Grant v. United States Petition for Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit

    IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1972 
NO. 72—

JAMES EARL GRANT, JR.,
Petitioner,

v.
UNITED STATES OF AMERICA

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

JACK GREENBERG
JAMES M. NABRIT, III
CHARLES STEPHEN RALSTON 10 Columbus Circle 
New York, New York 10019

JOHN H. HARMON
Post Office Box 636
New Bern, North Carolina 28560

ADAM STEIN
JAMES E. FERGUSON, II 
237 West Trade Street 
Charlotte, North Carolina 28202

WILLIAM A. ALLISON, JR.139 South Fourth Street 
Louisville, Kentucky 40507

Attorneys for Petitioner



Of racially identifiable schools (A. 488). For example, the 
completion of Northwest Junior High and Bearden High resulted in 
revision of secondary zone structures in the general West 
Knoxville area. The irregularly shaped West High School zone 
established in 1968 (A. 440; cf. X7) excludes a nearby black 
residential area which is entirely zoned into Rule High. The 
school district enlarged the West facility at the same time 
Bearden High was constructed (A. 442-43) with the result that, 
particularly as the zones were drawn, none of the black students
in the Rule area are assigned to the heavily white Bearden or 
West High Schools.

Nor did the reexamination of zones in western Knoxville 
alter the character of Rule and Beardsley Junior High Schools —  
one white and the other black, located next door to one anotherf" 
The Beardsley grade structure is still unique, both in this 
system and in this state—  The Beardsley Junior High zone is 
virtually coterminate with the black residential area (A. 385) 
but the zones were not redrawn nor the schools paired as
recommended^by^the University of Tennessee Title IV Center 
(A. 398.) ~  *

!_/ In 1967 Dr. Bedelle could not A .226a)• explain this phenomenon (18,165

10/ Directory of Public Elementary 
Districts, Fall 1968 (OCR-101-70, 0 
Department of Health, Education and

and Secondary Schools in Selected 
ffice of Civil Rights, u.S. 
Welfare) 1379-1410 (1970).

T t t t r  1t?aRulteeandm«LiSHtrr :iVe of the
The district court ordered' theennesB?edra^y(I?r31^tred 387-89>

10



Almost all of Knoxville's portable classrooms are located 
at white schools (X18, A.516) despite the availability of excess 
capacity at black schools (A. 391-92). The location of these 
portable classrooms obviates any need to adjust zone lines between 
white and black schools to avoid overcrowding of the permanent 
facilities at the schools. For example, the Board operated 
the Negro Green Elanentary School at half capacity while using 
portable classrooms to contain overcrowding at the predominantly 
white Huff Elementary School three miles away (A. 430).

The attitude of this school system toward desegregation is 
most graphically revealed by its perpetuation of racially identi­
fiable faculties. No teachers have ever been transferrred to 
desegregate a school's faculty (A. 467); in 1969-70 twenty-one 
schools had no Negro teachers (A. 187-94) and two Negro schools
(Sam Hill and Mountain View) had no white teachers (ibid.), 
despite Dr. Bedelle's view that faculty desegregation requires 
"substantial" numbers of minority teachers at each school (A. 461). 
Significant is the district's selection of faculties at newly opened 
schools: Bearden High had no black teachers (A. 192), Central
but one (along with 70 white teachers) (A. 193), and Northwest 
Junior High only two (ibid.). Conversely, faculty racial pre­
dominance continued to mirror student body population, and thus 
to perpetuate racial identifiability: Lonsdale had one Negro
and 17 white teachers, Sam Hill 16 Negro and no white teachers; 
Beardsley, 20 black and four white instructors, Rule onekblack 
and 58 white teachers (A. 187-94).

11



Similarly, assignments of principals have conformed to 
established patterns with no attempts to eliminate racially 
identifiable schools. A black principal was not assigned to a 
formerly white school until after it had become majority black 
(A. 472); when black schools were closed (18,165 A.169a), their 
former principals did not get assigned to vacancies at white 
schools (A. 473). In 1969-70, no Negro was the principal of 
a predominantly white student body school. Three whites were 
assigned as principal at predominantly-black schools (A. 187-94); 
all of these schools, however, had originally been white schools 
(see A . 472-74).

The school district’s explanation for these results was 
that it never transferred teachers or principals without their 
consent (A. 467) and they considered whether a teacher could 
"understand" a particular neighborhood in making assignments (A. 470)

The results of these policies can be summarized as follows; 
During the 1969-70 school year, ten years after the initiation 
of this lawsuit, the Knoxville school system consisted of 47 
elementary, 9 junior high, and 9 high schools (A. 168-77) .
Although black students constitute only 16% of the Knoxville 
school population (A. 177), 83% of all black students attended 
majority-black schools (A. 309, 520).

The following table illustrates the changing racial 
composition of black schools since this suit was commenced:

12



13/ 14/ 15/
1962-163 1966-67 1969-70

School W B W B W B
16/

Austin 0 710 1 432 10 739
Beardsley 0 672 6 471 4 357
Cansler 0 361 0 221 12 206
Eastport 0 592 1 437 0 442
Green 0 677 21 421 5 276
Maynard 0 491 2 452 7 375
Mountain View 0 357 0 325 0 303
Sam Hill 0 488 0 498 4 347
Vine 0 776 1 619 5 628

These schools were all-white in 1962-■63 ;and remained all
in 1969-70: Claxton, Giffin , Lockett, Oakwood , Perkins, South
Knoxville and West View. All-White schoolsi in 1962-63 which
presently enroll ten or fewer black students are McCampbell, 
Sequoyah and South. Schools which had ten or fewer black students 
in 1962-63 and 1969-70 are Brownlow, Flenniken and McCallie (15,432 
A. 105a, A. 138-39).

Faculties reflected student body racial proportions (Compare 
A.138-48 with A.188-95). Twenty schools still have no faculty 
desegregation (A. 471).

The district court denied all systemwide relief except "to
i

find that the Board should accelerate the integration of faculties"

13/ 15,432 A.105a.
14/ 18,165 A . 42a-47a.
15/ A.138-49.
16/ Austin-East complex.

13



(A.321) . The Court also directed the Board “to revise the zones 
in this area for the 1970 school term to eliminate overcrowding 
at Rule and to utilize existing capacity at Beardsley" (A. 314) 
and “to keep adequate records to show enforcement of its transfer 
plan" (A. 317). In all other respects, the Court denied plaintiffs

relief.

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APPENDIX B

LEGISLATIVE HISTORY OF § 718

The provision for attorneys’ fees in school desegregation 
cases was first introduced in the Senate as § 11 of the Emergency 
School Aid and Quality Integrated Education Act of 1971, S. 1557. 
The bill was reported to the Senate floor in April of 1971, and 
§ 11 was described in the report of the Senate Committee on 
Labor and Public Welfare. Sen. Rep. No. 92-61, 92d Cong., 1st 
Sess. The report, while not setting out the precise text of 
§ 11, describes it fully. its provisions were substantially 
the same as those of § 718 as it finally passed, with two 
important exceptions.

First, payment of attorneys’ fees in school cases was to 
be made by the United States from a special fund established by 
the Act. Second, the section provided that "reasonable counsel 
fees, and costs not otherwise reimbursed for services rendered, 
and costs incurred, after the date of enactment of the Act" were

T 7
to be awarded to a prevailing plaintiff. it should be noted

1/ The description of § 11 in the Senate report is as follows:
This section states that upon the entry of a 

final order by a court of the united States against 
a local educational agency, a State (or any agency 
thereof), or the Department of Health, Education, 
and Welfare, for failure to comply with any provision 
of the Act or of title I of the Elementary and 
Secondary Education Act of 1965, or for discrimination 
on the basis of race, color, or national origin in 
violation of title VI of the Civil Rights Act of 1964 
or of the Fourteenth Article of amendment to the 
Constitution of the united States as they pertain to



that the quoted language was omitted from § 718.

On April 21, 1971 Senator Dominick of Colorado introduced 
an amendment to delete § 11 in its entirety from the bill. The 
basis for the deletion was that it was not proper that the United 
States should bear the costs of attorneys' fees but rather that 
such costs should be imposed on the school boards responsible 
for the maintenance of unconstitutionally segregated school 
systems. Senator Dominick's amendment passed. 117 Cong. Rec.
S.5324-31 (daily ed. April 21, 1971).

On the next day. Senator Cook of Kentucky, who was also 
opposed to § 11, introduced a new amendment identical to the 
present § 718 and after two days of debate that amendment was 
passed. 117 Cong. Rec. S.5483-92 (daily ed. April 22, 1971) 
and S.5534-39 (daily ed. April 23, 1971). The section as 
passed became § 16 of S.1557, and S.1557 as a whole was passed 
on April 26, 1971 without any further debate of the attorneys' 
fees provision. 117 Cong. Rec. S.5742-47 (daily ed. April 26,

l /  cont'd
elementary and secondary education, such court shall, 
upon a finding that the proceedings were necessary to 
bring about compliance, award, from funds reserved 
pursuant to section 3(b)(3), reasonable counsel fees, 
and costs not otherwise reimbursed for services 
rendered, and costs incurred, after the date of enact­
ment of the Act to the party obtaining such order.
In any case in which a party asserts a right to be 
awarded fees and costs under section 11, the United 
States shall be a party with respect to the appropri­
ateness of such award and the reasonableness of counsel 
fees. The Commissioner is directed to transfer all 
funds reserved pursuant to section 3(b)(3) to the 
Administration Office of the United States Courts for 
the purpose of making payments of fees awarded pursuant 
to section 11.

Senate Report No. 92-61, 92d Cong., 1st Sess., pp. 55-56.



1971).

Subsequently, on August 6, 1971, the Senate passed a re­
lated statute, S.659, the Education Amendments of 1971. See,
U.S. Code Congressional and Administrative News, 1971, vol. 6

2/
p. 2333. Both Senate bills were then sent to the House. On 
November 5, 1971, the House, in considering a parallel measure, 
H.R.7248, amended S.659. The House struck everything after the 
enactment clause of the Senate bill and substituted a new text 
based substantially on the House bill and in effect combining 
provisions of S.1557 and S.659. Ibid. In so amending the Senate

bil1 3/G H°USe OITlitted the attorneys' fees provision (ic[., at 
2406) without debate.

The amended Senate bill was then returned to the Senate 
with request for a conference, which request was referred to 
the Senate Committee on Labor and Public Welfare. However, the 
Committee, instead of acceding to the request for a conference, 
reported S.659 back to the Senate floor with amendments to the 
House substitute. Those amendments re—included the counsel fee 
provision of S.1557 in exactly the same form as it had originally 
passed the Senate in April. Id. at 2333 and 2406. On March 1, 
1972, the Senate passed S.659 as reported to it by the Committee, 
and this amended bill was then sent to conference. The Senate-

— Sen. Rep. No. 92-604, 92d Cong., 2nd Sess., Report of the 
Senate Committee on Labor and Public Welfare on the Message of the House on S.659.
2/ Conference Report No. 798, 92d Cong., 2nd Sess.



« #

House conference made further amendments and reported the bill 
to both houses with the continued inclusion of the attorneys' 
fees provision exactly as passed by the Senate. _id. at 2406.
The provision was now § 718 of the Education Amendments of 1972. 
The conference bill was passed with no further debate on § 718 
by the Senate on May 24, 1972 and by the House on June 8, 1972 
(Id. at 2200), and was signed into law by the President on June 
23.

Thus, the only debate concerning § 718 occurred in connec­
tion with its original passage by the Senate in April of 1971. 
As noted above, there was no debate in the House concerning 
its deletion when the House amended S.659 and there was no 
further debate in the Senate or the House with regard to the 
passage of the conference bill.



Legal Services of New Jersey 
78 New Street
New Brunswick, New Jersey 08901

By: ________ _______________
Melville D. Miller, Jr.

Joseph Harris David

NAACP Legal Defense and Educational 
Fund, Inc.
By: Julius L. Chambers, John C. Boger, and 

Jon C. Dubin
99 Hudson Street, 16th Floor 
New York, New York 10013

Essex-Newark Legal Services
By: Hugh Heisler and Paul Giordano
8 Park Place
Newark, New Jersey 07102 
(201) 624-4500

Puerto Rican Legal Defense and 
Education Fund
By: Ruben Franco and Arthur A. Baer
99 Hudson Street
New York, New York 10013

Margaret Welch 
7 South Street 
Newark, New Jersey 07102 
(201) 292-6542

Michaelene Loughlin
Seton Hall Law School Clinic
1095 Raymond Blvd
Newark, NJ 07102
(201) 642-8848

Attorneys for Plaintiffs

41