Estes v. Dallas NAACP Brief for Petitioners

    IN THE

Supreme Court of the United States

OCTOBER TERM , 1978

No. 78-253

NOLAN ESTES, ET AL.,
Petitioners,

versus

METROPOLITAN BRANCHES OF THE 
DALLAS N.A.A.C.P., ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO  THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

BRIEF FOR THE PETITIONERS

WARREN WHITHAM 
210 Adolphus Tower 
Dallas, Texas 75202 
MARK M ARTIN 
1200 One Main Place 
Dallas, Texas 75250 
Attorneys for Petitioners

SCO FIELD S ' Q UALITY PRINTERS, P. O. BO X  53096, N. 0 ., LA. 70153 - 504/822-1611



INDEX

Page
Opinions Below ..............................................   i

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

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

Question P resen ted ............................................................. 2

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

Summary of the Argument ..........................................38

Argument ........................................   42

I. The Elimination O f All One-Race Schools Is 
Not The Controlling Factor To Be Considered 
In Determining Whether The Remedy For­
mulated By The District Court Is Consistent 
With The Equal Protection Clause And This 
Court's Decisions in Swann v. Charlotte- 
Mecklenburg Board of Education, 402 U.S. 1, And 
Milliken v. Bradley, 433 U.S. 267 (Milliken 11) . .  46

The Court O f Appeals Has Mis­
construed Swann's Holding With 
Respect To The Central Issue O f Stu­
dent Assignment And In Particular 
Swann's Language Concerning The 
Specific Problem Area O f One-Race 
Schools ................................................................... 46

Actions And Admissions Of The 
R e sp o n d e n t-P la in tiffs  And The



INDEX (Continued)

Page
Respondent-NAACP Are Contrary To 
The One-Race School Criteria Seized 
Upon By The Court O f Appeals . . . . . . . . .  55

Time And Distance Studies Were Not 
Necessary ................. .. 56

Elimination O f All One-Race Schools 
Cannot Be The Controlling Factor 
When The District Court Is For­
mulating A Remedy To Eliminate The 
Vestiges Only O f A State-Imposed 
Dual System ............................................. ..  58

The Court O f Appeals Should Have 
Considered And Determined The Non- 
Student Assignment Provisions O f 
The Remedy Formulated By The Dis­
trict Court As Appropriate Tools Or 
Techniques O f Desegregation Consis­
tent With The Equal Protection Clause 
And This Court's Decision In Milliken II . 61-62

II. Why The District Court's Final Order Should
Be Affirmed In Its Entirety ................... ............ 67

Conclusion  .............................................................71

Proof of Service  .................................... ..................73



Cases: Pa«e
Green v. County School Board of New Kent County,

391 U.S. 430 (1 9 6 8 ) .............................................39,52

Jones v. Caddo Parish School Board, 487 F.2d 1275
(5th Cir. 1973) ..................................................... 41,67

Keyes v. School District No. 1, Denver, Colorado,
413 U.S. 189 (1973), reh. denied 414 U.S.
883 (1973) .................................................................  45

Milliken v. Bradley, 418 U.S. 717 (1974) .............54,69

Milliken v. Bradley, 433 U.S. 267 (1977)
(Milliken I I ) ...... ................................   P^sim

CITATIONS

Pasadena City Board of Education v. Spangler, 427
U.S. 424 (1 9 7 6 ) ........................................   50,61,69

Swann v. Charlotte-Mecklenburg Board of Educa­
tion, 402 U.S. 1 (1971), reh. denied 403 U.S.
912 (1971) ........................................................passim

Tasby v. Estes, 444 F.2d 124 (5th Cir. 1 9 7 1 ).............4

Tasby v. Estes, 517 F.2d 92 (5th Cir. 1975), cert, 
denied 423 U.S. 939 (1975) ............................ 4,6,14

United States v. Montgomery County Board of
Education, 395 U.S. 225 (1969) ................  39,50,54

Washington v. Davis, 426 U.S. 229 (1 9 7 6 ) .............. 47

Wright v. Council of the City of Emporia, 407 U.S.
451 (1972) 6 9



CITATIONS (Continued)

Page

Constitutional and Statutory Provisions:

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

Equal Protection Clause of the Fourteenth
Amendment . . . . . . . . . . . . . . . . . .  2,3,38,46-48,71

Miscellaneous:

Bell, Integration Ideals and Client Interests, 85
Yale L.J. 470 (March, 1 9 7 6 ) .....................  64,65,66

Webster's Third New International Dictionary, G. 
& C. Merriam Company, Publishers, 
Springfield, Massachusetts, 1971 . . . . . 59



IN THE
SUPREME COURT OF THE UNITED STATES 

O CTOBER TERM, 1978

No. 78-253

NOLAN ESTES, ET AL„
Petitioners,

versus

METROPOLITAN BRANCHES OF THE 
DALLAS N.A.A.C.P., ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

BRIEF FOR THE PETITIONERS

OPINIONS BELOW

The opinions, orders and judgment of the District 
Court (Estes Pet. App. “B", 4a~129a) are reported in 
part at 412 F.Supp. 1192. The opinion of the Court of 
Appeals (Estes Pet. App. "C ", 130a-146a) is reported at 
572 F.2d 1010.



JU RISDICTIO N

The judgment of the Court of Appeals was entered 
on April 21, 1978 (App., 16-18). A Petition for Rehear­
ing was denied on May 22, 1978 (Estes Pet. App. "D", 
146a-147a). The Petition for Writ of Certiorari was 
filed on August 14,1978, and was granted on February 
21, 1979. The jurisdiction of this Court is invoked un­
der the provisions of 28 U.S.C. Section 1254(1).

CONSTITUTIONAL PRO VISIO N S INVOLVED

The Equal Protection Clause of the Fourteenth 
Amendment to the Constitution of the United States 
provides in pertinent parts as follows:

, . nor shall any State * * * deny to any per­
son within its jurisdiction the equal protection 
of the laws."

QUESTION PRESENTED

Among the issues before the Courts below was the 
constitutionality of the remedy formulated by the Dis­
trict Court to eliminate the vestiges of a state-imposed 
dual school system in the large urban school system 
described in this Brief and by the Courts below. The 
question presented is:

Whether as to such school systems, the elimination 
of all one-race schools is the controlling factor to be



considered in determining whether a remedy formulat­
ed by the District Court is consistent with the Equal 
Protection Clause and this Court's decisions in Swann v. 
Charlotte-Mecklenburg Board of Education, 402 U.S. 1, and 
Milliken v. Bradley, 433 U.S. 267 (Milliken II).

STATEMENT OF THE CASE

This action was brought in the District Court against 
Petitioners, the members of the Board of Trustees of 
the Dallas Independent School District and its General 
Superintendent (the School District), on October 6, 
1970, by both Blacks and Mexican-Americans 
(Respondent-Plaintiffs) asserting de jure segregation 
of each class and seeking the establishment of a unitary 
school system for each class.

The School District and the federal courts have been 
on intimate terms in school desegregation matters 
since 1955 immediately following Brown 11. The instant 
action is not the first, but a second and separate Dallas 
school desegregation case. At the time the instant ac­
tion was filed there was also pending in the United 
States District Court for the Northern District of Tex­
as an existing class action desegregation suit in which 
continuing jurisdiction is exercised by the District 
Court and in which the various earlier proceedings in­
volving desegregation of the School District have been 
determined.1

1 The various proceedings in that action in part may be found at 
Bell v. Rippy, 133 F.Supp. 811 (N.D.Tex., 1955), Brown v. Rippy, 233 
p 2d 796 (5th Cir., 1956), cert, denied, 352 U.S. 878; Bell v. Rippy, 146

3



4

On June 3,1971, in a decision entered as a result of an 
appeal from an order denying the Respondent- 
Plaintiffs' first motion for preliminary injunction, the 
Court of Appeals directed the District Court to make 
full written findings of fact and conclusions of law on 
the merits of this action in the light of principles enun­
ciated in Swann. Tasby v. Estes, 444 F.2d 124 (5th Cir, 
1971). The District Court did so in August, 1971. The 
Respondent-Plaintiffs again appealed.

Almost four years later, on July 23, 1975, the Court 
of Appeals, among other things, vacated the student 
assignment plan ordered by the District Court in 
August of 1971 and remanded with directions to. for­
mulate elementary and secondary student assignment 
plans which comport with the directives of the 
Supreme Court and that July 23, 1975, Opinion- 
Mandate of the Court of Appeals. Tasby v. Estes, 517 F.2d 
92 (5th Cir. 1975), cert, denied, 423 U.S. 939.

On August 25,1975, over the School District's objec­
tions, the District Court allowed the Metropolitan 
Branches of the Dallas N.A.A.C.P. (Respondent- 
NAACP) to intervene. (August 25, 1975, Order 
permitting NAACP to Intervene; App., 13-14)

F.Supp. 485 (N.D.Tex., 1956); Borders v. Rippy, 247 F.2d 268 (5th 
Cir., 1957); Rippy v. Borders, 250 F.2d 690 (5th Cir,, 1957); Boson v. 
Rippy, 275 F.2d 850 (5th Cir., 1960); Borders v. Rippy, 184 F.Supp. 402 
(N.D.Tex., 1960); Boson v. Rippy, 285 F.2d 43 (5th Cir., 1960); Borders 
v. Rippy, 188 F.Supp. 231 (N.D.Tex., 1960); Borders v. Rippy, 195 
F.Supp. 732 (N.D.Tex., 1961); Britton v. Folsom, 348 F.2d 158 (5th 
Cir., 1965); and Britton v. Folsom, 350 F.2d 1022 (5th Cir., 1965).



5
On February 2, 1976, trial on fashioning a student 

assignment plan once again commenced in the District 
Court. This trial lasted five weeks, 44 witnesses testi­
fied and there were 145 exhibits admitted into 
evidence. Besides the initial parties Plaintiffs and the 
School District, six Intervenors participated: (1) Curry, 
et al, (2) Maxwell, (3) Brinegar, et al, (4) Strom, et al- 
Oak Cliff, (5) Strom, et al-Pleasant Grove, and (6) the 
NAACP-Intervenors. In addition the tri-ethnic 
Educational Task Force of the Dallas Alliance as 
Amicus Curiae participated and presented evidence. 
There were six student assignment plans before the 
Court prior to the District Court's March 10, 1976, 
Opinion and Order (Estes Pet. App. "B", 4a-44a), 
including a plan developed by the Court's own appoint­
ed desegregation expert, Dr. Josiah C. Hall, who has 
been associated with the University of Miami 
Desegregation Consulting Center. After March 10, 
1976, and prior to the April 7, 1976, Final Order there 
was yet a seventh plan before the Court. This was a 
plan developed by the School District pursuant to the 
District Court's March 10, 1976, Opinion and Order 
directing the School District to set forth the specifics of 
the Amicus Curiae concept proposals presented to the 
District Court. This trial culminated in the District 
Court's April 7, 1976, Final Order, as supplemented, 
and it is from such April 7,1976, Final Order, as supple­
mented, that the appeal to the Court of Appeals arose. 
The District Court's April 7, 1976, Final Order (Estes 
Pet. App. "B", 53a-120a), as supplemented (Estes Pet. 
App. "B", 121a-129a), containing the remedy formulat­



ed by the District Court and here in question, will 
hereafter be referred to as the Final Order.

Both Courts below have correctly recognized the ur­
ban metropolitan nature of the School District and that 
the School District is not a small rural school system 
but is the eighth largest urban school district in the 
United States.

As to Mexican-American students the District Court 
specifically found in a July 16, 1971, Memorandum 
Opinion (Brinegar Pet. App. A, A -l-A -6), that the 
Plaintiff Mexican-Americans failed to maintain their 
burden of proof to show that there had been some form 
of de jiire segregation against Mexican-American 
students. However, the District Court by that same 
order of July 16,1971, directed that Mexican-American 
students be considered as a separate ethnic group and a 
“minority" for purposes of a desegregation plan. Hence 
in the School District the problem exists of formulat­
ing a tri-ethnic remedy and the phrase “Anglo" is used 
in lieu of "white" under such circumstances. Tasby, 517 
F.2d at 106.

There is no actual total population census of the 
School District. The boundaries of the City of Dallas 
and the School District are not coterminous. The pop­
ulation of the City of Dallas is 800,000 to 900,000.1  he 
ethnic composition of the total population of the School 
District, as distinguished from student enrollment, ap­
proximates the ethnic composition of the population of

6



the City of Dallas which is estimated to be 25% or 30% 
Black, 10% to 15% Chicano and the remainder Anglo. 
(R. Vol. I, 279, 405, 406; App„ 36-37, 37-39) This is far 
different from the ethnic composition of the student 
population of the School District.

In 1975 the student population of the School District 
was 41.1% Anglo, 44.5% Black, 13.4% Mexican- 
American and 1% "other." (Def. Ex. 11, pp. 1, 2; R. Vol. 
I, 63, 64; App., 222-223, 21-23) The Court is advised 
that as of March 1, 1979, the student population of the 
School District was 33.50% Anglo, 49.11% Black, 
16.37% Mexican-American and 1.03% "other." This 
enrollment pattern then at the time of preparation of 
this brief would be as follows:

December 1, 1975 March 1, 1979

7

Number Percent Number Percent

Anglo 58,023 41.1 44,766 33.50

Black 62,767 44.5 65,637 49.11

Mexican-
American

18,889 13.4 21,876 16.37

Other 1,443 1.0 1,369 1.03

141,122 133,648

At the time of trial on February 2, 1976, the School
District had lost approximately 40,000 Anglo students 
during the pendency of this second action. As the 
students become younger there is a decided drop in the 
number and percentage of Anglo students. (Def. Ex. 
13, R. Vol. I, 71; Def. Ex. 11, pp. 1, 2, R. Vol. I, 63, 64; 
App., 224-225, 25-26, 222-223, 21-23)

Defendants' Exhibit 13, which reflects the historical 
enrollment of the School District, is as follows:



HISTORICAL ENROLLMENT

Dallas Independent School District

Mexican-

Dates Anglo Percent Negro Percent American Percent Total

October, 1969-70 97,131 52,531 13,606
Kindergarten

Total
- 28 

97,103
- 271 

52,260
- 94 

13,512 162,875

October, 1970-71 95,133 55,648 13,945
Kindergarten - 121 -1,036 - 216

Total 95,012 - 2.2 54,612 + 4,5 13,729 + 1.6 163,353

October, 1971-72 86,548 57,394 15,154
Kindergarten

Total
- 66

86,482 - 9.0
-1,455
55,939 + 2.3 ^

- 269 
14,885 + 8.4 157,306

October, 1972-73 78,560 59,643 15,909 ,
Kindergarten

Total
- 126 

78,434 - 9.3
-2,383
57,260 + 2.4

- 514 
15,395 + 3.4 151,089

October, 1973-74 73,042 62,468 17,141
Kindergarten

Total
-3,439
69,603 - 11.3

-3,575
58,893 + 2.9

-1,276
15,865 + 3.1 144,361

* HEW Report (Continued below)



Mexican-

Dates Anglo Percent Negro Percent American Percent Total

October, 1974-75 67,324 63,760 18,426

Kindergarten -3,821 -4,105 -1,562

Total 63,503 - 8.8 59,655 + 1.3 16,864 + 6.3 140,022

October, 1975 60,796 64,594 18,994

Kindergarten -3,370 -4,338 -1,559

Total 57,426 - 9.6 60,256 + 1.0 17,435 + 3.4 135,117

1969-70 97,103 - 52,260 - 13,512

1975 - 57,426 60,256 17,435

Total Loss 39,677 - 40.9 7,996 + 15.3 3,923 + 29.0

Since kindergarten attendance was not mandatory during the entire period shown on this 
exhibit, appropriate adjustments have been made and the calculations based on Grades 1- 
1 2 .



The ethnic make-up by grade level of the School District as of December 1, 1975, was: 
(Def. Ex. 11, pp. 1, 2; App. 222-223)

Grade Mexican-
Level Anglo % Black % American % Other % Total

K 3254 34.8 4429 47.3 1595 17.0 87 .9 9365
1 4260 36.7 5274 45.5 1955 16.9 113 1.0 11602
2 ' 4095 36.9 5080 45.7 1822 16.4 104 1.0 11101
3 3947 36.7 5056 46.9 1648 15.3 118 1.1 10769
4 3756 35.5 5098 48.1 1608 15.2 131 1.2 10593
5 4226 37.5 5251 46.6 1672 14.8 125 1.1 11274
6 4543 39.3 5394 46.6 1504 13.0 128 1.1 11569
7 4853 41.0 5356 45.2 1532 12.9 103 .9 11844
8 5039 42,2 5343 44.8 1438 12.1 115 1.0 11935
9 5231 43.5 5406 45.0 1286 10.7 100 .8 12023
10 5287 45.4 4943 42.5 1259 10.8 155 1.3 11644
11 4828 51.5 3526 37.5 936 10.0 93 1.0 9383
12 4704 58.7 2611 32.6 634 7.9 71 .8 8020
TOTAL 58023 41.1 62767 44.5 18889 13.4 1443 1.0 141122



1 1

The School District estimates that in 1980 the 
percentage of Anglo enrollment will be 26%, that Black 
enrollment will be 57% and that Mexican-American 
enrollment will be 18%. (R. Vol. I, 67, 68; App., 23-24, 
24-25)

The School District contains approximately 351 
square miles within the 900 square miles of Dallas 
County. From the School District's most northerly 
point to its most southerly, there is a distance of 
approximately 35 miles viewed from the northwest to 
the southeastern part of the district. It is about 25 miles 
from what is called the southwest quadrant in Oak 
Cliff just below Hulcy Junior High School to the 
northernmost point near the Dallas County line. (R. 
Vol. I, 405; App., 37-38)

In addition to being faced with the task of fashioning 
a remedy for an ever increasing minority Anglo school 
system, the District Court also had the problem of pre­
serving naturally integrated areas and schools which 
had become naturally integrated due to changing hous­
ing patterns. All of the plans before the Court sub­
mitted by all of the parties, the Amicus Curiae and the 
Court's desegregation expert recognized and accepted 
the concept that there was no reason to disturb already 
desegregated neighborhood schools. Each plan pro­
posed to leave certain areas and schools alone as they 
were naturally integrated. (R. Vol. 1,104,105; Hall s Ex. 
5, pp. 14-19, R. Vol. IV, 123; R. Vol. IV, 129, 130; 
NAACP Ex. 2, p. 6, R. Vol. IV, 6; R. Vol. IV, 15, 16,19;



12
PL Ex. 16, pp. 9, 41, R. Vol. Ill, 231, 243; R. Vol. Ill, 241- 
242, 259, 330, 355, 406, 410; App., 33-35, 251-259,100- 
10.1; 102-103, 230, 92-93, 93-95, 95-96, 237-238, 248- 
249, 70-71, 73-74, 71-72, 74-75, 75-76; 76-77, 86-87, 
89-90)

Further the District Court had to consider the loca­
tion within the School District of these naturally 
integrated areas and schools in relationship to those 
areas containing the remaining predominantly Anglo 
students and those areas containing predominantly 
Mexican-American or Black enrollment. The area con­
taining the only remaining predominantly Anglo 
students lies generally in a strip along the northern and 
certa in  eastern  sections of the system. The 
predominantly Mexican-American or Black students 
reside to the south and southeast in areas distant from 
the predominantly Anglo students. Separating the 
remaining predominantly Anglo students and the 
predominantly Mexican-American or Black students 
are large portions of the naturally integrated areas and 
schools. (D ef. Ex. 2, R. Vol. I, 77, 85; Def. Ex. 3, R. Vol. I, 
81, 85; R. Vol. I, 77, 78, 79, 80, 81; App., 220, 27-28, 31- 
33, 221, 30-31, 31-33, 27-28, 28, 29, 29-30, 30-31)

Defendants' Exhibit 1 reflects the Black and white 
racial composition of the student population by 
residential patterns in the year 1960. The orange area 
shows the residential location of Black students in the 
year 1960. The yellow area shows the residential loca­
tion of white students in the year 1960. In 1960 sep­



13
arate statistics were not kept as to Mexican-American 
students and Mexican-American students were count­
ed as "white." In 1960 Mexican-American students 
were located in the area of the present Travis Elemen­
tary School and the Juarez and Douglass Elementary 
Schools. To that extent the Mexican-American student 
population in 1960 would be shown in the yellow area 
on Defendants' Exhibit 1. (R. Vol. I, 76; App., 26-27)

Defendants' Exhibit 2 reflects the current residential 
patterns of students in the School District. The yellow 
zone on that map reflects the only remaining 
predominantly white students, the pink zone is the 
naturally integrated area representing minority and 
Anglo, and the dark orange on that map represents 
predominantly Mexican-American or Black enroll­
ment. (R. Vol. I, 77, 78; App., 27, 28)

Defendants' Exhibit 3 reflects the growth over the 
period 1960, 1965 and 1970 of the growing Black 
scholastic population within the School District, as well 
as the areas of the School District that in 1975 were 
composed of at least 25% Black students, the areas that 
in 1975 were at least 25% Mexican-American and the 
areas that in 1975 were at least 25% minority com­
bined, i.e., 25% of both Black and Mexican-American. 
(R. Vol. I, 80, 81; App., 29-30, 30-31)

In its July 23, 1975, Opinion-Mandate the Court of 
Appeals made reference to the "endurance record 
perhaps, but not speed records" set with respect to



14
desegregation litigation concerning the School Dis­
trict. Tasby, 517 F.2d at 109. The Court of Appeals there 
also observed "The DISD is no stranger to school de­
segregation proceedings before this Court." Id. at 95.

If there is one overriding concern of the School Dis­
trict, it may be fairly said to be that the School District 
would indeed like to become a stranger to school 
desegregation proceedings. To that end, and given the 
origin and development of what became the provisions 
of the District Court's Final Order, the School District 
supports the District Court's Final Order and asks that 
it be affirmed in its entirety by this Court.

During the course of hearings in the District Court 
commencing February 2, 1976, the descriptive ter­
minology of "student assignment" provisions and 
"non-student assignment" provisions developed, As 
used, non-student assignment provisions involved 
judicial remedies in desegregation proceedings going 
beyond student assignment plans and pertaining to (a) 
the operation and management of the business and af­
fairs of the School District, and (b) the education, 
curriculum and program aspects of the School District.

r
On September 16, 1975, the District Court in a 

public hearing expressed great dissatisfaction with 
both a desegregation plan proposed by the School Dis­
trict and a plan proposed by the Respondent-NAACP. 
The District Court went on to point out that this was a 
community-wide problem that involved all segments of



15
the city. (R. September 16, 1975, Hearing on Plaintiffs' 
Motion for Further Relief, 83-91; App., 198-204) As a 
result of the District Court's comments, there came to 
be presented to the District Court certain concept 
proposals of an organization known as the Educational 
Task Force of the Dallas Alliance. It was from such con­
cepts that the Final Order originated.

The Educational Task Force of the Dallas Alliance is a 
tri-ethnic group. A description of how the Educational 
Task Force of the Dallas Alliance came into being and 
how its concepts came to be presented to the District 
Court is summarized below.

There exists in the City of Dallas a community serv­
ice organization known as the Dallas Alliance to act 
upon urban issues. A description of the Dallas Alliance 
and its activities during and preceding the trial com­
mencing February 2, 1976, follows.

The Dallas Alliance was composed of a board of forty 
trustees. (R. Vol. V, 50, 51; App., 132, 133) O f these 
forty persons, eleven were Black, four were Mexican- 
American, one was American Indian and the re­
mainder were Anglo. (R. Vol. V, 226, 227; App., 153- 
154, 154-155) In addition the Dallas Alliance had 77 
cooperating or corresponding organizations with 
whom it communicated and received views and infor­
mation. (R. Vol. V, 52, 53; App., 133-134, 134-135) 
Prior to instituting its Educational Task Force the 
Dallas Alliance had two other task forces in operation.



One was on the Criminal Justice System and the sec­
ond on Neighborhood Regeneration and Mainte­
nance. (R. Vol. V, 54, 55; App., 135, 136) On October 
23,1975, the Dallas Alliance authorized an Educational 
Task Force of the Dallas Alliance. (R. Vol. V, 59, 61,62, 
388; Def. Ex. 17, R. Vol. V, 387; App„ 136-138, 161- 
162, 226-229, 160-161) Creation of that Task Force 
came about as follows. Following the District Court's 
comments of September 16, 1975, a group of twenty 
citizens, some of whom belonged to the Dallas Alliance 
and some of whom did not, had constituted them­
selves together as a committee to look into some 
matters with respect to education in the School District 
and to inquire into whether the processes of developing 
a desegregation plan were possible. (R. Vol. V, 68, 69; . 
App., 142, 143) The committee was made up of six 
Blacks, seven Mexican-Americans and seven Anglos. 
(R. Vol. V, 7; App., 125) This committee sought and ob­
tained from the Dallas Alliance status as its Educa­
tional Task Force. (R. Vol. V, 61; App., 137-138) Nine 
persons serving on the committee that then became the 
Educational Task Force were at that time members of 
the Dallas Alliance. (R. Vol. V, 64, 65; App., 139-140, 
140-141) After the committee became the Educational 
Task Force of the Dallas Alliance the American Indian 
member of Dallas Alliance became a member of the 
Educational Task Force. (R. Vol. V, 65, 66, 69; App., 
140-141, 142-143)

On December 18, 1975, the District Court sum­
moned all parties and their attorneys to appear before it 
and in effect introduced the Educational Task Force to



the parties and indicated strongly its support for their 
efforts. (R. December 18, 1975, Called Hearing of 
Judge Taylor, 1-14; App., 205-215) The Educational 
Task Force of the Dallas Alliance was given a charge by 
the Dallas Alliance to attempt to design a plan for the 
school system. (R. Vol. V, 75; App., 143-144) This it set 
out to do as follows:

The Task Force was assigned the services of the Ex­
ecutive Director of the Dallas Alliance, Dr. Paul Geisel. 
(R. Vol. V, 2; App., 122-123) Dr. Geisel was on leave of 
absence from the University of Texas at Arlington 
where he is a Professor of Urban Affairs. (R. Vol. V, 3; 
App., 123-124) Dr. Geisel holds a PhD in sociology 
from Vanderbilt; he did as his doctoral dissertation a 
study of the educational and aspirational achievement 
levels of students in the Chattanooga, Tennessee, 
school system; he has been employed by Tuskegee In­
stitute; and while teaching at the University of Pitts­
burgh he did an analysis of the Pittsburgh schools in 
terms of racial achievements and racial integration and 
was the Educational Chairman of the Allegheny Coun­
ty NAACP. (R. Vol. V, 5; App., 124-125) Dr. Geisel 
went to work with the Educational Task Force of the 
Dallas Alliance in the middle of October, 1975. (R. Vol. 
V, 21; App., 128) Upon obtaining status as the Educa­
tional Task Force of the Dallas Alliance that Task Force 
met on a regular basis every Tuesday evening for an ex­
tended period until about December 16, 1975. (R. Vol. 
V, 22; App., 128) The Task Force was first briefed by 
school personnel and by city officials. Thereafter Dr.

17



Geisel traveled throughout the country to meet with 
various leading figures in the field of desegregating 
public schools. (R. Vol. V, 22; App., 128) In the course of 
this work Dr. Geisel personally saw, or spoke from his 
office by telephone with, approximately thirty differ­
ent people. Dr. Geisel talked by telephone extensively 
with people in Atlanta, Charlotte-Mecklenburg and 
Jacksonville, Florida. When Dr. Geisel returned to 
Dallas from his travels, he made a report to the Educa­
tional Task Force on the kinds of ideas and processes 
used to desegregate schools and the kinds of issues that 
are involved. (R. Vol. V, 22; App,, 128) On Tuesday 
evening, December 16, 1975, the Task Force heard Dr. 
Geisel's report and developed guidelines for him to 
follow. Dr. Geisel was then given until January 6 ,1976, 
to attempt to formulate, develop and flesh out what the 
proposals would look like if they were turned in as pro­
posals for a desegregation plan. (R. Vol. V, 23; App., 
129)

The Task Force then began meeting on Tuesday 
nights as well as on Saturdays, and in many instances 
on Sundays. Altogether the Task Force spent about 
1,500 hours together. (R. Vol. V, 23; App., 129)

The Task Force came to a consensus, to a community 
of the mind, and they came to understand what each 
member was attempting to achieve through his or her 
participation. (R. Vol. V, 24; App., 129-130) On Mon­
day, February 16, 1976, the Educational Task Force 
went to the District Court and presented its plan. (R.

18



19
Vol. V, 24; A pp.,129-130) The "consensus" of the Task 
Force was much more than a bare majority. The initial 
proposal submitted to the District Court reflected the 
support of nineteen of the twenty-one members. (R. 
Vol. V, 102; App., 144-145) Sixteen members of the 
Task Force were present at the time their proposals 
were submitted to the District Court on February 16, 
1976. (R. Vol. V, 104; App., 145-146)

The Task Force consulted with some thirty experts. 
The Task Force was interested in talking to people who 
were skilled in the field of education and skilled in the 
field of desegregation. Most of these people were con­
tacted personally by Dr. Geisel. In rare instances the 
consultants dealt directly with the Task Force members 
themselves. (R. Vol. V, 369, 370; App., 155-156, 156- 
157)

Persons contacted on behalf of the Educational Task 
Force were: Dr. Jose Cardenas (also the Plaintiffs 
witness); Dr. Horacio Ulibarri (from New Mexico); Dr. 
Robert Green, Dean of the College of Urban Develop­
ment at Michigan State; Dr. Flarold Gores, Education­
al Facilities Laboratory; Dr. Frank Rose, Executive Di­
rector of the Lamar Society of the University 
Associates in Washington; Dr. Thomas Pettigrew, then 
on leave from Stanford University; Dr. Rudolpho 
Alvarrez, Professor of Sociology in Chicano studies at 
U.C.L.A.; Wilson Riles, State Superintendent of Public 
Instruction in California; Davis Campbell, Assistant to 
the State Superintendent of Public Instruction of



20
California; Marion Joseph, Assistant to the State 
Superintendent of Public Instruction of California; Ray 
Martinez, Superintendent of instruction at Pasadena, 
California; Jim Taylor and Ron Prescott, officials in the 
Los Angeles School District; Robert Nicewander, Unit­
ed States Office of Education; Marshall Smith of the 
National Institute of Education; Dennis Doyle, 
National Institute of Education; Jack Troutman, a local 
consultant; Dr. Julius Truelson, former president of 
the Great Cities School System and former Superin­
tendent of Schools, Fort Worth Independent School 
District; Research and superintendent's staff, Fort 
Worth Independent School District; School Superin­
tendent of Sacramento, California; School Superin­
tendent of San Francisco Schools; School Superin­
tendent of Charlotte, North Carolina; City Planning 
Department of the City of Dallas; Dr. Leon Lessinger, 
Dean of the College of Education of the University of 
South Carolina. (R. Vol. V, 370-372; App., 156-158)

While the Task Force did examine the school systems 
in a good many cities, it did not try to imitate or copy 
any other city. The Task Force tried to come up with 
something unique for the total city of Dallas. (R. Vol. V, 
373, 374; App., 158-189, 159-160)

Following the Task Force presentation to the District 
Court on Monday, February 16, 1976, that Court on 
Tuesday, February 17, 1976, submitted the Task 
Force's proposals to the parties and announced that the 
Educational Task Force of Dallas Alliance would be rec­



21
ognized by the Court as Amicus Curiae. The Court 
then asked the parties to study these proposals and 
report back their reactions. The reactions of the 
Respondent-Plaintiffs, the School District and the 
Respondent-NAACP were unfavorable to various 
aspects of the proposals. (R. Vol. IV, 295-317; App., 
104-121) The Court then called Dr. Geisel to the stand 
as the Court's witness and the Task Force proposals 
were introduced in evidence. (R. Vol. V, 8 , 9; App., 126- 
127) On March 3, 1976, the Task Force filed its modi­
fied proposals (R. Vol. IX, 363; App., 196-197) A mem­
ber of the Task Force was called by the Court as the 
Court's witness to testify concerning the modified 
proposals. (R. Vol. IX, 361; App., 196)

It was the concepts in these March 3 ,1976 , modified 
proposals which the District Court adopted in two pre­
liminary orders. The District Court directed the School 
District to set forth in writing the specifics of these 
modified proposals. In this connection the District 
Court's March 10, 1976, Opinion and Order provided: 
(Estes Pet. App. "B", 41a)

"Accordingly, it is ORDERED by the Court 
that the modified plan of the Educational Task 
Force of the Dallas Alliance filed with the 
Court on March 3, 1976, is hereby adopted as 
the Court's plan for removal of all vestiges of a 
dual system remaining in the Dallas Inde­
pendent School District, and the school dis­
trict is directed to prepare and file with the



2 2

Court a student assignment plan carrying into 
effect the concept of said Task Force plan no 
later than March 24, 1976."

and the District Court's March 15,1976, Supplement­
al Order provided; (Estes Pet. App. "B", 45a, 46a)

"During the process of fleshing out the 
Court's Order of March 10, 1975, some 
questions have arisen regarding the Court's 
adoption of the Dallas Alliance's plan. So that 
there is no misunderstanding in this regard, 
the Court intended by the order of March 10 
to adopt the concepts suggested by the plan of 
the Educational Task Force of the Dallas 
Alliance. The staff of the school district shall 
take these concepts and adapt them to fit the 
characteristics of the Dallas Independent 
School District. The Court recognizes that 
during this process, a certain amount of flexi­
bility is necessary. The Court expects the 
school district to put into effect the concepts 
of the Dallas Alliance plan. The specifics of the 
desegregation plan for the DISD will be em­
bodied in the Court's Final Order which will 
be entered in approximately two weeks."

Obedient to the District Court's orders, the School 
District on March 24,1976, on March 29,1976, and on 
April 1, 1976, filed with the Court three separate 
documents representing its efforts to set forth the



23

specifics of the modified proposals of the Educational 
Task Force of the Dallas Alliance.

On April 7,1976, the District Court in its Final Order 
fashioned and directed the remedy thought to be 
necessary by that Court to eliminate the vestiges of a 
dual school system in the School District. In the Dis­
trict Court's language introducing that remedy: (Estes 
Pet. App. "B", 47a)

"The Court has received and thoroughly con­
sidered suggestions made by various inter­
veners and by the Amicus Curiae Educational 
Task Force of the Dallas Alliance subsequent 
to the submission of the DISD's student 
assignment plan on March 24. The Court is of 
the opinion that many of these suggestions 
have merit and should be reflected in the stu­
dent assignment plan. The Court has thus 
modified the document submitted by the 
DISD to incorporate many of these sug­
gestions. It has fu rth er  incorporated 
modifications necessary in order that the 
spirit of the Dallas Alliance's plan will be im­
plemented to the fullest extent possible. 
These changes appear in the Final Order 
entered this day."

The District Court's Final Order constitutes a 
judicial sanction of the heart of a compromise reached 
by a tri-ethnic group of citizens. The concepts pro­



posed to the District Court by the Educational Task 
Force of the Dallas Alliance represent a compromise 
arrived at in the eleventh hour in which the hard 
bargain was struck between a student assignment plan 
which might be briefly summarized as providing (a) a 
somewhat "neighborhood" approach to schools for 
grades K-3 and 9-12, and (b) judicially forced inte­
grated 4-6 grade centers and 7-8 grade centers re­
quiring busing, and (c) unique and special districtwide 
vanguard schools for grades 4-6, academy schools for 
grades 7-8, and magnet schools for grades 9-12, on the 
one hand; and on the other hand, increased participa­
tion by minorities in the day-to-day running of the 
School District by virtue of the 44% Anglo, 44% Black 
and 12% Mexican-American ethnic ratio applicable to 
the top salaried administrative positions in the School 
District, then established at 142 in number (R. Vol. V, 
133-137, 213-215; App., 146-150, 151-153)

Respondents Plaintiffs and NAACP have opposed 
and objected to only the student assignment portions of the 
District Court's Final Order. These Respondents want 
both massive busing in a now minority Anglo school 
district as well as the imposition upon the School Dis­
trict of federal court orders involving the federal 
judicial system in (a) the operation and management of 
the business and affairs of the School District, and (b) 
the education, curriculum and program aspects of the 
School District.

Implementation of the District Court's Final Order 
commenced in August of 1976 with the opening of the



1976-77 school year. Thereafter, on October 11, 1976, 
the Board of Education of the School District unani­
mously adopted an order calling an election to be held 
December 11, 1976, on the proposition of whether the 
Board be authorized to issue bonds in the amount of 
$80,000,000.00 for the purpose of the construction and 
equipment of school buildings in the School District 
and the purchase of necessary sites therefor. That 
Board of Education was, and still is, composed of nine 
members. These School Trustees were not elected "at 
large/' but rather each was elected from single­
member trustee districts fairly apportioned. The Board 
is composed of six Anglos, two Blacks and one 
Mexican-American. (R. February 24, 1977, Hearing of 
Defendants' Motion for Approval of Site Acquisition, 
School Construction and Facility Abandonment, 5, 6; 
R. Vol. II, 54, 58-60; App., 216-217, 40, 41-43)

On December 11, 1976, the voters in the School Dis­
trict — including the voters in the East Oak Cliff Sub­
district — voted in favor of this $80,000,000.00 school 
improvement bond issue. In the East Oak Cliff area 
there were 3,000 votes for the bond issue and only 300 
or 400 votes against this bond issue. 1 he bond issue 
also carried by an overwhelming majority in South 
Dallas which is also a predominantly black area in the 
School District. (R. February 24, 1977, Hearing of 
Defendants' Motion for Approval of Site Acquisition, 
School Construction and Facility Abandonment, 6, 7; 
App., 217-218)

25



2 6

All parties essentially agree that the time and dis­
tance students must spend on buses together with traf­
fic congestion prevent transportation of students 
between what is identified by the District Court as the 
virtually all-black East Oak Cliff area and the area con­
taining the remaining Anglos in the strip along the 
north and east portions of the School District. All plans 
before the District Court except Respondent- 
Plaintiffs' Plan A left all or portions of this East Oak 
C liff area with one-race schools. Even then 
Respondent-Plaintiffs did not seriously urge their Plan 
A to the District Court.

Respondent-Plaintiffs' expert witness, Dr. Charles V.
Willie, testified:

"Yes, I made time studies of how long it would 
take to go from the tip end of North Dallas to 
Oak Cliff and I found that to be an exceedingly long 
distance. But I don't think that the School Dis­
tricts have to be laid out that way." (Emphasis 
ours) (R, Vol. Ill, 134; App., 51)

Respondent-Plaintiffs' witness and lead counsel, Mr. 
Edward B. Cloutman, III, testified concerning their 
only effort at a time and distance study as to which 
evidence was presented:

"A. It's the one next to the Dealey zone. I 
think that one we that we made was at least



27
about thirty-four, thirty-five minutes and it
took — it was about twenty-two miles."

*  *  *

"Q . . . . What route did you take?
"A. We took a, I believe, east-west major 
street. I believe Royal Lane, to the Tollway, 
south to 1-35,1-35 to I believe Ledbetter on the 
southern end, Ledbetter east — Lve for­
gotten the street name. It's the same street 
that the Veteran's Hospital is on, turning 
north and then to the school.
"Q . What time of day?
"A. It was about noon.
"Q . What day of the week?
"A. It was on a Sunday." (Emphasis ours) (R. 
Vol. Ill, 375, 376; App., 79-80)

The Court's witness, Dr. Paul Geisel, testified:

"Q . And you left South Oak Cliff. Now, as I 
would look at that map, it would leave South 
Oak Cliff all black, I believe that would be. 
"A. Essentially.
"Q . What was the reason — was there any 
reason for that?
"A. The reason that had to do with two com­
ponents, I believe. One was the issue of 
attempting to — not to do cross town busing or do 
busing that required a travel time of greater than thirty 
minutes . . ." (Emphasis ours) (R. Vol. V, 49; 
App., 130-131)



28

In three separate places Respondent-Plaintiffs' Plan 
B states the reason for leaving black one-race schools in 
the East Oak Cliff Subdistrict. In the thrice repeated 
language of Plaintiffs: (PL Ex. 16, pp. 34, 36, 38, R. Vol. 
Ill, 231, 243; R. Vol. Ill, 376, 377; App., 239-240, 241- 
243, 243-245, 70, 73-74, 80)

"Distance from the majority white areas, 
capacity of schools, DISD enrollment patterns and 
generally good physical facilities were factors 
resulting in South Oak Cliff retaining its pres­
ent student assignment patterns." (Emphasis 
ours)

The "South Oak Cliff" referred to is the area now re­
ferred to as East Oak Cliff in the District Court's Final 
Order. By Respondent-Plaintiffs' own admission in 
their Plan B, and by their own attorney-witness's tes­
timony, the long distance of the East Oak Cliff Sub­
district from areas containing white students is so 
great that the continued existence of black one-race 
schools in East Oak Cliff is justified. (R. Vol. Ill, 378, 
379; App., 81-82, 82-83) Respondent-Plaintiffs also ad­
mit in their Plan B, and by their own attorney-witness's 
testimony, that the "enrollment patterns" in the School 
District, i.e., an ever expanding scholastic population in 
East Oak Cliff, the number of Black students and the 
number of Anglo students in the School District and 
the absence of Anglo student growth in the School Dis­
trict, further justify the continued existence of black 
one-race schools in East Oak Cliff. (R. Vol. Ill, 379-381, 
407, 408; App., 82-84, 87-88, 88-89)



29

Respondent-Plaintiffs, by motions filed in the Dis­
trict Court on April 2, 1976, and April 5, 1976, sought 
an award of attorneys' fees in this action under Section 
718 of the Education Amendments Act of 1972 on the 
theory that they were the "prevailing party." On April 
30, 1976, Respondent-Plaintiffs filed a brief in support 
of their motion for attorneys' fees which contained the 
following statement: (April 30, 1976, Brief in Support 
of Motion for Attorneys' Fees and Costs, p. 4; App., 14)

"Finally, the plan adopted by the Court in its 
order of March 10, 1976, together with Sup­
plemental Opinion and Orders dated April 7, 
1976, and April 15, 1976 adopt and/or incor­
porate almost every precept proposed by 
plaintiffs for student assignment and non­
student assignment features of the remedy."

The District Court recognized that the Respondent- 
Plaintiff Black and Mexican-American students ob­
tained all of the student assignment and non-student 
assignment relief they proposed and sought. The Dis­
trict Court in its Order dated July 20, 1976, awarding 
attorneys' fees and costs to Respondent-Plaintiffs, 
pointed out: Quly 20, 1976, Memorandum Opinion, p. 
3; App., 15)

"Finally, the plan adopted by the Court on 
March 10, 1976, and Ordered to be imple­
mented on April 7, 1976, and April 15, 1976, 
incorporated almost every precept proposed



by plaintiffs for both student assignment and 
non-student assignment remedies."

30

Respondent-Plaintiffs filed two plans with the Dis­
trict Court on January 12,1976. Respondent-Plaintiffs' 
Exhibit 16 contains both plans, one of which is iden­
tified as Plan A and one as Plan B. Prior to the filing of 
the School District's brief in the Court of Appeals 
Respondent-Plaintiffs' counsel, Mr. Edward B. Clout- 
man, III, advised counsel for the School District that 
Respondent-Plaintiffs did not intend to urge either of 
Respondent-Plaintiffs' Plans A or B in this case. 
Respondent-Plaintiffs did not urge either of their plans 
in the Court of Appeals. Both of Respondent-Plaintiffs' 
plans have been abandoned by Respondent-Plaintiffs in 
this action.

Various approaches in Respondent-Plaintiffs' two 
plans support the student assignment plan contained in 
the District Court's Final Order. Both Plaintiffs' Plans 
A and B proposed to leave certain areas and schools of 
the School District alone as those areas and schools 
were naturally integrated. Respondent-Plaintiffs' 
testimony admits that under Plaintiffs' Plan A, 13 
elementary schools were considered desegregated and 
were left alone as being naturally integrated. Plaintiffs' 
testimony admitted that under Plaintiffs' Plan B, 41 
elementary schools were considered desegregated and 
were left alone as being naturally integrated. (PL Ex. 
16, pp. 9, 41, R. Vol. Ill, 231, 243; R. Vol. Ill, 241, 242, 
259, 330, 355, 406, 410; App., 237-238, 248-249, 70-71, 
73-74, 71-72, 74-75, 75-76, 76-77, 86-87, 89-90) The



3 1

concept of leaving certain areas and schools of the 
School District alone for the reason that those areas 
and schools were naturally integrated is a part of the 
student assignment plan contained in the District 
Court's Final Order.

Both Respondent-Plaintiffs' Plans A and B proposed 
magnet schools, some districtwide and some serving 
smaller parts of the School District. As shown in the 
Overview to Respondent-Plaintiffs' Plans A and B, 
Respondent-Plaintiffs recommend that all magnet 
schools should be constructed in the inner-city area to 
encourage the inward flow of students, and particu­
larly white students, and that these schools should seek 
the assistance of local businesses and citizens in order 
to acquire appropriate construction sites. Respondent- 
Plaintiffs suggest that student enrollment in such 
magnets should approximate the ethnic enrollment of 
the School District as a whole with exceptions for the 
elementary magnets created under Plan B. (PI. Ex. 16, 
pp. 2, 39, R. Vol. Ill, 231, 243; R. Vol. Ill, 371, 372, 382, 
383; App., 234-236, 245-247, 70-71, 73-74, 77-78, 78- 
79, 84-85, 85-86)

This concept of magnet schools and their location in 
the minority or inner-city areas to encourage the in­
ward flow of students, and particularly white students, 
with the participafion of the business community and 
student enrollment approximating the ethnic enroll­
ment of the School District as a whole is a part of the 
student assignment plan contained in the District 
Court's Final Order.



Respondent-Plaintiffs' Plan B leaves some virtually 
all-black schools in what has become known as the East 
Oak Cliff Subdistrict. Under Respondent-Plaintiffs' 
Plan B there are 12 elementary schools, two junior high 
schools and one high school that are black one-race 
schools in East Oak Cliff. Respondent-Plaintiffs'Plan B 
also leaves two all-black elementary schools in West 
Dallas. These are Allen and Lanier. Respondent- 
Plaintiffs' Plan B also leaves Dunbar an all-black 
elementary school in South Dallas. (R. Vol. Ill, 378; 
App., 81-82) Thus Respondent-Plaintiffs' Plan B leaves 
15 all-black elementary schools, two all-black junior 
high schools and one all-black high school.

Throughout, Respondent-NAACP has insisted that 
the existence of some one-race schools invalidates the 
student assignment portion of the remedy. Efowever, 
Respondent-NAACP publicly admits it does not have a 
solution. In a newspaper interview this public ad­
mission was made by the attorney of record for the 
Respondent-NAACP:

"And even the NAACP admits that it is having 
some trouble finding a way to break up the all­
black nature of the subdistrict. 'If I knew the 
answer, I'd give it to you,' says NAACP at­
torney E. Brice Cunningham. 'I admit that we 
have not yet come up with an alternative to 
some all-black schools. But we will still chal­
lenge it in court.' "  Dallas Morning News, 
August 15, 1976, at 1, col. 2.



33

Respondent-NAACP demands racial balance in each 
school and year-by-year adjustments in such quota 
assignments. The Respondent-NAACP plan states:

"(a) Every school should have a racial balance 
comparable to the racial balance in the District, 
which will not deviate more than Ten Percent 
(10%) up or down." (Emphasis ours) (NAACP 
Ex. 2, p. 7, R. Vol. IV, 6; App., 231, 92-93)

*  *  *

"2. The first magnitude of desegregation 
and the attaining of an Unitary School System 
should be to achieve a racial balance of black and 
white students in each school and then follow 
through with the integration of other 
minorities into the system." (Emphasis ours) 
(NAACP Ex. 2, p. 7, R. Vol. IV, 6; App., 231, 
92-93)

*  *  *

"5. Any set plan should have written into it 
automatic mechanisms for change based upon 
conditions which may arise in the com­
munity." (NAACP Ex. 2, p. 7, R. Vol. IV, 6; 
App., 232, 92-93)

*  it *

"13. Monitoring procedures are to be so 
specified that assignment adjustments will be 
acted upon when trends of racial changes are 
noted. These procedures are to be made spe­



34
cific with respect to degrees of change and 
timing of remedial actions to be taken," 
(NAACP Ex. 2, p. 8, R. Vol. IV, 6; App„ 233, 
92-93)

During the course of the trial Mr. E. Brice Cunning­
ham, Respondent-N A A CP's lead attorney, on 
February 19, 1976, advised the Court as follows con­
cerning the propriety of leaving grades K-3 in their 
current neighborhood schools: (R. Vol. IV, 303; App., 
109-110)

"The members of the NAACP can see justifi­
cation possibly for K through three because 
we are dealing with young children, the first 
time in school. I have talked with some teach­
ers and they explained that these kids may lose 
their or may have problems being there the 
first time but for nine through twelve there is 
no justification that we can see."

The Final Order allows grades K-3 to so remain in 
their neighborhood schools.

The Court of Appeals recognized:

(a) that the School District is the eighth largest ur­
ban school district in the country (Estes Pet. App. "C ", 
131a),

(b) that the School District has been the subject of



35
desegregation litigation in various actions since 1955 
(Estes Pet. App. "C", 132a),

(c) that the primary attack upon the student assign­
ment plan in question is based upon the claim that the 
plan cannot pass constitutional muster because of the 
large number of one-race schools it establishes (Estes 
Pet. App. “C", 132a),

(d) that since 1971 substantial changes have oc­
curred in the School District, residential patterns of 
Dallas have shifted, many areas are now naturally in­
tegrated, what was formerly a majority Anglo school 
system has become a predominantly minority school 
system, that in 1971 the school system was 69% (sic 
59%) Anglo, and that in 1975 it was 41.1% Anglo, 
44.5% Black, 13.4% Mexican-American and 1% “other" 
(Estes Pet. App. "C", 134a, 135a),

(e) that there may be special considerations in­
volved in devising a school desegregation plan in an ur­
ban area with a predominantly minority enrollment 
that may justify the maintenance of some one-race 
schools (Estes Pet. App. "C ", 134a),

(f) that in devising the plan in question the District 
Court considered numerous proposals to desegregate 
the school system, among which were plans submitted 
by the original Plaintiffs, the NAACP Intervenors, the 
School District, a Court-appointed expert and a tri­
ethnic Amicus Curiae group (Estes Pet. App. "C ", 
134a), and



(g) that after a voluminous record and holding 
hearings for over a month on the feasibility and effec­
tiveness of these proposals that the District Court 
drew a comprehensive plan dealing, inter alia, with 
special programs, transportation, discipline, facilities, 
personnel, and an accountability system, as well as stu­
dent assignment (Estes Pet, App. "C ", 134a).

At the conclusion of the liability phase of this action 
on July 16, 1971, (as distinguished from any phase of 
this case involving the nature and content of any re­
medial order) the District Court made no findings that 
any matters pertaining to the operation and manage­
ment of the business and affairs of the School District 
or any matters pertaining to the education, curricu­
lum and program aspects of the School District consti­
tuted a deprivation by the School District of any rights 
secured any minority student by the Constitution or 
laws of the United States. Further, the Court made no 
findings at the conclusion of the liability phase of this 
action on July 16,1971, (Brinegar Pet. App. A, A -l - A- 
6) that any student by reason of his or her race, color or 
national origin had been excluded from participation in, 
been denied the benefits of, or been subjected to dis­
crimination under any program or activity receiving 
federal financial assistance as covered by the Civil 
Rights Act of 1964, including Section 601 of that Act. 
42 U.S.C. §2000d.

The Judge of the District Court has presided in this 
second case from its beginning. From its March 10,



37
1976, Opinion and Order it is obvious that the District 
Court has recognized and considered all the many com­
plex factors involved in fashioning a desegregation 
remedy for the School District. Over the strenuous ob­
jections of the School District, the District Court an­
ticipated the subsequent June 27, 1977, decision of this 
Court in Milliken II and ordered comprehensive non­
student assignment provisions in the remedy.2 Sum­
mary examples of the non-student assignment re­
quirements included in the District Court's remedy are 
set out in Estes Petition Appendix "F", 152a-157a.

The Court of Appeals appears to recognize the 
careful study and consideration that the District Court 
had given the case and the many complex factors in­
volved in fashioning the remedy. The Court of Appeals 
even noted that there may be special considerations in­
volved in devising a school desegregation plan in an ur­
ban area with a predominantly minority enrollment 
that may justify the maintenance of some one-race 
schools. Nevertheless, the Court of Appeals con­
sidered the number of one-race schools as controlling 
and remanded the case to the District Court for the 
formulation of a new student assignment plan and for 
findings to justify the maintenance of any one-race 
schools that may be a part of that plan.

2 Nothing contained in this brief is to be construed as a waiver by 
the School District of its right on remand to object to the introduc­
tion of all evidence and to all parts of any plan or proposal as might 
pertain to non-student assignment matters and to object to the in­
clusion of non-student assignment provisions in any remedial 
order and the School District specifically reserves its right to so 
object.



38

SUMMARY OF THE ARGUMENT

A. In addressing the four specific problem areas 
with respect to the centra! issue of student assign­
ment, Swann left school authorities and lower courts 
confronted with a serious dilemma — how to reconcile 
the language pertaining to racial balance or quotas with 
the language concerning the elimination of every all- 
Negro and all-white school. The Court of Appeals seiz­
ed upon one problem area, the number of one-race 
schools, and elevated it to the controlling factor to 
resolve the "no racial balance or quota — elimination of 
one-race schools" dilemma. This was done to accom­
modate the Respondent-NAACP demand for racial 
balance. The Court below in effect erroneously con­
strued Swann to require that every one-race school 
must be eliminated. One-race schools cannot be elimi­
nated, and are not required to be eliminated, in this 
large urban school system given the facts of this case. 
Swann's comment that school authorities and district 
judges will necessarily be concerned with the elimina­
tion of one-race schools should not be read to require 
that every one-race school must be eliminated or to re­
quire findings to justify one-race schools. None of 
Swann's language addressing that concern can be so con­
strued. Contrary to Swann, the Court of Appeals has 
developed a "per se rule" and made the elimination of all 
one-race schools the controlling factor to be con­
sidered in determining whether a remedy is consistent 
with the Equal Protection Clause and this Court's 
decisions in Swann and Milliken II. The one-race school



criteria seized upon by the Court of Appeals is an exam­
ple of how Green v. New Kent County thinking can bring 
lower courts to an erroneous interpretation of Swann in 
cases involving large urban school systems. A national 
educational crisis exists in large urban school systems 
because some federal courts refuse to admit that Swann 
must be interpreted in light of the urban condition as it 
exists in these school systems. The District Court was 
one federal court that did recognize this fact. New and 
innovative approaches are appropriate in desegrega- 
tionm atters — . . in this field the way must always be
left open for experimentation." United States v. Mont­
gomery County Board of Education, 395 U.S. 225, 235 (1969). 
Otherwise the judicial goal of a plan that promises 
realistically to work now in such school systems will 
not be reached.

B. The District Court's Final Order should be af­
firmed in its entirety: Respondent-Plaintiffs'attorneys 
in seeking and receiving an award of attorneys' fees 
have admitted that the District Court's Final Order af­
fords Black and Mexican-American students the relief 
sought. The lead counsel for Respondent-NAACP has 
publicly conceded that Respondent-NAACP does not 
know how to eliminate certain all-black schools in the 
School District.

C. The Court of Appeals' concern with the ab­
sence of time and distance studies was unwarranted. 
The District Court was fully aware of the realities of 
time and distance. Given the evidence in the record of

3 9



40
demographic housing patterns and changes, the wide­
ly separated location of predominantly Anglo students 
and predominantly minority students, the location of 
naturally integrated neighborhoods, and the testimony 
of certain witnesses, the District Court had no need to 
be concerned with formal time and distance studies. No 
formal detailed time and distance studies were offered 
by any party. If the District Court and the parties con­
sidered that this case could be decided on the evidence 
without such studies, then surely the Court of Appeals 
should have been able to do so. The Court of Appeals7 
concern for the absence of time and distance studies is 
but further evidence that the Court of Appeals inter­
prets Swann to require that every one-race school must 
be eliminated.

D. "Vestiges" as used by the District Court in both 
1971 and 1976 was employed in the sense of a "trace of 
something formerly present," i.e., that which had once 
existed but has passed away or disappeared. The dual 
system was no more. Only its trace must now be re­
moved from the system. Here the District Court has 
found only a limited constitutional violation exists — a 
trace of a former dual system. It is this trace of 
something formerly present with which we are now 
concerned. The District Court formulated a plan to 
remedy only these "vestiges" without exceeding the 
District Court's equitable powers and responsibility to 
balance public and private needs. A drastic remedy con­
templated by the Court of Appeals with its emphasis on 
the elimination of all one-race schools is not required or



41

permitted in this case in order to remove this trace of 
something formerly present. The judicial task is to cor­
rect the condition that offends the Constitution. The 
District Court's Final Order meets this standard.

E. The District Court correctly refused to follow 
Respondent-NAACP's "single-minded commitment to 
racial balance." Recognizing all the complex factors in­
volved, the District Court anticipated the subsequent 
June 27, 1977, decision of this Court in Milliken II and 
properly considered education-oriented alternatives. 
The decision of the Court of Appeals does not refer to 
this Court's opinion in Milliken II. Thus the decision of 
the Court of Appeals in effect interprets Swann to mean 
that the non-student assignment provisions contained 
in the remedial order in question, including remedial 
educational programs, are not to be considered as 
desegregation tools or techniques. The Court of 
Appeals has made too limited a reading of Swann in the 
light of this Court's decision in Milliken II.

F. The Court of Appeals has looked with approval 
upon the fact that district courts have appointed bi- 
racial committees to study and make recommenda­
tions for school desegregation plans. Jones v. Caddo Parish 
School Board, 487 F.2d 1275, 1276, 1277 (5th Cir. 1973). 
While the tri-ethnic committee involved here might 
not have been initially appointed to render this service, 
the background, origin and development of the District 
Court's Final Order is tantamount to initial appoint­
ment of a tri-ethnic committee to study and make rec-



ommendations. The District Court's Final Order has 
considerable support in the community among both 
Anglo and minority citizens. That support is evident 
from the vote in favor of the $80,000,000.00 school im­
provement bond issue at the election held on December 
11, 1976. That bond election carried in Black precincts 
such as the East Oak Cliff area and in South Dallas.

G. Swann is to be interpreted in light of the urban 
condition present in school systems such as Dallas. Un­
less the District Court's realistic approach to such a 
school system is affirmed by this Court, desegregation 
litigation involving these school systems will go on and 
on over the years and will end only when such school 
systems become virtually all-black or virtually all-black 
and Mexican-American. Given the origin and develop­
ment of the District Court's Final Order and the facts 
of this case, this is a school desegregation case in which 
the District Court's Final Order should be approved 
and affirmed in its entirety and over twenty-four years 
of litigation brought to a conclusion.

ARGUMENT

4 2

Among the issues before the Courts below was the 
constitutionality of the remedy formulated by the Dis­
trict Court to eliminate the vestiges of a state-imposed 
dual school system in a large urban school system. In 
particular a system that is now minority Anglo, with an 
ever decreasing percentage of Anglo students, that 
now requires a tri-ethnic remedy and which has been



the object of ongoing litigation to formulate a remedy 
since Brown II. It is obvious from the directions given 
the District Court on remand that the Court of Appeals 
considered the number of one-race schools to be the 
controlling criteria for determining the appropriate­
ness of a remedy for such school systems. That is not 
what this Court said concerning one-race schools in 
Swann. That is not what this Court in effect construed 
Swann to mean in Milliken II.

Here, as in Swann, the central issue is that of student 
assignment. Swann addressed four specific problem 
areas with respect to this central issue: (1) racial 
balance or racial quotas, (2) one-race schools, (3) re­
medial altering of attendance zones, and (4) transporta­
tion of students. (402 U.S. at 22)

However, in addressing those four problems, the 
Court left school authorities and lower courts con­
fronted with a serious dilemma — how to reconcile 
Swann's language pertaining to racial balance or racial 
quotas with Swann's language concerning the elimina­
tion of every all-Negro and all-white school.

The District Court sought to articulate this dilemma 
in its March 10, 1976, Opinion and Order: (Estes Pet. 
App. "B ", 9a, 10a)

"In adopting a student assignment plan, this 
Court is required to arrive at a delicate balance 
— the dual nature of the system must be elim­

43



4 4

inated; however, a quota system cannot be im­
posed. The Supreme Court ruled in Swann, 
supra at 26, that

[t]he district judge or school authorities 
should make every possible effort to 
achieve the greatest possible degree of ac­
tual desegregation  and will thus 
necessarily be concerned with the elimina­
tion of one-race schools.

"O n the other hand, the Supreme Court held 
that

[ t] he con stitu tion al command to
desegregate schools does not mean that 
every school in every community must 
always reflect the racial composition of the 
school system as a whole." (Emphasis ours)

The Court of Appeals seized upon one of the problem 
areas addressed by Swann, to wit, the number of one- 
race schools, and elevated that one problem area to the 
controlling factor. Elevation of the one-race school 
problem area to that of primary importance is the 
means by which the Court of Appeals has resolved this 
dilemma posed by Swann's language.

The "no racial balance or quota - elimination of one- 
race schools" dilemma of Swann leads courts such as the 
Court below to attempt desegregation through racial 
balance by focusing on the elimination of one-race



4 5

schools as the controlling factor to be considered in de­
termining whether a remedy is consistent with the 
Equal Protection Clause and this Court's decisions.

In Keyes v. School District No. 1, 413 U.S. 189, 200 (1973), 
this Court pointed out that it has never suggested that 
plaintiffs must bear the burden of proving de jure 
segregation as to each and every school or student. The 
Court of Appeals by its requirement for findings to 
justify one-race schools has erroneously directed 
judicial efforts at a remedy toward the individual school 
rather than school systems.

Unless the District Court orders a racial balance plan, 
the Court of Appeals may well continue to remand this 
case until there is finally ordered a plan which elimi­
nates all one-race schools through the use of racial 
balance or quotas. In doing so the Court below must of 
necessity ignore facts present in this school system and 
this Court's holding in Milliken II.

Lower court interpretations of Swann, as in the Court 
of Appeals, create such uncertainties with respect to 
school systems such as Dallas that nothing is resolved. 
Such lower court readings of Swann create such unfor­
tu n ate social and economic circumstances in 
metropolitan cities that the results have become a 
national educational tragedy. All that now occurs un­
der Swann with respect to school systems such as Dallas 
is constant district court hearings, appeals and 
remands. The District Court had a solution for a



national problem. The Court of Appeals rejected this 
solution. The decision of the Court of Appeals should 
be reversed. The decision of the District Court should 
be affirmed.

In Point I of this brief the School District shall show 
that the decision of the Court of Appeals is in conflict 
with this Court's decisions in Swann and Milliken II. In 
Point II the School District will discuss the origin of the 
District Court's Final Order, the need for further word 
from this Court and why the District Court's Final 
Order should be affirmed in its entirety.

I.

The Elimination O f All One-Race Schools Is 
Not The Controlling Factor To Be Con­
sidered In Determining Whether The 
Remedy Formulated By The District Court Is 
Consistent With The Equal Protection Clause 
And This Court's Decisions in Swann v. 
Charlotte-Meckienburg Board of Education, 402 U.S.
1, And Milliken v. Bradley, 433 U.S. 267 (Milliken 
II).

The Court Of Appeals Has Misconstrued Swann's 
Holding With Respect To The Central Issue Of Student 
Assignment And In Particular Swann's Language 
Concerning The Specific Problem Area Of One-Race 
Schools.

4 6



Swann states the question to be: (402 U.S. at 22)

"(2) whether every all-Negro and all-white 
school must be eliminated as an indispensable 
part of a remedial process of desegregation;" 
(Emphasis ours)

Swann does not require that every one-race school 
must be eliminated as an indispensable part of the 
remedy. But in an apparent effort to judicially sanction 
the Respondent-NAACP demand for racial balance, 
the Court below in effect construed Swann to require 
that every one-race school must be eliminated as an in­
dispensable part of the remedy. Otherwise there would 
be no need on remand for District Court findings to 
justify the maintenance of any one-race schools, as was 
so pointedly required by the Court of Appeals.

In speaking of the "violation" phase of school 
desegregation proceedings, this Court in Washington v. 
Davis, 426 U.S. 229, 240 (1976), made clear, "That there 
are both predominantly black and predominantly white 
schools in a community is not alone violative of the 
Equal Protection Clause." But as to the "remedy" phase 
of school desegregation litigation, the Court below was 
not disposed to permit one-race schools, even given the 
facts of this case and the special conditions that exist in 
this large urban school district.

If the existence of predominantly black and pre­
dominantly white schools in a community is not alone a 
violation of the Equal Protection Clause; then the elim­



48

ination of all one-race schools should not be the con­
trolling factor in determining whether a remedy is con­
sistent with the Equal Protection Clause and this 
Court's decisions. If such were the case, then the elim­
ination of all one-race schools as such a remedy would 
be directly contrary to this Court's oft-repeated 
language in school desegregation cases that the nature 
of the violation determines the scope of the remedy. 
(Swann, 402 U.S. at 16)

If racial balance or racial quotas are not to be used as 
an implement in a remedial order, then one-race 
schools cannot be eliminated in this large urban school 
system given the demographic phenomena present 
here. As recognized by this Court in Swann, in 
metropolitan areas minority groups are often found 
concentrated in one part of the city. (402 U.S. at 25) 
Such is the case in this School District. But also to be 
considered here is the location within the School Dis­
trict of naturally integrated areas and schools in rela­
tion to the areas containing the remaining predomi­
nantly Anglo students and the areas containing pre­
dominantly Mexican-American or Black students. The 
predominantly Mexican-American or Black students 
reside to the south and southeast in areas distant from 
the predominantly Anglo students. Separating the re­
maining predominantly Anglo students and the pre­
dominantly Mexican-American or Black students are 
large portions of the naturally integrated areas and 
schools. (Maps, Def. Exs. 1, 2 and 3; App., 219, 220, 221)



4 9

Nor is the school system required to make continual 
changes in a mobile society. Change in neighborhood 
patterns caused by citizens themselves can bring about 
a desired result as shown by the Court's thinking in 
Swann. (402 U.S. at 25) School systems may rely in part 
upon their patrons moving about and upon changing 
neighborhood patterns to eliminate schools of one race. 
Certainly this has been the solution in many areas of 
the School District where schools previously serving 
all-white neighborhoods have become mixed through 
population changes brought about by changes in 
neighborhood residential patterns.

Changes in neighborhood residential patterns have 
in many instances brought about the very number of 
one-race schools of concern to the Court of Appeals. 
Swann does not hold such school systems responsible 
for the effect of these changing neighborhood 
patterns. (402 U.S. at 31) The School District serves a 
community that is not demographically stable. The 
School District serves a growing, mobile society in this 
nation.

At the time of filing of the instant action on October 
6, 1970, the School District had operated and conduct­
ed its schools since September 1, 1965, pursuant and 
obedient to a plan of desegregation ordered and 
directed by the District Court and the Court of Appeals 
in a prior, pending desegregation proceeding. Any 
"long history" of the School District in maintaining two 
sets of schools — one for white and one for black —



50

came to a complete end on September 1, 1967, as 
authorized by those Courts in such prior proceeding.

In ordering the racially desegregated single attend­
ance districts within the School District in such prior 
proceeding, the District Court and the Court of 
Appeals recognized, authorized and permitted 
neighborhood schools. This was the culmination of the 
Black student's struggle to attend the desired one and 
only neighborhood school serving his place of 
residence. There was no interference with that 
struggle by the School District through free transfer or 
freedom of choice or any other scheme or device. If 
neighborhood residential patterns reflect schools in the 
School District in which one race predominates, such a 
condition results from housing selections made by 
school patrons after the School District complied with 
orders of the District Court and the Court of Appeals 
creating and requiring racially desegregated single at­
tendance districts and not otherwise,3 In the instant 
case, close scrutiny by the District Court has deter­
mined that school assignments are not part of state en­
forced segregation. (402 U.S. at 26)

Swann's comment that school authorities and district 
judges will necessarily be concerned with the elimina­
tion of one-race schools (402 U.S. at 26) should not be 
read to require that every one-race school must be

3 The School District is cognizant of this Court's observation on 
"step at a time" plans. Cf. Pasadena City Board of Education v. Spangler, 
427 U.S. 424, 435, citing United States v. Montgomery County Board of 
Education, 395 U.S. 225.



eliminated or to require findings to justify one-race 
schools. None of Swann's language addressing that con­
cern can be so construed.

5 1

In addressing the matter of concern as to the elimina­
tion of one-race schools, Swann recognized that “no per 
se rule can adequately embrace all the difficulties." (402 
U.S. at 26) However, the Court of Appeals has devel­
oped a “per se rule" and made it the controlling factor. 
This is evident from the fact that out of the four 
problem areas addressed by this Court in Swann, the 
Court of Appeals did not require the District Court to 
make specific findings except in one instance — to justify 
the number of one-race schools.

Nowhere does Swann in its discussion of one-race 
schools require findings to justify one-race schools 
with respect to this concern. At most Swann indicates 
that the need for remedial criteria of sufficient 
specificity warrants a presumption against schools that 
are substantially disproportionate in their racial com­
position. (402 U.S. at 26) A need that warrants a pre­
sumption is not a requirement that every one-race 
school must be eliminated. The existence of a pre­
sumption is not a requirement for findings to justify 
one-race schools.

Here the burden of showing that school assignments 
made in the remedy in question are genuinely nondis- 
criminatory has been met. As required by Swann, the 
District Court has carefully scrutinized the matter of 
one-race schools. The burden to satisfy the District



52
Court that the racial composition of schools is not the 
result of present or past discriminatory action on the 
part of school authorities has been successfully met to 
the satisfaction of the District Court.

The one-race school criteria seized upon by the 
Court of Appeals is an example of how Green v. New Kent 
County4 thinking can bring lower courts to an erroneous 
interpretation of Swann in cases involving large urban 
school systems. In the instant case we are dealing with 
a system of some 800,000 to 900,000 persons, oper­
ating some 183 school buildings with approximately 
140,000 students of whom 41.1% were Anglo, 44.5% 
were Black and 13.4% were Mexican-Arnerican. In 
Green the school system operated only two schools in a 
rural county of some 4,500 population. One was a 
white combined elementary and high school and one 
was a Negro combined elementary and high school. 
The school system served approximately 1,300 pupils, 
740 of whom were Negro and 550 of whom were white. 
Facts and conditions are not the same. It is one thing to 
think in terms of no one-race schools in New Kent 
County, Virginia, with only two schools in that entire 
rural system, but focusing on such an overly simplistic 
approach in considering a remedy for this large urban 
system has brought the Court below to an erroneous 
construction of Swann and to a decision in conflict with 
Swann when read in its entirety.

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



5 3

A national educational crisis exists in large urban 
school systems because some federal courts refuse to 
come to grips with the fact that Swann must be inter­
preted in light of the urban condition as it exists in 
these school systems. The District Court was one 
federal court that did recognize that Swann must be in­
terpreted in light of the urban condition in such school 
systems. The District Court's March 10, 1976, Opin­
ion and Order well states the anguish and agony that 
district courts must go through in formulating 
remedies in such school systems. In the District Court's 
language in part:

"In this complex and ever-changing area of the
law, it is difficult if not impossible to discover
hard and fast rules for the Court to follow."
(Estes Pet. App. "B", 7a)

*  *  *

". . . school districts are like fingerprints — 
each one is unique. Although the goal of a uni­
tary, non-racial system is a constant, the 
method or plan for achieving that goal must be 
tailored to fit the particular school district in­
volved. A plan that is successful in a district 
having a small student population or occupy­
ing a small area geographically, a rural district, 
a county-wide district, or a majority Anglo 
school district, will not necessarily be suc­
cessful in a large urban district such as the 
D ISD ." (Estes Pet. App. "B", 8a)



54

This Court has recognized that new and innovative 
approaches are appropriate in desegregation matters — 

. . in this field the way must always be left open for 
experimentation/' United States v. Montgomery County 
Board of Education, 395 U.S. 225, 235 (1969). Granted that 
the judicial goal must be the development of a decree 
that promises realistically to work and promises 
realistically to work now, it nevertheless defies all logic 
and common sense to refuse to allow a district court to 
choose a plan that takes into account the urban condi­
tion in such school systems. Otherwise the judicial goal 
of a plan that promises realistically to work now in such 
school systems is reduced to a shambles.

Stripped of all desegregation rhetoric, the decision of 
the Court of Appeals is an erroneous effort to require 
the District Court to order racial balance in each school. 
This is the very solution sought by Respondent- 
NAACP as made abundantly clear in its desegregation 
plan filed with the District Court. The requirement of 
racial balance has been pointedly rejected by this Court. 
Swann, 402 U.S. at 24; Milliken v. Bradley, 418 U.S. 717, 
740, 741 (1974).

This Court is urged to make known to the nation's 
lower courts that the discussion in Swann of one-race 
schools while addressing four specific problem areas 
with respect to student assignment is not to be con­
strued in such a way as to indirectly achieve that which 
is not required, to wit, racial balance.



Actions And Admissions Of The Respondent-Plaintiffs 
And The Respondent-NAACP Are Contrary To The 
One-Race School Criteria Seized Upon By The Court 
Of Appeals.

Both the District Court and the Court of Appeals 
have recognized Respondent-Plaintiffs as representa­
tive of the class of Black and Mexican-American 
students in the School District,

Both of Respondent-Plaintiffs' plans have been aban­
doned by Respondent-Plaintiffs in this action. 
Respondent-Plaintiffs' attorneys in seeking an award 
of attorneys' fees have admitted that the District 
Court's Final Order affords Black and Mexican- 
American students the relief sought.

The lead counsel for Respondent-NAACP has ad­
mitted publicly that Respondent-NAACP does not 
know how to eliminate certain all-black schools in the 
School District, If, in the words of Respondent- 
NAACP's counsel, the Respondent-NAACP has ", . . 
not yet come up with an alternative to some all-black 
schools," then the Court of Appeals should not read 
Swann to require the District Court to be wiser than 
Respondent-NAACP.

Neither Respondent-Plaintiffs nor Respondent- 
NAACP should be heard to urge on behalf of Black 
students a remand to the District Court for the formu­
lation of a new student assignment plan and for find­

55



ings to justify the maintenance of any one-race schools 
that may be a part of that plan as ordered by the Court 
of Appeals. Both the School District and the Courts 
should be spared the constant litigation that of necessi­
ty results when separate litigants representing 
members of the same alleged class of students cannot 
agree upon the nature and propriety of the relief ob­
tained in a school desegregation proceeding.

Actions and admissions of Respondent-Plaintiffs and 
Respondent-NAACP do not support the "one race 
school remand" of the Court of Appeals. The Court of 
Appeals had no need or justification on this record to 
promulgate its own "per se rule" as to the number of 
one-race schools in order to remand.

Time And Distance Studies Were Not Necessary.

The Court of Appeals' concern for the absence of 
time and distance studies in the record and the conse­
quences of such absence is unnecessary under the par­
ticular facts of this case. The Court of Appeals has 
erroneously assumed that the District Court was com­
pletely unaware of the realities of time and distance. In 
fact, however, the District Court was well aware of the 
realities of time and distance. In setting forth its stu­
dent assignment criteria within subdistricts, the Dis­
trict Court states, "8. Transportation distance and time 
are minimized to the extent possible." (Estes Pet, App. 
"B", 56a, 57a)

5 6



57
Given the evidence in the record of demographic 

housing patterns and changes, the widely separated 
location of predominantly Anglo students and pre­
dominantly minority students, the location of naturally 
integrated neighborhoods, and the testimony of the 
witnesses, Dr. Charles V. Willie, Mr. Edward B. Clout- 
man, III, and Dr. Paul Geisel, the District Court had no 
need to be concerned with formal time and distance 
studies nor should the Court of Appeals have been con­
cerned with formal time and distance studies under the 
record in this case.

Formal time and distance studies would have only 
encumbered the record. There was no need to formal­
ly summarize the obvious. The obvious was certainly 
recognized by Respondent-Plaintiffs as to East Oak 
Cliff in the thrice repeated language of their own — but 
now abandoned — Plan B and by the testimony of their 
own attorney-witness, Mr. Edward B. Cloutman, III, 
given in explanation of that language.

The fact that no formal detailed time and distance 
studies were offered by any party should indicate that 
such studies were not required in this particular school 
desegregation case.

For the Court of Appeals to become overly con­
cerned by the absence of formal time and distance 
studies which neither the District Court nor any party 
considered necessary is but further example that the 
Court of Appeals considered the number of one-race



schools to be the controlling criteria for determining 
the appropriateness of the remedy formulated by the 
District Court, If the District Court and the parties 
considered that this case could be decided on the 
evidence without such studies, then surely the Court 
of Appeals should have been able to do so.

Elimination Of All One-Race Schools Cannot Be The 
Controlling Factor When The District Courtis Formu­
lating A Remedy To Eliminate The Vestiges Only Of A 
State-Imposed Dual System.

Cases such as this represent one of the great judicial 
fictions of our time. Since August of 1971, this School 
District has been operating under United States Dis­
trict Court "statute or constitution," i.e., desegregation 
remedies — including student assignment provisions 
— ordered by a federal court. Regardless of whether 
those remedies have survived Court of Appeals review, 
this United States District Court "law" has governed 
large parts of this School District's operations since the 
1971-1972 school year. This many years after Brown I 
there is no way to unscramble the so-called "vestiges" 
of a dual system imposed by state "law" from the 
"vestiges" of United States District Court "law". To 
pretend otherwise is pure fiction. At least the District 
Court has sought to be intellectually honest in its ap­
proach.

In its March 10, 1976, Opinion and Order the Dis­
trict Court explained that in the present case we are in­

5 8



volved only with "vestiges" of a state-imposed dual 
system and went on to point out that its findings in 
1971 were that the "vestiges" of a dual system re­
mained; not that the School District was a dual system 
in 1971. In the District Court's language: (Estes Pet. 
App. "B", 12a)

"This Court has kept in mind throughout 
these proceedings that its findings in 1971 
were that the 'vestiges' of a dual school system 
remained in the DISD, and not that the DISD 
was a dual system at that time. The plan 
adopted now must therefore remedy these 
vestiges without exceeding this Court's 
equitable powers to balance public and private 
needs."

"Vestiges" as used by the District Court in both 1971 
and 1976 was employed in the sense of a "trace of some­
thing formerly present," (Webster's Third New Internation­
al Dictionary, G. & C. Merriam Company, Publishers, 
Springfield, Massachusetts, 1971, p. 2547), i.e., that 
which had once existed but has passed away or dis­
appeared. The dual system was no more.5 Only its trace 
must now be removed from the system.

Nowhere does the Court of Appeals question the 
findings and explanation made by the District Court in

5 Accordingly, the District Court's finding in its July 16, 1971, 
Memorandum Opinion that elements of a dual system still remain 
(Brinegar Pet. App. A, A-2) is not to be read as a holding that the 
School District was a dual system in whole or in part in 1971.

59



this regard, or acknowledge that it is only the most 
limited of constitutional violations — a trace — which is 
to be remedied in the School District.

The District Court did not have before it a stubborn 
obstinate southern school system untouched by 
judicial hands or unaware of its responsibilities to 
operate a unitary system. The most that the District 
Court found in 1971 was a trace of something former­
ly present. A drastic remedy is not required. The 
judicial task is to correct the condition that offends the 
Constitution. The student assignment plan contained 
in the District Court's Final Order meets this standard. 
This Court has sought to make clear to the lower 
courts the very important principle of equity 
jurisprudence that the scope of the remedy is deter­
mined by the nature and extent of the constitutional 
violation.

The District Court has recognized the strides that 
the School District has made to provide equal 
educational opportunity for all and is aware of the 
results of natural changes in residential patterns over 
the years. (Estes Pet. App. "B", 14a-18a)

Without doubt this Court in Swann sought to make 
known to the lower courts that there should be an end 
to a desegregation case. Otherwise, there would have 
been no necessity for this Court to speak of "the in­
terim period" when remedial adjustments in attend­
ance zones are being made to eliminate dual school 
systems. (402 U.S. at 28) Use of the word "interim "

60



61
suggests a temporary period in the federal court house; 
not a permanent state of litigation. Further, there 
would have been no necessity for this Court in Swann to 
recognize that at some point school systems would be 
"unitary" even in a growing mobile society and to 
specifically hold that neither school authorities nor dis­
trict courts are constitutionally required to make year- 
by-year adjustments of the racial composition of stu- 

^  dent bodies once the affirmative duty to desegregate 
has been accomplished and racial discrimination 
through official action is eliminated from the system. 
Swann, 402 LJ.S. at 31, 32; Pasadena City Board of Education v. 
Spangler, 427 U.S. 424 (1976)

Here the District Court has found only a limited con­
stitutional violation exists — a trace of a former dual 
system. It is this trace of something formerly present 
with which we are now dealing in the School District. 
The District Court formulated a plan to remedy only 
these "vestiges" without exceeding the District Court's 
equitable powers and responsibility to balance public 
and private needs. A drastic remedy contemplated by 
the Court of Appeals with its emphasis on the elimina­
tion of all one-race schools is not required or permitted 
in this case in order to remove this trace of something 
formerly present.

The Court Of Appeals Should Have Considered And 
Determined The Non-Student Assignment Provisions 
Of The Remedy Formulated By The District Court As 
Appropriate Tools Or Techniques Of Desegregation



Consistent With The Equal Protection Clause And This 
Court's Decision In Milliken II.

In Milliken II, this Court determined that the four 
educational components which had been ordered by 
the District Court for Detroit and were at issue before 
this Court were tools or techniques of desegregation. 
These educational components prospectively were de­
signed to wipe out conditions of inequality produced by 
a dual school system and to bring about the delayed 
benefits of a unitary system. (433 U.S. at 290)

The decision of the Court of Appeals does not refer 
to this Court's opinion in Milliken II. Thus the decision 
below in effect interprets Swann to mean that the non­
student assignment provisions contained in the re­
medial order in question, including remedial educa­
tional programs, are not to be considered as desegrega­
tion tools or techniques. The Court of Appeals has 
made too limited a reading of Swann in the light of this 
Court's decision in Milliken II. Contrary to Milliken II, 
the Court of Appeals has decided that certain remedial 
educational programs may not be considered as 
desegregation tools or techniques.6

The Judge of the District Court has presided in this 
case from the beginning. From its March 10, 1976,

6 The School District approves of the Court of Appeals' han­
dling on remand of the non-student assignment portions of the 
Final Order under review. Such an approach was fair, just and ap­
propriate on remand in view of the School District's admittedly 
unique position in this appeal as noted by the Court of Appeals in 
footnote 8 of the decision. (Estes Pet. App. "C", 135a)

6 2



6 3

Opinion and Order it is obvious that the District Court 
has a thorough knowledge of the School District and 
has recognized and considered student ethnic compo­
sition, housing patterns, geography, time, distance, 
natural boundaries, traffic considerations, "practicali­
ties," age, health and safety of students, equal educa­
tional opportunity, and all other factors involved in ap­
plying techniques for desegregation.

Consequently the District Court could not help but 
realize that the location of naturally integrated 
neighborhoods and the widely separated residential 
locations of Anglo students and minority students 
would not permit effective additional pairing and clus­
tering or new attendance zones and that the widely 
separated location of Anglo students and minority 
students considered in the light of time and distance, 
natural boundaries, traffic considerations and other 
factors together with the minority Anglo composition 
of the School District's students dictated against the 
feasibility of additional transportation.

But the District Court did not let such obstacles stop 
its efforts to fashion an appropriate remedy. Recogniz­
ing all the complex factors involved, and over the 
strenuous objections of the School District, the District 
Court anticipated the subsequent June 27, 1977, deci­
sion of this Court in Milliken II and included the non­
student assignment provisions in its remedial order.

In Milliken II (footnote 3, 433 U.S. at 271), this Court 
took note of the fact that of the total Detroit student



population 71.5% were Negro and 26.4% were white 
and the remaining 2.1% were comprised of students of 
other ethnic groups. In Dallas, as in Detroit, the Dis­
trict Court had to deal with the realities of a minority 
Anglo school system.

The rationale for affirmance of the District Court's 
Final Order in its entirety is to be found in Integration 
Ideals and Client Interests, 85 Yale L.j. 470 (March, 1976)7 
Professor Bell presents an effective argument as to 
why the traditional NAACP approach to racial balance 
and busing in large predominantly minority school 
systems will not work and is self-defeating. The author 
suggests that the time has come for the NAACP to end 
its "single-minded commitment to racial balance" and 
consider education-oriented alternatives. He argues 
that the courts can properly afford that relief in re­
medial orders. In the author's language:

"In the last analysis, blacks must provide an 
enforcement mechanism that will give educa­
tional content to the constitutional right rec­
ognized in Brown. Simply placing black chil­
dren in 'white' schools will seldom suffice. 
Lawyers in school cases who fail to obtain 
judicial relief that reasonably promises to im-

7 The article identifies the author, Derrick A. Bell, Jr., as a 
Professor of Law at Harvard University who from 1960 to 1966 
was a staff attorney specializing in school desegregation cases 
with the NAACP Legal Defense Fund and from 1966 to 1968 was 
Deputy Director, Office for Civil Rights, U.S. Department of 
Health, Education and Welfare.

64



65
prove the education of black children serve 
poorly both their clients and their cause." Bell, 
at 514, 515.

*  *  *

"But civil rights groups refuse to recognize 
what courts in Boston, Detroit, and Atlanta 
have now made obvious: where racial balance 
is not feasible because of population concen­
trations, political boundaries, or even educa­
tional considerations, there is adequate legal 
precedent for court-ordered remedies that 
emphasize educational improvement rather 
than racial balance." Bell, at 487.

*  *  *

"Conclusion

"The tactics that worked for civil rights 
lawyers in the first decade of school 
desegregation — the careful selection and fil­
ing of class action suits seeking standardized 
relief in accordance with set, uncom­
promising national goals — are no longer un­
failingly effective. In recent years, the relief 
sought and obtained in these suits has helped 
to precipitate a rise in militant white opposi­
tion and has seriously eroded carefully culti­
vated judicial support. Opposition to any civil 
rights program can be expected, but the 
hoped-for improvement in schooling for black 
children that might have justified the sacrifice 
and risk has proven minimal at best. It has



66
been virtually nonexistent for the great mass 
of urban black children locked in all-black 
schools, many of which are today as separate 
and unequal as they were before 1954.

"Political, economic, and social conditions 
have contributed to the loss of school 
desegregation momentum; but to the extent 
that civil rights lawyers have not recognized 
the shift of black parental priorities, they have 
sacrificed opportunities to negotiate with 
school boards and petition courts for the 
judicially enforceable educational improve­
ments which all parents seek. The time has 
come for civil rights lawyers to end their 
single-minded commitment to racial balance, a 
goal which, standing alone, is increasingly in­
accessible and all too often educationally im­
potent." Bell, at 515, 516.

The District Court refused to follow a "single- 
minded commitment to racial balance." The District 
Court has accepted the concept that the Fourteenth 
Amendment permits remedial educational programs to 
be used as desegregation tools or techniques. On the 
other hand, the Court of Appeals by its refusal to even 
refer to or discuss this Court's decision in Milliken II has 
made known to school authorities and district courts 
that it rejects this concept under the facts of this large 
urban school system. By its remand the Court of 
Appeals demonstrated that it considers racial balance 
to be the only solution in large urban school systems,



regardless of the facts and circumstances in any given 
large urban school system.

II.

Why The District Court's Final Order Should 
Be Affirmed In Its Entirety.

The District Court's Final Order represents a con­
cept and recommendation arrived at by a tri-ethnic 
group of citizens. The Court of Appeals views such a 
procedure favorably and has looked with approval 
upon the fact that district courts have appointed bi- 
racial committees to study and make recommenda­
tions for school desegregation plans. Jones v. Caddo Parish 
School Board, 487 F.2d 1275, 1276, 1277 (5th Cir. 1973). 
While in Dallas this tri-ethnic group might not have 
been initially appointed to render this service, the back­
ground, origin and development of the District Court's 
Final Order is tantamount to initial appoint of a tri­
ethnic committee to study and make recommenda­
tions.

The District Court's Final Order represents a com­
promise negotiated by a tri-ethnic group of citizens 
with the District Court's approval. That compromise 
involves both student assignment and non-student 
assignment provisions. No Respondent should be 
heard to complain of only the part with which he does 
not agree (the student assignment plan) and yet seek to 
retain the benefits of the part of which he approves and 
desires to have imposed on the School District (the

6 7



non-student assignment provisions). The two parts to­
gether constitute the District Court's total and com­
plete remedy. The District Court's Final Order should 
not be approached on the basis that the student as­
signment provisions should be reversed and the non­
student assignment provisions left standing.

The District Court's Final Order has considerable 
support in the community among both Anglo and 
minority citizens. That support is evident from the 
vote in favor of the $80,000,000.00 school improve­
ment bond issue at the election held on December 11, 
1976, following implementation of the District Court's 
Final Order with the opening of the 1976-77 school 
year the preceding August. That bond election carried 
in Black precincts such as the East Oak Cliff area and in 
South Dallas. Unhappy school patrons — be they 
Anglo, Black or Mexican-American — are not known to 
vote in favor of school improvement bonds. This is par­
ticularly the case where the public is antagonistic 
toward a school desegregation remedy imposed by the 
courts.

If desegregated school systems in large urban 
metropolitan centers are the true goal, then that objec­
tive becomes an impossibility when public education is 
required to exist under conditions that do not appeal to 
many school patrons. The constant uncertainty and 
pressure of endless school desegregation litigation is 
such a condition; as is the resulting prospect of ever ex­
panding busing in a large metropolitan area. Faced with 
this predicament, parents seek a more satisfactory

6 8



state of affairs elsewhere; some in the suburbs, some in 
private or church-related schools. Their search is not 
always related to a racial bias but to their sense of frus­
tration with a situation that decreases the total 
educational opportunity for their child. Uncertainty 
destroys parents' patience and confidence. It is not just 
Anglos who become dissatisfied with these adverse cir­
cumstances in urban school districts. Black families and 
Mexican-American families value education also; and 
they will avoid these conditions as they can, just as 
Anglos do when they can.

6 9

Mr. justice Marshall observed in his dissent in 
Milliken 1, 418 U.S. at 801, that this Court in Wright v. 
Council of the City of Emporia, 407 U.S. 451, 464 (1972), 
took the possibility of white flight into account in eval­
uating the effectiveness of a desegregation plan. 
Perhaps it is time to think in terms of "upper and middle 
class flight" and to take that possibility into account in 
evaluating the effectiveness of a desegregation plan. 
Upper and middle class flight by people of all ethnic ori­
gins involves more than movement out of a given 
school system. Once a promotion or change in em­
ployment occurs and a family moves from one locality 
to another, there is reluctance to move into a particular 
school system known to be in constant desegregation 
litigation.8

8 The argument here made pertains to demographic changes 
that are the result of the constant uncertainty and unrelenting 
pressure of never ending school desegregation litigation. The 
argument here made does not refer to "white flight" or any other 
"flight" traceable to the requirements and provisions of a 
desegregation decree. C f. P asad en a  C ity  B o a rd  o f  E ducation  v. S pan g ler , 
427 U .S. 424, 435.



70

The School District is cognizant of the Court of 
Appeals' earlier 1975 observations that the School Dis­
trict is no stranger to school desegregation proceed­
ings. The School District earnestly seeks to become a 
stranger to school desegregation proceedings. The 
School District accepts the District Court's Final Order 
in its entirety. Given the origin and development of the 
District Court's Final Order and the facts of this case, 
this is a school desegregation case in which the District 
Court's Final Order should be approved and affirmed in 
its entirety and over twenty-four years of litigation 
brought to a conclusion.

To this end it should be made clear to the lower 
courts that Swann is to be interpreted in light of the ur­
ban condition present in school systems such as Dallas. 
Unless the District Court's realistic approach to such a 
school system is affirmed by this Court, desegregation 
litigation involving these school systems will go on and 
on over the years and will end only when such school 
systems become virtually all-black or virtually all-black 
and Mexican-American. Unitary these school systems 
may then be, but virtually all-black or all-black and 
Mexican-American they will be also.

If in the urban condition Blacks, Anglos and 
Mexican-Americans are to establish a harmonious, 
peaceful and civilized existence based upon a school 
desegregation plan that "works," then new and in­
novative approaches are required of school authorities 
and courts with respect to remedies to eliminate the



71

vestiges of a state-imposed dual school system in large 
urban school systems. Not only that, but there must be 
some hope that ever pending desegregation litigation 
will at some time come to a final and conclusive end, so 
that the uncertainty and turmoil over student assign­
ment plans will leave center stage to the educational 
process.

Further word from this Court is needed to once and 
for all make known that Swann's language pertaining to 
the elimination of all one-race schools is not to be used 
as a subterfuge to cause racial balance to become the 
only acceptable remedy.

In order to eliminate the vestiges of a state-imposed 
dual school system in the large urban school system 
here involved — and contrary to the decision of the 
Court of Appeals — the elimination of all one-race 
schools is not the controlling factor to be considered in 
determining whether a remedy formulated by the Dis­
trict Court is consistent with the Equal Protection 
Clause and this Court's decisions in Swann and Milliken 
II.

CONCLUSION

The judgment of the Court of Appeals, insofar as it 
remanded the case to the District Court for the formu­
lation of a new student assignment plan for the Dallas 
Independent School District and for findings to justify 
the maintenance of any one-race schools that may be a



72

part of that plan, should be reversed and the District 
Court's Final Order should be approved and affirmed in 
its entirety by this Court.

Respectfully submitted,

Warren Whitham 
210 Adolphus Tower 
Dallas, Texas 75202

Mark Martin 
1200 One Main Place 
Dallas, Texas 75250

Attorneys for Petitioners

May 1979



73

PROOF OF SERVICE

We, Warren Whitham and Mark Martin, Attorneys 
for Petitioners herein, and members of the Bar of the 
Supreme Court of the United States, hereby certify
that on t h e ____day of May, 1979, we served three
copies of the foregoing Brief for the Petitioners upon 
the following Counsel for Respondents:

Mr. Edward B. Cloutman, III 
8204 Elm brook 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 
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. Thomas E. Ashton, III 
Dallas Legal Services 

Foundation, Inc.
810 Main Street, Room 320 
Dallas, Texas 75202

Mr. E. Brice Cunningham 
2606 Forest Avenue, Suite 202 
Dallas, Texas 75215

Mr. Robert H. Mow, Jr.
Mr. Robert L. Blumenthal 
3000 One Main Place 
Dallas, Texas 75250

Mr. James A. Donohoe 
1700 Republic National Bank 

Building
Dallas, Texas 75201

Mr. Martin Frost 
Oak Cliff Bank Tower,

Suite 1319 
Dallas, Texas 75208

and to the following Respondent pro se:

Mr. James T. Maxwell 
4440 Sigma Road, Suite 112 
Dallas, Texas 75240



7 4

and to the following Counsel for Amicus Curiae:

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 ad- 0  
dressed to such addresses with first class postage 
prepaid,

We further certify that all parties required to be 
served have been served.

Warren Whitham

Mark Martin 

Attorneys for Petitioners 9