Hawkins v. Board of Control Petition for Writ of Certiorari and, in the Alternative, Motion for Leave to File and Petition for Writ of Common Law Certiorari and/or Writ of Mandamus to the Florida Supreme Court

    Nos. 81-2015, 81-2030, 81-2032, 81-2034, 81-2037, 81-2038

I n  T h e

GJmtrt of tfj? lotted Stairs
October Teem, 1981

F ormer Churchill Area School D istrict, et al,,
v.

Dorothy H oots, et al.

F ormer E dgewood School D istrict, et al., 
F ormer Turtle Creek School D istrict, et al.,

v.
Dorothy H oots, et al.

E dward X. IIallenberg, etc.,
v .

D orothy H oots, et al.

Allegheny County School Board, et al.,v.
D orothy H oots, et al.

F ormer Swissvale Area School D istrict,v.
Dorothy H oots, et al.

Commonwealth of P ennsylvania, et al.,
v.

D orothy H oots, et al.

on  appeal  from  t h e  u n ited  states court 
of appeals  for t h e  th ird  circuit

Petitioners,

Petitioners,

Petitioners,

Petitioners,

Petitioners,

Petitioners,

BRIEF IN OPPOSITION

Thomas J. H enderson* 
1312 E. Carson St. 
Pittsburgh, Pa. 15203 
(412) 431-7255

* Counsel of Record

J ack Greenberg
J ames M. Nabrit, I I I
B ill Lann Lee
J ames S. L iebman
Suite 2030
10 Columbus Circle
New York, New York 10019
(212) 586-8397

Attorneys for Respondents Dorothy Hoots, et al.



QUESTIONS PRESENTED

1. Whether factfindings of the two 
courts below that state officials drew 
boundary lines with the intent to create 
separate racially segregated school dis­
tricts —  findings based on an extensive 
evidentiary record developed during eleven 
years of litigation —  are clearly errone­
ous?

2. Whether the lower courts abused 
their discretion in ordering the consolida­
tion into a single desegregated district of 
five small, contiguous and segregated 
school districts, when: (i) each of the 
five former districts was found, a decade 
before, to have been unconstitutionally 
created and isolated from the others by 
state, county and local officials; (i i) 
the responsibile officials failed, over 
the course of eight years, to present any

1



adequate alternative desegregation plan to 
cure the constitutional violation; and 
(iii) both courts below found that a 
five-district consolidation would indis- 
putedly provide students with a more 
comprehensive and efficient —  as well as a 
desegregated -- educational program?

3. Whether the courts below abused 
their discretion by initially not forcing 
the former school districts to join as 
defendants, against their wills, when the 
districts were at all times provided a 
meaningful opportunity to participate in 
the proceedings, and in fact did partici­
pate in the proceedings by presenting evi­
dence, without limitation, on both liabil­
ity and relief?

- 1 1 -



Questions Presented ................  i
Table of Authorities ...............  iv
Statement ..........................  2
Reasons to Deny the Writ ...........  24

1. Findings of Intentional
Segregation ............  25

2. The Remedy ................  40
3. Meaningful Opportunity to

Participate ............  54
Conclusion .........................  60

TABLE OF CONTENTS
Page

- i i i -



TABLE OF AUTHORITIES

Page

Cases
Berenyi v. Information Director,

385 U.S. 630 (1 967) .......... . 38
Blau v. Lehman, 368 U.S. 403

( 1962) ......................... 38
Brown v. Board of Education,

349 U.S. 294 (1955) .......____ 37
Chartiers Valley Joint Schools v.

County Board, 418 Pa. 520,
211 A.2d 487 (1967) ............ 9,56

Columbus Board of Education v.
Penick, 443 U.S. 449
( 1979) ................... 35,37,40

Commissioner v. Duberstein, 363
U.S. 278 (1960) ................ 38

Davis v. Schnell, 81 F. Supp. 872 
(S.D. Ala.), aff'd, 336 U.S.
933 (1949) ..................... 31

Dayton Board of Education v.
Brinkman, 443 U.S. 526
(1979) ........................ 35,38

Engle v. Isaac, U.S. ,
71 L.Ed.2d 783 (1982) .......... 58

iv -



Page

Evans v. Buchanan, 582 F.2d 750 (3d
Cir. 1978) (en banc), cert, denied,
446 U.S. 923 (1980); 555 F.2d 373 
(3d Cir. 1977)(en banc), cert. 
denied, 434 U.S. 934 (1978); 393 
F. Supp. 428 (D. Del.) (3-judge 
court), aff'd, 423 U.S. 963 (1975) ..................  39,46,47

Franks v. Bowman Transportation Co.,
424 U.S. 747 (1976) ............ 51

Gomillion v. Lightfoot, 364 U.S.
339 ( 1960) ....................  33

Graver Mfg. Co. v. Linde Co., 336
U.S. 271 (1979) ...............  38

Green v. County School Board, 391
U.S. 430 (1968) ...............  43

Griffin v. Board of Education, 239 
F. Supp. 560 (E.D. Va.
1965) .........................  57

Hoots v. Commonwealth of Penn­
sylvania (Hoots I), 334 F. Supp.
820 (W.D. Pa. 1972) .....  3,10,28,55,56,57,58

Hoots v. Commonwealth of Penn­
sylvania (Hoots II), 359 F. Supp.807 (W.D. Pa. 1973) ...... passim

Hoots v. Commonwealth of Penn­
sylvania (Hoots III), 495 F.2d 1095 (3d Cir.), cert, denied,
419 U.S. 884 ( 1974) .........  passim

v



Page

Hoots v. Commonwealth of Penn­
sylvania (Hoots IV), 587 F.2d 
1340 (3d Giro 1978) .......... 3,6,26

Hoots v. Commonwealth of Penn­
sylvania (Hoots V), 639 F.2d 
972 (3d C ir. ), cert, denied,
101 S.Ct. 3113 (1981) ........ 3,17,27

Hoots v. Commonwealth of Penn­
sylvania (Hoots VI), 510 F. Supp.
615 (W.D. Pa. 1981) passim

Hoots v. Commonwealth of Penn­
sylvania (Hoots VII), No. 71- 538 (W.D. Pa. April 16,
1981 ) ............ 3,18,19

Hoots v. Commonwealth of Penn­
sylvania (Hoots VIII), No. 71- 
538 (W.D. Pa. April 28,
1981) ..................... passim

Hoots v. Commonwealth of Penn­
sylvania (Hoots IX), 672 F.2d 1107 (3d Cir. 1982)........ passim

Hoots v. Commonwealth of Penn­
sylvania, No. 71-538 (W.D.
Pa. May 12, 1982) .............. 53

Hoots v. Weber, No. 79-1474 (3d
Cir. May 2, 1979) .............. 4

Hoots v. Weber, No. 80-2124 (3d Cir.
Sept. 9, 1 980) ....... ......... 4

Husbands v. Commonwealth of Penn­
sylvania, 359 F. Supp. 925 
(E.D. Pa. 1973) ________....... 57

vi



57
Lee v. Macon County, 268 F.2d 458 

(M.D. Ala.), aff'd, 389 U.S.
215 (1967) ................

Milliken v. Bradley, 418 U.S. 617
(1974) .................  39,46,47,61

Morrilton School Dist. No. 32 v.
United States, 606 F.2d 222 
(8th Cir. 1979), cert, denied,
444 U.S. 1071 (1980) ___ 38,46,47

Personnel Administrator v. Feeney,
442 U.S. 256 (1979) ...........  35

Pullman Standard v. Swint, ___ U.S.
, 50 U.S.L.W. 4425 (April 

27, 1982) .....................  37
Reitman v. Mulkey, 387 U.S. 369

(1967) ........................  31
Rogers v. Lodge, ___ U.S. ___,

No. 80-2100 (July 1,1982) ...................  32,36,37,38
State Board of Education v. Franklin 

Township School District, 209 
Pa. Super. 410, 228 A.2d 221 
(Pa. Super. 1967) .............  9

Swann v. Charlotte-Mecklenburg
Board of Education, 402 U.S. 1
( 1971) ......................  44,50

Swissvale Area School District v.
Weber, No. 73-1849 (3d Cir.
Oct. 12, 1973) ................  26



United States v. Board of School 
Commissioners, 573 F.2d 400 
(7th Cir.), cert, denied,
439 U.S. 824, on remand,
456 F. Supp. 183 (1978) .... 31,34,35,

39,45,47
United States v. Johnston, 268 U.S.

220 (1925) ..................... 26
United States v. Missouri, 363 F.

Supp. 739 (E.D. Mo. 1973),
aff'd, 515 F.2d 1365 (8th
Cir.), cert, denied, 423
U.S. 951 (1975) ........ 31,39,47

United States v. United States Gypsum
Co., 333 U.S. 364 (1948) ........ 36

United States v. Yellow Cab Co.,
338 U.S. 338 (1949) ............ 38

Village of Arlington Heights v.
Metropolitan Housing Develop­
ment Corp., 429 U.S. 252 
M977) ................  31,33,34

Washington v. Davis, 426 U.S. 229
( 1976) .........   35

v m



Page

Statutes and Rules
Act of September 12, 1961, P.L.

1283, No. 561, 24 P.S.
§ 2-281, et_ seq. (Act 561) .... 6

Act of August 8, 1963, P.L. 564,
No. 299, 24 P.S. §
2-290, et seq. (Act 299) ..... 6

Act of July 8, 1968, P.L.
299, No. 150, 24 P.S. § 2400-1
(Act 150) .....................  6

Rule 24, Fed. R. Civ. Pro...........  10
Rule 52, Fed. R. Civ. Pro...........  35

Other Authorities
3A MOORE'S FEDERAL PRACTICE ........ 57

IX



Nos. 81-2015, 81-2030, 81-2032, 
81-2034, 81-2037, 81-2038

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1981

FORMER CHURCHILL AREA SCHOOL DISTRICT, et al.,
Petitioners, 

v.
DOROTHY HOOTS, et al.

FORMER EDGEWOOD SCHOOL DISTRICT, et al., 
FORMER TURTLE CREEK SCHOOL DISTRICT, et al.,

Petitioners,
v.

DOROTHY HOOTS, et al.

EDWARD X. HALLENBERG, etc.,
Petitioners,

v.
DOROTHY HOOTS, et al



ALLEGHENY COUNTY SCHOOL DISTRICT, et al

Petitioners,
v.

DOROTHY HOOTS, et al.

FORMER SWISSVALE AREA SCHOOL DISTRICT,

DOROTHY HOOTS,

Petitioners,
V.

et al.

COMMONWEALTH OF PENNSYLVANIA, et al.,

DOROTHY HOOTS,

Petitioners,
V.

et al.

On Appeal From the United States Court 
Of Appeals For The Third Circuit

BRIEF IN OPPOSITION



3

Statement 1/

The various petitioners are asking
this Court to review the ninth reported

2/decision in a longstanding litigation.

J_/ Citations are to the Appendix to the 
Petition filed by the Commonwealth of 
Pennsylvania, No. 81-2038 (hereinafter 
"A." ) and portions of the Record on 
Appeal set forth in the Joint Appendix in 
the court of appeals (hereinafter "R.").
2/ Hoots v. Commonwealth of Pennsylva­
nia, 672 F. 2d 1107 (3d Cir. 1982) ("Hoots 
IX"), A. 86a-87a n.1. The other decisions 
are: Hoots v. Commonwealth of Pennsylva­nia , 334 F. Supp. 820 (W.D. Pa. 1972)
("Hoots I" ); Hoots v._Commonwealth of
Pennsylvania, 359 F. Supp. 807 (W.D. Pa.1973) ("Hoots II"); Hoots v. Commonwealth 
of Pennsylvania, 495 F.2d 1095 (3d Cir.),
cert, denied, 419 U.S. 884 (1974)("HootsIII"); Hoots v. Commonwealth of Pennsylva­
nia, 587 F. 2d 1340 (3d Cir. 1978) ("Hoots 
IV" ) ; Hoots v. Commonwealth of Pennsylva- 
nia, 639 F.2d 972 (3d Cir.), cert, denied, 
101 S.Ct. 3113 (1981) ("Hoots V"); Hoots v. 
Commonwealth of Pennsylvania, 510 F. Supp. 615 (W.D. Pa. 1981) ("Hoots VI"); Hoots v.
Commonwealth of Pennsylvania, No. 71-538 
(W.D. Pa. April 16, 1981) ("Hoots VII");
Hoots v. Commonwealth of Pennsylvania, No. 
71-538 (W.D. Pa. April 28, 1981) ("Hoots
VIII" ).

(footnote continued on next page)



4

Plaintiffs are a class of black and 
white parents of school-aged children 
living in the former General Braddock Area 
School District (hereinafter "General 
Braddock"). Prior to 1981, General Brad- 
dock was a predominately (63%) black school 
district, which, together with the sur­
rounding former all- or nearly all-white 
districts of Churchill (99.2% white), 
Edgewood (97.8% white), Turtle Creek (98.1% 
white), and Swissvale (83.7% white), was 
created by state and county officials 
during Pennslyvania's statutorily mandated

2/ continued
In addition, the court of appeals 

denied plaintiffs' applications for writs 
of mandamus on two occasions. Hoots v. 
Weber, No. 79-1474 (3d Cir. May 2, 1979);
Hoots v. Weber, No. 80-2124 (3d Cir. Sept. 
9, 1980).



5

school district reorganizations of the 
1960's.-

3/ General Braddock was created in the 
1960's by combining the only preexisting 
majority-black municipal school districts 
in the area, Braddock (72% black) and 
Rankin (51% black), with North Braddock 
(16% black). Hoots II, A. 17a, 20a-21a 
(1970 figures). In its first year of 
operation, 1971, General Braddock was 44.5% black. By 1980-81 , the last year of its 
existence, General Braddock's black pupil 
population had increased to 63%. I<3. , A.
77a. After the reorganization process was 
complete, no other district in the viola­tion area —  i.e. , the area consistently 
referred to in the opinions below as 
"central eastern Allegheny County" -- 
had a black pupil population approaching 
General Braddock's.

"Central eastern Allegheny County" 
was defined by the district court in 1973 
as the area lying

east of the City of Pittsburgh and 
north of the Monogahela River, [in 
which] the County and State Boards 
established [General Braddock] ; 
the School Districts of Turtle Creek, 
Swissvale Area, Churchill Area and East Allegheny which border on [Gen­
eral Braddock]; and the Edgewood 
School District which is situated within approximately one mile of 
[General Braddock]. I_d. , A. 12a-13a. 
See also, id., A. 13a-14a, 20a-22a,



6

Plaintiffs commenced this action on 
June 9, 1971. The complaint alleged that
the Pennsylvania State Board of Education 
and Allegheny County School Board (now the 
Allegheny Intermediate Unit) (hereinafter, 
"the state and county boards") deliber­
ately created General Braddock, Churchill, 
Edgewood, Swissvale and Turtle Creek as 
separate racially segregated school dis­
tricts during three statutorily mandated
school district reorganizations in the 

4/1960!s. Specifically, the complaint al-

3/ continued
27a, 40a; Hoots III, 43a; Hoots IV, 
supra, 587 F.2d at 1343-44; Hoots VI, 
51a-53a, 55a, 62a-63a; Hoots VIII , 
73a, 76a-79a, 80a; Hoots IX, 90a-92a, 
10 0 a-101 a, 105a, 108a-109a, 112a.

4/ See Act of September 12, 1961, P.L. 
1283, No. 561 , 24 P.S. § 2-281, et. seq. 
(Act 561); Act of August 8, 1963, P.L. 564, 
No. 299, 24 P.S. § 2-290, et. seq. (Act 
299); Act of July 8, 1968, P.L. 299, No. 
150, 24 P.S. § 2400-1 (Act 150).



7

leged that the state and county boards, 
in exercising their power to reorganize 
school districts, had "compelled the for­
mation of school districts which concen­
trate and contain blacks in one school 
district and whites in the other school 
districts so as to create racially iden­
tifiable school districts ... not only to 
segregate [General Braddock] but the ad­
joining [districts] as well." The com­
plaint requested that school district
boundaries in the affected area be "al­
ter [ e d ] and revise [d] " to establish a 
desegregated system of schools. R. 35a, 
37a. Churchill, Edgewood, Swissvale and 
Turtle Creek were specifically named as the
"adjoining," or "surrounding," school 
, . 5/districts. .Id. The complaint named as

5/ Petitioners have stated that the
complaint (i) made no allegation that each 
of these districts was racially segregated



8

defendants the Commonwealth of Pennsylvania, 
the state and county boards and certain of 
their officers. It alleged that defen­
dants unconstitutionally created General

5/ continued
(Churchill Petition, No. 81-2015, p. 6); 
(ii) requested no alteration of these 
school districts' boundaries (Edgewood/ 
Turtle Creek Petition, No. 81-2030, pp. 3, 
14-15); and (iii) provided no notice of the 
requested alteration of these school 
district boundaries (Churchill Petition, 
No. 81-2015, p. 24; Edgewood/Turtle Creek 
Petition, No. 81-2030, pp. 14-15 & n.10). 
Each of these statements is erroneous.

The amended complaint described 
General Braddock and each of the former 
white districts, R. 27a-29a, and clearly 
identified all five districts as "segre­
gated" and "racially identifiable school 
districts" created in order to segregate 
black students in General Braddock and 
white students in Churchill, Edgewood, 
Swissvale and Turtle Creek, R. 30a-35a. 
See R. 2 0 a-3 7 a. Plaintiffs accordingly
requested injunctive relief "altering and 
revising or ordering defendants to alter 
and revise the school reorganization plans 
..." and to "adopt immediately plans that 
will create racially . . . balanced school 
systems to serve the residents of [General 
Braddock] and the surrounding communities." 
R. 37a, 22a.



9

Braddock and the surrounding former white 
districts pursuant to power conferred on

g /them by the reorganization statutes- -- 
specifically, their power to prepare, 
review, amend, approve, and effectuate 
reorganization plans, including those which 
created General Braddock and the surround­
ing districts. R. 21a, 26a-29a, 31a.

In December 1971, the district court 
denied defendants' motions to dismiss. 
The court held that plaintiffs' allegations 
that, "[i]n preparing and adopting the 
school reorganization plans, the defendants 
intentionally and knowingly created ra-

6/ See Chartiers Valley Joint School v. 
County Board, 418 Pa. 520, 21 1 A.2d 487,
491-495 (1965) (the reorganization acts
delegated legislative power to define the 
geographic boundaries of school districts 
to the state and county boards); State 
Board of Education v. Franklin Township 
School District, 209 Pa. Super. 410, 228
A.2d 221, 223-24 (1967).



10

cially segregated school districts" stated 
a cause of action under the Fourteenth 
Amendment. Hoots I, A. 1a™2a. At the same 
time, the court declined to join General 
Braddock and the former white districts as 
defendants against their wills, Hoots I, A. 
5a, but held that it would permit the dis­
tricts to "intervene in this action under 
Fed. R. Civ. P. 24 if they so desire." Id. 
Although the court "instructed the [Common­
wealth] to give notice" of the action to 
all five former districts, and the Attorney 
General of Pennsylvania thereupon directed 
written and later telegraphic notices to 
the five districts (with copies of the 
amended complaint attached) "urg[ing each] 
to intervene in this action immediately," 
the districts informed the court that they 
were "deliberately not intervening in this 
case" and "had no interest in being" a



- 11 -

7/party to the trial.- As Churchill states
in its petition, the districts' failure to
participate in the initial violation trial
was a considered strategic decision to stay

8/out of the litigation as long as possible.—
, , . . 9/Following trial,- on May 15, 1973, the

2/ R. 56a-61 a, 614a-18a, 272a, 3338a,
3389a. See Hoots II, A. 33a-35a; Hoots 
III, A. 45a-46a.
8_/ Churchill Petition, No. 80-2015, p. 
23. In its petition, Churchill quotes part of the following explanation of the dis­
tricts' actions as summarized at a 1973 
hearing by counsel for the Commonwealth:

There is no doubt that prudent lawyer­
ing dictates what the school districts 
are presently doing. Were I to be in 
that situation, I think I would do the 
exact same thing. I would sit back 
and wait hopefully ... that the 
Court's opinion ... would be to their 
favor ... and, if not, at the later 
date, to seek some way to attack 
it .... R. 316a.

2/ At trial, plaintiffs introduced the 
testimony of lay witnesses, local school 
authorities, state officers and expert 
witnesses. In addition, 63 documentary, 
summary and graphic exhibits were intro­
duced pursuant to stipulation. R. 55a- 
748a.



12

district court found that the state and 
county boards' intentionally segregative 
creation of General Braddock as a predomi­
nantly black district, and of Churchill, 
Edgewood, Swissvale and Turtle Creek as 
virtually all-white districts, "constituted 
an act of de jure discrimination in violat­
ion of the Fourteenth Amendment. " The 
court concluded that "a violation of the 
Fourteenth Amendment ha [d ] occurred" 
because "public school authorities ... made 
educational policy decisions which were 
based wholly or in part on considerations 
of the race of the students and which 
contributed to increasing racial segrega­
tion in the public schools." Hoots II, 
A. 37a, 35a.

The court ordered defendants to 
"prepare and submit to this Court within 45 
days ... a comprehensive plan of school 
desegregation for the central eastern area



13

of Allegheny County [that would] remedy 
the constitutional violations found by this 
Court" by "alter[ing] the boundary lines of 
General Braddock ... and, as appropriate, 
of adjacent and/or nearby school dis­
tricts." Hoots II, A. 40a.

None of the defendants appealed. 
After the May 1 973 opinion was issued, 
however, Churchill and Turtle Creek re­
versed their pretrial opposition to inter­
vention, and attempted to intervene, asking 
the court to set aside its May 1973 opin­
ion. The district court denied the motions 
as "untimely" insofar as they sought retro­
active intervention but granted prospective 
intervention, R. 966a, and the court of 
appeals affirmed. Hoots III, A. 44a-46a.~'/

10/ Churchill and Turtle Creek filed a 
writ of certiorari, R. 2577a, which was 
denied. Churchill Area School District 
v. Hoots, 419 U.S. 884 (1974).

(footnote continued on next page)



- 14 -

Defendants filed no "comprehensive 
plan of desegregation" within 45 days. 
Indeed, no remedy was forthcoming for the 
next eight years, despite lengthy hearings 
conducted by the district court and (on 
remand from the district court) by the 
state board. During the 1973-1981 period, 
the district court not only heard evidence 
and argument on remedy, but also, as the 
court of appeals found, Hoots IX, A. 102a, 
specifically permitted all of the peti­
tioner districts to reopen and present 
additional evidence on the violation

10/ continued
Contemporaneously, the former white 

districts initiated several extended state court proceedings seeking to prevent 
the state defendants from proposing and submitting remedial plans to the federal 
district court in the instant litigation. R. 2504a, 2730a-31a.



15

issue.— ^ E . g . , R. 1486a-1506a, 2684a-
2766a, 2829a-3015a, see Hoots IX, A.
101a-02a. On each such occasion, the 
district court reaffirmed its 1973 finding 
of intentional segregation. R. 1031a-32a 
(May 1975), 2761a-62a (October 1975), 841a
(November 1977), 3201a-02a (October 1980); 
Hoots VI, A. 49a, 59a (March 1981); Hoots
VIII, A. 77a (April 1981). See Hoots IX, 
A. 101a-102a.

]_ }_ / Swissvale and Churchill formally 
intervened and participated fully in all of 
the proceedings in this case from October 
1973 to the present. Other school dis­
tricts, including Edgewood and Turtle 
Creek, in the district court's words, 
actually "participated," but "did not [for­
mally] intervene because they wished to protect their position on the record...." 
R. 1031a. See n.8, supra and accompanying 
text. General Braddock voluntarily inter­
vened in February 1979, R. 2588a, and the 
court mandatorily joined Edgewood and 
Turtle Creek in May 1979. R. 853a.

During the 1973-1975 period, the 
district court thrice remanded the case to 
the state board for remedial hearings, the



16

The district court heard and con­
sidered extensive evidence on three plans 
submitted by the State and various plans 
submitted by the districts -- including 
Plans 22W, A, B, Z, the Tuition Plan, the
Upgrade Plan, and variations of these
, 12/plans.—

During the course of the 1973-1981 pro­
ceedings in the district court and the

11/ continued
transcripts of which were made part of the 
record by the district court. See R . 
1128a-29a, 3194a-95a. All the petitioner
school districts participated actively in 
the state board hearings. E.g., 9/10/73
St. Bd. Tr. ; 3/6/75 St. Bd. Tr.
1 2/ All six of the plans proposed by 
petitioners (notably, by the Commonwealth, 
Churchill, Swissvale, and Turtle Creek) 
were interdistrict in nature, and all but 
one of those plans included the five 
former districts presently before this 
Court. Similarly, all but one of peti­
tioners' plans involved the consolidation 
of existing districts into larger units. Hoots IX, A. 93a.



17

court of appeals, General Braddock became a 
majority, and then a two-thirds, black 
district. Finally, in 1981, the court of 
appeals directed the district court to 
complete "scope of the violation" and 
remedial proceedings within three months, 
and to enter a final order granting appro­
priate relief beginning with the 1981-1982 
school year. Hoots V, supra, 639 F.2d at 
980-91. This Court denied certiorari. 
Swissvale Area School District v. Hoots, 
101 S.Ct. 3113 ( 1981).

On remand, the district court recon­
sidered the evidence on violation adduced 
not only at the initial liability trial in 
1 972, but also at the numerous subsequent 
hearings held between 1973 and 1981. Hoots 
VI, A. 50a-56a. Based on that evidence, 
the court reaffirmed that "racially dis- 
criminat[ory] acts of the state ha[d] been



18

a substantial cause of interdistrict 
segregation," and concluded "that a multi­
district remedy" involving some or all 
of seven districts (including General 
Braddock and the four petitioner districts) 
was "appropriate" to cure the segregative 
effects of the unconstitutional "redrawing 
of [those] school district boundaries in
that [central eastern] part of Allegheny

13/County." Hoots VI, A. 50a-56a.~“
Turning to the question of remedy, the 

district court rejected the plans submitted 
by the state and the petitioner districts,

13/ Specifically, the court reaffirmed 
that " [t]he State and County Boards 
violated the Constitution in the manner 
in which the [se] school district lines 
were drawn." Hoots VI, A. 58a. The court 
expressly implicated all of the former 
districts in this conclusion. I_d. , A. 62a; 
see Hoots VII, A. 79a; Hoots IX, A. 111a. 
The court further found that public school 
and municipal officials in what became the 
petitioner districts were not "innocent" in 
the decade-long reorganization process



19

finding all of them incapable of achieving 
any effective desegregation. Based on all 
"of the hearings held," the court concluded 
that "only a single district formed from the 
consolidation" of school districts whose 
lines had been drawn as a part of the vio­
lation would solve the "many difficulties" 
identified in past hearings on prior plans. 
Hoots VII, R. 65a-66a. See Hoots VIII, A.
71a-72.

Hearings were scheduled to determine 
which districts were "to be consolidated 
for the purpose of remedying the constitu­
tional violations found." Hoots VII, A. 
67a. See Hoots VIII, A. 72a-73a. Plain-

13/ continued
during which those districts' boundaries 
were drawn or redrawn," but rather that 
the desire of those officials to avoid 
including their communities in a school 
district with black students caused the 
"elimination [of General Braddock] from 
consideration for merger with those dis­
tricts." Ijl. , A. 59a-60a.



20

tiffs presented expert testimony recommend­
ing a consolidation of the Churchill, 
Edgewood, General Braddock, Swissvale and 
Turtle Creek districts. General Braddock 
supported plaintiffs' position. Hoots 
VIII, A. 73a. The other districts opposed 
their inclusion in plaintiffs' plan, but 
presented no evidence designed to establish 
that they were not involved in, or affected 
by, the underlying constitutional violation.

On April 28, 1981 -- nearly eight years 
after the original finding of a constitu­
tional violation —  the district court for 
the first time ordered that defendants take 
specific, affirmative steps to remedy that 
violation. Reaffirming once again its 
finding that the "intentional creation fof 
General Braddock] as a racially identifia­
ble black district constituted the consti­
tutional violation in this case," the court 
ordered the consolidation of five of the



21

districts "involve [d] in the violations" 
into a single district. The court found 
"that a [n]ew [sjchool [djistrict composed 
of the [former] school districts of Church­
ill, Edgewood, Swissvale, General Braddock, 
and Turtle Creek would achieve desegrega­
tion ... and would achieve the highest 
beneficial results over and above the 
results of any other plan submitted to 
this Court by any party during the whole 
period of this litigation." Hoots VIII, A. 
73a, 77a, 79a.

On February 1 , 1 982 , the court of
appeals unanimously concluded that the 
district court's finding of intentional 
discrimination was supported by substantial 
evidence and was not clearly erroneous, and 
that the consolidation remedy was well 
within the court's equitable discretion. 
Hoots IX, A. 86a.



22

The court determined that the finding 
of a constitutional violation "was fully 
supported by the record," which contained 
"specific pieces of direct evidence of 
segregative intent" as well as "circumstan­
tial or 'objective' evidence." Hoots IX, 
A. 108a-09a. Relying on contemporaneous 
documents and testimony from both the 
1 972 violation trial and from the many 
subsequent proceedings, the court found a 
substantial body of evidence demonstrating 
that the state and county boards intention­
ally segregated General Braddock and the 
former white districts in order "to sat­
isfy" public officials and residents of 
neighboring white communities, who admitted 
opposing inclusion in a district with 
General Braddock expressly because of "the 
black issue," "the non-white population ... 
factor," the "black-white factor," and the 
desire to shield white children from



23

"colored people [of] the kind that live in 
North Braddock, Braddock and Rankin!" 
Hoots IX, A. 105a-08a.

In addition, the court found that the 
intentional-discrimination finding was un­
dergirded by substantial objective evi­
dence, including: the boards' violation
of almost all the applicable statutory and 
administrative reorganization standards, 
(such as the criteria requiring a 4000-per­
son minimum student population in each dis­
trict, the use of existing facilities, ra­
cial and cultural diversity, and compre­
hensive educational program); the severe 
and maximally segregative impact of the 
line drawing; the foreseeability —  indeed, 
the responsible officials' admitted aware­
ness — ■ of that segregative result and of 
the certain financial insolvency of the 
one black district they created; and 
the absence of any legitimate purpose or



- 24 -

valid state interest in the reorganization 
plans adopted. Hoots IX, A« 108a.

Likewisef the court of appeals found 
that "the district court did not abuse its 
discretion" in ordering a multi-district 
consolidation, since the line-drawing vio­
lation was "itself ... interdistrict in 
nature" and was properly "located and 
defined" by the district court, and since 
the remedy was "tailored ... to fit the 
actual showing of de jure discrimination by 
all of the districts involved" and was 
"supported by more than enough evidence." 
Hoots IX, A. 111a-13a, 121a-22a (emphasis
in original}.

As of July 1, 1981, the former dis­
tricts ceased to exist as legal entities, 
and the Woodland Hills School District 
(hereinafter "Woodland Hills"), composed of 
all the former districts, began to function 
as a single desegregated school district.



25

Presently in its second year of operation 
under a locally elected board of school 
directors, Woodland Hills has a student 
population of approximately 8,000, 81.3%
white and 18.7% black. It has graduated 
students, adopted budgets, incurred debts 
and obligations, levied and collected 
taxes, and engaged in long range develop­
ment and planning for further desegrega- 
tion and other educational programs.

REASONS TO DENY THE WRIT
Respondents Dorothy Hoots, et al. , 

respectfully submit that the petitions for 
certiorari should be denied for the reasons 
that follow.

Initially, we note that none of the 
six petitions asserts that the decision 
below conflicts in any way with the deci­
sion of any other court of appeals on any 
of the numerous questions presented.



26

Nor is any substantial federal ques­
tion presented. As we demonstrate below, 
petitioners merely seek "certiorari to 
review evidence and discuss specific 
facts." United States v. Johnston, 268
U.S. 220 , 227 ( 1 925). Indeed, this is
the eighth time over the last nine years 
that petitioners have asked a federal 
appellate court "to review [the same]
evidence and dicusss [the same] specific 

14/facts." Id.- *

1. Findings of Intentional Segrega­
tion

Five of the six petitions argue that

14/ See Swissvale Area School District v. 
Weber, No. 73-1849 (3d Cir. Oct. 12, 1973);
Hoots v ._Commonwealth of Pennsylvania
(Hoots III), 495 F.2d 1095 (3d Cir. 1974); 
Churchill Area School District v. Hoots, 
419 U.S. 884 (1974); Hoots v. Commonwealth
of Pennsylvania (Hoots IV), 587 F.2d 1340 
(3d Cir. 1978); Hoots v. Commonwealth of 
Pennsylvania (Hoots V ), 639 F.2d 972 (3d
Cir. 1981); Swissvale Area School District 
v. Hoots, 101 S.Ct. 3113 (1981); Hoots v.
Commonwealth of Pennsylvania (Hoots IX), 
672 F.2d 1107 (3d Cir. 1982).



27

no findings of fact of purposeful segrega­
tion were made and affirmed by the courts 
below and, in the alternative, that the 
findings of intentional segregation made 
and affirmed below are supported by insuf­
ficient evidence. E.g., Churchill Peti­
tion, No. 81-2015, pp. 6, 11-13. The sixth 
petition concedes and does not challenge 
that: "The court of appeals, in affirming
the trial court's judgments, held that the 
trial court had made the required findings 
of segregative intent and that these 
findings were not clearly erroneous." 
Swissvale Petition, No. 81-2037, p. 11 
(emphasis in emphasis).

In point of fact, precisely the same 
arguments on sufficiency of the findings 
and evidence have been considered and 
rejected by both courts below. Hoots IX, 
A. 96a-103a; 49a-63a. Indeed, this Court



28 -

itself has previously refused to review the 
same claims. See Churchill Area School
D s t_ r _i c t__ v̂ _Hoots , No. 73-2039, cert .
denied, 419 U.S. 884 (1974), R. 2577a.

With respect to the absence of appro­
priate findings, the court of appeals 
reviewed the record and concluded that de 
jure segregation was expressly alleged 
by the plaintiffs and repeatedly found by 
the district court. Thus, in denying the 
motion to dismiss in 1971, the district 
court held plaintiffs' complaint to 
allege that "defendants intentionally and 
knowingly created racially segregated 
school districts." Hoots I, A. 1a. And, 
in ruling favorably on that complaint in 
1973, the district court found that state 
officials made "educational policy deci­
sions which were based wholly or in part
on considerations of the race of the



29

students." Hoots IX, A. 99a.
The court of appeals then analyzed the

preliminary factual determinations of the
district court that supported its final
intentional-discrimination determination in
1973 (as reiterated and reaffirmed on

1 5(several occasions between 1975 and 1981). '
The court of appeals concluded that appro­
priate findings had been made concerning

15/ In March 1981, the district court 
undertook a careful and extensive "review 
[of] the facts of this case to determine 
whether an interdistrict remedy is appro­
priate. " Hoots_VI, A. 49a. The court 
reviewed both the original 1973 liability 
record and subsequent evidence on viola­
tion, much of it presented by the peti­tioner former districts, jLd_. A. 56a, and 
concluded that: the reorganization plan was 
devised by state officials to satisfy the 
wishes of surrounding municipalities not to 
be placed in a district with black stu­
dents; the districting was not ration­
ally related to any legitimate purpose; 
the boundaries promote no valid state 
interest; and public officials in the 
districts created by the reorganization 
plan were not "innocent," but rather were 
themselves guilty of injecting racial 
animus into the reorganization process. 
Id. A. 54a-55a, 59a.



30

the racial motives of the state and county 
officials who created the five former 
districts, as well as the foreseeably and 
advertently segregative consequences of 
those line-drawing decisions, and the 
absence of any valid state interest served 
by those lines. Hoots 1_X , 1 0 0 a - 0 2 a .

Similarly, the claim that there was 
insufficient evidence to support the 
intentional-segregation findings of the two 
courts below is without foundation. As the 
court of appeals concluded, "the district 
court's constitutional violation finding 
was not clearly erroneous and, indeed, was 
fully supported by the record." Hoots IX, 
A. 109a; see id. ; A. 103a-09a; Hoots VI, 
50a-62a.

Moreover, the categories of proof 
relied upon by the courts below comport 
fully with the evidentiary standards 
established by this Court for determining



31

the existence of intentional segregation in 
school desegregation cases. First/ as 
directed by this Court's prior decisions, 
the courts below relied on various "spe­
cific pieces of direct evidence of segrega­
tive intent or purpose" (see pp. 21-22,

16/supra). Hoots IX, A. 108a. That evi­
dence convincingly established that state 
and county officials intentionally created 
General Braddock as a predominantly black 
school district in order to accommodate the 
racial antagonism of officials and parents 
in the surrounding white districts and

16/ See Village of Arlington Heights v. 
Metropolitan Housing Development Corp., 429 
U.S. 252, 260, 267 (1977), citing with ap­
proval Reitman v. Mulkey, 387 U.S. 369, 
373-76 (1967) and Davis v. Schnell, 81 F.
Supp. 872, 875, 880-81 (S.D. Ala.), aff'd,
336 U.S. 933 (1949). See_also United
States v. School Commissioners, 573 F.2d 
400, 405-08 (7th Cir.), cert, denied, 439
U.S. 824, on remand, 456 F. Supp. 183, 
187-89 (1978); United States v. Missouri,
363 F. Supp. 739, 745-46 (E.D. Mo. 1973),af f 'd, 515 F . 2d 1 365, 1367 (8th Cir.)
cert, denied, 423 U.S. 951 (1975). r



32 -

communities, who did not want their child­
ren to attend school with blacks. Thus, 
unlike this Court's recent decision in
Rogers v. Lodge, ___ U.S. __No. 80-2100
(July 1, 1982), in which the Court held that 
"discriminatory intent need not be proved 
by direct evidence," slip op. at 5 (major­
ity opinion), both courts here relied 
primarily on "direct, reliable, and un­
ambiguous indices of discriminatory 
intent," slip op. at 4 (Powell, J., dis­
senting) (emphasis in original).

Second, the courts also "relied 
on circumstantial or 'objective' evidence." 
Hoots IX, A. 108a. Such evidence included 
(i) the repeated rejection by state and 
county officials, over a period of several 
years, of desegregative reorganization 
proposals and the substitution of boundary 
lines that conformed to "the desires of as



33

many of the surrounding municipalities as 
possible to be placed in a school district
which did not include" blacks, Hoots II, A.

17/32a; Hoots VI, A. 55a; Hoots IX, A. 108a;—  
(ii) those officials' thoroughgoing "dis­
regard [for] statutory and administrative 
reorganization standards, e.g., the statu­
tory 4,000 pupil minimum guideline, the 
requirement that existing facilities be 
used where possible, ... and the require­
ment that each district be capable of 
providing a comprehensive educational 
program," Hoots IX, A. 108a; Hoots VI, A.
54a; Hoots II, A. 28a-30a; 1 8/ ( iii )

17/ See Village of Arlington Heights, 
supra, 429 U.S. at 264-65 ("historical
background of the decision is one eviden­
tiary source" of intentional segregation 
and the "specific sequence of events leading up to the challenged decision also 
may shed some light on the decisionmaker's 
purposes").
18/ See Village of Arlington Heights, 
supra, 429 U.S. at 267 ("substantive de-



34

those officials' consistent rejection
of desegregative redistricting plans (which
would have complied with the reorganization
standards) in favor of alternatives that
maximized racial segregation, Hoots IX,
A. 108a; Hoots VI, A. 54a-55a; Hoots II, A.

1 9/21a-22a, 27a-28a, 31a-32a;~~ (iv) the
knowing, indeed admittedly advertent, crea­
tion by state and county officials of ra­
cially segregated school districts, Hoots 
IX, A. 106a, 108a; Hoots VI, A. 54a; Hoots

18/ continued
partures [from applicable standards] may be 
relevant, particularly if the factors 
usually considered important by the desi- 
cionmaker strongly favor a decision con­
trary to the one reached").
19/ See Village of Arlington Heights, 
supra , 429 U . S . at 264; G o m 1̂ _1 _i C3 ri_ v .
L ightfoot, 364 U.S. 339 ( 1 960 ); United
States v. Board of School Commissioners, 
supra, 573 F.2d at 413.



35

11, A . 2 6a-2 7a; (v) the foreseeability
of the reorganization plan's harmfully seg­
regative consequences, Hoots IX, A. 108a;
Hoots VI, A. 53a; Hoots II, A. 26a-28a, 

2 1 /31a; and (vi) the fact that no other 
comb ination of school districts in the 
central eastern area would have as success­
fully isolated black students in one 
district (General Braddock) and white 
students in the surrounding districts.

20/ See Columbus Board of Education v.
Penick, 443 U.S. 449, 465 (1979) ("Adher­
ence to a particular policy or practice 
with full knowledge of the predictable 
effects of such adherence upon racial 
imbalance in a school system is one factor 
among many others which may be considered 
by a court in determining whether an 
inference of segregative intent should be 
drawn").
2 1 / See Dayton Board of Education v.
Brinkman, 443 U.S. 526, 536 n. 9 ( 1 979)
("proof of foreseeable consequences is one 
type of quite relevant evidence of racially 
discriminatory purpose"); Personnel Adminis­
trator v. Feeney, 442 U.S. 256, 279 n.25(1979); United States v. Board of School 
Commissioners, supra, 573 F.2d at 413.



36

Hoots III, A. 22a-25a; Hoots IX, 108a.'—
Petitioners, therefore, are plainly

wrong that evidence of purposeful segrega- 
, ' . 23/tion was lacking. As the court of ap­

peals concluded, the findings of fact that 
the district court originally made in 1973 
and that it supplemented in March 1981 are 
not "clearly erroneous." Rule 52(a), Fed. 
R. Civ. Pro.; see United States v. United 
States Gypsum C o 333 U .S . 364, 395
(1948). The findings of a trial judge who

22/ See Rogers v. Lodge, supra, slip. op. 
at 5 (majority opinion); Washington v. 
Davis, 426 U.S. 229, 242 (1976) ("it is ... 
not infrequently true that the discrimina­
tory impact ... may for all practical 
purposes demonstrate unconstitutionality").
23/ Their claim, in any event, rests 
on no more than inaccurately selective 
references to individual aspects of 
the comprehensive findings and evidence 
below. E .g ., Churchill Petition, No. 
81-2015, p. 11 (only finding or evidence 
discussed concerns racial disparity); 
Commonwealth of Pennsylvania Petition, No. 81-2038, pp. 11-12 (only findings or 
evidence discussed concerns racial dispar­
ity and foreseeability).



37

had a full opportunity to examine the credi­
bility of the witnesses over the course of 
eleven years are entitled to substantial 
deference, as, indeed, are the conclusions 
of a court of appeals that has gained 
familiarity with the litigation in the 
course of reviewing various matters on 
six occasions over the last nine years. 
See notes 2, 14, supra.

Such "deference" is especially appro­
priate because of the trial court's "proxi­
mity to local [school] conditions," Brown 
v. Board of Education, 349 U.S. 294, 299
(1955), and because the issue of "whether 
... differential impact of [a practice] 
resulted from an intent to discriminate on 
racial grounds 'is a pure question of fact, 
subject to Rule 52's clearly erroneous
standard.'" Rogers v. Lodge, supra, ___
U . S . ___, slip. op. at 9-10 (majority
opinion) , quoting P^l^maan- S^ajidard_v .



38

Swint, ___ U.S. y 50 U.S.L.W. 4425r 4429
(April 27, 1982); Dayton Board of Education 
v. Brinkman, 443 U.S. 526 , 534 ( 1 979);
Commissioner v. Duberstein, 363 U.S. 278, 
286 (1960); United States v. Yellow Cab
Co.f 338 U.S. 338, 341 (1949).

Moreover, " [tjhe Court of Appeals 
did not hold any of the District Court's 
findings of fact to be clearly erroneous, 
and this Court has frequently noted its 
reluctance to disturb findings of fact 
concurred in by two lower courts. See, 
e.g. , Berenyi v. Information Director, 385 
U.S. 630, 635 (1967); Blau v. Lehman, 368
U.S. 403 (1962); Graver Mfg. Co. v. Linde
Co., 336 U.S. 271, 275 (1979)," Rodgers v.
Lodge, supra, __  U.S. , slip, op. at 10
(majority opinion); cjE. Columbus Board of 
Education v. Penick, 443 U.S. 449, 468
(Burger, C.J., concurring); _id. at 470-79
(1979) (Stewart, J., concurring).



39

Nor are novel or significant legal 
issues presented. As indicated above, 
the evidentiary sources utilized by the 
lower courts conform perfectly to the 
Court's directives on the proper method of 
proving intentional segregation. See nn. 
16-22, supra, and accompanying text. The 
courts below did no more than conscien­
tiously apply the well-established and 
noncontroversial requirements of Milliken
v. Bradley, 418 U.S. 617 (1974), to the

24/facts at hand. This, accordingly, is
not a case in which the finding of a

24/ Accord, Evans v. Buchanan, 582 F. 2d 
750 (3d Cir. 1978)(en banc), cert, denied,
446 U.S. 923 (1980); 555 F.2d 373 (3d Cir. 
1977)(en banc), cert, denied, 434 U.S. 934 
(1978); 393 F. Supp. 428 (D. Del.), (3-
judge court), af f'd, 423 U.S. 963 ( 1975);
Morrilton School District v. United States, 
606 F.2d 222 (8th Cir. 1979), cert, denied, 
444 U.S. 1071 (1980). United States v.
Board of Commissioners, su£ra; United 
States v. Missouri, 515 F.2d 1365 (8th 
Cir.), cert, denied, 423 U.S. 951 (1975).



40

constitutional violation presses the 
limits of any doctrine of liability. 
Rather, the key violation found, the 
"[gerrymandering of boundary lines," 
Columbus Board of Educat ion v. Penick, 
supra, 443 U.S. at 462 n„10, is a classic 
example in the school context of intention- 
ally segregative state action.

Moreover, the record on violation is 
unequivocal. For example, the chairman of 
the state board of education admitted under 
oath that, had reorganization criteria been 
properly applied and had racial factors not 
been improperly considered, the board 
"wouldn't have done it" —  e.g. , would not 
have created General Braddock and insulated 
its predominantly white neighbors. R .  

2 702a-*03a (T. Christman). Moreover,
another state official testified that, had 
reorganization criteria, rather than racial 
biases, been followed in the reorganization



41

process, none of the districts in central 
eastern Allegheny County would have been 
created as racially segregated units. R. 
254a, 260a (T. Anliot).—

2 5/ While conceding that the district 
court applied proper standards and relied 
on sufficient evidence in finding a consti­
tutional violation and that the two courts 
below found that all of the petitioner 
districts' boundaries were drawn as a 
result of their racially motivated efforts 
to avoid a merger with any black districts, 
Swissvale nevertheless argues that the 
matter should be remanded to provide 
yet another opportunity for the districts 
to present evidence that they would have 
been created as they were regardless of the 
constitutional violation. Swissvale 
Petition No. 81-2037, at pp. 11, 18-19.
This argument simply ignores substantial 
record evidence (including the Christman 
and Anliot testimony noted in text) and 
repeated findings establishing that: none
of the petitioner districts would 
been created as they were 
constitutional violation; 
districts' boundary lines were ally related to any legitimate 
"did not promote any valid state interest;" 
and that there was no explanation apart 
from race that could possibly account for 
the configuration of districts actually 
created by state and county officials. 
Hoots IX, A. 100a; Hoots VI, A. 55a, Hoots 
II, A. 32a-33a.

have 
absent the 
that those 
not "ration- 
purpose" and



42

2. The Remedy
Five of the six petitions seek certi­

orari to review the exercise of discretion 
by the courts below in ordering consolida­
tion of General Braddock and the four 
surrounding white districts into one de­
segregated district. The Commonwealth does

26/not oppose the remedy.—  Commonwealth 
of Pennslyvania Petition, No. 81-2038, 
p. 16 n. 9. These identical arguments have 
been fully considered and rejected by both 
courts below, Hoots VI, A. 56a-62a; Hoots 
VIII, A. 79a; Hoots IX, A. 115a-16a, and 
this Court has previously declined to 
review these claims. Churchill Area School

26/ Indeed, in September 1980, the Common­
wealth informed the district court that the 
consolidation of these five districts 
was a feasible and efficacious remedy 
considering educational, administrative and 
desegregation criteria. Relying on the 
same criteria, the Commonwealth warned the 
court against a consolidation of fewer than 
these five districts. R. 2644a-45a.



43

District v._Hoots, No. 73-2038, cert.
denied, 419 U.S. 889 (1974), R. 2577a.

In order to assess the district 
court's exercise of discretion on remedy, 
it is first necessary to note that fully 
eight years passed between the time the 
district court first found that state, 
county and local officials had committed 
a constitutional violation and the imposi­
tion of any remedy. Notwithstanding the 
patient efforts of the district court 
during those years, petitioners defaulted 
completely on their affirmative duty to
provide an expeditious and adequate remedy

, ,,2 7/to eliminate "root and branch"—  the 
effects of the violation found, i.e., the 
racially motivated drawing of segregative 
district boundary lines. Accordingly, it 
was only because of petitioners' default

27/ Green v. County School Board, 391 U.S. 
430, 439 (1968).



44

that the district court was forced to frame
2 8/a remedy itself.—

The court devised the remedy, however, 
only after holding numerous hearings at 
which expert and lay testimony and docu­
ments were received. The district court, 
as discussed above, reviewed the entire 
record on violation before considering any 
remedy and gave each surrounding district a 
full opportunity to prove that it was not 
affected by or guilty of any specific vio- 
lational act and that it could not be in­
volved in any remedy. See Hoots VI, A. 56a.

The district court concluded that Gen­
eral Braddock and each of the four peti­
tioner districts could properly be included 
in an interdistrict remedy for two indi­
vidually sufficient reasons. First, the 
district court concluded that, since "[t]he

28/ See Swann v. Charlotte-Mecklenburg 
Board of Education, 402 U.S. 1, 15 (1971).



45

State and County Boards violated the con­
stitution in the manner in which the school 
district lines were drawn ... [in] all [of 
the] surrounding districts," Hoots VI, A. 
58a (emphasis added), "racially discrimi- 
nat[ory] acts of the state have been a sub­
stantial cause of interdistrict segrega­
tion," id. , A. 56a, and "the effects of 
[that] unconstitutional state action are 
felt in [ a_l _1 of the surrounding] dis­
tricts," id., A. 57a. Accordingly, follow­
ing the unanimous rule of this Court and 
the courts of appeals, the district court 
held that "[a] multidistrict remedy can be 
applied to surrounding districts that have 
not been found to have committed a consti­
tutional violation themselves [because] 
their boundaries were drawn or redrawn 
during the course of the ... violat ion



46

committed by other state actors. Id. ,
A 29/A. 56a.

Second, the court reiterated that, in 
any event, public officials in each of 
the petitioner districts (or their prede­
cessor districts) were actually at fault, 
because they "continually sought to avoid 
being included in a school district with 
[General Braddock] due to the high con-

29/ Accord, Milliken v. Bradley, supra, 
418 U.S. 746 (interdistrict remedy appro­
priate where "racially discriminatory 
acts of state ... officials have been a 
substantial cause of interdistrict segrega­
tion," particularly "where district lines 
have been deliberately drawn on the basis 
of race" by those officials; _i d . a t 755 (Stewart, J., concurring) ( interdis­
trict "restructuring of district lines" 
appropriate where "state officials had 
contributed to the separation of the races 
by drawing or redrawing school district 
lines" ); Morrilton School District No. 32 
v. United States, supra; United States v. 
Board of School Commissioners, supra, 573 
F .2 d at 4 10; Evans v. Buchanan, 416 F.
Supp. 328 (D. Del. 1976), aff1 d, 555 F.2d
373 (3d Cir. 1977)(en banc), cert, denied,
434 U.S. 934 ( 1978).



47

centration of blacks." Hoots VI, A. 59a.
30/See also Hoots IX, A. 114a.—

On appeal, the petitioner districts' 
claims of insufficient factfinding and 
evidence on their involvement in, and 
responsibility for, the unconstitutional 
reorganizations were fully briefed and 
again rejected. Hoots IX, A. 109a-22a. 
The court of appeals concluded that 
the evidence relied on by the district

30/ Accord, Milliken v. Bradley, supra, 
418 U.S. at 744-45 (interdistrict remedy 
appropriate where "racially discriminatory 
acts of ... local school officials have 
been a substantial cause of interdistrict 
segregation," particularly where, as a 
result of those acts, "district lines have 
been deliberately drawn on the basis of 
race"); Morrilton School Dist. No. 32 v. 
United States, supra, 606 F.2d at 226-29; 
Evans v. Buchanan, 582 F.2d 750, 762-67 (3d
C i r . 1 9 7 8); Dn_ited_States_v_._Board of
School Commissioners, supra, 573 F. 2d at 
407-08, 410; United States v. Missouri,
supra, 515 F.2d at 1369-71 , af f1 g 388 F. 
Supp. 1058, 1059-60 (E.D. Mo. 1978), and
363 F. Supp. 739, 745-46, 747-50 (E.D. Mo. 
1973).



48

court made out an "actual showing of de 
jure discrimination by [and affecting] all 
of the districts involved" in the remedy. 
Hoots IX, A. 111a (emphasis in the origi-

31/ In view of the two-court conclusion 
that respondents made out an "actual 
showing ... [that] all of the [petitioner] 
districts" were (i) affected (indeed 
created) by the state and county boards’ 
invidious actions, and (ii) were themselves 
guilty of racially motivated segregative 
acts, Hoots IX, A. 111a (emphasis in 
original), Swissvale's argument, joined by no 
other petitioner, that its inclusion in the 
remedy was solely the function of having 
some burden of proof allocated to i_t is 
completely misdirected. See Swissvale 
Petition, No. 81-2037, p. 18. The only 
"burden" allocated to Swissvale and the 
other districts was the traditional defen­
dant’s burden (more accurately, oppor­
tunity) to rebut the otherwise legally 
sufficient proof of intentional discrimina­
tion by and affecting each district that 
was introduced by plaintiffs. Like the 
other petitioner districts, Swissvale 
failed to meet that "burden" because it 
failed, despite numerous opportunities, to 
adduce any evidence tending to rebut plain­
tiffs' showing that Swissvale's boundaries 
were the product of the state's, county's 
and its own officials' intentionally 
segregative acts and decisions.



49

Indeed, even the court of appeals' 
summary review of "some of [the] evidence" 
relied upon by the district court squarely 
implicates each of the four petitioner 
districts in the violation —  for example, 
through (i) the admissions under oath of an 
area municipal official that he and his 
counterparts in the predecessor districts 
of Swissvale and Turtle Crrek "pressured 
State and County Board members in the 
1960's to insulate their municipalities ... 
from merger with [General Braddock] because 
of ... the bitterness felt by 'whites' 
towards 'blacks' in the area;" (ii) the 
contemporary statements of other area 
officials involved in the reorganization 
process charging Churchill with refusing to 
merge with neighboring districts in 1964 
for reasons of "'race'" and "'color,'" and 
(iii) the state and county boards' creation 
of the sub-1000-pupil Edgewood district in



50 -

1969, in stark contravention of the applic­
able guidelines' 4000-pupil minimum. Hoots 
IX, A. 105a, 106a-07a, 108a, quoting R.
118a-126a, 588a.

The rejection —  by both courts below, 
after plenary consideration -- of the 
claim of each of the petitioner districts 
that it should not be included in any 
remedy is entitled to substantial defer­
ence. For factual and evidentiary claims 
on remedy that have been rejected by two 
courts below are no more appropriate for 
further review than similar issues going to 
violation. See pp. 36-38, supra. Indeed, 
a "district court's equitable power to 
remedy past wrongs is broad, for breadth and 
flexibility are inherent in equitable 
remedies," Swann v. Charlotte-Mecklenburg 
Board of Education, 402 U.S. 1, 15 (1971),
and because breadth is necessary "to allow 
the most complete achievement of the



51

[remedial] objectives ... attainable under 
the facts and circumstances of the specific 
case." Franks v. Bowman Transportation Co., 
424 U.S. 747, 770-71 (1976).

The intimate knowledge and experience 
of the trier of fact —  and of the court of 
appeals —  with the circumstances of the 
case, as well as the long course of pro­
ceedings and the careful and deliberate 
framing of relief below even more tho­
roughly undermine petitioners' claim of 
abuse of discretion. This, after all, is a 
case in which the Commonwealth and peti­
tioner districts themselves proposed 
various interdistrict consolidation
remedies. See n.12, supra. It is hardly 
an abuse of discretion for the trial judge 
to select from among the available remedial



52

alternatives the remedy that long expe­
rience dictated would most effectively cure 
the underlying violation and provide 
equitable relief.

Furthermore, no petitioner disputes
the express findings of the district court,
Hoots VIII, A. 73a, concurred in by the
court of appeals, Hoots IX, A. 116a-19a,
that the consolidation of the former
districts into the Woodland Hills School
District is the bejs;t remedy in terms
of desegregation, enhanced educational

32/program and administrative efficiency:-—  
The consolidation results in an economically 
and demographically stable district, with a

32/ In reaching this conclusion, the 
courts below relied on the same reorganiza­
tion guidelines and criteria that should 
have been, but were not, followed by the 
state and county boards in the 1 960's, 
including racial and cultural diversity, 
geographic size, contiguity, transporta­
tion, pupil population, economic efficiency 
and financial stability. See pp. 23, 33,
supra.



53

racial distribution comparable to that in 
the neighboring areas of Allegheny County. 
Notwithstanding the consolidation, Woodland 
Hills is smaller in size than the average 
school district in Allegheny County. 
Moreover, the new district's roughly 
circular shape lends itself to increased 
administrative and transportation efficien­
cies —  since no point in the district lies 
more than 2.5 miles from the center. As a 
result, the preexisting transportation 
facilities of the merged districts are 
adequate to serve the transportation 
needs of the new district, and the merger 
has accordingly resulted in no increase in 
the number of students bused to school. 
Hoots v. Commonwealth, No. 71-538 (W.D. Pa.
May 12, 1982).



54

Because of declining enrollment in 
all the former districts, consolidation and 
desegregation also promotes educational 
efficiency and economy. Thus, not only 
does the merger place the new district's 
student population above the 4000-person 
statutory minimum in Pennsylvania (previ­
ously, all five former district were below 
that minimum), but it also allows for the 
closing of old and underutilized facilities 
and for a better organized comprehensive 
educational program without additional 
costs. Indeed, as the courts below found, 
e _j_c[. , Hoots IX, A . 118a, there is the
possibility of very substantial monetary 
savings as a result of the merger. In any 
event, Woodland Hills is financially 
viable, having a higher tax base per 
student than the state average. Hoots IX, 
A. 116a-119a, 73a-75a.



55

In sum, there is no reason to unravel 
a constitutionally mandated and effective 
remedy that has provided the central 
eastern portion of Allegheny County with 
equal educational opportunity for the first 
time since the 1960's.

3. Meaningful Opportunity to Par­
ticipate

Petitioner districts also seek review 
of the district court's decision not to 
join them as defendants, against their 
express wishes, prior to the initial 
violation trial in 1973. The Commonwealth 
—  which failed to appeal the nonjoinder 
issue in 1 972 or thereafter, and which 
itself submitted proposals for interdis­
trict relief that included all four peti­
tioner districts, see n.12, supra -- now 
also seeks review of the nonjoinder 
question. Both the district court and
court of appeals have rejected petitioners'



56

contention on numerous occasions, Hoots I, 
A. 4a-5a; Hoots II, A. 33a-~35a? Hoots III, 
A. 42a; Hoots IX, A. 111a, and this Court 
itself has previously declined to review 
the matter. See Church ill Area School
D _i ssJL£jL£ Hoot_s r n o . 73-2038, cert .
denied, 419 U.S. 884 (1974), R. 2578a-79.
In any event, it is clear that petitioner 
districts were not in fact denied a mean­
ingful opportunity to participate in any 
stage or aspect of this litigation.

The original motions to dismiss for 
failure to join mandatory parties were 
correctly denied in 1972, under Rule 19, 
Fed. R. Civ. P., because Pennsylvania law 
does not afford local school districts any
legally cognizable interest in their 

33/boundaries sufficient to make them man-

33/ See Chartiers Valley Joint Schools v. County Board, 418 Pa. 250, 21 1 A.2d 487, 
501 (1965).



57

datory parties in a suit against the state
regarding those boundaries. Hoots I, A.
„ . 34/4a-5a; Hoots II, A. 33a-35a: >phe dis­
trict court nevertheless went beyond the 
dictates of Rule 19, and directed the par­
ties to notify the surrounding districts 
that their boundaries might be changed and 
to invite them to intervene. See Hoots II, 
A. 33a-35a. Indeed, the court stated in a 
published order that it would look favor­
ably on intervention motions from the

34/ Accord, Husbands v. Commonwealth of 
Pennsylvania, 359 F. Supp. 925, 937
(E.D. Pa. 1973)(Pennsylvania reorganization 
statutes deprive school districts of 
an interest in their boundaries sufficient 
to make those districts mandatory parties 
in a suit similar to the present one); 3A 
MOORE'S FEDERAL PRACTICE M 19.07-1[2] &
n.4, at 129-30 (citing with approval the 
district court's joinder ruling in Hoots 
II). See also Lee v. Macon County, 268 
F.2d 458, 479 (M.D. Ala.)(3-judge court),
aff'd, 389 U.S. 215 (1967); Griffin v.
Board of Education, 23 9 F. Supp. 560, 566(E.D. Va. 1965).



- 58 -

neighboring districts. Hoots X, A. 5a. 
See pp. 10-11, supra.

In short, from the very beginning, the 
petitioner districts had full notice of, 
and a meaningful opportunity to participate 
in, the proceedings in this case. Indeed, 
it is conceded by the petitioner districts 
that their failure to participate in the 
original trial was not the result of some 
action or inaction on respondents' or the 
district court's part, but instead was the 
result of a studied decision on their 
parts, dictated by considerations of 
so-called "prudent lawyering," to "'sand­
bag' -- to gamble on [a favorable ruling] 
while saving [another] claim in case the 
gamble doesn't pay off." Engle v. Isaac, 

U.S. 71 L . Ed „ 2d 783, 80 1 n.34
(1982). See n.8, supra, and accompanying 
text. If the districts' interests were in



59

any way prejudiced, therefore, it was no 
one's fault but their own.

In any event, petitioner district's 
interest were not adversely affected 
by their deliberate nonparticipation at the 
1 972 trial, for, as the court of appeals 
found in its most recent discussion of this 
issue, Hoots IX, A. 102a, the district 
court actually permitted those districts, 
following their post-1973 intervention and 
joinder, to reopen the violation finding and 
to adduce whatever evidence they chose on 
the matter —  which they did. For in­
stance, the chairman of the State Board of 
Education, who testified about the reorgan­
ization process in central eastern Alle­
gheny County and admitted that his agency 
knowingly segregated the school districts 
there, see p. 40, supra, R. 2702a-03a, was 
expressly called in 1 975 by the former 
districts to testify as .t h e_ i_ .r witness



60 -

on the issue of the existence and scope of
the violation. R. 2673a, 2799a. At no
time, in fact, have any of the petitioner
districts identified or proffered any 
evidence that they were prevented from 
presenting on any issue relevant to this 
litigation.

Having had formal notice from the 
outset about the pendency, substance, and 
implications of this litigation, having 
been expressly invited by the district 
court to participate in it if they so 
chose, and having in fact participated 
fully on all issues over the course of the 
last nine years, see pp. 14-15 & n.11, 
supra, the petitioner districts have no 
basis in fact or law for asking this Court 
to review the district court's exercise of 
its discretion not to force them, against 
their wills, to participate in a single



61

hearing held more than nine years 35/ago.—

CONCLUSION
The petitions for writs of certiorari 

should be denied.

Respectfully submitted,

THOMAS J. HENDERSON* 
1312 E. Carson St. 
Pittsburgh, Pa. 15203 
(412) 431-7255

*Counsel of Record

35/ The claim that the surrounding dis­
tricts were denied a meaningful opportunity 
to participate can only be made by ignoring 
that this case is completely unlike Milliken 
v. Bradley, supra, 418 U.S. at 730-3 1 ,
752, where the surrounding districts 
did not have formal notice of, were not 
invited to participate in, and in fact did 
not participate in, any; proceedings. 
Milliken, moreover, did not involve either 
segregative redistricting by state offi­
cials, or state school-district-reorgani­zation statutes under which local districts 
were expressly divested by the state 
legislature of any legal interest in their 
boundaries.



- 62 -

JACK GREENBERG
JAMES M. NABRIT, III
BILL LANN LEE
JAMES S. LIEBMAN
Suite 2030
10 Columbus Circle
New York, New York 10019
(212) 586-8397

Attorneys for Respondents Dorothy Hoots, et al.



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