Daniel v. Paul Appendix

    % » To 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

NO.   
  

LOUISIANA: 

LAWRENCE HALL, et al., 

Appellants, 

UNITED STATES, | 

Appellants. 

. 

ST. HELENA PARISH SCHOOL BOARD, et al., 

Appellees. 

  

JAMES WILLIAMS, JR., et al., 

Appellants, 

UNITED STATES, 

Appellants, 

Vv. 

IBERVILLE PARISH SCHOOL BOARD, et al., 

Appellees. 

  

/ YVONNE MARIE BOYD, et al., 
V 

Appellants, 

UNITED STATES, 

Appellants, 

Vo. 

THE POINTE COUPEE PARISH SCHOOL BOARD, et. al., 

Appellees. 
  

  
 



      

TERRY LYNN DUNN, et al., 

Appellants, 

UNITED STATES, 

Appellants, 

Vv, 

LIVINGSTON PARISH SCHOOL BOARD, et al., 

Appellees. 
de 

  

WELTON J. CHARLES, JR., et al., 

Appellants, 

UNITED STATES, 

Appellants, 
Th 

ASCENSION PARISH SCHOOL BOARD, and GORDON WEBB 

Appellees. 

  

DONALD JEROME THOMAS, et al., 

Appellants, 

¥Y. 

WEST BATON ROUGE PARISH SCHOOL BOARD, et al., 

Appellees. 

  

MISSISSIPPI: 

JOAN ANDERSON, et al., 

Appellants, 

UNITED STATES, 

Appellants, 

Vv. 

THE CANTON MUNICIPAL SCHOOL DISTRICT, et al., 
and THE MADISON COUNTY SCHOOL DISTRICT, et al. 

Appellees.’ 

  

  
 



      

® » 

BEATRICE ALEXANDER, et al., 

Appellants, 

Vv. 

HOLMES COUNTY BOARD OF EDUCATION, et al., 

Appellees. 

  

ROY LEE HARRIS, et al., 

Appellants, 

+ 

THE YAZOO COUNTY BOARD OF EDUCATION, et al., 

Appellees. 

  

JOHN BARNHARDT, et al., 

Appellants, 

a > 

MERIDIAN SEPARATE SCHOOL DISTRICT, et al., 

Appellees. 

  

JEREMIAH BLACKWELL, JR., et al., 

Appellants, 

Vv. 

ISSAQUENA COUNTY BOARD OF EDUCATION, ef al., 

Appellees. 

  

DIAN HUDSON, et al., 

Appellants, 

UNITED STATES ’ 

Appellants, 

YN. 

LEAKE COUNTY SCHOOL BOARD, oh nl 

Appellees. 

  

  
 



      

CHARLES KILLINGSWORTH, et al., 

Appellants, 

Vv. 

THE ENTERPRISE CONSOLIDATED SCHOOL DISTRICT, et al., 

THE QUITMAN CONSOLIDATED SCHOOL DISTRICT, et al., 
and THE CLARK COUNTY BOARD OF EDUCATION, et al., 

Appellees. 

  

MOTION FOR SUMMARY REVERSAL 
  

I. 

Appellants represent a class of Negro children eligible to 

attend public schools in the respective school districts named in 

this consolidated appeal. Appeal is taken from the orders of 

the United States District-Courts for the Eastern District of 

Louisiana and the Southern District of Mississippi. 

The actions by the judges of the district courts below 

contravene or will Perens to contravene clearly controlling 

decisions of the Supreme Court of the United States in Green v. 

County School Board of New Kent County, Virginia, B.8. 
  

20: L,.ed. 24 716, May 27, 1968; Raney v. The Board of Education of 
  

the Gould School District, U.5. y 20 L.ed, 28 727, 
  

May 27, 1968; and Monroe v. Board of Commissioners of the City 
  

of Jackson, Tennessee, U.S. 12D L.ed. 26 733, May 27, 

1A 
1968, as well as the decision of this court in Jefferson. The 

  

  

actions of the district courts are also in contravention of the 

direction of this court in Acree v. County Board of Education of 
  

Richmond County, Ga., No. 26369, decided July 18, 1968. Similar   

questions with reference to the implementation of Green are 

  

RY United States v. Jefferson County Board of Education, 
372 F.2d 836, affirmed with modifications on rehearing en 
banc, 380 F.2d 385, cert. denied sub. nom Caddo Parish 

School Board v. United States, 389 U.S. 840 (1967). 

      

  

  

    

  
 



  

presented in Clarence Anthony et al. v. Marshall County Board 
    

of Bdcuation, C. A. No. 26432 filed July 19, 1968, 
  

Because the decision and actions of the courts below will, 

unless fully reversed, frustrate and defeat the constitutional 

mandate for school integration furnished by the Supreme Court 

on May 27, 1968 and the clear statements of this court in 

Jefferson,consolidation of the appeals, summary reversal, and 
  

injunctive relief from this court are necessary and proper. 

1. In each of the cases presented in this appeal the 

plaintiffs have filed motions for further relief seeking to 

implement the Green decision for the 1968-69 school year and to 

secure the adoption of desegregation plans based upon geographic 

zoning, pairing, and consolidation of schools. Copies of these 

Green motions are attached as Appendix A. 

2. The history of the desegregation effort in each of the 

appellees' systems is set forth in the motions for further 

relief. In each of these motions the results of the operations 

of the defendants-appellees' free choice plan of desegregation 

are set forth. These summaries are based on evidence filed in 

the court below by the respondent school boards. 

Most of the appellees school systems operate a relatively 

small number of schools. None operate a substantial number of 

schools. All of the appellee systems operate and will continue’ 

to operate for the 1968-69 school year a number of ail-Nenvo 

schools. 

3. All of the appellees school systems previously operated 

dual school systems based on race pursuant to state laws. None P 

of the appellees' systems have more than 15% of the Negro students         
 



  

2 / md 

in their systems attending schools with white students. ~ In:all 

of the appellees' systems the pattern of assignment of faculty 

and staff still reflects the racial identity of schoolsdespite, 

in some cases, token faculty desegregation. 

1x. 

on May 27, 1968, the Supreme Court of the United States ruled 

that "freedom-of-choice" plans must be held unacceptable "if there 

are reasonably available other ways, such for illustration as 

zoning, promising speedier and more effective conversion to a 

unitary nonracial school system" (Green, supra, 20 L.ed. 2d at 
  

725). School boards were henceforth required to "fashion steps 

which promise realistically to convert promptly to [systems] 

without a "white" school and "Negro" school, but just "schools" 

(Green, supra, 20 L.ed. 24 at 726). 
  

TX1. 

The Baton Rouge Division of the 
Eastern District of Louisiana 
  

This is the second time within twelve months that appellants 

have had to come to this Court to secure compliance by the 

Honorable E. Gordon West, United States District Judge foi the 

Eastern District of Louisiana (Baton Rouge Division), with the 

constitutional principles enunciated by this and the Supreme 

Court of the United States. 1ash year the court Se tnsed to enter 

a Jefferson decree or to require that mandatory choice periods 
  

- be conducted. It was only after summary reversal by this Court, 

only weeks before the opening of school that Jefferson was 
  

entered and a proper choice period conducted. See Hall v. 

St. Helena Parish, consolidated with six other cases, No. 25092 
  

August 2, 1967. Now we come to this Court again to secure 

compliance with the Green decision by that same court in those 

very cases. The reasons advanced this year for failing to 

(continued on page 5) 

      i 4 See table on page 4.   
 



      

STATISTICAL SUMMARY 
  

The following table shows the percent of Negro students in 

each of the appellee school districts that are expected (based 

on the results of the Spring choice period) to be enrolled in 

previously all-whit 

districts using free choice, in none of these districts has a 

white child ever attended a formerly all-Negro school and none 

e schools. As has usually been the case in 

have chosen to do so for the 1968-69 school year. 

  

  

  

  

% of Negro Students Total Date School 
To Be Enrolled In Number of will 

District Previously White Schools Schools Open 

Louisiana: 

St. Helena less than 5 12 August 12 

Iberville " n+ RY h 26 

Pointe Coupee h 5.0 +10 " 21 

Livingston 2s el 24 " 26 

Ascension " EP 14 4 28 

West Baton Rouge h Tl 10. Sept. 3 

Mississippi: 

Canton Municipal 
and Madison County Less than 1 6 Sept. 3 

Holmes u hoo 4 ii dy 9 

Yazoo City and h 5 6 is 9 
County " n_..9 6 " 4 

Meridian J: h.1} 19 § 9 

Issaquena " hed 7 ~ Unknown 

Leake i ho 5 8 i 3 

Enterprise and ho'S 
Quitman 10 August 21 

In Green the Supreme Court invalidated free choice despite 

the fact that 15% of the Negro pupils in New Kent County had 

chosen the white school. 

    

  
 



      

implement the Green case, as were those last year, are entirely 

devoid of merit. 

On July 19th, 1968, the Honorable E. Gordon West conducted 

a joint hearing on motions to implement Green in eight school 

desegregation cases. This appeal tests his order in six of 

those Mood The court had before it also motions for 

continuances and for summary judgment filed by certain but not 

all of the school boards. The Court, after argument of counsel, 

but without further hearing, denied appellants' motions insofar 

as they requested an order requiring that appellees file 

geographic or pairing plans of desegregation to be implemented 

for the 1968-69 school year, thereby approving the use by the 

appellee boards of their "freedom of choice" plans for the 

1968-69 school year. Although the Court stated that it was not 

granting or denying anyone relief, but merely continuing the | 

cases, it stated: 

These questions simply cannot be intelligently 
answered and a new plan implemented or rejected 
before the commencement of the school year in 

September of 1968. (Transcript PD. 36.) 

The Court continued any hearing in the pending cases and stated 

that it would require the completion of discovery and filing of 

briefs with the court not later than November 4, 1968. | 
a / 

(Transcript p. 46.) 

  

3 / Motions for Summary Reversal have already been filed in 
the other two cases (East and West Feliciana) on July 24, 
1968, No. 26450 

LY Two of the school boards before the court, East and West 
Feliciana, had not asked for continuances, in fact, were 

ready to put on their case at that time. However, the 
Court also continued those cases until November 4, 1968. 
(Transcript Pp. 47,48.) 

The Court conceded that in other parishes the school 
boards had "within the last two, three or four days got 
together with the plaintiffs and worked acceptable solutions 
to some of these problems." (Transcript 2. 3%.) In 
Lafourche Parish (28 schs.)the plaintiffs and the Board agreed) 
  

to a plan of zoning and pairing which would completely 
eliminate all formerly Negro schools by converting them to 

‘majority white schools. The plan was approved by the- court 

  
 



  
    

Some of the reasons assigned by the Court for delaying any 

hearing in these cases were to determine: 

l. Whether he had the power to modify the decree of 

this Court in Jefferson, supra, to satisfy Green. 
  

2. Whether this was not, in fact, a new lawsuit. 

3. Whether or not the relief requested would violate 
the so-called "anti-busing" provisions of the 
Civil Rights Act of 1964 as well as the problems 
that might be presented ~- if he should find that 
the Jefferson plans were not working -- of drawing 
geographic attendance zones. 
  

Appellants believe that these and the other questions the Court 

thought needed tc be briefed before he would consider complying 

with Green are obviously specious and that the Court committed 

serious error in deferring all action pending their resolution. 

As we have shown on page 4 , supra, the Boards own 

reports then on file with the Court showed without any doubt 

that freedom of choice had not disestablished and was not likely 

to disestablish the dual system. It was the Court's duty under 

the Green case tO require the Boards to develop for implementa- 

tion this year, alternate methods of pupil assignment such as 

by geographic zoning or pairing which both the plaintiffs and 

the United States had alleged would sooner disestablish the dual 

system. 

To be sure the Court appears to find that it was adminis- 

tratively impossible for the school boards to develop plans by 

the opening of 1968-1969 school year (Cf. Transcript pp.33,37,41). 

but the Court patently had no basis for such a finding since 

he had permitted no evidence. No district before the Court had 

  

ed (continued) 

there on July 8th, 1968; Terrebonne Parish with 40 
schools adopted a similar plan which will be approved by 
the Court shortly. In Tangipahoa Parish, 32 schools, 
the Court ordered the school board to come forward with a 
plan. A hearing on objections to that plan is to be held 
on August 14, 1968. These three cases, all in the 

Eastern District of Louisiana, were heard before three other 
judges of-that district. Each of these parishes contain 
more schools than any of the systems in the cases before 

Judge West.   
 



  

more than 25 schools and most had 10-15; thus, it was entirely 

likely that plans could be implemented in those districts. At 

the very least, the Court was required to consider separately. 

any claim of administrative burden or impossibility advanced by 

any board and not deny relief as to all without focusing on the 

particular problems of individual boards. 

IV. 

Southern District of Mississippi 
  

In the Southern District of Mississippi Judge Harold Cox, 

following the filing of the motions for supplemental relief in 

light of Green, entered orders requiring certain of the 

appellees to file by July 26, 1968 * a plan or plans to $ neuze 

the immediate and effective erradication of racially identifiable 

schools." The orders, an example of which is attached hereto as 

Appendix B, required those boards to develop for the 1968-69 

school year a plan containing the following: 

1. The assignment of students to schools on the 
basis of geographic attendance zones and/or 

2. The consolidation and/or pairing of schools, 
where appropriate, and, 

3. The right of any student, assigned to a school 
where students of his race are a majority to 
transfer to any other school serving his grade 
level within the system where students of his 
race are in a minority. 

The orders were signed on the 5th day of July 1968 and required 

the defendants school boards to present with the plan certain 

factual information indicating the basis upon which the plan was 

drawn. Similar motions and similar prepared orders were presented 

to Judge Walter L. Nixon, Jr. and Judge Dan M. Russell, Jr. also 

of the Southern District of Mississippi. Subsequently motions 

were filed. by attorneys for appellees seeking to set.aside the order 

  

£5 / The Leake County School Board, the Meridian Municipal 
Separate School District.       
 



      

hithertofore entered by the court. On July 23, 1968 Judge Cox 

entered orders vacating and setting aside his previous orders. 

A copy of one of such orders is attached hereto as Appendix C. 

By letter dated July 25th (A copy of which is attached hereto 

as Appendix D.) Judge Dan M. Russell advised one of counsel for 

appellees that following a contarerce Belveen Judges Cox, 

Nixon and Russell with attorneys for those school 

districts in which petitions were pending for compliance with the 

Green decision and with attorneys representing the Department of 

Justice, the orders previously issued in those cases were vacated. 

Similar proposed orders which had been forwarded to Judge Russell 

in other pending cases were returned to appellants unsigned. The 

letter advised counsel that all of these cases would be set for 

trial during the month of October 1968. Attached hereto as 

Appendix E is a notice to counsel and a docket of cases in the 

Southern District of Mississippi setting the hearing dates. In 

all of these cases the hearings on avwelisnis’ motions for 

Supplemental Relief are scheduled after the beginning of the 

1968-69 school term. 

The refusal of these district judges to hold hearings prior 

to the start of the school year constitutesa clear denial of 

appellants’ motions to implement Green for the coming 1968-69 

school year, and an approval by these courts, of appellees'use 

of their free choice plans for yet another year. That denial was 

clearly erroneous where the very records before the court 

demonstrated the inability of free choice to disestablish the 

dual system (CF. page 4 , Suncal; and where there was no 

evidence before the courts of any administrative or other reasons 

barring implementation for this year. 

V. 

Time is of the essence in this matter. Unless promptly 

corrected, the actions of the courts below will nullify progress 

  

 



  

in school desegregation for the 1968-69 school term in each of 

the appellee school districts as well as other districts in this 

circuit. Only recently in Acree v. County Board of Education 
  

of Richmond County, Georgia, No. 26369, July 18, 1968, this 
  

Court emphasized the importance of the Green ruling and stressed 

the need for its immediate implementation. Concerning Richmond 

County's free@om Of choice plan this Court said (slip op. p.2): 

« « « it is clear that, with respect to the 
Richmond County Board of Education, a plan 
for desegregating the schools, generally 
known as "the freedom of choice” plan, has 
not worked. 1It has not produced a unitary 
school system in which there are no longer 
Negro schools and white schools, generally 
known and recognized by all as such. Under 
these circumstances, it becomes the duty of the 
respondent Board, not only under the Supreme 
Court decisions above referred to, but under 
our Jefferson decree, to take additional 
important and effective steps. 

a 

Precisely the same is true of the free choice plans of all the 

districts in this appeal) The Court quoted with emphasis the 

following from Green (Id at 4.): 

On the other hand, if there are reasonably 
available other ways, such for illustration 
as zoning, promising speedier and more effective 
conversion to a unitary, non-racial school 
system, "freedom of choice" must be held 
unacceptable." (Emphasis by the Court.) . 

  

  

  

  

  

  

Finally, after adverting to the Board's responsibility "to do 

all that is reasonably feasible and now" (emphasis supplied), the 

Court spoke to the very point raised by this consolidated appeal. 

Sajid the Court (Id at 5) 

We express the further strongly held conviction 
that any substantial allegation of failure of 
the Board to comply with the requirements now 
made plain to all, should be promptly heard and 
orders entered, which if objected to by either 

  

  

  

party may be reviewable to this court. (Emphasis 
added.)       
 



      

The courts below conducted no hearings despite the very 

serious allegations by both appellants and the United States 

that zoning and/or pairing would produce significantly more 

desegregation than freedom of choice. They, in fact, have 

scheduled hearings well after the start of the school year, 

They have thus affirmatively approved the continued use by 

these school districts of free choice plans which plans the 

record shows will perpetuate, rather than disestablish, the 

dual system and which plans have failed to achieve anything 

near the rate of integration produced by the plan invalidated 

in Green. 

| Appellants submit that the action of these courts in 

refusing to require the submission of plans for zoning and/or 

pairing for implementation by the 1968-69 school year, and in 

refusing even to hold hearings on spellants’ motions violates 

appellants' rights under the Constitution and the Green, 

    Jefferson and Richmond County cases. 

VI. 

The desegregation statistics in these cases bring each of the 

appellee districts' plans within the rule of the Green and Raney 

Jeclisions, Here, as in Green and Raney, experience with 

freedom of choice has demonstrated that it will insure the 

preservation of all-Negro schools; not a single white child has 

actually attended any of the all-Negro schools maintained and 

operated by the appellees. Also, as in Green and Raney, over 85   
 



  
    

per cent of the Negro children in all of these districts--indeed, 

well over 90 per cent -- are still attending the all-Negro 

Sohools, There is little doubt that in each of the cases 

presently before this Court there are available other plans 

"promising speedier and more effective conversion to a unitary 

non-racial school system." In short, under the test announced 

by the Supreme Court, each of the appellee districts is under a 

constitutional obligation to abandon freedom of choice and 

institute for the coming year a student-assignment plan which, 

as was held in Green, "promises realistically to work, and 

promises realistically to work now." 

We submit that the record at this point, exhibiting the 

statistical results of the appellees' freedom of choice plans as 

well as the actions of the court below in declining any relief 

for the 1968-69 school year, calls for affirmative action by this 

Court requiring immediate substantial steps and, wherever 

possible, complete implementation of Green and setting forth 

required scheduling which the courts below and all parties must 

meet in order to insure that the pending "pocket vetos" of the 

courts below shall not stand. 

Here, far more than in Gaines v. Dougherty Board of Education L 7   

392 P.2 669, 672 (5th Cir. 19568), summary reversal is necessary 

and proper "because of the importance in school administration 

for having an immediate end to any doubts with respect to 

of 
procedures to be followed for the next year.” 

  

6/ See also, Bivins v. Board of Education and Orphange for 
Bibb County, Ga,r 5th Cir., Nos, 25743 and 24754, decided 
May 24, 1967; George v. Davis, President of East Peliciana 

Parish School Board; Carter v. West Feliciana Parish School 
Board, 5th Cir., Nos. 24860 and 24861, decided July 24, 1967; 
Hall v..8L. Helena Parish School Board, 5th Cir., No. 25092, 
decided August 4, 1967; Acree County Board of Education wv. 
Richmond County, Ga., 5th Cir. No. 25136, decided August 31, 

1967 and Banks v. St. James Parish School Board, 5th Cir., 
No. 25375, decided November 20, 1967, wherein this Court 

granted summary reversals from district court judgments 

deviating unjustifiably from the Jefferson decree. 

  

  

  

  
  

  

  

  

  

    
 



      

Vii. 

The lower courts erred by making, without benefit of 

evidence, a priori judgments that there was insufficient time to 

implement Green. Six-school districts are not the same as those 

having 60. Any soninistrative problems should have been inquired 

into in a district-by-district hearing. In any event, Green 

could not constitutionally be deferred for a year absent over- 

whelming compelling evidence presented at a hearing that full 

implementation was not possible nor without careful study of such 

other intermediate steps as might have been possible. 

Appellants recognize that full implementation of Green 

for the opening of the 1968-69 school year in all districts now 

using free choice is probably unlikely. Some districts are so 

large and contain so many schools that a complete survey and a 

detailed redrawing of lines might not be_ possible. Other 

districts, however, have so few schools or so few Negro children 

that a plan of zoning or pairing completely eliminating all 

"Negro" schools can be developed in amatter of days with little 

difficulty. But even in large districts, where full implementa- 

tion might be unlikely, further affirmative steps for the 1968-69 

school year can almost always be taken. For example, it might be 

relatively easy to zone or pair high schools, which are always 

significantly fewer in number than elementary schools. Con- 

ceivably, in a large district, a court might require the foregoing 

this year while deferring complete action on the more numerous 

elementary schools till 1968-62. In each of the appellee 

districts, there are schools located in reasonable proximity to 

each other, one serving only Negro students and the other white 

students, both serving the same grade levels. These schools 

could be paired with the barest minimum of administrative 

difficulty. In such schools the Board need only utilize the   
 



      

® ® 
present enrollments as determined by the choice of students, the 

existing faculty assignments and the existing transportation 

arrangements. The administrative steps to accomplish such 

pairings are minimal. 

The experience with Lafourche and Terrebonne Parishes 

(see Note 4, supra) are good examples of what can be 

accomplished when a Board seriously tackles the job in good 

faith. Lafourche is a Louisiana parish which has approximately 

28 schools (25 white, 3 Negro) and approximately 16,000 students. 

At the court's direction the parties met on June 25th and agreed 

that the Board would prepare and serve upon the plaintiffs and 

the court, no later than July 15th a plan meeting Green standards) 

Two days later, on June 27th, the Board filed a zoning and   

pairing plan which converted all of its majority Negro schools to 

majority white schools. That plan was approved by the Court 

July 8, 1268. See Hill v. Lafourche Parish School Board, 

7 / 
No. 16167 {2.D. La.) 

  

Representatives of the Terrebonne Parish (the parish 

had approximately 40 schools, 6 of which were all-Negro) met with 

counsel for the plaintiffs in that case on July 17th, 1968 and 

consented to an order requiring that a new plan be submitted by 

July 292th. On July 29th, a mere 12 days later, Terrebonne 

Parish submitted a plan of zoning or pairing which eliminated all 

of its former all-Negro schools; some were closed, others paired 

with adjoining white schools and others zoned. As in Lafourche, 

all Negro students in that parish will be in majority white 

schools for the coming year. The plaintiffs in that case have 

consented to the plan and Judge Mitchell is expected to sign 

it shortly. See Redman v. Terrebonne Parish School Board, 
    

No. 15663 (E.D. La.) 

  

a Judge Christenberry's order relating and approving the 
. Lafourche plan is attached as Appendix "F". 

XS 

  
 



  

Appellants have related in some detail the experiences 

of these Soares because we believe they indicate how much can 

be accomplished in a short period of time by relatively large 

school districts which have chosen to "comply" rather than "evade.! 

: 9 
As much can be done by the boards in these districts, almost 

all of which have significantly fewer schools than either 

10/ 
Lafourche or TerreboOnne. 

  

ef Appellants can speak with authority about the Lafourche 
and Terrebonne plans since appellants! chief counsel, 
Mr. A. P. Tureaud of New Orleans, also represented the 
plaintiffs in those cases. 

9 / It goes without saying that the difficulties, if any 
of these boards, are of their own making. This court 
in Jefferson in 1967 emphasized the obligations of 
school districts to disestablish their dual systems by what- 
ever means "reasonably related to accomplishing this 
objective," not just by freedom of choice, which "is not 
a goal in itself" but by trying "other tools" if freedom 
of choice has not been effective. Since the decision of 
the United States Supreme Court on May 27, 1968 their 
obligation has been clear. As the court said in Green, 
"The burden on a school board today is to come up with 
a plan which . . . promises realistically to work now." 
36 L.W. at 4478-4479. After having delayed facing up to 
their responsibilities, (which have been clear since 
May) till they were pursued by plaintiffs, these boards 
now claim a lack of time. 

  

10/ Birdie Mae Davis v. Board of School Commissioners of 
Mobile County, et al, 393 F.2d 690, decided by this 
Court on March 12, 1968, provides a good illustration 
of how mistaken the district courts were in deciding 
in Mid-July without benefit of evidence that 
implementation was impossible. In Davis this court 
appended a decree requiring Mobile County which had 
75000 students and 93 schools to prepare a detailed 
survey and a new zoning plan by June 1, within 2% months. 
Yet Judges West, Cox, Nixon and Russell do not believe 
that systems having only 6, 10, or 15 schools can do 
so within the month and half that still remained before 
the opening of school. 

    

  

      
 



      

VIIX. 

This appeal should not have been necessary. The mandates 

Of the Green case and of this Court's opinions in Jefferson and 
  

Agree were all too clear, Negro citizens should not be required 

to assume the financial burdens necessary in returning to this 

court summer after summer to secure compliance with the decisions | 

of this and the Supreme Court. As was previously mentioned, a 

mere’ 11 months ago appellants had to come to this court to secure 

the entry of a Jefferson decree in the very Louisiana cases now   

before the Court. 

Negro citizens have acted as "private Attorney Generals" to 

enforce the Brown mandate that dual systems be converted to 

unitary nonracial systems in much the same way that they have had 

to do so to enjoy their rights under Title II (Public Accommoda- 

tions) of the Civil Rights Act of 1964. While we do not argue 

here that counsel fees need necessarily be allowed as a matter 

of course in school desegregation cases, as the Supreme Court has 

gaild if must be in Title IT cases (see Newman .v. Piggie Park 
  

Enterprises, Inc., U.S. r 35 L.W. , decided March 19, 
  

1968), we do strongly submit that counsel fees should be awarded 

where appellants have been forced to reverse in this court. 

district court orders failing adequately to adhere to the orders 

of this. Court. 

Other courts in this and other circaits have begun to 

recognize the inequities and are Begining to grant counsel fees 

with somewhat more frequency. See Cato., et al. v. Parham (the   

Dollarway School District, No. 2, Jefferson County, Arkansas), 

No. PE-67-C-69, (E.D. ark.) July 25, 1968 where the court allowed 

a fee of $700.00, on the ground that "whatever progress has been 

made [in the 9 years the litigation had been underway] in the 

- 315 

  
 



      

direction of desegregation at Dollarway has followed judicial 

prodding."; the same Court made a similar award in Kelley:v., The 

Altheimer, Arkansas Public School District No. 22, No. PB-66-C-10 
  

(E.D., Ark.,), July 29, 1968. Rolfe v. Lincoln County Board of 
  

  

Education, No., ’ F. Supp. , decided Feb. 16, 

1968 . Cf., Bell v. School Board of Powhatan County, Va,, 

  

  

32) F.28 494, 500 (C. A. 4, 1963). This Court should 40 no less. 

Appellants® counsel have expended 100 lawyer hours and 

much secretarial and duplicating expense in preparing the appeals 

in these 13 cases, and believe an award of $1,000.00 against 

each of these Boards would be a fair and reasonable recovery. 

Appellants respectfully request that this Court direct the 

district courts upon remand to enter an order awarding $1,000.00 

against each of the appellee boATEs for counsel fees in connectios 

~~ 

with this appeal. 

IX. 

In the almost fifteen years since Brown school desegregation 

in this circuit has had a long, slow, .tortuous history. The 

maintenance intact of one-half of the dual systems (the Negro 

halfs) and the abysmally small number of Negro children in 

previously white schools is ample testimony that very little has 

been accomplished in the deep south generally and certainly in 

the appellee districts. The installment-plan program under which 

Negro students have been 'rationed' their constitutional rights has 

not worked. areen, however, promises a new day. With its 

requirements that the "speediest" method be used, it signals the 

demise of free choice (at least in the rural south where the 

residences of whites and Negroes have traditionally been 

interspersed) and embodies the only real hope Negroes have had 

since 1954, that their full and complete right to equal 

aol   
 



      

educational opportunities will someday be enjoyed. 

If appellees are not required to take immediate action with 

regard to pupil assignment for the 1968-69 school year, the 

segregated Batborh of the public schools in this Circuit will 

continue without meaning ful change for at. least another year. 

WHEREFORE, appellants for the foregoing reasons, pray that 

the judgments of the district courts below, insofar as they fail 

to require immediate hearings and submissions of plans implement- 

ing Green for the 1968-69 school year and insofar as they 

constitute approval of appellees' free choice plans be considered 

ex parte and summarily reversed; ihat the cases be remanded to 

those courts with the following instructicns: 

l. To require the submissions of geographic and/or 
pairing plans of desegregation, to be implemented 
for the 1968-69 school year, within four days 
from the order of this court; 

2. That, where necessary, immediate hearings be 
held following the submission of such plans; lV 

3. That where full implementation is held not to be 
administratively feasible in any of the appellee 
districts, that such districts be required to: 

a. Pair Negro and white schools with similar 
grade structures located in reasonable 
proximity to one another; such pairing 
shall utilize the present enrollment 
pursuant to the free choice plans of 
students in the respective schools; 

b. Wherever feasible institute such unitary 
geographic zones as will desegregate the 
schools within those zones: 

  

11/ Appellants anticipate that the judges of the Southern 
District of Mississippi will have difficulty scheduling 
hearings in these cases because of the press of other 
business. In our view school desegregation cases are 
entitled to the highest priority, especially where, as 
here, relief is sought for a school year about to begin. 
Appellants believe this court should direct the chief 
judges in these districts to request assistance from 
judges from other districts or from other circuits so 
that these matters will promptly be heard and orders 
entered. 

-17 -. 

  
 



  

c. Take all other affirmative steps which 
will result in the elimination of "white" 
Or "Negro" schools and which will 
facilitate full implementation by the 
1969-70 school year. | 

4. Enter an order against each board awarding appellants 
$1,000.00 for reasonable counsel fees incurred in 
connection with this appeal. 

Respectfully submitted, 

  

FRANKLIN E. WHITE 

IOUIS R. LUCAS 

JACK GREENBERG 

10 Columbus Circle 

New York, New York 10019 

A. P. TUREAUD 

A. M. TRUDEAU, JR. 

1821 Orleans Avenue 

New Orleans, Louisiana 

REUBEN V. ANDERSON 
538% North Farish Street 
Jackson, Mississippi 

Attorneys for Appellants 

      
 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that copies of the foregoing Motions to 

Consolidate and Motion for Summary Reversal were served on 

appellees and on the plaintiff-intervenor on this 2nd day 

of August 1968, by mailing copies of same, postage prepaid.,to 

their counsel of record at the last known address as follows: 

The Honorable Jack P. F. Gremillion 
Attorney General of Louisiana 
State Capitol Building 
Baton Rouge, Louisiana 70804 

Harry J. Kron, Jr., Esq. John F. Ward, Esq. 
202 Audubon Street 206 Louisiana Avenue 
Thibodeaux, Louisiana 70301 Baton Rouge, Louisiana 70802 

The Honorable Thomas McFerrin = The Honorable Ieonard Yokum 

Assistant Attorney General District Attorney 

State of Louisiana 21st Judicial District 
State Capitol Building Amite, Louisiana 70422 
Baton Rouge, Louisiana — 

The Honorable Samuel C. cashio The Honorable Aubert D. Talbot 

District Attorney District Attorney 
18th Judicial District 23rd Judicial District 
Plaguemine, Louisiana 70764 Napoleonville, Louisiana 70390 

The Honorable Joseph T. Patterson 
State Attorney General 
New Capitol Building 
Jackson, Mississippi 

John C. Satterfield, Esq. Robert E. Covington, Esq. 
P.O. Box 466 : Jeff Carter Building 
Yazoo City, Mississippi Quitman, Mississippi 

Tally D. Riddell, Esq. Milton, Case, Esq. 
P.O. Box 1929 Robert Goza, Esq. 
Quitman, Mississippi 114 W. Center Street 

: Canton, Mississippi 

Joseph R. Fancher, Jr., Esq. WwW. 8S. Cain, Esq. 
First National Bank Bldg. 133 South Union Street 
Canton, Mississippi Canton, Mississippi 

Percy F. Parker, Esq. William B. Compton, Esq. 
Canton, Mississippi P. 0. Box 845 

Meridian, Mississippi 

T.. BH. Campbell, Jr. ; Thomas H. Watkins, Esq. 
P.O. Box 35 P.O. Box 650 
Yazoo City, Mississippi Jackson, Mississippi       
 



      

Edwin White, Esq. 
Lexington, Mississippi 

Calvin R. King, Esq. 
106 East Mulberry Street 

Durant, Mississippi 

The Honorable Stephen J. Pollak 
Assistant Attorney General 
Justice Department 
Washington, D.C. 

Robert B. Deen, Jr., Esq. 
P.-0O. Box 988 

Meridian, Mississippi 

Walter E. Bridgeforth, Esq. 
P. O. Box 48 
Yazoo City, Mississippi 

Hugh W. Fleischer, Esq. 
Joseph Ray Terry, Jr., 

Department of Justice 
Room 1723 Masonic Temple 

Building 
333 St. Charles Avenue 
New Orleans, Louisiana 70130 

Esq. 

  

Attorney for Appellants