Pasadena City Board of Education v. Spangler Brief Amici Curiae
Public Court Documents
January 1, 1975
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Brief Collection, LDF Court Filings. Pasadena City Board of Education v. Spangler Brief Amici Curiae, 1975. bfe8fc99-c09a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/cbe3f7ff-bb3b-46a2-ae65-e384192c790c/pasadena-city-board-of-education-v-spangler-brief-amici-curiae. Accessed October 11, 2025.
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I n T h e
^upmttP (Hmrrt of tit? States
O cto ber T e r m , 1975
No. 75-164
P a s a d e n a C it y B oard of E d u c a t io n , e t a l .,
Petitioners,vs.
N a n c y A n n e S p a n g l e r , e t a l .,
U n it e d S t a t e s of A m e r ic a .
On Writ of Certiorari to the United States Court of
Appeals for the Ninth Circuit
BRIEF FOR THE NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE (N AACP);
LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER
LAW; and the CENTER FOR NATIONAL POLICY
REVIEW ON RACE AND URBAN ISSUES, as
AMICI CURIAE
Thomas D. Baer
John W. Douglas
J. Harold Flannery
Albert E. Jenner, Jr.
Milan C. Miskovsky
Louis F. Oberdorfer
W hitney North Seymour
Chesterfield Smith
Lawyers’ Committee for Civil
Rights Under Law
Nathaniel R. Jones
General Counsel, N.A.A.C.P.
1790 Broadway
New York, New York 10019
William L. Taylor
Catholic University
School of Law
Washington, D.C. 20017
Paul R. Dimond
W illiam E. Caldwell
Norman J. Chachkin
Suite 520
733 15th Street, N.W.
Washington, D.C. 20005
Attorneys for Amici Curiae
W ilso n - Ef es Prin tin g C o . . I n c . - Re 7 - 6 0 0 2 • W a s h i n g t o n , d . C. 2 0 0 0 1
TABLE OF CONTENTS
Table of Authorities .... ........ .......................................... iii
Interest of A m ici ..................................................................... 1
Statement ...... 5
Summary of Argument .................................................. 12
Argument—
I. The Remedial Standards Embodied In The Dis
trict Court’s 1970 Order Are Proper Under
Swann And The Fourteenth Amendment____ 13
II. The District Court Properly Maintained Its
Remedial Jurisdiction Over Petitioners To In
sure Constitutional Compliance_________ 18
A. The Court Correctly Treated Petitioners’
Motion In Accordance With Traditional
Equitable Principles Governing The Modifi
cation of Injunctions ................. .............. . 18
1. The Alternative Plan ............. 20
2. Relinquishing jurisdiction ........... 22
B. Petitioners Did Not Establish “ Unitary
Status” .................................................... ........ 24
1. Initial implementation of the 1970 de
cree did not convert Pasadena into a
unitary system .................................. 25
2. The district court properly determined
that Pasadena was not “ unitary” at the
time of its 1974 motions ........................ 26
3. The district court was right in refusing
to permit implementation of Petitioners’
alternative plan, even if Petitioners
would otherwise have been entitled to
have the case placed on inactive status.. 31
Page
II
TABLE OF CONTENTS—Continued
Page
III. Reversal Of The Judgment Below Would En
courage New Schemes To Evade Or Frustrate
The Mandate Of The Fourteenth Amendment. 34
Conclusion ......................................................................... 36
in
TABLE OF AUTHORITIES
Cases: Page
Acree v. County Bd. of Educ., 458 F.2d 486 (5th
Cir.), cert, denied, 409 U.S. 1006 (1972)--------- 18
Adams v. School Dist. No. 5, 444 F.2d 99 (4th
Cir. 1971) __________________________________ 17
Alexander v. Holmes County Bd. of Educ., 396
U.S. 19 (1969) ____________ ______ 2n, 3n, 4n, 25n, 35
Balsbaugh v. Rowland, 447 Pa. 157, 290 A.2d 85
(1972) ________________________________ - .... 4n
Berry v. Benton Harbor School Dist., 505 F.2d
238 (6th Cir. 1974)________________ 26n
Boyd v. Pointe Coupee Parish School Bd., 505 F.2d
632 (5th Cir. 1974), rev’g 332 F. Supp. 994
(E.D. La. 1971) ________________ 26
Boykins v. Fairfield Bd. of Educ., 457 F.2d 1091
(5th Cir. 1972) -------------- 26
Bradley v. School Bd. of Richmond, 412 U.S. 92
(1973) 3n
Brinkman v. Gilligan, 518 F.2d 853 (6th Cir.
1975), cert, denied, 44 U.S.L.W. 3331 (Dec. 1,
1975) _______________ -..... .. .................. - - ....... - 3n, 7n
Brown v. Board of Educ., 347 U.S. 483 (1954),
349 U.S. 294 (1955)__________ __ - - --- ----- 3n, 4, 36
Carter v. West Feliciana Parish School Bd., 396
U.S. 226 (1969), 396 U.S. 290 (1970) ____ 2n, 4n, 25n
Citizens Against Mandatory Busing v. Brooks,
80 Wash. 2d 121, 492 P.2d 536 (1972) _____ __ 4n
Cooper v. Aaron, 358 U.S. 1 (1958)------------------- 4n, 36
Davis v. Board of School Comm’rs of Mobile, 402
U.S. 33 (1971) __________________________ 2n
Dowell v. Board of Educ., 465 F.2d 1012 (10th
Cir.), cert, denied, 409 U.S. 1041 (1972)------- 26
Drummond v. Acree, 409 U.S. 1228 (1972)
(Powell, J.) _____________________________ 18
Ellis v. Board of Public Instruction, 465 F.2d 878
(5th Cir. 1972), cert, denied, 419 U.S. 966
(1973) 26
Evans v. Buchanan, 44 U.S.L.W. 3299 (Nov. 17,
1975) ...................................................................... 3n
IV
Gilmore v. City of Montgomery, 417 U.S. 556
(1974) --------------------------------------------------------- 33
Gordon v. Jefferson Davis Parish School Bd., 446
F.2d 266 (5th Cir. 1971) _____________________ 3n
Green v. County School Bd. of New Kent County,
391 U.S. 430 (1968) ---------------------- 2n, 28, 25, 27, 35
Griffin v. County School Bd., 377 U.S. 218 (1964).. 4n
Hart v. Community School Bd., 512 F.2d 37 (2d
Cir. 1975) __________ 26n
Hereford v. Huntsville Bd. of Educ., 504 F.2d 857
(5th Cir. 1974), cert, denied, 421 U.S. 913
(1975) ---------------------------------------- 25
Kelly v. Guinn, 456 F.2d 100 (9th Cir. 1972), cert.
denied, 413 U.S. 919 (1973) ____________ 7n, 16n, 20n
Keyes v. School Dist. No. 1, Denver, 413 U.S. 189
(1973) --------------------------------4n, 6n, 7n, 8n, 26n, 30, 33
Lee v. Johnson, 404 U.S. 1215 (1971) (Douglas,
J-) --------------------- ---- --------- ----- --------- ---------- 8n
Lemon v. Bossier Parish School Bd., 444 F.2d
1400, 446 F.2d 911 (5th Cir. 1971)___________ 32
Louisiana v. United States, 380 U.S. 145 (1965).... 19,29
Lubben v. Selective Service System Bd. No. 27, 453
F.2d 645 (2d Cir. 1972)_____________________ 20n
McDaniel v. Barresi, 402 U.S. 39 (1971) _______ 4n
Medley v. School Bd. of Danville, 482 F.2d 1061
(4th Cir. 1973), cert, denied, 414 U.S. 1172
(1974) -------------------------------------------------------- is
Milliken v. Bradley, 418 U.S. 717 (1974)_____3n, 4n, 7n,
18, 24
Monroe v. Board of Comm’rs, 391 U.S. 450 (1968).. 2n, 4n,
20n
Morgan v. Kerrigan, No. 75-1184 (1st Cir., Jan.
14, 1976) ------------------------------------------- 12n, 20n, 22n
Morgan v. Kerrigan, 509 F.2d 580 (1st Cir. 1974),
cert, denied, 421 U.S. 963 (1975) ___________ 3n, 26n
Northcross v. Board of Educ. of Memphis, 397
U.S. 232 (1970) ..
TABLE OF AUTHORITIES— Continued
Page
2n
V
Oliver v. Michigan State Bd. of Educ., 508 F.2d
178 (6th Cir. 1974), cert, denied, 421 U.S. 963
(1975) ........................................................ 26n
Pate v. Dade County School Bd., 434 F.2d 1151
(5th Cir. 1970) ....................................... .... . 17
Raney v. Board of Educ., 391 U.S. 443 (1968)__ 2n, 12n,
25,35
Ross v. Eckels, 434 F.2d 1140 (5th Cir. 1970) ....... 17
Soria v. Oxnard School Dist., 386 F. Supp. 539
(C.D. Cal. 1974).......... ....... ...... ....... .............. . 8n
Spangler v. Pasadena City Bd. of Educ., 419 F.2d
430 (9th Cir. 1975) —....... ...................... ....... ..... 11
Spangler v. Pasadena City Bd. of Educ., Civ. No.
68-1438-R (C.D. Cal., Aug. 12, 1974) ________ 24n
Spangler v. Pasadena City Bd. of Educ., 375 F.
Supp. 1304 (C.D. Cal. 1974) _____________ ___ 10
State ex rel. Citizens Against Mandatory Busing
v. Brooks, 80 Wash. 2d 121, 492 P.2d 536
(1972) ..... ................. ............... ....................... ..... 4n
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402
U.S. 1 (1971) .............................................. ........ passim
Swann v. Charlotte-Mecklenburg Bd. of Educ.,
453 F.2d 1377 (4th Cir. 1972), aff’g 328 F.
Supp. 1346 (W.D.N.C. 1971) ______ _____ ___ _ 26
Swann v. Charlotte-Mecklenburg Bd. of Educ.,
Civ. No. 1974 (W.D.N.C., July 11, 1975) ........... 31
System Federation No. 91 v. Wright, 364 U.S. 642
(1961) ........................................ ............. ............ . 18
United States v. Hinds County School Bd., No.
28030 (5th Cir., Jan. 9, 1974) ______________ 26n
United States v. School Dist. of Omaha, 521 F.2d
530 (8th Cir.), cert, denied, 44 U.S.L.W. 3280
(Nov. 11, 1975) ...................... ....... ........... .......... 26n
United States v. Scotland Neck City Bd. of Educ.,
407 U.S. 484 (1972) .......... ....... ...4n, 12n, 15n, 20n, 33
United States v. Swift & Co., 286 U.S. 106 (1932).. 19
United States v. Texas, 509 F.2d 192 (5th Cir.
1975) ..
TABLE OF AUTHORITIES—Continued
Page
26
VI
United States v. W. T. Grant Co., 345 U.S. 629
<1953) ..........-..... -.... -........ - ............... — ........... 19, 23n
Westminster School Dist. v. Mendez, 161 F.2d 744
(9th Cir. 1947) .................. ........... ...... gn
Wheeler v. Durham County Bd. of Educ., 521
F.2d 1136 (4th Cir. 1975) .................................. lgn
Wright v. Board of Public Instruction, 445 F 2d
1397 (5th Cir. 1971) ....... .......... ......................... 26
Wright v. Council of the City of Emporia, 407 U.S."
451 (1972) .............................. -4n, 12n, 15n, 20n, 32, 33
Youngblood v. Board of Public Instruction, 448
F.2d 770 (5th Cir. 1971) .................................... 26
Other Authorities:
Justice Delayed and Denied: II11 Y\' and Northern
School Desegregation (1974) ________________ 3n
N.Y. Times, Dec. 3, 1975, p. 30 ........... ................... 35n
TABLE OF AUTHORITIES—Continued
Page
I n T h e
iktpram' (Emtrt uf tlfp Stairs
Octo ber T e r m , 1975
No. 75-164
P a s a d e n a C it y B oard of E d u c a t io n , et a l .,
Petitioners,vs.
N a n c y A n n e Sp a n g l e r , e t a l .,
U n it e d St a t e s of A m e r ic a .
On Writ of Certiorari to the United States Court of
Appeals for the Ninth Circuit
BRIEF FOR THE NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE (N AAC P);
LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER
LAW; and the CENTER FOR NATIONAL POLICY
REVIEW ON RACE AND URBAN ISSUES, as
AMICI CURIAE
Interest of Amici 1
Amici are nonprofit, charitable organizations which
have each strived, since their respective establishment,
to end official discrimination against racial, ethnic, and
1 Letters from counsel for the parties herein, consenting to the
filing of this Brief Amici Curiae on behalf of the NAACP or
the Lawyers’ Committee for Civil Rights Under Law, have been
filed with the Clerk of this Court pursuant to U.S. Sup. Ct. Rule
42(2).
2
other minorities. Each has been significantly involved, in
the period since this Court’s decisions catalyzed the
rapid elimination of dual biracial school systems in the
South,® in efforts' t0! identify and end discriminatory ac
tions of school authorities throughout the Nation which
have restricted the educational opportunities of minority
group' children;2 3
2 Green V. County School Bd. of New Kent County, 391 U.S.
430 (1968); Monroe v. Board of Comm’rs, 391 U.S. 450 (1968) ;
Raney v. Board of Educ., 391 U.S. 443 (1968); Alexander v.
Holmes County Bd. of Educ., 396 U.S. 19 (1969); Carter v. West
Feliciana Parish School Bd., 396 U.S. 226 (1969), 396 U.S. 290
(1970); Northcross v. Board of Educ. of Memphis, 397 U.S. 232
(1970) ; Swann V. Charlotte-Medclenburg Bd. of Educ., 402 U.S. 1
(1971) ; Davis v. Board of School Comm’rs of Mobile, 402 U.S. 33
(1971).
3 The National Association for the Advancement o f Colored
People (NAACP) is a nonprofit membership association repre
senting the interests of approximately 500,000 members in 1700
branches throughout the United States. Since 1909, the NAACP
has sought through the courts to establish and protect the civil
rights of minority citizens. NAACP attorneys have often appeared
before this Court, representing the organization as an amicus or on
behalf o f individual litigants in cases involving school desegrega
tion, employment, voting rights, jury selection, capital punishment,
and other cases involving fundamental human rights.
The Lawyers’ Committee for Civil Rights Under Law was or
ganized on June 21, 1963, following a conference o f lawyers called
at the White House by the President. The Committee’s principal
mission is to involve private lawyers throughout the country in
the struggle to assure all citizens of their civil rights through
the legal process, in particular by affording legal services other
wise unavailable to Black and other minority Americans pursuing
claims for equal treatment under law. The Lawyers’ Committee
is a nonprofit, private corporation whose Board of Trustees in
cludes thirteen past presidents o f the American Bar Association,
three former Attorneys General, and two former Solicitors General.
The Center for National Policy Review on Race and Urban
Issues was established in 1970 as a public interest law center at
the Catholic University Law School with the support o f private
foundations. The Center’s principal mission is to provide research
assistance and legal representation seeking to vindicate the rights
of minority and low income citizens through the federal adminis
trative process. The Center has provided such administrative rep
3
Considerable progress has been made— although much
remains to' be accomplished. Despite the headlines and
apprehensions of any particular moment, the number of
districts (North and South) which have desegregated
their schools, accepted their Constitutional obligation to
prevent the reappearance of discrimination, and moved
to improve the quality of education for all their students
resentation and has also served as counsel or amicus in court cases
involving equal educational opportunity, housing, mortgage lending
discrimination and employment.
The NAACP or its constituent branches have been plaintiffs in
a number o f school desegregation actions, and the organization has
furnished attorneys who represented individual plaintiffs in scores
of other cases; NAACP attorneys participated in the proceedings
which led to this Court’s decision in Brown V. Board of Educ.,
347 U.S. 483 (1954), 349 U.S. 294 (1955) and Milliken V. Bradley,
418 U.S. 717 (1974), for example. The Association and its attorneys
are currently involved in numerous active school desegregation
matters.
The Lawyers’ Committee and its staff have a long history of
support for, and participation in, school desegregation litigation.
For example, the Committee filed a brief and participated in oral
argument as amicus curiae in Alexander v. Holmes County Bd. of
Educ., 396 U.S. 19 (1969); through its efforts, volunteer attorneys
assisted the plaintiffs in numerous proceedings which resulted from
this Court’s decision in Alexander, e.g., Gordon V. Jefferson Davis
Parish School Bd., 446 F.2d 266 (5th Cir. 1971). More recently,
staff and volunteer attorneys o f the Lawyers’ Committee have as
sisted in representing plaintiffs in such cases, as Morgan v. Kerri
gan, 509 F.2d 580 (1st Cir. 1974), cert, denied, 421 U.S. 963
(1975), and Brinkman V. Gilligan, 518 F.2d 853 (6th Cir. 1975),
cert, denied, 44 U.S.L.W. 3331 (Dec. 1, 1975).
The Center and its staff have focused attention on the statutory
responsibility of the Department of Health, Education and Welfare
to prevent racial discrimination in public school systems of the
North and West, publishing an investigative report, Justice Delayed
and Denied: HEW and Northern School Desegregation (1974) and
participating as counsel in the pending case o f Brown v. Wein
berger. Among the cases in which the Center has participated as
counsel or amicus before this Court are Bradley v. School Bd. of
Richmond, 412 U.S. 92 (1973) and Evans v. Buchanan, 44 U.S.L.W.
3299 (Nov. 17, 1975). The Center has also conducted or spon
sored research on issues of educational equality.
4
is steadily increasing. Prime among the many factors
responsible for this achievement has been this Court’s
unwavering dedication to the effectuation of Brown within
school districts which have been found, to have discrim
inated against racial or ethnic minorities in the past,4 5
and the courageous., meticulous attention given school
desegregation cases by many United States District
Judges. In turn, the consistency of the legal process has
fortified the resolve of school boards and other local
agencies which have moved voluntarily to end official
discrimination and to eliminate its vestiges.15
With this appreciation for the critical importance of
this Court’s pronouncements, amid were' naturally con
cerned when the Court agreed to review the affirmance
of a district court decree requiring school authorities (in
a case involving intentional creation, of segregated
schools) to maintain a desegregated school system for a
fourth school year after the finding of violation and issu
ance of a remedial decree.6 Subsequent review of the ree-
4 E.g., Cooper v. Aaron, 358 U.S. 1 (1958) (official intransigence
and interposition); Griffin v. County School Bd., 377 U.S. 218
(1964) (evasion by closing schools) ; Monroe v. Board of Comm’rs,
supra, 391 U.S., at 459 (threatened “white flight” ) ; Alexander and
Carter, supra (delay); Wright v. Council of the City of Emporia,
407 U.S. 451 (1972) ; United States v. Scotland Neck City Bd. of
Educ., 407 U.S. 484 (1972) (creation of “ splinter districts” ) ;
Keyes v. School Dist. No. 1, Denver, 413 U.S. 189 (1973) (claims
that unconstitutional actions affected only portion o f school dis
trict) .
5 See, e.g., Balsbaugh v. Rowland, 447 Pa. 157, 290 A.2d 85
(1972); State ex rel. Citizens Against Mandatory Busing v. Brooks,
80 Wash. 2d 121, 492 P.2d 536 (1972); Citizens Against Manda
tory Busing v. Palmason, 80 Wash. 2d 445, 495 P.2d 657 (1972) ;
cf. McDaniel v. Barresi, 402 U.S. 39 (1971).
6 This is only the second school board petition for certiorari in a
desegregation case which has been granted since Brown-, in the
previous instance, the Court declined to endorse the lower courts’
requirement o f an inter-district remedy, but remanded the case
with instructions to provide a within-district remedy for the dual
school system which had been proved. Milliken v. Bradley, supra,
418 U.S., at 752-53.
5
Ord has convinced amici that the limited judgment of the
Court of Appeals was appropriate in the circumstances
of this case. For that reason, a reversal of that judgment
may be interpreted by segments of the public, and of the
federal judiciary, as a dilution of the substantive content
of the Fourteenth Amendment as it affects racial segre
gation in education. It is with the hope of preventing
any such result that amici submit this Brief.
Statement
In our view, Petitioners’ Statement of the case distorts
the record and judgment below in two respects critical
to the disposition of this case: First, the district court’s
original judgment of violation six years ago was predi
cated on a showing of intentional segregation, not mere
racial imbalance as Petitioners contend (Pet. Br., pp.
3-4). Second, the 1975 judgment of the Court of Appeals
(the precise judgment now under review) expressly dis
approves, and does not sanction (as Petitioners assert,
Pet. Br., p. 9), the imposition of a particular racial quota
for the foreseeable future.
1. The 1970 Violation Judgment. Although Petition
ers have obtained review of an order in a school desegre
gation case which is clearly remedial in nature (to wit,
one which denies their request to alter a previously ap
proved desegregation plan), they have sought to create
an atmosphere unfavorable to the district court’s action
by making pejorative comments about the district court’s
original, almost six-year-old judgment that the Constitu
tion had been violated by Pasadena school authorities,
It is therefore important that the nature of the district
court’s 1970 holding on liability be properly portrayed.
Petitioners charge that in the proceedings on liability,
the “ trial court operated on the invalid assumption that
6
racial imbalance and segregation were one and the same
. . . . The failure of the Pasadena, School Board to cor
rect this racial imbalance was the primary basis on which
the system was fou-nd to be a dual system and, therefore,
constitutionally defective.” (Pet. Br., p. 3) (emphasis
supplied). In support of this assertion, Petitioners, quote
only three of 54 factual findings entered by the district
court in support of its judgment (Pet. Br., pp. 3-4.) A
review of the entire detailed, and unchallenged, factual
findings of the district court demonstrates a consistent,
intentional, discriminatory course of conduct by Pasadena
school authorities over several decades in all areas of
school administration.’7 8
It is clear, in this context, that the district court did
not confuse the descriptive phenomenon of “ segregation-
imbalance” with the legally significant factor of inten
tional official action 8 resulting in that segregation.9 The
7 Included in these intentional policies were: (1) busing white
students past Black schools to, other white schools, 311 F. Supp.,
at 507; A. 100-01; (2) making, or refusing to make, attendance
boundary changes with the end result o f increasing racial pre
dominance in both Black and white schools, 311 F. Supp., at 507-
10; A. 100-05; (3) locating new schools and constructing addi
tions to existing facilities so as to maximize segregation, 311 F.
Supp., at 517-19; A. 119-23; (4) grouping students within schools
so as to segregate individual classes according to race, 311 F.
Supp., at 519-20; A. 123-25; (5) granting racially motivated
transfer requests which exacerbated segregation, 311 F. Supp., at
520; A. 125-26; (6) discriminating in the hiring of faculty, staff
and administrators, 311 F. Supp., at 515-16; A. 115-18; and (7)
racially allocating faculty, staff and administrators in a manner
which further identified schools as “ Black” or “white,” 311 F. Supp.,
at 513-15; A. 112-15.
8 Keyes V. School Dist. No. 1, Denver, swpra, 413 U.S., at 208.
9 The distinction is consistently reflected in this Court’s opinions.
Cf. Keyes, supra, 413 U.S., at 232 (Powell J., concerning in part
and dissenting in part) : “ The issue in these cases will not be
whether segregated education exists. This will be conceded in most
7
district court did not proceed from a finding of “ segre
gation-imbalance” to the conclusion that Petitioners were
Constitutionally obligated to integrate their schools. Such
a holding could, have come without the necessity of a trial,
since the enrollment and faculty assignment figures were
undisputed. Instead, the court’s findings specify in great
detail how the activities of Pasadena school officials,
from, 1934 to> the date of trial, had created, maintained,
and exacerbated segregation in the district’s schools.10
Given, these amply supported findings, it is simply not
accurate to say that the district court’s “ findings of vio
lations were based not so much on affirmative acts of
of them.” Were the existence of “ segregation” sufficient to demon
strate an unconstitutional practice, this Court would not have
carefully distinguished in Swann and Keyes between de jure and
“ so-called de facto” segregation. See 402 U.S., at 17-18; 413 U.S.,
at 208. And while these terms may be more descriptive o f legal
attributes rather than objective conduct, see 413 U.S., at 232-36
(Powell, J.), the fact remains that they are distinguished in prac
tice by the existence of evidence from which intentional official
action resulting in the segregation can be inferred. Id., at 208
(Opinion of the Court).
10 The subheadings of the district court’s findings are instructive
in this regard: “ HI. Segregation of Students . . . A. The Fact of
Racial Segregation . . . B. Defendant’s Actions and Inactions that
Have Contributed to and Intensified Racial Separation . . . .” Cf.
Kelly v. Guinn, 456 F.2d 100, 106 n. 6 (9th Cir. 1972), cert, denied,
413 U.S. 919 (1973) : “Whatever the district court may have meant
by its occasional references to ‘de facto segregation’ in the Clark
County School District, it is clear from the language of the district
court quoted in the text that the court did not define the term, as
the Supreme Court did in Swann, as referring to a situation
‘where racial imbalance exists in the schools but with no showing
that this was brought about by discriminatory action of state
authorities’ ” (emphasis in original). The point is that the par
ticular language used to describe either the fact of segregation or
its unconstitutional cause should not obscure the substance of
findings of intentional misconduct. Cf. Brinkman v. Gilligan, supra,
518 F.2d, at 854. Indeed, the substance of even the “ inaction”
findings is that Pasadena school authorities purposefully resolved to
maintain segregation. Id. at 510-11; A. 105-09. Compare Keyes,
supra; Milliken v. Bradley, supra.
segregation by Petitioners, as on their failure to act to
prevent ‘racial imbalance.’ ” Petition for W rit of Cer
tiorari, at p. 3. In sum, this Court’s consideration of the
remedial actions of the district court should be under
taken free of any residual suspicions about the findings
of a. Constitutional violation in Pasadena which Peti
tioners have endeavored to create.
2. The Court of Appeals’ Ruling. Similarly, the sug
gestion (Pet. Br., pp. 8-9) that the judgment of the
court below authorizes the imposition of a particular
racial quota for the foreseeable future misconceives the
true facts. To understand this miseharacterization of
the judgment below, a cursory review of the prior pro
ceedings is required.
As noted, in 1970, the district court found that Peti
tioners or their precedessors had, through deliberate,
official, discriminatory actions, created and maintained
a dual school system, in Pasadena. The court accordingly
required submission of an affirmative remedial plan
which would, among other things, alter pupil assignments
so that no school would be racially identifiable: in the
particular context of Pasadena, the court directed that
no school should draw a majority of its 1970-71 enroll
ment from, any one minority group.1'1 Such a plan, was 11
11 Compare, e.g., Keyes, supra, 413 U.S., at 195-98. Pasadena
enrolls students of three minority groups which have historically
been discriminated against in California: Blacks, Chicanos— see,
e.g., Westminister School D-ist. v. Mendez, 161 F.2d 744 (9th Cir.
1947); Soria V. Oxnard School Dist., 386 F. Supp. 539 (C.D. Cal.
1974)— and Chinese— see, e.g., Lee v. Johnson, 404 U.S. 1215
(1971) (Douglas, J., in Chambers). (A. 440.) However, the dis
trict court’s order of March 10, 1970 approved Petitioners’ plan
which contemplated school populations more than 50% combined
minority, such as Arroyo-Garfield. (A. 92, 96.) In 1970, the
Pasadena school district’s enrollment was, 33% Black, 10% Chi-
cano, and 3% Asian (A. 440). Thus, the “no majority of any
minority” guideline contemplated greater racial and ethnic varia
tion in enrollments than in Swann (9% Black to 38% Black) and
countless other cases. See pp. 15-16 infra.
8
9
prepared by the school system, staff and approved, by the
district court. In its initial year of implementation,
it met the court’s guidelines with respect to school en
rollments.
However, in the three succeeding years, the plan did
not achieve these results. An increasing number of
schools were distinguishable by increasingly large Black
enrollments. Petitioners did not alter their plan in the
face of these developments nor otherwise advise the dis
trict court of any change in circumstances, despite its
continuing jurisdiction.12 Instead, in 1974, Petitioners
finally filed a four-part motion (A. 232) asking for modi
fication of the court’s 1970 orders by (1) withdrawing
the injunction requiring them to implement the desegre
gation plan, approved by the district court in 1970; (2)
withdrawing the injunction insofar as it required, that
the plan avoid school enrollments which were “ majority-
minority” ; (3) permitting them to implement a new
pupil assignment plan attached to the motion,; and (4)
dismissing the case. Certain “ changed circumstances”
and exigencies were claimed by Petitioners to justify
the relief which they sought: the decline in. the system-
wide proportion of white students, from 58% to 44%,
Petitioners claimed, made avoidance of “ majority-minor
ity” schools infeasible; the K-3, 4-6 elementary school
organizational pattern embodied in the Pasadena Plan,
12 To the contrary, Petitioners’ post hoc litigation contention is
that implementation of the 1970 pupil assignments operated in-
stanter to fulfill their responsibility: “ [the] Pasadena Plan . . .
extirpated all remnants of school segregation immediately.” Pet.
Br., p. 4. Their 1974 motion for modification contended both that
they had “complied with the mandate of this Court relating to a
unitary school district” and that demographic changes had “made
it a practical impossibility to continue to comply with the portion
of the judgment of this Court which required that there be no
school in the district ‘having a majority of any minority students.’ ”
(A. 233, 237.) The district court found compliance was feasible,
and that the vestiges of discrimination had not been eliminated.
10
they said, prevented desirable educational modifications
offering parents: a choice of instructional techniques and
curricular emphases for their children. In addition,
Petitioners averred that modification of the 1970 decree
was justified because the decree had caused the drop1 in
white enrollment in the district (and was, thus, an un
satisfactory mechanism, for discharging Petitioners’ af
firmative duties) ; and that, far from, contributing to the
achievement of equal educational opportunities, the Pasa
dena Plan had resulted in, lower educational attainment
by both Black and white students.
Following a, hearing, the district court denied the Peti
tioners:’ alternative motions. Spangler v. Pasadena City
Bd. of Educ., 375 F. Supp. 1304 (C.D. Cal. 1974) ; A.
452. The court ruled that it had intended its 1970 decree
to require that Petitioners prevent (unless it were not
feasible) the recurrence of school enrollments in which
minority-race students constituted a m ajority ;13 that
reassignments to achieve this end were still feasible; that
implementation of the 1970 decree had caused neither
unusual loss of white students (compared to other Cali
fornia, districts) nor deterioration in academic achieve
ment; and that Petitioners’ alternative plan, which was
based on “ free choice” assignments, was intended to
and likely would result in the immediate reestablishment
13 In a remark at the hearing, the district court made the follow
ing statement concerning the plan submitted by the school board
pursuant to the 1970 order: “ Now, what that meant to me that
at least during my lifetime there would be no majority of any
minority in Pasadena.” (A. 220.) Whether this remark is read as
an offhand release o f tension by a district judge vexed by what he
perceived as a recalcitrant school board disavowing its own pro
posal to make readjustments (see A. 10), or as a verbal gloss
otherwise omitted from the district court’s final written order, the
remark was specifically removed from the judgment now under re
view; for the Court o f Appeals’ majority specifically rejected any
notion that annual reassignments or an immutably fixed racial
percentage could be imposed. See discussion infra, pp. 13-18.
11
of a racially segregated school system, and was therefore
a Constitutionally unacceptable remedial measure.
The Court of Appeals affirmed, but with important
clarifications. Spangler v. Pasadena City Bd. of Educ.,
519 F.2d 430 (9th Cir. 1975); Petition for Writ of Cer
tiorari, at p. A l .14 Contrary to Petitioners’ suggestion
(Pet. Br., p. 14), the two judges in the majority below, in
their separate opinions, both agreed that the district court
could not require “ annual” or other adjustments to main
tain schools without a majority of enrollment composed of
minority-race students after a plan had worked for a suffi
cient period of time to justify the conclusion that a unitary
system, had been established. 519 F.2d, at 438, 440.15
Thus, the propriety of requiring annual reassignments- to
14 The peculiar procedural posture of the case prevented modifica
tion or reversal in part. 'The district court’s 1970 decree required
submission and implementation of a pupil assignment plan sufficient
that “ by or before the beginning o f the school year that commences
in September of 1970, there shall be no school in the District,
elementary or junior high school, or senior high school, with a
majority of any minority students.” 311 F. Supp., at 505; A. 3-4.
A subsequent district court judgment (A. 96) approved the par
ticular plan submitted by Pasadena— a plan in which the school
board itself proposed annual adjustments (A. 10). The language
of the decree does- not explicitly require continual reassignments;
indeed, Petitioners argue here that not until the 1974 hearings did
they understand the decree in this fashion (Pt. Br., pp. 6-7). The
quoted provision of the decree, as written, thus established a re
medial standard based upon both feasibility and system-wide racial
composition (see infra, pp. 13-18) ; only with whatever additional
gloss the district court’s verbal remark almost four years later
placed upon it, see note 13 supra, could the decree have been under
stood to require continued annual reassignments throughout the
district judge’s lifetime. The Court of Appeals properly tailored
its opinion to disapprove only the unwritten subsequent gloss on
the actual words of the decree (Judge Chambers commented that
“ the message is clear to the district court,” 519 F.2d, at 440).
There was thus no occasion to vacate or modify the decree itself.
15 Judge Wallace’s dissenting opinion did not suggest that Peti
tioners were unquestionably entitled to the relief they seek in this
Court. Rather, it suggested a remand for further proceedings. In
Judge Wallace’s view, the judgment “whether ‘the affirmative duty
12
preserve a particular racial balance is simply not before
this Court on review of the judgment or opinion below,
whatever one might reasonably have read into the oral
remark of the district court concerning its original order.
Summary of Argument
I
Neither the district court’s original judgment on rem
edy in this case, nor its 1974 denial of the relief sought
by Petitioners, may properly be construed as requiring
“ racial balance” or quotas. The decrees were based upon
the trial court’s accurate assessment of the facts and
circumstances about the de jure segregated Pasadena
school system which were pertinent to the fashioning of a
feasible remedy that achieved “ the greatest possible degree
of actual desegregation,” Swarm v. Charlotte-Mecklenbwrg
Bd. o f Educ., supra.
II
Petitioners failed in the trial court to1 present evidence
which would justify either termination of this lawsuit
or modification of the original remedial decree. Sound
to desegregate had been accomplished and racial discrimination
through official action is eliminated from the system” requires a
district court to determine, whenever modification of a school de
segregation plan is sought, “whether the segregation foreseeable
upon dissolution of the injunction is attributable to intentionally
segregative actions of the school district.” 519 F.2d, at 444. As
Judge Wallace’s opinion intimates, this result would transform
every modification hearing into a search for a new constitutional
violation. 519 F.2d, at 445-46, text at notes 9 and 10. Compare
Morgan V. Kerrigan, No. 75-1184 (1st Cir. January 14, 1976),
slip op. at pp. 23-28. But this Court has made clear that district
courts’ continuing remedial jurisdiction does not depend upon a
showing of independent violations. Wright V. Council of the City
of Emporia, supra; United States v. Scotland Neck City Bd. of
Educ., supra; Raney v. Board of Educ., supra.
13
principles of equity jurisdiction, as well as the Constitu
tional principles respecting school desegregation which
have been enunciated by this Court, support and would
require the district court to maintain its supervision of
this case. In particular, the court acted properly in re
fusing to permit the adoption of a pupil assignment plan
whose foreseeable result was a return to segregation.
I ll
The judgment below should be upheld in order to avoid
encouraging the invention of new schemes to frustrate
the mandates of the Fourteenth Amendment.
ARGUMENT
I
The Remedial Standards Embodied In The District
Court’s 1970 Order Are Proper Under Swann And The
Fourteenth Amendment.
Petitioners insist that this Court is “ obliged to re
verse” the judgment below, either because the district
court’s order was “ invalid ab initio” in 1970, or because
its denial of Petitioners’ motion to modify the order
was similarly void. (Pet. Br., pp. 13, 14.) The basis
for these conclusions is Petitioners’ contention that the
1970 order mandates a “ rigid racial balance” in Pasa
dena’s schools which is proscribed by this Court’s de
cision in Swann v. Charlotte-Mecklenburg Bd. of Educ.,
supra. But, as an understanding of the actual rulings
below shows (see Statement, supra), the case cannot
be dealt with so simply. Petitioners’ arguments would
exalt semantic form over Constitutional substance.
The 1970 decree contained, on its face, a limitation
as to the sort of pupil assignment plan which the dis
trict court considered acceptable to meet Petitioners’
Constitutional obligations:
14
The plan shall Include procedures to be followed and
goals to be attained in connection with the location
and construction of facilities, both permanent and
transportable:, that will reduce racial segregation in
the District. The plan shall provide for student as
signments in such a manner that, by or before the
beginning of the school year that commences in Sep
tember of 1970 there shall be no school in the Dis
trict, elementary or junior high school or senior high
school, with a majority of any minority students,
311 F. Supp., at 505; A. 3-4. This language was not
a directive requiring racial balance.
The true nature of the order was aptly characterized
by the United States in its Brief Amicus Curiae in
Swann. There the government cited the present case
with approval, in the course of a discussion which argued
that Judge McMillian’s orders in the Swann case did
in fact go too far in the direction of racial balance:16 17
[T]he standard of no predominantly Negro schools
has been used as a means of translating into reme
dial terms a finding, in view of available alterna
tives, of the extent to which racial concentration
could feasibly be eliminated.[17] See, e.g., Spangler
and United States v. Pasadena City Board of Edn-
cation, unreported order entered on findings and
conclusions reported at 311 F. Supp. 501 (C.D.
Calif.). Such an articulation of remedial obliga
tions cannot be read in the unyielding [racial bal
ance] terms suggested by the plaintiffs-petitioners.
. . . Insofar as such remedial expressions are made
on the basis of a record and findings on “ the avail
ability to the board of other more promising courses
16 This Court disagreed with the government’s characterization
of the Swann orders. See text infra, at note 19.
17 In this case, the district court had heard testimony concerning
viable desegregation measures before it fashioned its remedial
decree. See 311 F. Supp., at 513 f[ 28; A. 111.
15
of action,” 391 U.S. 439, they represent no departure
in constitutional principle from Green, which di
rected district courts to assess proposed plans “ in
light of any alternatives which may be shown as
feasible and more promising in their effectiveness.”
Ibid.
(Brief for the United States as Amicus Curiae, Swann
v. Charlotte-MecJclenburg Bd. of Educ., O.T. 1970, No.
281, at pp. 21-22). A district court order embodying
a similar limitation upon desegregation plans in a school
system in which no minority race constituted 50% of
the district’s pupil enrollment was approved in Kelly
V. Guinn, supra, 456 F.2d, at 110: “ The 50 per cent
figure is a ceiling for black enrollment imposed for the
purpose of compelling a real beginning toward eliminat
ing the effects of past segregative practices.” 18
The 1970 decree in this case also compares favorably
with Swann in the flexibility it accorded the school
board. At the time the remedial decree was fashioned,
each school system was about 30% Black (although Pasa
dena had a larger proportion of Chicano and Asian
students than Charlotte). (See 402 U.S., at 6; A. 440.)
Judge McMillan directed in the Charlotte case that “ ef
forts should be made to reach a 71-29 ratio in the var
ious schools. . . .” 402 U.S., at 10 n. 4. The plan drawn
by the court’s consultant pursuant to these directions
resulted in school racial compositions varying from 9%
to 38% Black, id., at 9— or from 20 percentage points
below the system-wide average to 9 points above it. This
18 In school districts of different racial composition, the “ start
ing point,” Swann, swpra, 402 U.S., at 25, is of course different, and
a 50% limitation would be inappropriate. Cf. Wright v. Council
of the City of Emporia, supra; United States V. Scotland Neck
City Bd. of Educ., supra. The opinions of the courts below do not
suggest otherwise.
16
Court held there had been no deviation from accept
able remedial principles.19
In contrast, the 1970 decree in the Pasadena case
permitted variations in racial composition from 0%
Black to 50% Black— or from 30 percentage points
below the system-wide ratio to almost 20 percentage
points above it.20 The real reason that the “ Pasadena
Plan” resulted in enrollments with a far smaller variance
(e.g., A. 439-47) was the school board’s choice, in fash
ioning a plan to meet the court’s guideline, to preserve
“ neighborhood elementary schools” for all pupils through
a combination of grade restructuring, pairing, and satel
lite zoning (A. 9 ) .21
Recalling again the fact that the district court in
this case had heard testimony about feasible desegrega
tion plans for the school district, and the description
of the order as a shorthand “ finding, in view of avail
able alternatives, of the extent to which racial concen
tration could feasibly be eliminated,” we see that no
particular degree of racial balance was mandated there
in. Rather, the order was akin to those entered by ap
19 “ Awareness of the racial composition of the whole school sys
tem is likely to be a useful starting point in shaping a remedy to
correct past constitutional violations. In sum, the very limited use
made of mathematical ratios was within the equitable remedial dis
cretion of the District Court.” 402 U.S., at 25.
20 Cf. Kelly v. Guinn, supra, 456 F.2d, at 110: “ The court did
not impose a fixed racial ratio upon classes in the school system—
some classes might have 45 per cent black students, some 15 per
cent, some none.”
21 The dissenting judge in the Court o f Appeals did not find the
1970 decree to establish impermissible racial quotas, but rather the
district court’s 1974 interpretation of the decree: “ So interpreted,
the injunction transforms racial balance from a means of remedy
ing de jure segregation into an end in itself, precisely contrary
to the principles expressed by the Supreme Court.” 519 F.2d, at
443. This interpretation of the decree was also expressly disap
proved by the majority. See text at note 15, supra.
17
pellate courts in school desegregation cases, affording
school boards another opportunity to submit Constitu
tionally acceptable plans but requiring that district
courts approve those plans only if they achieve at least
as much desegregation as promised by plans of record,
since
[t]he district judge or school authorities should
make every effort to achieve the greatest possible
degree of actual desegregation. . . . [Sivann, supra,
402 U.S., at 26]
E.g., Pate v. Dade County School Bd., 434 F.2d 1151
(5th Cir. 1970) ; Ross v. Eckels, 434 F.2d 1140 (5th
Cir. 1970) ; cf. Adams v. School Dist. No. 5, 444 F.2d
99 (4th Cir. 1971). Contrary to Petitioners’ assertion
(Pet. Br., p. 12), therefore, the 1970 decree of the
district court did not constitute a mandate for “racial
balance.”
The same is true of the district court’s 1974 action
declining to modify the decree. As in 1970, the Court’s
decision represented a judgment about the feasibility of
compliance with the decree22 and the necessity for an
explicit remedial standard to guide Petitioners’ actions.23
Just as the district court did not require an arbitrary
racial balance in fashioning its 1970 decree, neither did
it do so when it left that decree intact in 1974; signi
ficantly, the court was not presented with a choice
between alternative formulations each of which would
insure nondiscriminatory operation of the Pasadena
schools. The choice was between the court’s original
decree and a plan which, as we argue below, the court
properly found would result in the reestablishment of
22 375 F. Supp., at 1307, n. 11; A. 456.
23 3 7 5 F. Supp., at 1309; A. 459. ( “ Modification would . . . leave
the Board to its own devices. . . .” )
18
racially identifiable schools.24 The district court’s re
jection of this preferred resegregation alternative no more
demonstrates a commitment to “ rigid, racial balance” than
do court decisions, requiring that substantially dispropor
tionate, racially identifiable schools must be desegregated
to eliminate the dual system. See, e.g., Medley v. School
Bd. of Danville, 482 F.2d 1061, 1062 (4th Cir. 1973), cert,
denied, 414 U.S. 1172 (1974) ; Wheeler v. Durham County
Bd. of Educ., 521 F.2d 1136, 1140 (4th Cir. 1975) ; Acree
v. County Bd. of Educ., 458 F.2d 486 (5th Cir.), cert,
denied, 409 U.S. 1006 (1972) ; cf. Drummond v. Acree,
409 U.S. 1228 (1972) (Powell, J .). The judgment below
is not improper on this ground.
II
The District Court Properly Maintained Its Remedial
Jurisdiction Over Petitioners To Insure Constitutional
Compliance.
A. The Court Correctly Treated Petitioners’ 1974 Mo
tion In Accordance With Traditional Equitable Prin
ciples Governing The Modification Of Injunctions.
As this Court said in Sxvann, “ a school desegregation
case does not differ fundamentally from other cases in
volving the framing of equitable remedies to repair the
denial of a constitutional right.” 402 U.S., at 15-16.
See also, Millken v. Bradley, supra, 418 U.S., at 753
(Stewart, J., concurring). It was entirely appropriate,
therefore, for the district court to weigh Petitioners’
1974 motions in light of traditional principles of equity
jurisprudence. That court had “wide discretion” in con
sidering Petitioners’ motion to modify. System Federa
tion No. 91 v. Wright, 364 U.S. 642, 648 (1961). Since
the object of its decree was not “ merely “ so far as pos
sible [to] eliminate the discriminatory effects of the
'M See pp. 21-22 infra.
19
past” but also to “ bar like discrimination in the future,”
Louisiana v. United Stales, 380 U.S. 145, 154 (1965),
the district court properly inquired whether conditions
had so changed as to remove the basis upon which its
original decree was entered, United States v. Swift &
Co., 286 U.S. 106 (1932), and also whether “ there
exist[ed] some cognizable danger of recurrent violation”
if its injunction were lifted, United States v. W. T.
Grant Co., 345 U.S. 629, 633 (1953).25 On both counts
its decision was manifestly correct, properly affirmed
below, and should not be overturned by this Court.
First, the district court held that Petitioners had
made no showing of changed conditions sufficient to jus
tify either dismissal of the case or modification of the
injunction. The Court of Appeals agreed, 519 F.2d, at
434-35, and we do not read Petitioners’ Brief to contest
these rulings.23 Second, the trial court also held that 26
26 375 F. Supp., at 1306, 1309; A. 454, 459.
36 The Petitioners’ motion said that “ [d]ue to changing- circum
stances within the City of Pasadena, the Board is obliged to seek
modification” (A. 233), and Board President Marcheschi averred
that it was “ a practical impossibility to continue to comply” with
the order (A. 237). The trial court rejected these contentions of
infeasibility, 375 F. Supp., at 1307 n. 11; A. 456, and Petitioners
have argued to1 this Court only that compliance “would necessarily
require even a higher rate of forced busing” (Pet. Br., p. 12).
There is absolutely no showing, however, that in this small district
such busing would “ either risk the health of the children or sig
nificantly impinge on the educational process,” Swann, supra, 402
U.S., at 30-31. Indeed, there is no record evidence of the extent of
such increase, if any.
Petitioners, also sought modification on the ground that future
changes would make the Pasadena Plan unworkable. The Super
intendent’s affidavit noted the pattern of increasingly large Black
student enrollments at a growing number of schools, and continued:
I f the present trend is allowed to continue, within the frame
work of the existing Plan, it will become a practical impossi
bility to comply. . . . [A. 236 (emphasis supplied) ]
But it is settled that predictions of “white flight” will not excuse
a school board from performance of its Constitutional obligations.
20
granting Petitioners’ motion would “ in effect, leave the
Board to its own devices” and, in the context of this
case, invite the instant reestablishment of racially iden
tifiable schools in Pasadena, 375 F. Supp., at 1307, 1309;
A. 455, 459. These findings also were affirmed by the
Court of Appeals, 519 F. 2d., at 434-35.27 It is not
entirely clear whether Petitioners challenge this judg
ment here, because their arguments on the subject are
entwined with their contention that a “ unitary system”
was created in Pasadena when the 1970 decree was first
implemented, which deprived the district court of juris
diction to continue that decree in effect. In any event,
the findings are amply supported on the record:
1. The Alternative Plan. I f the district court had
retained jurisdiction but granted Petitioners’ motion to
E.g., Monroe v. Board of Comm’rs, supra; United States V. Scot
land Neck City Bd. of Educ., supra; Morgan v. Kerrigan, supra,
slip op. at pp. 29-30. And, although Petitioners also attempted to
rationalize their request by demonstrating that the original decree
had become “ an instrument of wrong,” Lubben V. Selective Service
System Board No. 27, 453 F.2d 645, 651 (2d Cir. 1972), because it
prompted “white flight” and lowered educational achievement, this
effort, too, failed. The record contains specific contrary evidence
{e.g., A. 341-46, 356-75, 386-94, 530-66) ; the district court credited
that evidence (375 F. Supp., at 1306, 1308; A. 454, 458); the
Court of Appeals upheld the trial judge’s findings (519 F.2d, at
435-36) without stated disagreement by the dissenting judge; and
Petitioners have apparently forsaken these claims here.
127 Judge Wallace, dissenting, did not disagree with the predic
tion that the alternative plan favored by Petitioners would result
in resegregation. He would have remanded in order that the dis
trict court determine “whether the segregation foreseeable upon
dissolution of the injunction is attributable to intentionally segre
gative actions of the school district.” 519 F.2d, at 444 (emphasis
supplied). As we have previously stated, n. 15 supra, this approach
confuses the liability and remedy stages of a case. See Kelly v.
Guinn, supra, 456 F.2d, at 109-10; cf. Wright V. Emporia, supra.
In addition, we submit that it is far more likely to lead to pro
longed, complex, and ultimately futile litigation in these cases than
the standards applied by the majority below. See Morgan v. Kerri
gan, supra, slip op. at pp. 23-28.
21
implement the “ Integrated Zone/Educational Alternatives
Plan” (A. 239-45), it would be leaving the racial com
position of Pasadena’s elementary school student bodies
to the individual choices of the district’s parents. The
plan itself admitted that “ the ethnic balance at some
sites may be altered” from that eifectuated by the 1970
decree. Indeed, it made provision for “half-day-a-week
pairing” of substantially disproportionate schools (A.
241). The evidence at the hearing indicated the marked
changes which could be expected to occur. These were
summarized with considerable understatement in the
district court’s opinion as resulting in eight schools
“ over 60 per cent black [in] enrollment,” 28 leading Pe
titioners to charge that the district court’s only objec
tion to their proposal was that it “would not maintain
the racial balance quotas that the trial court had es
tablished through the original plan.” (Pet. Br., at p. 21.)
Although there were no projections of expected en
rollments under the plan (A. 485-85, 492), as drafted
it gave priority to students living within the “ neighbor
hood” of a school (A. 479).29 And if choices followed
“ neighborhoods,” the evidence indicated that many ele
mentary schools would be more than 75% and 85%
Black, and others less than 5% Black (A. 329).30 In
sum, the Pasadena schools would mirror their pre-1970
28 375 F. Supp., at 1307 n. 9; A. 455. All these schools were
racially identifiable Black schools prior to the entry o f the 1970
decree. See A. 141-45.
29 As explained by the Board President, the alternative plan also
gave “ equal” priority “ to children whose race is in the minority
in that particular school” (A. 479). However, there was no
mechanism for choosing among these competing, equal priorities
(A. 487), and it is undisputed that in Pasadena, as elsewhere,
white students have never voluntarily enrolled in significant num
bers in formerly Black facilities ( see A. 167-72, 193-200, 217-31).
30 Cf. A. 510-11 (summer program “ free choice” enrollments).
22
condition (A. 141-45).31 The Board President very
frankly told the district court:
Your Honor, i f I may, I agree with the court that
if it had been the intent of the board or I as the
primary conceiver of the modified plan to come be
fore the court and allege with certainty that the
modified plan would result in a school district with
no schools having a majority of a minority race or
a school district in which there might not be any
racially identifiable schools, your Honor, I agree with
you that we would be asking you to buy a pig in a
poke. At the risk of being presumptuous, I consider
myself to be too good a salesman to come before the
court and attempt to persuade it from that poor
position.
(A. 503) (emphasis supplied.)
2. Relinquishing jurisdiction. The district court cor
rectly foresaw even more serious consequences if it
were to relinquish jurisdiction. At the least, the court
could anticipate the immediate implementation of the
plan attached to Petitioners’ motion, which it had con
cluded would not satisfy the Board’s Constitutional ob
ligations. Furthermore, it was reasonable for the court
to assume that a more rigid application of “ neighbor
hood” zoning might be instituted. The majority of the
present membership of the Board of Education had
campaigned on promises to “ return to neighborhood
31 As a unanimous First Circuit recently said in affirming a dis
trict court’s rejection of a similar “ desegregation” plan submitted
by the Boston School Committee,
. . . we must agree with the district court that schools offering
programmatic alternatives, while a useful supplement to an
otherwise adequate desegregation plan, could not realistically
sustain the burden of achieving desegregation o f the Boston
city schools.
Morgan V. Kerrigan, No. 75-1184 (1st Cir., January 14, 1976),
slip op. at pp. 11-12.
23
schools” and “ end forced busing” (e.g., A. 285), and
was anxious to make good on these commitments (see,
e.g., A. 502).32
The court had earlier found that previous school
boards’ discriminatory adherence to their conceptions of
“ neighborhood schools” and “ free choice” transfers were
factors in the maintenance and aggravation of Pasa
dena’s school segregation;33 Cf. Swann, supra, 402 U.S.
at 21; Green, supra. Moreover, there was also evidence
of violations of the 1970 decree in the selection and ap
pointment of principals and other administrative staff
(see A. 264-65, 317-21, 514-18, 606-07; cf. A. 268). Al
though the district court made no direct reference to
this evidence in its opinion or order denying the Peti
tioners’ 1974 motions, in a subsequent proceeding (now
before the Court of Appeals for review34) the district
court ruled that Petitioners had violated the order and
thus failed to carry out their affirmative Constitutional
duty to overcome the prior deliberate faculty and ad
32 Contrary to Petitioners’ arguments, the denial of the motion
to modify or dissolve the 1970 decree hardly means that “ Judge
Real wants the board also to abstain from speaking out against
forced busing and holds that its failure to do so amounts to con
tinuing segregation” (Pet. Br., p. 19). No injunction restricting
the Board members’ expression o f their views has been entered.
The Board members have, quite properly, been enjoined from
acting upon their views in a manner which would perpetuate or
reinstitute the unconstitutional dual school system which existed in
Pasadena prior to the court’s 1970 decree. And the district court
correctly took the school board members’ views into account in
estimating the “ cognizable danger o f recurrent violations,” United
States V. W. T. Grant Co., supra, i f it relinquished its jurisdic
tion. The sole Black member of the board stated in an affidavit “ that
it is the intention and design of the majority of the Board to have
a negative impact upon integration in the Pasadena Unified School
District and that it is their ultimate intention to seek a return to
segregated schools in this school district” (A. 267).
33 311 F. Supp., at 504, 521; A. 98, 127.
3* 9th Cir. No. 74-2530.
24
ministrative segregation in the district.33 * 35 The court could
properly consider this evidence as well in making its
determination as to the appropriateness of continuing
jurisdiction.
Thus, unless school desegregation cases are markedly
unlike other suits in equity, there was abundant justifi
cation for the district court’s denial, in this instance, of
Petitioners’ 1974 motions. While phrases such as “ end
in g ] . . . judicial control o f the Pasadena educational
system,” and “ relieving Petitioners] of the trial court’s
yoke” beg attention, in view of the strong tradition of
“ local control over the operation of schools,” Milliken v.
Bradley, supra, 418 U.S., at 741, these words have little
application to the choice presented the district court in
this case: between retaining jurisdiction or permitting
the reinstatement of segregation.
B. Petitioners Did Not Establish “Unitary Status.”
In Swann, supra, 402 U.S., at 31, this court said:
At some point, these school authorities and others
like them should have achieved full compliance with
this Court’s decision in Brown I. The systems will
then be “ unitary” in the sense required by our deci
sions in Green and Alexander, [emphasis supplied]
Petitioners extract from this language the propositions
that their school system became “ unitary” the moment
the 1970 decree of the district court was implemented,
and that the trial court thereby was deprived of any
further jurisdiction in the case. See Pet. Br., pp. 14-15.
This thesis is unsupported and unpersuasive.
33 “ Thus, under the guise of making ‘temporary’ administrative
appointments of a continuing nature, the Board could ‘perma
nently’ frustrate the aims of the Plan relating to the hiring of
minority administrators. Constitutionally, this court cannot and
will not abide the transparency of such an action.” Spangler v.
Pasadena City Bd. of Educ., Civ. No. 68-1438-R (C.D. Cal., August
12, 1974), at p. 6.
25
1. Initial implementation of the 1970 decree did not
convert Pasadena into a unitary system. There is no
question that, as to pupil assignments, the plan approved
in 1970 promised— if successfully implemented and main
tained for a period of time sufficient to eliminate the
continuing effects of the prior discrimination— to effect
a unitary school system in Pasadena. Petitioners err,
however, in their contention that because the new assign
ments were instituted “ in one fell swoop,” their system
immediately became unitary.36 (See Pet. Br., p. 14.)
For it is settled that desegregation plans satisfy the
Constitution only when they work in practice, and not
merely in theory. Green v. County School Bd. of New
Kent County, supra. Indeed, this Court’s instruction that
district courts “ should retain jurisdiction in school seg
regation cases to insure . . . that the goal of a desegre
gated, non-racially operated school system is rapidly and
finally achieved,” Raney v. Board of Educ., supra, 491
U.S., at 449, and the language from Swann quoted above,
both clearly indicate that conversion to a unitary system
can be judged only over time. This has been the consist
ent holding of the federal courts which have decided
the issue.
For example, desegregation decrees which at first ap
peared satisfactory have been reopened and altered when
projected results have not materialized over time. E.g.,
Hereford v. Huntsville Bd. of Educ., 504 F.2d 857, 858
(5th Cir. 1974), cert, denied, 421 U.S. 913 (1975):
We view this case as presenting no more: than a
motion in the district court for further relief in a
typical school desegregation case where modification
is indicated because of lack of success.
36 Petitioners also err in their assumption that Pasadena’s imple
mentation schedule was unique. Rather, complete desegregation
has been the standard since this Court’s decisions in Alexander V.
Holmes County Bd. of Educ., supra and Carter v. West Feliciana
Parish School Bd., supra.
26
Accord, Ellis V . Board of Public Instruction, 465 F.2d
878 (5th Cir. 1972), cert, denied, 419 U.S. 966 (1973);
Boykins v. Fairfield Bd. of Ednc., 457 F.2d 1091 (5th
Cir. 1972); Dowell v. Board of Educ., 465 F.2d 1012
(10th Cir.), cert, denied, 409 U.S. 1041 (1972); Boyd
V . Pointe Coupee Parish School Bd., 505 F.2d 632 (5th
Cir. 1974), rev’g 332 F. Supp. 994 (E.D. La. 1971);
Swann v. Charlotte-Mecklenburg Bd. of Educ., 453 F.2d
1377 (4th Cir. 1972), aff’g 328 F. Supp. 1346 (W.D.
N.C. 1971). The Fifth Circuit has required that juris
diction be retained, with regular reporting to the court,
for a period of at least, three years, at which time a
determination of unitary status may be appropriate.37
Wright v. Board of Public Instruction, 445 F.2d 1397
(5th Cir. 1971) ; Youngblood v. Board of Public Instruc
tion, 448 F.2d 770 (5th Cir. 1971); United States v.
Texas, 509 F.2d 192 (5th Cir. 1975).
2. The district court py’operly determined that Pasa-
dena was not “unitary” at the time of its 1974 motions.
Petitioners’ attack on the judgment below centers on the
lower courts’ conclusion that Pasadena had not been trans
formed, by the time of the hearings before the district
court, into a “ unitary school system.” This is the central
issue in the case, for as the majority opinion below notes,
37 Even then, cases are not dismissed but placed on the inactive
docket subject to being- reopened for cause. See, e.g., United States
V. Hinds County School Bd., No. 28030 (5th Cir., January 9, 1974);
A. 247-57. Thus, even “ unitary” status would give Petitioners
no license to take deliberate steps foreseeably leading to resegrega
tion. See Keyes v. School Dist. No. 1, Denver, supra; Hart v. Com
munity School Bd., 512 F.2d 37, 50 (2d Cir. 1975) ; Morgan V.
Kerrigan, 509 F.2d 580, 592 (1st Cir. 1974), cert, denied, 421 U.S.
963 (1975); Berry v. Benton Harbor School Dist., 505 F.2d 238, 243
(6th Cir. 1974); Oliver v. Michigan State Bd. of Educ., 508 P\2d
178, 182 (6th Cir. 1974), cert, denied, 421 U.S. 963 (1975); United
States V. School Dist. of Omaha, 521 F.2d 530, 535-36 (8th Cir.),
cert, denied, 44 U.S.L.W. 3280 (November 11, 1975); text at pp.
31-33, infra.
27
“ the question, of when and under what circumstances a
school district may compel a federal district court to
relinquish jurisdiction and end its supervision has not
yet been directly addressed by any Court of Appeals or
by the United States Supreme Court.” 519 F.2d, at 431
n. 1. In our view, the courts below were correct in con
cluding that Petitioners had not completed the transition
to unitary status at the time of the district court’s rul
ing; thus, this case may not present an appropriate
vehicle for answering that question.
Petitioners argue that jurisdiction (or its effective
complement, authority to review school assignments)
must be surrendered at the moment when a system be
comes “ unitary.” We agree that the existence of a “ uni
tary system” is a necessary prerequisite to either dis
missal of a school desegregation case or to placement on
the inactive docket. However, we submit, that condition
is achieved only when a district court is satisfied that
racial discrimination has been eliminated “ root and
branch,” Green, supra, 391 U.S., at 438; a school board
seeking dismissal or inactive status must demonstrate
more than grudging compliance with a remedial decree.
Just as “ [tjhere is no universal answer to complex
problems of desegregation,” Green, supra, 391 U.S., at
439, so there is no simple formula for determining when
a school system has become “unitary.” 38 As with other
critical decisions in the course of school litigation, this
Court must “ rely to a large extent . . . on the informed
judgment of the district courts in the first instance . . . .”
Swann, supra, 402 U.S., at 28. Obviously, the district
courts, closest to the litigation, are in the best position
to weigh all relevant facts and to determine whether all
vestiges of discrimination have been eliminated. This
Court should not lightly overturn a trial court’s decision
to maintain further supervision in order to complete
88 In Swann, the parties agreed that “ unitary” status had not
been achieved. 402 U.S., at 7.
28
that task, nor counsel undue haste in ending judicial
oversight; it may take more than a year or two to undo
the results of decades of segregatory practices,™
In this case, there was no infirmity in the district
court’s ruling. Petitioners do not fairly characterize ei
ther the evidence presented to the court or the basis for
the ruling when they focus only upon deviations from
the “ no majority of any minority” standard and their
own, well-publicized commitment to changing Pasadena’s
pupil assignment plan (Pet. Br., pp. 16-20). The district
court properly could and did consider a variety of fac
tors before concluding that Pasadena was not “ unitary.”
Any determination that a school system previously
segregated by law or by official act has become “ unitary”
must, at a minimum, be based upon a finding that there
has been compliance with remedial judicial decrees. But,
as we have argued, Constitutional sufficiency is achieved
only when there has been, in addition, compliance with
a plan that has proved effective to eliminate the ves
tiges of segregation." Thus, irrespective of whether the
“no majority of any minority” provision required literal
compliance annually, or stated an overall objective that
was feasible, the district court acted responsibly in exam
ining the pattern of school enrollments which had devel
oped by 1974. This scrutiny indicated a trend towards
reestablishment of racially identifiable schools about
which the district court was naturally concerned,39 40 41 for
39 In this case, for example, the district court found official action
contributing to segregation which dated back to the construction
of the Cleveland Elementary School in 1934. (311 F. Supp., at 517;
A. 120.)
40 See pp. 25-26 supra.
41 Petitioners argue that demographic changes caused only minor
shifts from the results anticipated in 1970, and that such shifts
did not “ destro[y] the unitary nature of the system created in
1970.” (Pet. Br., p. 18.) It is evident, however, that the issue
before the district court was whether its decree, as effectuated, had
created a unitary system.
29
rapid resegregation certainly indicated ineffectiveness in
either the design or execution of the court’s decree.
Petitioners also misconstrue the district court’s dis
cussion of their vocal opposition to “ forced busing” (375
P. Supp., at 1305-06; A. 453). The district court did
not hold that Petitioners’ “ failure [“ to abstain from
speaking out against forced busing” ] amounts to con
tinuing segregation” (Pet. Br., p. 19). Rather, the
court examined Petitioners’ statements and conduct in
an attempt to assess whether realistic efforts had been
made to implement the decree,42 and what would be the
effect of the free choice alternative submitted in 1974.
A. school system that purported to make nonracial
decisions only reluctantly and under the pressure of a
mandatory injunction from 1970 to 1974, and which
stood ready to resume at best ineffective and at worst
unlawful ways as soon as restraints were lifted, could
hardly be said to be “ unitary,” for we reiterate that
the court’s obligation was to “bar like discrimination in
the future.” Louisiana v. United States, supra.
The district court was also presented with other evi
dence directly relevant to the determination of “unitary”
or “ nonunitary” status. It knew that Petitioners had
failed to follow the procedures established in their plan,
approved in its 1970 decree, requiring affirmative action
in the hiring and promotion of administrators to over
come prior discrimination.43 It was simultaneously pre
sented with a new pupil assignment scheme which it
was informed Petitioners would implement, if permitted,
and which would reestablish racially identifiable schools
4:2 The district court commented: “ No one can now estimate the
possible results of the Pasadena Plan had it enjoyed the continued
support of a Board who would act, as they profess, to ‘do unto
others as you would have done unto you.’ ” 375 F. Supp., at 1308;
A. 458.
43 See pp. 23-24, supra.
30
in Pasadena through “ free choice” devices which had
not, in the past, demonstrated any integrative potential
in Pasadena.44 These facts were reflective of the school
board’s attitude toward desegregation, and were indica
tive of whether a “ unitary system” had been established.
For, as this Court observed in Keyes, supra, 413 U.S.,
at 196, with respect to individual schools:
What is or is not a segregated school [system] will
necessarily depend on the facts of each particular
case. In addition to the racial and ethnic composi
tion of [the] school [s’ ] student bod[ies], other fac
tors, such as the racial and ethnic composition of
faculty and staff and the community and adminis
tration attitudes toward the school [s], must be taken
into consideration.
Taking all of the circumstances into account, it is
difficult to find fault with the district court’s conclusion
that
. . . I think from the evidence presented to me I
still find some vestiges that would indicate that the
Board has not completely made this School District
a unitary school district.
(Oral Opinion of district court, quoted at 519 F.2d, at
444 n. 7). As the majority below stated,
On the specific facts of this case as revealed from
the record and reiterated supra, it was reasonable
for the District Court to conclude that full and ef
fective elimination of racial discrimination had not
been achieved during the three school years follow
ing the initial year in which the Pasadena plan was
in effect. [519 F.2d, at 437.]
An instructive contrast to this case is the recent order
entered by Judge McMillan in the Swann case, closing
the record and placing the case on inactive status. Judge
McMillan found:
44 See pp. 20-22 supra.
31
Since early 1974, the case has been quiet. No new
or old issues have been raised by the litigants or
decided by the court. The new Board has taken a
more positive attitude toward desegregation and has
at last openly supported affirmative action to cope
with recurrent racial problems in pupil assignment.
Though continuing problems remain, as hangovers
from previous active discrimination, defendants are
actively and intelligently addressing; these problems
without court intervention. It is time, in the tenor
of the previous order, to be “ closing the suit as an
active matter of litigation . . . .”
Dismissal is neither usual nor correct in a case like
this where continuing injunctive or mandatory re
lief has been required. Facts and issues once de
cided on their merits ought, generally, to remain
decided. This case contains many orders of continu
ing effect, and could be re-opened upon proper show
ing that, those orders are not being observed. The
court does not anticipate any action by the defend
ants to justify a re-opening; does not anticipate any
motion by plaintiffs to re-open; and does not intend
lightly to grant any such motion if made. This order
intends therefore to close the file; to leave the con
stitutional operation of the schools to the Board,
wdiich assumed that burden after the latest election;
and to express again a deep appreciation to the
Board members, community leaders, school adminis
trators, teachers and parents who have made it pos
sible to end this litigation.
Swann v. Charlotte-Mecklenburg Bd. of Educ., Civ. No.
1974 (W.D.N.C., July 11, 1975).
3. The district court was right in refusing to permit
implementation of Petitioners’ alternative plan, even if
Petitioners would otherwise have been entitled to have the
case placed on inactive status. Even if the district court
had been, of the view that Petitioners’ actions from. 1970
to 1974, and the results, thereof, were sufficient to suggest
that a “ unitary school system” was nearly achieved, so
82
that the lawsuit might be removed from the active docket
(see note 26 supra), it does not follow that the court was
without authority to prevent Petitioners from implement
ing their alternative plan. It is one thing to say that
[n] either school authorities nor district courts are
constitutionally required to make year-by-year ad
justments of the racial composition of student bodies
once the affirmative duty to desegregate has been
accomplished and racial discrimination through offi
cial action is eliminated from the system
(Swann, supra, 402 U.S., at 31-32), and quite another
to insist that a school district which was deliberately seg
regated by official action may, after initial implementa
tion of an adequate desegregation decree, choose to return
to a. pupil assignment technique which is ineffective to
prevent segregation and pursuant to which schools would
reassume the racial identities they had under the dual
system.
The posture of this case in the district court was not
an unusual one. School districts have frequently sought
to reinstitute discriminatory assignment methods after a
brief flirtation with a Constitutional plan. E.g., Lemon
V. Bossier Parish School Bd., 444 F.2d 1400, 446 F.2d 911
(5th Cir. 1971). See also, Wright V. Council of the City
of Emporia, supra.45 In these instances, federal courts
45 Except for the timing and the particular “ unitary system”
claim made by Petitioners, this case bears a remarkable resem
blance to Emporia. Each involves a new assignment plan sought
to be justified on educational grounds in the district court; each
involves a claim that “white flight” necessitated the change; each
involves a district court judgment about the substantiality of en
rollment ratio variances within a school district under a duty to
desegregate; and in each there is other evidence bearing on the
permissibility o f the change. And even as to timing, the cases are
more similar than different because it is clear from the record in
this action that Petitioners’ proposal (or one more blatantly segre
gative, see A. 422-34, 479-84) would have been presented to the
district court in 1971 had the recall election succeeded (see A.
272-81).
33
have determined whether the new proposals “hinde{r;] or
furthe[r] the process of school desegregation. If the pro
posal would impede the dismantling of the dual system,
then a district court, in the exercise of its discretion, may
enjoin it from, being carried out.” Wright, supra, 407
U.S., at 460. Cf. United States v. Scotland Neck City Bd.
of Educ., supra.
These standards are applicable to the instant case. Even
if the district court had placed this matter on the inactive
docket in 1974, the plaintiffs would have been entitled to
reopen in order to prevent implementation of the Peti
tioners’ alternative plan, unless Petitioners could make a
better showing than they did below of the plan’s potential
for avoiding reimposition of the dual system. It simply
confounds common sense to suggest that the elimination
of racial discrimination is totally completed on a given
day, and that new and segregative assignment methods
must thereafter be judged without reference to the prior
Constitutional violation. Cf. Keyes v. School Dist. No. 1,
Denver, supra,
Finally, Petitioners argue that the trial court invalidly
rejected “ an educational decision by the Pasadena School
Board” (Pet, Br., p. 23). However, the record indicates,
and the district court found,46 that the educational innova
tions. contained in Petitioners’ alternative plan could, and
already were, being offered within the framework of the
1970 decree. But whatever the considrations advanced by
Petitioners, the district court acted correctly in preventing
deliberate action which would foreseeably have increased
segregation and threatened the existence of a “ unitary”
school system. See Keyes, supra; Wright, supra; cases
cited in note 37 supra; cf. Gilmore v. City of Montgomery,
417 U.S. 556 (1974).
« See A. 511-13, 526-29; 375 F. Supp., at 1308, A. 457.
34
III
Reversal of the Judgment Below Would Encourage New
Schem es To Evade or Frustrate The Mandate Of the
Fourteenth Amendment.
We have argued above that the judgments, of the dis
trict court and the Court of Appeals in this case are con
sistent with the school desegregation cases, previously
decided by this Court. Amici also feel constrained, based
on their long and intimate familiarity with the course of
school desegregation efforts in this country,47 to address
the broader effects to be anticipated from, a decision by
this Court in Petitioners’ favor. For such a decision
would have ramifications beyond the narrow facts of the
instant case.
Amici believe that reversal of the judgments of the
courts below will inevitably encourage— and even resus
citate— efforts to subvert school desegregation decrees.
Regrettably, these renewed efforts will come just at the
point when these decrees have, by virtue of perseverance,
begun to offer the promise of altering the ingrained dis
criminatory habits of the past. Whatever the explicit
reasoning of an opinion that fails to sustain the result
below, a reversal will be perceived by those who have
never accepted Constitutional authority as a signal that
affirmative Constitutional obligations need be grudgingly
satisfied for a brief period of years only, before return
ing to a system of segregated education. And, to para
phrase this Court’s opinion in Swann, the future will
bring renewed “ deliberate resistance of some to the
Court’s mandates” and “ fresh evidence of the dilatory
tactics of many school authorities.” 402 U.S., at 13, 14.
This Court, the Courts of Appeals, and the District
Courts have been quite properly solicitous of ending an
active federal judicial role in school desegregation cases
47 See note 3, supra.
35
at the earliest opportunity. This Court’s prior decisions
suggest that opportunity will arise when a district court
is satisfied that a unitary system— which (1) effectively
implements an acceptable means of pupil assignment,
(2) achieves actual desegregation, and (3) eliminates
other vestiges of discrimination— has been constructed
and will be maintained. Green v. County School Bd. of
New Kent County, supra; Raney v. Board of Educ.,
supra; Alexander v. Holmes County Bd. of Educ., supra;
Swann v. Charlotte-Mecklenburg Bd. of Educ., supra.
Pursuant to this standard, scores of desegregation ac
tions have been closed on the active dockets of United
States District Courts. Most of these cases are in the
South,48 but in Northern cases as well, experience indi
cates that controversy over desegregation, fades and ac
ceptance grows after the initial period of implementa
tion.49
This achievement, which represents nothing less than
bringing to substantial fruition the promise of Brown,
would be jeopardized by a decision that weakens the
authority of the district courts to retain active jurisdic
tion until they are satisfied that a unitary system has
been, implanted. Equally tragic, a decision in Petitioners’
favor in the instant cases will also be interpreted as a
withdrawal of this Court’s support for the courageous,
untiring efforts of district judges to uphold the Consti
tution which have characterized the history o f school de
segregation since 1954.
We respectfully submit that these developments are
both foreseeable and relevant to the disposition of this
48 For example, to amici’s knowledge, cases throughout Virginia,
North Carolina, Georgia, Florida, Mississippi and Louisiana have
been closed by the entry of decrees similar to those set out at
A. 247-57. Such cases include both Green v. County School Bd. of
New Kent County and Swann, see p. 31 supra.
49 See, e.g., N.Y. Times, Dec. 3, 1975, p. 30 (Pontiac, Michigan).
36
cause. Petitioners’ 1974 motions were the culmination
of a campaign against the judicial finding of unlawful
segregation and the judicial decree to remedy it which
began virtually the day the decree was entered. That
the methods employed were more ingenious, than direct
resistance, see Cooper v. Aaron, supra, is of little solace
to the minority citizens of Pasadena who face the recon
struction of a racially divided school system, if the latest
campaign is permitted to succeed, although earlier efforts
did not. In short, this case involves the continued integ
rity of the commitment in Broum to a complete transi
tion to a racially nondiscriminatory system of schooling.
We urge the Court not to weaken that commitment, but
rather to keep' alive for future generations the hope for
an open society which was kindled twenty-two years ago.
For the foregoing reasons, amici urge that the judg
ment of the Court of Appeals be affirmed.
CONCLUSION
Respectfully submitted,
Nathaniel R. Jones
General Counsel, N.A.A.C.P.
1790 Broadway
New York, New York 10019
Thomas D. Baer
John W. Douglas
J. Harold Flannery
Albert E. Jenner, Jr.
Milan C. Miskovsky
Louis F. Oberdorfer
W hitney North Seymour
Chesterfield Smith
William L. Taylor
Catholic University
School of Law
Washington, D.C. 20017
Paul R. Dimond
William E. Caldwell
Norman J. Chachkin
Lawyers’ Committee for Civil
Rights Under Law
Suite 520
733 15th Street, N.W.
Washington, D.C. 20005
Attorneys for Amici Curiae