer of the burden where the School Board 
has utilized the more “ sophisticated”  means of refus­
ing to hire blacks instead of engaging in outright dis­
charges.

Similarly, it is clear that the lower courts disre­
garded Maryland’s own findings that respondents en­
gaged in discriminatory employment practices and the 
State’s orders to correct those practices.3 The im­
portant issue whether the lower courts should have 
honored and given effect to the State’s own action is 
thus clearly presented.

Also squarely raised iS the lower courts’ use 
of the motivation standard instead of the Wright 
“ effect”  test. Here the Charles County Board repeats 
(Opp. p. 14) its specious argument to the Court of 
Appeals that because the District Court found no 
“ pattern of discrimination”  the District Court applied 
an “ effect”  standard. But the majority of the Court 
of Appeals failed to accept respondents’ assertion and

2 Respondents quibble (Opp. p. 14) that there is no “ history of 
segregation”  here because the School Board had adopted a free­
dom of choice plan for some years prior to 1967. But that pro­
gram was totally ineffective, and the token transfers of a few 
blacks to white schools and a few whites to black schools in no 
way refute the undisputed fact that the student bodies and 
faculties remained essentially segregated until 1966 and 1967.

3 While Respondents attempt (Opp. p. 8) to disparage the 
findings of the State Board’s Committee because of the Commit­
tee’s informal procedures —which Charles County itself had 
suggested—-those findings were in fact the premise of the State 
Board’s remedial orders.



5

do not at all suggest that the District Judge applied 
the effect standard. Moreover, a careful reading of the 
District Court’s opinion exposes its application of the 
erroneous racial animus test (see Petition, pp. 23a, 
24a, 27a, 29a, 34a, 36a, 40a-42a, 45a-47a, 49a). As dis­
senting Judge Butzner states, the District Court’s 
Opinion contains “ a basic error of law that flaws this 
case: the fallacious premise that the evidence must 
reveal purposeful discrimination in order for the com­
plainants to prevail”  (Petition, p. 12a).

In short, this case raises three vital legal issues 
which require grant of the writ.

Respectfully submitted,

J oseph  L. R a u h , Jr.
J o m  S ilard
E llio tt  C. L ic h t m a n  

R a ih i , S ilard  and  L ic h t m a n  
1001 Connecticut Avenue, 1ST. W. 
Washington, D. C. 20036

M rs. J u a n it a  J ack so n  M it c h e l l  
M it c h e l l  and  M it c h e l l  
1239 Druid Hill Avenue 
Baltimore, Maryland 21217

Attorneys for Petitioners
J a c k  G reenberg  
J AMES M. N A BRIT I I I  
J a m e s  C. G r a y , J r .

10 Columbus Circle
Hew York, New York 10019











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