School Board of Brevard County, Florida v. Weaver Brief in Opposition to Certiorari

    I k  the

(ftmtrt of tty lutteft States
October Term, 1972 

No. 72-818

T he S chool B oard op B revard C o u nty , F lorida,

Petitioner,
— v . —

S ylvester W eaver, et al.

ON PETITION POE A WRIT OP CERTIORARI TO THE 
UNITED STATES COURT OP APPEALS FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION TO CERTIORARI

J ack Greenberg 
J ames M . N abrit, III 
N orman J. C h a c h k in  
D rew  S. D ays , III

10 Columbus Circle 
New York, New York 10019

J erome J . B ornstein

125 South Court Avenue 
Orlando, Florida 32801

Attorneys for Respondents



1st the

(Emtrt of tlx? Mxutvh JsHatTB
October Term, 1972 

No. 72-818

T h e  S chool B oard of B revard C o u nty , F lorida,

Petitioner,
—v.—

S ylvester W eaver, et al.

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

BRIEF IN OPPOSITION TO CERTIORARI

Question Presented

Whether the court of appeals erred in refusing to permit 
a school board to rely solely upon a majority-to-minority 
transfer plan to desegregate a virtually all-black elemen­
tary school where more effective techniques for desegregat­
ing that school were available to the board.

Argument

On October 13, 1961, black parents and students (herein­
after, “respondents” ) filed this lawsuit seeking an end to 
the dual, racially-segregated school system in Brevard 
County, Florida administered by the petitioner, the School



2

Board of Brevard County.1 At that time, Poinsett Elemen­
tary was one of seven facilities in Brevard County at­
tended exclusively by black students. Poinsett remained 
all-black until the 1969-70 academic year when petitioner 
was required by court order to implement a geographic 
zoning plan to desegregate that facility. As a consequence, 
23 white students joined 737 black students at Poinsett, re­
ducing its enrollment from 100% to 96.9% black. In 1971, 
petitioner was required to take further steps to desegregate 
Poinsett. A  majority-to-minority transfer plan was ap­
proved by the district court for 1971-72 implementation. 
Yet, as of March, 1972, Poinsett remained 97% black, only 
100 of the approximately 800 blacks enrolled there having 
exercised the right to transfer with space available and 
free transportation. The court of appeals agreed with 
respondents that the majority-to-minority transfer plan did 
not represent an effective technique for desegregating 
Poinsett.

Petitioner contends here that it has no affirmative con­
stitutional duty to desegregate Poinsett further. This is so, 
petitioner argues, first, because it is not required to achieve 
racial balance in order to convert its dual system to a 
unitary one. Second, the existence of one virtually all-black 
school in its otherwise desegregated system does not, per 
se, render that system unconstitutional. And third, the 
majority-to-minority transfer approach constitutes an ac­
ceptable technique for achieving greater desegregation. 
Respondents do not quarrel with any of these assertions, 
considered in the abstract. But there are constitutional 
principles of equal importance relating to desegregation 
which must be considered in conjunction with those relied 
upon by petitioner. Racial balance is not the constitutional

1 Formerly called “the Board of Public Instruction of Brevard 
County.”



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objective; but school boards are under an affirmative duty 
to achieve the “ greatest possible degree of actual desegre­
gation.” Swann v. Charlotte-MecMenburg Board of Educa­
tion, 402 TJ.S. 1 (1971). The continued existence of all-blacli 
or virtually all-black schools can be condoned only where it 
has been established that no feasible alternatives are avail­
able to destroy the one-race character of such schools. 
Swann, supra. School boards may not rely upon majority- 
minority transfer plans to desegregate one-race schools 
where other more effective techniques exist, And school 
boards have a heavy burden to bear in justifying reliance 
upon manifestly less effective alternatives in dismantling 
dual systems. Green v. School Board of New Kent County, 
391 U.S. 430 (1968).

The court of appeals correctly applied this second set 
of principles in rejecting petitioner’s majority-to-minority 
transfer plan for desegregating Poinsett. For it found that 
Poinsett was surrounded by at least six virtually all-white 
elementary schools which could be paired or clustered with 
Poinsett to desegregate that facility. The distances between 
Poinsett and these schools are as follows:

Grolfview 1.2 miles
Cambridge — 2.2 U

Mila — 3.0 a

Anderson 3.5 Cl

Tropical 4.2 cc

Audubon 5.6 cc

The feasibility of pairing or clustering Poinsett with these 
schools was established by several facts. Petitioner had 
previously submitted a desegregation plan for Poinsett 
that would have converted it to a special education center 
to which children from not only the nearby six schools 
mentioned above, but from all the schools in the county,



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would have been sent on a weekly rotation basis. And, the 
majority-to-minority transfer plan implemented by peti­
tioner for the 1971-72 academic year envisioned that Poin­
sett students would be eligible to attend any of the six 
schools nearest that facility.

Hence that court concluded that petitioner had not 
achieved the greatest possible degree of actual desegrega­
tion, that Poinsett remained all-black despite the avail­
ability of more effective desegregation techniques, and that 
nothing in the record served to justify petitioner’s prefer­
ence for a patently less effective desegregation approach. 
Petitioner has presented nothing to this Court that dis­
credits in any respect these findings of the court below.

CONCLUSION

For the foregoing reasons, it is respectfully submitted 
that the Petition for a Writ of Certiorari should be denied.

Respectfully submitted,

J ack  Greenberg 
J ames M. N abrit, III 
N o r m a n  J . C h a c h k in  
D rew  S. D ays, III

10 Columbus Circle 
New York, New York 10019

J erome J . B ornstein

125 South Court Avenue 
Orlando, Florida 32801

Attorneys for Respondents



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