Ellis v. Orange County, FL Board of Public Instruction Brief for Appellants

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 28262

EVELYN R. ELLIS, et al..
plaintiffs-Appellants,

vs.
BOARD OF PUBLIC INSTRUCTION OF 
ORANGE COUNTY, FLORIDA, et al.,

De fendants-Appellees.

Appeal from the United States District Court 
for the Middle District of Florida, Orlando Division

BRIEF FOR APPELLANTS

JACK GREENBERG 
WILLIAM L. ROBINSON 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York

NORRIS D. WOOLFORK350 South parramore Av. 
Orlando, Florida

Attorneys for Appellantr



INDEX

Table of Cases....................................  H
Issues presented for Review .....................  1
Statement ........................................  2
Argument

The Board Did Not Sustain Its Burden of Showing 
That Its Plan Would Convert The orange County 
Public Schools Into A Unitary Nonracial School 
S y s t e m ......................................  10

A. The Board's plan does not eliminate 
racially identifiable schools in
Orange County ........................  11

B. The Board failed to establish that 
there are not feasible alternatives
to its modified freedom of choice plan 15

The District Court Erred In Holding That The
Board Was Relieved Of Any Obligation To
Desegregate Eleven All-Negro Schools ........  19

Conclusion............................. ....... 22
Appendix A Report on Choice period and FacultyAllocation filed September 22, 1969 . 23

Page



TABLE OF CASES

Adams v. Mathews, 403 F.2d 181 (5th Cir. 1968) . . .  20,22

page

Brice v. Landis, Civ. No. 51805 (N.D. Cal.,August
8, 1969) ....................................  12

Brown v. Board of Education, 347 U.S. 483 (1954);
349 U.S. 294 (1955)..........................  2,10,16

Davis v. Board of School Comm'rs of Mobile, 393
F.2d 690 (5th Cir. 1968) ....................  14

Graves v. Walton County Bd. of Educ., 403 F.2d
189 (5th Cir. 1968).........................  20

Green v. County School Bd. of New Kent County,
391 U.S. 430 (1968)..........................  2,10,11,15

Hall v. St. Helena parish School Bd., No. 26450 (5th
Cir., May 28, 1969).........................  20

Henry v. Clarksdale Municipal Separate School Dist.,
409 F. 2d 682 (5th Cir. 1969) ................  20

Jackson v. Marvell School Dist. No. 22, Nos. 19746
& 19797 (8th Cir., Oct. 2, 1969)(en banc) . . . 11,16

Moses v. Washington parish School Bd., 276 F. Supp.
834 (E.D. La. 1967)..........................

United States v. Board of Educ. of Baldwin County,
No. 27281 (5th Cir., July 9, 1969) ..........

United States v. Board of Educ. of Bessemer (Bessemer
I) , 396 F.2d 44 (5th Cir. 1968) .............

United States v. Board of Educ. of Bessemer (Bessemer
II) , No. 26582 (5th Cir., July 1, 1969) . . . .

United States v. Choctaw County Bd. of Educ., No.
27297 (5th Cir., June 26, 1969) ..............

United States v. Greenwood Municipal Separate School 
Dist., 406 F.2d 1086 (5th Cir. 1969) ........

United States v. Hinds County Bd. of Educ., No.
28030 (5th Cir., July 3, 1969), amended August 
28, 1969, cert, granted sub nom. Alexander v.
Holmes County Bd. of Educ., 38 U.S.L.W. 3125 
(Oct. 9, 1969) ...............................

14

15

13,21

20
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Page

United States v. Indianola Municipal Separate School 
Dist., 410 F.2d 626 (5th Cir. 1969) ..........

United States v. Jefferson County Bd. of Educ., 372 
F.2d 836 (1966), aff'd on rehearing en banc,
380 F.2d 385 (5th Cir.), cert, denied sub nom. 
Caddo Parish School Bd. v. United States, 389 
U.S. 840 (1967) ..............................

United States v. Montgomery County Bd. of Educ.,
395 U.S. 225 (1969) ..........................

13,20,21,
22

2

14

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IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 28262

EVELYN R. ELLIS, et al.,
Plaintiffs-Appellants,

vs.
BOARD OF PUBLIC INSTRUCTION OF 
ORANGE COUNTY, FLORIDA, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Middle District of Florida, Orlando Division

BRIEF FOR APPELLANTS

Issues Presented For Review

1. Whether appellees sustained their heavy burden of 
demonstrating that freedom of choice would establish a unitary 
school system in orange County, Florida, and that alternative 
methods of desegregation, such as pairing or zoning, were not 
feasible.

2. Whether the district court erred in holding that



a formerly cte jure segregated school system had fulfilled its 
Constitutional obligation to establish a unitary school system 
despite the fact that 55% of the school district's Negro students 
remain in all-Negro schools.

Statement

This is an appeal from the denial of a Motion for Further 
Relief in a school desegregation case,^ whereby plaintiffs-appel- 
lants had sought to require tine Board of Public Instruction of 
Orange County, Florida to implement a plan of desegregation other 
than freedom of choice.

During the 1968-69 school year, the orange County public 
school system consisted of 96 elementary and secondary schools en­
rolling 77,336 students, of whom 13,186 (17%) were Negroes (Tr. 
29).^ Of the Negro pupils, 22.18% attended predominantly white

1/ This case was first commenced in 1962. prior to that time ap­
pellees maintained a completely segregated school system in 

violation of Brown v. Board of Education, 347 U.S. 483 (1954). A 
plan to permit students to select the school facility nearest their 
homes, regardless of their race or color, and to be made applicable 
throughout the school system in several yearly steps, was approved 
and entered by district court decree on May 13, 1964.

After this Court's decision in United States v. Jefferson County 
Bd. of Educ., 372 F.2d 836 (1966), aff'd on rehearing en banc, 380 
F.2d 385 (5th Cir.), cert, denied sub nom. Caddo parish School Bd. 
v. United States, 389 U.S. 840 (1967), the parties by joint motion 
filed an Amended Plan of Desegregation based on the Jefferson decree 
The district court entered a decree approving the amended plan on 
April 25, 1967.

December 2, 1968, appellants filed a Motion for Further Relief 
based on Green v. County School Bd. of New Kent County, 391 U.S.
430 (1968), seeking to require the district to abandon pupil assign­
ment by free choice and to create a unitary school system without 
racially identifiable schools. After further proceedings, the

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schools (ibid.) but this was preponderantly the result of closing 
some all—Negro schools between 1964 and 1968 and reassigning their 
students (Tr. 14). prior to the current school year, no white 
student had ever elected to attend an all—Negro school (see the 
various reports on choice periods filed by appellees, passim).

Nevertheless, appellees responded to the Motion for Fur­
ther Relief by proposing a modified freedom of choice plan, combine 
with further closings of all-Negro schools. Although their plan 
contemplated eleven schools with all—Negro student bodies (Tr. 290,i 
enrolling 55% of the district’s Negro school population (Tr. 189), 
appellees contended that there was no feasible way to desegregate 
those schools. The district court relieved them of any obligation 
to do so by holding that these schools were "not within the Graves 
[v. Walton County Bd. of Educ., 403 F.2d 189 (5th Cir. 1968)], 
supra, ambit of prohibited existence."

The written plan submitted by appellees is summarized

order appealed from, approving continued use of a modified free 
choice plan, was entered by the district court May 13, 1969.
2/ References are to the transcript of the hearing commencing

April 30, 1969; this Court has entered an order permitting this 
appeal to be heard on the original papers, without a printed 
appendix.
3/ After the Motion for Further Relief was filed, the district

court January 13, 1969 ordered appellees to file by February 10,
1969  . . .either (1) a further plan for achieving desegregation

in Orange County Schools, or (2) a showing that thepresent desegregation plan will, in the immediate future,
obviate the plaintiffs' objections; or (3) a showing
that the present desegregation plan, as it now operates,
meets the requirements of the law.A proposed plan of desegregation (referred to as plan A) was filed

February 17 and rejected by the district court February 18, 1969 a;
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in the margin.^1̂ It was supplemented, with the district court's 
approval, by the testimony of school officials at the April 30 
hearing —  although they could give no reason for omitting the 
specifics of their testimony from the written plan (Tr. 191). 
(Thus, the district court accepted even parts of the plan which 
were made meaningful only by the testimony at the hearing, e.g., 
Tr. 429).

"too vague in both its objective and methods of accomplishment.
A second plan (plan B) was filed by joint motion of February 26, 
1969, but the district court on March 7 permitted both parties to 
withdraw from the joint motion and again required appellees to 
come forward with a plan. In response appellees presented the 
plan approved below (plan C).
4/ Pupil assignment: Freedom of choice (21) combined with closing

five all-Negro schools (225,7,8 and 9).
Faculty desegregation; "Faculty desegregation will be encour­

aged consistent with education needs and programs. The orange 
County Board of Public Instruction will strive towards a goal 
which will result in mixed faculties in all schools rather than a designation of an arbitrary percentage of races at any particular 
school. Faculty desegregation will be accomplished in such a 
manner that no faculty at any school will be identifiable as tailored or constituted for or in anticipation of a concentration 
of students of the negro [sic] race or the white race" (214).

Construction; The district will continue to construct 
"neighborhood schools" (22)•

The provisions of 223 (the district "will continue the policy 
of operating one unitary school system"), 13 (the district will 
carry out the plan), and 15 (the district will seek advisory 
recommendations of the South Florida [Title IV] Desegregation 
Center at the University of Miami) are at best precatory.

Likewise, 224 (replace present categorical diploma with a 
single certificate), 6 (continue Jones Senior High with broadened 
vocational program), 10 (shift a predominantly white elementary 
school to portable buildings to make room for Negro students from 
schools to be closed), 11 (construct a new high school in western 
part of county in future), 16 (30-day choice period) and 17 (exc­
ept as expressly modified, the Jefferson decree remains in force) 
are all "housekeeping" provisions.

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Exposition of the plan consumed most of the lengthy 
hearing. After the Superintendent of Schools had described the 
past history of desegregation in the orange County school system 
(Tr. 22-52), the Deputy Superintendent located on a map each 
of the all-Negro schools which the district proposed to close and 
then described the expected dispersal of the Negro students 
formerly attending that school (Tr. 76-133). His testimony re­
vealed that Negro students who had attended the closed schools in 
1968-69 would have their "free choice" honored only if those 
choices fulfilled the expectations of the Board; otherwise, the 
students' choices would be disregarded and they would be assigned 
to predominantly white schools selected by the school administra-

5 /tors (e.g., Tr. 84-85).*“ These Negro students would in nearly 
every instance be bussed to their new schools (e.g., Tr. 94—95), 
and the school closings would also require additional portable 
classrooms (e.g., Tr. 94). The total cost of bus operations and 
capital investment in portable classrooms required by the closing 
of these five all-Negro schools was estimated to be $506,000 
($735,000 including faculty in-service training).

Deputy Superintendent Cascaddan also testified about 
the policy governing faculty desegregation. Although orange

5/ The Deputy Superintendent admitted, in effect, that a free 
choice plan would not achieve a nonracial unitary school sys­

tem in orange County. Ha explained that although all-Negro Drew 
Junior-Senior High School (closed under the plan) was to be re­
opened as a technical—vocational high schools, Negro students who 
had previously gone to the school would be permitted to return 
only with special approval by guidance counsellors. The students 
would not be given free choice, which would "promote the contin­
uance of all-black Junior-Senior High School at Drew . . . ."
(Tr. 100).

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County would in the future make willingness to teach in any 
school in the system a condition of employment (Tr. 140) the 
principals of the various schools would continue to be respon­
sible for filling the vacancies on their staffs (Tr. 233), thus 
controlling the racial character of each faculty. The plan 
contained neither specific numerical goals for 1969-70 nor a

6/target date for complete faculty desegregation (Tr. 224-25).

The district presented Mr. John Goonen, the Director c± 
Pupil placement for the school system, to justify its failure to 
integrate the eleven remaining all-Negro schools (Tr. 286-354).

Mr. Goonen testified that orange County could not
afford to "consolidate" —  eradicate —  any more all-Negro
schools (Tr. 297-99). As to zoning, he had investigated the

7/feasibility of "spot zoning" each of the eleven all-Negro 
schools so as to achieve at each school an enrollment which was 
25% white (Tr. 301) 3^ Each school, in his words, "serv[ed] the 
Negro residential area" in which it was located (Tr. 341) and if 
a zone were drawn so as to include the requisite number of white

6/ Despite this testimony, the wording of the plan's <J14 itself, and Cascaddan's testimony that "we have not set any specific 
percentages" (Tr. 227), the district court found the plan accept­
able because "every school will have at least three teachers of 
the race which is in the minority at that school" (Opinion of May 
13, 1969, p. 15). Such a minimum was in fact achieved for 1969*7 
in every school except Drew, but even a quick perusal of the 
district's September, 1969 Report (subject cf a Motion to Supple­
ment Record filed with this Brief) will indicate how clearly the 
racial composition of the faculties continues to identify each 
school by race, yet neither the plan nor the district court re­
quires any further action.
7/ Defined as zoning some schools in the system while others 

remained on free choice (Tr. 300).
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students, they would have to be bussed in to the school (e.g.,
Tr. 308); the distance they would have to travel would create 
problems in terms of participation in extracurricular activities 
and PTA groups (e.g., Tr. 309); they would overcrowd the facil­
ities of the all-Negro schools, which could not be enlarged with 
protable buildings, forcing transfer of some Negro students (e.g. 
Tr. 310) by bus (e.ĝ _, Tr. 316) to other schools, which would 
also often require additional portable buildings (e.g., Tr. 315} , 
Applying this hypothesis to each of the eleven all-Negro schools, 
he arrived at a projected cost of "spot zoning" of one million 
dollars (Tr. 349) for the transfer and housing of 5300 students 
(Tr. 348). The board therefore rejected the alternative of zonin 
because it considered the price and the bussing an "exorbitant" 
price for desegregation (Tr. 349).

However, Mr. Goonen admitted that there were white 
students living within walking distance of each all-Negro school 
who could be zoned to that school (e.g., Tr. 368, 376). In 
another instance, white students living approximately equidis­
tant from predominantly white Robinswood Junior High and all- 
Negro Carver Junior High were presently being bussed by the 
board to Robinswood (Tr. 381). Importantly, Mr. Goonen admitted 
the Board had considered spot zoning only the eleven all-Negro 
schools, rather than drawing attendance zones for all schools 
in the system (Tr. 362).

8/ 25% was an arbitrarily selected figure (Tr. 365).

7



Mr. Goonen further testified that the alternative of 
pairing had been considered and rejected because of differences 
in size between schools (Tr. 350) and the cost of bussing 
required to effectuate pairing of the eleven all-Negro schools 
—  estimated at $440,000 (Tr. 351). The district did not 
consider pairing schools except by division resulting in equal 
numbers of grades at each of the paired schools, because to 
do otherwise would result in "tremendous" splitting of 
families with more than one student (Tr. 370—71). He admitted, 
though, that there were possible pairings of all-Negro and 
predominantly white schools (e.a., Tr. 371-72).

The district court's opinion approving the Orange
County freedom cf choice plan starts by summarizing the plan in.
considerable detail, because, the court found:

Plan "C" in its written form is somewhat 
skeletal but the witnesses for the defen­
dant presented in greater detail the body 
of the skeleton [Opinion of May 13, 1569, 
at p. 41.

As to the remaining all-Negro schools, the district court held:
The schools which will be attended solely 
by Negro students are in areas which are almost, if net completely, exclusively 
comprised of Negro residents. Those at­
tending thos-i elementary schools are all 
walk-in students excepr. for one bussed 
to Holden Street Elementary and one 
bussed to Washington Shores because of 
physical handicaps. Zoning would not 
result in any meaningful desegregation of 
these schools; likewise, bringing in white 
student** to the extent, of about 25% of the 
total of each school would necessitate cross-bussing . . .  if cross-bussing v/ere 
required in connection with the eleven 
schools above listed the additional cost is

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estimated at $1,000,000.00 over and 
above the $735,000.00 cost of Plan "C."
pairing of schools is also net feasible 
because of the variance between the 
facilities of schools which would nat­
urally be paired, the cross-bussing 
required, ar.d the cost thereof.
Considering the reasons for their present 
student, racial composition and their 
desegregated operation, this Court 
concludes that the schools above listed are not within the Graves, supra, ambit 
of prohibited existence. (opinion of 
May 13, 1963, at pp. 16-18].
A Motion to Amend the district court's order approv­

ing the plan was ienied June 5, 1969, and Notice of Appeal was 
filed July 3, 1969.

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ARGUMENT

I

The Board Did Not Sustain Its 
Burden of Showing That Its Plan 
Wou'.i Convert The orange County 
Public Schools Into A Unitary 

Nonracial School System

If the experience of the federal courts in the decad 
and a half since the Supreme Court decided Brown v. Board of 
Education, 347 U.S. 483 (1954); 349 U.S. 294 (1955), is 
significant for any purpose, it demonstrates that the promise 
of the Brown decisions shall never be fulfilled unless 
desegregation plans are carefully scrutinized to ascertain 
whether they will work to eliminate the dual system of 
public education. Certainly this is the meaning of Green v. 
County School Bd. of New Kent County, 391 U.S. 430, 439 (1968) 
which places the burden upon school boards "to come forward 
with a plan that promises realistically to work, and promises 
realistically to work now."

Orange County's plan —  a slightly modified 
freedom-of-choice plan —  was not subjected to such 
painstaking scrutiny by the district court. Because the 
Board did not meet its burden of demonstrating that there 
are not "reasonably available other ways, such for illustra­
tion as zoning, promising speedier and more effective con­
version to a unitary, nonracial school system, 'freedom of

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choice' must be held unacceptable," Green, supra, 391 U.S. at 
441, and this case returned to the district court for further 
proceedings.

A . The Board's plr-n, does not eliminate racially identifiable 
schools in 0reu:<j3 County

Under the Board's plan, approved below, freedom of 
choice is offered all students except Negro students who 
during 1968-69 attended the all-Negro schools now closed.
Those Negro students are administratively assigned to predom­
inantly white schools, to which they are bussed. The result 
is a school system in which the individual schools are still 
clearly delineated by race.

As the September, 1969 Report of the Board (see
Appendix A, pp. 9  ̂- 9Q infra) shows, white students chose

9 / 10/almost exclusively-/ to attend predominantly white schools
and Negro students who could choose continued to choose all-
Negro schools in large numbers. 65.6% of the 1969-70 Negro
school population in orange County attends nine all-Negro and
two 99%-Negro schools.

9/ One white student attends Maxey along with 363 Negroes, and 
three white students attend Webster along with 422 Negroes.

Cf. Jackson v. Marvell School Dist. No. 22, Nos. 19746 & 19797 
78th Cir., October 2, 1969)(en banc)(per curiam), slip opinion ac 
p 8 * "The admittance of 36 white students into a formerly all­
egro school still attended by 660 Negroes cannot be said to hav<- 
the effect of casting off the school's racially identifiable 
cloak."
10/ The Board itself has no illusions that free choice can resul 

in a unitary system. Former students at all-Negro Drew 
Junior-Senior High are not to have the option of exercising a

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We do not gainsay that by closing five all-Negro 
schools, at substantial cost, and transporting their students to 
predominantly white schools, the Board has significantly 
increased the percentage of Negro students attending predominant 
white schools. But this in no way diminishes the racial 
identity of these "white schools"— ^ nor, within the context of 
the entire system and the Board's unwillingness to assign white 
students to all-Negro schools, the continued racially dual 
character of Orange County public schools.

The pattern of faculty assignment underscores the 
racial labels borne by each facility. As again shown by the 
September 1969 Report (pp. 28 - 31 infra), every school but Drew 
has at least three teachers whose race is in the minority. 
However, virtually every school with a majority-white student 
population has a heavily white faculty, and virtually every 
majority-Negro school likewise has a heavy preponderance of 
Negro faculty.

"free choice" to return to the school when it reopens as a 
technical high school because "we do not want in any way to 
promote the continuance of all—black Junior—Senior High School 
at Drew . . . ." (Tr. 100)
11/ "The minority children are placed in the position of what 

may be described as second-class pupils. White pupils, 
realizing that they are permitted to attend their own neigh­
borhood schools, as usual, may come to regard themselves as 
•natives' and to resent the Negro children bussed into the 
white schools every school day as intruding 'foreigners.' It 
is in this respect that such a plan, when not reasonably 
required under the circumstances, becomes substantially 
discriminating in itself." Brice v. Landis, Civ. No. 51805 
(N.D. Cal., August 8, 1969), slip opinion at p. 7.

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The Board's plan, as approved by the court below, is 
totally inadequate to deal with this situation. It states 
rather vaguely that "[f]aculty desegregation will be accom­
plished in such a manner that no faculty at any school will be 
identifiable as tailored or constituted for or in anticipation 
of a concentration of students of the negro race or the white 
race" but offers no hint of when this goal will possibly be 
achieved. As of this moment, the pattern of faculty assign­
ments cannot be better described than "as being tailored for 
a heavy concentration of Negro or white students," UnihgcL 
States v. Greenwood Municipal separate School Dist., 406 F.2d 
1086, 1094 (5th Cir. 1969). Yet neither the plan nor the 
district court's order specifically requires further action to 
be taken (Tr. 224-25).

It is extremely doubtful that, left to its own devices 
and traditional methods, the Board will make rapid or substantial 
progress toward the goal. For one thing, individual principals, 
rather than the central administration, will continue to be 
responsible for the composition of the faculty at each school 
(Tr. 233) . More important, the Board had not considered manda­
tory reassignment of teachers, rather than seeking volunteers 
to teach in "minority" situations, to achieve faculty desegre­
gation (Tr. 229). Yet the district court, which read into the 
record (Tr. 228) excerpts from this Court's opinion in United 
States v. Indianola Municipal Separate School Dist., 410 F.2d 
626 (5th Cir. 1969), did not require reassignments.

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The Board ought to be required to establish and
follow a timetable of achieving in 1970-71, United States v. 
Board of Educ. of Bessemer (Bessemer I), 396 F.2d 44 (5th Cir. 
1968), a totally desegregated faculty, which means that the 
ratio of Negro and white personnel in each school should approx­
imate, as nearly as possible, the ratio of such personnel in 
the sydem as a whole. United States v. Montgomery County Bd. of 
Educ., 395 U.S. 225 (1969); Bessemer II, No. 26582 (5th Cir., 
July 1, 1969).

Finally, this school district will never eliminate 
racially identifiable schools under a plan which commits it to 
continue its policy of constructing "aeighborhood schools" with­
out any requirement that facilities be located to as to promote 
desegregation, Davis v. Board of School Comm'rs of Mobile, 393 
F.2d 690 (5th Cir. 1968)(cf. Tr. 427). Construction of new 
schools to service populations in new subdivisions (Tr. 399) 
without considering the promotion of integration as a factor in 
the location of new facilities will continue to produce schools 
"serving" racially identifiable areas (Tr. 341), which the 
district court held excused the Board from its responsibility to 
desegregate those schools.

The salutary emphasis in this Court's recent opinions 
on eliminating racially identifiable facilities and faculties 
underlines the goal of a unitary nonracial system of public 
education.

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The happy day when courts retire from 
the business of scrutinizing schools 
is wholly dependent on school boards 
facing up to the necessity of doing 
away with all Negro schools and effectively integrating faculties.
That is true, no matter whether 
school boards use freedom of choice, 
zoning, or a combination of the two 
plans.

United States v. Choctaw County Bd. of Educ., No. 27297 (5th 
Cir., June 26, 1969), slip opinion at p. 4; accord, United 
States v. Board of Educ. of Baldwin County, No. 27281 (5th Cir., 
July 9, 1969).

Because the plan approved below, as drafted and as 
implemented this fall, fails utterly to eliminate racially 
identifiable schools, the judgment below should be reversed.

B. The Board failed to establish that thete are not feasible 
alternatives to its modified freedom of choice_plan

Since it proposed to retain freedom of choice for most 
of the students in its school system, the Board assumed the 
burden of proving that there was no other method available 
which could be implemented in orange County and which would 
result in "speedier and more effective conversion to a unitary 
nonracial school system," Green v. County School Bd. of New.Kent 
County, supra, 391 U.S. at 441.

As the Eighth Circuit has very recently put it,
[A] freedom-of-choice desegregation plan can 
now receive judicial approval only if two 
conditions are met. First, the plan must 
offer genuine promise of promptly and effec­
tively eliminating a state-imposed dual system

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of schools, and second, the plan must 
be the most feasible one available to the 
school board, considered in light of the 
circumstances present and the options 
available.

Jackson v. Marvell School Dist. No. 22, Nos. 19746 & 19797 (8th 
Cir., Oct. 2, 1969)(en banc)(per curiam). slip opinion at p. 7.

In Section A above we noted that the Board's plan does 
not produce nor promise a unitary system because it fails to 
eliminate racially identifiable schools. The Board also failed 
to show that free choice was the only procedure available to it.

One of the most common alternatives to freedom of 
choice is attendance zoning. This is the method of pupil assign­
ment which was most generally employed —  albeit in the guise of 
dual overlapping zones —  prior to Brown. See Moses v. Washington 
Parish School Bd., 276 F. Supp. 834, 848 (E.D. La. 1967). The 
Board had not projected attendance patterns if unitary attendance 
zones were drawn around each school, however (Tr. 362). instead, 
the Board referred to "spot zoning" or gerrymandering zones 
around only the schools which would predictably remain all-Negro 
under freedom of choice, to produce a 25% white enrollment at each 
such school. This involved process led to a projected one million 
dollar cost (Tr. 349( and an estimate that 5300 students would 
have to be transferred (Tr. 348). The Board rejected spot zoning 
as an alternative to freedom of choice because of the cost and 
the difficulties engendered by having to transport students —  
safety factors (e,g., Tr. 300, 307-08, 312) and disruption of

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extracurricular activities (e.g., Tr. 300, 309).

The same factors are brought into play by the Board's 
decision to close five all-Negro schools. Their students too 
must be bussed to schools located further distances from their 
homes (e.g.. Tr. 94-95), involving safety hazards (e.g., Tr. 
113-14) and making it more difficult for secondary school 
students^^ to remain after school to participate in extracur­
ricular activities (ibid.). We can conclude from the Board’s 
willingness to adopt this portion of the plan that these things 
become considerations of sufficient magnitude to require rejec­
tion of the plan only where white students are involved (e.g., 
Tr. 389-91). The Board’s expressed concern for participation 
in extracurricular activities is less than convincing when one 
realizes that under freedom of choice, Negro students who elect 
to attend white schools must often overcome distance barriers 
to take part in such activities (see Tr. 388-89). Similarly, 
the Board's projected cost of one million dollars to implement 
spot zoning of the eleven all-Negro schools averages some 
$90,000 per school, and compares favorably with the $506,000 
cost of closing five all—black facilities.

A more fundamental difficulty with the Board's proof 
is that it has completely misconstrued its task. The idea is 
not to select an arbitrary percentage figure and try to achieve 
it in some schools, but to determine the best method —  which

12/ Students in elementary schools are rarely involved in 
extracurricular activities (Tr. 395-97).

-17



may include a combination of two or more approaches —  of 
organizing the school system so as to achieve a unitary school 
system without distinction based on race. There is no evidence 
in the record to support the district court's conclusion that 
"[z]oning would not result in any meaningful desegregation of 
these schools." The Board never described the results of 
projected system-wide zoning (Tr. 362) although the raw mater­
ials for making such a projection were within its possession 
(Tr. 272-73)

The Board's reasons (accepted by the district court) 
for rejecting pairing are also unconvincing. First, the Board 
maintained that the differences in capacities between schools 
which would naturally be paired were so great as to preclude 
successful pairing. This was based, however, on the premise 
that pairing should take place only by an equal division cf 
grades between the paired schools (Tr. 350), in order to 
prevent "splitting" of families with more than one pupil in 
the elementary or secondary grades (Tr. 370). It is hard to 
see, however, why the likelihood of such "splitting" would be 
any greater if grades were not equally divided between paired 
schools.

Second, said the Board (and notwithstanding its first 
argument that pairing was impossible) the cost of pairing to

13/ An expert witness from the South Florida Desegregation Center 
testified that with the maps locating the residence of each 

student in the system and identifying him by race and grade level 
which were displayed at the April 30 hearing, the Center could 
have prepared a comprehensive plan for implementation in Septem­
ber, 1969 (Tr. 275).

-18-



eliminate the eleven all-Negro schools v;ould be $440,000 and 
would involve shifting 5300 students. Again, this cost of 
closing compares very favorably with the $506,000 expense of 
closing five all-Negro schools (which the district said ought 
to be done anyway, even apart from considerations of integrating 
the schools, e„a., Tr. 107).

The evidence introduced by the Board reveals one 
thing, and one thing alone —  that the Board never really 
tried to find any alternatives to free choice, even though it 
knew free choice would not result in a unitary school system 
in Orange County.

In light of its failure in the past to bring about 
anything more than token desegregation in orange county, freedom 
of choice should have been sustained by the district court only 
upon a clear showing by the Board that it had thoroughly inves­
tigated all other methods of desegregation, and that none but 
freedom of choice was capable of implementation. The halfhearted 
efforts made by the Board are not enough.

II

The District Court Erred In 
Holding That The Board Was 
Relieved Of Any Obligation To 
Desegregate Eleven All-Negro 

Schools

The heart of the district court's opinion approving
the Orange County plan is the court's holding that the Board had

-19-



no obligation to desegregate eleven retaining all-Negro schools
in the system. Corseious of the fact that such a holding
directly contravened this Court's rulings in Adams v. Mathews,
403 F.2d 181 (5th Cir. 1968); Graves v. Walton County Bd. of
Educ., 403 F.2d 189 (5th Cir. 1968); see also, United States v.
Greenwood Municipal Separate School Dist., supra; Henry v.
Clarksdale Municipal Separate School Dist., 409 F.2d 682 (5th
Cir. 1969); United States v. Indianola Municipal Separate School
Dist., supra; Hall v. St. Helena parish School Bd., No. 26450
(5th Cir., May 28, 1969); United States v. Hinds County Bd. of
Educ., No. 28030 (5th Cir., July 3, 1969), amended August 28,
1969, cert, granted sub nom. Alexander v. Holmes County Bd. of
Educ., 38 U.S.L.W. 3125 (Oct. 9, 1969), the district court
purported to interpret those decisions:

Considering the reasons for their present 
student racial composition and their deseg­
regated operation, this Court concludes 
that the schools above listed are not within 
the Graves, supra, ambit of prohibited 
existence.

[Opinion of May 13, 1969, at p. 18].

Appellants submit the district court's holding was 
plain error. Nothing in this Court's opinions even begins to 
suggest that the rule of Adams v. Mathews mandating elimination 
of all-Negro schools does not apply to every school district 
in this Circuit.

As best we understand its opinion, the district court 
based its ruling on two theses: first, that because these

-20-



schools are located in Negro residential sections of Orange 
County, they need not be desegregated, and second, that because 
other schools in the County may have biracial enrollments and 
there is the barest minimum faculty desegregation in all schools, 
the district may ignore the rights of 65% of its Negro school- 
children to a desegregated education. The court's position 
cannot be sustained on either count.

Initially we note that there is agreement among the 
parties that, as the Deputy Superintendent testified, orange 
County's all-Negro schools are "vestiges of the dual school 
system" (Tr. 417).

The first question is, is the Board relieved of its 
obligation to eliminate those vestiges of the dual system because 
they are located within Negro residential areas? We think not. 
The very cause of this phenomenon (which is likely to continue 
under the order approved below, see p. 14 supra) is the Board s 
policy of constructing "neighborhood schools" in residential 
subdivisions (Tr. 399) to serve racially homogeneous populations. 
The idea that the Board is excused from desegregating certain 
schools because they were located in accordance with its racially 
discriminatory policies is entirely without merit.

The second argument seems to be that since the 
situation in orange County regarding school desegregation is 
not so outrageously bad as those considered in Green and in 
several subsequent decisions of this Court, it is somehow

-21-



absolved and exempted from mahng more than token efforts to 
eliminate the vestiges of a segregated school system that exist 
in Orange County. But the Adams rule does not demand nearly the 
full measure of compliance Green clearly requires in disestab­
lishing the vestiges of state-imposed school segregation. In­
stead, it establishes only the barest minimum standards school 
boards must meet to avoid having their plans declared consti­
tutionally defective as a matter of law. The fact that a formerly 
racially segregated school district now has no all—Negro schools 
should merely begin, not end, the court's inquiry into whether 
the school board has taken steps adequate to abolish its dual, 
segregated system. See United States v. Indianola Municipal 
Separate School Dist., supra, 410 F.2d at 629.

CONCLUSION

For all the above reasons, the judgment of the district- 
court should be reversed and the case remanded for development ana 
implementation of a plan which will convert the public schools of 
Orange County into a unitary school system.

Respectfully submitted,

JACK GREENBERG
WILLIAM L. ROBINSON
NORMAN J. CHACHKIN 10 Columbus Circle 

New York, New York 10019
NORRIS D. WOOLFORK350 South parramore Avenue 

Orlando, Florida
Attorneys for Appellants

- 2 2 -



APPENDIX A



REPORT ON CHOICE PERIOD

ORANGE COUNTY PUBLIC SCHOOLS 

AMENDED PLAN OF DESEGREGATION 

AS FILED WITH 

CLERK OF THE COURT 

PARTS I and II

SEPTEMBER 2 2 , 19 69



School_

T o ta l
Vnixo
Students

T o ta l
Negro
Students

T o ta l
Oilier
Students

T o ta l
Enrolln-

Apopka Or. 233 321

Apopka S r . 314 3 'U 1253
Boons 1864 10’} 1368
Cai’ .’ M1

1110 1110
Cherokee 222 363
C o lo n ia l 2348 8 2356

Coinray J r . l 44 l 8 1443
D m ? Tech. 11 1} 15
Edgewater 1705 201 1310
Evens 2001 16 2017
G len rid ge

l ??3 3 12=6
Howard 872 336 1228

Jaclisor* 1380 3 1583
Jones 111 11?4 1305
Lakevlsw

83/ 133 1032
Leo 310 227 1137
Lockhart Or, 632 113 751
M aitland C?3 70 363
Kcadov'ti'ook 1130 1 1151
Hensorlal 1007 223 1233
Oak Ridge 2023 1 'I3 217!}

OcGce ; 64 2 223 IO65

Robincwood 1213 10 1223

Union Park 1166 1166

k’a lk o r . 1328 31 10 1563

V in to r  Pork J r , 664 162 m .

V in te r  Park Sr\ 2456 n o 2378
Vfyaore Tech. 32 173 211

TOVALS 30,67!} 5 ? 537 . 10 36, >481 ,

24



Total Total Total

School
V h it c  Kegro 
Students Students

Other
Students

Total
Enrol lir.ent

Alema 8 7 0
0 1

B'/O

Auduhon Park 73^ 0 | 73't

Azalea Park 6 1 2 2 8 1 h

Blanknor 7 o2 3 7^5

Bonneville > * 3 0 1 * 3

B ro o k sh ire 77? 1 7 8 0

Callahan 0 «l6 8
•

hoB

Catalina 6 3 1 2 1 7 1 2

Cheney 6 8 3 0 6 8 3

Chickasaw 8 3 7 0 8 37

Columbia lfl6 0 >416

Convey 7 2 5 0 7 2 5

Cypress Pork if 5 3'» 2 1 3

Delaney 2 5 2 80 3 3 2

D ill a r d  S t . 2 6 0  . 5? 3 1 3

Dcr.msrioh 8 7 8 15 833

Dover Shores 8 7 0 0 8 7 0

Dre-aJS Boko 8 1 5 8 0 8 3 5

Durrance 77? 31 8 1 0

Peel e s t on 0 8 3 7 f?7

Engolvood 7 2 6 1 7 2 7

Fern Creek 8 0 3 2 8 1 1

Forrest Park 87 13 1 0 0

Gateway if‘5 13 1 5 8

Craud Avo. 2 1 5 2 3 ? *45,0

Riavassee 7 <* 0 7«

Hillcrest 31>! 1 3 1?

liolden St. 0 7 1 2 7 1 2

B ungerford ■ 0 1 * 5 14U5

Iv e y  Lano lhi h?'t f35

Kalcy !, pO
1 6 5 0!*

Ki H a m e y 8 7 1 h . 6 7 5

Bake Coro 77'* 0 77h

L sko S i l v e r 777 1 778

~ 2 5 ~



Total
White
Students

Total
Negro
Students

Total
Other
Students

Total
Enrollment

Lake Sybolia 460 Cl 431

Lake Weston 628 21 6>l?

Laker.ont 7?-7 108 833

Lancaster 3C2 2 . 384

Lockhart 4 ? 4 0 434

Lovell 858 8 663

KoCoy 737 0 737

i&gnolia 135 '  87 133

Koxey 1 363 368

Ocoee

CO 3 333

Orange Centor 0 666 66 8

Orlo Vista 6 8 4 0 684

Pershing r/o 0 ' 770

Pir.c C&stlo 6 ? l 0 631

Pino Kills 801 .0 • 601

Pirsoloch 7 4 8 0 748

Princeton 4 l j 8 lj?7

Ray 706 5 711

Richmond Heights 0 ■ 670 670

Ridgewood Park 627 1 620

Riverside 518 6 524

Rock Lake 315 241 336

Rolling Hills 706 0 706

Sadi or 7 3 1 0 731

Shenandoah 520 13 533

Spring Lake 650 1 631

Tangclo Park 486 I38 644
Tildonville 273 135 4o8
Union Park .831 4 835 •

Wash* Shores 0 770 770
Webster Avc. 3 422 425

Wheatley 0 713 7 1 3

Windermere 5 13 3 522

- 2 6 -



School

Total
Yfhito
Studorrta

Total
Negro
Studonts

Total
Other
Students

Total
Enrollment

Vinter Garden 3 1 6 60 376

Zell.-,coed 3 2 8 1°5 5 2 3

TOTALS 3 L 3 57 6235 H3262

TOTAL COUNTY 

Elementary 3*1,967 8 ,2 9 5 *13,262

Secondary 3 0 ,8 7*1 5 >577 10 3 6,118 1

TOTALS 65,6*41 13 / 6*32 1 0 79 , 7^3

\
l

27



INSTRUCTIONAL POSITIONS

28 ~



INSTRUCTIONAL POSITIONS

Secondary Schools Negro White Total

Apopka Memorial 4 62 66
Apopka Junior 8 31 39
Boone 5 85 90
Carver Junior 44 6 50
Cherokee Junior 4 46 50
Colonial '5 104 109
Conway Junior 5 49 54
Drew 21 2 23
Edgewater 4 85 89
Evans 7 85 92
Glenridge Junior 3 53 56
Howard Junior 6 • 49 55
Jackson Junior 4 58 62
Jones 72 25 97
Lake view 4 47 51
Lee Junior 4 ‘ 48 52
Lockhart Junior 3 35 38
Maitland Junior 3 40 43
Mcadowbrook Junior 3 48 51
Memorial Junior 3 54 57
M id -F la .  Tech .4 67 71
Oak Ridge 7 97 104
Ocoee 6 44 50
Robinswood Junior 5. 50 55
Union Park Junior 3 50 53
Vocational 3 30 33
Walker 4 62 66
Winter  Park Junior 4 34 38
Winter Park Senior 8 117 125
Wymore 9 23 32

TOTALS 265 1586 1851

7 - '3 <v h

- 2 9



.'Lot

34
31
30
30
20
31
20
27
2 8
34
15
31
13
16
16
35
3 6
32
26
28
29
32
22
26
19
29
15
32
20
30
22
33
29
31
19
26
34
36
2]
35
27
15
19

.

INSTRUCTIONAL POSITIONS

*

Elementary Schools Nearc Wl

Aloma 3 31
Audubon Park 3 28
Azalea Park & 27
Blankner 3 27
Booneville b 17
Brookshire 3 28
Callahan 15 5
Catalina 4 23
Cheney 3 25
C hickasaw  ' 3 31
Columbia 3 12
Conway 4 2 7
Cypress Park 3 10
Delaney 4 12
Dillard Street 4 12
Dommerich 3 32
Dover Shores 3 33
Dream Lake 4 28
Durrance 5 21
E cc les to n • 23 5
Engelwood 3 26
Ferncreek 3 29
Forest Park 3 19
Gateway 3 23
Grand Avenue 7 12
H iaw assee 3 26
H il lores t. 3 12
Holden Street 2 6 6
Hungerford 16 4
Ivey Lane 6 24
Kaley 4 18
Killarney 3 30
Lake Como 3 26
Lake Si lver 3 28
Lake Sybelia 4 15
Lake Weston 3 23
Lakemont 3 31
Lancaster 3 33
Lockhart 3 18
Lovell 3 32
McCoy 5 22
Magnolia 4 11
Maxey 15

- 3 0 -
4



Elementary Schools Negro White Total

Ocoee 3 14 17
Orange Center 23 5 28
Orlo Vista 4 24 28
Pershing 3 31 34
Pine C a s t le 3 28 31
Pine Hills 3 29 32
Pineloch 3 29 32
Princeton 3 ' 15 18
Ray P 26. 29
"Richmond Heights 22 6 28
Ridgewood Park . 3 21 24
Riverside 3 17 20
Rock Lake 3 27 30
Rolling Hills 3 2 7 30
Sadler 3 27 30
Shenandoah 3 19 22
Spring Lake 3 25 2 8
Tangelo Park 3 27 30
Tildenville 3 14 17
Union Park 3 29 32
Washington Shores 29 3 32
W ebster  Avenue 9 9 18
Wheatley 24 5 29
Windermere 3 19 22
Winter Garden 3 13 16
Zell wood 0o 22 25

TOTALS 399 1417 1816

TOTAL COUNTY:

Elementary 399 1417. 1816
Secondary 265 1 586 1851

Totals 664 3003 3667

- 2 1 -