Estes v. Dallas NAACP Brief of NAACP Respondents

    §>uptm$ (tort nf tip Intfrft §>UU&
October T erm , 1978 

No. 78-253; 78-282; 78-283

In the

N olan E stes, et al., 

—versus—
Petitioners,

Oak  Cliff B ranch , South D allas B ranch  and J ohn  F. K ennedy 
B ranch  of the Metropolitan Branches of Dallas, NAACP,

Respondents,
and

R alph  F. B einegar, et al., 

■—versus—
Petitioners,

Oa k  Cliff B ranch , South D allas B ranch  and J ohn F. K ennedy 
B ranch  of the Metropolitan Branches of Dallas, NAACP,

Respondents,
and

D onald R . Curry, et al., 

—versus—
Petitioners,

Oa k  Cliff B ranch , South D allas B ranch  and J ohn  F. K ennedy 
B ranch  of the Metropolitan Branches of Dallas, NAACP,

Respondents.

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

BRIEF OF NAACP RESPONDENTS

N athaniel R. J ones 
1790 Broadway 
New York, New York 10019

E. B rice Cunningham
Cunningham, Greenidge & 

Gaines
2606 Forest Avenue 
Suite 216-219 
Dallas, Texas 75215

M erle W . L oper
246 Deering Avenue 
Portland, Maine 04102

Of Counsel: Attorneys for Respondents-
Louis R. L ucas Intern enors

Ratner, Sugarmon, Lucas,
Salky & Henderson
625 Commerce Title Building
Memphis, Tenn. 38103



TABLE OF CONTENTS

PAGE

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

Summary of Argument  ..............................................  2

A bgu m en t

I. The Dallas Desegregation Plan Is Facially Inade­
quate to Eliminate Segregated Student Enroll­
ments in a School System That Was Segregated 
by State Law and That Has Never Yet Been 
Brought Into Constitutional Compliance by 
Achieving a Non-Baeial, Unitary School System 5

A. The Projected Operation of the District Court’s 
Desegregation Plan Shows That It Will Not 
Dismantle the Dual System of Baeially Identi­
fiable Schools as Bequired by This Court’s 
Prior Decisions and to the Extent That the 
Plan Itself Shows Is Practical and Feasible in
Dallas ...................................................................... 5

B. Effective Desegregation Techniques Are Avail­
able and Bequired in Order to Achieve a Non- 
Bacial Unitary System Throughout the DISD 12

1. The Senior High Schools ....... ............... .......  12

2. The Early Elementary Schools (K-3) .........  19

3. The East Oak Cliff Sub-District................... 21

II. Proper Principles of Appellate Beview Left the 
Court of Appeals No Besponsible Alternative But 
to Bemand the District Court’s Plan in Light of 
the Large Number of One-Bace Schools and the 
Failure to Explain Any Adequate Justification 
for Falling So Far Short of the Elimination of 
the Segregated Student Enrollment in Most of 
the Dallas School System ........................................  23



11

C. The Dallas Independent School District’s Ra­
cially Dual System Was Created by State Law,
Its Patterns of Racially Segregated Enroll­
ment Have Never Yet Been Corrected, and a 
System-Wide Remedy Is Therefore Constitu­

PAGE

tionally Required ..................................................  24

C onclusion- ...................................................................................... 33

T able of A uthorities

Cases:

Bell v. Rippy, 146 F. Supp. 485, 487 (N.D. Tex. 1956)....8, 26
Borders v. Rippy, 247 F.2d 268 (5th Cir. 1957)............... 31
Boson v. Rippy, 285 F.2d 43 (5th Cir. 1960)....................  31
Brown v. Board of Education II, 349 U.S. 294, 300

(1955) .......................................... ......................  .16. 17n.33
Brown v. Board of Education, 347 U.S. 483 (1954)....... 21
Brown v. Rippy, 233 F.2d 796 (5th Cir. 1956) ....... .......  31

Columbus Board of Education v. Penick,------ U .S.------- ,
47 U.S.L.W. 4924 (1979) ................................................  27n

Cooper v. Aaron, 358 U.S. 1 (1958) .................................  16

Dayton Board of Education v. Brinkman I, 433 U.S.
406, 409 (1977) ......................................... ......................  30

Creen v. County School Board, 391 U.S. 430, 442 (1968)
11,17, 23, 28, 33

Keyes v. School District No. 1, 413 U.S. 189 (1973).... . 27n

Mapp v. Board of Education, 525 F.2d 169 (6th Cir. 
1975) reh. den. 527 F.2d 1388 cert. den. 427 U.S. 911 17n



Ill

Monroe v. Board of Commissioners, 391 U.S. 450, 459

PAGE

(1968) ............................................................................. 16,20

Plessy v. Ferguson, 163 U.S. 537 (1896) ........................  21

Swann v. Ckarlotte-Mecklenburg Board of Education,
402 U.S. 1, 31 (1971) .................................................. 20, 20n

Swann v. Charlotte-M ecklenburg Board of Education,
402 U.S. 1, 26, reh. denied 403 U.S. 912 (1971)....11, 23, 26,

27, 27n, 28, 30, 31, 32, 33

Tasby v. Estes, 572 F.2d 1010, 1012 n. 3 (5th Cir. 1978)
342 F. Supp. 945 (N.D. Tex. 1971) rev’d on other 
grounds 517 F.2d 92, 5th Cir. 1975 cert. den. 423 U.S.
939 (1975) ......................................................6n,8,25,28,32

United States v. Jefferson County Board of Education,
372 F.2d 836 (5th Cir. 1966) adopted on reh. en banc,
380 F.2d 385 (5th Cir. 1967) cert. den. 389 U.S, 840 .... 18 

United, States v. Jefferson County Board of Education,
372 F.2d 836, 890-891 (5th Cir. 1966) cert. den. 389
U.S. 840 ..................................................................... - .....  31

United States v. Scotland Neck City Board of Educa­
tion, 407 U.S. 484 (1972) 22



I n  t h e

dottrl of tl?p HuttPii States
O ctober T erm , 1978 

No. 78-253; 78-282; 78-283

N olan E stes, et ah, 

— versu s—-
Petitioners,

Oak  C liff  B r a n c h , S outh  D allas B ranch  and J ohn  F. 
K ennedy  B ran ch  of the Metropolitan Branches of 
Dallas, NAACP,

and

Respondents,

R alph  F. B rinegar, et al., 

— versu s—
Petitioners,

Oa k  C liff  B ran ch , S ou th  D allas B ran ch  and J ohn  F . 
K ennedy  B ran ch  of the Metropolitan Branches of 
Dallas, NAACP,

and
Respondents,

D onald R. C u rry , et ah, 

—versus—
Petitioners,

Oak Cliff  B ran ch , S ou th  D allas B ranch  and J ohn  F. 
K ennedy  B ran ch  of the Metropolitan Branches of 
Dallas, NAACP,

Respondents.

ON W R IT  OF CERTIORARI TO T H E  U N IT E D  STATES 

COURT OF APPEALS FOR T H E  F IF T H  CIRCU IT

BRIEF OF NAACP RESPONDENTS



Questions Presented

1. Whether a school desegregation plan for a district 
that was found to be segregated by state law, and that 
has never yet eliminated its racially dual system, is ade­
quate when it fails to make any significant effort to de­
segregate the student enrollment in its high schools, its 
early elementary schools, or any of the schools in a vir­
tually all-black sub-district, except through provision for 
voluntary transfers and a partial system of magnet-type 
schools ?

2. Whether the Court of Appeals properly exercised 
its appellate review by remanding the District Court’s 
order because it failed to either eliminate or expressly 
justify the large number of one-race schools under the 
Dallas desegregation plan!

Summary of Argument

I.

The projected operation of the Dallas desegregation 
plan implemented under the District Court’s order shows 
such a substantial degree of continuing segregation in 
student enrollment and such a large number and high 
proportion of one-race schools—at least 70 out of 172— 
as to make it necessarily inconsistent with the disestab­
lishment of Dallas’ previously state-imposed racially dual 
system.

The failure of the plan to achieve substantial desegre­
gation of the high schools, early elementary schools, or 
any of the schools of the East Oak Cliff sub-district is in 
sharp contrast to the significant desegregation that is 
achieved in grades four through eight in the areas out­

2



3

side the all-black East Oak Cliff sub-district. This con­
trast highlights the fact that the same desegregation tech­
niques that have been effective in grades four through 
eight are available as feasible remedies for the state- 
imposed segregation in the other grade levels and areas 
of the school district in the absence of any findings as to 
their infeasibility in specific instances.

The reason for the lack of effective desegregation in 
the high schools and the East Oak Cliff area is that the 
pattern of initial segregated student assignments is main­
tained and the opportunities for desegregation rest solely 
on what is basically a transfer policy—majority-to-mi- 
nority transfers and transfers to magnet schools. These 
techniques in themselves have long been held impermissi­
bly inadequate to dismantle the continuing effects of a 
dual system of student enrollment. Much the same is true 
of the nature of the failure to desegregate the early ele­
mentary grades, except that in those grades the magnet- 
type schools are not even included as a supplementary 
desegregation device.

Desegregation in these aspects of the Dallas school 
system has been essentially written off by the District 
Court without any sufficient justification and without 
focussing specifically enough on particular questions of 
the feasibility of using the kinds of techniques approved 
in Swann and used with effectiveness in other aspects of 
the Dallas plan itself. Rather, the district court assumed 
that white students would not attend minority schools, or 
in general terms assumed the techniques were not work­
able or would interfere with certain educational objec­
tives. All of these reasons are either impermissible or 
based upon assumptions that were not clearly spelled out 
or established.



4

The Dallas system of dual attendance has not yet been 
effectively disestablished since the time it was mandated 
by state law. The Court of Appeals’ remand is necessary 
in order to focus the attention of the school officials on 
the remaining task and require them and the District 
Court to look more closely at the feasibility of using the 
Swann techniques to effectively enforce the constitutional 
rights of minority students to attend public schools in a 
nonracial, unitary system.

II.

In remanding this case for consideration of a new plan 
and for specific findings concerning the infeasibility of 
eliminating any remaining substantially one-race schools, 
the Court of Appeals was properly insisting on adherence 
to the decisions of this Court. This is a proper and im­
portant function of the courts of appeals and a part of 
the particular tradition of the Court of Appeals for the 
Fifth Circuit. To fail to affirm the Court of Appeals in 
this case would seriously undermine the function of that 
court and its role in our federal judicial system.

Responsible appellate review of the district court order 
in this case could have led only to the remand of this plan 
in light of the standards previously set by this Court, and 
the clear disregard of those standards by the District 
Court.



5

ARGUMENT

I.

The Dallas Desegregation Plan Is Facially Inade­
quate to Eliminate Segregated Student Enrollments in 
a School System That Was Segregated by State Law 
and That Has Never Yet Been Brought Into Constitu­
tional Compliance by Achieving a Non-Racial, Unitary 
School System.

A. The Projected Operation of the District Court’s Desegre­
gation Plan Shows That It Will Not Dismantle the Dual 
System of Racially Identifiable Schools as Required by 
This Court’s Prior Decisions and to the Extent That the 
Plan Itself Shows Is Practical and Feasible in Dallas.

The two basic facts that most boldly stand out in this 
case are the contrasting degrees to which the District 
Court’s desegregation plan both fails and succeeds in de­
segregating student enrollment at different levels of the 
Dallas school system.

For those grade levels and areas where no real attempt 
is made to desegregate the regular attendance area schools 
—the high schools, the early elementary schools (K-3), and 
the entire all-black East Oak Cliff sub-district—the con­
tinuing segregation is stark. Based on the projections at­
tached to the District Court’s April 7, 1979 Final Order 
(Estes Pet. for Cert. 53a, at 85a-119a) and subsequent mod­
ifications (Id. at 121a-129a), over 83 percent (40 out of 48) 
of the early elementary schools (K-3),1 and 50 percent (9

1 These figures for the K-3 grade schools necessarily include 
only those schools which contain only grades K-3 since those are 
the only schools for which racial and ethnic enrollment projections 
were furnished under the district, court’s plan. Many K-3 grades 
are combined with 4-6 grade intermediate schools, for which racial 
and ethnic enrollments are given in grades 4-6, but not in grades 
K-3. Since the intermediate schools were .to be largely desegregated



6

out of 18) of the regular attendance area high schools,2 are 
one-race or virtually one-race schools whose student bodies 
are comprised of approximately 90 percent Anglo or 90 
percent minority students.3 Even when the all-black East 
Oak Cliff sub-district is omitted from these figures, the 
degree of segregation, as measured by the proportion of 
one-race schools in the four “ racially proportioned” sub- 
districts, is not significantly changed-—82 percent (36 out 
of 44) of the separate K-3 schools and 44 percent (7 out 
of 16) of the regular attendance area high schools. In the 
East Oak Cliff sub-district, all four of the K-3 schools, all 
four of the 7-8 middle schools, both of the regular attendance 
area high schools, and 15 of the 16 intermediate schools 
(grades 4-6)4 were expected to have at least 98 percent mi­

under the plan, but the early elementary grades were not, the 
figures for the 4-6 grades hear no relationship to the racial compo­
sition of the K-3 student body in the same school.

2 These include all the senior high schools of grades 9-12 based 
on the projected enrollments in the District Court’s Final Order 
which were intended to be the comprehensive high schools for their 
respective specified  ̂neighborhood attendance areas. Magnet high 
schools with specialized programs (for which no reliable racial and 
ethnic enrollments were, or could reliably be, given) are not in­
cluded. Any integration that might occur in the magnet high 
schools themselves would not significantly affect the over-all amount 
of high school desegregation achieved, and would itself have no 
affect on the racial composition of the regular attendance area high 
schools.

3 This definition is the same as that used by the Court of Appeals 
in this case, in which it defined a one-race school as “a school that 
has a student body with approximately 90% or more of the stu­
dents being either Anglo or combined minority races,” but with 
an admonition that “ the 90% figure is not a ‘magic level below 
which a school [will] no longer he categorized as “one-race.” ’ ” 
Tasby v. Estes, 572 F.2d 1010, 1012, n. 3 (5th Cir. 1978). Estes 
Pet. for Cert. 132a. In compiling the figures in this Brief, the 
actual cut-off point used was 88 percent Anglo or minority.

4 One of the 15 black intermediate schools, Maynard Jackson, 
was designated as a Vanguard school with 300 student stations 
reserved for integration purposes. According to the DISD’s De­
cember 15, 1976 Report to the District Court, the Jackson School



nority enrollment. In fact, all of these East Oak Cliff one- 
race schools are at least 89 percent black, and all bnt two 
of them are at least 97.5 percent black. Estes Pet. for 
Cert. 113a-117a.

By contrast, however, the District Court’s plan did show 
the promise of largely eliminating at least the 90 percent 
or more Anglo or minority school enrollments in those grade 
levels and areas where it tried to do so. Based again on 
the projections attached to the District Court’s Final Order 
(Estes Pet, for Cert, 85a-llla), none of the middle schools 
(grades 7-8) and only two5 of the 66 intermediate schools 
(grades 4-6) contain approximately 90 percent or more 
minority or Anglo enrollments in those sub-districts aside 
from East Oak Cliff.6 These are the grade levels and areas

was 98.8 percent black during the first year of the plan. The most 
recent DISD Report to the District Court (April 1979) shows that 
Jackson remains as a one-race sehol with 98.3 percent black enroll­
ment,

5 The K. B. Polk School in the Northwest sub-district is not 
included in these figures as a one-race intermediate school despite 
the fact that its projected and actual present status are somewhat 
unclear in the Record. In the April 7, 1976 District Court order 
Polk was projected to have a totally black enrollment except for 
the reservation of 300 student stations for integration under the 
Vanguard concept. Estes Pet. for Cert. 86a, The DISD’s April 
1979 Report to the District Court indicates a Vanguard enroll­
ment of 119 students, of whom 66 percent are Anglo. The Report 
also indicates that the total intermediate enrollment (grades 4-6) 
is 272. Thus, there appear to be 152 non-Vanguard students in 
grades 4-6 at the Polk School, all of whom are minority students. 
It thus appears that Polk has a regular intermediate program 
that is all-minority and a Vanguard program that is majority 
Anglo. The K-3 grades are virtually all-black, as reflected in the 
figures of the DISD’s April 1979 Report.

6 Seagoville, the only predominantly Anglo sub-district, is essen­
tially omitted from the plan. None of the grade structures for its 
four schools are conformed to the standardized grade structures 
of the rest of the school district. Racial and ethnic enrollment 
comparisons at the standardized grade levels are therefore not 
available, and the four Seagoville schools cannot be included in 
the above figures.



8

where the plan specifically assigns students for the purpose 
of dismantling the segregated student enrollment patterns 
that mark schools as “Anglo” or “black” or “Hispanic”— 
schools which had remained so marked in Dallas ever since 
segregation was initially mandated by the statutes of Texas. 
Bell v. Rippy, 146 F.Supp. 485, 487 (N.D. Tex. 1956); Tasby 
v. Estes, 342 F.Supp. 945, 947 (N.D. Tex. 1971), revd. on 
other grounds, 517 F.2d 92 (5th Cir. 1975), cert. den. 423 
TT.S. 939 (1975).

The difference between the failure and the effectiveness 
of the plan shows itself in two ways: (1) by comparing the 
decreased number of clearly one-race schools in grades 4-8 
with the high degree of remaining segregation of the grade 
levels immediately above and below them in the very same 
districts, and (2) by comparing the almost total segregation 
remaining in the East Oak Cliff sub-district, where no sig­
nificant desegregation attempt was even made, with the 
deceased number of clearly one-race schools in grades 4-8 
in those districts where the attempt was made. The dif­
ferences are more graphically illustrated in the table on the 
next page.



Grades K-3 Grades 9-12

Sub-
Dist.

No. of 
Schls.

No. of 
1-Race 
Schls.

% o f
1-Race
Schls.

No. of 
Schls.

No. of 
1-Race 
Schls.

N.W. 19 16 84% 5 3

s . w . 27 2 100% 4 0

N.E. 13 12 92% 4 2

S.E. 10 6 60% 3 2

Total 44 36 82% 16 7

East
Oak
Cliff 4 4 100% 2 2

Grades 4-6 Grades 7~8

% of 
1-Race 
Schls.

No. of 
Schls.

No. of 
1-Race 
Schls.

% of 
1-Race 
Schls.

No. of 
Schls.

No. of 
1-Race 
Schls.

% of 
1-Race 
Schls.

60% 16 0 0% 5 0 0%

0% 26 1 4% 5 0 0%

50% 15 1 7% 3 0 0%

67% 9 0 0% 3 0 0%

44% 66 2 3% 16 0 0%

100% 16 15 94% 4 4 100%

7 All but two of the K-3 schools in the Southwest sub-district are combined with the 4-6 grades in the same 
respective schools, so that the figures for this district are not necessarily representative. Of the 26 schools in 
that sub-district, which combine grades K-6, only 2 were 90 percent or more Anglo or minority at the time of 
the DISD’s Report to the Court on December 1, 1975. These figures are included in the DISD’s “Answers to 
Interrogatories (First Set) of Strom, et al, Intervenors,” which is a part of the Record in this Court as Ex­
hibit “M” from the 1975-1976 District Court Hearings.



10

The degree of effectiveness in eliminating 90 percent 
Anglo and minority enrollments in grades 4-8 where the 
attempt was made, makes the overall number and propor­
tion of one-race schools in Dallas even more questionable. 
Based on the racial and ethnic enrollment figures that are 
given as projections in the District Court’s April 7, 1976 
Final Order for those schools for which the statistics are 
available, 70 out of 172 schools in the DISD are all or 
predominantly one-race schools—41 percent. Of the 53,351 
black students who were projected to be enrolled in those 
schools, 34,150—64 percent—were projected as enrolled 
in schools with approximately 90 percent or more minority 
enrollment.

Such statistics on one-race schools cannot, of course, tell 
the entire story of a school desegregation plan. The need 
to define one-race schools by a cut-off point—90 percent or 
88 percent—can itself mask a large number of other 
essentially one-race schools that may lie just below the 
cut-off point. For example, the four early elementary 
schools (K-3) in the Southeast sub-district are all virtually 
segregated white schools having between 85 and 87.4 per­
cent Anglo student bodies. Estes Pet. for Cert. 99a. If 
these were counted as one-race schools, the proportion of 
one-race schools for separate K-3 schools in the Southeast 
sub-district would be 100 percent rather than 60 percent. 
This illustrates the importance of going beyond the one- 
race school statistics to examine the actual amount of 
desegregation in various school enrollments.

Another problem is the lack of racial or ethnic statistics 
for the projected enrollments of those K-3 schools that are 
included within a K-6 school. Since the one-race schools in 
grades 4-6 have been largely eliminated by student assign­
ments under the plan (except for East Oak Cliff), but 
similar techniques have not even been attempted for grades 
K-3, one would expect that many of the K-3 grades may



11

represent one-raee scliools for those grades even though 
included within one school along with the desegregated 
intermediate grades (4-6).

This problem can be illustrated by the Reilly School 
(K-6) in the Northeast sub-district. This school was at 
first designated in the plan as a separate K-3 school with a 
92.9 percent Anglo enrollment (Estes Pet. for Cert. 92a). 
A later modification of the plan corrected its designation 
to that of a K-6 school, showing its enrollment for grades 
4-6 as 55.8 percent Anglo and 44.2 percent minority—an 
apparently integrated intermediate school. Estes Pet. for 
Cert. 123a. It is only because of the initial misdesignation 
of the Reilly School as a separate K-3 school that the 
Record indicates the one-race nature of the early elemen­
tary grades in what otherwise appears to be a desegregated 
school. Similar information is not available for the other 
K-3 grades where they are included in a full K-6 elemen­
tary school.

While all of these statistics cannot tell the full story, they 
do point clearly to the fact that the state-mandated patterns 
of segregated student enrollment have not yet been dis­
mantled. This is particularly true where the failure—in 
the high schools and early elementary schools and in the 
maintenance of an entire all-black sub-district—lies side-by- 
side with a demonstration of the possibility that desegrega­
tion can be made effective in the same grade levels and in 
the same sub-districts where those failures occurred be­
cause the same techniques were never tried.

Dallas clearly has not converted its dual system “to a 
system without a ‘white* school and a ‘Negro’ school, but 
just schools.” Green v. County School Board, 391 U.S. 430, 
442 (1968) ; cf. Swann v. Charlotte-MecMenburg Board of 
Education, 402 U.S. 1, 26, reh. denied 403 U.S. 912 (1971). 
At the very least, these figures demand the closer scrutiny



12

and justification that the Court of Appeals required in this 
case.

B. Effective Desegregation Techniques Are Available and Re­
quired in Order to Achieve a Non-Racial Unitary System 
Throughout the DISD.

The amount of continuing segregation in the Dallas 
school system shows the failure of the plan, as projected, 
to eliminate the dual school attendance patterns in the 
district. The particular areas of failure under the Dallas 
plan are constitutionally inadequate both because they rely 
solely upon out-dated desegregation techniques that may 
have sufficed at an earlier time as the “ first steps” toward 
a desegregated system but are wholly inadequate today, 
and because they ignore effective techniques that are 
working in neighboring areas of the district or in neighbor­
ing grade levels of the Dallas system itself. The early 
elementary schools, all of the regular attendance area high 
schools, and the East Oak Cliff sub-district have been auto­
matically written off. The fear that desegregation will 
cause “white flight” and that “white flight” will cause more 
segregation is used as an excuse to avoid desegregation in 
the first place. Efforts to achieve greater desegregation 
may well also be hampered by the fact that the integrative 
student assignments that are made are always from black 
and Hispanic areas toward Anglo areas, and never the 
other way around.

It is little wonder that the Court of Appeals found itself 
unable to approve the District Court’s plan in the absence 
of specific findings concerning the feasibility of alternative 
and more effective means of desegregation.

1. The Senior High Schools.

One of the most difficult things to understand about the 
Dallas plan is its failure to carry the intermediate and 
middle school desegregation into the high schools. The



13

feasibility of using the elementary school attendance areas 
as a basis for assigning students to grades 4-8 to effectively 
achieve desegregation is demonstrated by the plan itself. 
Yet, for some unexplained reason, students who have been 
assigned to integrated schools for the fourth through the 
eighth grades are then dropped back into their neighbor­
hood high schools, half of which are one-race schools.

Black and Hispanic students, for instance, who make up 
the C.F. Carr elementary attendance area in west central 
Dallas are assigned to the Burnet School in northern 
Dallas for grades 4-6, then farther north to the Walker 
School for grades 7-8. Estes Pet. for Cert. 87a, 89. Upon 
completion of the eighth grade, however, they return to 
their neighborhood Pinkston High School, which has a 95 
percent minority enrollment. Estes Pet. for Cert. 90a. It 
takes more information than appears on the Record before 
this Court to see why it would not be feasible to give these 
students an integrated education at Hillcrest or W.T. White 
High Schools, both of which have a 96 percent Anglo en­
rollment, both of which are within the same general area 
and distance range as the schools at which the Carr students 
spent grades 4-8, and the first of which appears to have an 
enrollment of only 70 percent of its capacity (Pet, for Cert. 
90a). Alternatively, there is no apparent reason why 
Anglo students in the areas where the Carr students at­
tended grades 4-8 could not be brought down to Pinkston 
High School for an integrated education with the Carr 
students.

This same basic situation occurs time after time under 
the present Dallas plan. Minority students are assigned 
out of central and west central Dallas to integrated inter­
mediate schools and middle schools for grades 4-8, and then 
sent back to segregated schools for their last four years. 
The following chart traces the progression of students in



14

such situations, showing the racial and ethnic composition 
for the K-3 attendance area (measured by the percentage 
of minority enrollment) and for each of the schools those 
students would attend through their graduation from high 
school:

K-3 Sch. & Inter. Sch. & Middle Sch. & High Sch. &
% Minority % Minority % Minority % Minority

Carr 99% Burnet 48% Walker 48% Pinkston 95%
Allen 91% Caillet

Marcus
60%
60%

March 45% Pinkston 95%

Arlington
Park

98% Caillet 60% Rusk 44% N. Dallas 83%

Carver/
Tyler

99%
100%

Foster 
Pershing 
Walnut H.

51%
60%
41%

Walker 48% Pinkston 95%

Earhart/
Navarro

100%
100%

Longfellow
Williams

54%
58%

Cary
Marsh

48%
45%

Pinkston 95%

Travis 98% Preston
Hollow

59% Spence 77% N. Dallas 83%

Hassell 100% Bayles 46% Gaston 43% Madison 100%
Brown 100% Conner

Truett
44%
47%

Gaston 43% Madison 100%

City Pk. 96% Lakewood 38% Gaston 43% Madison 100%
Colonial 100% Reinhardt 42% Gaston 43% Madison 100%
Frazier 100% Rowe 47% Hood 40% Madison 100%
Wheatley. 100% Sanger 46% Hill 39% Madison 100%
Harris 100% Sanger 46% Hill 39% Madison 100%
Rice 100% Reilly 44% Hill 39% Lincoln 100%
Thompson 100% Ireland 

J. Adams
37%
42%

Florence 41% Lincoln 100%

Rhoads 100% San Jacinto 49% Hood 40% Lincoln 100%
Dunbar 100% Hawthorne

Blanton
42%
43%

Florence 41% Madison 100%

Buckner 88% Rylie
Burleson
Dorsey

43%
42%
46%

Comstock 41% Spruce 28%

(The above information is taken from the District Court’s Final Order, 
April 7, 1976, and subsequent modifications, as set forth in the Estes 
Pet. for Cert., at 85a-105a, 123a-124a, and 127a-129a.)



15

In all of these situations students are assigned to fourth 
through eighth grade schools outside their ordinary segre­
gated neighborhood attendance areas and substantial de­
segregation is achieved. In every case, except for the last 
one listed, they are brought back to segregated high schools. 
It does not appear that the routes to integrated high schools 
would be any longer or less feasible than those already 
travelled to intermediate and middle schools. High school 
students should be at least as capable of participating in 
such a program as students of elementary and junior high 
school age. The building capacities seem to be generally 
available at the high school level (Estes Pet. for Cert., 90a, 
97a, 104a), and even where present building capacities ap­
pear to be full, students could be exchanged without causing 
over-capacity problems.

The District Court’s only findings to justify the omission 
of desegregated student assignments at the high school level 
did not go to the feasibility of the transportation involved, 
or to any lack of a constitutional requirement to desegregate 
them. Rather, the District Court concluded that such assign­
ments would not work because Anglos would not go to 
minority schools. Estes Pet. for Cert. 34a.

The real reason for avoiding regular high school assign­
ments on a non-segregated basis thus appears to be that 
white students do not want desegregation, at least if it 
means that they must attend schools that minority students 
have to attend, in areas where minority students have to go 
to school. This approach is constitutionally impermissible. 
It allows the constitutional rights of minority students to 
be defeated because of speculation about the feelings of 
white students. To make these minority rights dependant 
upon the cooperation of white students is itself racially 
discriminatory. This Court has long held that the vindica­
tion of constitutional rights cannot be avoided because of



10

disagreement with those rights. Brown v. Board of Educa­
tion II, 349 U.S. 294, 300 (1955); Cooper v. Aaron, 358 U.S. 
1 (1958); Monroe v. Board of Commissioners, 391 U.S. 450, 
459 (1968).

In Monroe the District Court had approved a desegrega­
tion plan that assigned students to schools on an initially 
desegregated basis, but allowed them freely to transfer back 
to their original segregated schools. The free transfer plan 
was defended as necessary to prevent “white flight”  and 
preserve the public school system. In holding such a plan 
invalid as a device that in fact prevented the desegregation 
that is required by the Constitution, this Court stated:

[N] o attempt has been made to justify the transfer 
provision as a device designed to meet “ legitimate local 
problems,”  . . . rather it patently operates as a device 
to allow resegregation of the races to the extent de­
segregation would be achieved by geographically drawn 
zones. Respondent’s argument in this Court reveals its 
purpose. We are frankly told in the Brief that without 
the transfer option it is apprehended that white stu­
dents will flee the school system altogether. “ But it 
should go without saying that the vitality of these con­
stitutional principles cannot be allowed to yield because 
of disagreement with them.”  Brown II, at 300.

Monroe v. Board of Commissioners, 391 U.S. 450,459 (1968).

The failure of the District Court to require any meaning­
ful desegregation in one-half of the regular attendance area 
high schools in Dallas is comparable to the Monroe plan 
of making initial desegregated assignments and allowing 
everyone to transfer back. The difference is that in Dallas 
no initial desegregated assignments are made, so there is 
no need to transfer back. The essential similarity between 
the Monroe and Dallas plans is the purpose—and that pur­



17

pose has been held to be impermissible since it forecloses 
that possibility of desegregation from the outset.8

The District Court depreciated the importance of inte­
grated high school assignments for minority students be­
cause of the opportunities to attend magnet schools or to 
take advantage of the majority-to-minority transfers. Estes 
Pet. for Cert. 35a. The fact of the matter is that the entire 
high school desegregation plan rests solely upon the magnet 
school concept and majority-to-minority transfers, which 
the District Court found to be the more practical and effec­
tive way to achieve high school desegregation. Estes Pet. 
for Cert. 35a.

In reality, high school desegregation in Dallas is based 
on a transfer system, and one that is less exacting and 
contains none of the safeguards of the freedom of choice 
desegregation devices that became obsolete at the time of 
Green v. County School Board, 391 TT.S. 430 (1968). It is 
less than the old free choice plans because the initial assign­
ments are made by the school system to segregated schools 
and students are allowed to transfer out on the basis of 
certain criteria—to attend a magnet school for special pro­

8 While the District Court purported to recognize that the 
Brown II  “ disagreement principle” applies to the fear of “white 
flight,” and purported not to base its high school plan on find­
ings of fact from any of the sociological evidence in this case con­
cerning the effects of “forced busing” on white flight” (Estes Pet. 
for Cert. 43a, fn. 50), the court’s citation to Mapp v. Board of 
Education, 525 F.2d 169 (6th Cir. 1975), reh. den. 527 F.2d 1388, 
cert. den. 427 U.S. 911, might suggest otherwise. Whatever might 
be said about the Mapp case, the plan in Dallas show's that de­
segregation cannot be achieved by avoiding it. The two schools in 
Mapp that became segregated because of non-attendance by the 
white students who had been assigned there were certainly no 
more segregated than the all-black Lincoln, Madison, Roosevelt, 
and South Oak Cliff High Schools, or the other one-race high 
schools in Dallas whose desegregation has been sacrificed by the 
District Court to the unsubstantiated fear of “white flight.”



18

grams of interest to them, or to attend a school where their 
racial or ethnic proportion in the student body is less than 
in the school system as a whole. Compare United States v. 
Jefferson County Board of Education, 372 F.2d 836, 890-891 
(5th Cir. 1966), adopted on rehearing en banc, 380 F.2d 385 
(5th Cir. 1967), cert, den., 389 U.S. 840.

Nor does the magnet school concept offer any realistic 
promise of ever effectively desegregating the high schools 
of Dallas, let alone do it now. The magnet schools involve 
only a small proportion of the high school population. They 
have no effect whatever on bringing integration into the 
regular attendance area high schools where the vast major­
ity of the student population attends.9 The use of magnet 
schools can have excellent educational value. They can play 
a role in helping to create and maintain a system of inte­
grated student enrollment. But magnet schools, as they 
exist in Dallas, cannot begin to do the whole job of desegre­
gation all by themselves.

In summary, the high school aspect of the desegregation 
plan is essentially a lost opportunity to use methods that 
the defendants are using successfully to achieve desegrega­
tion in earlier grade levels. It is based apparently on the 
assumed reluctance of white students to go to desegregated

9 There may also be some question about the nature of the inte­
gration that occurs in a school with a magnet-type program. As 
pointed out in footnote 5, the April 1979 DISD Report to the 
District Court concerning enrollment in the Polk Intermediate 
Vanguard School (grades 4-6), shows that there are 152 regular 
program students and 119 Vanguard program students. The regu­
lar program students are all minority, while the Vanguard pro­
gram is substantially integrated. While the exact nature of the 
operation of this program is not clear on the Record before this 
Court, it appears that the magnet-type programs may not actually 
integrate the school generally, but only the particular magnet 
program that exists within the school. To the extent that this is 
true in the magnet-type programs, the desegregating effectiveness 
of such programs is further reduced.



19

schools. It operates as an inadequate freedom of choice 
plan with no real prospect of significantly desegregating 
the high school student enrollment system generally. It is 
hard to see how the Court of Appeals could have done other 
than reject it in the absence of specific consideration and 
findings that the more effective desegregation devices that 
are apparently available are not feasible.

2. The Early Elementary Schools (K -3).

The major reasons given by the District Court for leav­
ing the segregated enrollment untouched in the early 
elementary grades were the lesser ability of young children 
to deal with the problems of transportation, the special 
programs in the minority areas that were presumed to 
result in higher quality education for minority students 
there, and the opportunity to use the diagnostic-prescrip­
tive concept in the early childhood learning centers with 
parental involvement. On this basis, the District Court 
provided for attendance in grades K-3 in the local area 
around each such elementary school, modified only by the 
opportunity for majority-to-minority transfers. Estes Pet. 
for Cert. 32a-33a, 5Ia-55a.

The result is a highly segregated pattern of early elemen­
tary school enrollments. As shown by the chart on page 
9, supra, 36 of the 44 separate K-3 centers (82%) are 
one-race schools even when only the four “ racially propor­
tioned” sub-districts are considered—-that is, not including 
the all-black East Oak Cliff sub-district, or the Seagoville 
sub-district in which no separate K-3 centers exist.. Indeed, 
in three of the sub-districts10 almost all of the separate 
early elementary schools are of one race—16 out of 19 in

10 The figures for the Southwest sub-district are less conclusive 
because only two separate K-3 schools exist there. That sub-district 
is also one of the more integrated areas of Dallas.



20

the Northwest, 12 out of 13 in the Northeast, and at least 6 
out of 10 in the Southeast.

While the age of students is one of the important factors 
in determining the feasible limits on the time and distance 
of travelling to school, Swann v. Charlotte-Mecklenburg 
Board of Education, 402 U.S. 1, 31 (1971), it was not 
intended to be a reason for precluding such transportation 
altogether when that is necessary to desegregate a school 
system. Surely, the value of an integrated education is a 
factor that also must weigh heavily in the balance of 
“ legitimate local problems,” Monroe v. Board of Commis­
sioners, 391 U.S. 450, 459 (1968). Yet, the District Court 
merely cited the age of such students generally as an excuse 
for totally avoiding desegregation of these crucial grade 
levels.

The court made no findings of fact that would show the 
infeasibility of some meaningful degree of school pairing. 
Nor did it consider the possibility of transportation dis­
tances that might be well within the ability of younger 
children to deal with. Much more careful and individualized 
consideration of these factors should be required in light 
of the everyday busing of large numbers of such children 
throughout our country. It would no doubt come as a 
surprise to the millions of parents in both urban and rural 
areas to learn that their young children are being harmed 
by being transported to consolidated elementary schools 
or special schools miles from their homes for purposes 
unrelated to desegregation.11 Indeed, the objection was not

,11 “Bus transportation has been an integral part of the public 
education system for years, and was perhaps the single most im­
portant factor in the transition from the one-room sehoolhouse to 
the consolidated school. Eighteen million of the Nation’s public 
school children, approximately 39%, were transported to their 
schools by bus in 1969-1970 in all parts of the country.”  Swann v. 
Charlotte-Mecklenbnrg Board of Education, 402 U.S. 1, 29 (1971).



21

raised in earlier times when both white and black children 
of all ages were being bused for long times and great 
distances, often past schools of the opposite race, in order 
to keep them apart. Clearly, considerations of young age 
in determining how far a child should travel to school 
cannot legitimately be used to preclude all serious con­
sideration of any desegregating school assignment at all.

Likewise there is no finding that the educational concepts 
and programs that are desired in these early years could 
not be carried out as well under a system of integration. 
As to the District Court’s reliance on special programs for 
a higher quality of education, it should go without saying 
that such programs are not sufficient substitutes for 
eliminating dual systems of student enrollment. This has 
been true ever since Brown v. Board of Education, 347 U.8. 
483 (1954), overruled Plessy v. Ferguson, 163 U.S. 537 
(1896).

The complete writing-off of desegregation in the early 
elementary schools is further illustrated by the fact that the 
magnet-type school concepts that are used in the Vanguard, 
Academy and magnet-schools in the other grade levels of 
Dallas apparently play no real part as a supplementary 
tool to desegregate grades K-3.

3. The East Oak Cliff Sub-District.

The District Court’s treatment of the virtually all-black 
East Oak Cliff sub-district is similar to its treatment of 
the high school grade levels: it created an aspect of the 
system that remains initially highly segregated and then 
relied solely on a transfer system—to magnet schools or 
by majority-to-minority transfers—as the only means of 
achieving any desegregation. This approach is constitution­
ally inadequate in East Oak Cliff for the same reasons that 
it is inadequate in the high school levels generally.



Because of the heavy concentration of black population 
within East Oak Cliff, there may well be greater difficulties 
in substantially desegregating that area than exist in other 
geographical areas of the city. The fact does not, however, 
justify writing off the entire district without more strictly 
scrutinizing the possibilities for achieving desegregation 
through regular student assignments to integrated schools, 
complemented by the other appropriate special education 
programs and magnet schools contained in the plan.

What the District Court’s plan essentially does is draw 
a line around an entire area and hold that no attempt will 
even be made to change the racial make-up of the enroll­
ments there except through the voluntary transfer devices. 
As a result, no significant desegregation in any of the reg­
ular attendance area schools was projected at the time of 
the plan’s adoption, or is likely to be achieved under a con­
tinuation of the present plan.

While there is nothing inherently improper about using 
the sub-district approach to an urban desegregation plan, 
that approach should not be allowed to create an all-black 
district in a way that prevents the use of all parts of the 
system in a plan of desegregating the whole district. See 
United States v. Scotland Neck City Board of Education, 
407 U.S. 484 (1972). Plans were submitted to the District 
Court by the plaintiffs and the plaintiff-intervenors that 
would have brought significant desegregation to the schools 
within the East Oak Cliff area. Yet, the District Court 
seemed merely to draw a line around the problem and write 
it out of the system except for magnet schools, quality edu­
cation programs, and transfers.

At the very least, the failure to do more to desegregate 
a major all-black section of Dallas requires a fuller explana­
tion with findings of fact focussed on the particular prob­
lems that might be involved, rather than assuming too easily 
that nothing could he done. That is what the Court of 
Appeals would require.



23

II.

Proper Principles of Appellate Review Left the Court 
of Appeals No Responsible Alternative But to Remand 
the District Court’s Plan in Light of the Large Number 
of One-Race Schools and the Failure to Explain Any 
Adequate Justification for Falling So Far Short of the 
Elimination of the Segregated Student Enrollment in 
Most of the Dallas School System.

The Court of Appeals was faced with the review of a 
desegregation plan whose goal must be “ to convert to a 
unitary system in which racial discrimination would be 
eliminated root and branch.”  Green v. County School Board, 
391 U.S. 430, 437-438 (1968). Full compliance with this 
constitutional mandate, and thus the standards of any judi­
cially ordered remedy, requires “ a system without a ‘white’ 
school and a ‘Negro’ school, but just schools.”  Green, at 442.

In speaking to the requirements of a desegregation plan 
for a large, urban school system that had been segregated 
under state law, this Court in Swann v. Charlotte-Mechlen- 
burg Board of Education, 402 U.S. 1, reh, den., 403 U.S. 
912 (1971), applied these one-race-school principles to sys­
tems such as Dallas. Recognizing that “ the existence of some 
small number of one-race, or virtually one-race, schools 
within a district is not in and of itself the mark of a 
system that still practices segregation by law,” the Court 
explicitly placed on the school districts, and on the district 
courts reviewing the adequacy of remedial plans, the obliga­
tion to “make every effort to achieve the greatest possible 
degree of actual desegregation and . . . thus necessarily be 
concerned with the elimination of one-race schools.”  Swann, 
at 26.

For purposes of district court review of school board 
proposals, and thus necessarily for purposes of proper re-



24

view of district court orders by the courts of appeal, the 
burden of justification of remaining one-race schools was 
placed upon the school boards:

No per se rule can adequately embrace all the difficulties 
of reconciling the competing interests involved; but in 
a system with a history of segregation the need for 
remedial criteria of sufficient specificity to assure a 
school authority’s compliance with its constitutional 
duty warrants a presumption against schools that are 
substantially disproportionate in their racial composi­
tion. Where the school authority’s proposed plan for 
conversion from a dual to a unitary system contem­
plates the continued existence of some schools that are 
all or predominantly of one race, they have the burden 
of showing that such school assignments are genuinely 
nondiscriminatory. The court should scrutinize such 
schools, and the burden upon the school authorities will 
be to satisfy the court that their racial composition is 
not the result of present or past discriminatory action 
on their part.

Id. All of these strictures concerning one-race schools were 
made specifically in the context of an urban school system, 
like Dallas, with significant concentrations of residential 
segregation.

C. The Dallas Independent School District’s Racially Dual Sys­
tem Was Created by State Law, Its Patterns of Racially 
Segregated Enrollment Have Never Yet Been Corrected, 
and a System-Wide Remedy Is Therefore Constitutionally 
Required.

There is no doubt that the District Court in this case has 
found that the dual system of Dallas is uneorreeted, and 
is system-wide. As the District Court stated when this case 
was originally brought:



25

When it appears as it clearly does from the evidence 
in this case that in the Dallas Independent School Dis­
trict 70 schools are 90% or more white (Anglo), 40 
schools are 90% or more black, and 49 schools with 90% 
or more minority, 91% of black students in 90% or 
more of the minority schools, 3% of the black students 
attend schools in which the majority is white or Anglo, 
it would be less than honest for me to say or to hold 
that all vestiges of a dual system have been eliminated 
in the Dallas Independent School District, and I find 
and hold that elements of a dual system still remain.

Tasby v. Estes, 342 F. Supp. 945, 947 (N.D. Tex. 1971), 
revd. on other grounds, 517 F.2d 92 (5th Cir. 1975), cert, 
den. 423 U.S. 939 (1975).

The District Court went on to refer to the required rem­
edies for the various aspects of a dual system, such as 
faculty and staff desegregation, majority-to-minority trans­
fer policies, the use of transportation, school construction 
and site selection, and noted:

The Dallas School Board has failed to implement any 
of these tools or to even suggest that it would consider 
such plans until long after the filing of this suit and 
in part after the commencement of this trial.

Tasby v. Estes, supra, 342 F. Supp. at 948.

Many of these desegregation tools have since been imple­
mented in Dallas under the compulsion of court order. In 
the area of student enrollment, however, no adequate plan 
has ever yet been ultimately approved or held by the Dis­
trict Court or by the Court of Appeals to have successfully 
brought the school system into constitutional compliance 
in that aspect of its operation. The statistics of student 
enrollment revealed by this record and projected under the



26

District Court’s plan show how extensive and widespread 
the segregation continues to be.

This case involves a large, urban school system in the 
South— one in which segregation existed in every aspect 
of its system under the mandate of state statutes. Bell v. 
Rippy, 146 F. Supp. 485, 487 (N.D. Tex. 1956). As such, 
it is on all fours with the school district involved in Swann 
v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 
(1971), where the Chief Justice, speaking for the Court, 
stated, “The objective today remains to eliminate from the 
public schools all vestiges of state-imposed segregation.” 
Id. at 15.

While cautioning that the basis for any judicial remedy 
is the unconstitutional dual system itself, this Court in 
Swann made clear that the use of racial school enrollment 
statistics was relevant to determining whether a plan was 
effectively dismantling a dual attendance system in the con­
text of geographical attendance zones. Swann made it clear 
that the use of pairing and transportation of students to 
schools outside their areas of residence was an appropriate 
and sometimes necessary tool for eliminating racial atten­
dance patterns, even though, “more often than not, these 
zones are neither compact nor contiguous; indeed they may 
be on opposite ends of the city.” Id. at 27. It is clear that 
this Court in Swann contemplated a. complete wiping out, 
to the extent feasible, of the segregated attendance patterns 
that accompanied a school system whose segregation had 
been state imposed.

All things being equal, with no history of discrimina­
tion, it might well be desirable to assign pupils to 
schools nearest their homes. But all things are- not 
equal in a system that has been deliberately constructed 
and maintained to enforce segregation. The remedy



27

for such segregation may be administratively awkward, 
inconvenient, and even bizarre in some situations and 
may impose burdens on some; but all awkwardness and 
inconvenience cannot be avoided in the interim period 
when remedial adjustments are being made to eliminate 
the dual school systems.

Id. at 28.

Swann did not impose a requirement for maintaining 
racial balance in the schools once their segregated atten­
dance patterns have been fully corrected, but it does require 
their full correction. The full remedy clearly has never 
occurred in Dallas.

There is no inconsistency between the requirement of full 
elimination o f segregated attendance in a system with state- 
imposed segregation, and the principle that the remedy must 
be directed to the constitutional wrong.12 While the rem­
edies of Swann may not be invoked to achieve objectives 
other than correcting the violation, the Court there recog­
nized the problem of sorting out the entangled web of inter­
related causes and effects of school and residential segrega­
tion. As the Court stated:

People gravitate toward school facilities, just as schools 
are located in response to the needs of people. The 
location of schools may thus influence the patterns of 
residential development of a metropolitan area and 
have important impact on composition of inner-city 
neighborhoods.

Id. at 20-21.

12 Indeed, this Court has now made clear that the remedies of 
Swann apply as well to systems where the poliey of segregation 
was not statutorily imposed and where the public school officials 
have not shown that the segregation was not caused by the uncon­
stitutional policies and acts. Columbus Board of Education v.
Permit,------ U .S .------- , 47 U.S.L.W. 4924 (1979); Keyes v. School
District No. 1, 413 U.S. 189 (1973).



28

We do know, as the Court pointed out, that decades of 
existence under a system of state-mandated school segrega­
tion keeps all other things from being equal. The school 
segregation in Dallas today exists as an extension of a state- 
imposed discriminatory system that has never been fully 
remedied. It would not be logical or fair to deprive the 
plaintiffs of a full remedy in this case just because the 
school board’s failure to more promptly begin to devise 
remedies to deal with segregation in all of the various 
aspects of the system now raises doubts about which kind 
of segregation caused the other. To the extent that we can­
not know just what segregation would or would not exist 
today but for the decades of state-imposed school segrega­
tion, we must assure a full remedy for those who have been 
constitutionally deprived. Swann and the other decisions of 
this Court require no less.

In the light of this specific language, the Court of Appeals 
in this case was faced with a plan that left at least 70 one- 
race schools—not just “ some” or “ some small number”  as 
referred to in Swann, The nature of the plan itself raises 
numerous questions as to why many of these schools could 
not be integrated as easily as some of the others that had 
been, as described in earlier parts of this brief. The Court 
of Appeals had three years earlier directed the District 
Court to “ immediately take the necessary steps, using and 
adapting the techniques discussed in Swann,”  and stressed 
to that court that, “ It is imperative that the dual school 
structure of the DI8D be completely dismantled by the 
second semester of the 1975-76 academic year.” Tasby v. 
Estes, 517 F.2d 92, 110 (5th Cir. 1975), cert. den. 423 IT.8. 
939.

It is hard to see how the Court of Appeals could have 
come down with a more moderate decision given the con­
trast between this Court’s mandates in Green and Swann



29

and the projected operation of the District Court approved 
plan for Dallas. The Court of Appeals stated the dilemma 
of reviewing such a plan:

We cannot properly review any student assignment 
plan that leaves many schools in a system one race 
without specific findings by the district court as to the 
feasibility of these techniques. * * * There are no ade­
quate time-and-distance studies in the record in this 
case. Consequently, we have no means, of determining 
whether the natural boundaries and traffic considera­
tions preclude either the pairing and clustering of 
schools or the use of transportation to eliminate the 
large number of one-race schools still existing.

Estes Pet. for Cert. 137a.

The Court of Appeals did not preclude the eventual jus­
tification of one-race schools if the findings, supported by 
the record, would show the infeasibility of desegregating 
them:

The district court is again directed to evaluate the 
feasibility of adopting the Swann desegregation tools 
for these schools and to reevaluate the effectiveness of 
the magnet school concept. I f  the district court deter­
mines that the utilization of pairing, clustering, or the 
other desegregation tools is not practicable in the 
DISD, then the district court must make specific find­
ings to that effect.

Estes Pet. for Cert. 138a. Nor was the Court of Appeals 
unduly interfering with the District Court’s discretion, or 
substituting its own findings of fact for those of the District 
Court. In the same decision, the Court of Appeals deferred 
to that discretion and upheld the District Court’s dismissal 
of the separate Highland Park Independent School District



30

as a defendant (Estes Pet. for Cert. 139a-141a) and its 
approval of the school board’s selection of a challenged 
school site (Estes Pet. for Cert. 141a-145). The Court of 
Appeals further recognized that special considerations as 
to feasibility may apply to school districts made up pre­
dominantly of racial or ethnic minorities. Estes Pet. for 
Cert. 134a.

But when it came to the student assignment portion of 
the Dallas plan, the only alternative to the Court of Ap­
peals’ remand would have been the approval of a plan that 
left at least 70 one-race schools and, without adequate ex­
planation, neglected to use apparently available desegrega­
tion techniques in several significant levels and areas of 
the Dallas school system.

Where school boards are under an obligation to come up 
with effective plans, and district courts are under an obliga­
tion to review those plans with an eye to effective enforce­
ment of constitutional rights, courts of appeals necessarily 
have an obligation to review the district court decisions in 
a meaningful way. Without more information in the form 
of factual findings, there was no responsible way for the 
Court of Appeals in this case to approve a plan that is so 
woefully inadequate on its face “ to achieve the greatest 
possible degree of actual desegregation”  and be “ concerned 
with the elimination of one-race schools.”  Swann, supra, 
402 U.S. at 26.

The importance of the “ proper allocation of functions 
between the district courts and the courts of appeals” in 
school desegregation cases has been noted by this Court. 
Dayton Board of Education v. Brinkman I, 433 U.S. 406, 
409 (1977). Just as important as the deference due the 
district courts as triers of fact is the recognition of the 
function of the courts of appeals in these matters. The



31

entire history of the Fifth Circuit’s school desegregation 
litigation is itself a dramatic illustration of that importance. 
Time after time, reluctant district court judges have been 
held to the standards enunciated by this court only because 
of the dogged insistence of the Court of Appeals. The chain 
of cases developing the standards for school desegregation 
plans ultimately led to the Fifth Circuit’s formulation of 
its model freedom of choice decree in United States v. Jeffer­
son County Board of Education, 372 F.2d 836 (5th Cir. 
1966), adopted on reh. en banc, 380 F.2d 385 (5th Cir. 1967), 
cert. den. 389 TT.S. 840—a model decree born of its painful 
and frustrating experience in reviewing district court de­
segregation orders.

This case itself furnishes an illustration of the role of 
the court of appeals in requiring district court enforcement 
of desegregation. In the original case involving the desegre­
gation of the Dallas schools, the court of appeals reversed 
a district court order dismissing the suit as premature. 
Brown v. Rippy, 233 F.2d 796 (5th Cir. 1956). The next 
year the court of appeals had to reverse the distinct court’s 
second dismissal of the case, this time for failure to exhaust 
administrative remedies. Borders v. Rippy, 247 F.2d 268 
(5th Cir. 1957). The district court was subsequently re­
versed again for approving a plan that would have allowed 
parents to choose whether to enroll their children in a 
segregated or an integrated school. Boson v. Rippy, 285 
F.2d 43 (5th Cir. 1960). All of these cases, and others, 
involved district court orders by a judge who preceded 
the district court judge who is currently handling the Dallas 
school case.

The present district court judge, however, has also dem­
onstrated a reluctance to take this Court’s admonitions 
in Swann seriously. The first plan entered in the present 
case was largely based upon the district court’s reluctance



32

to require the transportation of students. It sought to 
achieve desegregation through television—a cable television 
arrangement whereby white and black classrooms would he 
able to communicate with each other on a two-way audio­
visual hook-up. In directing the Dallas school officials in 
1971 to formulate a plan for achieving a unitary school 
system, the judge who is presently handling this , case ex­
plained :

Now all of this is not as grim as it sounds. I am 
opposed to and do not believe in massive cross-town 
bussing of students for the sole purpose of mixing 
bodies. I doubt that there is a Federal Judge any­
where that would advocate that type of integration as 
distinguished from desegregation. There are many 
many other tools at the command of the School Board 
and I would direct their attention to part of one of 
the plans suggested by TEDTAC which proposed the 
use of television in the elmentary grades and the 
transfer of classes on occasion by bus during school 
hours in order to enable the different ethnic groups 
to communicate. How better could lines of communica­
tion be established than by saying, “ I saw you on TV 
yesterday,”  and, besides that, television is much 
cheaper than bussing and a lot faster and safer. This 
is in no sense a Court order but is merely something 
that the Board might consider.

Tasby v. Estes, 342 F. Supp. 945 (N.D. Tex. 1971). The 
school board based much of their plan at that time on the 
district court’s suggestion, and thus occasioned the first 
reversal of a plan in the present litigation. Tasby v. Estes, 
517 F.2d 92 (5th Cir. 1975). It is this same reluctance to 
take Swann seriously that the Court of Appeals is dealing 
with in its present remand.



33

The essential effect of the Court of Appeals decision in 
this case is to require district courts to give -serious and 
specifically-focussed consideration to the feasibility of 
eliminating one-race schools and achieving the greatest 
possible degree of actual desegregation necessary to dis­
mantle racially created enrollment patterns as required 
by Swann and by use of the devices that Swann deals with. 
In one sense it is an exercise of the appellate role that 
complements the role of the trial court by calling upon it to 
meet its function as trier of fact in a responsible manner.

This is the kind of guidance and insistence on effective 
enforcement of constitutional rights and obligations, as 
set forth by this Court, that characterizes the tradition of 
the Court of Appeals for the Fifth Circuit in this long and 
painful line of cases. At the very least, this moderate 
order of the Court of Appeals should be affirmed to allow 
reconsideration of the Dallas plan in this context. To do 
otherwise would be to undermine important principles of 
responsible appellate review and harm the ability of the 
courts of appeal to carry out their important function in 
our federal judicial system.

CONCLUSION

The decision of the Court of Appeals should be affirmed. 
It is particularly important to indicate once again this 
Court’s adherence to the principles of Brown I and II, 
Green and Swann upon which the Court of Appeals is here 
insisting.

Beyond the affirmance of that decision, this Court should 
make clear that those principles, as applied to the Dallas 
Independent School District, require greater efforts and 
results in eliminating segregated school attendance pat­
terns, and use of the Swann techniques in the absence of



34

“ legitimate local problems” that in fact make those 
techniques infeasible or inapplicable in particular instances 
in the Dallas school desegregation process,

N a t h a n ie l  R. J ones  
1790 Broadway 
New York, New York 10019

E. B hice C u n n in g h a m

Cunningham, Greenidge & 
Gaines

2606 Forest Avenue 
Suite 216-219 
Dallas, Texas 75215

M erle  W . L oper

246 Deering Avenue 
Portland, Maine 04102

Attorneys for Respondents- 
Intervenors

Of Counsel:

Louis R. L ucas  
Ratner, Sugarmon, Lucas, 
Salky & Henderson 
625 Commerce Title Building 
Memphis, Tenn. 38103



Certificate of Service

I, Nathaniel E. Jones, one of the counsel for the Respon­
dents, certify that a copy of the foregoing Brief was 
served upon the following counsel of record by regular mail 
by postage prepaid, this 20th day of July, 1979.

Nathaniel R, Jones

M r. E dw ard  B. C l o u t m a n , III 
8204 Elmbrook Drive, Suite 200 
P.O. Box 47972 
Dallas, Texas 75247

Mr . M a r k  M a r t in  
1200 One Main Place 
Dallas, Texas 75250

Ms. V il m a  S. M a r t in e z  
Mexican-American Legal Defense 

and Educational Fund 
28 Geary Street 
San Francisco, Calif. 94108

Mr. L ee H olt, City Attorney 
New City Hall 
Dallas, Texas 75201

M r . J o h n  B r y a n t  
8035 East R.L. Thornton 
Dallas, Texas 75228

M r . J a m e s  G. V e t t e r , J r.
555 Griffin Square Building- 
Suite 920
Dallas, Texas 75202

Mr . T h o r n t o n  E. A s h t o n , III 
Dallas Legal Services 

Foundation, Inc.
912 Commerce Street—Room 202 
Dallas, Texas 75202

Mr. R obert  H. M ow , J r.
Mr. R obert  L. B lttm en th al  
3000 One Main Place 
Dallas, Texas 75250

Mr. J am es  A. D onoh oe  
1700 Republic National Bank 

Building
Dallas, Texas 75201

Mr. M a r t in  F rost 
777 South R.L. Thornton 

Freeway—Suite 120 
Dallas, Texas 75203

M r . J am e s  T. M a x w e l l  
4440 Sigma Road— Suite 112 
Dallas, Texas 75240

M r . W arren  W h it h a m  
412 Adolphus Tower 
Dallas, Texas 75202



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