City of New Rochelle Board of Education v. Taylor Respondents' Brief in Opposition to Petition for Writ of Certiorari

    In the

Supreme GJourt of the llutteh States
October T erm, 1961 

No. 518

B oard of E ducation of the City S chool D istrict of the 
City of New  R ochelle, et al.,

Petitioners,
-v -

L eslie T aylor and K evin T aylor, Minors by W ilbert 
T aylor and H allie T aylor, their parents and next 
friends, et al.,

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION TO 
PETITION FOR WRIT OF CERTIORARI

Constance Baker M otley 
10 Columbus Circle 
New York 19, New York

Jack Greenberg

10 Columbus Circle 
New York 19, New York

Attorneys for Respondents

Paul Z uber 
Of Counsel



I N D E X

S ubject I ndex

page

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

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

Constitutional Provisions Involved ..............................  2

Statement of the Case ...................................................... 2

A bgument :

I. The petition for writ of certiorari raises 
questions of fact which have been decided 
adversely to petitioners by two courts........... 7

II. This Court’s decisions in the school segrega­
tion cases apply to all state perpetuated ra­
cial segregation in the public schools ............  10

Conclusion ..................................................................................... 13

T able of Cases

Board of Education of the City School District of the
City of New Rochelle, et al. v. Taylor, et al., ------
U. S . ------ , 30 L. W. 2114..............................................  7

Boson v. Rippy, 285 F. 2d 43 (5th Cir. 1960) .............  9
Brown v. Board of Education of Topeka, 347 U. S.

483 (1954) ................................................................... 2,9,10
Brown v. Board of Education of Topeka, 349 U. S.

294 (1955) ..................................................................2,10,12

Cooper v. Aaron, 358 U. S. 1 (1958) .....................2, 9,10,12



11

PAGE

General Talking Pictures Corp. v. Western Electric
Co., 304 U. S. 175 (1938) .............................................. 9

Graver Tank & Mfg. Co. v. Linde Air Products Co.,
336 U. S. 271 (1949) .....................................................  9

McEwan v. Brod, 91 N. Y. Supp. 2d 565 (1949) .......  5
McEwan v. Brod, 97 N. Y. Supp. 2d 917 (1950) ....... 5

Taylor, et al. v. Board of Education of the City School 
District of the City of New Rochelle, et al., 294
F. 2d 36 (2nd Cir. 1961) ..........................................1,4,6

Taylor, et al. v. Board of Education of the City School 
District of the City of New Rochelle, et al., 288
F. 2d 600 (2nd Cir. 1961) ............................................  3

Taylor, et al. v. Board of Education of the City School 
District of the City of New Rochelle, et al., 191
F. Supp. 181 (S. D. N. Y. 1961) ............................ 3,10,12

Taylor, et al. v. Board of Education of the City School 
District of the City of New Rochelle, et al., 195 
F. Supp. 231 (S. D. N. Y. 1961) .......................... 1, 3, 6,11



In t h e

*$>upr£m? (flflurt nf tljp States
October T erm, 1961 

No. 518

B oard of E ducation of the City School D istrict of the 
City of New R ochelle, et al.,

Petitioners,
—v.—

L eslie T aylor and K evin T aylor, Minors by W ilbert 
T aylor and H allie T aylor, their parents and next 
friends, et al.,

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION TO 
PETITION FOR WRIT OF CERTIORARI

Opinions Below

The opinion of the United States Court of Appeals, 
Second Circuit, is now reported. Taylor, et al. v. Board 
of Education of the City School District of the City of 
New Rochelle, et al., 294 F. 2d 36 (1961).

The opinion of the District Court dealing with the plan 
is also now reported. Taylor, et al. v. Board of Education 
of the City School District of the City of New Rochelle, 
et al., 195 F. Supp. 231 (S. D. N. Y. 1961). The first 
opinion of the District Court is cited in the Petition.



2

Question Presented

Whether where the two courts below held that segrega­
tion at the Lincoln School was not a fortuity but was de­
liberately created and maintained by petitioner-school au­
thorities, principles enunciated by this Court in Brown 
v. Board of Education of Topeka, 347 U. S. 483 (1954), 
Brown v. Board of Education of Topeka, 349 U. S. 294 
(1955), and Cooper v. Aaron, 358 U. S. 1, 7 (1958) were 
properly applied?

The Constitutional Provisions Involved

This case involves the equal protection clause of the 
Fourteenth Amendment to the Constitution of the United 
States.

Statement of the Case

Petitioners seek review of the judgment of the United 
States Court of Appeals, Second Circuit, affirming the 
judgments of the United States District Court, Southern 
District, New York, which, relying primarily upon Brown 
v. Board of Education of Topeka, 347 U. S. 483 (1954), 
held that rights secured to infant respondents by the 
equal protection clause had been violated by petitioners in 
requiring respondents to attend the Lincoln elementary 
school in the City of New Kochelle.

The District Court’s holding was based upon two prin­
cipal findings: (1) petitioners had, prior to 1949, inten­
tionally created Lincoln School as a racially segregated 
school, and had not since then acted in good faith to achieve 
desegregation as required by the Fourteenth Amendment; 
and (2) petitioners’ conduct, since 1949, had been moti­
vated by the purposeful desire to maintain the Lincoln 
School as a racially segregated school.



3

These principal findings, affirmed by the court below, were 
supported by numerous more detailed findings in the first 
trial court opinion which, together with that court’s hold­
ing, formed the basis of a decree entered by it on Janu­
ary 24, 1961, suggesting that petitioners submit a plan, 
by April 14, 1961, for desegregating the Lincoln School, 
commencing with the 1961-62 school year. Taylor, et al. 
v. Board of Education of the City School District of the 
City of New Rochelle, et al., 191 F. Supp. 181 (S. D. N. Y. 
1961).

Petitioners appealed to the court below from this decree. 
Their appeal was dismissed as premature on April 13, 
1961. Taylor, et al. v. Board of Education of the City 
School District of the City of New Rochelle, et al., 288 F. 2d 
600 (2nd Cir. 1961).

Thereafter, on May 3, 1961, pursuant to an extension 
of time granted by the court below, plans were presented 
to the trial court. The plan of the majority of petitioner 
board provided for voluntary transfer of children re­
siding in the Lincoln School attendance area to any of the 
other eleven elementary schools in New Rochelle upon ful­
fillment of a number of conditions precedent. Most of these 
prerequisites were stricken by the court, for reasons set 
forth in its second opinion, and a decree was entered by it 
on May 31, 1961 directing implementation of the plan as 
judicially amended. Taylor, et al. v. Board of Education 
of the City School District of the City of New Rochelle, 
et al., 195 F. Supp. 231 (S. D. N. Y. 1961). A plan of the 
board minority also was proffered.1

1 The minority plan also embodied a permissive transfer provi­
sion for grades kindergarten through three but did not attach the 
majority’s numerous conditions. It provided for dispersal of grades 
four through six among other neighboring schools and for re­
building the Lincoln School on another site by 1964.



4

Petitioners again appealed to the court below. This 
time their appeal was heard on the merits and the judg­
ments of the trial court affirmed on August 2, 1961, one 
judge dissenting.

In affirming, the Court of Appeals ruled: “ A major 
finding of the court below was that the defendant School 
Board had deliberately created and maintained Lincoln 
School as a racially segregated school. This crucial find­
ing is, we conclude, supported by the record” (294 F. 2d 
at 38).

Succinctly, the facts of record upon which the major 
findings depend are:

1. In 1930, when the Webster School was opened, the 
district lines were gerrymandered to include white 
pupils in Webster who had been and who normally 
would have attended Lincoln. As Negroes moved 
into this area which had been included in the 
AVebster district, the area was restored to the 
Lincoln district. Later, pupils in the predominantly 
white Bochelle Park area in the Lincoln district 
were assigned to the Mayflower School (Appellees’ 
App. pp. 5b-9b).2

2. In conjunction with the policy of manipulating the 
district lines so that as few whites as possible 
would have to attend Lincoln, school authorities 
permitted white children living in the Lincoln dis­
trict to transfer freely to other schools, so that by 
1949, the Lincoln School was 100% Negro (Appel­
lees’ App. pp. 9b-12b, 65b, 73b).

2 “Appellees’ A pp .” refers to appendix to appellees’ brief below 
which is part of record sent to this Court in support of petition 
for writ of certiorari.



5

3. As a result of pressures exerted by community 
groups, the Board, on January 11, 1949, resolved 
to “ study present district lines with a view to 
setting up school districts in terms of the best in­
terests of all the children and of the most complete 
utilization of the present physical plant” 3 (Appel­
lants’ App. pp. 67a-68a).4 The resolution also pro­
vided, “ That as of September 1, 1949, district lines 
as set by the Board will be strictly adhered to ac­
cording to best educational practices,” and “ That 
effective at once all new entrants to the school 
system be admitted only to the school of the dis­
trict in which they legally reside.” As a result, 
a few whites returned to Lincoln.5 The enrollment 
there is now 94% Negro.

4. Thereafter, from 1949 to 1960, petitioners studied 
the Lincoln School problem (Appellants’ App. pp. 
72a-85a). They hired many specialists who made 
recommendations, but petitioners never took any 
action (Appellees’ App. pp. 52b-53b, 65b-66b). In 
1957 the Board proposed to rebuild Lincoln, which 
now is delapidated, on the same site without chang­
ing the lines or allowing transfers out, contrary to 
recommendations of specialists which the Board 
had employed. This proposal was defeated in 1957 
by referendum (Appellants’ App. p. 77a).

3 Resolution of January 11, 1949 is reprinted as Appendix D 
to Petition for W rit of Certiorari, App. p. 43.

4 “Appellants’ A pp .” refers to appendix to appellants’ brief in 
the court below which has been sent up to this Court as part of 
record in support of petition for writ of certiorari.

5 Some white parents whose children were affected sought, un­
successfully, to enjoin enforcement of the resolution on the ground 
that the Lincoln School curriculum was inferior. McEwan v. Brod, 
91 N .Y . Supp. 2d 565 (1949), 97 N .Y . Supp. 2d 917 (1950).



6

5. In 1959, the Board again proposed to rebuild 
Lincoln on the same site. This time, however, it 
proposed to build a smaller school, i.e., a school to 
accommodate only 400 pupils—Lincoln’s present 
enrollment is 483—and to distribute all those in 
excess of capacity presently enrolled or to be en­
rolled among other adjacent schools, contrary to 
petitioners’ own neighborhood school policy which 
they claim is violated by the trial court’s order. 
This proposal was approved in a special referen­
dum in May 1960 (Appellants’ App. pp. 86a-95a, 
98a).

6. In the 1960 referendum campaign, the issue, as 
defined by school personnel, was whether Lincoln 
should be continued as the City’s segregated school 
or whether all the children assigned thereto should 
be dispersed among adjacent schools—destroy­
ing the “ integrated balance”  in those schools (Ap­
pellees’ App. pp. 32b-52b, 64b).

The desegregation plan as amended by the trial court is 
set forth in its second decree (195 F. Supp. at 240). It 
was praised below as “ noteworthy for its moderation” 
(294 F. 2d at 39) and has been in effect since September 
1961.

Stay pending appeal of the order requiring implementa­
tion of the plan was denied by the trial court (195 F. Supp. 
at 238) and by the Court of Appeals (294 F. 2d at 40). 
A  stay of the mandate of the Court of Appeals was denied 
by it pending petition for writ of certiorari to this Court 
on August 17, 1961, one judge dissenting. Taylor, et al. 
v. Board of Education of the City School District of the 
City of New Rochelle, et al., No. 427, Docket 27055. A stay 
of the mandate was also denied by Mr. Justice Brennan



7

on August 30, 1961. Board of Education of the City 
School District of the City of New Rochelle, et al. v. 
Taylor, et al.,------U. S . ------- , 30 L. W. 2114.

A R G U M E N T

I.

The petition for writ of certiorari raises questions of 
fact which have been decided adversely to petitioners by 
two courts.

Petitioners seek to have this Court review and set aside 
the findings of the courts below that the Lincoln School 
segregation results from the deliberate acts of petitioners 
and not from happenstance.

The first question presented confirms this: “ Is This 
Truly a Segregation Case and Have Plaintiffs Been De­
prived of a Constitutional Right?” (Petition p. 2). For 
this Court to answer this question in the negative this 
Court would have to review and hold clearly erroneous 
the crucial constitutionally relevant findings of fact de­
cided adversely to petitioners by both courts below.

Again, petitioners say (Petition p. 21) “ Education in 
New Rochelle is offered on a non-discriminatory basis, 
and Exhibit M proves it mathematically (App. F ).” Ex­
hibit M is a chart showing enrollment in the New Rochelle 
schools. In the last column of this chart, the non-white 
percent of the total enrollment of each school is shown. 
These non-white percentages range from .25% in the Ward 
School to 94% in the Lincoln School. Petitioners insist, 
contrary to the consecutive findings below, that this chart 
proves there is no racial discrimination in the New Ro­
chelle public school system. Petitioners argue that Lincoln



8

is 94% non-white as a result of the preponderance of 
Negroes in the area and the election of eligible -white pupils 
in the district to attend private or parochial schools, not 
a consequence of action taken by petitioners since 1949.

They contend that since there has been no officially im­
posed segregation in New Rochelle since 1949, this case 
involves simply the validity of a pupil assignment regula­
tion, rigidly adhered to since 1949 and reinstituted by peti­
tioners for the purpose of desegregating Lincoln which, 
at that time, was 100% Negro. Petitioners then urge that 
the decisions below must rest solely upon the fact that 
30 years ago the Lincoln district was created as a segre­
gated district and not on any proof or finding that since 
1949 petitioners’ conduct has been unconstitutional.

What petitioners overlook, however, is the fact that by 
1949, as a result of their actions, the Lincoln School had 
become firmly established in the community as The Negro 
School; that in January 1949 they promised not only 
rigid adherence to the pupil assignment regulation but a 
redistricting by September 1, 1949; that from 1949-1960 
the promise with respect to redistricting was never ful­
filled, despite recommendations for remedying the Lincoln 
School situation made by Board employed specialists; that 
in 1960, when the referendum issue was clearly whether 
Lincoln should be rebuilt on the same site, and admittedly 
perpetuated as a segregated school, or the children there 
attending distributed among adjacent schools, thereby in­
creasing the non-white proportions in these schools, peti­
tioners determined to perpetuate the racial situation at 
Lincoln so that racial balances in neighboring schools not 
be upset.6 This determination, made in 1959-1960, and 
based wholly upon race and color, is constitutionally in­

6 Appellees’ App. pp. 63b-64b, 65b-66b.



9

valid. Brown v. Board of Education of Topeka, supra; 
Cooper v. Aaron, supra, at 7. School authorities may not 
make decisions which would tend to perpetuate segrega­
tion. Boson v. Rippy, 285 F. 2d 43 (5th Cir. 1960) (see 
particularly supplemental opinion at p. 47).

The decisions below, therefore, do not rest solely upon 
a finding that in 1930 the Board created a segregated 
school in New Bochelle. The decisions below are also 
predicated upon a finding that in 1960 petitioners had an 
opportunity to choose between segregation and desegrega­
tion and chose the former, and, as a palliative, proposed 
to reduce the capacity of the new Lincoln to 400 and to 
disperse the excess number of pupils enrolled in Lincoln 
among other schools in violation of petitioners’ own “ sac­
rosanct” neighborhood school policy.

Consequently, in order for this Court to reach the con­
clusion which petitioners desire with respect to the first 
question, this Court would have to set aside these findings 
of the two lower courts.

This Court has consistently ruled that a petition for 
writ of certiorari will not he granted merely to review the 
evidence or inferences drawn therefrom, General Talking 
Pictures Corp. v. Western Electric Co., 304 U. S. 175 
(1938), or to permit this Court to review facts found by 
two lower federal courts. Graver Tank & Mfg. Co. v. 
Linde Air Products Co., 336 U. S. 271 (1949).



10

n.
This Court’s decisions in the school segregation cases 

apply to all state perpetuated racial segregation in the 
public schools.

In Brown v. Board of Education of Topeka, 347 U. S. 483 
(1954), this Court held officially enforced and officially per­
mitted segregation in the public schools unconstitutional. 
This holding was reaffirmed in Brown v. Board of Educa­
tion of Topeka, 349 U. S. 294 (1955), and in Cooper v. 
Aaron, 358 U. S. 1 (1958).

Eelying primarily upon these decisions, the trial court 
held that, under the facts in this case, rights secured to 
infant respondents by the equal protection clause of the 
Fourteenth Amendment were being violated by petitioners’ 
requirement that these respondents continue to attend 
Lincoln School.

The District Court found:

(1) that the Board of Education of New Bochelle, 
prior to 1949, intentionally created Lincoln School as 
a racially segregated school, and has not, since then, 
acted in good faith to implement desegregation as re­
quired by the Fourteenth Amendment; and (2) that 
the conduct of the Board of Education even since 1949 
has been motivated by the purposeful desire of main­
taining the Lincoln School as a racially segregated 
school (191 F. Supp. 181, 183).

Having found these facts, the District Court clearly had 
no alternative but to apply this Court’s teaching in Brown.

In its second opinion, the trial court held: “It must 
again be emphasized that the segregation at the Lincoln



11

School was not a fortuity; it was deliberately created and 
maintained by Board conduct.” 195 F. Supp. supra at 233. 
In affirming, the Court of Appeals held “ The facts recited 
above showing the Board’s acceleration of segregation at 
Lincoln up to 1949 and its actions since then amounting 
only to a perpetuation and a freezing in of this condition 
negate the argument that the present situation in Lincoln 
School is only the ‘chance’ or ‘inevitable’ result of apply­
ing a neighborhood school policy to a community where 
residential patterns show a racial imbalance”  (294 F. 2d 
at 39).

Petitioners argue that this Court should review this 
case because the complaint attacked the neighborhood 
school policy. However, it should be noted that petitioners 
carefully avoid the claim that the trial court held the 
neighborhood school policy unconstitutional. That the 
complaint may have sought to have the neighborhood 
school policy declared unconstitutional is not a reason for 
granting certiorari. The controlling consideration is that 
the trial court expressly did not hold the neighborhood 
school policy, as such, unconstitutional. On March 11, 
1961, the trial court said:

Furthermore, there have been many misconcep­
tions, which I believe in some instances were deliber­
ate, as to the extent of my ruling which have oper­
ated to obscure the essential issues involved. For 
example, I have seen statements that I had in effect 
abolished the neighborhood school policy. If one reads 
my opinion, it will be readily apparent that I decided 
nothing of the sort. Indeed, to characterize the opin­
ion in this manner is a distortion. I did not strike 
down the neighborhood school policy for the concept 
of the neighborhood school as an abstract proposition 
was not even being questioned. But I feel that the com­



12

munity has been deliberately confused by these mis­
interpretations of the opinion. I did bold that 
this policy, lawful though it be, “ is not sacrosanct. 
It is valid only insofar as it is operated within the 
confines established by the Constitution. It cannot be 
used as an instrument to confine Negroes within an 
area artificially delineated in the first instance by 
official acts” (Appellants’ App. pp. 167a-168a).

In suggesting that petitioners submit a plan, the trial 
court was guided by this Court’s instructions in Brown v. 
Board of Education of Topeka, 349 U. S. 294 (1955), re­
iterated in Cooper v. Aaron, 358 U. S. 1, 7 (1958). The 
plan, submitted by the majority of the members of peti­
tioner board, provides for voluntary transfer of pupils 
from Lincoln to other schools in accordance with terms 
of the trial court’s decree. It does not, as contended by 
petitioners, enjoin them from rebuilding the Lincoln 
School or taking any other action designed to bring their 
operations in line with constitutional requirements.

As the trial court pointed out, the plan adopted will 
not solve all problems, “ But inability to find a perfect 
answer is hardly justification for refusal to do anything. 
. . .  It hardly need be stated that there is never an ideal 
solution when the question of desegregation is faced 
squarely. Experience in the south has made clear, that 
the problems to be met in this area are most difficult and 
delicate. . . . Therefore, there can never be a solution 
which could conceivably please everyone. But, if this alone 
were sufficient to excuse inaction, progress in this vital 
area of human rights would be nonexistent . . . ” (191 F. 
Supp. 181, 193).

The plan has been in operation since September 1961. 
The infant respondents, and others similarly situated,



13

have transferred to other schools in New Rochelle in ac­
cordance with the terms of the decree. To require them 
to continue to attend Lincoln, against the background of 
all the facts in this case, would, as the Court of Appeals 
held, closely approximate the harmful conditions con­
demned in the Brown case.

CONCLUSION

For all of the foregoing reasons, the petition for writ 
of certiorari should be denied.

Respectfully submitted,

Constance B aker Motley 
10 Columbus Circle 
New York 19, New York

Jack Greenberg

10 Columbus Circle 
New York 19, New York

Attorneys for Respondents

Paul Z uber 
Of Counsel



38