Letter from Lani Guinier to Theodore Landsmarke

    ^-STZVO

1st the

(£mxt of %  Htttteb Platts
October T erm, 1972

No. 72-79
County B oard oe E ducation oe R ichmond County, 

Georgia, et al.,
Petitioners,

vs.

R obert L. A cree, et al.

No. 72-167
A nn Gunter Drummond, et al., 

vs.
Petitioners,

R obert L. A cree, et al.

P E T IT IO N S  FO R  W R IT S  OE C E R T IO R A R I TO T H E  U N IT E D  ST A T E S 
C O U R T  OF A P P E A L S  F O R  T H E  F IF T H  C IR C U IT

BRIEF IN OPPOSITION TO CERTIORARI

J ohn H. R uffin, Jr.
1101 11th Street 
Augusta, Georgia 30903

J ack Greenberg 
J ames M. Nabrit, III 
Charles Stephen R alston 
Norman J. Chachkin 
Sylvia Drew

10 Columbus Circle
New York, New York 10019

Attorneys for Respondents 
R obert L. A cree, et al.



I N D E X

PAGE

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

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

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

Statement ........................................................................... 2

Reasons Why the Writs Should Be Denied..................  3

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

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



I n  th e

i a t y n w  (U m trt a f  tit?  Iln ita jb  0 t a i i ^

Octobee T eem, 1972

No. 72-79
County B oaed oe E ducation of R ichmond County, 

Georgia, et al.,
Petitioners,

vs.

R obebt L. A ceee, et al.

No. 72-167
A nn Gunter Drummond, et al., 

vs.
Petitioners,

R obebt L. A cree, et al.

P E T IT IO N S  FO B  W R IT S  OF C E R T IO R A R I TO T H E  U N IT E D  ST A T E S 

C O U RT OF A P P E A L S  F O R  T H E  F IF T H  C IR C U IT

BRIEF IN OPPOSITION TO CERTIORARI

Opinions Below

The opinion of the United States Court of Appeals for 
the Fifth Circuit is reported at 458 F.2d 486 and the opin­
ion of the United States District Court for the Southern 
District of Georgia at 336 F. Supp. 1275.



2

Jurisdiction

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

Questions Presented

These two petitions for writs of certiorari to review the 
same judgment of the United States Court of Appeals for 
the Fifth Circuit, one filed by the school authorities of 
Richmond County, Georgia and one filed by a group of 
white parents who intervened in this school desegregation 
action which had been pending since 1964, each present 
basically the same claim: that the order of the district 
court, as affirmed by the Court of Appeals, directing im­
plementation of a pupil desegregation plan of which trans­
portation was an integral part is unauthorized by the prin­
ciples elucidated in Swann v. Charlotte-Mecklenburg Board 
of Education, 402 U.S. 1 (1971) because (a) the plan is 
projected to achieve at each elementary school a student 
body of racial composition so nearly identical as to merit 
description as a “racial balance” plan; and (b) the time, 
distance and expense of the transportation which would be 
required to implement the order is so great as to be beyond 
the sort of plans contemplated by this Court in Swann. 
The petition in No. 72-167 also raises certain questions 
with respect to a recently enacted statute which have never 
been presented to any court in the context of this case and 
which, in any event, have no bearing upon this case.

Statement

We shall not belabor the facts by adding materially to the 
already lengthy statements set out in the Petitions; the 
clearest and most cogent description of the history of this



3

school desegregation case is to be found in the district 
court’s order, reprinted at pages A-7 through A-32 of the 
Appendix to the Petition in No. 72-167.

After this Court’s decision in Swann, supra, a pending 
appeal in the United States Court of Appeals for the Fifth 
Circuit was remanded to the district court with instruc­
tions “forthwith to constitute and implement a student and 
faculty assignment plan that complies with the principles 
established in Swann v. Charlotte-Mecklenburg Board of 
Education . . . ” Acree v. County Board of Education, 443 
F.2d 1360. At that time, the public schools of Richmond 
County, Georgia operated upon a strict geographic zoning 
student attendance plan, under which traditionally black 
and white schools retained their racial identities. (See 336 
F. Supp. at 1277-78, Appendix to Petition in No. 72-167, 
pp. A-12 through A-13). Following a series of conferences, 
hearings, and opportunities afforded respondents to pre­
pare and propose a desegregation plan for the Richmond 
County schools which would meet constitutional standards, 
(none of which were acted upon), the district court (pur­
suant to the authority confirmed by Swann) appointed its 
own experts to suggest alternative desegregation plans, 
and approved one of such plans for implementation on a 
phased basis, with complete implementation to occur effec­
tive with the commencement of the 1972-73 school year.

All parties appealed and on March 31, 1972 the judgment 
of which review is sought, affirming the district court order 
with a modification only as to timing, was entered.

Reasons Why the Writs Should Be Denied

These petitions do little more than simply ask this Court 
to overrule its decision in Swann because once again a 
school board and some of its white patrons do not desire 
effective desegregation of the public schools. The vaunted



4

“ racial balance” supposedly to be achieved by implemen­
tation of the district court’s order is hardly the “wooden 
resort to racial quotas” which this Court held in Swann 
was not required to remedy the denial of Fourteenth 
Amendment rights. See Drummond v. Acree, No. A-250 
(September 1, 1972) (Mr. Justice Powell, Circuit Justice), 
page 3.

Both Petitions list the overall population ratios of the 
various zones within which individual schools are paired 
(Petition in No. 72-79, pp. 9 and 10; Petition in No. 72-167, 
p. 10) rather than demonstrating the variation between 
the populations of each school. These are shown in the 
projections submitted by the court-designated experts (re­
printed at pp. A-39 through A-54 of the Appendix to the 
Petition in No. 72-167). The individual schools are pro­
jected to range from 28.7% black (p. A-48) to 50% black 
(p. A-42). While this range is not quite so large as that 
in Charlotte, it is Petitioners, and not the plaintiffs or 
either of the Courts below, who are here exaggerating 
numbers far beyond their significance.

Whatever one’s view of the range in racial breakdowns 
among schools from 28 to 50%, the plan ordered imple­
mented by the district court was not designed to come as 
close to the system-wide ratio in Richmond County as 
possible. In fact, it was not prepared from data listing 
the race, residence and grade level of every student in the 
system (which would have permitted its draftsmen to de­
sign zones for individual or paired schools so as to bring 
about a far closer tolerance among the various schools) 
but was based simply upon combining the previously exist­
ing zones for each school, which had been drawn by the 
county school authorities, and altering their grade struc­
tures through contiguous and non-contiguous pairing and 
clustering, in accordance with their capacities and the need 
to bring about some real desegregation.



5

Frankly, it is difficult to understand the exaggerated 
claims in both Petitions that this is a racial balance plan. 
The explicit holdings to the contrary by both courts below 
are clearly correct; the mandates of this Court in Swann 
received only respectful application by a district court oper­
ating under great pressure and "without cooperative assis­
tance from the school authorities,1 and a Court of Appeals 
intimately familiar with the issues in school desegregation 
cases.

In a similar vein, the Petitions are filled with claims that 
the transportation of school children required under this 
plan is far greater in distance, time and expense than that 
approved by the Court in Swann. Curiously there is not 
a single reference to any evidence concerning these matters 
in either Petition but merely the sort of ad hoc claim that 
a round trip of 11.8 miles in Richmond County will take 
two hours a day (Petition in No. 72-79, p. 8). There may 
be some practical problems in implementing the desegre­
gation plans, but not only will “a good faith effort by the 
school board . . . overcome any logistical problems that 
might arise,” 458 F.2d at 488, but neither the decree of the 
district court nor the judgment of the Court of Appeals 
in any way restricts the parties from seeking modifications 
should insuperable, practical difficulties arise when the 
plan is actually implemented. See Kelley v. Metropolitan 
County Board of Education, No. 71-1778 (6th Cir., May 30, 
1972) at pp. 22-25 (reprinted as Appendix A ).2

In short, none of the Petitioners have raised significant 
claims of any substance to the effect that the lower courts 
exceeded the equitable remedial powers described in Swann,

Here, as in Swann, the exercise of remedial authority by the 
district court was prompted by the total default of school officials.

2 Thus intervenors should present any “less rending” (Petition in 
No.̂  72-167, p. 16) but equally effective elementary school desegre­
gation plan to the district court.



6

and only the overruling of that unanimous decision could 
justify altering the judgment below.

Finally, the Petitioners in No. 72-167 make some sugges­
tions that Sections 805 and 806 of the Education Amend­
ments of 1972, P.L. 92-138, somehow affect this litigation. 
As to Section 805, there is not a whisper of a suggestion 
in the Petition that the trial court employed any non- 
uniform rule of evidence in reaching its result; and with 
regard to Section 806, we are unable to fathom any sug­
gestion in this Court’s Swann decision that it would not 
apply its interpretation of 42 U.S.C. § 2000c-6 in any ap­
propriate case no matter in what jurisdiction it arose. In 
any event, that section applies or does not apply to this 
case in exactly the same manner as it did in Swann.

CONCLUSION

For the foregoing reasons, respondents Acree, et al. 
respectfully pray that the writs of certiorari be denied.

Respectfully submitted,

J ohn H. R uffin, Jr.
1101 11th Street 
Augusta, Georgia 30903

J ack Greenberg 
J ames M. Nabrit, III 
Charles Stephen R alston 
Norman J. Chachkin 
Sylvia D rew

10 Columbus Circle
New York, New York 10019

Attorneys for Respondents 
R obert L. A cree, et al.



APPENDIX



la

Appendix A to Brief in Opposition to Certiorari

Nos. 71-1778-79

UNITED STATES COURT OF APPEALS 
F ob the Sixth Circuit

R obert W . K elley, et al.,
H enry C. Maxwell, Jr., et al.,

Plaintiffs-Appellees, 
v.

Metropolitan County B oard of E ducation of Nashville 
and Davidson County, T ennessee, C. R. D orrier, 

Chairman, et al.,

Defendants-Appellants.

A P P E A L  F R O M  T H E  U N IT E D  ST A T E S D IST R IC T  C O U RT FOR T H E  

M ID D L E  D IS T R IC T  O F T E N N E S S E E , N A S H V IL L E  D IV ISIO N

Decided and Filed May 30, 1972

Before:
E dwards, Celebrezze and McCree,

Circuit Judges.
# «  *  # *

III P ractical P roblems

If there is an appellate issue of substance in this appeal, 
it is to be found in the practical problems which appellants



2a

claim have developed since the entry of the District Judge’s 
order. Appellant summarizes these issues thus:

A plan which exposes the children in the school 
system to undue danger to health and accident, inter­
feres with their education by requiring excessive 
periods of time on buses, causes them to leave home 
before daylight or to return home after dark, exposes 
them to the dangers of travel in old and inadequately 
maintained equipment and causes elementary school 
children, both black and white, to suffer hardships to 
which young children should not be exposed can hardly 
be termed feasible, workable, effective and realistic.

Substantial as these problems appear to be on the sur­
face, there are two reasons why no relief can be granted 
in this forum. The first is that no motion for relief per­
taining to these facts has ever been filed by appellant in 
the District Court. These statements at this point are al­
legations and they are controverted by the appellee. This, 
of course, is an appellate court—not a trial court. As appel­
lants well know, the arena for fact-finding in the federal 
courts is the United States District Court. Until these 
claims have been presented in a trial court, with an oppor­
tunity for sworn testimony to be taken and controverted 
issues and facts decided by the processes of adversary 
hearing, this court has no jurisdiction.3

s During the pendency of an appeal, jurisdiction of the case lies, 
of course, in the appellate court. There is, however, familiar law 
to deal with an unexpected problem which arises in this period 
concerning the actual terms of the order or judgment under appeal. 
The District Court may on being apprised of the problem and 
having determined its substantiality (with or without hearing) 
certify to the appellate court the desirability of a remand for com­
pletion or augmentation of the appellate record. No memory in this 
court encompasses a refusal of such a request.

The record is clear that no request for remand was made by 
the District Court, obviously, at least in part, because appellants 
made no motion for relief before the District Court.



3a

The second reason as to why appellants are entitled to no 
relief on this issue probably serves to explain the first. The 
entire “record” upon which appellant bases his plea for 
relief as to practical problems is a “Report to the Court” 
of Dr. Brooks, Director of Schools of the Metropolitan 
County Board of Education. This report is dated Octo­
ber 18, 1971, just over a month after the opening of school. 
While we are advised that it was sent to the District Judge, 
as we have noted, no motion of any kind seeking any Dis­
trict Court action was ever filed concerning it. Even more 
important, the statement on its face suggests that local 
authorities in Nashville and Davidson County have not 
made good faith efforts to comply with the order of the 
District Judge.

Dr. Brooks’ affidavit does present this exculpatory ex­
planation which serves to point in the direction of other 
authorities as those responsible for the inconveniences and 
hazards of which Dr. Brooks’ statement speaks. The state­
ment says:

The School Board is fiscally dependent in that its 
budgets must he approved by the Metropolitan City 
Council. In approving the budget of the School Board 
on June 30,1971, Council members demanded assurance 
that no funds included in the budget would be used to 
purchase buses for the purpose of transporting students 
to establish a racial balance. The 1971-72 budget did 
provide for the purchase of 18 large buses to replace 
obsolete equipment to provide transportation for stu­
dents to the new comprehensive McGfavock High School.

It is clear, however, that neither the Metropolitan City 
Council or, for that matter, the Legislature of Tennessee 
can forbid the implementation of a court mandate based 
upon the United States Constitution. In a companion case 
to Swann, supra, Chief Justice Burger, writing again for



4a

a unanimous court, held that an anti-busing law which 
flatly forbids assignment of any student on account of race 
or for the purpose of creating a racial balance or ratio in 
the schools and which prohibits busing for such purposes, 
was invalid as preventing implementation of desegregation 
plans required by the Fourteenth Amendment. North Caro­
lina State Board of Education v. Swann, 402 IT.S. 43, 45-46 
(1971). See also Cooper v. Aaron, 358 U.S. 1 (1958).

Dr. Brooks’ statement also furnishes the bus schedule of 
the Metropolitan County Board of Education by yearly 
models. It shows that the Board has an average of 18.9 
buses for each of the last 10 model years. The 18 buses 
purchased in 1971 were described by Dr. Brooks as “ to 
replace obsolete equipment.” It appears from the Metro­
politan Board’s own statements that the Board and the 
local authorities in Nashville did not purchase one piece 
of transportation equipment for the purpose of converting 
the Metropolitan County Board of Education school system 
from a dual school system segregated by race into a unitary 
one, as called for by the District Judge’s order.

At court hearing we had been puzzled as to why counsel 
for the Board had failed to go back to the District Court to 
report on the grievous circumstances which he so strongly 
alleged before us. Like most decrees in equity, an injunc­
tive decree in a school segregation case is always subject 
to modification on the basis of changed circumstances. 
Sloan v. Tenth School District of Wilson County, 433 F.2d 
587, 589-90 (6th Cir. 1970). Further acquaintance with the 
record, which, of course, the District Judge would have 
known in detail, leaves us in no further quandry as to the 
reasons for counsel’s reluctance.

*  *  # # *



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