Keyes v. School District No. 1 Denver, CO. Brief Amicus Curiae in Support of Respondents

    IN THE

^otpronr (Cmrrt of %  Unitrft j&tata

No. 71-507

W ilfred K eyes, et al., Petitioners
v.

S chool D istrict N o. 1,

Denver, Colorado, et al., Respondents

BRIEF ON THE MERITS IN SUPPORT OF 
RESPONDENTS SCHOOL DISTRICT NO. 1, 

DENVER, COLORADO, ET AL., SUBMITTED BY 
THE STATE OF INDIANA, AS AMICUS CURIAE

T heodore L. S endak 
Attorney General of Indiana

W endell C. H amacher 
Deputy Attorney General

W illiam F . H arvey 
Special Counsel for the 
Attorney General

C. E . P au ley  & Co., Inc., Ind ianapolis



TABLE OF CONTENTS

Page
Interest of Amicus Curiae ............................................ 1
Opinions Below .......................................... ....................  3
Jurisdiction ...... ..................... ........ ........................... . 3
Questions Presented for Review.......... ........................  3
Constitutional and Statutory Provisions Involved......  5
Statement of tlie Case...................................................  5

Court-Designated Schools, or Core Area Schools 6
A Second Look at The Expert Testimony ............  10

Summary of Argument.......................................... ....... 12

Argument
I. The Fourteenth Amendment Does Not Mandate 

A Specific Intellectual Result Among* Children 
In Public Schools Measured By Achievement 
Tests. Compensatory Educational Programs, 
Designed To Attempt To Improve Perform­
ance Require Flexibility For Development. 
Empirical Data Do Not Support Their Sub­
ordination, Pursuant To The District Court’s 
Holdings, To Racial And Economic Integra­
tion. Those Holdings Are Disestablished To 
Such An Extent That A Constitutional Ruling
Is Improper ................. ....................... .......... 14
A. Introduction .......   14
B. The Court of Appeals and the Remedy in

the District Court.......... ...............    20
1. On Plaintiffs’ First Cause of Action .... 20
2. On The Plaintiffs’ Second Cause of

Action.......... .......    20
i



TABLE OF CONTENTS—Continued
Page 

. .  213. On The Remedy
C. The Testimony of Dr. Coleman, Dr. Sulli­

van and Dr. O’Reilly ............. ..................  23

II. This Court And The Congress Of The United 
States Have Not Interpreted The Fourteenth 
Amendment To Require A Specific Educa­
tional Performance Among Children Attend­
ing Public Schools. There Is No Data To Sup­
port Such An Interpretation; It Should Not 
Be Given Under The Name Of Racial Or Eco­
nomic Desegregation ................................ ...... 27
A. Introduction ...... ........... ..................... ....... 27
B. The Congress Of The United States Has 

Interpreted The Equal Protection Clause 
As A Constitutional Right To Be Free 
From Racial Discrimination In Public
Schools ..............        30

C. Griffin-Douglas; Equitable Remedies; And
Challenged Propositions Of Education .... 32

D. On Experimentation In Education And
The Fourteenth Amendment.................   36

Conclusion .........................   37

n



TABLE OF AUTHORITIES

CASES Page
Avery v. Midland County, 390 U.S. 474 (1968) ...........  28
Bell v. City of Gary, Indiana, 324 F.2d 209 (7th Cir.), 

certiorari denied, 377 U.S. 924 (1963)............. ..........  29
Bolling v. Sharpe, 347 U.S. 497 (1954) ........................  28
Bradley v. School Board of Richmond, Virginia (June 

5, 1972, slip opinion, 4th Cir) ............. ............. ....... 38
Brown v. Board of Education, 347 U.S. 483 (1954) 4,10,13,

15,19, 28, 30
Brown v. Board of Education, 349 U.S. 294 (1955) .... - 10
Brunson v. Board of Trustees, 429 F.2d 820 (4th Cir. 

1970) ... ................. ...................................................... 38
Deal v. Board of Education, 369 F.2d 55 (6th Cir. 

1966) ............................... ...... ......................-............  29
Douglas v. California, 372 U.S. 353 (1963) ..........—....20, 32
Downs v. Board of Education, 366 F.2d 988 (10th 

Cir.), certiorari denied, 380 U.S. 914 (1964) ..............  29
Erie Railroad v. Tompkins, 304 U.S. 64 (1938) ..........  11
Ex parte Virginia, 100 U.S. 339 (1879) ......................... 30
Gayle v. Browder, 352 U.S. 903(1956) .............. ..... ........  29
Green v. County School Board, 391 U.S. 430 (1968) ....  15
Griffin v. Illinois, 351 U.S. 12 (1956) .................... ........20, 32
Haynes v. Washington, 373 U.S. 503 (1963) .......... ....... 10
Hecht Co. v. Bowles, 321 U.S. 321 (1944)   .......... ...  32
Holmes v. City of Atlanta, 350 U.S. 879 (1955) ............ 29
Hunter v. Erickson, 393 U.S. 385 (1969) — ............... -  32
James v. Valtierra, 402 U.S. 137 (1971) ...... ..............20, 32

iii



CASES Page
Johnson v. Louisana, — U.8. —, 92 S. Ct. 1635 (1972) 36
Katzenbach v. Morgan, 384 U.S. 641 (1966) ....... ......31, 33
Keyes v. School District No. 1, Denver, Colorado, 445 

F.2d 990 (10th Cir. 1971) ___________ 2,3,12,17,20,21
Keyes v. School District No. 1, Denver, Colorado, 313 

F.Supp. 61 (D.Colo. 1970) ...... ..2, 3, 6, 7,13,17,19, 20, 34
Keyes v. School District No. 1, Denver, Colorado, 313 

F.Supp. 90 (D.Colo. 1970) ........... ..............2, 3,10,11,12
Keys v. School District No. 1, Denver, Colorado, 303 

F.Supp. 279 (D.Colo. 1969) ....................   5
Keyes v. School District No. 1, Denver, Colorado, 303 

F.Supp. 289 (D.Colo. 1969) ...... .... .............................5,17
Lochner v. New York, 198 U.S. 45 (1905) ..................... 37
Mayor and City Council of Baltimore City v. Dawson,

350 U.S. 877 (1955) .... ............ ..................................  29
Maxwell v. Bugbee, 250 U.S. 525 (1919) ......................  28
Muir v. Louisville Park Theatrical Assn., 347 U.S. 971 

(1954) ........         29
Offerman v. Nitkowski, 378 F.2d 22 (2nd Cir. 1967) ....  29
Oyama v. California, 332 U.S. 633 (1948) .......... .... ...... 10
Plessy v. Ferguson, 163 U.S. 537 (1896) .......... ............. 28
Reitman v. Mulky, 387 U.S. 369 (1967) ...... .......... — 17, 20
Sealy v. Dept, of Public Instruction, 252 F.2d 898 (3rd 

Cir. 1957), certiorari denied, 356 U.S. 975 (1958) .... 29
Serrano v. Priest, 96 Cal. Rptr. 601, 487 P.2d 1241 

(1971) ...................................... ....... ............ .
Smuck v. Hobson, 408 F.2d 175 (D.C.Cir. 1969)
Spano v. New York, 360 U.S. 315 (1959) ____

TABLE OF AUTHORITIES—Continued

IV

35
32
10



TABLE OF AUTHORITIES—Continued
Page

Springfield School Committee v. Barksdale, 348 F.2d 
26 (1st Cir. 1965)____________________________  29

State Board of Tax Comm, of Indiana v. Jackson, 283 
U.S. 527 (1931) ______________________   28

Stein v. New York, 346 U.S. 156 (1953)...... .................  10
Swann v. Charlotte-Mecklenberg Board of Education,

402 U.S. (1971) ------------------------------- 9,13,15,28,32
United States v. Independent School District No. 1, 

Tulsa, Oklahoma, 429 F.2d 1253 (10th Cir. 1970)......  15
Walters v. St. Louis, 347 U.S. 231 (1954) .......... ..........  28

CONSTITUTIONAL PROVISIONS,
AND STATUTES
Constitution of the United States, Amendment XIV,

§1 & §5..................................    5
Constitution of Indiana, Article 8, Section 1 (1851) .... 1
Civil Rights Act of 1964, 42 U.S.C. 2000c________ __ 5

42 U.S.C. 2000c-6 .................5, 30
42 U.S.C. 2000c-9............5,16,17,

30, 31
Indiana Code, 1971, Titles 20 and 21 ...... ................. . 2

OTHER AUTHORITIES
110 Congressional Record pp. 12714 & 12717 (1964) ....18, 31
Equality of Educational Opportunity (Coleman Re­

port) (H.E.W., GhP.O. 1966) .....................6,11, 22, 25, 26
On Equality of Educational Opportunity, Mosteller & 

Moynihan (Vintage Ed. 1972) .......... .....11, 34, 35, 36, 37
v



TABLE OF AUTHORITIES—Continued
CASES Page
The Effectiveness of Compensatory Education

(H.E.W., G.P.O. 1972) .......... ............................. 11, 23, 24
2 U.S. Code Cong. & Adm. News p. 2504 (1964) ..........  31

LAW REVIEWS
Kurland, Equal Educational Opportunity: The Limits

of Constitutional Jurisprudence Undefined, 35 U. 
ChLL.Rev. 583 (1968) ................................................ 32

Hobson v. Hansen: Judicial Supervision of the Color 
Blind School Board, 81 Harv.L.Rev. 1511 (1968)___  32

Hobson v. Hansen: The De Facto Limits on Judicial
Power, 20 Stanford Law Rev. 1249 (1968) .......... .....  32

Comment, Civil Rights v. Individual Liberty, 5 Indiana 
Legal Forum 368 (1972) ............................................  32

v i



IN THE

i ’uprattf (Umtrt itf %  §tatPH

No. 71-507

W ilfred K eyes, et al., Petitioners 
v.

S chool D istrict N o. 1,

Denver, Colorado, et al., Respondents

BRIEF ON THE MERITS IN SUPPORT OF 
RESPONDENTS SCHOOL DISTRICT NO. 1,

DENVER, COLORADO, ET AL., SUBMITTED BY
THE STATE OF INDIANA, AS AMICUS CURIAE

INTEREST OF AMICUS CURIAE
The State of Indiana, by the Attorney General of Indiana, 

respectfully presents this brief amicus curiae in support of 
the School District No. 1, Denver, Colorado, et al., pur­
suant to paragraphs 4 and 5 of Rule 42 of the Rules of the 
Supreme Court of the United States.

The State of Indiana, pursuant to its Constitution, Article 
8, Section 1 (1851), and statutes duly enacted, has pro­
vided for a system of common schools, wherein tuition shall 
be without charge, and “ equally open to all.”

An examination of the session laws of the General As­
sembly of Indiana, from 1850 forward, demonstrates the



2

State’s commitment to the development of quality educa­
tion in Indiana. Those laws speak to myriad items. Some of 
them are: teacher training; teacher qualification and certi­
fication; curriculum development and inspection; quality 
of curriculum; quality and safety of buildings; libraries; 
student-teacher ratios; student attendance; and student 
educational development. See generally, Indiana Code, 
1971, Title 20 and Title 21.

The interest of the amicus is in seeking an interpretation 
of the Equal Protection Clause of the 14th Amendment, 
which will permit a continued development, a continued 
expansion, and a continued experimentation in educational 
programs in Indiana. It is a development and educational 
evolution which recognizes the vast complexities in educa­
tional programs in an open and pluralistic State, and also 
recognizes that within that development and evolution 
there shall be an equal educational opportunity for all 
students enrolled in public schools.

The amicus asks the Court not to restrain that develop­
ment and evolution by a constitutional interpretation which 
would impose an interdicting rigidity, in the name of the 
Fourteenth Amendment, in educational theory and prac­
tice, as well as in established educational programs.

Accordingly, the amicus urges that the opinion and de­
cision of the United States Court of Appeals for the Tenth 
Circuit, 445 F.2d 990 (1971) (App.Pet.Cert. 122a-160a), be 
affirmed but only to the extent that it reversed the opinions 
United States District Court, 313 F.Supp. 61 (1970) (App. 
Pet.Cert. 44a-98a), 313 F.Supp. 90 (1970) (App.Pet.Cert. 
99a-121a).

This brief amicus curiae is limited in its discussion and 
presentation to that part of this case which is represented 
by the reversal in the Tenth Circuit of the District Court.



3

OPINIONS BELOW
The opinion of the Court below consists of the opinion 

and judgment of the United States Court of Appeals for 
the Tenth Circuit, filed June 11, 1971, 445 F.2d 990 (App. 
Pet.Cert. 122a-160a). The opinions in the District Court are 
found at (App.Pet.Cert. 44a-98a) 313 P.Supp. 61; (App. 
Pet.Cert. 99a-121a) 313 F.Supp. 90 (1970).

In its opinion and judgment, the Court of Appeals 
ordered that the judgment of the District Court be affirmed 
in all respects except that part pertaining to the “ core 
area” or “ court designated schools” ; and it particularly 
reversed the District Court in its legal determination that 
those schools were maintained in violation of the Fourteenth 
Amendment because of “ unequal educational opportunity 
afforded, this issue having been presented by * * * the 
Second Cause of Action contained in the complaint.” (App. 
Pet.Cert, 160a), 445 F.2d 990,1007.

JURISDICTION
The Supreme Court has jurisdiction to review this case 

by writ of certiorari under 28 U.S.C. 1254(1), and has ac­
cepted it for such purpose by granting said writ on 
January 17,1972 (A. 1988a).

QUESTIONS PRESENTED FOR REVIEW
The schools in Denver, Colorado, which were affected by 

the District Court’s decisions (App.Pet.Cert. 44a-98a), 313 
F.Supp. 61, (App.Pet.Cert. 99a-121a), 313 F.Supp, 90, were 
divided into two categories, towards which the plaintiffs 
directed separate claims for relief in separate causes of 
action, supported by alleged separate and independent legal 
theories. The second category or group of schools, called 
hereafter (and in the case throughout), the “ court-desig­
nated schools” or the “ core area schools” was the subject



4

of the second claim for relief, in four counts, of which the 
third became primary.

The gist of the second claim for relief as developed by 
the complaint, evidence, and findings, was that because of 
comparatively low average achievement test scores of the 
pupils tested in the “ court-designated schools”, (and be­
cause of low morale and because of “ segregation” [the 
word is used in quotation because the court found that there 
was no state or officially imposed segregation] in those 
schools) there was a denial of an equal educational oppor­
tunity and of equal protection of the law. The following 
questions are presented:

1. Shall Brown v. Board of Education, 347 U.S. 483 
(1954), and its progeny, be reinterpreted to render 
unconstitutional the distinctive achievements among 
students in public schools which may be shown by 
standard achievement tests whenever they are ad­
ministered !

2. Are there adequate data available, either in the record 
of this case or information in the public domain, upon 
which to develop a rule of constitutional law under the 
Fourteenth Amendment, Equal Protection Clause, 
concerning standard achievement scores and equal 
educational opportunity?

3. When there is admittedly no dual school system pres­
ent, and when the District Court finds that there is no 
de jure segregation present in the specific schools 
about which plaintiffs complained in a separate count, 
does the District Court have judicial power to decree 
compulsory integration and compensatory educa­
tional programs?

4. After a District Court found that there was no de 
jure segregation in the court-designated schools, but



5

then concluded that there was a denial of an equal 
educational opportunity because of lower achieve­
ment levels in standard achievement tests admin­
istered in those schools, does the District Court have 
power to decree compulsory integration, and com­
pensatory educational programs which must be sub­
ordinated thereunder ?

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

This case involves the first and fifth sections of the 
Fourteenth Amendment; and the Civil Rights Act of 1964, 
§ 401, 42 U.S.C. 2000c; § 407, 42 U.S.C. 2000c-6; and § 410, 
42 U.S.C. 2000c-9. These constitutional and statutory pro­
visions are printed in the Appendix to this brief.

STATEMENT OF THE CASE
In this case the plaintiffs filed a complaint which con­

tained two (2) causes of action, each with separate and 
distinct legal theories and claims for relief. (A. 2a-57a).

The complaint related to two groups of schools in 
Denver, Colorado. The first group of schools, called in the 
case and litigation the “ Resolution schools” (because they 
were affected by Denver School Board resolutions), was 
the subject of the First cause of action. Concerning those 
schools, a hearing was held in July, 1969, which resulted 
in a preliminary injunction. Defendant was later to pre­
sent its evidence, but the District Court found that the 
action of the School Board in rescinding and nullifying a 
school integration plan, had “ the effect of perpetuating 
school segregation * * *” (App.Pet.Cert. 19a and 37a). 
303 F.Supp. 279 at 288; 303 F.Supp. 289 at 296-97, in that 
the action was taken with knowledge of the consequences, 
and had a tort-like wilfullness about it, 303 F.Supp. at 286.



6

Court-Designated Schools, or Core Area Schools
“ The evidentiary as well as the legal approach to the 

remaining schools [referred to hereafter as the “ court 
designated schools” or the “ core area schools” ] is quite 
different from that which has been outlined above.” (App. 
Pet.Cert. 57a), 313 F.Supp. 61 at 69 (1970).

Concerning these schools,1 the plaintiffs first complained 
that there was de jure segregation (Id), because of 
boundary changes and other acts on the part of the School 
Board; but the District Court found that there was no de 
jure segregation (App.Pet.Cert. 75a), 313 F.Supp. 61 at 
77. The court also said, concerning these schools, that it “ is 
to be emphasized here that the Board has not refused to 
admit any student at any time because of racial or ethnic 
origin. It simply requires everyone to go to his neighbor­
hood school unless it is necessary to bus him to relieve 
overcrowding.” (App.Pet.Cert. 67a), 313 F.Supp. 61 at 
73.

In the second count of the second cause of action, the 
plaintiffs asserted that the neighborhood school policy was 
itself maintained for the purpose of, and with the effect of, 
segregating minority pupils,2 to a degree that it was un­

1 Eventually the Court said that there were 15 schools involved. The 
court said, “we are here primarily concerned with the following schools: 
Bryant-Webster, Columbine, Elmwood, Fairmont, Fairview, Greenlee, 
Hallett, Harrington, Mitchell, Smith, Stedman and Whittier Elementary 
Schools; Baker and Cole Junior High Schools; and Manual High School.” 
(App.Pet.Cert. 78a), 313 F.Supp. 61 at 78.

2 The plaintiffs themselves used a racial and minority class grouping 
which is of far more than casual interest. I t  should be noted because 
it is in contrast to the bases of much of their experts’ testimony, namely 
the Coleman Report, see footnote 14 infra.

“In some schools there are concentrations of Hispanos as well as 
Negroes. Plaintiffs would place them all in one category and utilize the 
total number as establishing the segregated character of the school. This 
is often an oversimplification * * * [which] * * * plaintiffs have ac­
complished * * * by using the name ‘Anglo’ to describe the white com­
munity. However, the Hispanos have a wholly different origin, and the 
problems applicable to them are often different.” (App.Pet.Cert. 58a), 
313 F.Supp. 61 at 69.



7

constitutional. But the district court rejected that claim 
too, saying that there was no such policy apparent.

The third count of the second cause of action said, in 
part, that the neighborhood school system was uncon­
stitutional if it produced segregation in fact in a school 
system. In short, regardless of the cause, regardless of the 
absence of state or official law or policy, if the result was a 
separation or segregation, it was unconstitutional. This too 
the District Court rejected under the authority of previous 
cases in the Tenth Circuit, which in turn was built on 
cases in this Court.

The District Court then approached the heart of plain­
tiffs claim in their second cause of action. It was that 
the defendants were maintaining the “ court-designated 
schools” in such a way as to fail to provide an equal educa­
tional opportunity for students attending them.

All of those schools, plaintiffs said, produced low average 
scholastic achievement. They also maintained that there 
was a high teacher turnover; a higher student dropout 
rate; that there were older buildings and smaller building 
sites; and that there were less experienced teachers.

The District Court agreed that there was a low achieve­
ment level present and significantly lower than in other 
schools in the city, as shown by comparative scores on the 
1968 Stanford Achievement Test results. The trial court 
made findings of fact with regard to teacher experience, 
teacher turnover, pupil dropout rates, and building fa­
cilities, but there was no finding, as there could not have 
been on the evidence presented, that there was a causal 
relationship between these factors and student achievement. 
(App.Pet.Cert. 78a-89a), 313 F.Supp. 61 at 78-83.

To then seek the judicial declaration of court-ordered 
equalized achievement, the plaintiffs presented the testi­
mony of several witnesses, chief among them, and on



8

which testimony the district court relied, were Dr. James 
Coleman (A. 1516a-1561a); Dr. Neal Sullivan (A. 1562a- 
1598a); Dr. Robert O’Reilly (A. 1910a-1968a), and in a 
prior hearing, Dr. Dan Dodson (A. 1469a-1513a).

It is clear that some of the plaintiffs’ witnesses sought 
society-wide, social reformation, which would simply use 
the school system as the instrument of change:

Dr. Dan Dodson;

“ Q. Now, isn’t it also true that in your study you 
found that race is not causally related to the 
achievement level in these minority schools?

A. That’s right.” (A. 1508a)
# * #

After discussing the socioeconomic structure of some 
areas, but not Denver, Colorado, and the effect of a par­
ents’ educational background, Dodson continued:

“ Q- In other words, you think, then, that i t ’s the 
schools ’ problem ?

A. I certainly do.
Q. And so your opinion is that the school has an 

obligation for a social change?
A. That’s right.
Q. For the entire community ?
A. That’s right.
Q. Not for just the—not for the achievement of 

academic aspect of the school?
A. That’s right.” (A. 1509a).

# #

“ Q. In other words then, you mean that the board 
must cure any racial imbalance created by 
housing patterns in their school system?

A. I think that’s right.” (A. 1510a).



9

Another witness, Dr. Neal Sullivan testified, in part:
“ Q. Now, also, even under your own theory that 

integration in the schools has to be-—as you 
say in the article, a massive educational revo­
lution? Right?

A. I like that expression.
Q. Well, that’s yours, isn ’t it ?
A. You bet. I like that language.
Q. You need something more than integration?
A. You bet. Massive reform. (A. 1595a).

And the District Court itself caught the spirit of the thing:
“ The Court: I  mean, psychologically, the school 

is taking over for the family in many instances. 
It has to. I know this is abhorrent to all of you. 
You just disregard it all at (sic) paternalism. But 
you can’t. I mean, that is the fact of life. The 
church has fallen down somewhat. The family has 
collapsed, and there is not much left. And a kid 
has to relate to something, to an institution, and to 
people, doesn’t he? Where is this substitute? So, 
you say there is no psychological foundation for 
this? [The Court was then, apparently, addressing 
Dr. O’Reilly], There is no foundation in experience? 
That you can just substitute this competitive at­
mosphere? And this impersonal competitive atmos­
phere of the integrated school and let him sink or 
swim?” (A. 1934a).3

The District Court held that there was no de jure 
segregation with regard to the core-city schools, and that 
a neighborhood policy was not unconstitutional per se as 
de facto segregation.

8 “One vehicle can carry only a limited amount of baggage. I t  would 
not serve the important objective of Brown I  to seek to use school 
desegregation cases for purposes beyond their scope, although desegre­
gation of schools ultimately will have impact on other forms of dis­
crimination.” Swann v. Charlotte-Mecklenberg Board of Education, 402 
U.S. 1, 22-23 (1971).



10

But against sucli an evidentiary background, the District 
Court found an alternative. It held that the “ core-city 
schools in question were providing an unequal educational 
opportunity to minority groups as evidenced hy low achieve­
ment and morale.” (Emphasis added). (App.Pet.Cert. 
100a), 313 F.Supp. 90, 91.

From that position the District Court then moved to a 
consideration of a remedial plan or plans, consistent with 
the Brown 7,4 5 Brown IP  dichotomy.

During that proceeding, in May 1970, the District Court 
said on opinion, and largely in response to the proposals 
which the defendants raised, that the,

“ crucial factual issue considered was whether 
compensatory education alone in a segregated set­
ting is capable of bringing about the necessary 
equalizing effects * * *” (App.Pet.Cert. 106a), 313 
F.Supp. 90 at 94.

In an effort to answer that question the District Court 
then turned principally to the testimony of Dr. James 
Coleman (A. 1516a-1561a); Dr. Neal Sullivan (A. 1562a- 
1599a) ; and Dr. Robert O ’Reilly (A. 1910a-1968a); 313 
F.Supp. 90 at 94.

A Second Look at The Expert Testimony
The petitioners ask on brief that the Court itself conduct 

an independent examination of the record.6 If so, then

4 Brown v. Board of Education, 347 U.S. 483 (1954).
5 Brown v. Board of Education, 349 U.S. 294 (1955).
6 Petitioners’ Brief page 79. The authority cited for this request is 

Haynes v. Washington, 373 U.S. 503, 515-517 (1963) ; Spano v. New 
York, 360 U.S. 315, 316 (1959); Stein v. New York, 346 U.S. 156, 181 
(1953); and Oyama v. California, 332 U.S. 633, 636 (1948). But the 
petitioners seek here a new constitutional rule: that equal educational 
opportunity shall mean equal achievement results, however measured. 
They deny this result, of course, see footnote 123, page 103 of Peti­
tioners’ Brief. But the district court said: “The final portion of the



11

under the evidentiary standards freely used in this case,7 
this Court can consider the relevant surveys, data, and 
findings (the “ Coleman Report” 737 pages, for example, 
is marked as PX 500) which were used and to which ref­
erence was made, as well as other data and information 
which this Court can acknowledge and consider. Erie 
Railroad v. Tompkins, 304 U.S. 64 (1938).8

The testimony given by these witnesses, when measured 
against the data admitted, and subsequent interpretation 
and analyses thereof, simply does not support the con­
clusions reached or the holding which the petitioners seek 
from this Court, as a principle of Constitutional law.

In short, having concluded, primarily on the basis of the 
1968 Stanford Achievement Scores, that there was an un­
equal educational opportunity, these experts were called 
to discuss a remedy.

That testimony and the impact of other data upon it is 
discussed in the Argument section of this brief, under 
Argument I-C, “The Testimony of Dr. Coleman, Dr. Sul­
livan, and Dr. O’Reilly.”

In summary, the results against which the District 
Court directed a remedy in regard to the “ court desig­
nated” schools were not the product of, or caused by state 
action, or official, or school board action, or positive law. 
To the extent that these results were established (and the 
expert witnesses often testified that they were not referring 
to Denver in their testimony), they occurred adventitiously.

plaintiffs’ plan suggest a system of compensatory education programs, 
carried out in an integrated environment, designated to equalize achieve­
ment.” (App.Pet.Cert. 102a), 313 F.Supp. 90, 91-92. (Emphasis added).

7 Coleman—A. 1526a; Sullivan—A. 1568a., 1583a-1586a; O’Reilly—A. 
1915-1928a.

8 “Equality of Educational Opportunity” (H.E.W., G.P.O. 1966) 
PX 500 (herein “Coleman Report” ) ; “On Equality of Educational Op­
portunity,” Mosteller & Moynihan (Vintage Ed. 1972) (herein “Mosteller 
& Moynihan”) : “The Effectiveness of Compensatory Education” (H.E.W., 
Gr.P.O. 1972) (herein, “Effectiveness”) .



12

The District Court thus entered findings and guidelines, 
which, generally, provided for a program of “ desegrega­
tion” [which word, again, is used in quotation simply to 
recall to the reader that there was no state or officially 
imposed segregation] and compensatory education as a 
solution to low average achievement in the “ court-desig­
nated schools.” (App.Pet.Cert. 112a-121a), 313 F.Supp. 
90 at 97-100. The preliminary injunction arising from the 
first cause of action remained in effect, except as altered 
by the orders entered.

This determination was reversed in the United States 
Court of Appeals for the Tenth Circuit, which said that 
the final decree and judgment of the District Court was 
affirmed, “ except that part pertaining to the core area or 
court designated schools, and particularly the legal de­
termination by the court that such schools were maintained 
in violation of the Fourteenth Amendment because of 
unequal educational opportunity afforded, * * * *” (App. 
Pet.Cert. 151a), 445 F.2d 990 at 1007 (1971). Other orders 
are well described by the Denver School Board, on brief. 
On January 17,1972, this Court granted a writ of certiorari 
to the United States Court of Appeals for the Tenth Circuit.

The brief amicus curiae is limited in its discussion to 
that part of this case which is represented by the reversal 
in the Court of Appeals.

SUMMARY OF ARGUMENT 
I

In so far as the “ court-designated” schools are con­
cerned, the measure of this case as it reaches the Supreme 
Court is found in what this Court is asked to affirm from 
the District Court and the consequences it would have on 
educational development throughout the United States. 
This Court is being asked to affirm the assertion, as a



13

matter of Constitutional law, that compensatory educa­
tional programs, as a means to develop and improve a 
child’s educational performance and achievement, are un­
constitutional unless they are developed in the setting of 
subordination to racial and economic integration, as effected 
by the remedies which were developed in, and are borrowed 
from, the cases decided from Brown I  to Swann.

But the empirical data which have become available since 
this case was in the District Court show that the bases for 
that court’s holdings with regard to both the wrong and 
the remedy are disestablished to such an extent that no 
constitutional interpretation should be indulged in.

II
The Fourteenth Amendment, as interpreted by this 

Court, and as addressed and interpreted by the Congress 
of the United States, does not mandate a specific educa­
tional performance among children attending a public 
school.

The Fourteenth Amendment should not be interpreted 
so to mean that equal rights under the law, when one is 
confronted by the State, shall mean equality in achievement 
when one attends a public school.

Racial segregation was never an educational program; 
it was a social-racial policy imposed in an educational 
system by the State.

In the name of racial (or economic) desegregation, the 
Fourteenth Amendment should not be interpreted to re­
quire an educational program which would attempt to 
develop but one result: equal achievement among students, 
as evidenced by achievement test scores.



14

ARGUMENT
I

The Fourteenth Amendment Does Not Mandate A Specific 
Intellectual Result Among Children In Public Schools, 
Measured By Achievement Tests. Compensatory Educa­
tional Programs, Designed To Attempt To Improve Per­
formance Require Flexibility For Development. Empir­
ical Data Do Not Support Their Subordination Pursuant 
To The District Court’s Holdings, To Racial And Eco­
nomic Integration. Those Holdings Are Disestablished 
To Such An Extent That A Constitutional Ruling Is 
Improper.

A. Introduction
In the District Court, this was a great case. Walter 

Lippmann remarked many years ago, in America there is a 
distinct prejudice in favor of those who make accusations. 
Never was such an observation more appropriate than in 
this judicial proceeding.

It was a great case because a great school board, in 
Denver, Colorado, was well defended. It was a school 
system which had known a tremendous population growth 
subsequent to World War II, and it dealt with the re­
markably complex educational problems which evolved 
from it, very well indeed. It was a school system which in 
fact spent over 100 million dollars on new buildings and 
installations since World War II. Its effort to manage the 
urban sprawd’s impact on education was well underway 
long before the Congress and Executive branches of the 
Federal Government created the Department of Housing 
and Urban Development, or the Department of Transpor­
tation, or the Environmental Protection Agency, which is 
some testimony to their recognition of the urban problems 
confronted by the Denver School Board. But it came long 
after that School Board was already making the effort.



15

It was a School Board which never resulted, as the State 
of Colorado did not, to the use of a dual school system. 
There was in fact, for the School Board in Denver, simply 
no factual analogy to the bases of the cases and schools 
found in Brown I,9 or Green,10 or Swann11. Nor, for that 
matter, was the case factually similar to the Tulsa12 case 
in the 10th Circuit.

Those were cases which arose in a dual school system, 
or they were cases in which the School Board failed to 
deal with the ‘ ‘ vestiges of dualism ’ ’.

But as the growth of Denver was great, so also was its 
growth of minority groups. In 1940 the Negro population 
was 8,000 persons. In 1966, it was estimated by plaintiffs’ 
witness Bardwell to be at 45,000. Faced with this growth, 
still no dual school system ever developed, or existed in 
Denver. No person was ever excluded from any school 
because of race, color, or ethnic origin.

At the beginning of the school year 1968-69, there were 
116 schools: 92 elementary, 15 junior high schools and 9 
senior high schools. In the elementary schools, Negro 
students were enrolled in 78, “ Hispano” in 88, “ Anglo” 
in 92. Among the 15 junior high schools, there were Negro 
students in 14 of the 15, and Hispano in all 15. Anglo were 
in all 15. Among the high schools, Anglo and Hispano 
students were enrolled in all 9 schools; and Negro students 
in 8 of the 9 high schools.

In short, the defendant Board did not refuse to admit 
any student at any time because of racial or ethnic origin.

9 Brown v. Board of Education, 347 U.S. 483 (1954).
10 Green v. County School Board, 391 U.S. 430 (1968).
11 Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 

(1971).
12 United States v. Independent School District No. 1, Tulsa, Okla­

homa, 429 F.2d 1253, 1259 (10th Cir. 1970).



16

It simply required a student, consistent with the Civil 
Eights Act of 1964, § 410, 42 TT.S.C. 2000c-9, to attend his 
neighborhood school. (App.Pet.Cert. 67a), 313 F.Supp. 
61 at 73.

But if, as Lippmann said, there is prejudice in favor of 
one who makes an accusation, then the prize will go to he 
who makes the greatest accusation.

For the accused, however, the Denver School Board, the 
dilemma was enormous. The attack took a bifurcated ap­
proach. First, there was the accusation relating to the 
usual kind of segregation charge: the location of school 
buildings; boundary changes; the formal actions of a 
school board, and the like. That attack, as the case left 
the District Court, was largely a failure.

Secondly, in the plaintiffs’ second cause of action, there 
was an attack for the “ failure” of the School Board to 
cause students to achieve at the same level according to 
the Stanford Achievement Tests. The District Court found, 
“ and concluded that the achievement level in these schools 
is markedly lower and dropout rates are high; and that 
there has been a concentration of minority and inexperi­
enced teachers.” (App.Pet.Cert. 90a), 313 F.Supp. 61 at 
84. This presented an opportunity, as the case concluded 
in the District Court, for petitioners to strike hard at an 
entire school system (as they now do in this Court, on 
brief, page 68-92, and their factual assertions, page 1-64, 
passim) and more. It was an opportunity to attempt to 
bury any further experimentation and development with 
compensatory education, a favorite bete noire, unless it is 
compelled to march in constitutional lockstep with the 
massive movement of children, and massive social reform, 
as plaintiffs ’ own witnesses described it, under the banner 
of Oreen-Swann.



17

Concerning the first leg of attack, the District Court 
gave primary attention to the rescinding of School Board 
Resolutions, 1520, 1524, and 1531, and the court concluded 
that such an act violated the case law of Reitman v. Mulky, 
387 U.S. 369 (1967); 313 F.Supp. at 67-69. The Court of 
Appeals did not reach the point, 445 F.2d 990 at 1002, and 
the petitioners appear to have abandoned the idea in this 
Court, entirely. Then the District Court considered the 
charges of boundary changes 313 F.Supp. 61 at 69, but came 
to the finding that there was no de jure segregation, 313 
F.Supp. 61 at 77.

Dp to this point the primary finding concerned the con­
struction of Barrett Elementary School, along with an 
incorporation of the preliminary injunction statements, 
303 F.Supp. 289, 290-95, which when made did not then 
consider defendants’ evidence. Concerning Barrett Ele­
mentary School, the trial court said that alternative sites 
were available; and both the trial court and the petitioners 
on brief made much of the testimony of Superintendent 
Oberholtzer, (313 F.Supp. at 73; Petitioners’ Brief, e.g., 
pp. 18 and 20), because he was “ of the opinion that it was 
not permissible for him to classify Negroes as such, even 
for the purpose of bringing about integration.” (App. 
Pet.Cert. 66a), 313 F.Supp. 61 at 73.

The Superintendent, in supporting the neighborhood 
school policy of the Denver Schools, and in assuring that 
the conduct of the Denver School Board was “ color blind”, 
anticipated, insofar as their schools were concerned, the 
fact that their policy was to become the policy of the United 
States, and so it remains to this day, in the Civil Rights 
Act of 1964, § 410, 42 U.S.C. 2000c-9. That section provides:

“ Nothing in this subchapter shall prohibit classi­
fication and assignment for reasons other than race, 
color, religion or national origin.”



18

Speaking to that section, Senator Humphrey said:
“ Furthermore, a new section 410 would explicitly 
declare [it is then set out in full].

Thus, classification along bona fide neighborhood 
school lines, or for any other legitimate reason 
which local school boards might see fit to adopt, 
would not be affected by title IY, so long as such 
classification was bona fide.” 110 Cong. Rec. 12714 
(June 4,1964).

Again, Senator Humphrey spoke to one of the very 
central factual questions in this case, and one which, it 
appears, the petitioners’ would attempt to obscure on brief 
in their presentation of a factual quagmire: that issue is 
the legitimacy of a neighborhood school which was not 
designed to cause or perpetuate racial discrimination or 
unlawful segregation, or, for that matter, a school district 
organized in the same way:

Senator Humphrey:
“ * * * The bill does not attempt to integrate the 
schools, but it does attempt to eliminate segregation 
in the school systems. [The Senator was speaking of 
racial segregation]. The natural factors such as 
density of population, and the distance that students 
would have to travel are considered legitimate 
means to determine the validity of a school district, 
if the school districts are not gerrymandered, and in 
effect deliberately segregated. The fact that there 
is racial imbalance per se is not something which is 
unconstitutional.” 110 Cong. Rec. 12717 (June 4, 
1964).

In short, § 410 of the Civil Rights Act of 1964 was 
specifically added to permit student classification into 
school districts, or neighborhood schools, on bases other 
than race, religion, color, or national origin.

It did hardly behoove the District Court, to remark the 
“ failure on the part of the Board” to take some action



19

which would have an integrating effect, when to do so 
would violate the spirit and broad command of the Congress 
of the United States, in structuring a neighborhood school 
system; which the District Court itself found not to be in 
violation of Broivn I.

Generally, the Court of Appeals affirmed those very 
limited findings, and felt restrained by Rule 52 in its review 
—although, now, of course, petitioners ask this Court to 
review the entire record.

Secondly, an attack came to the Board of a very different 
nature. It was that, as the District Court finally evolved the 
issue, there was no equal educational opportunity present 
with respect to the “ court-designated” schools, even if 
there was no de jure discrimination. The District Court held 
that there was not. Then the District Court looked at es­
sentially one item: the student achievement level as de­
termined by the 1968 Stanford Achievement Tests. Other 
tilings found their way into this part of the decision: 
teacher turnover; pupil dropout rates (one premise for 
this consideration is conventional wisdom: “ its better 
that he be in school than on the streets,” , or, “ if you are in 
school, then stay in school” ) ; building facilities (“ the fact 
that the physical plant is old may aggravate the aura of 
inferiority which surrounds the school”, the court said, 
313 F.Supp. 61 at 81), teacher experience, and the testi­
mony of Dr. Dodson. The court did not find that these 
conditions caused inferior achievement, and the experts at 
the remedy stage did not so testify either.

The District Court did not find here a Brown I  type of 
violation. Rather it turned to other cases and said: in an 
effort to safeguard the poor or minorities “ state action, 
even if non-discriminatory on its face” which results in 
unequal treatment of “ the poor or a minority group as 
a class” [presumably the District Court was referring to



20

racial minorities, although the word, coming after the word 
“ poor” could have meant an economic minority] is un­
constitutional unless the state provides substantial justi­
fication, citing Griffin v. Illinois, 351 U.S. 12 (1956), and 
Douglas v. California, 372 U.S. 353 (1963). 313 F.Supp. 
61 at 82. Contra, James v. Valtierra, 402 U.S. 137 (1971).

B. The Court of Appeals and the Remedy in the District 
Court

As the case left the district court on the “ violation” 
side, these things had occurred:

1. On Plaintiff’s First Cause of Action:
a) The district court found a Reitman violation; 

which was phased out of the case in the Court 
of Appeal.

b) With regard to the Resolution Schools, and 
especially Barrett Elementary, the District 
Court found a kind of Brown I-Reitman vio­
lation, which received a Rule 52 affirmance in 
the Court of Appeals.

c) With respect to all other claims, all other 
schools, there was a finding that no Brown I 
violation was present.

2. On The Plaintiff’s Second Cause Of Action:
a) The district court found no Brown I  violation.
b) The district court found a Griffin v. Cali­

fornia, violation.
On appeal, the Court of Appeals seemed at first to agree 

with the District Court in its assertion on equal achieve­
ment :

“ The trial court’s opinion * * * leaves little doubt 
that the finding of unequal educational opportunity 
in the designated schools pivots on the conclusion 
that segregated schools, whatever the cause, per se 
produce lower achievement and an inferior educa­
tional opportunity.” 445 F.2d 990, at 1004.



21

But then the Court of Appeals spoke one of the most 
important sentences in its entire proceeding;

“ Thus it is not the proffered objective indicia of 
inferiority which causes the sub-standard academic 
performance of these children, but a curriculum 
which is allegedly not tailored to their educational 
and social needs. ’ ’ Id. at 1004.

In short, the Court of Appeals did not accept the bases 
of the trial court’s holdings, namely the items to which the 
trial court referred as showing a Griffin type of violation13 
(and allegedly justifying the remedy which plaintiffs sought 
and the trial court imposed) plus inferior achievement, in 
the sense that they provided a basis for a Constitutional 
Mandate

Implicit in the Court of Appeals holding is the fact that 
we really do not know what causes inferior achievement 
nor, especially, how to remedy it, sufficiently to form a 
rule of Constitutional law, binding on 200 million persons 
and all of their school districts and programs.

Even acknowledging the experts presented at the rem­
edies hearing by the plaintiffs, educational achievement 
development is at the early ether stage of anesthetics. The 
most we can do is try, experiment, develop, test, determine, 
and try again. That is precisely what the Denver School 
Board recognized (as did the Court of Appeals) in its 
Resolution 1562, found at 445 F.2d 1009-10.

3. On The Remedy.
The opportunity which was presented to plaintiffs cer­

tainly was not lost. It was an opportunity to judicially 
subordinate compensatory educational programs to racial 
integration remedies, and more. It was an opportunity to

13 Again, those things were in addition to achievement scores, teaching 
experience, building facilities, pupil dropout rates, and teacher turnover, 
and the testimony of Dr. Dodson. 313 F.Supp. 61 at 78-82.



22

bury, once and for all, one of the most important obser­
vations made in tbe Coleman Report:

“ The overall results of this examination of school- 
to-school variations in achievement can be summed 
up in three statements :

1. For each group,14 by far the largest part of 
the variation in student achievement lies with­
in the same school, and not between schools.

2. Comparison of school-to-school variations in 
achievement at the beginning of grade 1 with 
later years indicates that only a small part 
of it is the result of school factors, in contrast 
to family background differences between 
communities.

3. There is indirect evidence that school factors 
are more important in affecting the achieve­
ment of minority group students; among 
Negroes, this appears especially so in the 
South. This leads to the notion of differential 
sensitivity to school variations, with the low­
est achieving minority groups showing high­
est sensitivity.”
“Coleman Report” (1966) at page 297. 
(Emphasis added).

The plaintiffs did not pass the chance. They proposed a 
simple pairing plan, wherein the great distinctions in 
student achievement within each school in the Denver 
schools would be lost forever. That is, they would exist, 
but not be recognizable. The plan would take an average 
achievement among the students in a school, and pair the 
school with the average achievement among students in 
another school. (Pl.Ex.501-A).

To this the District Court gave its constitutional impri­
matur.

14 The Report was referring to : Puerto Rican; Indian American;
Mexican-American; Negro, South; Negro, North; Oriental American; 
White, South; White, North.



23

C. The Testimony of Dr. Coleman, Dr. Sullivan and Dr.
O’Reilly

The plaintiffs called Dr. Coleman, Dr. Sullivan, and 
Dr. O’Reilly to speak about remedies, and there was one 
consistency among their remarks: they were not speaking 
about Denver, Colorado, and had no previous experience 
with the schools there.

The petitioners have summarized Dr. Coleman’s testi­
mony in this way: the studies of compensatory programs 
“ have not been very encouraging with regard to their 
efforts.” (A. 1537a) (Petitioners’ Brief page 58), and 
that “ I think” the major problem, with compensatory edu­
cational programs has been the fact that the child’s en­
vironment has not changed if he speaks with other children 
who are homogeneous with his past. Id.

The H.E.W. Report on “Effectiveness of Compensatory 
Education” of 1972 states :

‘ ‘ In this connection, it is worth noting two additional 
features of the Coleman report:

•  As the author has recently pointed out, the 
Coleman report should not be used to claim 
that physical desegregation is the only edu­
cational treatment that can have any positive 
achievement effects.

•  There is no direct evidence in the Coleman 
report for the conclusion, sometimes drawn 
from it, that compensatory education does 
not work. The Coleman report analyzed the 
existing range of school conditions in 1965- 
1966 and had nothing to say about situations 
in which very substantial additional resources 
above normal school expenditures were pro­
vided for basic learning programs. The Cole­
man report did not analyse any such intensive- 
programs. (Emphasis added). “ The Effec­



24

tiveness of Com pensatory Education,” 
(H.E.W., Gf.P.O. 1972), page 10.

The petitioners also summarized the testimony of Dr. 
Sullivan. That is understandable. Dr. Sullivan appeared 
as the Secretary of the State Board of Education in the 
State of Massachusetts. As such, he spoke on several 
things: compensatory programs in Boston, Massachu­
setts, and Berkeley, California; inferiority complexes 
(A. 1579a); psychology (A. 1579a); sociology (Id.); and 
the moral duties of educators. (Id.) But the principal pur­
pose of his testimony was to establish that a compensatory 
education program with which he was associated in Berke­
ley, California, was a failure, that it “ had no effect.” 
(A. 1578a).

He explained that Berkeley tried everything: “ lower 
class size; “ materials and equipment” ; “ [h]undreds of 
thousands of dollars for electronic equipment that most 
schools have now” ; the “ addition of paraprofessionals” ; 
“ lots and lots of black administrators” ; “ Black principals 
in white schools. We felt that was only fair. White princi­
pals in black schools. We felt that was good. You name it 
and we tried it.” (A. 1577a). Still, he said, it was a failure.

The H.E.W. Report on “Effectiveness of Compensatory 
Education” (1972), said this:

“ The important difference between success and non­
success appears to depend on whether compensatory 
education funds have been channeled into traditional 
patterns of expenditure—salary increases, routine 
techniques, etc.—or whether they have been used to 
develop supplementary, focused, compensatory edu­
cation programs. The reason there is so much evi­
dence of failure is that resources have more often 
been used in the former rather than the latter man­
ner.” (Emphasis added). “Effectiveness”, Id at 
11.



25

The Report spoke about the situation in California in 
this way:

“ The most complete data are those available from 
the State of California. * # * Achievement data was 
(sic) collected for about 80% of all participants in 
compensatory reading programs and analyses were 
conducted using data covering about 50% of the 
participating children. Only that achievement data 
which met specified quality control criteria was (sic) 
included. Over the four years covered by the data, 
54% to 67% of children receiving compensatory 
services showed a rate of reading achievement gain 
larger than the usual maximum for disadvantaged 
children. Analysis and results for mathematics were 
similar and even slightly better. We judge this to he 
clear evidence of success. (Emphasis added). “Ef ­
fectiveness”, Id at 7.

Dr. Sullivan testified that integration in Berkeley eased 
such problems as teacher turnover and low teacher ex­
perience ; and Dr. 0  ’Reilly questioned the value of compen­
satory programs in either an integrated or non-integrated 
setting. (A. 1929a-20a). It is small wonder that with this 
evidence, the District Court came to its conclusions.

But one of the most important observations in the Cole­
man Report, went, it seems, almost unnoticed. It is stated 
as follows:

“ This analysis has concentrated on the educational 
opportunities offered by the schools in terms of 
their student body composition, facilities, curricu- 
lums, and teachers. This emphasis, while entirely 
appropriate as a response to the legislation calling 
for the survey, [§402 of the Civil Rights Act of 
1964, 42 U.S.C. 2000c-l] nevertheless neglects im­
portant factors in the variability between individual 
pupils within the same school; this variability is 
roughly four times as large as the variability be­
tween schools. For example, a pupil attitude factor,



26

wMch appears to have a stronger relationship to 
achievement than do all the ‘school’ factors together, 
is the extent to which an individual feels that he has 
some control over his own destiny.” “Coleman Re­
port” (1966) at page 22-23. (Emphasis added).

Dr. Sullivan spoke about the feelings of inferiority of 
the Negro student. He said, “ it was very clear to me that 
in their isolation they [Negroes] were completely rejected 
and psychologically this came through.” (A. 1579a).

Again, the Coleman Report disturbs a number of as­
sumptions and eye-witness certainties, such as that:

“ When asked about whether they wanted to be 
good students, a higher proportion of Negroes than 
any other group—over half—reported that they 
wanted to be one of the best in the class (table 
3.13.2).” “Coleman Report” (1966) at 278.

And in speaking about general attitudes toward them­
selves and their environment, held by students, the follow­
ing is found:

“ Apart from the generally high levels for all groups, 
the most striking differences are the especially high 
level of motivation, interest, and aspirations report­
ed by Negro students. * * * [And speaking about 
the child’s concept of himself] In general, the 
responses to these questions do not indicate dif­
ferences between Negroes and whites, but do indicate 
differences between them and the other minority 
groups.” “Coleman Report” (1966) at pages 280 
and 281.

But with the testimony before it, the District Court was 
moved from the comparative to the superlative sense of 
approach:

“ We have concluded after hearing the evidence that 
only feasible and constitutionally acceptable pro­
gram—the only program which furnishes anything



27

approaching substantial equality—is a system of 
desegregation and integration which provides com­
pensatory education in an integrated environment. ’ ’ 
(Emphasis added). (App.Pet.Cert. 112a), 313 F. 
Supp. 90 at 96.

And the court continued with the same penultimate 
language in its findings: “ Thus, the only hope for raising 
the level of these students * * * “ The ideal approach, 
and that which offers maximum promise * * * * ’’ (Emphasis 
added), Id. at 96.

Such comments if spoken by an educator would be re­
garded as graduation-day puffing. But the court spoke as a 
matter of constitutional law and it subordinated compen­
satory education programs, educational experimentation 
and research, all, to a kind of warmed-over Swa,nn remedy, 
as a solution to low average achievement in the court-des­
ignated schools.

The essence of what the petitioners ask in this part of 
the case is that this Court do the same thing.

II
This Court And The Congress Of The United States Have 

Not Interpreted The Fourteenth Amendment To Require 
A Specific Educational Performance Among Children 
Attending Public Schools. There Is No Data To Support 
Such An Interpretation; It Should Not Be Given Under 
The Name Of Racial Or Economic Desegregation.

A. Introduction
The Fourteenth Amendment was certified as a part of 

the Constitution on July 28, 1868, and its Equal Protection 
Clause forbids a state to “ deny to any person within its 
jurisdiction the equal protection of the laws.”

Thus, the Equal Protection Clause requires a state to 
treat in like manner all persons similarly situated. State



Board of Tax Commissioners of Indiana v. Jackson, 283 
U.S. 527 (1931); Maxwell v. Bughee, 250 U.S. 525 (1919). 
It is a clause which does not, in law or fact, require identi­
ty of treatment. Walters v. St. Louis, 347 U.S. 231 (1954). 
And it permits a state to make distinctions between per­
sons subject to its jurisdiction if the distinctions are based 
on some reasonable classification, and all persons embraced 
within the classification are treated alike. It outlaws in­
vidious discrimination. Avery v. Midland County, 390 U.S. 
474 (1968).

From 1868 to 1954, the Equal Protection Clause was 
interpreted to permit a state to impose, as a matter of 
state law, racial segregation in its public schools, when 
it furnished equal facilities for the education of the children 
of each race or races. Compare Plessy v. Ferguson, 163 
U.S. 537 (1896), with Brown v. Board of Education, 347 
U.S. 483 (1954), and Bolling v. Sharpe, 347 U.S. 497 (1954).

“ Nearly 17 years ago this Court held, in explicit terms, 
that state-imposed segregation by race in public schools 
denies equal protection of the laws. At no time has the 
Court deviated in the slightest degree from that holding 
or its constitutional underpinnings.” Swann v. Charlotte- 
Mecklenberg Board of Education, 402 U.S. 1, 11 (1971). 
“ This case [Swann] and those argued with it arose in 
States having a long history of maintaining two sets of 
schools in a single school system deliberately operated to 
carry out a governmental policy to separate pupils in 
schools solely on the basis of race. That was what Brown v. 
Board of Education was all about.” Swann v. Charlotte- 
Mecklenberg Board of Education, supra at 5.

In short, this Court struck down a governmental policy of 
racial segregation, which was effected in the public school 
system. The Court did not then, and not since that time 
has it used the Fourteenth Amendment to develop edu-



29

eational policy. Brown was not a case on educational pro­
grams and policies, and racial segregation was not a part 
thereof either.

Brown, and its progeny, was a case which struck at a 
government developed racial-social policy of segregation 
and discrimination in the public schools; such govern­
mental policies meant inherent inequality by governmental 
order, which was developed and effectuated, in part, by 
use of the public school system. Thus this Court said, “ The 
target of the cases from Brown I  go the present was the 
dual school system.” Id. at 22.

But the use of the public school system to develop and 
promote a governmental policy of racial segregation was 
only a part of the systematic program. It occurred and was 
struck down in public parks, Muir v. Louisville Park 
Theatrical Assn., 347 U.S. 971 (1954), in and on public 
beaches and bathhouses, Mayor and City Council of Balti­
more City v. Dawson, 350 U.S. 877 (1955), municipal golf 
courses, Holmes v. City of Atlanta, 350 U.S. 879 (1955), 
and on municipal buses, Gayle v. Browder, 352 U.S. 903 
(1956), all on the authority and the concept of the Brown 
decision.

Under these authorities, the cases which hold that for a 
Brown violation there must be a state act in creating racial 
segregation or separation, rather than adventitious de­
velopment, are simply legion. Among them are: Spring- 
field School Committee v. Barksdale, 348 F.2d 261, 264, 
(1st Cir. 1965); Offerman v. Nitkowski, 378 F.2d 22 (2nd 
Cir. 1967); Sealy v. Dept, of Public Instruction, 252 F.2d 
898 (3rd Cir. 1957), certiorari denied, 356 U.S. 975 (1958); 
Deal v. Board of Education, 369 F.2d 55 (6th Cir. 1965); 
Bell v. School City of Gary, Indiana, 324 F.2d 209 (7th 
Cir. 1963), certiorari denied, 377 U.S. 924; Downs v. Board 
of Education, 366 F.2d 988 (10th Cir. 1964), certiorari 
denied, 380 U.S. 914.



30

B. The Congress Of The United States Has Interpreted 
The Equal Protection Clause As A Constitutional 
Right To Be Free From Racial Discrimination In 
Public Schools

Section 5 of the Fourteenth Amendment provides:
“ Section 5. The Congress shall have power to en­
force, by appropriate legislation, the provisions of 
this article.”

Acting under the Fourteenth Amendment, and in re­
sponse to this Court’s decision in Brown 1, and subsequent 
decisions, the Congress enacted subchapter IV, of the 
Civil Rights Act of 1964. In it, it gave an interpretation to 
desegregation (and thus segregation) 42 U.S.C. 2000c; it 
defined the power of the Attorney General to initiate a law 
suit to seek the desegregation of a school system, when a 
person is unable to initiate such an action, 42 U.S.C. 
2000c-6; and it spoke specifically to the classification legiti­
macy, on bases other than race, color, religion or national 
origin, 42 U.S.C. 2000c-9. These interpretations were bind­
ing on the Denver School Board, and they were followed 
by the School Board. There was no finding of racial dis­
crimination in the court-designated schools.

Congress is authorized to enforce the prohibitions by 
appropriate legislation under § 5 of the Fourteenth Amend­
ment, Ex Parte Virginia, 100 U.S. 339, 345 (1879), and it 
could do so without regard to whether this Court or any 
court would hold the act prohibited to be in violation of the 
Equal Protection Clause. In seeking to promote the objects 
of the Equal Protection Clause the Congress prohibited 
racial discrimination in the public schools, it defined de­
segregation, and it specifically allowed classification of 
students on bases other than race, color, religion or na­
tional origin.



31

It was said:
“ In implementing the decision of the Supreme 

Court, we urge the Congress to be guided by two 
fundamental premises: (1) The American system of 
public education—an essential bulwark of a demo­
cratic system of government—should be preserved 
unimpaired; (2) the constitutional right to be free 
from racial discrimination in public education must 
be realized (Emphasis added). 2 U.8. Code Cong. 
& Adnt. News p. 2504 (1964).

Section 410, 42 IT.S.C. 2000c-9 provides:
“ Nothing in this subchapter shall prohibit classi­

fication and assignment for reasons other than race, 
color, religion, or national origin.”

In speaking about this provision Senator Humphrey said:
“ Thus, classification along bona fide neighborhood 
school lines, or for any other legitimate reason 
which local school boards might see fit to adopt, 
would not be affected by title IY, so long as such 
classification was bona fide.” 110 Cong. Rec. 12714 
(June 4,1964).

Again, Senator Humphrey said:
“ * * # The bill does not attempt to integrate the 
schools, but it does attempt to eliminate segrega­
tion in the school system. The natural factors such 
as density of population, and the distance that 
students would have to travel are considered legiti­
mate means to determine the validity of a school 
district, if the school districts are not gerrymand­
ered, and in effect deliberately segregated. The fact 
that there is racial imbalance per se is not unconsti­
tutional. * * *” 110 Cong. Rec. 12717 (June 4, 1964).

The interpretation given to the Equal Protection Clause 
by the Congress in subchapter IV of the Civil Rights Act 
of 1964 is binding here. Katsenbach v. Morgan, 384 U.S. 
641 (1966).



32

0. Griffin-Douglas; Equitable Remedies; And Challenged 
Propositions Of Education.

The petitioners support the trial court’s assertion that 
nondiscrimination, if it results in unequal treatment of the 
poor or a minority group, is unconstitutional unless the 
state shows a substantial interest therein, citing Griffin v. 
Illinois, 351 U.S. 12 (1956), and Douglas v. California, 372 
U.S. 353 (1963); compare Hunter v. Erickson, 393 U.S. 385 
(1969). Contra, James v. Valtierra, 402 U.S. 137 (1971).

From this position, the petitioners as well as the district 
court would sweep on to the full use of a court’s equitable 
power under Hecht Co. v. Bowles, 321 U.S. 321, 329-330 
(1944), and Stvann v. Charlotte-Mecklenberg Board of Edu­
cation, 402 U.S. 1, 15, (1971).1151 The result, as in this case, 15

15 But other courts, and authorities, have recognized that there is 
much more in the use of equitable judicial power than simply the 
recognition of its existence, which the petitioners show in their Brief 
on the Merits.

For example, the precise point was made by Chief Justice Burger, 
then Circuit Judge, in dissenting in the case of Smuck v. Hobson, 408 
F.2d 175 (D.C. Cir. 1969), at page 196, where he said:

“Several commentators have expressed views which undergird 
what Judge DANAHER has said as to the need for caution 
and restraint by judges when they are asked to enter areas so 
far beyond judicial competence as the subject of how to run a 
public school system. We have little difficulty taking judicial 
notice of the reality that most if not all of the problems dealt 
with in the District Court findings and opinion are, and have 
long been, much debated among school administrators and edu­
cators. There is little agreement on these matters, and events 
often lead experts to conclude that views once held have lost 
their validity.” (Emphasis added).

And the dissent cited impressive authority where the point is further 
discussed. Among them are: Kurland, Equal Educational Opportunity: 
The Limits of Constitutional Jurisprudence Undefined, 35 U.Chi.L.Rev. 
583, 592, 594, 595 (1968); Hobson v. Hansen, The DeFacto Limits on 
Judicial Power, 20 Stan.L.Rev. 1249, 1267 (1968); Hobson v. Hansen: 
Judicial Supervision of the Color-Blind School Board, 81 Harv.LRev 
1511, 1527, 1525 (1968).

The point that policy commitments are present in asserting equitable 
power and decrees was made by Professor Alexander Bickel: “Willy- 
nilly, the Supreme Court imposes a choice of educational policy, for the 
time being at least * * * and I don’t think we can be sure that the



3 3

is to subordinate, if not bury, innovative compensatory edu­
cational programs, unless they march in lockstep to the 
Brown 1—Swann remedies.

The substantial interest of the State of Indiana is in 
preventing the constitutionalization of education proposi­
tions, which, in the context of constitutional law, may be 
called “ myths” .

A short time ago, Mr. Justice Harlan reminded us that 
“ [djecisions on questions of equal protection and due 
process are based not on abstract logic, but on empirical 
foundations.” Katsenbach v. Morgan, 384 U.S. 641, 668 
(1966) (Emphasis added).

With that thought in mind, the amicus presents to the 
Court several “ Propositions of Education” which are im­
plicit in this case, and in the District Court’s action:

“Proposition of Education, No. 1”:
The amount of money spent determines the goods 
and services bought, which in turn determines the 
effectiveness of the school in developing and meet­
ing the needs of a child.

This proposition appeared in rough form when it was 
asserted by Charles Sumner in 1849 before the Massa­
chusetts Supreme Court. He argued that racially segregated 
schools in Boston, Massachusetts, provided unequal oppor­
tunities for Negroes and whites. The ground for the 
argument was that his “ client, a Negro girl, had to walk 
2100 feet to her school while a white school was only 800 
feet away from her home. He lost the case, but the same

choice is the right one * * * Professor Bickel cannot be read to oppose 
school integration; but rather, he opposes Swann because it willy-nilly 
decided that the nation’s legal order compels the racial mixing of stu­
dents [where there was a dual school system] as a matter of educational 
policy.” Comment, Civil Bights v. Individual Liberty, 5 Indiana Legal 
Forum 368, 376 (1972).



34

kind of reasoning has pervaded the thinking of educators, 
the courts, and the public ever since. Up to 1954, innumer­
able attempts were made to prove that the separate educa­
tion of Negroes in the South was either equal or not equal 
to white education by comparing schools in respect to 
their location [“ inferior status of these school (is) the 
enforced iso lation  imposed * * * (by) neighborhood 
schools and housing patterns, 313 F.Supp 61 at 83 (1970)], 
the quality of their buildings [“ the fact that the physical 
plant is old may aggravate the aura of inferiority which 
surrounds the school,” 313 F.Supp. 61 at 81], the adequacy 
of facilities, the number of courses in the curriculum, the 
length of the school term, the paper credentials of teachers, 
and most importantly, the amount of capital outlay and 
annual expenditure per pupil.” Mosteller & Moynihari, 
“On Equality of Educational Opportunity,” Dyer, pag*e 
514, (Vintage Ed. 1972).

Since 1954, and Brown I, the Court has disposed of the 
proposition, it too an educational myth, that to separate a 
child by government policy from an available school be­
cause of his race is somehow to treat him equally under 
the law.

The Court is being pressed to create another myth in 
its place, and in turn, to reinterpret Brown I. It is, es­
sentially, that a minority child cannot be educated and 
receive equal educational opportunity unless his separa­
tion, from a majority group regardless of cause, is judi­
cially destroyed.

“Proposition of Education, No. 2”:
The measure of equal educational opportunity is 
found in counting the dollars and cents spent on 
one school, or in one school district and comparing 
that with another school district, or school.



35

Probably the most extreme form of this assertion is 
found in the California case of Serrano v. Priest, 96 Cal. 
601, 487 P.2d 1241 (1971). However, Mr. Dyer says this:

“ There is no guarantee that a more expensive in­
stallation is inherently better, if only as a piece of 
machinery, than a less expensive one. There is also 
no guarantee that a more expensive laboratory is 
capable of producing more language learning than 
a less expensive one, or indeed no language labora­
tory at all . # * * (During the period of excitement 
over the possibilities for audio-lingual instruction, 
many schools bought language labs that are now 
gathering dust.)” “ Mosteller & Moynihan, “On 
Equality of Educatonal Opportunity,” Dyer, page 
514-515. (Vintage Ed. 1972).

“Proposition of Education, No. 3:”
Achievement Test Scores Determine the Education 
Received; the Equality Thereof; and Whether There 
is an Equal Educational Opportunity.

But a major educational reading does gainsay the state­
ment :

“ The tendency is to assume that if on a reading 
test the 6th-grade pupils in a slum school average 
X points lower than those in a school in white 
suburbia, then X is the measure of the difference 
between the two schools in the effectiveness of 
reading instruction. The case may be quite the op­
posite: the slum school may be more effective than 
the suburban school in upgrading reading com­
petence, especially in light of the deficiencies it has 
had to overcome.” “ Mosteller & Moynihan, “On 
Equality of Educational Opportunity,” Dyer, page 
515. (Vintage Ed. 1972).



36

D. On Experimentation In Education And The Fourteenth 
Amendment

Certainly the State of Indiana does not say that there is 
no relationship between money spent, excellence of teachers, 
quality of facilities, teacher credentials, and the myriad 
concepts relating to educational standards and educational 
goals, and the product of the school system: the student. 
Obviously, there is ; but equally obvious, or it should be, is 
the fact that it is not yet determined to an extent that a 
rule of Constitutional Law can be declared based upon it. 
But if this Court were to approve the fashioning of an 
equity decree, based upon, essentially, achievement criteria 
and a disparity among them, then there would be a major 
obstruction by the Judiciary in the environment and de­
velopment of education programs, throughout Indiana and 
the United States.16

“ One of the compelling reasons for educational 
experiments is the importance for society of every 
improvement in the learning process.” Mosteller & 
Moynihan, “ On Equality of Educational Oppor­
tunity,” Syw, page 377. (Vintage Ed. 1972).

But success is still not a certain thing. For example:
Indeed, after half a century of tightly controlled 
studies of optimum class size, we have made practi­
cally no progress toward answering the question 
(perhaps nature is hinting that the question is a 
poor one as customarily phrased). It is not that we 
haven’t done controlled investigations, but rather 
that the studies have been too small and specialized 
for their implications to have mueh chance of hold­
ing in new situations.” Mosteller & Moynihan, “On

18 Mr. Justice Powell, concurring, spoke exactly to the point in saying: 
“In  an age in which empirical study is increasingly relied upon as a 
foundation for decision making, one of the more obvious merits of our 
federal system is the opportunity it affords each State, if its people so 
choose, to become a ‘laboratory’ and to experiment with a range of trial 
and procedural alternatives.” Johnson v. Louisiana, — U.S. —, 92 S.Ct. 
1635, 1641 (1972)



37

Equality of Educational Opportunity” page
375. (Vintage Ed. 1972).

“ The controversies about the Coleman Report 
show that we still are ignorant of what makes edu­
cation tick for children and of why what works for 
some doesn’t seem to for others. For whom is 
laissez faire wise, and for whom a lockstep pro­
gram? Naturally we do not expect that only one 
sort of program is workable, because children can 
adapt to or resist most things. Our point is that 
when a big national effort is as little understood as 
education now is, we are obligated to experiment.” 
(Emphasis added). Hosteller & Moynihan, “On 
Equality of Educational Opportunity”, page 378 
(Vintage Ed. 1972).

To say that equity, as a judicial matter, should recognize 
as a judicial wrong the achievement level distinctions 
among students in public schools, and then proceed to 
order that the levels be equalized, pursuant to a decree 
which a District Court might attempt to fashion, is judicial 
obstructionism in its worst form; indeed, the Court might 
as well order an Opera Soprano to sing well.

To try to succeed is the essence of the thing, and that, 
precisely, is what the Denver School District was, and is, 
attempting to do.

The conclusion is manifest : the Fourteenth Amendment 
should not be construed to effect the adoption, as a matter 
of Constitutional law, of one specific educational policy, 
and programmatical result: equal achievement levels.

CONCLUSION
Mr. Justice Holmes once observed that,

“ The Fourteenth Amendment does not enact Mr. 
Herbert Spencer’s Social Statics. . . . Some of these 
laws embody convictions or prejudices which judges 
are likely to share. Some may not. But a constitution 
is not intended to embody a particular economic



theory, whether of paternalism and the organic 
relation of the citizen to the State or of laissez 
faire.” Lochner v. New York, 198 U.S. 45, 75-76 
(1905).

If this be so, then must the Fourteenth Amendment 
embody the social-educational theory of a Dr. Neal Sulli­
van, among several others?

In reversing the District Court in Richmond, Virginia, 
the United States Court of Appeals for the Fourth Circuit 
said, in speaking about the expert testimony in that case, 
that,

“ We think it fair to say that the only ‘educational’ 
reason offered by the numerous school experts in 
support of consolidation was the egalitarian concept 
that it is good for children of diverse economic, 
racial and social background to associate together 
more than would be possible within the Richmond 
school district. Bradley v. School Board of Rich­
mond, Virginia, (June 5, 1972, slip opinion at page 
25).

One can look at this case in Denver, and the record which 
was produced, and see that a similar tide was running. 
It was, as is,17 that a particular theory, a particular way 
of approach, a specific “ educational” program, a specific 
theory of “ education” , namely social reform and massive

17 In the Richmond case, the principal expert testimony for the plain­
tiffs came from Dr. Thomas F. Pettigrew, whose central theme was that 
all good things shall come from a carefully calibrated racial mixture 
which would give white superiority by, ideally, about a 70-30 ratio. 
Here the expert testimony was only less candid.

“The invidious nature of the Pettigrew thesis, advanced by the dissent 
in the present case, thus emerges. Its central proposition is that the 
value of a school depends on the characteristics of a majority of its 
students and superiority is related to whiteness, inferiority to black­
ness. Although the theory is couched in terms of ‘socio-economic class’ 
and the necessity for the creation of a ‘middle-class milieu,’ nevertheless, 
at bottom it rests on the generalization that, educationally speaking, 
white pupils are somehow better or more desirable than black pupils.” 
Brunson v. Board of Trustees, 429 F.2d 820, 826 (4th Cir. 1970) (Judge 
Sobeloff, concurring).



39

societal remolding, should receive not only approval, but 
the dignity and the compulsion of constitutional law.

In the core area of Denver, there was no racial dis­
crimination; there was no dual school system; there has 
never been. But the District Court wanted a result. That 
result was the mixing of persons in the schools, so that the 
public schools in Denver could act, according to the District 
Court, as a substitute for the home and the church. To ac­
complish that result, the District Court attached itself to 
equal achievement levels and from this it evolved a prin­
ciple and holding of constitutional law.

It is clear that the curse at which Holmes directed his 
pen remains. It is the curse of binding constitutional 
rigidity based upon the cry of the moment, and the passion 
of the hour: equal achievement levels in the public schools. 
The terrible flaw in the District Court’s desire is that it 
read the Constitution to embrace exclusively the passion 
of the moment. But the record in this case does not support 
the District Court; and massive other data do not support 
the District Court. Further, this Court should resist fully 
the temptation to enter into the thicket of educational 
policy and educational philosophy.

Accordingly, the State of Indiana urges that this Court 
affirm the decision of the United States Court of Appeals 
in this case, to the extent that it reversed the District Court.

Respectfully submitted,

T heodore L. Sendak
Attorney General of Indiana
W endell C. H amacher.
Deputy Attorney General
W illiam F. H arvey
Special Counsel for the
Attorney General



APPENDIX



FOURTEENTH AMENDMENT TO THE 
CONSTITUTION OF THE UNITED STATES

Section 1:
§ 1. Citizenship—Due process of law—Equal protec­

tion.—All persons born or naturalized in the United States, 
and subject to the jurisdiction thereof, are citizens of the 
United States and of the state wherein they reside. No 
state shall make or enforce any lawr which shall abridge 
the privileges or immunities of citizens of the United States; 
nor shall any state deprive any person of life, liberty, or 
property, without due process of law; nor deny to any 
person within its jurisdiction the equal protection of the 
laws.
Section 5.

§ 5. Power to enforce amendment.—The congress shall 
have power to enforce, by appropriate legislation, the pro­
visions of this article.

CIVIL RIGHTS ACT OF 1964
42 U.S.C. 2000c 
§ 2000c. Definitions
As used in this subchapter—

(a) “Commissioner” means the Commissioner of Edu­
cation.

(b) “Desegregation” means the assignment of stu­
dents to public schools and within such schools without 
regard to their race, color, religion, or national origin, 
but “desegregation” shall not means the assignment of 
students to public schools in order to overcome racial 
imbalance.

(c) “Public school” means any elementary or sec­
ondary educational institution, and “public college” 
means any institution of higher education or any tech­
nical or vocational school above the secondary school 
level, provided that such public school or public college 
is operated by a State, subdivision of a State, or govern-

la



2 a

mental agency within a State, or operated wholly or 
predominantly from or through the use of governmental 
funds or property, or funds or property derived from a 
governmental source.

(d) “School board” means any agency or agencies 
which administer a system of one or more public schools 
and any other agency which is responsible for the as­
signment of students to or within such system.

Pub.L. 88-352, Title IV, § 401, July 2,1964, 78 Stat. 246.

42 U.S.C. 2000c-6
§ 2000c-6. Civil actions by the Attorney General—Com­

plaint; certification; notice to school board or 
college authority; institution of civil action; 
relief requested; jurisdiction; transportation 
of pupils to achieve racial balance; judicial 
power to insure compliance with constitutional 
standards; impleading additional parties as 
defendants

(a) Whenever the Attorney General receives a com­
plaint in writing—

(1) signed by a parent or group of parents to the 
effect that his or their minor children, as members of a 
class of persons similarly situated, are being deprived 
by a school board of the equal protection of the laws, or

(2) signed by an individual, or his parent, to the 
effect that he has been denied admission to or not per­
mitted to continue in attendance at a public college by 
reason of race, color, religion, or national origin,

and the Attorney General believes the complaint is meri­
torious and certifies that the signer or signers of such 
complaint are unable, in his judgment, to initiate and 
maintain appropriate legal proceedings for relief and that 
the institution of any action will materially further the 
orderly achievement of desegregation in public education, 
the Attorney General is authorized, after giving notice of 
such complaint to the appropriate school board or college



authority and after certifying that he is satisfied that such 
board or authority has had a reasonable time to adjust the 
conditions alleged in such complaint, to institute for or in 
the name of the United States a civil action in any ap­
propriate district court of the United States against such 
parties and for such relief as may be appropriate, and such 
court shall have and shall exercise jurisdiction of proceed­
ings instituted pursuant to this section, provided that noth­
ing herein shall empower any official or court of the United 
States to issue any order seeking to achieve a racial bal­
ance in any school by requiring the transportation of pupils 
or students from one school to another or one school district 
to another in order to achieve such racial balance, or other­
wise enlarge the existing power of the court to insure 
compliance with constitutional standards. The Attorney 
General may implead as defendants such additional parties 
as are or become necessary to the grant of effective relief 
hereunder.

Persons unable to initiate and maintain legal proceedings
(b) The Attorney General may deem a person or per­

sons unable to initiate and maintain appropriate legal 
proceedings within the meaning of subsection (a) of this 
section when such person or persons are unable, either 
directly or through other interested persons or organiza­
tions, to bear the expense of the litigation or to obtain 
effective legal representation; or whenever he is satisfied 
that the institution of such litigation would jeopardize the 
personal safety, employment, or economic standing of such 
person or persons, their families, or their property.

“Parent” and “complaint” defined
(c) The term “parent” as used in this section includes 

any person standing in loco parentis. A “complaint” as 
used in this section is a writing or document within the 
meaning of section 1001, Title 18. Pub.L. 88-352, Title IV, 
§ 407, July 2,1964, 78 Stat. 248.



4 a

42 U.S.C. 2000c-9
§ 2000c-9. Classification and assignment

Nothing in this subchapter shall prohibit classification 
and assignment for reasons other than race, color, religion 
or national origin.

Pub.L. 88-352, Title IV, § 410, July 2, 1964, 78 Stat. 249.



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