Private Plaintiffs'-Appellants' Proposed Opinion Order

    » 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

—_—~ BEATRICE ALEXANDER, et al., 

Plaintiffs-Appellants, 

VS. 
No. 28030 

THE HOLMES COUNTY BOARD OF EDUCATION, 

et al., 

Defendants-Appellees. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, 

VS. 
No. 28040 

HINDS COUNTY BOARD OF EDUCATION, 

et al., 

Defendants-Appellees. 

PRIVATE PLAINTIFFS'-APPELLANTS' 

PROPOSED OPINION ORDER 
  

  

MELVYN R. LEVENTHAL 

FRED 1.. BANKS, JR. 

REUBEN. V. ANDERSON 

538% North Farish Street 

Jackson, Mississippi 39202 

JACK GREENBERG 

NORMAN CHACHKIN 

JONATHAN SHAPIRO 

Suite 2030 
10 Columbus Circle 

New York, New York 10019 

Attorneys for Plaintiffs- 

Appellants 

 



      

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

NOS. 28030, 28042 

  

3 

UNITED STATES, 

Appellant, 

Ve 

HINDS COUNTY. SCHOOL, BOARD, et al,, 

Appellees. 
- 

  

PROPOSED OPINION -- ORDER 
  

In accordance with this Court's instruction of June 25, 1969 

private appellants herein submit the following proposed opinion 

order for the Court's consideration. 

In @ach of thege cages, the district court, sitting en banc 

after consolidated hearings, approved the continued use of freedom- 

of-choice plans by the thirty-three Mississippi school districts 

involved in these Cison. The Court below dsclined to withdraw 

the Jefferson decree previously entered in each case on the grounds   

that although "very little progress has been made in desegregating 
1/ : 

these schools” (p. 7), "plaintiffs have not shown by the greater 

weight of the more convincing evidence that the freedom of choice 

plan as to the other schools has not worked and that there is no 

probable prospect of such plan working" (p. 13) (emphasis supplied) 
    

  

1/ Page references are to the slip opinion of the district 
court, :   
 



      

ec °* 

We reverse and remand with instructions. The data supplied 

by each school board demonstrate that during the years when these 

school districts operated Jefferson-type free choice plans, no   

&; $; 
white student has ever expressed a choice to attend an all-Negro 

school. The pattern of Negro attendance at formerly all-white 
3? 

schools is similar to that found in Hall v. St. Helena Parish 
  

School Board, F.2d , No. 26450 (5th Cir., May 28, 1969): 
    

such slow, incremental progress that it is unlikely that the 

public schools would be deseqregated within anv meaningful period 

of time. The schools remain racially identifiable according to 

the pattern of pupil attendance and because few inroads have been 

made toward the abolition of the segregated faculty structure. 

The district court so found in its opinion (pp. 7, 17). 
1 : 
' We have therefore determined that new plans of desegregation 
i 

which promise realistically to work now, Green Vv. County School 
      

‘Board of New Kent County, Va., 391 0.8. 430, 439 (1968), must De 
  

submitted. We have also determined to direct, as we did in 

Davis v. Board of School Commissioners of Mobile, F.2d ’ 
mm————— 

  

No. 26,886 (5th Cir., June 3, 1969), and as we suggested in Hall, 

supra, that each school bonds seid the advice and assistance of 

the Office of Eacniicn. Bhiled States Department of Health, 

Education and Welfare, in preparing its plan. We recognize that 

noone is more familiar with local needs and conditions than are 

local school officials. We do think that the Office of Education, 

whlenchy now has developed considerable experience in assisting 

in the creation of desegregation plans, can be of considerable aid 

to school districts in developing constitutional plans of 

operation for the school year 1969-70, 

  

2/ With the exception of the Holly Bluff Line Consolidated msespat Separate districts, which are disposed]       

  

of separately in our order. 

  
 



      

® 3 
% 

Finally, we have also determined in order that there may Be 

no confusion or misunderstanding on the part of anyone,: to spell 

out in detail the constitutional requirements of the plans to be 

submitted. | 

We hold that except in ihe Tove of a majority-to-minority 

transfer, free choice shall peste the basis of any plan in these . 

cases. We recognize that the Supreme Court in Green and this 

Court in Hall did not completely shut the door to free choice as 

a constitutional method of desegregation in some circumstances. 

We continue to agree that "there may well be instances in which it 

can sarve as an effective device.” 391 U.S. at 440. . Where due 

to intensive residential segregation or other conditions, no other 

plan such as zoning or pairing is feasible, then surely the 

Constitution permits school districts to offer their students the 

benefits of an integrated educational experience through the 

device of majority-to-minority transfers, open enrollment, or free 

choice. But where, as in Green, and as in these cases there are 
  

reasonably available other alternatives which would rapidly and 

completely desegregate the schools and remove their racial 

. . : . 2 ’ : . . -® 
identities, the Constitution requires their adoption in preference 

to free choice. 

  Appellees misread Brown II when they emphasize the value of 

permitting each Thild To attend the school of his or her choice, 

The purpose of the equitable remedy which the federal courts must 

administer under Brown is not to create a new system of education 

which mirrors the democratic model of the political process, but 

to return the schools as nearly as possible to the conditions 

which likely would have existed in the absence of racial 

discrimination: no - "Negro" schools, no "white" schools, but just 

schools. Green, supra, 391 U.S. at 442, Desires of Negroes to   

avoid integration in public education, fostered by the segregated 

  
 



      

experience of generations, can no more be held determinative 'by 

federal courts than can the like desires of whites. E.g., Anthony 
  

v. Marshall County Board of Education, F.2d s NO. 26432, 
  

  

{Sth Cir,, April 15, 1969), Haney v. County Boart{ of Education of 

Sevier County, F.2d , No. 19,404 (8th Cir., May 9, 1969 
  

Since the records in these cases demonstrate the availability 

of regimes other than freedom-of-choice, we hold that its use in 

the future is Sfonaribed except to the extent indicated above. 

To avoid the possibility that zones may be gerrymandered to 

follow racial residential patterns, see Henry v. Clarksdale 
  

Municipal Separate School District, iP .20 NO. 23255 
  

  

(5th Ccir., Mar. 6, 1969); Haney, supra; or neutralized by the 
  

process of resegregation, we hold that where zoning and pairing 

are administratively feasible, pairing shall be preferred. 
/ 

In United States v. Montgomery County Board of Education, 
    

U.S. : (1969), rev'g Montgomery County Board of Education 
  

“. carr, 400 F.24 1 (5th Cir, 19638), rev'g 289 F. Supp. 647, 28% 

"FP. Supp. 657 (M.D. Ala, 1968), the Supreme Court held that a 

requirement that the ratio of minority teachers at each school 

be the same as the ratio of minority teachers in the entire 

system was an appropriate remedy for past discrimination in 

teacher assignments. :The record of these districts on faculty 

integration is, if anything, worse than that of Montgomery County. 

We hold that the Montgomery County standards shall apply and be 
  

effective for the 1970~- 71 school year and that very fvatantizt 

progress toward that goal must be made in the 1969-70 school year. 

The orders of the district court are reversed and the cases 

remanded to the district court with the following instructions: 

}- 

  
 



  

| 

  

“ » 

l. These cases shall receive the highest priority on the 
  

court's docket. 

2. In Civil Action No. 1209(W), involving the Holly Bluff 

Line Consolidated School District, and in Civil Action No. 1302(E)| 

involving the Enterprise Consolidated School District, the 

district court shall issue its decrees requiring each school 

board to submit, within ten days of the issuance of the mandate 

herein, a plan which will, effective for the school year 1969-70, 

reorganize the grade structure attendahce pattern of the two 

existing school facilities within each district so that all 

students in the elementary grades residing within each district 

shall attend one school, and all students in the secondary grades 

residing within each district shall attend the other school. The 

exact grade division between the two schools shall be determined 

by the school boards based upon the capacity of each facility. In 

its other respects, the plans to be submitted by each school   | board shall fully and affirmatively desegregate the public 

schools of each district consistent with the constitutional 

standards and the opinion herein. 

3. In all other cases, the district court shall issue its 

decree directing that each school board shall forthwith request 

the expert technical assistance of the United States Office of 

Education, Department of Health, Education and Welfare in the 

preparation of a plan to fully and affirmatively desegregate the | 

public schools within the board's jurisdiction, that each school | 

board shall make available to the Office of Education or its 

designees all requested information relating to the operation of 

the school district, and that each school board shall, with the 

collaboration of the Office of Education, design, develop and 

submit to the district court on or before August 1, 1969, such a 

plan, consistent with the following constitutional standards 

which have been announced previously by this Court and the   

_
—



RA ne 

  

Supreme Court of the United States: 

fa) The pupil assignment provisions of the plan 

shall be such tint effective with the 1969-70 school 

year, there shall be substantial numbers of white 

students attending each formerly all-Negro school 

operated during 1969-70 and substantial numbers of 

Negro students attending each formerly all-white 

school operated during 1969-70 to the end that no 

rela shall be racially identifiable. 

b. No plan shall utilize the "freedom-of-choice” 

" method of pupil assignment except insofar as any plan 

may, and preferably should, include a provision 

permitting voluntary transfers by students from a 

school in which pupils of their race are in the , 

majority to a school in which pupils of their face 

are in the minority. 

\ c¢. The plans may incorporate pupil assignment 

by zoning, pairing, any combination thereof, or Tins 

other methods of assignments which will have the 

effect of disestablishing the dual system, except 

that freedom-of-choice shall not be used. Where 

both pairing and zoning are administratively feasible 

methods of pupil assignment, pairing shall be preferred, 

Gg. The plan shall provide for faculty assignments 

. such that effective for the school year 1970-71, the 

ratio of Negro teachers at each school approximates 

the ratio of Negro teachers among the faculty in the 

entire system. To this end, specific numerical 

targets for the school year 1969-70 shall be established 

and met such that substantial increases in faculty 

integration over 1968-69 shall be achieved and 

realization of complete faculty desegregation in 1970- 

71 made feasible.       
 



  
  

    
 
  
 

  
  

 
 

 
 

    
 
 

 
 
 

 
 

  
  

  
 
 

 
 

  
 
   
 
 

  
  
 
 

  
 
 

  

™ 
I UJ 

. 
a 

- 
i 

. 
{ 

i 
‘ 

i 
~ 

4 
4 

. 
AA 

( 
RD 

: 
> 

oh. 
4 

a 
4 

§ 
0 

{ 
y 

A - 
A 

~~ 
§ 

) 
‘ 

() 
0) 

r
e
 

- 
() 

{ 
{ 

| 
( 

~ 
| 

’ 
\" 

-4 
ed 

: 
4 

) 
4 

r 
¥ 

P 
' 

J 
hdd 

i 
ad 

N
y
 

~ 
i 

{ 
a 

Y 
> 

] 
{ 

} 
) 

cc 
wd 

i 
= 

7 
d 

dd 
—
 

a 
— 

- 

v 
l 

. 
* 

[ 
[$ 

wyd 
| 

a 
< 

- 
+ 

{ 
i 

r 
3
 

p 
y 

4 
* 

: 
v’ 

‘ 
2) 

hu 
+ 

\ 
’ 

R 
/ 

! 
+ 

~{ 
® 

5 
§ 

< 
0) 

C 
3
 

gs 
7
 

- 
~ 

~ 
7 

he 
. 

5 
pe 

> 
4 

{ 
J 

- 
T
a
 

n 
{ 

‘ 

} 
> 

i 
{ 

4
 

L 
1 

” 

| 
# 

() 
) 

{ 
TS 

{ 

\ 
- 

oy 
=
 

: 
\ 

{ 
1) 

ry 
)
 

4 

4 
AJ 

) 
} 

+ 
R 

1 
ua 

, 
) 

r 
tL 

‘ 
i 

—\ 
4 

Ce 
4 

~
 

r 
‘ 

< 
4 

a 
oll 

OJ 
+ 

+ 
Ji 

. 
\ 

fs 
I 

y 
{ 

< 
\./ 

J 
8 

i 
{ 

ud 
o
r
 

- 
) 

J 

+ 
\ 

- 
c 

- 
i 

0 
{ 

4 
i 

I. 
r= 

( 
ve 

{ 
{ 

&
 

: 
J 

. 
. 

{ 

Y 
hed 

y 

E 
+ 

r 
) 

~ 
W
w
 

Ss 
+ 

1 

\ 

| 
( 

£ 
re 

: 
bt 

po 
- 

Sot 
LS 

” 
: 

 
 

 



      

the operation of the school Jistrictitn the same manner as such 

materials have been made available to the Office of Education or 

its designees pursuant to the order of this Court. In order to 

avoid unnecessary duplication of materials, and where Srl 

this requirement may be satisfied if such materials are made 

available at the HEW office accessible to plaintiffs' local 

counsel, 

7. For plans as to which objections are made or amendments 

suggested, or which in any event the district court will not 

approve without hearing, the district court shall commence 

hearings no later than one day after the time for filing 

objections has expired. 

8. A new plan for each district effective for the beginning 

of the 1969-70 school year shall be completed and approved by 

the district court os later than August 13,:1969, 

9. The district court shall enter findings of fact and 

conclusions of law regarding the efficacy of any plan which is 

approved to immediately disestablish the dual school system in 

question. FavisaicEion should be retained, however, under the 

teaching of Green, 3°21 U.S. at 439 and Raney, 391 U.S. at 443, 

until it is clear that disestablishment has been achieved. 

10. A copy of such findings, conclusions, and orders as 

are entered, together with copies of disestablishment plans, 

shall be lodged immediately with the clerk of this court. 

Because of the urgency of formulating and approving plans 

to be effective for the 1969-70 school year, it is ordered as 

follows: The randuie of this court shall issue immediately and 

will not be stayed pending petitions for rehearing or certiorari. 

This court will not extend the time for filing petitions for \ 

rehearing or Belcts in support of or in opposition thereto. Any 

appeals from orders or decrees of the district court on remand 

shall be expedited. The record on appeal shall be lodged with 

  
 



  

* ® 

this court and appellants' brief filed, all within three days 

of the date of the order or decree of the district court from 

which the appeal is taken. Appellees' brief shall be due three 

days thereafter. The court will determine the time and place 

for oral argument if allowed. No consideration will be given 

to the fact of interrupting the school year in the event further 

relief is indicated. 

REVERSED AND REMANDED WITH DIRECTIONS, 

] 
: 

] 

S
a
l
a
 

 



  

Respectfully submitted, 

  

MELVYN R. LEVENTHAL 
FRED L. BANKS, JR. 
REUBEN V. ANDERSON 

538% North Farish Street 
Jackson, Mississippi 39202 

JACK GREENBERG 
NORMAN CHACHKIN 

JONATHAN SHAPIRO 
Suite 2030 
10 Columbus Circle 
New York, New York 10019 

Attorneys for Plaintiffs- 
Appellants