Swissvale Area School District v. Hoots Brief in Opposition

    No. 80-441

In the
£?upmiu' tiffmrt of tho Initpii States

O ctober  T e r m , 1980

S w issvale A rea  S chool  D istr ic t , et al.,
Petitioners,

v.

D orothy  H oots, et al., a n d  
C o m m o n w ea lth  op P en n sy lv a n ia , et al.

on  p e t it io n  por a w r it  of certiorari to 
t h e  u n it e d  states court of appeals

FOR THE THIRD CIRCUIT

BRIEF IN OPPOSITION

J ack G reenberg  
J am es M. N a beit , III 
B il l  L a n n  L e e *

Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

T hom as J .  H enderson
10t;h Floor, Allegheny Building 
429 Forbes Avenue 
Pittsburgh, Pennsylvania 15219

* Counsel of Record
Attorneys for Respondents 

Dorothy Hoots, et al.



QUESTIONS PRESENTED

In a school desegregation action, 
filed a decade ago, where the district 
court had failed to order any relief after 
finding a constitutional violation 7 1/2 
years ago:

1. Whether the court of appeals 
abused its discretion by ordering the 
district court to formulate a desegrega­
tion plan within 90 days, and the district 
court in fact has complied with the 
order.

2. Whether the district court's 
denial of a motion for injunctive relief 
for the upcoming year was appealable as 
the denial of an injunction pursuant to 28 
U.S.C. § 1292(a)(1).

l



Table of Contents

Page
Questions Presented ..............   i
Statement ........................    1

Reasons for Denying the Writ ...... 6
Conclusion ........      10

Table of Authorities
Cases
Alexander v. Holmes County Board of

Education, 396 U.S. 19 (1969) .. 8
Baltimore Contractors, Inc. v. Bodinger,

348 U.S. 1 76 (1 955) .......... 9
Carter v. West Feliciana Parish

School Board, 396 US. 226, 290 
1 969, 1 970) ....................  8

Columbus Board of Education v. Penick,
443 U.S 449 ( 1 979 ) .............  8

Gardner v. Westinghouse Broadcasting
Co. , 437 US. 478 ( 1 978 ) . .......  9

Green v. County School Board, 391
U.S. 430 ( 1 968 ) .... ...........  8

Lee v. Marengo County Board, 588 F.2d 
1134 (5th Cir.), cert, denied,
444 U.S 830 (1 979) ... .........  9

- ii -



Page

Milliken v. Bradley, 418 U.S 717
( 1 974) ..........................  3,5

Swann v. Charlotte-Mecklenburg Board 
of Education, 402 U.S. 1 
(1971 )...........................  7,8

Constitutional Provisions and Statutes
Fourteenth Amendment . . . ..........   2
28 U.S.C. § 1 292(a) ( 1 ) ..............  i,4

- i i i -



No. 80-441

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1980

SWISSVALE AREA SCHOOL DISTRICT, 
et al.,

Petitioners,
v.

DOROTHY HOOTS, et al., and 
COMMONWEALTH OF PENNSYLVANIA, 
et al.

On Petition for a Writ of Certiorari to 
The United States Court of Appeals 

For The Third Circuit

BRIEF IN OPPOSITION

Statement

The controversy is moot.
This school desegregation action was 

filed on June 9, 1971 by plaintiff parents 
of school children attending the General



2

Braddock Area School district who charged 
that in preparing and adopting school
reorganization plans for Allegheny 
County, Pennsylvania, the State inten­
tionally and knowingly created racially
segregated school districts. On May 15, 
1973, the district court found that the 
State's creation of General Braddock was 
"an act of d_e j_u_re discrimination in 
violation of the Fourteenth Amendment." 
359 F. Supp. 807, 823 (W.D. Pa. 1973).
Since 1973, no relief has been ordered 
despite numerous proceedings in the 
district court and the court of appeals
(See, A. 3a, n.1).

The appeal below was taken from the 
district court's order of July 30, 1 980
denying plaintiffs' immediate relief in 
the form of a merger or consolidation plan 
and implementation of relief by school



3

year 1980-81 (A. ii). The denial was
stated to be "without prejudice," but, as 
the court of appeals found, "the effect of 
the denial was to preclude any possibility 
of granting the relief sought" (A. 13a).

On January 26, 1981, the court below
vacated the July 3 0 , 1 98 0 order and
remanded for further proceedings. The 
court ordered "the district court to 
expedite its consideration of this case 
so that within ninety days of the issuance 
of the mandate of this court it shall:

"1) complete all hearings and 
necessary proceedings on the 
merits of the competing remedial 
plans for the desegregation 
of GBASD;

"2) decide the Milliken v. Bradley[, 
418 U.S. 717 (1974)] issue of
which school districts may be 
included within an interdistrict 
remedy; and

"3) enter an appropriate final order 
granting appellants the relief 
to which they are entitled under 
the district court's order of



4

May 15, 1973, such relief to be 
effective and implemented by the 
beginning of the first semester 
of the school year in the fall 
of 1981."

(A. 16a).-/
The mandate was issued January 26, 

1981. A petition for rehearing was filed 
by four of the eight defendant school 
districts (Churchill, Edgewood, Swissvale 
and Turtle Creek), and denied February 
25th (A. 54a). A motion for a stay was 
denied by the Third Circuit on March 13th 
and by Justice Brennan, as Circuit Justice, 
on March 24th.

V  The court below was unanimous on the 
appealability of the order as a denial of 
an injunction, 28 U.S.C. § 1292(a), and on 
the need for expedited relief. Judge 
Garth agreed that the court had jurisdic­
tion and that "this protracted litigation 
should be completed as speedily as pos­
sible and thus should be accorded the very 
highest priority" (A. 32a), but dissented 
on the need for the 90 day deadline (A. 
34a) .



5

Upon the issuance of the mandate, the 
district determined the remedy (A. 75a).
On March 5, 1981, the court resolved the
Milliken v . Bradley, supra, issue and held 
that the surrounding Churchill, Turtle 
Creek, Swissvale, East Allegheny, Edge- 
wood, and Gateway districts may be includ­
ed in any remedy (A. 58a). On April 6,
1981, the court rejected plans that would 
merely upgrade the facilities of the 
General Braddock, and that would provide 
for the closing of General Braddock 
schools and the education of children in 
surrounding districts, as ineffective and 
infeasible. On April 28th, the court 
determined that the present school dis­
tricts of Churchill, Edgewood, Swiss­
vale, General Braddock, and Turtle Creek 
should be consolidated, and issued a final 
order with guidelines for a desegregation 
plan to be implemented fall 1981. Thus



6

the district court has complied with the 
* /mandate

The instant petition for a writ of 
certiorari by the Churchill, Edgewood, 
Turtle Creek and Swissvale school dis­
tricts to review the January 26, 1 98 1
Third Circuit opinion is filed at the end 
of the 90 day period of hearings and 
orders mandated by the court of appeals 
and complied with by the district court. 
State defendants do not seek review. 

REASONS FOR DENYING THE WRIT 
The opinion below presents no impor­

tant questions, and is entirely consistent 
with the opinions of this Court and other 
courts of appeals. The issues presented 
are moot.

V  A separate appeal has been filed by 
the four districts from the April 28th 
order, which is not before the Court. 
That appeal is pending in the Third 
Circuit.



7 -

1 . The mandate of the court of 
appeals has been dutifully complied with 
by the district court within the 90 day 
period. Remedial hearings have been held, 
and the appropriate orders issued. The 
controversy is moot. There is no need for 
review.

2. The mandate of the Third Cir­
cuit, in any event, was well within the 
"breadth and flexibility . . . inherent in 
equitable remedies" in school desegrega­
tion litigation. Swann v. Charlotte- 
Mecklenburg Board of Education, 402 U.S 1, 
15 (1971). The Court of Appeals had
acquired substantial experience with the 
litigation over the course of five appeals 
or writs for mandamus (See, A. 3a, n.1).

The 90 day deadline was plainly 
consistent with the constitutional duty to



d e s e g r e g a t e  "now," C o 1 u m b u _s_ B o a r d_ o f 
Education v. P e n i c k , 443 U.S. 449, 459
( 1979), quoting Swann, supra, 402 U.S. at 

13 and Green v. County School Board, 391 
U.S. 430, 439 (1968), "forthwith," Swann,
£ £ £ £ £  ' 402 U.S at 14, " i m m e d i a t e l y , "

j.£.£_v_r_. H o l m e s  C o u n t y Boa r d of 
Education, 396 U.S 19, 20 (1969), and "at 

once*" Alexander, supra; see Carter v . 
West Feliciana Parish School Board, 396 
U.S. 226, 290 (1969, 1970).

3. The unanimous opinion of the 
court below was correct that the district 
court s denial in July 1980 of injunctive

—/ In Alexander, the Court vacated Fifth
Circuit orders postponing desegregation in 
the then-current school year on October 
29, 1969. Subsequently, on Janaury 14,
1970, the Court vacated Fifth Circuit 
o r d e r s  r e q u i r i n g  a d o p t i o n  of plans 
by midyear but postponing pupil desegrega­
tion until the 1 970-7 1 school year in 
Carter, supra,_ 396 U.S. at 291. Carter 
required immediate midyear pupil desegre­gation .



9

relief effective school year 1980-81 was 
an "'interlocutory order[ ] of serious, 
perhaps irreparable consequence.'" 
Gardner v. Westinghouse Broadcasting Co. , 
437 U.S. 478, 480 (1978), quoting Balti­
more Contractors Inc, v. Bodinger, 348 
U.S. 1 76, 1 81 ( 1 955). The appealability 
of the order denying injunctive relief in 
a school desegregation action is neither 
unusual or remarkable. See, e.g., Lee v. 
Marengo County Board., 588 F.2d 1134, 1136 
(5th Cir.), cert. denied, 4 44 U.S. 830 
( 1 979 ) .



- 10

CONCLUSION
This petition for a writ of cer — 

tiorari should be denied.
Respectfully submitted,

JACK GREENBERG 
JAMES M. NABRJT, III 
BILL LANN LEE 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

THOMAS J. HENDERSON
10th Floor, Allegheny 
Building
429 Forbes Avenue 
Pittsburgh, Pennsylvania

15219(412) 255-6700
★Counsel of Record

Attorneys for Respondents Dorothy Hoots, et al.



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