Brinkman v. Gilligan Reply Brief for Appellants

    IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

No. 78-3060

MARK BRINKMAN, et al.,
Plaintiffs-Appellants,

v.
JOHN J . GILLIGAN, et al., and 

DAYTON BOARD OF EDUCATION, et al.,
Defendants-Appellees.

Appeal from the United States District 
Court for the Southern District of Ohio 

Western Division

REPLY BRIEF FOR APPELLANTS

ROBERT A. MURPHY 
NORMAN J. CHACHKIN 
WILLIAM E. CALDWELL 
Lawyers' Committee For 

Civil Rights Under Law 
520 Woodward Building 
733 Fifteenth Street, N.W. 
Washington, D.C. 20005
RICHARD AUSTIN 
Suite 1500
First National Bank Bldg. 
Dayton, Ohio 45402

PAUL R. DIMOND 
O'Brien, Moran and Dimond 
210 East Huron Street 
Ann Arbor, Michigan 48104
LOUIS R. LUCAS 
Ratner, Sugarmon, Lucas 

& Henderson
525 Commerce Title Building 
Memphis, Tennessee 38103

NATHANIEL R. JONES 
NAACP General Counsel 
1790 Broadway 
New York, N.Y. 10019

Attorneys for Plaintiffs-Appellants



TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES...............................  i

I. THE STANDARDS OF R E V I E W ....................  2

II. THE APPLICABLE PRINCIPLES OF L A W .............  7
A. The Law in General....................  7
B. The Pre-Brown Dual System............. 8
C. The Standards for Determining 

Segregative Intent of Post-Brown
Conduct.................. ............ 15

D. The Burden of Disproving
Segregative Impact........ •...........  17

III. THE FACTS AND APPLICATION OF THE LAW
TO THE FACTS.................................  18

IV. SYSTEMWIDE IMPACT...............................  2 9

CONCLUSION........................................ 3 0

CERTIFICATE OF SERVICE 31



TABLE OF AUTHORITIES

Cases: Page No.
Albemarle Paper Co. v. Moody-

422 U.S. 405 (1975) . 5
Arthur v. Nyquist, Nos. 12-18, 203 

(2d Cir. March 8, 1978) f 8
Bronson v. Board of Educ. of Cincinnati,

525 F.2d 344 (6th Cir. 1975), cert, denied, 
425 U.S. 934 (1976) 7, 16

Davis v. School Dist. of Pontiac, 443 F.2d 
575 (6th Cir.), cert, denied, 404 U.S. 913 
(1971) . 18

Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406 
• (1977) 8

Glasson v. City of Louisville, 518 F.2d 899 
(6th Cir.), cert, denied, 423 U.S. 930 
(1975) 2

Goss v. Board of Educ. of Knoxville, 482 F.2d 
1044 (6th Cir.) (en banc), cert, denied, 
414 U.S. 1171 (1973) 4, 5

Green v. County School Bd., 391 U.S. 430 
(1968) 5, 10, 13

Higgins v. Board of Educ. of Grand Rapids, 
395 F. Supp. 444 (W.D. Mich. 1973) , 
aff'd, 508 F .2d 779 (6th Cir. 1974) 6 , 17-18

Kelley v. Guinn, 456 F.2d 100 (9th Cir. 1972), 
cert, denied, 413 U.S. 919 (1973) 18

Keyes v. School Dist. No. 1, 413 U.S. 189
(1973) ......................................... 5,

13
17

10, 12,
, 15, 16, 
, 18, 27

Lemon v. Kurtzman, 411 U.S. 192 (1973)..............  5
Louisiana v. United States, 380 U.S. 145

(1965) ...........................................  5



Page No,

Mapp v. Board of Educ. of Chattanooga,
477 F.2d 851 (6th Cir.) (en banc),
cert, denied, 414 U.S. 1022 (1973) ' a

Milliken v. Bradley, 433 U.S. 267
(1977) (Milliken II) 5

NAACP v. Lansing Bd. of Educ., 559 F.2d 
1042 (6th Cir. 1977), cert denied,
46 U.S.L.W. 3390 (U.S. Dec. 12 , 1977)............  7, 8, 16

Northcross v. Board of Educ. of Memphis 
489 F .2d 15 (6th Cir. 1973), cert.
denied, 416 U.S. 962 (1974). T T~................  4

Oliver v. Michigan State Bd. of Educ.,
508 F.2d 178 (6th Cir. 1974), cert.
denied, 421 U.S. 963 (1975)......................  7, 16, 18

Robinson v. Shelby County Bd. of Educ.,
467 F. 2d 1187 (6th cir. 1972) ..................  4

Swann v. Charlotte-Macklenburg Bd. of Educ.,
402 U.S. 1 (1971)................................. 5, 10, 11,

12, 13, 17
United States v. Board of School Comm'rs 

of Indianapolis, Nos. 75-1730-1737,
et al. (7th Cir. Feb. 14, 1 9 7 8 ) ................  8

United States v. Oregon State Med. Soc., 
343 U.S. 326 (1952)..................

United States v. School Dist. of Omaha,
565 F.2d 127 (8th Cir. 1977) (en banc), 
cert, denied, 46 U.S.L.W. 3526 (U.S.
Feb. 21 , 1978)................................... 8

United States v. Texas Educ. Agency,
546 F. 2d 162 (5th Cir. 1977) (Austin III)........  8

Village of Arlington Heights v. Metropolitan
Housing Dev. Corp., 42 9 U.S. 252 ( 1 9 7 7 )........  4 , 7, 8

Washington v. Davis, 426 U.S. 229 (1976)............  7,8

l i .



Rule 32(a)(2), FED. R. CIV. P........................  4
Rule 52(a), FED. R. CIV. P............................ 2
Rule 801(d)(2), FED. R. EVID..........................  4
Rule 804(b)(4), FED. R. EVID..........................  4

Articles;

Godbold, Twenty Pages and Twenty Minutes —
Effective Advocacy On Appeal, 30 SW. L.J.
801 (1976).........................................  12

Rules: Page Ho.

iii.



IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

No. 78-3060

MARK BRINKMAN, et al.,
Plaintiffs-Appellants,

v.
JOHN J. GILLIGAN, et al., and 

DAYTON BOARD OF EDUCATION, et al.,
Defendants-Appellees.

Appeal from the United States District 
Court for the Southern District of Ohio 

Western Division

REPLY BRIEF FOR APPELLANTS

The brief for defendant Dayton Board of Education 
is long on imagery but short on a substantive response to the 
controlling law and dispositive record evidence in this case.

1/ The Brief for Defendants-Appellees is referred to herein 
as "Board Br."; the Brief for Appellants is referred to 
as "Plaintiffs' Br."; the Brief for the United States 
as Amicus Curiae is cited as "U.S. Br.," with the 
United States' amicus brief in the Supreme Court (which 
has been submitted to this Court) being referred to as 
"U.S. S.Ct. Br."



As we demonstrate in this reply brief, the Board fails to 
come to grips with the merits of plaintiffs' position with 
respect to the standards for appellate review (pp. 2-7 , infra) 
the applicable principles of law (pp.7-I7 , infra), and the 
facts and application of the law to the facts (pp.18-28, infra)

I. THE STANDARDS OF REVIEW
Defendants agree (Board Br. 4) with plaintiffs'

emphasis (Plaintiffs' Br. 6-20) on the appropriate standards
of appellate review. Defendants also seem to agree (Board
Br. 5) with plaintiffs' analysis of the legal principles which
govern review. Thus frustrated by having nothing substantive
to quarrel about, the Board criticizes us for citing so many

2/cases. Board Br. 4 .— The Board then falsely implies that 
we have suggested that Rule 52(a) "should be suspended in a 
case of this nature" (id.) and that it is our "ultimate 
suggestion that this Court should feel free to jump into the 
record of this case untrammeled by any 'clearly erroneous' 
standard." Id. at 5. This is sheer hyperbole.

In addition, defendants charge, without reference 
to any part of the record or any finding of the district

y Despite defendants' criticism, we are obliged to add 
the additional citation, previously overlooked, to 
Judge McCree's opinion for this Court in Glasson v. 
City of Louisville, 518 F.2d 899, 903 (6th Cir.), 
cert, denied, 423 U.S. 930 (1975), holding that 
"determinations, whether called ultimate findings or 
conclusions of law, that attach legal significance to 
historical facts may be reversed if upon examination 
of the record they are found to be erroneous."

-2-



judge, that "much of the testimony is raw opinion testimony 
of [plaintiffs'] witnesses who have obvious ideological moti­
vation to secure a specific result" (Board Br. 6), and that 
"most of these people [in the main, Board members and other 
managing—agent employees of the Board] were unabashed advocates 
of the plaintiffs' theories....- id. at 7.-' Aside from 
the complete lack of support for these assertions in either 

the record or the district court's findings, defendants fail 
to realize that their logic equally supports the view that all 
of defendants' witnesses are unabashed ideological segrega— 
tionists. If the testimony of the Board members and employees 
who were called to testify as plaintiffs' witnesses is to be 
discounted solely because they testified as part of plaintiffs' 
case and therefore are deemed to be biased integrationists, 
then the testimony of those Board members and employees called 
by the Board should either be similarly discounted or, more 
probatively, should be treated as an additional element of 
plaintiffs' case of purposeful segregation. There is, of course, 
no sound basis for a rule that a witness is ipso facto biased 
in favor of the party calling him. Such a rule would relegate

37 Even in this unfounded claim, the Board does not challenge 
on grounds of bias or demeanor the testimony of other of 
plaintiffs' witnesses (e.g., Phyllis Greer, Ella Lowery 
and Gordon Foster), who provided most of the factual 
foundation for plaintiffs' case of pervasive discrimination 
continuing through the time of trial in 1972.

-3-



litigants to resting their cases on proof produced hy 
their opponents! The only remotely relevant rule of 
evidence is that admissions of the managing agents of an 
adverse party are likely to be probative if they are against 
the interests of the adverse party. Cf. Rule 32(a)(2),
FED. R. CIV. p.; Rules 801(d)(2) and 804(b)(4), FED. R.
EVID. Indeed, it is the rare case where, as here, public 
officials will admit either segregative purpose with respect 
to particular events or a regime of segregation with respect 
to an entire system of public administration. Cf. Village 
of Arlington Heights v. Metropolitan Housing Dev. Corp.,
429 U.S. 252, 265 (1977). In all events, the Board's brief 
is devoid of a single example of a district court finding 
that is predicated upon witness demeanor and credibility. 
There are no such findings. To the contrary, the district 
judge, albeit by selective misreading, relies upon the testi­
mony of those very same Board members and employees whom the 
Board now claims were biased for plaintiffs. See, e.g., 
Plaintiffs Br. 19a-20a (Carle testimony).

Finally, defendants' reliance (Board Br. 7-8) 
upon Goss v. Board of Educ. of Knoxville, 482 F.2d 1044 
(6th Cir.) (en banc), cert denied, 414 U.S. 1171 (1973), is 
misplaced. Goss, like similar decisions of this Court,—^

4_/ See, e.g. , Northcross v. Board of Educ. of Memphis,
489 F .2d 15 (6th Cir. 1973), cert, denied, 416 U.S.
962 (1974); Mapp v. Board of Educ. of Chattanooga,
477 F.2d 851 (6th Cir.) (en banc), cert denied,
414 U.S. 1022 (1973); Robinson v. Shelby County Bd. 
of Educ., 467 F .2d 1187 (6th Cir. 1972).

-4-



is different from this case (which essentially involves 
only questions of liability, see p, 29, infra) because it 
involved questions of the adequacy of a district court's 
remedial decree in light of the established discretion of 
trial judges in formulating equitable decrees. In such 
circumstances, appellate review is guided not only by the 
"clearly erroneous" standard, but also —  as Goss' citation 
and quotation (482 F.2d at 1047) of Lemon v. Kurtzman,
411 U.S. 192, 199-201 (1973), makes clear —  by the rule 
that "[i]n shaping equity decrees, the trial court is vested 
with broad discretionary power; appellate review is 
correspondingly narrow." Id. at 2 0 0 . The standards of 
review in such cases thus accord greater deference to the 
district judge's "special blend of what is necessary, what 
is fair, and what is workable." Id. (footnote omitted).
Goss and its kind thus do not represent pure applications of 
the "clearly erroneous" standard to lower court dispositions 
of basic liability issues, such as those involved here.

A more appropriate example of the application of 
the "clearly erroneous" standard to a case such as this is the

57 Of course, the "discretion" of trial courts in such 
circumstances is not untrammeled, and is governed by 
the rules that an equity court must shape its decree 
so as to secure "complete justice," Albemarle Paper 
Co. v. Moody, 422 U.S. 405, 418 (1975), and that "the 
court has not merely the power but the duty to render 
a decree which will so far as possible eliminate the 
discriminatory effects of the past as well as bar like 
discrimination in the future." Louisiana v. United 
States, 380 U.S. 145, 154 (1965). These principles 
are as applicable to school cases as they are to 
employment and voting rights cases. See, e.g., Milliken 
v. Bradley, 433 U.S. 267 (1977) (Milliken II); Keyes v. 
School Dist. No. 1, 413 U.S. 189 (1973); Swann v . 
Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971); 
Green v. County School Bd., 391 U.S. 430 (1968).

-5-



late Judge William E. Miller's opinion for this Court 
in Higgins v. Board of Educ. of Grand Rapids, 508 F.2d 779 
(6th Cir. 1974). Although the plaintiffs in that case did 
not prevail, Judge Miller's opinion evidences an appropriate 
careful scrutiny of the record with respect to all factual, 
legal and mixed fact/law issues. A similar approach is 
necessary in the instant case.

In addition to its importance as an example of 
painstaking appellate review, Higgins provides instructive 
comparisons with this case. One such comparison is between 
the Higgins facts and those of record here: in contrast to
the overwhelming evidence of longstanding purposeful segrega­
tion presented by the instant record, the Higgins facts 
reflect a board of education which did not seize upon every 
opportunity to institute and perpetuate racial segregation. 
Also informative is a comparison of Judge Engel's compre­
hensive, meticulous opinion for the district court in Higgins, 
395 F.Supp. 444 (W.D. Mich. 1973), with the scattershot, 
conclusory opinion below: the quality and logic of the former
command considerable deference, that of the latter virtually 
none.

In short, it is not the law of this or any other 
reviewing court that whatever the trial court finds in school 
or other discrimination cases controls on appeal regardless 
of the errors —  of law and mixed law and fact, and of

-6-



ultimate and subsidiary fact-finding —  committed below.
The standards governing this Court's review of the judgment 
below are as stated in our opening brief (pp. 6-20). These 
standards do not insulate from review the gross miscarriage 
of justice embodied in the judgment below. On the contrary, 
these standards mandate correction of such manifest injustice.

II. THE APPLICABLE PRINCIPLES OF LAW
A. The Law in General
Defendants' brief (pp. 9 & 12) leaves the impression 

that, because plaintiffs did not cite Washington v.
Davis, 426 U.S. 229 (1976), and Village of Arlington Heights 
v. Metropolitan Housing Dev. Corp., supra, at a particular 
point in their brief,—^ plaintiffs have somehow tried to hide 
the law. The fact is, however, that the main thesis of 
plaintiffs' brief is that the record evidence proves "deliber­
ate, purposeful, systematic discrimination" (Board Br. 11) 
beyond any reasonable doubt, even without correction of the

6/ Plaintiffs did cite and rely upon these cases throughout 
their brief. See Plaintiff's Br. 22, 29, 34, 44, 45, 58. 
In contrast, we note that nowhere do defendants cite, 
or even acknowledge, the law of this Circuit —  set forth 
in NAACP v. Lansing Bd. of Educ., 559 F.2d 1042 (6th Cir. 
1977), cert, denied, 46 U.S.L.W. 3390 (U.S. Dec. 12, 1977) 
Bronson v. Board of Educ. of Cincinnati, 525 F.2d 344 
(6th Cir. 1975), cert, d e n i e d 425 U.S. 934 (1976) ; Oliver 
v. Michigan State Bd. of Educ., 508 F.2d 178 (6th Cir. 
1974), cert, denied, 421 U.S. 963 (1975) —  imposing 
the "natural, probable and foreseeable result" test for 
determining prima facie segregative intent in school cases 
(This governing test is not necessary to a disposition of 
this appeal in plaintiffs' favor, however, because the 
record here contains abundant direct evidence of explicit

[footnote cont'd]
-7-



the major errors of law made by the district court and 
perpetuated here by the Board. Our opening brief explicates 
the correct principles of constitutional law. The Board's 
brief defends the opinion of the district court and, 
therefore, contains erroneous statements of the applicable law.

B. The Pre-Brown Dual System
With the exception of the West Side reorganization 

(see pp. 19-21 infra), defendants do not deny the facts 
showing the Board engaged in extensive pre-Brown purposeful 
segregation. The Board's factual concession, that "the 
history of the Dayton system has [not] been wholly free from 
acts or practices that could be considered segregative" (Board 
Br. 14), is considerably understated, however, and its 
view of the law is unacceptable.

67 (cont'd)
segregative intent.) In addition to this Court 
(see Lansing, supra), three other Circuits (two in 
cases in which, like Lansing, the Supreme Court has 
declined review) have applied the test in school 
desegregation cases in the light of the Supreme Court 
decisions in Washington v. Davis, Arlington Heights, 
and this case, Dayton Bd. of Educ. v. Brinkman, 433 
U.S. 406 (1977). See Arthur v. Nyquist, Nos. 12-18,
203 (2d Cir. March 8, 1978); United States v. School 
Pist. of Omaha, 565 F.2d 127 (8th Cir. 1977) (en banc) , 
cert, denied, 46 U.S.L.W. 3526 (U.S. Feb. 21, 1978); 
United States v. Texas Educ. Agency, 546 F.2d 162 
(5th Cir. 1977) (Austin III). See also United States v. 
Board of School Comm'rs of Indianapolis, Nos. 75-1730- 
1737, et al. (7th Cir. Feb. 14, 1978) (opinion of 
Swygert, J.).

-8-



In our opening brief, we argued (Plaintiffs' Br,
26-30), as did the United States (U.S. Br. 12-15; U.S. S.Ct.
Br. 23-33), that the essentially undisputed pre-Brown 
facts establish that "in 1954 the Dayton School Board operated 
two school systems, one primarily for white students and another 
primarily for blacks." U.S. Br. 12; U.S. S.Ct. Br. 28. 
Defendants answer this argument (Board Br. 12-15) by miscasting 
the argument and by attempting to minimize the legal signifi­
cance of the facts.

Defendants mis-state the argument by treating it 
as though it "suggested that a point in time twenty-four 
years ago be picked as a determinative point of inquiry."
Board Br. 13. On the contrary, we have not attempted to 
cut off the inquiry at 1954. But the pre-1954 events are, 
for two reasons, highly relevant. One is the factual reason 
that, in Justice Jackson's words, "present events have roots 
in the past, and it is quite proper to trace currently 
questioned conduct backwards to illuminate its connections 
and meanings." United States v. Oregon State Med. Soc. ,
343 U.S. 326, 332 (1952). Thus, as we emphasized throughout 
our opening brief, the pre-Brown part of the record has 
immense significance because "it illuminates or explains the 
present and predicts the shape of things to come." Id. at 333.

The second reason why the pre-Brown events are 
relevant is the legal one that the Board was under an affirma­
tive post-Brown duty to undo, rather than build upon, the

-9-



extensive segregation of pupils and teachers which the Board 
had intentionally created. If the Board's pre-Brown deliberate 
segregative practices were systemwide in purpose and effect, 
then the Board's post-Brown obligation was affirmatively to dis­
mantle such a dual system or otherwise to show with particularity 
that continuing one-race schools were genuinely nondiscrimina- 
tory rather than the legacy of the historic dual system.
Swann, 402 U.S. at 24-26; Keyes, 413 U.S. at 205, 210-14.
In that circumstance, even if the Board were correct in 
asserting that "the School Board has done nothing to alter 
attendance boundaries in any significant manner or to otherwise 
channel black or white students to different schools for 
twenty-four years" (Board Br. 1 3 ) the Board is plainly 
wrong in concluding, without more, that "the point of 
attenuation would clearly appear to have been reached even 
if there were anything twenty-four years ago to attentuate!"
Id. at 13-14. No "southern" school system would have been 
required to desegregate, as mandated by Green and Swann, if 
there were any merit in defendants' simplistic argument that 
the passage of time alone proves attenuation,

Swann, Keyes and common sense are a complete and 
sufficient answer to the Board's argument that the mere 
passage of time in conjunction with ostensibly race-neutral 
school board action attenuates illegal segregation.

7/ Which, of course, is wholly untrue.

-10-



In Swann the Court ordered all-out desegregation, necessarily 
rejecting any such time-equals-attenuation theory, despite 
the Chief Justice's recognition of the following complicating 
factors (402 U.S. at 14) (footnote omitted) (emphasis added):

The failure of local authorities 
to meet their constitutional obliga­
tions aggravated the massive problem 
of converting from the state-enforced 
discrimination of racially separate 
school systems. This process has been
rendered more difficult by changes 
1954 in the structure and patterns

since
of

communities, the growth of student
population, movement of families, and
other changes , some of which had marked
impact on school planning, sometimes
neutralizing or negating remedial action
before it was fully implemented. Rural
areas accustomed for half a century to 
the consolidated school systems imple­
mented by bus transportation could make 
adjustments more readily than metropolitan 
areas with dense and shifting population, 
numerous schools, congested and complex 
traffic patterns.

Despite these factors, the Court in Swann recognized 
the long-term segregative impact of race-based school board 
actions (id. at 20-21), and held that such a "loaded game 
board" must be set right even if it is necessary to employ 
race-conscious, instead of "[rjacially neutral," means.
Id.at 28. The Board here is thus wrong in assuming that 
post-Brown racial neutrality and the passage of time alone 
require the conclusion that the pre-Brown segregation has 
been attenuated. But even if attenuation is an appropriate 
inquiry in these circumstances, where the Board undertook 
virtually no post-Brown affirmative efforts to disestablish 
the dual system, it obviously is an investigation dependent

-11-



upon a factual showing that there is no substantial 
"relationship between past segregative acts and present 
segregation...," Keyes, 413 U.S. at 2 1 1 . Here the 
Board has made no real effort to show "that its past 
segregative acts did not create or contribute to the current 
segregated condition...," Id. Any such effort would, 
in any event, be defeated by the facts detailed in our 
opening brief (and summarized at pp.22-28.infra) which 
reveal that the Board's post-Brown conduct was not aimed 
at uprooting the dual system, but at perpetuating it.

Defendants' final relevant effort—^ to dispose 
of the Brown violation argument is the claim that the facts 
do not add up to a dual system at the time of Brown.

87 Swann holds that, in the context of a prior dual system, 
school boards will be relieved of their post-Brown 
obligations only "once the affirmative duty to desegregate 
has been accomplished and racial discrimination through 
official action is eliminated from the system." 402 
U.S. at 32. In acknowledging a possible attenuation 
defense, Keyes cites (413 U.S. at 211) this part of 
Swann, but the Keyes discussion of attentuation must be 
placed in the context of findings of intentional segre­
gation directed at only a part of the system (38% of 
the black students). We assume arguendo, however, that 
attentuation is also a proper issue in the context of 
proven systemwide segregative practices.

9/ The Board also attempts to dispel the Brown argument
by references to the questions propounded by individual 
Justices during the oral argument in this case last 
Term. Board Br. 15. Even if the views expressed by an 
individual Justice during questioning are not the 
product of confusion and represent the actual views of 
that Justice (an assumption that is not necessarily 
correct, see Godbold, Twenty Pages and Twenty Minutes—  
Effective Advocacy On Appeal, 30 SW. L.J. 801, 818 (1976))

[footnote cont'd]
-12-



I

Board Br. 14. Factual misrepresentations aside, — ^ the 
Board's thesis is that a school system cannot be classified 
in the "dual" category unless all of the students attend 
100% segregated schools. The facts (see generally Plaintiffs 
Br., App. C) are these: The Board operated about 50 schools
enrolling about 35,000 students (19% of whom were black) 
during the 1951-52 school year (the last one before 1963 
for which race data is available). Fifty—four percent 
(.3,602 of a total 6,628) of the black students were enrolled 
in the four schools officially designated for blacks only;

9/ (cont'd)

and even if that Justice would vote to have his views 
incorporated into a judicial decision (another not- 
necessarily-correct assumption) it is difficult to 
understand how such views, not even mentioned in the 
Supreme Court's subsequent unanimous decision in this 
case, can be of benefit to this Court, which is 
bound to carry out the opinions and judgments of the 
Supreme Court, and not what might have been. Especially 
is this so when it is realized that defendants' speculation 
about what might have been includes the necessity to 
explicitly overrule all or parts of Keyes, Swann,
Green and Brown II. This Court is not free to act on 
such hypothesis, even in the unlikely event that the 
Court is persuaded by defendants' speculation.

I V  illustrative example of the Board's factual misrepre­
sentations is the statement that, with respect to "the 
two optional high schools...[,] any student in the system 
was free to attend or not to attend..." Board Br. 14. The 
"true facts" are that white students were not "free" 
to attend the blacks-only (pupils and teachers) Dunbar 
High School (black teachers were not allowed to teach 
white children during the pre-Brown period, and Dunbar 
had only black teachers assigned to it), nor were black 
students "free" to attend the 100% white (students and 
faculty) Patterson Co-op. See Plaintiffs Br., App. C.
Also untrue is defendants' statement that the three 
elementary schools (Garfield, Willard and Wogaman) which 
had been converted into blacks-only schools in the 1930's 
and 1940's to contain the growing black population "simply 
reflected in student compostion the race of the geographic

[footnote cont'd]-13-



83% (23,514 of a total 28,320) of the white students 
attended schools which were virtually (90% or more) all 
white. S. Ct. A. 312 (PX 2B), 506 (PX 100E). Thus, 
without regard to the fact that at least another 19% of the 
black pupils were attending the five schools which were 
about to become black schools by virtue of the West Side 
reorganization (as to which there is an "ultimate fact" 
dispute, see pp.19-21, infra), well over three-fourths of 
all pupils and virtually all teachers attended one-race 
schools.

We think, and we are supported by the persuasive 
brief of the United States, that the Brown facts are 
sufficient to constitute the Dayton district a dual system 
at the time of Brown, and that the defendants never thereafter 
complied with their affirmative remedial duties until the 
instant litigation. It may not have been a "perfect" dual 
system as in states where absolute apartheid was mandated by

10/ (cont'd)
neighborhoods they served." Board Br. 14. Wholly 
apart from the impact on residential racial patterns 
of the Board's de jure policies and practices which 
identified these schools and their neighborhoods 
as unfit for whites, the fact is that there were 
white students residing in these neighborhoods —  
white students whom the Board persistently accommodated 
by providing them, over the years, with "free transfers" 
and "optional attendance" areas to enable them to 
avoid attendance with black students. See Plaintiffs' 
Br., App. C. at pp. 17a-18a and n. 11.

-14-



state, law, but, by reason of the Board's systemwide 
policies and practices, the tolerated breaches of the color 
line were few and far between. If the sum of these facts 
is not "dual system," then there can be no such thing in 
the nonstatutory, "northern" context. To so conclude, 
however, is to say that Keyes was based on a false premise 
or was otherwise wrongly decided —  a conclusion which only 
the Court that decided Keyes is authorized to reach.

* * * *

We have not rested our case at this point, however, 
and we urge the Court not to stop here. For the Board's 
post-Brown conduct, detailed in our opening brief and 
discusssed again in part III, infra, also requires judgment 
for plaintiffs; since 1954 the Board purposefully perpetuated 
supplemented and expanded the extensive pre-Brown intentional 
segregation so that almost no black and white children 
attended school together at the time of complaint and trial 
in 1972.

C. The Standards for Determining Segregative 
Intent of Post-Brown Conduct_____________

In our opening brief we pointed out that the 
district court had, in addition to its mistaken legal evalua­
tion of the pre-Brown facts, committed two basic legal errors 
in analyzing post-Brown conduct for segregative intent: first,
the court ignored altogether the prima facie case principles

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laid down in Keyes, and, second, the court disregarded 
the principle, laid down in the applicable decisions of 
this Court, that an actor is presumed to have intended the 
plainly foreseeable consequences of his action. Plaintiffs'
Br. 30-33. In lieu of responding to our argument pertaining 
to the second error, the Board engages in a rhetorical 
dialogue with itself (Board Br. 15-18) which ignores both 
the facts and the law, and which both misrepresents the 
testimony of three witnesses (present and former Board 
members and employees) and treats them as though they 
were plaintiffs' legal spokesmen. The basic purpose of 
this smokescreen is to argue, without saying so, that 
the "natural, probable and foreseeable result" test of 
segregative intent is wrong, even though only recently re­
affirmed by this Court in Lansing.— ^

With respect to plaintiffs' argument that the 
court below violated Keyes by refusing to employ its burden- 
shifting principles to the issue of segregative intent, 
the Board seeks to obfuscate the issue, as did the district 
court, by including it with a discussion about the burden 
of proving segregative impact (which we discuss next). The

ii/ As we have noted (see note 6, supra) , the Oliver/Bronson/ 
Lansing test is not essential to plaintiffs' success in 
this case because the direct evidence, much of it of 
a subjective nature, of segregative intent is overpowering.

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Board’s argument on the intent burden (Board Br. 18-22) 
boils down to the naked contention that "there is no basis 
for the triggering of a shift of the burden from the
plaintiffs to the defendants...[because] the plaintiffs
here simply failed to establish any intentionally segregative
policies practiced in a meaningful or significant segment of
the school system." Id.at 19.— ^—  In our opening brief
(pp. 26-60, 7a-54a) we have shown that this is wishful thinking
by defendants.

D- The Burden of Disproving Segregative Impact 
The Board argues, in support of the district court, 

that "the burden of proof on the issue of incremental 
segregative effects rests upon the plaintiffs" (Board Br. 21), 
and that Keyes does not require application of a presumption 
"to the remedial issue of determining incremental segregative 
effect." Id. at 20. The Board is wrong. See Keyes, 413 U.S. 
at 211 n. 17, 213—14; Swann, 402 U.S. at 26; see also the
numerous similar holdings cited in Plaintiffs' Br. 33-34, 61-65.

12/ The Board cites Higgins, supra, 508 F.2d at 789, for 
the proposition that "this Court questioned the 
applicability of the Keyes presumption to teacher 
assignment practices," Board Br. 19. What the Court 
actually said in Higgins was this (emphasis in original) 
(footnote omitted):

Keyes involved findings as to various 
geographical areas. It did not deal with 
separate aspects or features of a total 
system, such as teacher assignments as 
opposed to student assignments. Here, 
while there was a finding of illegal dis­
crimination in teacher assignments, it 
is not clear that the placement of teachers

[footnote cont'd]-17-



III. THE FACTS AND APPLICATION OF THE 
LAW TO THE FACTS________________

1. Defendants CBoard Br. 22-27) string together 
several unrelated fact situations, and selectively rail against 
the testimony of a few witnesses (a Board member, the former 
superintendent, and the former assistant superintendent) 
called by plaintiffs, in support of the astounding contention

12/ (cont'd)
according to race, largely corresponding 
to teacher preferences and under the 
educational rationale considered to be 
valid at the time, should give rise to 
the Keyes presumption.

This language must be read in, and confined to,the 
factual context that produced it. In Higgins 
Judge Engel had predicated his faculty-violation findings 
on rather meager direct evidence of segregative intent 
pertaining to the 1940's and on the statistical pattern 
of assigning teachers over the years on a largely 
segregated basis. See 395 F. Supp. at 474-79. There was 
not in Higgins, as there is in this case, direct or any other 
evidence of a board policy prohibiting black teachers from 
teaching white children, subsequently modified to become 
more demeaning by allowing black teachers to teach white 
children only if the affected white communities agreed, and 
not requiring white teachers against their will to teach 
black children. See Plaintiffs' Br., App. C. The Dayton 
Board's faculty-assignment policy, until interdicted by 
HEW in 1969, was the equivalent of a proclamation of 
racial segregation. Standing alone, this proof has more 
probative value to the question of segregative intent than 
all of the evidence in Keyes combined. Whatever the merits 
of the Higgins dictum, it is manifestly inapplicable here. 
This Court and others have, of course, also noted that the 
intentional segregation of staff is highly probative as to 
Cl) a school board's intent with respect to other areas of 
school administration resulting in segregation of pupils, 
and (2) the racial earmarking or tailoring of schools for 
"blacks" or "whites." See,e,g., Oliver v, Michigan State 
Bd. of Educ., 508 F.2d 178, 185 (6th Cir. 1974) , cert, 
denied, 421 U.S, 963 (1975); Kelley v. Guinn, 456 F.2d 100, 
107 (9th Cir. 1972), cert, denied, 413 U.S. 919 (1973);
Davis v. School Dist. of Pontiac, 443 F.2d 575, 576 (6th 
Cir. ),cert, denied, 404 U.S. 913 (1971).

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that (id, at 23) :

Wherever there has been unequivocal 
direct or circumstantial evidence of 
the Board's intent, that intent has 
been exposed as an intent to make 
access to schools as convenient as 
possible for the greatest number of 
students and, wherever possible, to 
improve the racial mix of students 
attending a given school.

Not even the district court, which from the outset bought 
almost every ultimate conclusion advanced by defendants, 
recited this fable! Most of these pages in the Board's 
brief do not touch on significant facts, but we briefly 
respond to each point.

The only point where the Board attempts to meet 
a real issue pertains to the West Side reorganization 
(Board Br. 23-24, 24-25), which is also the only instance 
in which the Board disputes plaintiffs' ultimate factual 
conclusions drawn from the undisputed pre—Brown subsidiary 
facts. Plaintiffs' Br., App. C. Defendants have not 
presented anything which detracts from our opening brief's 
discussion (pp. 39-41 and App. C, pp. 16a-21a) of the West 
Side reorganization. Defendants assert (without the context 
of the other pre-Brown segregation policies) that the 
"express purpose" of the changes was "attempting to place 
more black students [from the deliberately-created blacks- 
only schools] in integrated school environments." Board 
Br. 23. But nothing in the statement or the supporting

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, 13/record citation— ' refutes either (1) the undeniable 
fact that the changes served to perpetuate intentional 
segregation at the blacks-only schools which were born of 
subjective racism, or (2) the plain conclusion that the 
Board's "express purpose" was a sham, a subterfuge for the 
Board's actual purpose of expanding the dual system so as to 

contain (or find a new segregated place for) the growing black 
population and —  via a new system of optional zones, 
construction of the all-black Miami Chapel elementary 
school, and the implementation of a new racial staff assign­
ment policy —  to make the transition of the affected schools 
from "mixed" to all-black status as convenient as possible 
for the affected white population. See also note 10, supra.

13/ Defendants cite A. 813-14 and S, Ct. A. 591-92 in
support of their statement. The former citation is 
to the testimony of a former Board employee called 
by defendants (we wonder why he isn't characterized 
as being "obviously biased" in favor of the Board, 
cf. Board Br. 25), who testified that the purpose of 
the West Side changes was to "allow some of the [black] 
students in the periphery of those respective [blacks- 
only] districts to attend integrated school [districts] 
....» A. 814. The latter citation is to Joint 
Exhibit I, a 1968 written statement to the Board by 
former Superintendent Carle (made in August 1968 
shortly after his arrival in Dayton that same year), 
which was no more than a description of what the 
Board's records said. Neither of these bits of evidence 
casts doubt on the only conclusion (discussed again 
in text) to be drawn from the basic facts which are 
wholly undisputed.

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Imagination must be exalted over reality to reach any conclu 
sion other than thatthe West Side reorganization was a 
deliberate perpetuation of the basically dual system.

The Board's random references to three unrelated
events —  the construction of Roth High School in 1959
and Jefferson Primary in 1967, together with a 1969
boundary revision at Stivers High School (Board Br. 24) —
simply do not support the hypothesis that the Board was
integration-minded. First, the record citations proferred
by the Board do not support statements of events contained

14/m  the Board's brief.— ■ Second, even were the Board
able to come up with a few minor quibble-worthy situations, 
it would only serve to underscore the point of our opening 
brief, to-wit, that the great mass of the facts lead un­
relentingly to the conclusion that racial segregation has 
consistently formed a decisive part of the Board's mind-set.

14/ For example, the Board says that "[a[nother clear- 
cut example of the intent of the Board is the 
building of Roth High School in 1959 in an area 
deliberately chosen to provide a mixed student body.
(A. 815)." Board Br. 24. The citation to A. 815 
is astonishing. On that page, the Board attorney 
asks Board witness Curk the question, "In the 
establishment of the Roth High School attendance 
zone in 1959, was race taken into consideration?," 
and received the answer, "No. sir, it was not." How 
the Board "deliberately chose[] to provide a [racially] 
mixed student body" without taking race "into considera 
tion" is among the many mysteries presented by the 
Board's brief. The brief's other record citations 
are of similar quality.

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Similarly insignificant are the Board's quibbles 
about the philosophical aspects of the testimony of witnesses 
Carle, Harewood and Lucas (the former superintendent, 
assistant superintendent, and present Board member, respectively), 
the attempt to misuse and mischaracterize the testimony of 
witness Williamson, and the attempt to exalt a mediocre 
plaintiffs' witness (whom the district court would not even 
allow to testify about pre-1954 matters with which the 
witness was most familiar, see A. 1026) into "an impartial 
historian." Board Br. 24-27. These are diversionary 
skirmishes, designed to focus attention away from the main 
body of the facts where both defendants and the district 
court's opinions are totally vulnerable. This Court should 
refuse the gambit.

2. Defendants' brief (pp. 28-39) next turns to an 
Alice-in-Wonderland description of "[t]he evidence as a 
whole... . " Id. at 28. With a few exceptions noted below 
in the margin, these pages contain nothing qualified to 
rebut the total factual picture established by the record 
and described in our opening brief. It mostly suffices here 
to summarize the key elements of that picture; a close 
examination of the record will sustain the picture we present 
and destroy the illusion which the Board endeavors to project.

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Between 1912 and 1951-52, the Dayton Board 
devised and carried out a number of racially discriminatory 
policies and practices which both mistreated black students 
and faculty and caused them to be confined to segregated 
black schools; concomitantly, white teachers and pupils 
received favored treatment, and they were accommodated in 
reciprocally-maintained segregated white schools. These 
policies and practices included; the humiliating operation 
of all-black classrooms within, and in an outbuilding in back 
of, the Garfield school; the refusal to allow black students 
to attend white classes at Garfield, and the ultimate over­
night coversion of Garfield into an officially-designated 
blacks-only school; the rigid policy of never allowing black 
teachers to teach white pupils, always assigning such teachers 
only to all-black classes and/or schools; the overnight 
conversions, in response to a growing black population, of 
Willard and Wogamon schools into official blacks-only 
schools; the construction and operation on a city-wide basis 
of Dunbar as a blacks-only high school with, of course, an 
all-black staff, accompanied by pupil-assignment and counselling 
techniques designed to channel black students into Dunbar; 
cooperation by contract with public housing authorities to 
have children educated on a completely segregated basis in 
public housing space officially and explicitly earmarked 
according to race; the transportation of black orphanage 
children past white schools across town to the blacks-only

23-



Garfield; a variety of within-school racially discriminatory 
practices —  requiring black children to sit in the back of 
the class, not letting them participate in "white" 
activities (e.g., being an angel in a school play), segregated 
athletic competition, segregated showers, locker rooms and 
swimming pools, and the like -- which further branded black 
people as unfit for association with whites.

By 1951-52 about 54% of the black children and all 
of the black teachers were in the four official blacks-only 
schools; 83% of the white children were in virtually all-white 
(90% or more) schools taught entirely by white teachers.
It was not against the law for blacks and whites to go to 
school together in Dayton, but it clearly was the official 
educational policy that learning in all of the public schools —  
and, indeed, living —  should take place on a racially 
segregated or otherwise racially discriminatory basis. The 
enormous severity and harm of this sytem were irreparably 
compounded in 1951-52 under the guise of ostensibly favorable 
responses to protestations from the black community. First, 
the Board adopted a faculty-assignment policy that told black 
teachers they could teach white children if white parents 
were willing, and told white teachers not to worry, that 
they would not be assigned against their will to black schools.

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Second, the Board implemented the West Side reorganization 
plan, which contracted the zone boundaries of the three 
blacks-only elementary schools and added portions of those 
zones with their black students to the adjacent "mixed" 
schools (which already had substantial black enrollments, a 
combined 20% of the total black pupil population), thereby 
converting the adjacent five schools (one had just been built) 
into all-black schools. The conversion of these latter 
schools into all-black schools was not just inevitable: it
was plainly intentional, as evidenced by (1) the creation 
of "optional attendance zones" (as a substitute for the 
former "free transfer" policy) in white residential areas, 
so that white students could easily transfer to the next 
ring of white schools, and (2) the traditional means of 
earmarking schools according to race, i.e., the assignment 
(for the first time and thereafter in ever-increasing numbers) 
of black teachers to these schools. By the time of Brown, 
therefore, three-fourths of all black pupils and an even 
greater percentage of all white students attended schools 
segregated by race pursuant to specific official intent to 
discriminate. At that time the Dayton Board was operating 
a dual school system. Plaintiffs' Br. 37-43, 7a-23a.

In the post-Brown era the Board found it relatively 
easy to build upon and perpetuate the segregated system it 
had created. The racist faculty policy continued in raw 
form and substantial practice until HEW intervention in 1969

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resulted in an agreement requiring faculty desegregation 
over a two-year period; but even under that agreement 
remnants of the old policy were still present at the 
time of trial.— ^ The Board expanded the use of optional 
attendance zones which had their race—oriented origins in 
the 1951-52 West Side reorganization —  into a number of 
new areas which had substantial segregative impact.— ^ In
addition, the Board resorted to a variety of other deviations 
from geographic zoning" or the "neighborhood school" concept —

15/ The Board mis-states the testimony of Dr. Green when 
it cites his testimony in support of the claim that 
teacher assignment practices do not affect the perception 
of schools and "had nothing whatsoever to do with the 
changing racial compositions of the schools." Board 

33. The unclear question and answer cited by the 
Board were immediately clarified. Dr. Green emphasized 
that the assignment of black teachers for the first 
time to selected schools with high percentages of black 
pupils, as occurred in the West Side reorganization, for 
example, "could well and perhaps does facilitate that 
school in becoming perceived as being a black school 
or black area if I might use that term." A. 246. A 
^iffsrent point made by Dr. Green, which seems to confuse 
defendants, is that "desegregating the faculty of a 
particular school community when in the past [there] 
has been a systematic placement of teachers to schools 
based on race, based upon the racial composition of the 
school and using the race of the teacher as a factor, 
simply desegregating the faculty without at the same 
time desegregating the pupils or students within that 
system does not change the community perception of that 
school. A. 240-41. There is no inconsistency between 
these two points: race-based faculty assignments have
a causative effect on the racial identiflability of 
schools; once that effect has taken place, however, 
more than mere faculty desegregation is required to 
uproot the segregative impact on pupil attendance patterns

The Board ignores altogether our more basic point that 
the explicit racially discriminatory faculty-assignment 
policy constitutes direct, insurmountable evidence of 
systemwide segregative intent. See note 12, supra.
Optional zones existed at all but one of the six schools

[footnote cont*d]
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curriculum, hardship and disciplinary transfers; tuition 
assignments; "intact" busing; and Freedom of Enrollment 
transfers —  virtually whenever the need arose for 
perpetuation of the segregated system. The Board's brick-and 
mortar practices had an even more devastating segregative 
impact. Almost without exception, all new schools and 
additions to existing schools were constructed on a uniracial 
basis, literally sealing up the dual system extant at the 
time of Brown. Perhaps the most blatant example of 
discrimination in the areas of school construction, location 
and utilization are the events attending the "closing" of 
the old blacks-only Dunbar High School in 1962: the old
Dunbar building was converted into an elementary school

16/ (cont'd)

specifically named by the Board in conjunction with 
the assertion that "there has been no gerrymandering 
of the boundaries to help whites escape." Board Br. 34. 
The creation of optional zones affecting these schools 
refutes the Board's assertion. The very origin of 
optional zones in the 1952 West Side reorganization also 
belies the Board's claim that "the undisputed evidence 
is that racial considerations never played a role in 
the establishment" of such zones. Board Br. 35. The 
use of such optional zones, as well as other pupil- 
transfer practices and explicitly racial staff-assignment 
policies, demonstrates beyond peradventure that the Dayton 
Board did not operate a racially-neutral "neighborhood 
school" system free of manipulation." Keyes, 413 U.S. 
at 212. -----

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(renamed McFarlane) with attendance boundaries drawn to take 
in most of the black students previously attending the 
blacks-only Willard and Garfield schools, which were 
simultaneously closed; McFarlane opened with an all-black 
faculty and an all-black pupil population; at the same time, 
a newly-constructed Dunbar High School, located in a black 
neighborhood far from white residential areas, opened with 
a virtually all-black student body and faculty. All in all, 
of 24 new schools constructed between 1940 and the time of 
trial, 22 opened 90% or more black or 90% or more white;
78 of some 86 additions of regular classroom space were 
made to schools 90% or more one race at the time of expansion 
(only 9 additions were made to schools less than 90% black 
or white); and, the intentional segregative nature of 
these practices was highlighted by the coordinate assignment 
of staffs to these new schools and additions tailored to the 
racial composition of the pupils. These policies and 
practices were supplemented by grade structure reorganization 
and creation of five middle schools. This history culminated 
with the 1972 rescission of a 1971 Board-adopted plan of 
systemwide desegregation; the rescission undid operative 
administrative action and reimposed segregation on a system- 
wide basis.

The Board was operating a dual system at the time of 
trial. Plaintiffs' Br. 43-61, 24a-54a.

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IV. SYSTEMWIDE IMPACT
In our opening brief (pp. 63-64 & 65), we said 

that "the Board has never... contended that plaintiffs are 
not entitled to a remedial plan such as that now in place 
if plaintiffs are right about the nature of the violation," 
and that " [a]s we understand the Board's position... if 
plaintiffs are correct in their claim of a systemwide violation, 
then the plan of desegregation currently in place is as good 
a cure as any." Defendants' brief (pp. 39-42) does not 
dispute these statements. The Board, therefore, must be 
deemed to have waived any defense that the systemwide nature 
of the violation (if the Court agrees with our description of 
it)had less than a systemwide impact. The Court should 
expressly hold that defendants have had ample opportunity 
to question the scope of the remedy, but instead they have 
elected to stick to their all-or-nothing position that there 
has been no systemwide violation.

29-



CONCLUSION

The judgment below is due to be reversed in its
entirety, and the case remanded to the district court to 
enter judgment in accordance with the opinion and mandate of 
this Court (which should direct entry of a permanent injunction 
adopting the plan of desegregation now in effect) and to 
conduct such future proceedings as are not inconsistent with 
the mandate of this Court (e.g., issues pertaining to the 
state defendants, plaintiffs' pending application for costs).

Dated: April 6, 1978
Respectfully submitted

ROBERT A. MURPHY 
NORMAN J. CHACHKIN 
WILLIAM E. CALDWELL 
Lawyers' Committee For

PAUL R. DIMOND 
O'Brien, Moran and Dimond 
210 East Huron Street 
Ann Arbor, Michigan 48104

Civil Rights Under Law 
520 Woodward Building 
733 Fifteenth Street, N.W. 
Washington, D.C. 20005 & Henderson

525 Commerce Title Building 
Memphis, Tennessee 38103

LOUIS R. LUCAS
Ratner, Sugarmon, Lucas,

RICHARD AUSTIN 
Suite 1500
First National Bank Bldg 
Dayton, Ohio 45402

NATHANIEL R. JONES 
NAACP General Counsel 
1790 Boardway 
New York, N.Y. 10019

Attorneys for Plaintiffs-Appellants

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that on this
6th day of April, 1978, he served two copies of the
foregoing Reply Brief on each party, as follows —

by Federal Express to:
DAVID C . GREER 
LEO F. KREBS 
Bieser, Greer & Landis 
8 North Main Street 
Dayton, Ohio 45402

by hand delivery to:
JOEL L. SELIG 
Room 5724
Department of Justice 
Washington, D.C. 20530

and by first-class mail to:
ARMISTEAD W. GILLIAM, JR.
P.O. Box 1817 
Dayton, Ohio 45401
ROY F. MARTIN
1658 State Office Tower
Columbus, Ohio 43215

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