Orange County, FL School Board v. Ellis Brief in Opposition to Certiorari

    (tart nt tip lutteii States
October Term, 1972 

No. 72-722

1^ th e

The School B oard of Orange County, F lorida,

Petitioner,
— v . — •

Evelyn R. Ellis, et al.

on petition for a writ of certiorari to the
U N IT E D  STATES COURT OF APPEALS FOR T H E  F IF T H  CIRCU IT

BRIEF IN OPPOSITION TO CERTIORARI

J ack Greenberg 
J ames M. Nabrit, III 
Norman J. Chachkin 
Drew S. Days, III

10 Columbus Circle 
New York, New York 10019

Norris D. W oolfork, III
305 South Parramore Avenue 
Orlando, Florida 32805

Attorneys for Respondents



TABLE OF CONTENTS

PAGE

Opinions B elow ............. ...... ..... ............ ...... ............ .........  1

Questions Presented.......... .......... ........ ...................... ......  1

Argument ..... ................................................ ......... -........ .. 2

Conclusion......... ............... ............................ .........................  6



I n th e

Ihtpmn? ©irnrt nt %  Intftft Elates
October Term, 1972

No. 72-722

T he School B oard oe Orange County, F lorida,

Petitioner,
—v.—

E velyn R. E llis, et al.

ON P E TITIO N  FOR A W R IT  OE CERTIORARI TO T H E  

U N IT E D  STATES COURT OE APPEALS FOR T H E  F IF T H  CIRCUIT

BRIEF IN OPPOSITION TO CERTIORARI

Opinions Below

The order, judgment and opinion of the United States 
Court of Appeals for the Fifth Circuit is now reported at 
465 F.2d 878 (1972).

Questions Presented

1. Whether a school board should be absolved from de­
segregating for the first time certain all-black or virtually 
all-black schools in 1973, nineteen years after Brown v. 
Board of Education and eleven years after suit was filed 
by black parents and students seeking an end to the dual,



2

racially-segregated system administered by that board, 
based upon a 1964 stipulation agreeing to the construction 
of such schools where the stipulation envisioned, among 
other things, the desegregation of the schools in question 
by the beginning of the 1965-66 academic year.

2. Whether the court of appeals erred in rejecting a 
finding of the trial court that desegregation of an all-black 
school was infeasible by means of “cross-busing of the 
youngest children (grades one through six)” where such 
children had historically been bused by the board to per­
petuate segregation and for purposes unrelated to de­
segregation.

Argument

On April 6,1962, black parents and students (hereinafter, 
“ respondents” ) filed this lawsuit seeking an end to the dual, 
racially-segregated school system in Orange County, Flor­
ida administered by the petitioner, School Board of Orange 
County.1 On November 5,1963, a Special Freeholders’ Bond 
Election resulted in the approval of a $25,000,000 bond is­
sue to fund the construction of certain specifically desig­
nated new schools and the renovation of other school facili­
ties in Orange County, Florida. In May, 1964 respondents 
sought to enjoin the Board from issuing bonds as author­
ized, asserting that the construction and renovation of 
schools planned would simply reinforce and perpetuate the 
dual, segregated system which had not been altered in any 
significant respect since filing of the desegregation suit two 
years earlier.

Bespondents withdrew their motion to enjoin issuance 
of bonds pursuant to a stipulation entered into with the

1 Formerly called, “ the Board of Public Instruction of Orange 
County.”



3

Board, also in May, 1964, in exchange for the following con­
cessions : first, complete desegregation of the Orange 
County system would he accomplished from grades 1-12 by 
1967-68 according to a “ stair-step” desegregation plan;2 
second, under the plan, students would be assigned to the 
schools nearest their homes, irrespective of race or color; 
third, new schools would be located and additions to exist­
ing facilities carried out without concern for the effect of 
such actions upon the race or color of the student bodies 
of such facilities; and fourth, the construction of two new 
schools on sites accessible to both black and white students 
would be lifted from the low priority accorded their con­
struction under the bond issue schedule to high priority, 
over the construction of facilities accessible only to white 
students given first priority by the bond issue.

Petitioner alleges that four schools—Hungerford, Maxey, 
Orange Center and Richmond Heights—were built subse­
quent to and in reliance upon the 1964 stipulation. In fact, 
however, Richmond Heights had already been constructed 
at the time the stipulation was entered into, though it did 
not open for classes until 1965. Moreover, Hungerford 
Elementary was actually built in 1958, before the stipula­
tion, and later restructured in 1962 and 1965. Hence, the 
construction of only Orange Center and Maxey Elemen- 
taries can be regarded as having any relation at all to the 
1964 stipulation. Nevertheless, the histories of all four 
schools reveal the following facts: first, each was built to 
relieve overcrowding at old, all-black facilities; second, 
significant numbers of white students lived in the areas of 
the old, all-black schools who were transported to more 
distant all-white schools; third, if transported students

2 During the school year 1964-65 grades 1, 2 and 7 were to be 
desegregated; all grades between 1 and 8 were to be desegregated 
by the 1965-66 school year.



4

had been sent to these new schools subsequent to their 
construction, significant numbers of white students would 
have been enrolled; fourth, no white students attended any 
of these schools until September, 1970 subsequent to the 
order of the Fifth Circuit Court of Appeals finding that 
the Orange County System was still dual with respect to 
student assignment, Ellis v. Board of Public Instruction of 
Orange County, Florida, 423 F.2d 203 (5th Cir., 1970); 
fifth, by May, 1971, after years of racial assignments by 
petitioner of white students away from the four schools in 
question to more distant all-white schools, the number of 
white students living near Hungerford, Maxey, Orange 
Center and Richmond Heights had decreased substantially 
from that present at the time of their construction.

The issue in this case is simpler than the Board would 
have this Court believe: namely, can petitioner absolve 
itself from its obligation to desegregate Orange Center and 
Richmond Heights Elementaries3 in 1973 based upon a 
stipulation which, among other things, envisioned the im­
plementation by petitioner of a desegregation plan that 
would have eradicated the dual system by the 1965-66 aca­
demic year, eight years ago? (see N.2, supra). Contrary 
to the Board’s assertions, respondents did not stipulate to 
the construction of Richmond Heights on its present site, 
since it was built before the stipulation was entered into; 
respondents did not agree to the construction of Orange 
Center on its present site with the expectation that it would 
be all-black, since significant numbers of white students 
resided near the school. Instead, respondents agreed to 
the construction of Orange Center based upon petitioner’s 
representation that students would be assigned to schools

3 Hungerford and Maxey Elementaries were held to be desegre­
gated by the Fifth Circuit, a holding with which respondents did 
not agree but which they decided not to challenge.



5

“without regard to race or color” leading inevitably to the 
assignment of white students to Orange Center, and for 
that matter, to Hungerford, Richmond Heights and Maxey.

Petitioner also finds fault with that portion of the Fifth 
Circuit order requiring desegregation of Eccleston Ele­
mentary School. In so holding, that court rejected a finding 
by the trial court that such desegregation was infeasible 
since it “would require cross-busing of the youngest sehool 
children (grades one through six)” . The appellate court’s 
ruling is eminently sound, warranting no review by this 
Court. Though Swann v. Charlotte-MecJclenburg Board of 
Education, 402 U.S. 1 30 (1971) does suggest that such mat­
ters as age of the children and distances may be considered 
by trial courts in determining the feasibility of desegrega­
tion plans requiring busing, it does not stand for the 
proposition that, as a matter of law, younger children may 
not be bused; compelling evidence must be presented to the 
trial court which demonstrates that a proposed busing plan 
will cause severe hardship to younger children. Despite 
the requirement of Swann, supra (and, in fact, for that 
matter, of the Federal Rules of Civil Procedure) that the 
trial court determine the feasibility of a plan based upon 
evidence, petitioner presented no evidence to establish that 
cross-busing to desegregate Eccleston would have harmful 
effects upon young children; quite to the contrary, respon­
dents presented evidence to establish that cross-busing 
would involve trips to between 3.6 and 4.6 miles and be­
tween 11 to 14 minutes travel time—statistics well within 
those relating to transportation of younger children carried 
out by the Board in the past for purposes unrelated to 
desegregation. The trial court’s finding of fact was then, 
in effect, no finding at all but rather, viewed in its best 
light, mere surmise or conjecture by that court. Certainly



6

mere incantation of the reference in Swann, supra, to “ the 
age of the students” 4 cannot, absent a record, justify a 
court’s finding a desegregation proposal infeasible as was 
done here. That petitioner disagrees with the Fifth Cir­
cuit’s refusal to affirm the trial court’s finding on Eccleston 
based upon a bare record should be of no concern to this 
Court. The Fifth Circuit merely followed the law.

CONCLUSION
For the foregoing reasons, it is respectfully submitted 

that the Petition for a Writ of Certiorari should be denied.

Respectfully submitted,

J ack Greenberg 
J ames M. Nabrit, III 
Norman J. Chachkin 
Drew S. Days, III

10 Columbus Circle 
New York, New York 10019

Norris D. W oolfork, III
305 South Parramore Avenue 
Orlando, Florida 32805

Attorneys for Respondents

4 “An objection to transportation of students may have validity 
when the time or distance of travel is so great as to either 
risk the health of the children or significantly impinge on 
the education process. . . .  It hardly needs stating that the 
limits on time of travel will vary with many factors but 
probably with none more than the age of the students.” 
Swann, supra at 30-31.



MEILEN PRESS INC. —  N. Y. C. 219