Eckels v. Ross Brief for the United States in Opposition

    No, 982

October T erm , 1970

Robert Y . E ckels, et al., petitioners

v .
D elores R oss, et al., and U nited S tates op A merica

o n  p e t it io n  f o b  a  w r i t  o f  c e r t i o r a r i  to  t e e  u n it e d
STATES COURT OF APPEALS FOR TEE FIFTE CIRCUIT

BRIEF FOR THE UNTIED STATES IN OPPOSITION

E R W IN  N. G R ISW O L D ,
Solicitor General, - 

.TERRIS L E O N A R D ,
Assistant Attorney General,

D A V ID  D. G R E G O R Y ,
JOSEPH O. RIC H ,

Attorneys,
Department of justice, 

Washington, D.C. 20530.



Jn tht jJwjjtm ($pwd 0f Hit Mm M plates
O ctober Term , 1970

No. 982

R obert Y . E ckels, et al., petitioners

v.
D elores R oss, et al., and U nited States op A merica

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED 
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

O PIN IO N S B E L O W

The opinion of the court of appeals (Pet. App. 
66-89) is not yet reported. The decisions of the dis­
trict court (Pet. App. 1-65) are also unreported.

JU R IS D IC T IO N

The judgment of the court of appeals was entered 
on August 25, 1970, and the mandate issued immedi­
ately. The petition for a writ of certiorari was filed 
on November 18, 1970, The jurisdiction of this Court 
is invoked under 28 U.S.C. 1254(1).

(i)

412- 178— 7< 1



2

Q U ESTION  P R E S E N T E D

Whether, in the circumstances of this case, it was 
proper for the court o f appeals to order certain modi­
fications in the school desegregation plan approved by 
the district court.

S T A T E M E N T

This is a school desegregation case involving the 
Houston, Texas, Independent School District. Recent 
proceedings commenced when the private plaintiffs, in 
July 1968, and the United States, plaintiff-intervenor, 
in February 1969, filed motions for supplemental re­
lief based on this Court’s decisions in Green v. County 
School Board, 391 U.S. 430; Haney v. Board of Edu­
cation, 391 U.S. 443, and Monroe v. Board of Com­
missioners, 391 U.S. 450. Evidentiary hearings were 
held in July 1969 and April and May 1970; during 
the course of those proceedings several desegregation 
plans, described in the opinion of the court below 
(Pet. App. 70-78), were submitted to the district 
court. The petitioners proposed three alternative 
plans, a freedom-of-choice plan and two plans based 
solely on geographic zoning. Other alternatives were 
supported by the plaintiffs and the government.

The district court adopted one o f the petitioners’ 
geographic-zoning plans, and both the plaintiffs and 
the government appealed, urging the court o f appeals 
to reverse and remand with directions to the district 
court to adopt other alternatives shown to be more 
effective. The Court o f Appeals for the Fifth Circuit 
affirmed in part and reversed in part the district court’s



3

decree. The district court was directed to adopt as to 
secondary schools the school board’s alternative geo­
graphic-zoning plan and to require as to elementary 
schools that eleven specified school pairings and one 
zone-boundary change be superimposed on the plan 
approved by the district court.1 The court of appeals 
also directed, however, that''alternatively the [dis­
trict] court may adopt any other p]an submitted by 
the school board or other interested parties, provided, 
o f course, that such alternate plan achieves at least 
the same degree of desegregation as that reached by 
our modificationsn[Pet. App. 82].

A R G U M E N T

In our view this petition presents no issues war­
ranting review by this Court and, accordingly, should 
be denied.

1. The plan approved by the court of appeals is 
basically a combination of proposals made by the 
school board, with the exception of the pairings 
directed by that court. Indeed, as the petitioners point 
out (Pet. 9), even the appellate court’s modifications 
did not greatly enhance the effectiveness of those pro­
posals in achieving desegregation. Nevertheless, both 
the petitioners and the district court categorically 
declined to adopt a range of techniques to promote 
desegregation, such as pairing, grouping, and oon-

1 The court of appeals denied a motion by the school board to 
stay the pairing order pending application in this Court for 
a writ o f certiorari. The district court has not yet issued an 
order on remand.



4

solidating schools and altering school grade structures, 
which have been approved by this Court and the 
courts of appeals. See, e.g., Green v. County School 
Board, supra at 438 n. 6; Swann v. Charlotte-Meck­
lenburg Board of Education, 431 F. 2d 138 (C.A. 4) ; 
Dowell v. Board of Education of Oklahoma City, 
438 F. 2d 865 (C.A. 10); Singleton v. Jackson 
Municipal Separate School District, No. 29, 226 (C.A. 

[ jJL- 5, Aug. 12, 1970). In these circumstances, and in view 
of -and court’s invitation to the petitioners to sub­
mit equally effective alternative proposals, the Fifth 
Circuit’s order directing implementation of school 
pairings clearly was not reversible error. See Alex­
ander v. Holmes County Board of Education, 396 
U.S. 19.

2. Issues presented by petitioners’ miscellaneous 
arguments concerning the affirmative duty of school 
boards to be conscious of the racial consequences of 
their decisions are presently before this Court in 
Swann v. Charlotte-Mecklenburg Board of Education, 
Nos. 281 & 349, this Term, and Davis v. Board of 
School Commissioners of Mobile County, No. 436, this 
Term. Insofar as this Court’s decision in those cases 
may affect the issues decided in this case, appropriate 
motions for supplemental relief or modification may 
be presented to the courts below.



5

CONCLUSION

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

Respectfully submitted.
E rw in  R . Griswold,

Solicitor General.

D ecember 1970.

J erris L eonard, 
Assistant Attorney General. 

D avid D. Gregory, 
J oseph D. R ich ,

Attorneys.

U .S. GOVERNMENT PRINTING OFFICE: 1970