Robinson v Brown Brief for Respondent in Opposition

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IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

UNITED STATES OF AMERICA, PLAINTIFF 

VERSUS NOS. 28030 and 28042 
  

  

SOUTHERN DISTRICT OF MISSISSIPPI | 

  
  

HINDS COUNTY SCHOOL BOARD, ET AL, DEFENDANTS 

JuL 141970 
UNITED STATES OF AMERICA, ROBERT C. THOMAS, CLERK PLAINTIFF 

BY DEPUTY 

VERSUS CIVIL ACTION NO. 3983 

AMITE COUNTY SCHOOL DISTRICT, ET AL, DEFENDANTS 

FINDINGS OF FACT AND RECOMMENDATIONS 
  

On November 7, 1969, the Fifth Circuit Court of Appeals 

in consolidated Causes Nos. 28030 and 28042 directed the immediate 

enforcement of permanent student and faculty assignment plans pre- 

pared by the Office of Education, Department of Health, Education 

and Welfare in approximately 30 school systems in the Southern 

District of Mississippi in order to effectuate the conversion of 

these school systems to unitary systems. With respect to the 

Amite County School District, involved in Cause No. 3983(J) on the 

docket of this Court, the Appellate Court by its Order of December 

10, 1969, modified the HEW student assignment plan, covering the 

four schools in the district, to the extent of permitting the 

separation of students by sex for the balance of the 1969-70 school 

year. The Order further provided that, for the Board to be 

| permitted to continue this method of assignment, an evidentiary 

hearing was to be held before this Court to determine whether such 

a plan stems from educational purposes as distinguished from 

racially discriminatory purposes. In accordance with the procedure 

provided for in the Appellate Court's Order of November 7, 1969, 

  

  
  

 



      

the defendant school district, on April 14, 1970, filed its pefi- 

tion for a continuation of the modified plan based on the folloving 

reasons: 

(1) The assignment by sex has resulted in an orderly | 

and efficient operation of the schools without any racial violence 

or incidents. 

(2) The plan has resulted in an increased achievement on 

| the part of the students. 

(3) The plan will continue to promote a peaceable 

transition from a formerly dual system to a unitary system. 

(4) In the opinion of the board, any change now in the 

operation of the schools would result in a deterioration of the 

schools and the academic advancement of the students. 

The petition further sought permission for the school 

board to dispose of the Crosby Attendance Center facility as 

surplus property, but this request was withdrawn at. the hearing. 

After notice to all parties, a hearing was had on June 

24, 1970, at which plaintiff and the defendant school board were 

represented by counsel. The N.A.A.C.P. Legal and Educational 

Defense Fund, amicus curiae herein, made no appearance. 

Plaintiff's response to the petition, both written and 

oral, conceded that if defendants met their burden in showing that 

the proposed separation of students is not racially motivated, 

plaintiff has no objection. Plaintiff offered no witnesses or 

evidence, confining its participation to cross=-examination of 

defendants' sole witness. 

Defendants presented their evidence through the testimony | 

of Miss Annie Andrews, superintendent of Amite County school 

district, a position which she¢ has held for twenty-three years, 

      
  
  
 



      

and in which system she was for many years an instructor and 

principal before being elected superintendent. 

Prior to the plan offered by HEW, there were five schools 

in the system, four containing grades 1-12, each, and one, Crosby 

Attendance Center, housing grades 1-6. Gloster Attendance Center, 

formerly white, and Amite County Training School, formerly black, 

are located in the town of Gloster, approximately one-half mile 

apart. Liberty Attendance Center, formerly white, and Central 

School, formerly black, are close together in the town of Liberty. 

The HEW plan assigned grades 1-6 to Central School and grades 7-12 

to Liberty Attendance Center in the Liberty area. In the Gloster 

area, all students in grades 1-8 in this area, including those 

served by the Crosby Attendance Center, were assigned to Amite 

County Training School, and grades 9-12 in this area were assigned 

to the Gloster Attendance Center. HEW recommended the closing of 

the Crosby Attendance Center. 

The Appellate Court's modification of this plan permitted 

the assignment of all male students to attend either Central School 

or Amite County Training School, whichever is nearer the student's 

residence, and all female students to attend Liberty Attendance 

Center or Gloster Attendance Center, whichever is nearer the 

student's residence. 

The witness testified that the modified plan was imple- 

mented accordingly in that for the balance of the 1969-70 school 

term, boys attended Amite County Training School and girls attended 

Gloster Attendance Center in the Gloster area; in the Liberty Area, 

boys attended Central School and girls attended Liberty Attendance 

Center. 

In working out faculty assignments, the witness stated 

|| that the four school principals were first consulted, each agreed 

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to cooperate, and each was retained at his former school, being 

the facility he was most familiar with. It so happened that white 

principals are at the girls' schools, and negro principals are 

at the boys' schools. To each principal was assigned an assistant 

of the other race. Miss Andrews stated that the board carefully 

considered each of these assignments and they have turned out to 

be wise selections. Shan 

The next emphasis of the school board was on teacher 

- assignments. Some were assigned automatically, such as home 

economics teachers to the girls' schools, and coaches, with teach- 

ing assignments, to the boys' schools. Volunteers were asked for,   
resulting in the acceptance of assignments by all male teachers. 

The board encountered its biggest difficulty in assignments on 

the elementary level. Only one woman teacher volunteered to teach 

at the boys' elementary school. A total of 31 white teachers and 

1 negro teacher either resigned or failed to return. The balance 

of the teacher assignments was made by lottery. 

In answer to questions as to how the separation by sexes   
has worked, the witness stated that she has had the cooperation of | 

her principals and teachers who have given her detailed reports on 

the progress of the students from which she has concluded that 

daily attendance has been higher, teachers have been able to devote 

more time to academic teaching; the students seem happier and better 

motivated; there have been less than normal disciplinary problems 

in the school buildings and on buses and play grounds; more 

opportunity has been given to boys in developing leadership; the 

achievement level of boys has improved with no lessening in the 

girls' level of achievement; weaker pupils feel more secure;   
teachers find they can prepare their lessons better with an appeal | 

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to one sex rather than to both sexes; and teachers, parents and 

the system's bi-racial committee, which has been fully consulted, 

have all expressed their approval. 

The witness, in referring to educational publications 

reporting on the results of similar operations in other parts of 

the country, stated that these reports indicate that in school 

systems where there has been separation by sex, boys, no longer 

under the finstration of feminine influence, show better attendance 

records, more sustained interest in their classes, and an improve- 

ment in achievement levels. Actual tests in the Amite County school 

system revealed similar results which the witness attributed to 

the separation by sex and the dedication of the teachers ho’ 

have remained in the public school system. 

On December 19, 1969, prior to the implementation of 

the modified plan, there was a total enrollment in this system of 

3975 students of which 2552 were black and 1423 white. The April 

15, 1970 school report showed a total of 2722 in attendance, 182 

being white and 2540 being black. The witness stated that, after. 

the initial drop-out of white students following the implementation 

of the modified plan, attendance has remained constant, and that 

the whites who have remained in the system appear satisfied, and 

their parents are cooperative. She stated that the challenge to   
the board is to maintain the present educational stability of the 

school system in an effort to persuade the white students to re~- | 

turn. Having dedicated her life to public schools, she expressed 

her concern over the transfer of approximately 1000 students to 

private and parochial schools, and, chiefly, her concern over the 

non-attendance at any school of 223 white students whose families 

can afford neither private school tuition nor transportation. 

There are non-public schools, serving grades 1-12, in Gloster 

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and Liberty, and in other towns, all within a nearby radius of 

this school system. It is the witness's opinion that any further 

drastic change in the present student assignments would result in 

the withdrawal of all, white students, leaving an all, black 

attendance as has recently occurred in the adjoining Wilkinson 

County School District. She believes that, if the school board 

is permitted to continue the present plan, and, after the community 

has had time to appreciate its effectiveness, that recalcitrant 

whites will return to the public schools. 

On cross-examination, the witness conceded that the 

Amite County School system has not previously assigned students 

by sex, but denied that such an assignment has not heretofore been 

considered by her and other educators in continuing studies of 

ways to improve achievement levels and without being under court 

orders to do so. Responding to the question of what educational 

advantages there are in having four, twelve grade schools with 

separation of students by sex rather than consolidating the high 

school grades into two high schools, she expressed her opinion 

that smaller schools have the advantage of more supervision, 

particularly now, and that each of these schools was originally 

designed, built and equipped for grades 1-12, and that adjustments 

or alterations to the buildings have been minimal, consisting 

chiefly of the transfer of books, with other equipment and 

facilities remaining intact. The transportation by buses is 

unitary, by race and by sex, there being no difference in the cost, 

whether under the original HEW plan or as modified. She sees no 

conflict in transporting the sexes together and separating them 

academically. 

On the basis of the uncontradicted testimony, .this Court 

finds that: 

  
  

  

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1. The separation of the students in the defendant 

school district by sex, with boys of both races going to two 

schools and with girls of both races going to two other schools, 

has produced a unitary school system. 

2. The achievement level of all the boys has shown a 

substantial improvement during the relatively short time the 

separation by sex has been in use with no lessening in the level 

of the girls' achievement.   3. The general attendance of all the students has improv- 

4, ‘There have been less than normal disciplinary problems 

in school buildings and on busses and play grounds. 

5. The system has successfully improved the motivation 

of both students and teachers, with measurably improved leadership 

qualities on the part of the boys. 

6. That the stability of the entire school operation, 

by continuing the modified plan, realistically promises to 

retain and increase white attendance and the cooperation of the 

community as a whole.   7. Finally, the Court finds that defendants have met | 
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their burden of showing that the separation by sex plan stems from | 

sound educational purposes as distinguished from racially 

discriminatory purposes. 

There is authority for separation of sexes as an 

educational decision to be made by the school board. Moore v. 
  

Tangipahoa Parish School Board, 304 F. Supp. 244, In that case, 
  

the Court respected the school board's conviction that "separate 

education based on sex would provide the atmosphere most conducive 

for learning in these schools.....0ld patterns are breaking up 

and desegregation may be the stimulus that educators have needed 

in order to institute educational reforms." Nor is the separation 

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by sex unconstitutional. Although separation by sex was ultimate- 

ly disallowed in the Court's order of July 6, 1970, in U.S.A. v. 
  

Carroll County Board of Education, U., S. District Court, Northern 
  

District of Mississippi, No. G.C. 6541-K, because the Court found 

that the proposal was based on racial motivation and not 

educational reasons, the Court had earlier pointed out: 

"There is no objection to the assignment of school 
children to schools on the basis of sex; no federal 
court has at any time claimed such an assignment to 
be unconstitutional and the government in this case 
does not enter objection to that concept. As a 
matter of fact 'coeducation,' the education of girls 
in the same schools that boys also attend has been 
regarded as a 'modern phenomenon.' Encyclopedia 

Britannica, Vol. VI, page 14. Historically the 
education of youths was on the basis of separation 
of the sexes and it was not until approximately 
1900 that most public high schools were coeducational. 

According to good authority, opponents of coeducation 
at the elementary level have argued that girl's nature 
is so different from that of boy's that a different 
kind of education is required, expecially from the 
age of 12. Encyclopedia Britannica, page 15. This 

observation is pertinent only to show that the 
philosophy of teaching young people on a basis of 

separation by sex is respectable and has behind it a 

certain wisdom of the ages. In any case the concept 

embraces a philosophy that has not been hdd contrary 

to the United States Constitution and must, therefore, 

be approved." 

Having found that defendants have advanced sound 

educational principles, unrelated to racial consideration, for 

the establishment of a student assignment plan by separation of 

the sexes, this Court recommends that the Amite County School 

District be permitted to continue its student assignment plan le 

presently modified. 

It is further recommended that the current desegregation 

of faculty and staff policy remain in effect, as well as other 

standard policies set forth in the current plan. 

Recommended and signed in duplicate, the Clerk of this 

Court being directed to file one signed duplicate in his office 

  

  
 



      

and forward the other signed duplicate to the Clerk of the U.S. 

Court of Appeals for the Fifth Circuit, and mail a copy to each 

party of record. 

     UNITED STATES DISTRICT 

  

DATED: (43 IY. 1220 
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