Potts v. Flax Brief in Opposition to Certiorari

    I n the

i ’ltpriw (Cuurt nf tit? Inttpii &tatpja
October T erm, 1972

No. 72-288

W . S. P otts, et al., 

—vs.—

A rlene F lax, et al.

Petitioners,

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION TO CERTIORARI

L. C l if f o r d  D a v is  

914 East Rosedale 
Fort Worth, Texas 76104

J ack Greenberg 
James M. N abrit, III 
W illiam L. R obinson 
N orman J. Chachkin  

10 Columbus Circle 
New York, New York 10019

Attorneys for Respondents



I N D E X

Opinions B elow ..................................... ...........................  1

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

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

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

Reasons Why the Writ Should Be Denied:

I. The Court of Appeals Correctly Interpreted This 
Court’s Decisions in Sivann and Companion Cases 
in Requiring Further Desegregation of the Fort 
Worth School System .............................................. 4

II. The Court of Appeals Properly Required the 
Inclusion of First Grade Students in the De­
segregation Process ................................................ 8

III. The Court of Appeals Properly Required Deseg­
regation of the Vocational-Technical Schools .......  9

IV. Section 803 of the Education Amendments of
1972 Has No Application to This Case ............... 10

V. There Is No Viable Class Action Issue ...............  10

Conclusion .........................................................................  12

Table of A uthorities

Cases:

Acree v. County Board of Educ. of Richmond County,
336 F. Supp. 1275 (S.D. Ga.), aff’d 458 F.2d 486 (5th 
Cir. 1972), cert, pending, Nos. 72-79 and 72-167 ....... 3n

PAGE



11

Cisneros v. Corpus Christi Independent School Dist.,
No. 71-2397 (5th Cir., August 2, 1972)......................  7

Clark v. Board of Educ., No. 72-1406 (8th Cir., August
21, 1972) ..........................................................................  9

Clark v. Board of Educ., 426 F.2d 1035 (8th Cir. 1970) 6

Davis v. Board of School Comm’rs, 402 U.S. 33 (1971) 8n 
Dowell v. Board of Educ., No. 72-1146 (10th Cir., 

August 4, 1972) .............................................................  6

PAGE

Drummond v. Acree, No. A-250 (September 1, 1972).... 10 
(Mr. Justice Powell, Circuit Justice)

Flax v. Potts, 450 F.2d 1118 (5th Cir. 1971)................. 3
Flax v. Potts, 333 F. Supp. 711 (N.D. Tex. 1970), con­

struction enjoined, 450 F.2d 1118 (5th Cir. 1971).....  7n

Green v. County School Bd. of New Kent County, 391 
U.S. 430 (1968) .............................................................  5,9

Hall v. St. Helena Parish School Bd., 417 F.2d 801 (5th
Cir.), cert, denied, 396 U.S. 904 (1969) ......................  5

Harrington v. Colquitt County Bd. of Educ., 460 F.2d
193 (5th Cir. 1972) ......................................................  9

Henry v. Clarksdale Municipal Separate School Dist.,
409 F.2d 682 (5th Cir.), cert, denied, 396 U.S. 940 
(1969) ............................................................................... 7

Kelley v. Metropolitan County Bd. of Educ., 463 F.2d
732 (6th Cir. 1972) .......................................................6,11

Kramer v. Union Free School Dist., 395 U.S. 621 (1969) lln

Potts v. Flax, 313 F.2d 284 (5th Cir. 1963) ................... 11

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402
U.S. 1 (1971) ....................................................... 3, 4, 6, 7, 8



Ill

PAGE

Thompson v. School Bd. of Newport News, No. 71-2032 
(4th Cir., August 2, 1972) ...........................................  9

United States v. Jefferson Comity Bd. of Educ., 372 
F.2d 836 (1966), aff’d en banc, 380 F.2d 385 (5th 
Cir.), cert, denied sub nom. Caddo Parish School 
Bd. v. United States, 389 U.S. 840 (1967)............... 4

United States v. Scotland Neck City Bd. of Educ., 407 
U.S. 484 (1972) .............................................................  8n

Wright v. Council of the City of Emporia, 407 U.S. 452 
(1972) ..............................................................................  8n

Statutes:

Education Amendments of 1972, P.L. 92-318 ..............2,10



In the

^uiirmp ( ta r t  of %  Inttefc ^tatm
October T erm, 1972

No. 72-288

W. S. P otts, et al., 

—vs.—

A rlene F lax, et al.

Petitioners,

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION TO CERTIORARI

Opinions Below

The opinion of the United States Court of Appeals for 
the Fifth Circuit tiled July 14,1972, as amended on July 27, 
1972, is unreported and is reprinted in the Appendix to 
the Petition at pages A -l through A-12. The opinion 
of the district court entered July 30, 1971 is unpublished 
and appears at pages A-14 through A-42 of the Appendix 
to the Petition.

Prior reported opinions in this case appear at 450 F.2d 
1118 (5th Cir. 1971); 313 F.2d 284 (5th Cir. 1963); 333 
F. Supp. 711 (N.D. Texas 1970); and 204 F. Supp. 458 
(N.D. Texas 1962).



2

Jurisdiction

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

Questions Presented

1. Whether the Court of Appeals erred in holding that 
the Fort Worth school system was not yet unitary, where 
nearly 57% of its black students attended virtually all­
black schools.

2. Whether the Court of Appeals erred in overturning 
the district court’s action exempting all first graders from 
inclusion in the desegregation process irrespective of the 
particular time or distance any individual student or group 
of students of any age might have to be transported.

3. Whether residential segregation in Fort Worth, which 
predated the commencement of this litigation and which 
continues virtually unabated to any substantial degree, 
excuses the school authorities from dismantling segregated 
units of their former dual school system which are located 
in segregated neighborhoods.

4. Whether Section 803 of the Education Amendments 
of 1972, P.L. 92-318, applies to district court orders de­
signed to remedy unlawful segregation and not to achieve 
racial balance.

5. Whether a class action to desegregate the public 
schools may be maintained.



3

Statement of the Case

The section of the Petition entitled “ Statement of the 
Case” (pp. 6-14) is, to quote another district court, a 
“mishmash and embranglement” 1 of fact, argument and 
conclusion dealing with matters within and without the 
record, some litigated and some ignored by Petitioners 
below, and either relevant or irrelevant to a consideration 
of this matter. Respondents will make no attempt to 
contradict every misrepresentation. The uncontested facts 
are that this lawsuit to desegregate the public schools of 
Fort Worth, Texas was commenced in 1959 and followed 
a now familiar course through freedom of choice and other 
ineffective desegregation plans. In 1970, the district court 
denied relief sought by plaintiffs with the filing of a motion 
for further relief; following this Court’s decision in Swann 
v. Charlotte-Mecklenburg Board of Educ., 402 U.S. 1 (1971), 
the Court of Appeals remanded for compliance with the 
principles enunciated in Swann. 450 F.2d 1118.

The .Board then proposed a cluster plan involving some 
27 elementary schools, designed to desegregate six virtually 
all-black elementary schools, and to produce desegregation 
at the secondary grade levels through the operation of a 
pre-existing feeder pattern determining attendance at 
middle and high schools based upon attendance at a par­
ticular elementary school. Kindergarten and first grade 
students were to be excluded from the desegregation 
clusters. The Board did not propose to take any steps 
to bring about substantial desegregation of other all-black 
or virtually all-black or all-white schools in the Fort Worth 
system.

1 Acree v. County Board of Educ. of Richmond County, 336 
F. Supp. 1275 (S.D. Ga.), ajf’d 458 F.2d 486 (5th Cir. 1972), 
cert, pending, Nos. 72-79 and 72-167.



4

Nevertheless, the plan was approved by the district court 
on the ground that Fort Worth had operated a unitary 
school system since a Jefferson2 decree was entered in 
1967; and that the black schools which were to remain 
unaffected by the desegregation plan did not owe their 
racial composition to any state action maintaining the 
dual school system—despite the fact that no substantial 
desegregation of Fort Worth schools occurred under 
freedom of choice.

Reasons Why the Writ Should Be Denied

I.

The Court of Appeals Correctly Interpreted This 
Court’s Decisions in Swann and Companion Cases in 
Requiring Further Desegregation of the Fort Worth 
School System.

As we understand the Petition, the school board contends 
that the judgment below exceeds the remedial authority 
confirmed by Swann in several respects, each of which we 
discuss seriatim:

1. The school board agrees it must desegregate schools 
which were black before this suit commenced, and remained 
black through 1971-72. However, as to those schools which 
in 1971-72 were virtually all black, but had earlier been 
restricted to white students, the school board contends it 
has no constitutional obligation because the racial com­
position of these schools was determined by other than 
school board action (residential mobility) “after the dual

2 United States v. Jefferson County Bd. of Educ., 372 F.2d 836
(1966) , aff’d en banc, 380 F.2d 385 (5th Cir.), cert, denied sub 
nom. Caddo Parish School Bd. v. United States, 389 U.S. 840
(1967) .



5

system liad been voluntarily eliminated by the Board.” 
(Petition, p. 4). The district court accepted this argument, 
but the Court of Appeals did not.

The initial difficulty with the hypothesis is that no af­
firmative action was taken by the Board to eliminate the 
black schools which it agrees are vestiges of the dual sys­
tem (those included within its cluster plan approved by 
the district court) until the 1971-72 school year; thus, any 
changes in the racial composition of other schools did not 
occur “after the dual system had been . . . eliminated.” 3 
The Court of Appeals was plainly correct in rejecting the 
district court’s holding that these schools’ racial composi­
tion was the “ result of desegregation instead of segrega­
tion” (A-39),4 based as it was upon the district court’s 
conclusion that Forth Worth had operated a “ unitary” 
school system since free choice was instituted in 1967 
(A-15). E.g., Green v. County School Bd., 391 U.S. 430
(1968); Hall v. St. Helena Parish School Bd., 417 F.2d 
801 (5th Cir.), cert, denied, 396 U.S. 904 (1969). Further­

3 In the district court and the Court of Appeals, the Board 
argued with little substantiation that the black schools it was not 
including in its desegregation plan had become black schools since 
1967 (See A-39, where the district court distinguishes schools which 
were white “under the dual system,” which the court held lasted 
until 1967, A -15 ; A-7, where the Court of Appeals summarizes the 
school board’s contentions centering around the 1967 conversion to 
a “unitary” school system). However, in this Court the Board 
contends only— and rather vaguely— that some of the schools be­
came identifiably black schools “between 1963 and 1970” (Petition, 
p. 14) while others “have been in the process” for “12 years”—  
or prior to the effective date of the first order in this case (See 
A -14). As we discuss in the text, infra, whenever those changes 
in racial composition did occur, they were accompanied by school 
board actions such as eliminating optional zones which kept white 
schools white until neighborhoods had completely changed, or re­
assigning black faculty to what was now to be a black school.

4 Citations are to the Appendix to the Petition.



6

more, the Court of Appeals’ review of the evidence con­
vinced the panel that the schools had become identifiably 
black even prior to the year when the district court and 
the school board contended a unitary system had first been 
established (A-7).5 Finally, although the Court of Appeals 
did not specifically discuss it, the record reveals the man­
ner in which the school board contributed to the estab­
lishment of these facilities as black schools through manip­
ulation of optional attendance zones, assignment of black 
faculty to match black student bodies, etc. There was no 
affirmative school board action to eliminate racially identi­
fiable faculties, see Swann, 402 TJ.S. at 18, until 1971-72 
(A-27 to A-29).

The arguments made by the Board have been rejected 
in other Circuits. E.g., Kelley v. Metropolitan County Bd. 
of Educ., 463 F.2d 732, 744 (6th Cir. 1972) (“ The fact that 
population shifts in the metropolitan school district have 
helped to some degree to change the racial composition 
of some schools during the course of litigation does not 
eliminate the duty of the school board to present a plan 
for a unitary school system’’ ) ; Clark v. Board of Educ., 
426 F.2d 1035 (8th Cir. 1970); Dowell v. Board of Educ., 
No. 72-1146 (10th Cir., August 4, 1972).

2. The school board argues that the Court of Appeals 
erred in requiring the desegregation of three schools which 
are located in segregated black neighborhoods (Petition, 
p. 13) which, it suggests, result solely from the exercise 
of choice by blacks. Putting to one side the total lack 6

6 The Court of Appeals’ reference to “nine of the eleven ele­
mentary schools” (A -7) does not indicate that the other two were 
not identifiably black schools before 1967, but only that they were 
not “virtually all-black,” words which have become a phrase of 
art in the Fifth Circuit indicating schools 90%  or more black. See 
A-6, n.6.



7

of any credible evidence introduced by the Board below 
to substantiate such a claim, the Court of Appeals’ out- 
of-hand rejection of this contention (A-8) as a matter of 
law is warranted by the decision in Swann and other 
precedent. E.g., Henry v. Clarksdale Municipal Separate 
School Dist., 409 F.2d 682 (5th Cir.), cert, denied, 396 U.S. 
940 (1969). Residential segregation in Fort Worth pre­
dates this lawsuit and the school board was well aware 
of it in designing its segregated “neighborhood” zones.6 
But desegregation plans “cannot be limited to the walk- 
in school.” Swann, 402 U.S. at 30.

3. The school board seems to argue, finally, that the 
judgment below exceeds the Stvann guidelines of practical­
ity and feasibility because of the burden upon the school 
system (Petition, pp. 13-14). Apart from the rather 
astounding inflation in the board’s estimates of required 
transportation facilities (between the time when the school 
officials thought they had about a month to design and 
implement an effective plan, and the time when they were 
granted an additional semester within which to complete 
the process), the hardship claims are at this time entirely 
unsubstantiated. The school board has not yet filed a plan 
in accordance with the remand instructions below, nor 
have any hearings been held. The board will have available 
to it when it does so, guidelines recently issued by the 
Fifth Circuit en banc for the preparation of desegregation 
plans so as to minimize pupil transportation and expense. 
See Cisneros v. Corpus Christi Independent School Dist., 
No. 71-2397 (5th Cir., August 2, 1972). In the absence of a 6

6 Thus, for example, the school board defended its proposal to 
build a segregated high school in the all-black Morningside area 
on the grounds that this community was enttiled, like all others in 
Fort Worth, to have its own segregated schools. See 333 F. Supp. 
711, construction enjoined, 450 F.2d 1118.



8

concrete desegregation plan given court approval and 
direction for implementation, one may hardly make a judg­
ment that the practical limitations recognized by Swami 
have been ignored!

II.

The Court of Appeals Properly Required the Inclu­
sion of First Grade Students in the Desegregation 
Process.

Petitioners can suggest no compelling reason for the 
blanket exclusion of first grade students from the desegre­
gation process which was accepted by the district court. 
Certainly there is nothing in the record as it now stands 
to suggest that any first grade student would have to be 
transported 20 miles; should that eventuality come to pass, 
the particular circumstances can be considered in light of 
this Court’s recognition in Swann that the age of the 
student is a factor to be taken into account in determining 
feasibility and practicability of desegregation plans utiliz­
ing transportation.

First grade students were historically part of school 
district segregation plans which often required blacks 
to attend distant segregated facilities, and first grade 
students have routinely been included in many desegrega­
tion plans approved by this Court and the lower federal 
courts, including those in Charlotte, Mobile, Emporia and 
Scotland Neck.7 In addition, other Circuits which have 
addressed the issue have rejected the contentions pressed

7 Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1
(1971) ; Davis v. Board of School Comm’rs, 402 U.S. 33 (1971) ; 
Wright v. Council of the City of Emporia, 407 U.S. 452 (1972) ; 
United States v. Scotland Neck City Bd. of Educ 407 U S 484
(1972) .



9

by the Board. Clark v. Board of Educ. of Little Rock, 
No. 72-1406 (8th Cir., August 21,1972); Thompson v. School 
Bd of Newport News, No. 71-2032 (4th Cir., August 2, 
1972).

m .
The Court of Appeals Properly Required Desegrega­

tion of the Vocational-Technical Schools.

The district court permitted the continued operation 
of I.M. Terrell (High) School as an all-black facility, which 
it found was one of “only two such [vocational high] 
schools in the whole system” (A-39) because the two voca­
tional schools were open to enrollment by all students. 
This reliance upon a free choice situation despite its 
ineffectiveness is clearly insufficient. Green v. County 
School Bd., supra, and the Court of Appeals properly re­
quired desegregation of the technical schools (A-8).

The Court below has not, as the Board argues (Petition, 
pp. 4, 12-13), required that black students be deprived of a 
vocational education. Indeed, any plan to “desegregate” 
Terrell by denying black students the right to vocational 
training would be unconstitutional. See, e.g., Harrington v. 
Colquitt County Bd. of Educ., 460 F.2d 193, 196 n. 3 (5th 
Cir. 1972). All that the Court below has required is that 
the Fort Worth school system’s vocational and technical 
courses of study be desegregated.



10

IV.

Section 803 of the Education Amendments of 1972 
Has No Application to This Case.

Petitioners have not sought a stay of the judgment below. 
Under the normal schedule of this Court, it is entirely pos­
sible, and likely, that ultimate review by this Court will 
be foreclosed by denial of this Petition prior to the sched­
uled implementation of desegregation in Forth Worth pur­
suant to the judgment below. Under these circumstances, 
Section 803 of the Education Amendments of 1972, P.L. 
92-318, has no application here.

Furthermore, for the reasons stated by Mr. Justice 
Powell in Drumond v. Acree, No. A-250 (September 1, 
1972), that section does not apply to the decrees below, 
which are designed to achieve desegregation of a formerly 
dual school system rather than a racial balance.

V.

There Is No Viable Class Action Issue.

Finally, the Board argues for the first time in this Court 
that there is a standing problem. The argument is that, 
the original named plaintiffs in this class action no longer 
attending Fort Worth schools, the real plaintiff is the 
“NAACP of New York” which has no standing to prosecute 
the lawsuit.

The facts are these: of the two original plaintiffs, one 
testified (without any indication that he understood the 
technicalities of class action suits in federal court) that 
he was prosecuting the case for his own children only (in 
reality, he was hesitant to “ speak for” others); the other



11

was not questioned on the subject. The Court of Appeals 
held the case was properly brought as a class action. 313 
F.2d 284. In 1967, the children of the Fort Worth attorney 
representing the original plaintiffs intervened as plaintiffs 
in the suit; they remain in Forth Worth and are eligible 
to attend the Fort Worth public schools.8 Finally, respon­
dents are preparing the necessary papers at this time to 
intervene additional infant children attending Fort Worth 
schools as plaintiffs in the district court so as to remove 
any doubt whatsoever. But as another Court of Appeals 
has said in rejecting a similar claim,

. . . we note that this issue was clearly waived by fail­
ure of appellants [the school board] to raise it prior 
to trial and final adjudication of this case.

We also note that such a class action as this dealing 
with continuing constitutional violations does not be­
come moot because of years of delay (much of it at­
tributable to appellants) which occasioned the grad­
uation of the named, original student plaintiffs from 
the school system before final decision.

Kelley v. Metropolitan County Bd. of Educ., supra, 463 
F.2d at 743.

8 These children today attend non-public schools, but they re­
main eligible to enroll in Fort Worth public schools and continue 
to have an enforceable interest in the constitutional operation of 
the public school system. Cf. Kramer v. Union Free School Dist., 
395 U.S. 621 (1969).



12

CONCLUSION

W herefore, for the foregoing reasons, respondents re­
spectfully pray that the Writ be denied.

Respectfully submitted,

L. Clifford Davis 
914 Rosedale
Fort Worth, Texas 76104

J ack Greenberg 
J ames M. Nabrit, III 
W illiam L. R obinson 
N orman J. Chachkin  

10 Columbus Circle 
New York, New York 10019

Attorneys for Respondents



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