LUBBOCK INDEPENDENT SCHOOL DISTRICT, PETITIONER v. THE TEXAS EDUCATION AGENCY, ET AL. No. 86-505 In the Supreme Court of the United States October Term, 1986 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit Brief for the United States in Opposition TABLE OF CONTENTS Opinions below Jurisdiction Question Presented Statement Argument Conclusion Appendix OPINIONS BELOW The opinion of the court of appeals (which is reprinted in an appendix to this brief) is reported at 790 F.2d 1262. The opinion of the district court (Pet. App. A1-Ae) is unreported. Previous opinions of the court of appeals are reported at 431 F.2d 1313 and 600 F.2d 518. Previous opinions of the district court (Pet. App. E1-E16) are unreported and reported at 455 F. Supp. 1223. JURISDICTION The judgment of the court of appeals was entered on June 4, 1986. A petition for rehearing was denied on July 3, 1986. The petition for a writ of certiorari was filed on September 27, 1986. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(a). QUESTION PRESENTED Whether part of the cost of a desegregation remedy should be assigned to a state education agency that has not been adjudged responsible for the underlying unconstitutional condition. STATEMENT 1. The United States initiated this action in district court in 1970, demanding that respondent, Texas Education Agency (TEA), require six school districts, including petitioner, Lubbock Independent School District, to prepare and submit appropriate school desegregation plans (App., infra, 2a). The actions against the various districts were subsequently severed, however, and the United States had to proceed separately against petitioner (ibid.). After a full trial, the court found that several schools in petitioner's district were "racially identifiable" (Pet. App. E3-E4, E9, E12-E14). The court did not determine what caused these particular schools to take on their racial character; it simply ordered petitioner to take specific affirmative steps to desegregate them (id. at E7-E8, E9-E10, E14-E15). Though TEA was nominally a party to this action, it did not appeal the court's judgment (id. at 3a). In 1977, petitioner requested that the court permit it to implement a new building construction program (App., infra, 3a). The United States opposed this request and, instead, asked the court to order petitioner to further desegregate its schools (ibid.). After another hearing, the court agreed with the United States that petitioner had continued to segregate black and Hispanic school children and ordered petitioner to implement more extensive desegregation measures (ibid.). Again, though still named as a nominal defendant, TEA did not participate in the proceedings, was not adjudged responsible for the unlawful conditions, and had no relief directed against it (id. at 2a). Not satisfied with the relief granted against petitioner, the United States sought review of the district court's order (App., infra, 3a). Accepting the United States' arguments, the appellate court remanded for a determination whether the additional segregation found in 1977 was the product of deliberate school board action. See United States v. TEA, 600 F.2d 518, 529 (5th Cir. 1979). The district court then entered additional findings, from which both petitioner and the United States appealed (App., infra. 3a). While these appeals were pending, however, petitioner and the United States settled their dispute, submitted a proposed consent decree to the district court, and voluntarily dismissed the appeals (id. at 3a-4a). The district court approved the proposed decree in November 1983 (ibid.). TEA took no part in the negotiation of the decree, was not a party to it, and had no obligations under it (id. at 4a). 2. Nevertheless, in August 1984, petitioner filed a motion with the district court, which asserted that the State of Texas was partially responsible for the segregation within petitioner's schools and that TEA should reimburse petitioner for part of the costs of implementing the court-imposed desegregation remedies (see App., infra, 4a; see also Pet. App. A1). But the court found that "(t)he issues (previously) before (it) and the Court of Appeals concerned actions taken by the school board well after the State had abolished (its) dual education system" (Pet. App. A2) and that "nothing in the record * * * indicate(d) that the State was in any way responsible for the continued segregation of Lubbock schools" (ibid.). Accordingly, it refused to hold TEA "liable for a part of the costs of desegregation" (ibid.). 3. The court of appeals affirmed (App., infra, 1a-7a). It found that "the district court's original order in this case -- the 1970 order upon which (petitioner) bases its entire argument -- did not attribute responsibility for specific segregation to any (specific) defendant" (id. at 5a) and that, by contrast, "(t)he 1977 order * * * seems to indicate unmistakably that the only culpable party was (petitioner)" (ibid.). Furthermore, the court noted that petitioner "did not seek to recover any costs for the period between 1970 and 1977" (id. at 61), the only period during which "the district court order even arguably pertained to the State of Texas; the 1977 and subsequent orders were explicitly directed at -- and limited to -- (petitioner)" (ibid. (emphasis in original)). Accordingly, the court agreed with the district court that TEA had "never been adjudicated responsible for that segregation in Lubbock which has proven costly to eliminate" (id. at 71), that petitioner's "belated effort to recover costs" was simply "an attempt() (to make) an end-run around the Texas legislature's allocation of state funds" (ibid.), and that petitioner's motion to divide costs was without merit (ibid.). ARGUMENT The decision below is correct. It does not conflict with any decision of this Court or with the decision of any court of appeals. Accordingly, further review is not warranted. 1. This Court has long held that federal courts may order defendants to remedy only those violations of federally secured rights for which the defendants have been held legally responsible. See General Building Contractors' Ass'n v. Pennsylvania, 458 U.S. 375, 397-401 (1982); Hills v. Gautreaux, 425 U.S. 284, 293-294 (1976). Thus, this Court and the courts of appeals uniformly have allowed a state or its officials to be held liable for part of the cost of a desegregation remedy only when the state or its officials have first been found to have caused, in whole or in part, the constitutional wrong in question. See Milliken v. Bradley, 433 U.S. 267, 282-283 (1977); Liddell v. Missouri, 731 F.2d 1294, 1297 (8th Cir.), cert. denied, 469 U.S. 816 (1984); Arthur v. Nyquist, 712 F.2d 809, 810-811 (2d Cir. 1983), cert. denied, 466 U.S. 936 (1984); United States v. Board of School Commissioners, 677 F.2d 1185, 1186 (7th Cir.), cert. denied, 459 U.S. 1086 (1982). Since neither the State of Texas nor TEA has ever been adjudged responsible for the segregation in petitioner's schools, the court below was quite correct in holding that TEA may not be required to pay for part of the costs petitioner has incurred in desegregating its racially identifiable schools. See General Building Contractors' Ass'n v. Pennsylvania, 458 U.S. at 400-401; cf. Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77 (1981) (no federal right to contribution, except in admirality matters, without a statute authorizing such a remedy). 2. Petitioner errs in suggesting (Pet. 7-8) that TEA has in fact been found "culpable" for the segregation that petitioner has been required to remedy (and for the costs of which petitioner now seeks reimbursement). For one thing, neither the State of Texas nor TEA has ever expressly been held legally responsible for the "racial identifiability" of any schools in petitioner's district. While the district court's 1970 decree does suggest that vestiges of state-mandated segregation remained extant in Lubbock at that time (see Pet. App. E3-E4, E9, E12-13), the decree does not "indicate whether the actual segregation then (in) evidence resulted primarily from earlier state laws or from subsequent * * * gerrymandering of attendance zones" by petitioner (App., infra, 5a). By contrast, "(t)he 1977 order * * * seems to indicate unmistakably that the only culpable party was (petitioner)" (ibid.). In any event, as both the district court and the court below noted (see Pet. App. A1; App., infra, 5a-6a), "the money (petitioner) expended for purposes of desegregation (which it now seeks to recover) grew out of the district court's 1977 and subsequent orders" (App., infra, 6a), and those "orders were explicitly directed at -- and limited to -- (petitioner)" (ibid.). Thus, the costs that petitioner now seeks to recover clearly do not arise from remedies attributed to any acts of discrimination for which the State of Texas or TEA has formally been adjudged responsible. 3. Likewise, petitioner plainly errs in suggesting (Pet. 8-9) that the court below relied on the Eleventh Amendment in affirming the district court's denial of petitioner's motion to divide costs. The court referred to the Eleventh Amendment only once in its opinion -- in describing one of the bases of the district court's holding -- and clearly did not base its decision on that Amendment. See App., infra, 4a. Rather, the court based its decision on the principle that a federal court should not order a party to remedy a constitutional violation for which that party has not been adjudged legally responsible. See id. at 4a-6a (idscussing this Court's decision in Milliken v. Bradley, 433 U.S. 267 (1977)). As noted above, that principle is well established in this Court's case law. See id. at 282-283; General Building Contractors' Ass'n v. Pennsylvania, 458 U.S. at 397-401. /1/ 4. As the plaintiff in this case, the United States has a significant interest in ensuring that the financial responsibility for ending school desegregation is properly allocated. Under the theory advanced by petitioner, every school district in the southern and border states which required separate schools for white and black children prior to 1954 could attempt to recover part of the costs of their desegregation remedies from their parent state school agencies, regardless of whether findings supporting liability of those agencies have been made, or whether the United States has ever sought to hold the state-level education officials or agencies liable. Reallocating the responsibility for desegregation remedies in this fashion, however, would simply discourage state school agencies from cooperating with the United States and from prompting local school districts to remedy the vestiges of their past discrimination. The court below properly declined to undermine the United States' enforcement efforts in this manner. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. CHARLES FRIED Solicitor General WM. BRADFORD REYNOLDS Assistant Attorney General WALTER W. BARNETT FRANK D. ALLEN, JR. Attorneys DECEMBER 1986 /1/ The court's suggestion (App., infra, 7a) that petitioner's "belated effort to recover costs" is an attempt to make "end-run around the Texas legislature's allocation of state funds" is clearly dictum. In any event, the observation is not a statement that the Eleventh Amendment barred petitioner's motion, but rather an understandable rebuke of petitioner's morning-after litigation tactics. APPENDIX