Eason v. Dandridge Brief in Opposition to Petitions for Writs of Certiorari

    Bnpmnx (Ennxt ni %  Inttefr Btntxz
October T erm, 1972

I n  the

No. 71-1474
A lbert B. E ason, et al.,

— v .—
Petitioners,

L ena V erst Dandridge, et al.,
Respondents.

No. 71-1601
Jefferson P arish S chool B oard, et al.,

Petitioners,
— v .—

L ena V ern Dandridge, et al.,
Respondents.

o n  p e t i t i o n s  f o r  w r i t s  o f  c e r t i o r a r i  t o  t h e  u n i t e d  s t a t e s

COURT OF A P PE A L S FO R  T H E  F IF T H  C IR C U IT

BRIEF IN OPPOSITION TO PETITIONS 
FOR WRITS OF CERTIORARI

J ack Greenberg 
James M. Nabrit, III 
Charles Stephen R alston 
Norman Chachkin

10 Columbus Circle
New York, New York 10019

A. M. Trudeau, Jr.
1125 No. Claiborne Avenue 
New Orleans, Louisiana 70116

L ionel R. Collins
713 West Bank Expressway 
Gretna, Louisiana

Attorneys for Respondents



I N D E X

PAGE

Opinions Below .................................................................  1

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

Question Presented .......................................................... 2

Statement .......................................-................................... 2

Reasons Why the Writ Should Be Denied .......... .......  5

Conclusion ..................................................   6

A ppendix ............................................ -.....-........... -..................  la

T able op A uthorities

Cases:
Alexander v. Holmes County Board of Education, 396 

U.S. 19 (1969) ...............................................................  4

Brown v. Board of Education, 347 U.S. 483 (1954) ..... 2

Swann v. Charlotte-Meeklenberg Bd. of Ed., 402 U.S.
1 (1971) ................................................................... 2,4,5, 6

United States v. Montgomery County Bd. of Ed., 395 
U.S. 225 (1969) ............................................................ 3

Statutes:

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

42 U.S.C. §2000c...............................................................  6



I k  th e

B u p n n w  (C rntrt n t  t it?  I m t p f t

October T erm, 1972

No. 71-1474
A lbert B. E asok, et al.,

— V .—

Petitioners,

L eka V een Dakdridge, et al.,
Respondents.

No. 71-1601
J eeeersoh P arish School B oard, et al.,

■— v.—
Petitioners,

L eka Y erk Dakdridge, et al.,
Respondents.

O K  P E T IT IO K S  FOR W R IT S  OE CERTIORARI TO T H E  TTKITED STATES 

COURT OP A PPE A LS EOR T H E  F IF T H  C IR C U IT

BRIEF IN OPPOSITION TO PETITIONS 
FOR WRITS OF CERTIORARI

Opinions Below

The opinion in the United States Court of Appeals for 
the Fifth Circuit is reported at 456 F.2d 552 and the 
August 13, 1971, opinion of the District Court for the 
Eastern District of Louisiana is reported at 332 F.Supp. 
590. Since the latter opinion is not set out in the appendix



2

to either of the petitions for certiorari, we have done so 
in an appendix to this brief.

Jurisdiction

The jurisdiction of this Court is invoked pursuant to 
28 U.S.C. §1254(1).

Question Presented

Whether the decisions of the courts below requiring the 
implementation of school desegregation plans that would 
effectively dismantle a dual school system are in accord 
with this Court’s decision in Swann v. Charlotte-MecJclen- 
berg Board of Education, 402 U.S. 1 (1971).

Statement

The statements in the Petitions for Certiorari filed by 
the School Board and by a group of intervenors are notice­
ably deficient in setting out the facts of this case. Those 
facts are contained in the opinions of the district court 
and the Court of Appeals and will be only briefly sum­
marized here.

1. The Jefferson Parish School District was segregated 
pursuant to the law of the State of Louisiana prior to the 
decision of this Court in Brown v. Board of Education, 347 
U.S. 483 (1954). No steps whatsoever were taken to dis­
mantle the dual school system until the filing of the pre­
sent action in 1964 (ten years after Brown.)

2. No desegregation plan in the history of this litigation 
has been entered voluntarily by the School Board. At 
every stage the district court has had to require the School



3

Board to submit a plan that complied with the then cur­
rent standards for school desegregation plans. The most 
recent round of this litigation, the one involved here, re­
sulted from the decision of this Court in the Swann case.

3. Prior to the present plan the School Board had been 
operating under essentially a “neighborhood school” plan 
based on geographic zones. Under that plan 19 of the 75 
schools in the system, or 25%, were either all or virtually 
all of one race. Twenty-one percent of the pupils in the 
system attended these 19 schools.

4. Similarly, there were substantial imbalances in the 
racial makeup of faculties in the schools in the system, wTith 
many of the schools having faculties that were predomi­
nantly of one race.

5. Because the existing plan did not comply with the 
standards established by this Court in Swann, United 
States v. Montgomery County Bd. of Ed., 395 U.S. 225 
(1969), and prior decisions, the plaintiffs filed a motion 
for further relief requesting that the School Board be re­
quired to submit a plan that would take into account the 
racial makeup of the school system as a whole, that would 
eliminate the all-one race schools and that would result in 
the makeup of faculties and student bodies that were rea­
sonably close to the system-wide ratios.

6. The district court, pursuant to the dictates of Swann, 
entered precisely such an order. It took into account racial 
ratios only for the purpose of assuring the end of one- 
race or predominantly one-race schools. No rigid racial 
ratio was fixed or adhered to. Thus, in elementary schools 
the percentage of black students would range from 10 to 
38 percent. In junior highs the range would be from 13



4

to 40 percent. 332 F.Supp. at 591 (App. to this Brief, p. 
2a).

The School Board and the intervenors appealed the 
order of the district court and it was affirmed by the Fifth 
Circuit on February 11, 1972. Prior to the affirmance by 
the Court of Appeals the School Board had asked that 
court for a stay of the implementation of the district court 
order. When the Court of Appeals denied the stay, appli­
cation was made to Mr. Justice Marshall, acting as Circuit 
Justice for the Fifth Circuit. He denied the stay on August 
30, 1971, 404 U.S. 1219, citing Alexander v. Holmes County 
Board of Education, 396 U.S. 19 (1969), and subsequent 
decisions. As Mr. Justice Marshall pointed out:

There are no unusual circumstances in this case. The 
schools involved have been mired in litigation for seven 
years. Whatever progress toward desegregation has 
been made apparently, and unfortunately, derives only 
from judicial action initiated by those persons situated 
as perpetual plaintiffs below. 404 U.S. at 1220.

In its February 11, 1972 decision the Court of Appeals 
held that the district judge in all respects had complied 
with the requirements of Swann. It pointed out that under 
the plan only 3,000 additional students were to be bused 
in contrast to the 23,000 bused in Swann. Moreover, the 
average daily round trip in the present case would be only 
seven miles whereas in Swann it would be 15 miles. Thus, 
under the rule of Swann the district court had acted fully 
within its discretion in fashioning an appropriate remedy 
to bring about a final end to a dual system of schools.



5

Reasons Why the Writ Should Be Denied

In essence, the petitioners in both of these cases are 
asking no more and no less than that this Court reconsider 
and overrule its unanimous holding in Swann. They point 
to no facts that distinguish the present case from Swann. 
They make the bald assertion that the 19 one-race schools 
which the district court required to be desegregated were 
the result of housing patterns over which the School Board 
had no control. No facts are set out to support this allega­
tion, or to show that these schools, which have always been 
one race, are not vestiges of the dual system. Therefore, 
as the district court held, 332 F. Supp. at 594 (App. to this 
Brief, pp. 6a-7a), the School Board clearly did not comply 
with the rule of Swann:

Where the school authority’s proposed plan for con­
version from a dual to a unitary system contemplates 
the continued existence of some schools that are all or 
predominantly of one race, they have the burden of 
showing that such school assignments are genuinely 
nondiscriminatory. The court should scrutinize such 
schools and the burden upon the school authorities will 
be to satisfy the court that their racial composition 
is not the result of present or past discriminatory 
action on their part. 402 U.S. at 26.

The School Board did not so satisfy the district court 
and neither of the petitioners here have presented any evi­
dence or any argument that would show that the court’s 
conclusion was erroneous.1 In short, as the Court of Ap­
peals pointed out, “the real thrust” of the argument of the

1 As the Court of Appeals pointed out, the school board did no 
more than make “ an allusion to housing patterns.” 456 F.2d at 
553 (App. to cert, petition in No. 71-1474, pp. lOa-lla).



6

School Board and the intervenors “ is a plea for neighbor­
hood schools.” 456 F.2d at 553 (App. to Petition for Cer­
tiorari in No. 1474, p. 10a). Such a plea has already been 
rejected by this Court in Swann.

Finally, the petitioners spend some time in rearguing 
another question laid to rest by this Court’s decision in 
Sivann, viz., that 42 U.S.C. § 2000c limits the power of 
federal courts to require transportation in school deseg­
regation cases brought under the Fourteenth Amendment. 
They present no new arguments and no substantial rea­
sons why this Court’s considered judgment on that issue 
in Swann should be abandoned.

CONCLUSION

For the foregoing reasons, the petitions for writ of cer­
tiorari should be denied.

Respectfully submitted,

J ack Greenberg 
James M. Nabrit, III 
Charles Stephen R alston 
Norman Chachkin

10 Columbus Circle
New York, New York 10019

A. M. Trudeau, Jr.
1125 No. Claiborne Avenue 
New Orleans, Louisiana 70116

L ionel R. Collins
713 West Bank Expressway 
Gretna, Louisiana

Attorneys for Respondents



la

APPENDIX

Opinion o f District Court, August 13, 1971

REASONS FOR RULING 
Christenberry, District Judge.

Pursuant to this court’s order of July 9, 1971, the de­
fendant, Jefferson Parish School Board, submitted a new 
desegregation plan on August 2, 1971, to cover the ele­
mentary and middle schools of Jefferson Parish, Louisiana, 
commencing with the 1971-1972 school year. It was the 
School Board’s opinion that the plan was not educationally 
sound and not constitutionally required and, therefore, the 
Board did not recommend the plan. The court has studied 
the plan and has held open-court hearings on August 7 
and 9, 1971, to determine whether the plan complies with 
constitutional requirements and whether it can feasibly be 
implemented.

In the school year ending in June, 1971, the School Board 
was operating 75 public schools in Jefferson Parish, and 
serving 63,000 pupils. Approximately 80 percent of these 
pupils are white and 20 percent are black. The evidence 
presented prior to the order of July 9, 1971 demonstrated 
that the Parish school system contained 19 one-race or 
virtually one-race schools, more than one-fourth of the 
total number of public schools in the Parish. It was further 
shown that approximately 13,000 pupils or 21 percent of 
the total, attended these one-race schools. It was this 
court’s opinion then and it is now that the perpetuation of 
this degree of segregation negated the School Board’s ar­
gument that it had completely abandoned its dual system 
of public education.

Under the new plan submitted by the School Board a 
creditable effort has been made to integrate all public



2a

schools in Jefferson Parish so that no school is racially 
identifiable. Relying on the information made available by 
the School Board, the plaintiffs unqualifiedly endorsed the 
plan and asked that it be adopted by this court. Based on 
anticipated enrollments, the plan would integrate the Parish 
elementary schools in varying white-black ratios that range 
from ten percent black pupils in some schools up to 38 
percent black pupils in others. The integration of middle 
(junior high) schools would vary from 13 percent black 
pupils to 40 percent black pupils. The court had directed 
that the School Board be guided by the racial balance prin­
ciple but at the same time minimize busing and preserve 
geographic zoning criteria as much as possible by the use 
of other means of school desegregation. To this end the 
Board, in formulating its plan, altered boundaries for ele­
mentary and middle school attendance zones and thus 
limited busing to a maximum of an additional 3,000 pupils. 
The resulting variance in percentages is in this light un­
derstood. Racial housing patterns and natural and non­
natural geographic barriers also, of course, help explain 
these variances. Inasmuch as the Parish serves approxi­
mately 63,000 pupils, 13,000 of which were formerly in 
one-race schools, a plan that integrates all previously one- 
race schools while requiring busing for no more than 3,000 
additional pupils, less than five percent of the total, is not 
considered by this court to place a severe burden on the 
School Board.

Of these 3,000 additional children that may be subject 
to busing, the School Board presented evidence to the effect 
that 90 percent are black. While it would be impermissible 
for the Board, in complying with a constitutional duty, to 
place, a heavier burden on one race by design, there was 
no showing of bad faith in this regard. Plaintiffs’ counsel, 
moreover, saw no reason to object to the plan for this (or 
any other) reason.



3a

Evidence was also received at the August 9th hearing 
concerning logistical difficulties that the Board anticipates 
would result from the institution of the new plan. A wit­
ness for the Board testified that from 20 to 30 additional 
buses would be required. It is pertinent, however, that the 
Parish does not buy or own any of the buses used to trans­
port pupils to and from school. Instead, bus drivers are 
employed who provide their own buses and they are paid 
by the state approximately $7,000.00 per annum. The Par­
ish School Board then supplements each driver’s salary by 
$305.00 per annum, meaning that the additional cost in 
transportation to the Parish, if in fact 30 additional buses 
are needed, would be approximately $9,150.00. In addition, 
there was testimony to the effect that new buses are not 
readily available and that difficulties will be encountered 
in notifying parents and children of new school assignments. 
While the court deems this evidence relevant to the feasi­
bility of adopting a new plan, such evidence is not of para­
mount consideration where constitutional rights are at 
stake and where the law, for a number of years, has clearly 
charged school boards “with the affirmative duty to take 
whatever steps might be necessary to convert to a unitary 
system in which racial discrimination would be eliminated 
root and branch.” Green v. County School Board, 391 U.S. 
430, 437-438, 88 S.Ct. 1689, 1694, 20 L.Ed,2d 716 (1968). 
The fact that a temporary, albeit difficult, burden may be 
placed on the School Board in the initial administration 
of the plan or the fact that some schools may not begin 
the school year in a routinely smooth fashion does not 
justify in these circumstances the continuation of a less 
than unitary school system and the resulting denial of an 
equal educational opportunity to a certain segment of the 
Parish school children.

Evidence presented at the August 9th hearing also indi­
cated that under the plan the average daily roundtrip dis­



4a

tance for the additional pupils to be bused will be about 
seven miles as opposed to a previous average roundtrip 
distance of about two and a half miles for pupils already 
being transported. One witness testified that the longest 
roundtrip distance for any child will be 14 miles and that 
the time for this roundtrip would be one hour. Busing has 
for many years been widely used in Jefferson Parish due 
to the suburban and semi-rural nature of the area. It is 
the practice of the School Board to provide transportation 
for all pupils living more than a mile from school and for 
those living less than a mile from school if a safety factor 
is involved. While the court is cognizant of the complica­
tions that can arise from busing young children, the burden 
in this set of circumstances again does not appear excessive 
for either the children, their parents, or the School Board. 
There is little room for doubt that much of the busing 
which is required in Jefferson Parish is due to the past 
practices of a dual system, the vestiges of which have 
lingered on.

As the Supreme Court stated in Swann v. Charlotte- 
Mecklenburg Board of Education, 402 U.S. 1, 31, 91 S.Ct. 
1267, 1283, 28 L.Ed.2d 554 (1971), “ [desegregation plans 
cannot be limited to the walk-in-school.” In Swann the 
average roundtrip distance that elementary children were 
transported was twice that of this case. The Supreme 
Court gave approval to that plan and to busing as a per­
missible tool of school desegregation. The relevant factors 
to be considered for the approval of a plan that entails 
some busing are the time and distance of travel, the age 
of the pupils, the capacity of the school system to provide 
transportation, and the extent to which busing has previ­
ously been a characteristic of the system. Considering all 
of these factors, the court finds that the busing called for 
in the School Board’s plan is reasonable and workable.



5a

More importantly, tlie plan should establish a genuinely 
unitary school system that will be realistic and effective.

Finally, the School Board, in not recommending the plan, 
contends that a unitary system has existed in Jefferson 
Parish since 1969 and that all of the existing one-race or 
virtually one-race schools are the result of de facto segre­
gation and, therefore, the school system is not susceptible 
to the type of relief sought by plaintiffs. For the reasons 
set forth below, this contention is unfounded and erroneous.

It is true that the mandate of the Fourteenth Amend­
ment’s equal educational opportunity principle to eliminate 
dual-system education and to establish workable and effec­
tive unitary systems is directed only to de jure segrega­
tion. Swann v. Charlotte-Mecklenburg Board of Education, 
supra; Green v. County School Board, supra; Brown v. 
Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 
873 (1954). This mandate, however, does not cease merely 
because school authorities in a system with a history of 
school segregation undertake some desegregation, but 
rather the duty continues until all vestiges of the de jure 
system are eradicated. While the point at which this occurs 
may not always be easily discernible, the need for further 
relief in the Jefferson Parish system is clear. As stated 
above, the segregation of 19 of the 75 Parish schools has 
remained intact, meaning that over one-fifth of the pupils 
served by the Parish remain in a segregated school environ­
ment.

Beginning with the 1965-1966 school year, by this court’s 
order, the compulsory dual school system of Jefferson 
Parish was formally discontinued and a plan was imple­
mented which embodied the freedom-of-choice concept. 
Because of this plan’s ineffectiveness and in accordance 
with Green, supra, this court adopted another plan com­
mencing with the 1969-1970 school year and ordered the 
Board to operate a unitary, non-discriminatory system. At



6a

that time the extent of the court’s remedial power in deal­
ing with the vestiges of a dual and unconstitutional school 
system was undefined. In the Swann decision, however, the 
Supreme Court squarely confronted this issue and dis­
cussed the means that are within the discretionary use of 
a district court for the elimination of the remnants of 
state-imposed segregation. The fact that the School Board 
may have been under the impression that a unitary system 
was in operation in Jefferson Parish and the fact that the 
Board complied with the 1969 order is not grounds for a 
denial of further relief here. “ [Wjhatever plan is adopted 
will require evaluation in practice, and the court should 
retain jurisdiction until it is clear that state-imposed seg­
regation has been completely removed.” Green, supra, 391 
U.S. at 439, 88 S.Ct. at 1695.

The contention of the School Board that the persistence 
of one-race schools should be attributed to residential hous­
ing patterns and therefore should be labeled de facto 
segregation is to by-pass the realistic view that the former 
dual system has never been fully dismantled. That the 
court now finds that further relief must be granted is not 
to say that the School Board has not been operating in 
good faith, but rather it is based upon an evaluation of 
the system’s operations prior to and since 1969 in juxta­
position to Swann.

It is the court’s duty now to try to ensure that the relief 
rendered will fully comport with constitutional require­
ments and thus at last establish a unitary system. To this 
end the court feels that the one-race schools in the Parish 
can no longer be tolerated. When a school board under­
takes to convert a dual system into a unitary system with 
the result that a substantial number of one-race schools 
remain, then it is presumed that the conversion has been 
incomplete. To rebut this presumption, it was incumbent 
upon the School Board officials to show that these one-race



7a

schools are “not the result of present or past discrimina­
tory action on their part.” Swann, supra, 402 U.S. at 26, 
91 S.Ct. at 1281.

The only evidence that the school officials mustered to 
refute this presumption of continued de jure segregation 
was an allusion to housing patterns. In view of the Parish’s 
past history of officially sanctioned school segregation and 
because these schools cannot be said to have been de­
segregated and then resegregated by shifting population 
trends the court is not persuaded that this is a de facto 
situation. In reply to the argument that school authorities 
with a history of de jure segregation need only devise a 
colorblind assignment plan, the Supreme Court stated in 
Swann, supra, 402 U.S. at 28, 91 S.Ct. at 1282:

“ ‘Racially neutral’ assignment plans proposed by school 
authorities to a district court may be inadequate; such 
plans may fail to counteract the continuing effects of 
past school segregation resulting from discriminatory 
location of school sites or distortion of school size in 
order to achieve or maintain an artificial racial sep­
aration. When school authorities present a district 
court with a ‘loaded game board,’ affirmative action in 
the form of remedial altering of attendance zones is 
proper to achieve truly nondiscriminatory assignments. 
In short, an assignment plan is not acceptable simply 
because it appears to be neutral.”

Applying this doctrine and remembering that “ [tjhe mea­
sure of any desegregation plan is its effectiveness,” Davis 
v. Board of School Commissioners, 402 U.S. 33, 37, 91 S.Ct. 
1289, 1292, 28 L.Ed.2d 577 (1971), the court finds that the 
1969 plan was inadequate and must be superseded by the 
new plan.

In accordance with Swann, if the implementation of this 
plan results in full compliance with the Brown decision,



then the School Board will be relieved from making fur­
ther adjustments in school desegregation. 402 U.S. at 31- 
32, 91 S.Ct. 1267. It is hoped that this plan, coupled with 
the Board’s good faith, will make future adjustments un­
necessary by this court’s order. Good faith encompasses, 
inter alia, strategically selecting the construction sites of 
future schools so that desegregation will be enhanced; the 
number of pupils to be accommodated by new schools; and 
by the old schools that the School Board decides to aban­
don. A  recurring problem for a court in adopting a deseg­
regation plan is often the foreseeability of resegregation. 
The Board is therefore charged with the duty of pursuing 
a school construction and abandonment policy which will 
in all respects enhance and facilitate desegregation. See 
Swann, supra, 402 U.S. at 20-21, 91 S.Ct. 1267.

The court feels constrained at this point to address briefly 
the doubts raised by counsel for the School Board concern­
ing the continued quality of public education in the Parish 
school system. The attitude of the public has all too often 
reflected an unwillingness to make a short-term sacrifice 
in public education in order to achieve important long- 
range goals; namely, an equal education for persons of 
all races, and, correspondingly, an equal opportunity for 
all persons to enter the economic mainstream of American 
life. In this case, however, the burden to be incurred by 
the defendant School Board in implementing this plan is 
so de minimis in and of itself and compared with other 
school desegregation cases that the court does not agree 
that any decrease in the quality of education should re­
sult from this plan. In addition, the guarantee of an equal 
educational opportunity is in no way limited to the central 
city of a metropolitan community, but is equally applicable 
to suburban areas. In other words, suburban school boards 
are not immunized from the responsibilities of the Four­



9a

teenth Amendment even though it means facing problems 
that have long beset the adjacent central city.

In accordance with these written reasons, plaintiffs’ mo­
tion for further relief is granted and the plan submitted 
by the Jefferson Parish School Board on August 2, 1971, 
is adopted. The court entered its order to this effect on 
August 10, 1971.



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