Legal Research on Assistance to Voters

    In the

Supreme Court of the United States
OCTOBER TERM, 1978

No.

D onald E. Curry, et al,
Petitioners,

v.

M etropolitan Branches of the D allas N.A.A.C.P., et al,
Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE. FIFTH CIRCUIT

R obert L. Blumenthal, 
R obert H. M ow, Jr.,

3000 One Main Place, 
Dallas, Texas 75250, 

Counsel for Petitioners, 
Donald E. Curry, et al.



INDEX
Page

Opinions B elow ....................................................................... 2

Jurisdiction ............................................................................  2

Questions Presented .............................................................  2

Constitutional and Statutory Provisions............................  3

Statement of the Case .........................................................  3

Reasons for Granting the Writ:..........................................  6
1. Contrary to Dayton and Austin II, there has
never been a finding of intentional segregative 
action in Dallas causing any racial imbalance nor 
any remedy directed at any segregative action 
which caused any racial imbalance. ..........................  6
2. The remedy proposed by the Court of Appeals
has been demonstrated to be a complete failure in 
accomplishing its goals..................................................  7
7. It is urgent, for the sake of preserving any in­
tegration in the DISD, that this Court take the 
case now. ........................................................................  8

Conclusion ..............................................................................  9

Certificate of Service .............................................................  11



ii CITATIONS
Cases

Page
Arlington Heights v. Metropolitan Housing 

Development Corp., 429 U.S. 252 (1977) ......................  6

Austin Independent School District v. United States,
429 U.S. 990 (1977) .........................................................  7-9

Britton v. Folsom, 348 F. 2d 158 (5th Cir. 1965) ..............  4

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

Brown v. Board of Education, 347 U.S. 483 (1954) ..........  9

Dayton Board of Education v. Brinkman,
433 U.S. 406 (1977) .........................................................  6

Green v. County School Board of 
New Kent County, 391 U.S. 430 (1968) ........................  6

Swann v. Charlotte-MecKlenburg Board of Education,
402 U.S. 1 (1971) ............................................................. 6

Washington v. Davis, 426 U.S. 229 (1976) .................  6

Wright v. Rockefeller, 376 U.S. 52 (1964) ........................  6

Constitutional and Statutory Provisions 
Equal Protection Clause of the Fourteenth Amendment... 3

20 U.S.C. §§ 1704, 1705, 1712 ...............................................  3



In the
Supreme Court of the United States

OCTOBER TERM, 1978

No.

D onald E. Curry, et al,

v.
Petitioners,

M etropolitan Branches of the D allas N.A.A.C.P., et al,
Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

Petitioners, intervenors in the proceedings below, pray 
that writ of certiorari issue to review the judgment and opin­
ion of the United States Court of Appeals for the Fifth 
Circuit entered in this proceeding on April 21, 1978. The 
names and identities of Petitioners and the many parties 
Respondent, as well as the Amicus Curiae, are set forth in 
Appendix “A ” to the Petition of Nolan Estes, et al. filed 
with this Court. The Appendices attached to the Petition of 
Nolan Estes, et al. are adopted as the Appendices to this 
Petition and are referred to throughout simply as “Appendix 
A ” or “Appendix B.”



2

OPINIONS BELOW

The opinions, orders and judgment of the District Court 
are set forth in Appendix “B” to the Petition of Nolan Estes, 
et al. (pages 4a-129a) and are reported in part at 412 
F. Supp. 1192. The opinion of the Court of Appeals is set 
forth in Appendix “C” to the Petition of Nolan Estes, et al. 
(pages 130a-146a) and is reported at 572 F. 2d 1010.

JURISDICTION

The judgment of the Court of Appeals was entered on 
April 21, 1978. A timely Petition for Rehearing in Banc was 
denied on May 22, 1978. This petition for certiorari was 
filed within 90 days from that date. The jurisdiction of this 
Court is invoked under the provisions of 28 U.S.C. Sec­
tion 1254(1).

QUESTIONS PRESENTED

1. In the absence of evidence of a finding that racial im­
balance resulted from intentional segregative actions on the 
part of the Dallas Independent School District, do the 
District Court and Court of Appeals have the power to order 
student reassignment?

2. Can there be a vestige of a state imposed dual school 
system in the Dallas Independent School District when 
every child presently attending schools in that district has 
been assigned to his or her school under a plan mandated by 
the United States Courts?

3. Does the Constitution require the imposition of a 
remedy which the overwhelming evidence demonstrates not 
only fails to remedy the problem at which it is directed, but 
exacerbates the problem.



3

CONSTITUTIONAL AND STATUTORY PROVISIONS

Constitutional and statutory provisions involve the equal 
protection clause of the Fourteenth Amendment to the Con­
stitution of the United States which provides in pertinent 
parts as follows:

“ Nor shall any state . . . deny to any person within 
its jurisdiction the equal protection of the laws.”
20 U.S.C. § 1701 et seq. (Equal Education Opportunity 
A ct), § 1704 provides “ 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 constitute a denial of equal educational opportunity 
or equal protection of the laws.”
§ 1712 of such Act provides “ in formulating a remedy 
for denial of equal educational opportunity or denial of 
equal protection of the laws, 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 educational opportunity or equal pro­
tection of laws.”
§ 1705 provides “the assignment by an educational 
agency of a student to a school nearest his place of 
residence which provides appropriate grade level and 
type of education for such student is not a denial of 
equal educational opportunity or of equal protection 
of the laws unless such assignment is for the purpose 
of segregating students on the basis of race, color, sex 
or national origin or the school to which such student is 
assigned is located on its site for the purpose of segre­
gating students on such basis.”

STATEMENT OF THE CASE

Since 1965 every student assignment in the Dallas Inde­
pendent School District has been mandated by the United 
States Courts. In 1965 the Court of Appeals for the Fifth



4

Circuit in Britton v. Folsom,, 348 F. 2d 158 (5th Cir. 1965) 
and Britton u. Folsom, 350 F. 2d 1022 (5th Cir. 1965) 
ordered the immediate assignment of students to the neigh­
borhood schools without regard to race. Student assignment 
within the Dallas Independent School District has continu­
ously since that date been directed and mandated by the 
United States District or the United States Court of Appeals 
for the Fifth Circuit, and no student assignment plan has 
been adopted except as permitted by such courts.

No child presently in the 12 grades of the Dallas Inde­
pendent School District has ever attended a school except by 
an assignment approved by the United States Courts.

In 1971 prior to the mandatory District Court reassign­
ment order based on the race of the students the Dallas 
Independent School District student body was 69% Anglo. 
In 1975 it was 41.1% Anglo, and in 1978, the Anglo student 
body was 35.38%.

Since 1971 every child in the Dallas Independent School 
District has been entitled to transfer from a school in which 
his race is a majority to any school in the district where his 
race is a minority provided that such transfer does not 
adversely upset the racial balance of the transferee school. 
No child is deprived of an opportunity to attend an inte­
grated school in which his race is not the majority.

In all of the numerous cases which have been tried con­
cerning the Dallas Independent School District there never 
has been a finding of intentional segregative action by the 
Dallas Independent School District. Since 1965 there can 
be no such finding, for every student assignment program 
has been mandated or approved by United States Courts.



5

The court ordered student assignment plan in 1971 was on 
a finding that vestiges of a dual school system remained 
“ solely on the basis of a racial imbalance between schools in 
the district.”

Not only did the court have no specific findings of inten­
tional segregative intent in connection with any student 
school assignment, the District Court in its March 10, 1976 
order found that the Dallas Independent School District 
acted in good faith since 1971 and has made reasonable 
efforts to fulfill the obligations imposed by the orders of the 
courts (page 15a, Appendix B ) . The court further found that 
testimony established that the Dallas Independent School 
District has undertaken in good faith and on its own to 
equalize the educational opportunity for all children. The 
District Court adopted plaintiff’s witness, Dr. Francis S. 
Chase, statement in his report that “ the Dallas Independent 
School District in recent years, has acknowledged frankly 
the existence of persisting inequalities and inadequacies in 
its provisions for education. Instead of regarding these con­
ditions as inevitable, the District has moved progressively 
to treat them as challenges with which it must cope swiftly 
and effectively. All school systems, and especially those in 
our larger cities, are faced with the urgent necessity of allevi­
ating the learning disabilities which have their roots in pov­
erty, prejudice, and other forms of discrimination. No other 
school district offers a better prospect for significant prog­
ress in this direction.” See page 17a, Appendix B.

The overwhelming evidence in this record establishes that 
not only do orders of courts have a disrupting effect on the 
educational process but the threat and continuation of liti­
gation concerning student assignments, have an equally 
disrupting and tragic effect.



REASONS FOR GRANTING THE WRIT

1.
Contrary to Dayton and Austin II. there has 

never been a finding of intentional segregative 
action in Dallas causing any racial imbalance 
nor any remedy directed at any segregative ac­
tion which caused any racial imbalance.

The courts below have totally ignored the fact that 
there has never been a finding or showing of intentional 
segregative action in Dallas causing any racial imbalance 
and no Court has directed a remedy at any segregative 
action which caused any racial imbalance. Instead each 
Court has imposed its own views ox social policy without 
regard to action or effect. This court in Dayton Board of 
Education v. Brinkman, (June 27, 1977) following Wash­
ington v. Davis, 426 U.S. 229 (1976), Wright v. Rockefeller, 
376 U.S. 52 (1964), Arlington Heights v. Metro Housing 
Corp., (Jan. 11, 1977), has consistently held that “proof 
of racial discriminatory intent or purpose is required 
to show a violation of the equal protection clause.” The 
simple fact of the matter is, as the evidence overwhelmingly 
shows, that racial imbalance of the Dallas Independent 
School District is not caused by any action of the Dallas 
Independent School District. The evidence is that most of 
the “one-race” schools complained of in East Oak Cliff by 
the N.A.A.C.P. began as one-race white schools and became 
one-race black as a result of demographic changes. The fact 
that blacks in Dallas tend to live together is no more unusual 
than the fact that Irish, Italians, Jews, Poles and other 
ethnic groups tend to congregate in neighborhoods. It would 
be absurd to urge that composition of basketball teams in 
the National Basketball Association is evidence of discrim­
ination against whites by blacks, but with solemnity court

6



after court insists that mere evidence of black neighborhoods 
is evidence of discrimination in school districts. The rhetoric 
of Green v. County School Board of New Kent County, 
391 U.S. 430 (1968), and Swann u. Charlotte-Mecklenberg 
Board of Education, 402 U.S. 1 (1971) is misapplied as re­
quiring the remedy of nondiscriminatory voluntary racial 
imbalance, rather than the intentional segregative circum­
stances at which they were directed.

Not only have there been no findings of particular dis­
criminatory acts causing racial imbalance, the evidence is 
overwhelming that there is nothing that the Dallas Inde­
pendent School District could have done which it is not 
already doing to prevent such racial imbalance. To a great 
extent such imbalance is the result of attempts to correct 
such racial imbalance by student assignment, resulting in 
the Dallas Independent School District going from a 69% 
Anglo school district to a 35% Anglo school district.

The District Court and The Fifth Circuit further failed 
to find what “increment” of any imbalance was caused by 
the non-existent segregative act, or what remedy would be 
required solely to right any such constitutional wrong. All 
opinions are dedicated to the question of how to best mix 
the racial imbalance. It is obvious the Fifth Circuit refuses 
to follow this Court’s instructions to it in Austin II  (Austin 
Indep. School District v. United States, 429 U.S. 990 
(1977)).

2.
The remedy proposed by the Court of Ap­

peals has been demonstrated to be a complete 
failure in accomplishing its goals.

The remedy proposed by the Court of Appeals has been 
demonstrated to be a complete failure in accomplishing its 
goals. Assuming that the model is to achieve greater inte­
gration of the races in the Dallas Independent School Dis-

7



8
trict, to increase academic achievement, to lessen racial ten­
sion, and to increase the self-image of the black student, 
reassignment by busing has been a total and complete 
failure as a remedy. The overwhelming evidence in this 
cause is that student reassignment through busing has re­
sulted in the elimination of any opportunity for meaningful 
integration of the races. The overwhelming evidence in the 
record is that it has failed to show any improvement in 
academics, has increased racial tension, and has lowered the 
self-image of blacks. In brief, the testimony in this case of 
noted sociologists such as Dr. James E. Coleman, Dr, 
-Nelttrrr Glazer, and Dr. David Armor, and noted educators 
such as Dr. John Letson, former superintendent of schools 
of Atlanta, Georgia, Dr. Nolan Estes, superintendent of 
the Dallas Independent School District, and Dr. O. Z. 
Stephens, deputy superintendent of schools of Memphis, 
Tennessee, have demonstrated that the United States 
courts have set out in an area in which they are un­
equipped to travel, and have presumed to direct educa­
tion without any expertise in that area. The results not 
only in Dallas but in every urban area with a large minority 
population has been disaster for the cause of and prospect 
for integration. In Dallas the results are reflected by the 
loss of more than 40,000 Anglo students. The trial court 
found as a fact that busing of Anglo students to presently 
minority schools had been a failure through no fault of the 
School District.

3.
It is urgent, for the sake of preserving any 

integration in the DISD, that this Court take the 
case now.

The fact that the case has been remanded for further 
finding and this court will have another chance to hear the 
matter, is not a reason for not accepting the case now and



9
directing the new findings or new hearings along the lines of 
Dayton School Board v. Brinkman, supra, rather than along 
the unsupported and wrong racial mixing tests of “ time and 
distance.” The evidence in this case as presented by expert 
witnesses is overwhelming that the destruction caused by 
orders of courts is equally caused by the threat of such 
orders while matters are in litigation. The elimination of the 
middle class student from the public school system is based 
upon people’s perception of the vitality of an educational 
system. These people include those who move to the suburbs 
or abandon the public schools for private school systems, but 
it also includes people moving into an area in replacement of 
normal outmovement who do not choose the Dallas Inde­
pendent School District with its turmoil and litigation over 
any one of numerous suburban school systems readily avail­
able with none of the turmoil, litigation and absurd rulings.

The nation as demonstrated by all of the current litera­
ture is faced with an urban crisis of its central cities. The 
amenities of school districts and an education are essential 
features of any urban society. Without them that society dies. 
The intervention by the federal courts in an area, not to 
correct discrimination which it cannot identify, but merely 
to foster a social policy which it does not understand leads 
to what is amounting to the destruction of the public school 
system.

Perhaps it is well that the metropolitan United States 
is rushing into the European system where public schools 
are only for the lower class or lower-middle class, and private 
schools fr the middle and upper class. If this is the result 
which lower federal courts are trying to achieve by ordering 
ill-considered racial formulas and busing, then this Court 
should soberly discuss that approach instead of allowing the 
federal judiciary to bring it about on the basis of a consti­
tutional principle inaccurately applied.



CONCLUSION

As parties who believe in integrated schools, but see the 
courts destroying any meaningful opportunity to have them 
Petitioners pray that this Court return the Fifth Circuit, 
as it did in Austin II, to the principles of Brown u. 
Board of Education, 347 U.S. 483 (1954). There
this court decided that legislators, no matter how good or 
bad intentioned, should not decide where children went to 
school on the basis of the color of their skin. At the risk of 
impertinence, we respectfully suggest that United States 
judges are no better equipped than legislators to decide 
where children should go to school based solely on the color 
of their skin. The Constitution of the United States de­
mands an “ equal protection” of all our citizens without re­
gard to race — not with regard to race. A non-discriminatory 
racially neutral school asignment program has been adopted 
by the Dallas Independent School District since 1965. Trans­
fers guaranteeing the right of any child to an integrated edu­
cation have been provided. Petitioners pray that this Court 
quickly grant certiorari so that meaningful integration of 
the schools in Dallas may occur as a result of the integration 
of Dallas which has occurred, and so that resegregation does 
not triumph in Dallas, as elsewhere.

Respectfully submitted,

10

R obert L. Blumenthal,

R obert H. Mow, Jr.,
3000 One Main Place, 
Dallas, Texas 75250, 

Counsel for Petitioners, 
Donald E. Curry, et al.

Dated: August 18, 1978.



11

m

PROOF OF SERVICE
I, Robert L. Blumenthal, an attorney for Petitioners 

Curry et al. herein, and a member of the Bar of the Supreme 
Court of the United States, hereby certify that on the.XStif' 
day of August, 1978, I served three copies of the foregoing 
Petition for Writ of Certiorari to the United States Court 
of Appeals for the Fifth Circuit upon the following Counsel 
for Respondents, Counsel for Petitioner Nolan Estes et al., 
Counsel for Amicus Curiae, and the Respondent Pro Se:
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, California 94108
Mr. Nathaniel R. Jones 
1790 Broadway, 10th Floor 
New York, New York 10019
Mr. Lee Holt, City Attorney 
New City Hall 
Dallas, Texas 75201
Mr. John Bryant 
8035 East R. L. Thornton 
Dallas, Texas 75228
Mr. James G. Vetter, Jr.
555 Griffin Square Building 
Suite 920
Dallas, Texas 75202
Mr. James T. Maxwell (pro se) 
4440 Sigma Road, Suite 112 
Dallas, Texas 75240

Mr. Thomas E. Ashton, III 
Dallas Legal Services 

Foundation, Inc.
912 Commerce Street, Room 202 
Dallas, Texas 75202
Mr. E. Brice Cunningham 
2606 Forest Avenue, Suite 202 
Dallas, Texas 75215
Mr. James A. Donohoe 
1700 Republic National Bank 

Building
Dallas, Texas 75201
Mr. Martin Frost 
777 South R. L. Thornton 

Freeway, Suite 120 
Dallas, Texas 75203
Mr. Warren Whitham 
210 Adolphus Tower 
Dallas, Texas 75202
Mr. Mark Martin 
1200 One Main Place 
Dallas, Texas 75250
Mr. H. Ron White
1907 Elm Street, Suite 2100
Dallas, Texas 75201

by mailing same to such Counsel and Respondent pro se at 
their respective addresses and depositing the same in a 
United States mail box 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.

Robert L. Blumenthal 
Attorney for Petitioners 

Curry et al.



i t