Applications of a school district and a group of intervenor
parents, children, and citizens to stay, pending disposition of
their petition for certiorari, the Court of Appeals' mandate to the
District Court to prepare and implement a school desegregation plan
for the 1981-1982 school year are denied. There is no reasonable
probability that four Members of the Court will vote to grant
certiorari.
JUSTICE POWELL, Circuit Justice.
A school district in Beaumont, Tex., and a group of intervenor
parents, children, and citizens have requested me, as Circuit
Justice, to stay the mandate of the Court of Appeals for the Fifth
Circuit pending disposition of their petition for a writ of
certiorari. The Court of Appeals ordered the District Court to
prepare and implement a desegregation plan to operate during the
1981-1982 school year. For the reasons stated below, I must deny
the applications.
Much of the history of this lawsuit is set out in
Huch v.
United States and South Park Independent School District v. United
States, 439 U. S. 1007,
1008 (1978) (REHNQUIST, J., dissenting from denial of certiorari).
In brief, prior to 1970, the applicant school district maintained a
dual school system based on
de jure racial segregation. In
that year, the District Court entered a school integration plan
that was accepted
Page 453 U. S. 1302
by all parties. The plan established racially neutral attendance
zones for each school, and included a provision allowing any
student to transfer from a school where his race was in the
majority to one where it was in the minority.
In 1976, the United States filed a motion for supplemental
relief, alleging that a dual system still existed in fact. The
District Court denied relief, holding that its 1970 order had
created a unitary school system and finding that the present racial
concentrations in the school district were the result of shifting
residential patterns, the transfer of some pupils to private
schools, and other factors beyond the control of the school
district. It held that it no longer retained jurisdiction over the
case, and that the United States must file a new complaint if it
seeks further relief.
The Court of Appeals reversed. 566 F.2d 1221 (1978). Relying on
Swann v. Charlotte-Mecklenburg Board of Education,
402 U. S. 1,
402 U. S. 26
(1971), it held that the District Court's findings were
insufficient to show that the predominance of substantially
one-race schools was not the result of past or present acts of
intentional discrimination. The court remanded to the District
Court to hold further hearings on the question whether the school
district is now a unitary system. This Court denied certiorari.
439 U. S. 1007.
Two Justices dissented, suggesting that the case presented an
important issue whether
Pasadena City Board of Education v.
Spangler, 427 U. S. 424
(1976), precluded continuing jurisdiction by the District Court
where all parties had acquiesced in a desegregation plan six years
previously.
On remand, the District Court held an evidentiary hearing and
made findings of fact. It found that the 1970 order created a
unitary school system by implementing a racially neutral attendance
zone for each school, and that the court was now without
jurisdiction to entertain a motion for supplemental relief. The
court recounted at length evidence tending to show that the "lesser
percentage of desegregation
Page 453 U. S. 1303
that had been anticipated" was caused by demographic changes and
parental resistance. The court found no evidence that the school
district had committed any act of intentional discrimination, but
rather that the authorities had implemented the 1970 plan in good
faith.
The Court of Appeals again reversed.
United States v. Texas
Education Agency, 647 F.2d 504 (1981). It held that the
District Court's finding that the implementation of the 1970 order
had created a unitary school system was clearly erroneous. In
reaching this decision, the court compared statistics concerning
the racial composition of schools in the district in the 1969 and
1979 school years. These statistics indicate that there has been
little lasting progress in achieving schools with balanced pupil
populations. In 1969, 15 of 20 schools in the district had student
populations 90% or more of one race; in 1979, 11 of 18 still were
90% or more of one race. The percentage of blacks in the system
rose from 33% in 1969 to 40% in 1979. The court held that the
District Court retained jurisdiction because these figures proved
that the school authorities "had failed to eliminate the continuing
system wide effects of the prior discriminatory dual school
system."
Id. at 508.
The standards for granting a stay of mandate pending disposition
of a petition for certiorari are well established:,
"[T]here must be a reasonable probability that four members of
the Court would consider the underlying issue sufficiently
meritorious for the grant of certiorari or the notation of probable
jurisdiction; there must be a significant possibility of reversal
of the lower court's decision; and there must be a likelihood that
irreparable harm will result if that decision is not stayed."
Times-Picayune Publishing Corp. v. Schulingkamp,
419 U. S. 1301,
419 U. S.
1305 (1974) (POWELL, J., in chambers).
I cannot conclude that there is a "reasonable probability" four
Members of the Court will vote to grant certiorari. The
Page 453 U. S. 1304
issues presented by applicants are almost identical to those
presented three years ago, when the Court voted to deny certiorari.
Indeed, much of the school district's argument for granting a stay
merely incorporates by reference JUSTICE REHNQUIST's opinion,
joined by me, dissenting from the denial of certiorari at that
time. Because this argument did not persuade the Court then, I
cannot predict responsibly that it will persuade the Court now.
Speaking for myself, I believe that the case in its present
posture merits review by this Court. The Court of Appeals, relying
exclusively on statistics comparing 1969 and 1979, rejected with
little explanation the District Court's finding of fact that the
implementation of the consensual 1970 plan had created a unitary
school system, and that the degree of segregation existing in 1980
was caused, not by any discriminatory action by the school
authorities, but by demographic changes in the public school
population and by private parental choice. The statistics relied on
by the Court of Appeals do not address the legal effect of the
implementation of the 1970 order or the legal cause of the degree
of present imbalance. These latter questions should determine
whether the District Court retains jurisdiction over the local
schools.
It seems to me that the Court of Appeals may have erred as a
matter of law in failing to give appropriate recognition to the
District Court's factual findings as to the cause of the lack of
present integration.
Pasadena made clear that, once a
unitary school system has been attained, the District Court no
longer has jurisdiction to continue its oversight, respond to
inevitable demographic changes, and attempt by judicial decree to
maintain for an indefinite time what it perceives to be a desirable
racial mix in the schools. This is not to say, of course, that a
federal court should not respond forcefully to proof of fresh or
continued racial discrimination.
In sum, it seems to me that there is an impasse between the
District Court and the Court of Appeals as to the meaning
Page 453 U. S. 1305
of our decision in
Pasadena. This is an important
question of law. For this reason, I expect to vote to grant
certiorari. Yet I cannot say with confidence that the requisite
number of other Justices will join me. Accordingly, the requests
for a stay are denied.
* Together with No. A-33,
Huch et al. v. United States,
also on application for stay of the same mandate.
Comments
Be the first to comment
Leave a Comment