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Brief Collection, LDF Court Filings. Davis v. Mobile County Board of School Commissioners Brief for the Board of School Commissioners, 1970. 73a60316-af9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/05f71891-e7fc-4279-b050-2305521cbd7f/davis-v-mobile-county-board-of-school-commissioners-brief-for-the-board-of-school-commissioners. Accessed August 19, 2025.
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IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1970
No. 436
BIRDIE MAE DAVIS, et al.f
Petitioners,
v.
BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, et al.
On Writ of Certiorari to the United States Court of Appeals
for the Fifth Circuit
BRIEF
For the Board of School Commissioners
of Mobile County
ABRAM L. PHILIPS, JR.
PALMER PILLANS
GEORGE F. WOOD
510 Van Antwerp Building
Mobile, Alabama 36602
Attorneys for the Board of School Com
missioners of Mobile County, et al.
Of Counsel
Hon. John J. Sparkman, U. S. Senate
Hon. James B. Allen, U. S. Senate
Hon. Jack Edwards, Member of Congress
Washington, D. C.
St. Louis Law Printing Co., Inc., 411-15 N. Eighth St. 63101 314-231-4477
INDEX
Page
Opinions below .............................................. 2
Question presented ................................................................ 3
Statement ................................................ 5
I. General introductory information ......................... 5
II. Statement of the facts ................................. • • • 6
(1) Faculty and staff ........................................... 8
(2) Transportation ................................................ 11
(3) Extra curricular activities ........................... 12
(4) Services, facilities and programs ................. 13
(5) Construction, etc............................................... H
(6) Transfer policy ................................. - ........... 18
(7) Bi-racial committee ....................................... 18
(8) Student assignment ....................................... 18
TIT The desegregation process, chronologically . . . . 19
(1) 1962-1963 school y e a r ..................................... 20
(2) 1963-1964 school y e a r ..................................... 21
(3) 1964-1965 school y e a r ..................................... 21
(4) 1965-1966 school y e a r ................. 22
(5) 1966-1967 school y e a r ..................................... 23
(6) 1967-1968 school y e a r ..................................... 24
(7) 1968-1969 school year ..................................... 26
(8) 1969-1970 school y e a r ..................................... 29
(9) 1970-1971 school y e a r ..................................... 37
11
IV. Summary—The situation as it now exists under
the orders of the Court of Appeals now before
this court for review ............................................. 42
V. Petitioners’ contentions ....................................... 46
VI. The relief that is needed....................................... 51
Summary of argument...................................................... 55
Argument ............................................................................ 60
I. This school system should not be required to
attempt to implement plan B-I alternative . . . . 60
II. Does the Constitution of the United States re
quire that public school systems of the United
States assign the teachers of the systems to the
schools of the systems in such a manner as to
achieve a racial balance of teachers in each
school, or some other arbitrary mathematical
ratio of black and white teachers in the schools
of the system! ........................................................ 69
ITT. Does the Constitution of the United States re
quire that the public school systems of the
United States assign the students of the systems
to the schools of the systems in such a manner
as to achieve a racial balance of students or
some arbitrary mathematical ratio of black and
white students in the schools of the systems? 80
Does the mere existence of a school with a stu
dent body made up of students all of one race,
in a public school system that is otherwise com
pletely integrated and unitary, render the school
system constitutionally deficient? ..................... 80
Does the existence of two (2) schools that have
all black student bodies and five (5) schools
that have all white student bodies, in a school
I l l
system of eighty-three (83) schools that is
otherwise completely integrated and unitary,
render the school system constitutionally de
ficient1? ...................................................................... 80
IV. Under the Constitution of the United States,
do white public school students have the same
right or an equal right as do black public school
students, to the benefit and protection of the
constitution and of the laws of the United
States; specifically the equal protection clause
of the Fourteenth Amendment, and the Civil
Rights Act of 1964. If they do, then is it not
constitutionally sufficient that public school sys
tems assign students to schools on the basis of
attendance zones that are fairly drawn to nor
mal standards of educational soundness and
upon the basis of non-racial criteria, in order to
produce as nearly as possible a system of uni
tary neighborhood schools ................................. 90
Conclusion ........................................................................... 98
Appendix
I. Student transfer p o lic y .........................................
II. Table of enrollment statistics prepared by the
district court as a part of its order of July 13,
1970 ...........................................................................
Cases Cited
Alexander v. Holmes County Board of Education, 396
U.S. 19 (1969) ..............................6,19,33,58,73,88,89,94
Avery v. Wichita Falls Independent School District,
241 F.2d 230 ............................................................. 19,23,84
Banks v. Housing Authority, 120 Cal. App. 2d 1, 260
P.2d 668 (1953), cert. den. 347 U.S. 974 (1954) . . . . 76
101
102
XV
Bell v. School City of Gary, 324 F.2d 209 (1963), cert,
deii., 377 U.S. 924 ........................................................ 86
Board of Public Instruction of Duval County, Florida
v. Braxton, 326 F.2d 616, 620 (C.A. 5th 1964), cert.
den. 377 II. S. 924 (1964) ................................. . 70
Bolling v. Sharpe, 347 U.S. 497 (1954) ......................... 72
Borders v. Rippy, 247 F.2d 268 ............................... 19, 23, 84
Boson v. Rippy, 285 F.2d 43 .........................................23,84
Bradley v. School Board of City of Richmond, 382
U.S. 103 .......................................................................... 86
Briggs v. Elliott, 132 F. Supp. 776 ..................... 19,22,83
Brown v. Board of Education of Topeka, 347 U.S.
483 (1954) . . . . 19, 22, 23, 58, 71, 72, 81, 82, 83, 87, 89, 94, 96
Brown v. Board of Education of Topeka, 349 U.S.
294 (1955) ...................... 22,23,69,70,81,82,89,91,94,96
Bowman v. County School Board, 382 F.2d 326 (C.A.
4th 1967) ........................................................................ 70
Caddo v. Parish School Board v. United States, 389
U.S. 840 (1967) .............................................................. 72
Carter v. West Feliciana Parish School Board, 396
U.S. 29 (1970) ......................................................... 33,42,47
Cassell v. Texas, 339 U.S. 282 (1950) ......................... 75
Clark v. Board of Education of Little Rock School
District, . . . F.2d . . . (C.A. 8th May 13, 1970) ..73,79
Collins v. Walker, 329 F.2d 100 (C.A. 5th 1964) .......... 76
Clark v. Board of Education of Little Rock School
District, 369 F.2d 661 (1966) ........................................ 86
Cohen v. Public Housing Administration, 257 F.2d 73 84
Cooper v. Aaron, 358 U.S. 1 (1958) ....................... 85,87,94
Davis v. Board of School Commissioners of Mobile
County, 318 F.2d 63 21
V
Davis v. Board of School Commissioners of Mobile
County, 322 F.2d 356 ..................................................... 21
Davis v. Board of School Commissioners of Mobile
County, 333 F.2d 5 3 ...................................................... 21
Davis v. Board of School Commissioners of Mobile
County, 364 F.2d 896 ..................................................... 24
Davis v. Board of School Commissioners of Mobile
County, 393 F.2d 690 .................................................... 27
Davis v. Board of School Commissioners of Mobile
County, 414 F.2d 609 .................................................... 29
Davis v. Board of School Commissioners of Mobile
County, 422 F.2d 1139 (1970) ....................................... 37
Deal v. Cincinnati, 324 F.2d 209 ................................. 19,93
Deal v. Cincinnati, 419 F.2d 1387 ........19,44,73,87,88,94
Downs v. School Board, 236 F.2d 988 ......................... 69,91
Ellis v. Board of Public Instruction of Orange County,
423 F.2d 203 (5th Circuit, 1970) ..................8,19,89,93
Evers v. Jackson Municipal Separate School District,
328 F.2d 408 .......................................................... 85
Goss v. Board of Education of Knoxville, 373 U.S.
683 (1963) ...................................................................... 73
Green v. County School Board of New Kent County
Virginia, 391 U.S. 430 (1968) ................... 19,28,29,58,69
82, 87, 88, 89, 94
Holland v. Board of Public Education, 258 F.2d
730 ....................................................................................23,84
Kemp v. Beasley, 423 F.2d 851 (C.A. 8th, 1970) .......... 19
Loving v. Virginia, 388 U.S. 1 (1967) ......................... 74
McLaughlin v. Florida, 349 U.S. 184 (1964) .......... 74
Meyer v. Nebraska, 262 U.S. 390 (1923) .......................... 97
VI
Monroe v. Board of Commissioners of City of Jackson,
380 F.2d 955 (1967) ............................. ................ . 86
Pierce v. Society of Sisters, 268 U.S. 510 (1925) . . . . 97
Plessy v. Ferguson, 163 U.S. 537 (1896) ..................... 72
Progress Development Corp. v. Mitchell, 182 F. Supp.
681 (D.C. 111. 1960), rev’d, in part 286 F. 2d 227
(C.A. 7th 1961) ............................................................ 76
Rogers v. Paul, 382 U.S. 198 (1965) ......................... 85,94
Singleton v. Jackson Municipal Separate School Dis
trict, 355 F.2d 865 (C.A. 5th 1966) ............................. 70
Singleton v. Jackson Municipal Separate School Dis
trict, 384 F.2d 729 (C.A. 5th 1965) ......................... 70
Singleton v. Jackson Municipal Separate School Dis
trict, 419 F.2d 1211 (5th Circuit, en banc, December
1969) ............................................ 8,11, 33, 40, 42, 64, 71, 78
Springfield School Committee v. Barksdale, 348 F.2d
261 (1965) .................................................................... 86
Swain v. Alabama, 380 U.S. 202 (1965) ..................... 75
Taylor v. Leonard, 30 N. J. Super. 116, 103 A.2d
632 (1954) .................................................................... 76,77
Teel v. Pitt County Board of Education, 272 F. Supp.
703 (D.C. N.C. 1967) ................................................... 73
Traux v. Raich, 239 U.S. 33 (1915) ............................. 77
United States v. Board of Education of Baldwin
County, 417 F2d 848 (C.A. 5th 1969) ......................... 71
United States v. Indianaola Municipal Separate School
District, 410 F.2d 626 ............................................... 95,96
United States v. Jefferson County Board of Education,
372 F.2d 836, 380 F.2d 385, Cert. Denied 389 U.S.
840 ...................................19, 26, 69, 70, 72, 76, 85, 87, 89, 93
United States v. Montgomery County Board of Edu
cation, 395 U.S. 225 (1969) ......................................... 70
West Virginia State Board of Education v. Barnette,
319 U.S. 624 (1942) ..................................................... 77
Wright v. Rockefeller, 211 F. Supp. 460 (D.C. N.T.
1963), aff’d. 376 U.S. 52 (1964) ................................. 76
Statutes Cited
Civil Rights Act of 1964, 42 USCA 2000e:
Section 703 (a) (2) ...................................................... 78
Section 703 (j) ........................... 78
Constitution of the United States:
Fourteenth Amendment ..............................................79,80
Elementary and Secondary Education Act of 1965, as
amended....................................................................... 79
Miscellaneous Cited
De Facto Segregation, Educational Policies Commis
sion of the NEA and the American Association of
School Administrators, NEA Journal (October 1965) 88
Gordon, Assimilation of American Life: The Role of
Race, Religion and National Origins (1964) ............ 88
Greenberg, Race Relations and American Law (1959) 92
116 Cong. Rec., § 4351, Daily Ed., March 24, 1970 . . . . 93
vii
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1970
No. 436
BIRDIE MAE DAVIS, et a l.
Petitioners,
v,
BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, et al.
On Writ of Certiorari to the United States Court of Appeals
fo r the Fifth Circuit
BRIEF
For the Board of School Commissioners
of Mobile County
“ For almost a decade there have been judicial efforts
to desegregate the schools of Mobile County, Alabama.
We wonder when the epilogue will be written.” . . .
(Judge Goldberg, Opinion in Fifth Circuit number 27849,
a collateral proceeding to the primary desegregation case.)
“ I have said many times that the best thing that could
happen would be for this litigation to come to an end.
This is true. But I am unwilling to disregard all common
sense and all thoughts of sound education, simply to
achieve racial balance in all schools. I do not believe the
law requires it. And this litigation will continue to be
stirred as long as adequate funds are provided for those
who want litigation for the sake of litigation, without
regard to the rights of the children and parents involved.
The Court has attempted as nearly as possible to comply
with the mandate of the Appellate Courts and yet leave
it humanly and educationally possible to operate the
schools.” . . . (Judge Daniel H. Thomas’ Opinion at
tached as part of the January 31, 1970, District Court
decree in this case.)
OPINIONS BELOW
The statement of opinions and orders of the courts
below made by Petitioner does not include the following-
orders and opinions, which should be included:
1. Order of the district court filed January 22, 1970,
granting the application for intervention of the Mobile
County Council Parent-Teachers Associations, et al, un
reported.
2. Order of the district court filed January 31, 1970
requiring the re-establishment of an elementary school on
Dauphin Island, unreported.
3. Order of the district court filed August 12, 1970 re
quiring the pairing of Hamilton and Robbins schools, un
reported.
4. Order of the district court filed August 12, 1970 ap
pointing the bi-raeial advisory committee, unreported.
QUESTIONS PRESENTED
In our brief for the Respondent responding to the peti
tion for writ of certiorari, we opposed the granting of
the writ as being unnecessary; consequently we made no
specification of questions presented for review, other than
with regard to the prayer for relief, pendente life. We
restate that specification here:
I. Under the immediate facts present in this case,
should this school system, which is totally integrated and
unitary in every respect (except for the existence, as the
result of voluntary residential patterns, of two (2) schools
with an all negro student body and five (5) schools with
an all white student body, out of a total of eighty three
(83) schools in the system), be subjected to another com
plete reorganization; by the summary adoption by this
Court of another desegregation plan (Plan B-I Alterna
tive, urged by Petitioner, pendente lite) that has been
rejected by the District Court and the Court of Appeals
as educationally unsound and functionally impossible of
implementation, and comes to this Court completely un
supported by testimony in any form; to replace the pres
ent desegregation plan which was devised by the District
Court and United States Department of Justice and the
Office of Education of the Department of Health, Educa
tion and Welfare, and approved and adopted by the Fifth
Circuit Court of Appeals.
# # = & # * * *
Now that the writ has been granted, Respondent is not
entirely satisfied that the statement of questions pre
sented for review now made by Petitioner in its present
brief adequately presents all of the essential questions
fairly raised by this case and now at issue before this
Honorable Court. Accordingly, respondent respectfully
makes this further specification of questions presented.
II. Does the Constitution of the United States require
that the public school systems of the United States assign
the teachers of the systems to the schools of the systems
in such a manner as to achieve a racial balance of teachers
in each school, or some other arbitrary mathematical ratio
of black and white teachers in the schools of the system.
III. Does the Constitution of the United States require
that the public school systems of the United States as
sign the students of the systems to the schools of the
systems in such a manner as to achieve a racial balance
of students or some arbitrary mathematical ratio of
black and white students in the schools of the system.
A. Does the mere existence of a school with a student
body made up of students all of one race, in a public
school system that is otherwise completely integrated
and unitary, render the school system constitutionally
deficient:
(1) If the student body of such school is all black; or,
(2) If the student body of such school is all white?
B. Does the existence of two (2) schools that have all
black student bodies and five (5) schools that have all
white student bodies, in a school system of eighty-three
(83) schools that is otherwise completely integrated and
unitary, render the school system constitutionally de
ficient 1
IV. Under the Constitution of the United States, do
white public school students have the same right or an
equal right as do black public school students, to the
benefit and protection of the Constitution and of the laws
of the United States; specifically the Equal Protection
Clause of the Fourteenth Amendment, and the Civil Rights
Act of 1964. If they do, then is it not Constitutionally
sufficient that public school systems assign students to
— 0 —-
schools on the basis of attendance zones that are fairly
drawn to normal standards of educational soundness and
upon the basis of non-racial criteria, in order to produce
as nearly as possible a system of unitary neighborhood
schools.
STATEMENT
I. General Introductory Information
The Mobile County Public School System is the largest
school system in the State of Alabama, with a normal an
nual enrollment of approximately 79,000 students. The
enrollment has steadily decreased since 1965 as a result
of public dissatisfaction and other problems associated
with the desegregation process. During the past school year
(1969-70) total enrollment was 73,504, and this year total
enrollment on September 14, 1970, the fourth day of
school (the time that enrollment figures are normally re
corded) is only 68,623; a further loss of almost 5000 stu
dents.
The school system is administered by a board of five
commissioners elected from the county at large by popular
vote in county wide elections. They serve without com
pensation. The board in turn employs professional ad
ministrative personnel, including a superintendent oi:
schools who has a Ph. D. Degree from Columbia Univer
sity. The system is a combined city-county system encom
passing the entire county, which is largely rural, and
every city and municipality in the county, the largest of
which is the City of Mobile with a population of some
235,000 persons. Thus the School Board must deal with the
whole spectrum of problems and difficulties inherent in the
desegregation process, from those peculiar to small rural
schools and systems, to those associated with affluent
— 6 —
suburban systems, to those found in large, compact
metropolitan or urban systems.
During the past school year (1969-70) the School Board
operated 89 schools and employed 2605 teachers; fifty nine
per cent (59%) of these teachers were white and forty
one per cent (41%) black. Student enrollment in the
system is normally about sixty per cent (60%) white and
forty per cent (40%) black.*1
II. Statement of the Facts
This case has been in litigation since 1963. At that time
the school system was, in both a legal and a practical
sense, a dual system, with blacks attending one set of
schools and whites attending another. There was no stu
dent integration, no faculty integration and no integra
tion of services, facilities, activities and programs. This
once dual system has now been completely disestablished,
and there now exists a unitary school system within which
no person is effectively excluded from any school because
of race or color; as per Alexander v. Holmes County Board
of Education, 396 U.S. 19 (1969). The system is unitary
in every aspect of its operation.
The course of the desegregation process from 1963 to the
present is reflected in capsule form by the following sta
tistical table:
•! The ratio was somewhat different during the 1969-70 school
year owing to the disappearance of approximately 6,500 white
students from the system, apparently as a result of their dissat
isfaction with the School Board’s implementation of the deseg
regation plans devised by the District Court and promulgated
in its August 1, 1969 and January 31, 1970 Decrees. This year
(1970-71) the disparity is even greater due to the loss of still
more white students from the system.
1962-63 1 96 3 -64 1964-65 1965-66 1966-67 1 967-68 1968-69 1969-70 1970-71
T o t a l number .
o f s c h o o ls 89 93 95 97 98 96 91 89 83
T o t a l number
o f s c h o o ls
w ith a b i
r a c i a l s tu d en t
body 0 1 3 10 15 34 57 63 7 6
T o t a l number
o f s c h o o ls
w ith b i r a c i a l
f a c u l t y 0 0 0 0 0 10 89
« *1
86
*1
82
T o t a l number
o f s tu d e n ts
e n r o l le d in
th e system 73949 76615 78652 77887 77101 76090 75464 73504 68623
T o t a l number
Of s tu d e n ts
e n r o l le d in
b i r a c i a l
s c h o o ls 0 3056 4004 10474 15636 23556 47560 55314 64306
*1 The one school without b i-racia l faculty is Dauphin Island School, a one teacher
school on an island in the Gulf of Mexico,
The f o l l o w in g s t a t i s t i c a l t a b le i l l u s t r a t e s th e
e x te n t o f f a c u l t y and s tu d en t body in t e g r a t io n in e very
s c h o o l in th e system based upon th e d e s e g r e g a t io n p lan
p la ce d in t o im p lem en ta tion upon th e op en in g o f s c h o o l
on Septem ber 9 , 1970, This t a b le a ls o in d ic a t e s th e
r a c i a l ch a r a c te r o f each s c h o o l m th e era o f th e d u a l
s c h o o l system , p r i o r t o th e s t a r t o f th e d e s e g r e g a t io n
p r o c e s s ; and i t in d ic a t e s th e r a c i a l make up o f th e
a d m in is tr a t iv e s t a f f ( p r in c ip a l and a s s is t a n t p r i n c i
p a l s ) o f each s c h o o l .
RAC IAL
CHARACTER
CURRENT
(1 9 7 0 -7 1 )
RACIAL 1970-71 1970-71 1970-71
OF-SCHOOL CHARACTER STUDENTS FACULTY iC
ASSIGNED*?
ADMINISTRATORS
NAME OF IN DUAL OF STUDENT
BODY *6
ASSIGNED ASSIGNED
SCHOOL SYSTEM ERA B ¥ B W B W
ADAMS
(CLEVELAND) B Bi-racial 293 63? 16 25 1 1
ALBA W Bi-racial 179 1463 2 5 (1 ) 3 3 (1 ) 2
ARLINGTON W C los ed
AUSTIN W Bi-racial 14 3^4 5 7 1
AZALEA ROAD W Bi-racial 35 999 1 4 (2 ) 24 2
BAKER W Bi-racial 94 934 1 4 (3 ) 26 2
BARNEY (CHICKASAW
TERRACE) B Closed
BARTON W Closed
BELSAW (MT.VERNON
ELEMENTARY) B Bi-racial 209 26 4 3 (4 ) 1
NAME OF
SCHOOL
RACIAL
CHARACTER
OF SCHOOL
IN DUAL
SYSTEM ERA
CURRENT
(1 9 7 0 -7 1 )
RACIAL
CHARACTER
OF STUDENT
BODY
1970-71
STUDENTS
ASSIGNED
B W
1 97 0 -71
FACULTY
ASSIGNED *5
B W
1970-71
ADMINISTRATORS
ASSIGNED
- B W
BIENVILLE W B i - r a c i a l * 1
BLOUNT B B l - r a c i a l 1233 1041 36 4 1 (1 2 ) 2 1
BRAZIER B 1006 14 17(35 1
BROOKLET W B i - r a c i a l 71 490 7 1 0 (1 ) 1
BURROUGHS B B i - r a c i a l 242 IBS 6 9 (1 ) 1
CALCEDEAVER W B i - r a c i a l * 2 16# 2 44 1
.CALDWELL
“ "V
B B i - r a c i a l 30Z — 11 m 3 4 (6 4 ) 1
CALVERT W C losed
CARVER B B i- r a c ia l* ^
CENTRAL B B i - r a c i a l 1563 231 24 2 7 (3 ) 2
CHICKASAW W B i - r a c i a l 75 44# 6 # (2 ) 1
CITRONELLE W B i - r a c i a l 367 73# 1 9 (2 ) 31 2
CLARK W B i - r a c i a l 903 6#7 2 3 (1 ) 3 4 (2 ) 2
COTTAGE HILL B C losed
B B i - r a c i a l .404 50 6 (1 ) # 1
CRA^GmAD W B i - r a c i a l 5 ^ 242 11 1 6 (1 ) 1
CHICHTON ¥ B i - r a c i a l 144 352 n 1 1 (1 ) 1
DAUPHIN ISLAND W W*4 20 l * 4 1
DAVIDSON W B i - r a c i a l 7# 2562 3 7 (# ) 6 6 (2 ) 3
DAVIS B i - r a c i a l 176 613 9 (1 ) 16 l
DAWES UNION B C losed
7 c
CURRENT
RACIAL (1970-71)
NAME OF
SCHOOL
CHARACTER
OF SCHOOL
IN DUAL
SYSTEM ERA
RACIAL
CHARACTER
OF STUDENT
BODY
1970-71
STUDENTS
ASSIGNED
B W
1970-71
FACULTY
ASSIGNED *5
B W
1970-71
ADMINISTRATORS
ASSIGNED
B W
DICKSON W Bi-racial 155 579 9 14 1
DIXON B B i-racial 181 239 5 6(2) 1
DODGE B i-racial 62 670 10 14 1
DUNBAR B Bi-racial 940 36_ 14 13(9) 2
EASES W B i-racial 131 323 13(3) 23 2
EIGHT MILE W Bi-racial 103 556 9(1) 15 1
ELLICOTT w Closed
EMERSON B Closed
EVANS W B i-racial 113 91 3 8 1
FONDE W B i-racial 3 662 8 13 1
FONVILLE B B i-racial 15 a_13 9(11) 1
FOREST HILL W W 519 6 10 1
GLENDALE W B i-racial 574 257 10 14(2) 1
GORGAS W Closed
GRAND BAY B i-racial 152 667 9(1) 15(1) 1
g S T B B i-racial 1077 7 16 9(15) 1
GRIGGS W Bi-racial 40 399 11 17 1
HALL B Bi-racial 352 190 18 23(4) 1 1
HAMILTON W Bi-racial 204 414 7 11 1
HILLSDALE B Bi-racial 223 493 12 17(1) 1 1
BOLLINGER’ S
ISLAND W Bi-racial 4 391 5 7 1
HOWARD
(NORTHSIDE) B Closed
CURRENT
RACIAL (1970-71)CHARACTER RACIAL 1970-71 1970-71 1970-71OF SCHOOL CHARACTER STUDENTS FACULTY ADMINISTRATORSNAME OF IN DUAL OF STITOENT ASSIGNED ASIGNED 5 ASSIGNEDSCHOOL______SYSTEM ERA BODY 6 B_____W B W______ B W
INDIANSPRINGS Bi-racial 11 507 6 9 1
LEE ¥ Bi-racial 159 641 10 16 1
LEINKAUF ¥ Bi-racial 252 194 6 8 1
LOTT B Bi-racial 132 413 8 11 1
MARYVALE ¥ Bi-racial 207 395 8 12 1
MERTZ ¥ W 373 4 7 1
MOBILE COUNTY HIGH w Bi-racial 259 624 13(1) 22 2
MOBILE COUNTY TRAINING B Bi-racial 699 202 14 8(12) 2
MON LOUIS ISLAND ¥ Closed
MONTGOMERY Bi-racial 30 815 10(6) 24 2
MORNINGS IDE w ¥ 674 8 11(1) 1
MOUNT VERNON w Bi-racial 318 80 5 4£(3) 1
MURPHY w Bi-racial 1546 1054 31(7) 58 3
OAKDALE ¥ Closed
OLD SHELL W Bi-racial 357 117 5 6(1) 1
ORCHARD ¥ Bi-racial 113 758 10 15 1
CWENS B B 1429- 20 13(17) 1
PALMER (SNUG HARBOR) ¥ Bi-racial 493 104 10 5(9) !
RACIAL
CHARACTER
OF SCHOOL
IN DUAL
CURRENT
(1970- 71)
RACIAL
CHARACTER
OF STUDENT
1970-71STUDENTSASSIGNED
1970-71
FACULTY _
ASSIGNED'"5
1970-71ADMINISTRATORSASSIGNED
SCHOOL SYSTEM ERA BODY B W P W B W
PHILLIPS W B i - r a c i a l $20 364 i $ d ) 2$ 1
PRICHARD W B i - r a c i a l 566 1$7 1 2 (1 } 19 1 1
RAIN w B i - r a c i a l 111 1155 23 35 2
ROBBINS B i - r a c i a l 702 129 9 (1 ) 1 2 (2 ) 1
RUSSELL w C losed
ST, ELMO B B i - r a c i a l 49 426 $ 1 1 (2 ) 1 1
SARA LAND W B i - r a c i a l 35 759 9 13 1
SATSUMA W f e i - r a c i a l 19$ 919 1 7 (3 ) 3 0 (1 ) 2
SCARBOROUGH B i - r a c i a l 11 773 13 1 9 (1 ) 2
SEMMES W B i - r a c i a l 23 9 $9 1 3 (2 ) 23 2
SHAW B i - r a c i a l 22$ 1293 2 1 (4 ) 3$ 2
SHEPARD W B i - r a c i a l 26 41$ 4 (2 ) $ 1
SOUTHS IDE B C losed
STANTON ROAD B B i - r a c i a l $94 4 13 1 7 (2 ) 1
TANNER WILLIAMS W B i - r a c i a l 9 345 3 (2 ) 7 1
THEODORE W B i - r a c i a l 339 1516 2 5 (6 ) 47 2
THOMAS B B i - r a c i a l 74 160 3 i 5 1
THOMPSON B C losed
TO ULMXNVILLE W B i - r a c i a l J £ k z u r t 12 1 4 (3 ) 2
JRpJ33-G ARS£N gJ3 B i - r a c i a l 9 69 _ 171 15 1 7 (6 ) 2
TURNERVILLE
CURRENT
RACIAL (1 9 7 0 -7 1 )
CHARACTER RACIAL 1 97 0 -71 1 970 -71 1 970 -71
OF SCHOOL CHARACTER STUDENTS FACULTY . _ ADMINISTRATORS
NAME OF IN DUAL OF STUDENT ASSIGNED ASSIGNED*5 ASSIGNED
SCHOOL SYSTEM ERA BODY ______ B W B W B W
VIGOR W B i - r a c i a l 1385 930 3 6 (6 ) 6 0 (3 ) 1 2
WARREN B C losed
WASHINGTON B B i - r a c i a l 780 636 14 1 1 (1 1 ) 2
WESTLAWN W W 322 4 (1 ) 7 1
WHISTLER W B i - r a c i a l 160 227 6 (1 ) 11 1
WHITLEY B B i - r a c i a l 345 127 6 7 (3 ) 1
WILL B i - r a c i a l 160 652 7 (2 ) 13 1
WILLIAMS W B i - r a c i a l 41 533 8 11 1
WILLIAMSON B B i - r a c i a l 570 594 18 2 5 ( 2 ) 1 1
WILMER W B i - r a c i a l 54 349 4 9 1
WOODCOCK W B i - r a c i a l 97 145 5(2 ) i o i 1
*1 By Court order Bienville has become a part of the Vigor High School
Complex, which has an assigned enrollment of 1385 black, 985 white.
*2 Calcedeaver is attended entirely by a community of persons of entirely
mixed bloodlines and is therefore considered b i-racia l.
*3 By Court order Carver has become a part of the Blount High School
Complex, which has an assigned enrollment of 1233 black, 1041 white.
*4 As w ill be noted, this is a small one teacher school,isolated on an
island in the Gulf of Mexico.
*5 The figures in parenthesis indicate the number of vacancies, by race,
yet to be fille d in order to reach the 60/40 ratio .
*6 Note that although there are five schools with a ll white student
bodies, every school has a b i-racial faculty, except Dauphin Island
School, a one teacher school on an island in the Gulf of Mexico.
7
;
/
\
\
v-'i
— 8 —
In recent decisions the Courts have set out the various
elements that must be taken into account in determining if
a school system has been converted from a dual system to
a unitary, nonracial system—faculty and staff; transpor
tation; extra curricular activities, including sports; facil
ities; school construction, consolidation and site selection;
transfer policy; and student body composition.*2 The Peti
tion For Writ of Certiorari, and now Petitioners’ Brief
upon the Writ, directly concern themselves only with stu
dent body composition. Nevertheless, since this is only one
element of the total desegregation process, it is desirable
that some attention also be directed toward an examina
tion of all of the elements of the conversion from dual to
unitary school system, as they exist in the Mobile County
Public School System.
(1) Faculty and Staff
The School Board has conducted a positive and affirma
tive program to achieve complete desegregation of faculty.
This has been accomplished in many instances by disre
garding the Alabama Tenure Laws, as required by the
Court; and regrettably, often at the expense of sound
educational practice.
The extent of faculty integration has increased sharply
each year since August, 1966 when the Court first in
structed the School Board to begin faculty desegregation.
During the 1967-68 school year, only fifteen teachers
taught across racial lines. At the conclusion of the
1968-69 school year all but three of the then ninety-one
schools of the system had integrated faculties.*3
*2 Singleton v. Jackson Municipal Separate School District,
419 F.2d 1211 (5th Circuit, en banc, December 1969) ; and Ellis
v. Board of Public Instruction of Orange County, 423 F.2d 203.
(5th Circuit, 1970)
•8 Findings of Fact, October 13, 1967, paragraph 23; and Fac
ulty Report to the District Court, December 3, 1968 respectively.
Throughout the 1969-70 school year every school in the
system had an integrated faculty, and over 20% of the
2605 teachers in the system were teaching across racial
lines in schools where the race of a majority of the stu
dent body was opposite their own. This includes both
black teachers in predominantly white schools, as well as
white teachers in predominantly black schools.*4
As a result of implementation of the judgments and
orders of the District Court and the Court of Appeals now
before this court for review, assignments of faculty for the
1970-71 school year have been made in a conscientious
effort to achieve a 60% white, 40% black, faculty in every
school, as required by the Court; 60/40 being the approxi
mate ratio of white and black teachers employed in the
system as a whole. The following statistical table reflects
actual assignments as they now exist (as of September
15, 1970). The figure in parenthesis indicates the number
of vacancies to be filled, by race. Further adjustments
to reach the exact ratio set by the court are being made
and will continue until the task is accomplished.
#4 Findings of Fact, April 14, 1970, Attachment E . . . and
. . . Report to the District Court dated November 26, 1969, filed
at the direction of the Court. . . . Every school except Dauphin
Island, a one teacher school on an island in the Gulf of Mexico,
reopened by Court order on January 31, 1970.
1970-71FACULTY ASSIGNED
NAME OF SCHOOL B W
MARYVALE 8 12
MOBILE COUNTY HIGH 13(1) 22
MONTGOMERY 10(6) 24
MOUNT VERNON 5 44(3)
OLD SHELL 5 6(1)
OWENS 20 13(17)
PHILLIPS 18(1) 28
RAIN 23 35
ST. EIMO 8 11(2)
SATSUMA 17(3) 30(1)
SEMMES 13(2) 23
SHEPARD 4(2) 8
TANNER WILLIAMS 3(2) 7
THOMAS 34 5
TRINITY GARDENS 15 17(6)
WASHINGTON 14 11(11)
WHISTLER 6(1) 11
WILL 7(2) 13
WILLIAMSON 18 25(2)
WOODCOCK 5(2) 104
1970-71
FACULTY ASSIGNED
NAME OF SCHOOL B W
MERTZ 4 7
MOBILE COUNTY
TRAINING 14 8(12)
MORNINGSIDE 8 11(1)
MURPHY 31(7) 58
ORCHARD 10 15
PALMER (SNUG HARBOR)10 5(9)
PRICHARD 12(1) 19
ROBBINS 9(1) 12(2)
SARA LAND 9 13
SCARBOROUGH 13 19(1)
SHAW 21(4) 38
STANTON ROAD 13 17(2)
THEODORE 25(6) 47
TOULMINVILLE 12 14(3)
VIGOR 36(6) 60(3)
WESTLAWN 4(1) 7
WHITLEY 6 7(3)
WILLIAMS 8 11
WILMER 4 9
*1 By Court order Bienville has become a part of the Vigor High School
Complex, which has an assigned enrollment of 1385 black, 985 white.
*2 By Court order Carver has become a part of the Blount High School
Complex, which has an assigned enrollment of 1233 black, 1041 white. *
*3 As w ill be noted, this is a small one teacher school, isolated on
an island in the Gulf of Mexico.
1970-71 1970-71FACULTY ASSIGNED FACULTY ASSIGNED
NAME OF SCHOOL B W NAME OF SCHOOL B W
ADAMS (CLEVELAND) 16 25 ALBA 25(1) 38(1)
AUSTIN 5 7 AZALEA ROAD 14(2) 24
BAKER 14(3) 26 BELSAW (MT.VERNON
ELEMENTARY) 4 3(4)
BIENVILLE * 1 BLOUNT 36 41(12)
BRAZIER 14 17(3) BRGQKLEY 7 10(1)
BURROUGHS 6 9(1) CALCEDEAVER 2 44
CALDWELL 6 ( 4 ) 3 4 ( 6 4 ) CARVER*2
CENTRAL 24 27(8) CHICKASAW 6 8 ( 2 )
CITRONELLE 19(2) 31 CLARK 23(1) 34(2)
COUNCIL 6(1) 8 CRAIGHEAD 11 16(1)
CRICHTON 74 11(1) DAUPHIN ISLAND 1 *3
DAVIDSON 37(3) 66(2) DAVIS 9(1) 16
DICKSON 9 14 DIXON 5 6(2)
DODGE 10 14 DUNBAR 14 13(9)
EANES 13(3) 23 EIGHT MILE 9(1) 15
EVANS 3 8 FONDE 8 13
FONVILLE 13 9(11) FOREST HILL 6 10
GLENDALE 10 14(2) GRAND BAY 9(1) 15(1)
GRANT 16 9(15) GRIGGS 11 17
HALL 18 23(4) HAMILTON 7 11
HILLSDALE 12 17(1) BOLLINGER'S ISLAND 5 7
INDIAN SPRINGS 6 9 LEE 10 16
LEINKAUF 6 8 LOTT 8 11
/£> L
11 —
Your attention is directed to the statistical table on
preceding pages of this brief (page 7) for a detailed
presentation of the substantial number of black principals
in charge of predominantly white faculties and white
student bodies, and the substantial number of white prin
cipals in charge of predominantly black faculties and black
student bodies.
(2) Transportation
Mobile is a combined city-county school system with
many rural schools. Thus in the traditional manner of
rural school systems, there are a substantial number of
school busses operated by the School Board to transport
students in the rural areas of the county to these rural
schools. A few busses are also used to provide trans
portation for a small number of students residing in re
mote outlying areas within the city limits.
At one time, during the era of the dual school system,
the Board did in fact operate a dual transportation sys
tem with overlapping bus routes, utilizing transportation
to preserve the dual system. This is no longer the case.
Schools in that part of the system where transportation
is provided, serve specific geographic attendance zones
drawn by the District Court, and approved by the Court
of Appeals, sitting en banc, Singleton v. Jackson, 419 F.
2d 1211; every zone is bi-racial and every school is in
tegrated. School busses are routed in such a manner
as to transport all students in each attendance zone to the
school serving the zone. These routes are drawn without
regard to race; they do not overlap; each bus picks up
and transports every student on its route regardless of
the race of the student; students are not segregated within
the busses; and the same quality and extent of service is
provided in all areas of the county without reference to
12 —
the race of the students living in the area. The trans
portation system is thus operated on a non-segregated
and noil-discriminatory basis in every respect.* *5 This is
entirely conceded by Petitioner in its brief (page 6)
where petitioner states: “ Since September 1969, the rural
portion of the system . . . (which is entirely dependent
upon transportation) . . . has been desegregated ade
quately” .
(3) Extra Curricular Activities, Including Sports
All extra curricular activities, including sports, over
which the School Board has control are being operated
on a non-segregated basis throughout the system, and
have been for several years.*6
All athletic teams at every school are open to every
student regardless of race. Participation by minority race
students, particularly by black students at traditionally
white schools, has been substantial. For example, during
the 1969-70 school year several predominantly white high
schools fielded bi-racial basketball teams with more black
players than white. There is also cross-scheduling be
tween traditionally black schools and traditionally white
schools in all major sports, in regular season play, and
all tournament and play-off competitions are conducted
on an integrated basis with traditionally white and tra
ditionally black schools in competition against each
other.*7
*5 Findings of Fact, April 14, 1970, pages 9-10, page 3 and
Attachment A.
*6 Findings of Fact, October 13, 1967, paragraph 22 . . . and
Findings of Fact, April 14, 1970, pages 14-15.
*7 Findings of Fact, April 14, 1970, pages 14-15.
— 13 —
The same situation pertains to all other extra curricular
activities over which the School Board has control, such
as bands and other musical groups, ROTO units, speech
and other academically related competitions, clubs and
organizations, school related social events, parent related
activities such as Parent Teacher Associations, and spec
tator events.*8
(4 ) Services, Facilities and Programs
There is no separation of students within the individual
schools by race, by sex (except for physical education
and gender related courses such as home economics), by
class, by tracts or on any basis, other than the normal
division of students into grade level and courses of study,
which divisions have no racial basis.*9
All facilities are made available to all schools in the
system without regard to the present or past racial
composition of the schools. Within each individual school
of the system all facilities are made available to all
students on an equal basis, regardless of race. This
includes not only facilities in the strict sense such as
restrooms, lunchrooms, classrooms, laboratories, gym
nasiums, libraries, playing fields and the like; but also,
all services, activities and programs such as bands, orches
tras, choral groups, clubs, counseling services, student
governments, honor societies, publications staffs, intra
mural sports, assemblies, class elections and honors, par
ties and social events; and every other facility, activity
and program of every school. This has been the situation
for several years.*10
#8 Findings of Fact, April 14, 1970, page 15.
Findings of Fact, April 14, 1970, page 1G.
*io Findings of Fact, October 13, 1967, paragraph 22 . . . and
. . Findings of Fact, April 14, 1970, pages 16-18.
14 —
All schools are treated equally without reference to the
past or present racial composition of the school, with re
gard to the allocation of instructional materials, facilities,
equipment, furnishings, supplies, textbooks, allocated
funds and every other item provided to or for schools
of the system; and courses of instruction are offered with
out regard to race. This also has been the situation for
several years.*11
Not only are all facilities, services, activities, and pro
grams available to every student without regard to race,
and operated on a non-segregated, non-discriminatory
basis, but actual participation by minority race students is
substantial*12
(5) School Construction, Consolidation
and Site Selection
The fault of the School Board is that for many years it
followed the unusual practice of building schools where
the children are. Now, the construction of or addition to
any school, and the selection of any school site, must have
the prior approval of the Court. This has been a part of
the Mobile desegregation plan since 1968.
The School Board is genuinely perplexed and uncertain
as to what shifting standard may next apply, or from
time to time apply, with regard to school construction
plans and programs. The Board has already suffered sub
stantial financial loss as a consequence of land acquisition
and other construction preparations made with District
Court approval, later reversed and erased by the Court
#11 Findings of Fact, October 13, 1967, paragraph 28 . . . and
. . . Findings of Fact, April 14, 1970, page 17.
*12 Findings of Fact, April 14, 1970, pages 17-18 . . . and . . .
Report to the Court, February 24, 1970.
of Appeals.*13 As a result the School Board’s building
program has been at a total standstill for three years. No
schools have been constructed and no school sites selected
during this time.
The last schools constructed in the system were Dodge
and Adams in 1967 and Grand Bay in early 1968. Dodge
and Adams opened their doors for the first time in Sep
tember 1967, both as fully integrated schools. The cur
rent assigned enrollment at Dodge is 62 black and 670
white. The current assigned enrollment at Adams, which
first opened its doors as a predominantly black school, is
293 black and 687 white. Grand Bay first opened in
September 1968. The current assigned enrollment at
Grand Bay is 152 black and 667 white.*14
Regarding school consolidation, there have been a num
ber of consolidations, some proposed voluntarily by the
School Board and some required by the District Court,
within the past three years. Each has resulted in a signi
ficant increase in the extent of integration in the system.
Some of the more significant consolidations are:*15
*13 Orders of the District Court dated December 20, 1968 and
March 14, 1969 approving the Board’s construction plans for a
new building at Howard Elementary School and an additional
building at Toulminville High School were reversed by the Court
of Appeals on June 3, 1969. As a result the School Board has
suffered a financial loss of approximately a half million dollars
(Brief of Appellees in Court of Appeals number 27,260 and
27,491, pages 6, 13 and 38, also from the transcript of testimony
in those cases, Tr. pages 13-16, 29 and 124). Howard has now
been abandoned because of its substandard facilities. Toulmin
ville continues to operate with an assigned student body of 454
black and 247 white.
*14 Findings of Fact, April 14, 1970, page 19, and Attachment
A, . . . and . . . Statistical table attached to the Court of Ap
peals opinion of August 4, 1970.
#15 Findings of Fact, April 14, 1970, pages 10-22. All figures
are shown as of the time the consolidation occurred.
— 16 —
1. Closing of the all black Emerson Elementary
school and distribution of its students to two adjacent
schools, one of which had been traditionally black
(Council) and one traditionally white (Leinkauf),
producing an enrollment at Leinkauf of 224 white and
235 black.
2. Closing of the all black Robert Thompson School
and consolidation of its students into the theretofore
all white Wilmer School.
3. Closing of the all black Cottage Hill Elementary
School and the distribution of its students to the
theretofore all white Fonde, Shepard and Dodge Ele
mentary Schools.
4. Consolidation of the all white Citronelle and all
black Rosa Lott Schools, resulting in the following en
rollments: Citronelle, 800 white and 400 black; Rosa
Lott, 465 white and 145 black.
5. Conversion of the all white Augusta Evans
School to a school for special students with an enroll
ment of 54 white and 87 black, and a faculty of 8
black and 8 white.
6. Closing of the traditionally white Arlington Ele
mentary School and the distribution of its students to
surrounding schools, some of which are predominantly
white, and some of which are predominantly black.
7. Closing of the all black Warren Elementary
School and the distribution of its students to the tra
ditionally white Crichton Elementary School and
other schools, predominantly black, producing an en
rollment at Crichton of 457 white and 240 black.
8. Closing of the all black Barney School resultin
in the distribution of its students to surroundin
schools, some predominantly white and some pre
dominantly black.
ojO-
OD
— 17
9. Consolidation of the all black Belsaw and the all
white Mount Vernon schools, resulting in integration
of both schools.
10. Consolidation of the all black St. Elmo and all
white Theodore Schools, resulting in the following
enrollments: St. Elmo 436 white, 54 black; Theodore
1466 white and 335 black.
11. Consolidation of the all black Burroughs, all
black Dixon and all black Dawes Union Schools with
the all white Griggs and all white Davis Schools re
sulting in:
(a) Closing of the all black Dawes Union School
(b) Integration of the other four schools produc
ing the following enrollments:
Burroughs ............................192 white, 290 black;
Griggs ...................................865 white, 41 black;
Davis ....................................591 white, 178 black;
Dixon ....................................249 white, 189 black.
12. Closing of the all black Howard School and the
absorbtion of its students into Old Shell Road School,
a traditionally white school.
As do most large school systems in cities undergoing
large scale population shifts as a result of Federally
sponsored urban development programs and other factors,
the Mobile Public School System has found it necessary to
resort to the use of portable classroom units that can be
moved from one permanent school facility to another.
Some schools have adequate basic facilities (land area,
lunchroom, library, physical education, special facilities)
to accommodate a number of portable classrooms; some do
not. Within this basic limitation, the Board follows a
policy of locating portable classrooms solely on the basis
of and for the purpose of providing the facilities neees-
— 18
sary to accommodate the students assigned to the various
schools by the terms of the various orders of the Court
itself.* *16
(6) Transfer Policy
The entire transfer policy now in use, including a ma
jority to minority transfer provision, was formulated by
the court itself. This policy is operated in accordance
with provision prescribed by the court and is applied uni
formly throughout the system.*17 The transfer policy is
attached to this brief, as APPENDIX I.
(7) Bi-Raeial Committee
The District Court, upon the suggestion of the Court of
Appeals, has appointed a bi-racial committee to advise
and assist the School Board and the Court in the operation
of the Court ordered desegregation plan and the mainte
nance of a unitary school system. The committee, appointed
by the District Court on August 12, 1970, has ten members,
five black and five white. *18 The committee became active
immediately and has begun to make its presence felt.
(8) Student Assignment
The total desegregation plan for the whole system, now
in full implementation, assigns every student in the system
to a school on the basis of a unitary system of geographic
attendance zones, drawn by the District Court, the Court
of Appeals, the U. S. Department of Justice, and the Office
of Education of the Department of Health, Education and
* 1 6 Findings of Fact, April 14, 1970, page 22.
*17 Findings of Fact, April 14, 1970, page 23.
#1's At the request of Petitioner, the Court has now appointed
four more members to the committee, two black and two white.
— 19 —
Welfare. In addition to this, in three instances, two ad
jacent elementary school zones have been paired; Council -
Leinkauf, Palmer-Glendale and Ilamilton-Robbins. This
has produced the assigned enrollments for the 1970-71
school year set out in the statistical table in a previous
section of this brief (page 7).
III. The Desegregation Process—Chronologically
At the outset of this litigation the Board of School Com
missioners of Mobile County committed themselves to com
pliance with the constitutional mandate of the Fourteenth
Amendment of the United States Constitution, as originally
stated by this Honorable Court in Brown v. Board of Edu
cation of Topeka, 347 U.S. 483, that the opportunity for
education is:
“ a right which must be made available to all on equal
terms. ’ ’
Full comprehension of the obligations of school systems
with reference to the legal principles arising out of Brown,
and the constitutional principles interpreted by Brown,
has not always been easy for this School Board; as it has
not been easy for school boards and courts throughout the
nation. (Compare: Brown; Briggs v. Elliott, 132 F. Supp.
776, United States v. Jefferson County Board of Education,
372 F.2d 836, 380 F.2d 385, cert, denied 389 U.S, 840; Green
v. County School Board of New Kent County, Virginia, 391
U.S. 430; Alexander v. Holmes County Board of Educa
tion, 396 U.S. 19; Avery v. Wichita Falls Independent
School District, 241 F.2d 230; Borders v. Rippy, 247 F.2d
268; Boson v. Rippy, 285 F.2d 43; Ellis v. Board of Public
Instruction of Orange County, 423 F.2d 203; Kemp v.
Beasley, 423 F.2d 851 (C.A. 8th, 1970); Deal v. Cincinnati,
324 F.2d 209; and Deal v. Cincinnati, 419 F.2d 1387). In
deed, it has often been an impossible task for a school
— 2 0
board to determine not only what its current obligation
may be, but to predict or anticipate what shifting standard
may next apply.
It is against this background that school boards have
had to proceed with the business of educating children on
the one hand, while pursuing an illusive judicial phantom
on the other; and the two have not always been totally
compatible. For not being able to anticipate in advance
or immediately adjust over-night to each new standard,
for not being able to accomplish in fact, that which a court
can accomplish on paper with a stroke of the pen, school
boards throughout the country, this one included, have
been labeled racist, lawless, uncooperative, contemptuous
and recalcitrant. Realistic appraisal of the extent of inte
gration in this school system, taken in the abstract or in
comparison to the extent of integration in any and every
other comparable school system in the nation, exposes the
shallowness of such charges as sought to be applied to this
school system.
In an earlier section of this brief (page 7) we have ob
served the progress of the desegregation process from a
purely statistical standpoint. A chronological examination
of the process from the judicial standpoint should now be
helpful.
1962-1963
The Mobile County Public School System began the
1962-63 school year as a dual school system. Students
were assigned to neighborhood schools on the basis of
geographic attendance zones. The zones were drawn on
a racial basis with overlapping zones for white and negro
schools. The zones, both black and white, were drawn with
strong reliance on sound educational principles, includ
ing: consideration for traffic and other safety hazards, dis
tance, routes of travel and access, barriers such as rivers
— 21 —
and industrial complexes, and adherence to the basic
neighborhood concept. Because of the dual zone aspect,
this resulted in several split zones, (such as for the Warren
School which is no longer in use, but was at that time all
black), and the temporary transportation of some students
in the city part of the system pending completion of con
struction of a school, (such as Hillsdale Heights School,
built in the middle of a suburban black community to
establish a dual zone in that area). * *19
Suit was filed in March 1963 by a group of black parents
and students seeking an injunction to require the School
Board to begin desegregation of the school system.
1963- 1964
As a result of action in the District Court and in the
Court of Appeals the School Board was directed to begin
the 1963-64 school year with desegregation of the system
on a one grade a year stair-step plan.*'20 The Board moved
immediately to comply with the orders of the court, and
did so in good faith throughout the 1963-64 school year.
1964- 1965
On the basis of a motion for further relief, resulting in
action in the District Court and the Court of Appeals, for
the 1964-65 school year the Board was directed to speed
up the stair-step desegregation plan by applying it to two
grades per year rather than one and to abolish dual zones
for each grade as it was reached in the stair-step progres
sion.*21 Again, the School Board moved immediately to
#i9 The enrollment at Hillsdale is now 228 black, 493 white.
* 2 0 Davis v. Board of School Commissioners of Mobile County,
318 F.2d 63; Davis v. Board of School Commissioners of Mobile
County, 322 F.2d 356.
®2 i Davis v. Board of School Commissioners of Mobile County,
333 F.2d 53.
comply with the order of the court, and did so in good
faith throughout the 1964-65 school year.
At this point this School Board, as all others, was pro
ceeding upon the understanding that its legal and con
stitutional obligation was defined by Brown I, supra, which
stated that education is, “ a right which must be made
available to all on equal terms” ; Brown II *22 which enun
ciated the doctrine of “ all deliberate speed” ; and subse
quent cases construing Brown I, such as Briggs v. Elliott,
supra, which stated, “ It (Brown) has not decided that the
states must mix persons of different races in the schools
. . . The Constitution, in other words, does not require
integration. It merely forbids discrimination” ; and that
the basic neighborhood school concept was not incon
sistent with this obligation.
1965-1966
In response to the court’s directive to do away with
dual attendance zones the Board, in good faith, moved to
comply, and undertook a redrawing of the zones. This
effort did away entirely with dual zones and, while main
taining fidelity to the basic neighborhood school concept,
produced a set of unitary zones. The 1965-66 school year
began upon the basis of these unitary zones. The desegre
gation plan proposed by the board and approved by the
court also contained, in deference to the strong feelings
of both black and white citizens concerned with being-
caught in an inordinately difficult zone, a provision giving
every student, black and white, the absolute right to at
tend the school of his zone or the nearest school formerly
predominantly of his race, at his option. This was quite
aptly named, the Option Plan.
*2 2 Brown v. Board of Education of Topeka, 349 U S 294
(1955).
At this point this School Board, as most others, con
tinued to seek in good faith to adjust itself in order to
comply with its constitutional obligations, as they were de
fined and refined by the succession of cases following
Brown I and II, supra, and Briggs v. Elliott, supra. Refer
ence is had to the following cases, among others:
Avery v. Wichita Falls Independent School District, 241
F.2d 230, . . . “ The Constitution as construed in the
School Segregation Cases . . . forbids any state action
requiring segregation of children in public schools solely
on account of race; it does not however, require actual
integration of the races.”
Borders v. Rippy, 247 F.2d 268. . . . The equal protection
and due process clauses of the fourteenth amendment do
not affirmatively command integration, but they do forbid
any state action requiring segregation on account of their
race or color of children in the public schools.”
Holland v. Board of Public Education, 258 F.2d 730. . . .
The Fourteenth Amendment does not speak in positive
terms to command integration, but negatively, to prohibit
governmentally enforced segregation. ’ ’
Boson v. Rippy, 285 F.2d 43,. . . . Negro children have
no constitutional right to the attendance of white children
with them in the public schools. Their constitutional right
to ‘ the equal protection of the laws’ is the right to stand
equal before the laws of the State; that is, to be treated
simply as individuals without regard to race or color.”
1966-1967
On August 16, 1966, less than three weeks before the
opening of school for the 1966-67 school year, the Court
of Appeals reversed a decree of the District Court and
required that the School Board’s existing Option Plan be
modified so as to provide for every student in the system
— 24 —
the blanket option of attending the school of his zone, or
at his option the nearest black school or the nearest white
school.*23 Again, as in the past, the School Board moved
immediately to amend the existing desegregation plan to
incorporate this change required by the Court of Appeals,
and implemented the same in good faith throughout the
1966-67 school year.
In addition, the Court of Appeals required the Board
to: (1) add to its transfer policy the right to transfer in
order to get a course of study not available at the school
where a student is assigned; (2) speed up the stair-step
application of the desegregation plan; (3) prepare to
begin faculty desegregation.
The School Board also moved immediately to comply
with these requirements. The stair-step application was
immediately accelerated as specified; the subject matter
transfer provision was immediately adopted, and remains
a part of the transfer policy today; and preparations were
made to commence faculty desegregation with the begin
ning of the next school year, including immediate initia
tion of inservice training of bi-racial teaching teams.
On its own, and without any suggestion or prompting
from the court, the School Board began taking steps to
ward desegregation of its transportation system in the
rural part of the school system, and desegregation of all
services, facilities, programs, activities, and extra cur
ricular activities, including sports.
1967-1968
In March, 1967, the United States Department of Jus
tice was permitted by the District Court to intervene.
In July, upon a motion for further relief, the District
*2 .-. Davis v. Board of School Commissioners of Mobile County,
364 F.2d 896.
Court held an exhaustive evidentiary hearing over a pe
riod of several weeks between July 18 and August 18.*24
On October 13, 1967 the District Court entered a decree,
accompanied by full Findings Of Fact and Conclusions
Of Law.
In this Findings of Fact the District Court found:
(1) That there was no evidence of discrimination by
race in the administration of the desegregation plan.
(2) That all services, facilities, activities and programs
of the school system are available to every student and
to every school in the system, without reference to race,
including: restrooms, lunchrooms, special facilities and
equipment, athletic teams, bands and choral programs,
clubs and student groups, counseling, honor societies,
dances and other social activities.
(3) That the defendant had formulated a specific plan
for faculty desegregation, had commenced faculty deseg
regation, and had made sufficient and proper effort in the
prevailing circumstances.
(4) That all staff and staff activities are integrated.
(5) That the Board had instituted remedial programs
for the benefit of black students in the system, receiving
the commendation of the Office of Education of HEW.
(6) That the Board had voluntarily undertaken several
school consolidations, resulting in the closing of all black
schools and the consolidation of the black students into
schools that were either all white or predominantly white.
#24 It is perhaps pertinent to observe here that although the
litigation commenced in 1963 this was only the third evidentiary
hearing. Petitioner complains long and loud in its brief over the
lack of evidentiary hearings, and yet these complaints are all
after the fact. The inescapable conclusion is that Petitioner is
not so much concerned with having an evidentiary hearing as it
is for being in position to complain over lack of such a hearing.
— 26 —
(7) That the Board was following a policy of construct
ing, renovating and maintaining schools without regard
to race.
(8) That furnishings, fixtures, equipment, facilities,
textbooks, supplies, allocated funds and courses of study
are allotted to all schools without regard to race.
(9) That no complaint had been made to the Court by
anyone as to discriminatory action of the board in ad
ministration of the desegregation plan.
There has been no subsequent finding to the contrary on
any of these points.
In the meantime the 1967-68 school year commenced
and the School Board, in good faith, implemented the
desegregation plan prescribed by the courts, including
several modifications prescribed by the district court as
a result of the exhaustive evidentiary hearing.
1968-1969
On March 12, 1968 the Court of Appeals, relying heavily
on the previous opinion of the court, en banc, in United
States v. Jefferson County Board of Education, 372 F.2d
836 and 380 F.2d 385, entered an opinion in which it re
quired the School Board to redraw its attendance zones
in the urban or city portion of the system, saying:
“ The percentage of total students in bi-racial schools
is superficially acceptable, but beneath the surface the
picture is not good. . . . Having found the results
of the present plan unsatisfactory, we turn to the
difficult question of what should be done. . . . In
this case, it will be necessary for the board to do the
job again, this time making a survey of the type
suggested by appellants. On the basis of information
obtained from the survey, school officials will draw
— 27
attendance-zone lines on what they conceive to be a
nonracial basis.” *25 (emphasis supplied)
In addition, the Court of Appeals also required: (1)
elimination of the Option provisions of the plan; (2) fur
ther steps with regard to elimination of faculty; (3) a
survey of the system and certain reports to the court;
(4) the cross-scheduling of formerly white and formerly
black schools in athletic competition; (5) certain restric
tions on construction; (6) for the rural portion of the
system, either a redrawing of zone lines, or the use of a
freedom of choice plan of the type outlined in Jefferson,
supra.
The Court of Appeals actually prescribed a specific de
cree for entry by the district court. It began by stating:
“ As stated in the opinion of the Court of Appeals,
the primary concern is that attendance-zone lines be
drawn on a nonracial basis.” (emphasis supplied) (id.
at 696)
This decree was entered verbatim by the District Court
on May 13, 1968. Once again, in good faith, the School
Board moved promptly to carry out the directions of the
court. The survey was made and filed with the court. The
student assignment problem was carefully restudied and
attendance zones were redrawn. The redrawn zones were
filed with the court on May 7, 1968 even before the Dis
trict Court had proceeded to enter the decree specified by
the Court of Appeals. Two months later, in the face of
mounting public hostility and pressure over dissatisfaction
with the redrawn zones, the School Board asked the court
to consider the possibility of placing the entire school
system on a freedom of choice plan of student assignment.
*25 Davis v. Board of School Commissioners of Mobile County,
393 F.2d 690 (693).
Commencing on July 17, 1968 the court held another
full (6 days) evidentiary hearing, the second in as many
years. During the course of the hearing both the Justice
Department and the Petitioners presented to the court
their own separate set of proposed zone lines for the urban
portion of the system. As commented upon by the Dis
trict Court in its decree, both of these plans provided for
the continued existence of some all white and some all
black schools.* *26
Ultimately, the District Court rejected all three pro
posed zone plans (Board, Petitioner and Justice Depart
ment). It then entered a decree calling for the following
plan of student assignment:
(1) In the rural part of the system—freedom of choice,
as specifically provided by the Court of Appeals, and as
specifically requested by the Justice Department.*27
(2) In the urban part of the system—freedom of choice
in the high schools, and attendance zones for elementary
junior high school, with the zones drawn by the court
itself.
Referring to Green v. County School Board of New Kent
County, Virginia, 391 U.S. 430, the court provided that
the freedom of choice portion of its plan would operate
only on an interim basis, to be continued, or not, from year
to year dependent upon the speed of desegregation accom
plished.*28 This decree also provided for the closing of two
all black schools and one all white school.
Once again, the School Board moved promptly to im
plement the Decree of the Court, and continued to imple-
*2<> Decree of the District Court, July 29, 1968 (page 3).
*27 Motion of the Justice Department filed on July 31, 1968,
referred to by the Court in its Order of August 2, 1968 (page 4).
* 2 8 Decree of the District Court, July 29, 1968 (page 8).
29
merit the same in good faith throughout the 1968-69 school
year. In the meantime, an appeal was taken.
During the course of the year the School Board also
sought permission of the District Court to build a new
elementary school building to replace a substandard build
ing at the Howard Elementary School, and to add an
additional building at Toulminville High School. After an
evidentiary hearing permission was granted by the Dis
trict Court. Subsequently on appeal the Court of Appeals
reversed, concluding that the buildings would tend to per
petuate the dual system. Howard has now been abandoned;
the assigned enrollment at Toulminville is 453 black, 247
white.
1969-1970
On June 3, 1969, on the appeal of the District Court
order, the Court of Appeals switched horses in the middle
of the stream and again reversed the District Court. Be-
versal was on the theory that the zone lines drawn by the
district court should have been drawn on a racial basis
rather than a non-racial basis as most recently ordered by
the Court of Appeals, and that the statistical extent of
desegregation in that portion of the system under freedom
of choice was unacceptable, in view of Green v. County
School Board of New Kent County, Virginia, supra.*29
The Court of Appeals remanded to the District Court
and directed the court to request the Office of Education
to collaborate with the School Board in the preparation of
a revised plan of student assignment, providing: (1) that
HEW and the Board should try to agree upon a revised
plan; (2) that if HEW and the Board could not agree,
HEW should file its own recommendations for a plan, (3)
that all parties could then file objections and suggested
*29 Davis v. Board of School Commissioners of Mobile County,
414 F.2d 609.
30 —
amendments to the HEW recommendations; (4) that for
plans as to which objections are made or amendments sug
gested or which in any event the district court will not ap
prove without a hearing, the District Court should have
a hearing, within ten days (5) that a new plan for the
1969-70 school year shall be approved by the District
Court no later than August 1, 1969.
Pursuant to the June 3, 1969 opinion and mandate of
the Court of Appeals, on June 4 the District Court con
tacted HEW and requested their attention. HEW did not
respond until June 11, and it was not until June 16, after
thirteen (13) of the allotted thirty (30) days had elapsed,
that the professional staff of the school system was able
to establish a working relationship with HEW.* *30
Although a great deal of work was done and every ef
fort, was made, no plan could be agreed upon by the School
Board and HEW within the remaining allotted time, sev
enteen (17) days. In accordance with the decree, HEW
filed its own recommendations with the District Court on
July 10.
On July 21, 1969, the School Board filed extensive ob
jections to the HEW proposal pointing out in some detail
why various portions of the HEW recommendations are
educationally unsound and incapable of effective adminis
tration. At the same time, as also provided by the decree,
the School Board filed its recommended alternatives.
When it became apparent that the District Court did not
intend to have a hearing, the School Board supported its
objections and alternative recommendations by affidavit
testimony filed in the District Court on July 29, 1969.*3i
*30 Affidavit testimony of James A. McPherson, filed in the
District Court on July 29, 1969 (pages 4 & 5).
*3i The affidavit of James A. McPherson, referred to in foot
note 30, filed in the District Court on July 29, 1969.
Although the Court of Appeals decree had invited them
to do so, Petitioners and the Justice Department chose
not to submit alternative recommendations of their own
to the court; and neither of them requested the district
court to hold an evidentiary hearing.
On August 1, 1969, the District Court, consistent with
the mandate of the Court of Appeals, entered its order ap
proving a plan for operation of the school system for the
1969-70 school year. In formulating this order the Dis
trict Court, using its own knowledge of the school system
and current circumstances as it had done on a previous
occasion, put together its own desegregation plan. In
doing so, it rejected almost entirely the alternatives rec
ommended by the School Board, and rejected in part and
accepted in part the recommendations of HEW.
This desegregation plan formulated by the District
Court itself, did essentially the following things:
(a) It required and accomplished integration of faculty
in every school of the system.
(b) For all but nine (9) of the then eighty nine (89)
schools of the system it established revised unitary at
tendance zones, drawn on a basis taking race into account
along with other factors in order to maximize integration.
(Resulting in the assignment of approximately 70,000 of
the systems then 73,500 students to bi-racial schools).*32
(c) It required the School Board, again working with
HEW, to undertake further study and effort toward the
development of a still further modification of the desegre
gation plan with reference to those schools east of Inter
•32 Although some 70,000 were assigned to bi-racial schools,
only 55.314 enrolled and attended. The others moved their place
of residence, entered private school, dropped out of school, or in
some other manner, beyond the Board’s control, avoided their
bi-racial assignment.
— 31 —
state Highway 65, where the excepted nine (9) are lo
cated; and to submit the suggested modifications to the
court by December 1, 1969, for implementation in Sep
tember 1970.
The School Board moved immediately to comply with
this Order of the Court, as it had done with all previous
orders, and began implementation of the order, in good
faith, with the opening of school for the 1969-70 school
year. Good faith implementation was continued through
out the school year, until of course, the plan was subse
quently changed by the court in the midst of the school
year.
In the meantime an appeal was taken by Petitioner from
the District Court order of August 1. The Justice De
partment did not appeal. On the appeal the Petitioner
took the position that the plan devised by the District
Court was satisfactory as it applied to the rural portion
of the system, satisfactory as to the urban portion of the
system west of Interstate Highway 65, and unsatisfactory
only as to the aspect of student assignment for that por
tion of the system east of Interstate Highway 65.*33 The
Justice Department took the position that the Order of
the District Court was satisfactory in every respect, stat
ing in its brief to the Court of Appeals:*34
“ Under the circumstances of this case, we believe the
August 1 Order is consistent with this Court’s June
3, 1969 decision in this case.”
In the Court of Appeals the case was consolidated with
others and heard by the court sitting en banc. The Court
of Appeals reversed the District Court in all of the other
*33 Brief of Petitioner (Appellant there) in the Court of Ap
peals on August 12, 1969 (pages 5-6).
*:!4 Brief of the Justice Department in the Court of Appeals
on August 22, 1969 (page 6).
33
consolidated cases and sustained the District Court in this
case.*33 Upon certiorari to this court, the Court of Ap
peals was reversed, and the case remanded for further
proceedings consistent with Alexander v. Holmes County
Board of Education, 396 U.S. 19.*36
In the meantime the professional staff of the school
system had restudied the area east of Interstate Highway
65, as instructed by the District Court in its Decree of
August 1, 1969, and filed its recommendations in the
District Court on December 1, 1969. HEW disregarded
the District Court directive to work with the School
Board, and filed hastily prepared recommendations (three
alternative recommendations) in the District Court, also
on December 1, 1969.*37
Upon remand from the Supreme Court, the Court of
Appeals directed all counsel to propose to the court an
expeditious manner of proceeding with the case. The
School Board responded, and among other things sug
gested immediate remand to the District Court for an evi
dentiary hearing, with directions to the court to have the
hearing and enter its order not later than January 26,
1970, so as to enable the Board to begin implementation
immediately upon commencement of the second semester
of the school year.*38 The Justice Department and Pe
titioner both responded, but did not suggest an evidenti
*35 Singleton v. Jackson Municipal Separate School District,
419 F.2d 1211.
*36 Carter v. West Feliciana Parish School Board, 396 U.S. 29
(1970).
*37 The HEW recommendations are discussed in full in a later
section of this brief, at pages 60 et seq.
*38 Counsel’s letter to the Judges of the Court of Appeals
dated January 17, 1970, with proposed decree attached.
— 34 —
ary hearing, although Petitioner loudly complains now
for lack of a hearing.*39
On January 21, 1970 the case was sent by the Court
of Appeals back to the District Court, without directions
for an evidentiary hearing, although such had been re
quested by the School Board.
The next day, January 22, 1970, the District Court held
a conference of all attorneys at the conclusion of which
the court asked the School Board to submit to the Court
any modifications that it cared to suggest in its previously
submitted plan of December 1, 1969 and asked the Jus
tice Department to submit any suggestion it might have
for modification of the HEW December 1 submission;
noting that as they stood, neither of these plans were ac
ceptable to the court.*40
The Justice Department hastily prepared some revisions
of the HEW recommendations. This work was exhibited
to the District Court at a second conference with the
Court on January 27, 1970. At that time however, the
essential part of the work, the maps setting out the pro
posed attendance zones, were not complete. Copies were
not given to the court, nor to counsel and nothing was
filed of record with the Clerk of the Court.*41
Contrary to what is stated in Petitioner’s brief (page
19) where it is said . . . “ The School Board failed to
*3» Memorandum of the Justice Department filed in the Court
of Appeals on January 17, 1970 and proposed decree filed by the
Petitioner in the Court of Appeals (undated) in January 1970.
*40 Both dealing only with that part of the urban portion of
the system east of Interstate Highway 65.
* 4 1 Notwithstanding an order of the District Court dated Jan
uary 28, 1970 noting that the Government submitted a revised
plan at 9 a.m. on Tuesday, January 27, perusal of the court file
and the docket entries make it clear that nothing was filed of
record. Nor were copies furnished counsel.
respond to the Court’s request.” . . . on January 30, 1970
the School Board tiled a five (5) page response in which
it suggested several very minor modifications, and pointed
out the following things:*42
” 2. These recommendations were developed over a
period of approximately three months. They reflect
the expert thinking and best judgment of competent,
trained, professional educators who are thoroughly
and intimately familiar with the school system. The
desegregation plan embodied in these recommenda
tions wras soundly conceived and carefully fashioned
in order to comply with all legal requirements im
posed by the Court; and at the same time to do so in
a manner that will be educationally sound, will cause
the least possible hardship to the least number of
students, parents and teachers, and will present the
least possible danger of destruction of or substantial
harm to the school system. If there were other recom
mendations that would accomplish all of these things
better and more fully they would have been included
as a part of the December 1 recommendations to begin
with; but there are none.
3. It should be pointed out that what the Court has
now done is to order the Board to attempt to have
its professional staff to hastily, in a matter of several
days, alter and revise the end product of this three
months of extensive, careful, analytical work. Such
a hasty effort cannot be expected to produce com
petent results. If we were merely dealing with maps
and figures on a piece of paper this would present
no problem; but we are not, we are dealing with
human beings, children, and the very life of a public
school system. The professional staff people indicate
*42 RESPONSE TO ORDER filed by the Board in the District
Court on January 30, 1970.
that what the Court has suggested calls upon them
to violate and sacrifice professional standards and
principals that they, as professional educators, hold
inviolate, and this they cannot do.”
Facing a mandate to enter an Ol der before February 1,
and finding the HEW recommendations, the School Board
recommendations and the Justice Department revisions
all not to its liking, and there being insufficient time for
an evidentiary hearing, the District Court once again
drew upon its own knowledge and prepared a new set of
attendance zone lines for the schools concerned, ie, those
in that part of the urban portion of the system lying east
of Interstate Highway 65. The court, on January 31,
1970, entered its Decree setting out these zone lines for
implementation as soon as practicable. This Decree also
added to the existing desegregation plan, a majority to
minority transfer provision.
Although the School Board was confronted with a major
upheaval and the task of rearranging a large part of the
school system during the middle of a school term, neces
sitating the displacement and reassignment of some 15,000
students, they set about the task in good faith.*43 On
March 20, 1970 full implementation was completed. On
April 14, in response to directions from the Court of
Appeals, the District Court made supplemental findings
of fact in support of its January 31, 1970 decree.
In the meantime, appeals were filed by Petitioner and
the Justice Department, and a cross-appeal by the School
Board. As these were pending the 1969-70 school year
ended in virtual chaos, with boycotts by white and black
students and parents objecting to forced reassignment,
massive absenteeism, racial disorders in a number of
— 36 —
■®43 Refer to the School Board’s REPORT TO THE COURT
dated February 23 and filed in the District Court on February
24, 1970.
— 37
schools necessitating use of the police riot squads, large
scale residential relocation, an upsurge of school vandal
ism, defiance of school authorities, the court and law en
forcement officials by parents and students, and large
scale disruption of the normal educational process in
general. Essentially, the school year ended on January 31
for a large part of the school system, because the educa
tion process simply came to a halt.
1970-1971
On June 8, 1970 the Court of Appeals, on the pending
appeal, entered an opinion and judgment setting out a
new plan of student assignment for that part of the
urban portion of the school system lying east of Inter
state Highway 6 5 . As its judgment the Court adopted
in toto the Justice Department revised plan exhibited to
the court, but never formally filed of record, in the Janu
ary 27, 1970 conference. This material, maps and ac
companying statistical tables, was furnished to the Court
of Appeals, ex parte, by attorneys for the Department of
Justice. It was not a part of the record designated by
any of the parties for the Court of Appeals. It repre
sented not the work of an educator or school adminis
trator, but of a Justice Department Attorney and a young
female statistical clerk, over a period of four days. It
came to the Court unauthenticated, and unsupported by
testimony of any sort. This perhaps explains the obvious
mistakes referred to in footnote 44. *
*44 Davis v. Board of School Commissioners of Mobile County,
422 F 2d 1139 (1970). For no apparent reason, and we think
inadvertenly without realizing it, the Court of Appeals also
changed a number of zone lines in the WESTERN part of the
urban portion of the system which had no effect, whatsoever from
the standpoint of desegregation, but very badly overcrowded
some schools and left others under utilized. These mistakes were
subsequently corrected by the District Court m its Orders of
July 13 and 30, 1970.
— 38
The School Board strongly protested the exparte handl
ing of so serious a matter, and with good reason.* *45
Nevertheless, on June 12, 1970, the District Court en
tered its order requiring the School Board to implement
the new plan set out by the Court of Appeals. Promptly,
and in good faith, the Board and its professional staff
set about the difficult task of compliance; beginning a
program to educate the public to the substantial changes
required by the court; and formulating the necessary steps
to be taken within the school system, including the con
version of three high schools to junior high schools.
Then, on July 13, 1970 without notice to the School
Board nor an evidentiary hearing, the District Court
entered another order which, in essence, set out a still
further and different plan of student assignment for the
area concerned, ie, the schools in the eastern part of the
urban portion of the system.*46 Once again, for the sec
ond time in five weeks, the School Board began the task
*45 See:
(1) Objection To A Portion Of The Record, filed by the School
Board in the District Court on March 28, 1970.
(2) Objection To Attempt To Informally Place Unauthenti
cated Documentary Material Into The Record In The Court of
Appeals and Motion To Strike And Expunge, filed in the Court
of Appeals by the School Board on March 28, 1970.
(3) Petition For Rehearing, filed in the Court of Appeals on
June 24, 1970 (mistakenly dated May 23, 1970).
*4e The School Board nor its counsel have knowledge of why
the District Court took this action. We assume, that the District
Court, faced with the task of overseeing and enforcing the op
eration of a desegregation plan that was simply impossible of
.effective implementation (due to the lack of knowledge, and ex
pertise of its authors, its gross statistical inaccuracy and other
purely functional impossibilities) concluded that someone had to
do something other than sit by and watch the school system blow
apart. We had pointed out a number of these problems in our
Petition for Rehearing, a copy of which had been mailed to the
District Court at the time of filing.
39
of preparing the public and the school system for an en
tirely new desegregation plan.
Petitioner took an Appeal from the Order of July 13,
and sought an injunction staying the order of the District
Court. The School Board filed a Response in which it
noted that it was in the unusual position of defending
a District Court Order that it had not sought, and one
with which it could only partially agree.*47 We then
pointed out to the Court of Appeals a comparative
analysis of the two plans which indicated clearly that the
District Court approach not only avoided many of the
functional impossibilities and points of educational un-
soundness (with which we were most seriously concerned)
but also actually increased the extent of integration as
well.
On August 4, 1970, the Court of Appeals denied the
Motion to Stay and entered an opinion sustaining the
District Court.
In the meantime, on July 30, the District Court, without
notice to anyone, had entered a further order, modifying
thirty-two (32) of the attendance zones established just
seventeen (17) days earlier by its Order of July 13.*48
Again, for the third time in less than two months, the
School Board was faced with the task of making a sub
*47 Response to Motion, filed in the Court of Appeals on July
28, 1970.
_*48 On this occasion the School Board had knowledge that the
District Court contemplated some modification of its zones, to
remove the mistakes (referred to in footnote 44) in several zones
in the western part of the urban portion of the system, which
had not been cured by its Order of July 13. To this end, the
School Board, when called upon to do so, responded and advised
the District Court, of the nature and location of these mistakes.
Our mistake (the mistake of counsel; which we freely admit)
was that in responding to the request of the District Court for
information, we did not reduce our response to writing and send
copies to opposing counsel.
— 40 —
stantial rearrangement of the school system. With the
opening of school five weeks away, the Board moved
promptly, if a bit frantically, to prepare the public and
the school system for implementation of this new order.
On August 17, Petitioner, after delaying eighteen (18)
days, appealed and moved the Court of Appeals for sum
mary reversal. This appeal and motion were not timely
inasmuch as the Court of Appeals had previously sus
pended the Federal Rules of Appellate Procedure for
this and every other school case in the circuit, to require
the filing of all appeals within fifteen (15) days.*49 This
point was raised by this counsel and by counsel for the
Mobile County Council Parent-Teacher Associations, an
intervening party.*50
Nevertheless, the Court of Appeals entertained the
appeal and the motion and on Friday, August 21, notified
this counsel of a conference in the Chambers of Judge
Griffin Bell, one of the Judges of the Court, the following
Monday, August 24. This conference was most irregular
in that the Court did not notify counsel for the County
Council, PTA, of the conference or invite their attendance,
as a consequence of which they were not present.*51
* 4 9 singleton v. Jackson Municipal Separate School District,
419 F.2d 1211.
*r>o Petition For Rehearing and For Stay, filed by the inter-
venor, Mobile County Council PTA, on September 4, 1970; de
nied on September 18, 1970.
*5i The Court did entertain and permit the presence of an in
cidental party defendant to the litigation, one David Jacobs, a
black militant who has twice been arrested and convicted in con
nection with activities in leading disruptions at two schools in
the system (once in the Prichard, Alabama Police Court and
once in the Mobile Police Court) and who on May 16, 1969 was
enjoined by the District Court from obstructing and preventing
the attendance of students and faculty members by intimidation
and other activities. Mr. Jacobs accompanied Petitioners coun
sel to this conference. We were not advised by the court of the
reason for his presence.
41
Following this conference, on August 28, with the open
ing of school eleven days away, the Court of Appeals
entered an opinion “ terminating” the appeal in which it
partially granted and partially denied the Motion For
Summary Reversal; and in addition, required certain fur
ther rearrangement of several attendance zones, not in
volved in the appeal.
Once again, for the fourth time in less than three
months, and with the opening of school eleven (11) days
away, the Board turned in good but weary faith to the
task of a substantial rearrangement of the school system.
On September 9, 1970 the 1970-71 school year com
menced amid the chaos of a plan of student assignment
pierced together at various times by the District Court,
HEW, a Justice Department attorney, the Court of Ap
peals, a young lady statistical clerk and finally Judge
Griffin Bell. In essence, this school year opened as the
past year had closed; boycotts by white and black students
and parents objecting to forced assignments, massive
absenteeism (first day enrollment 02,094, down approxi
mately 11,400 from the end of school last year), defiance
of school authorities, racial disorders and physical violence
in several of the schools (necessitating use of the police
riot squad, and at one high school the daily attendance
of approximately 80 uniformed officers) numerous arrests
of students, and large scale disruption of the normal edu
cational process.
In the meantime the Petition for certiorari has been
granted and the Opinion and Judgment of the Court of
Appeals (actually three opinions, June 8, August 4 and
August 28) are before this Court for review.
— 42 —
IV. Summary
The school system has been fully and affirmatively de
segregated in every respect, except, it may be contended,
student assignment. With regard to student assignment,
the rural part of the system and the urban or city part of
the system west of Interstate Highway 65 have been fully
and affirmatively desegregated as a result of the implemen
tation in September, 1969 of the plan of student assign
ment devised by the District Court, approved by the Court
of Appeals, en banc (Singleton v. Jackson, 419 F.2d 1211)
and reviewed by this court on certiorari (Carter v. West
Feliciana Parish School Board, 396 U.S. 290, per currium,
1970). The method of student assignment used in each of
these areas is unitary attendance zones drawn by the court
itself.
Thus we can define the essential point at issue as re
lating only to the element of student assignment for that
part of the urban or city portion of the system located east
of Interstate Highway 65.
On June 8, 1970, the Court of Appeals, on the appeal
from the District Court order of January 31, 1970, entered
the first of the three combined opinions now before this
court for review. This opinion and judgment concerned
primarily student assignment for these schools east of
Interstate Highway 65 and set out a complete and specific
plan of student assignment for these schools. This plan
set out by the Court of Appeals is one that had been sub
mitted to the Court by the United States Department of
Justice, which had in turn prepared the plan by modifying
a plan originally devised by the Office of Education of
the Department of Health, Education and Welfare. As with
the remainder of the system, the method of student assign
ment used by this plan is unitary zones. This plan also
closed some schools, consolidated others, paired others,
recast the grade structure of others and completely re
designed all of the attendance zones east of Interstate
Highway 65. Under this plan, all of the forty-one schools
affected by the order lying east of Interstate Highway 65
became thoroughly bi-racial in student body composition,
except eight elementary schools.*52
The subsequent order of the District Court on July 13
eliminated two more of the remaining all black schools, one
by closing, and one by redesigning attendance zones, leav
ing only six.*53 Thereafter, the Court of Appeals in its
order of August 4, 1970 (the second of the three orders
now on review) eliminated yet another all black school by
assigning, through pairing, 129 white students to thereto
fore all black Robbins Elementary School.
— 43 —
At that point, the five schools remaining all black, as
classified by the court, were:
Name White Black
Owens 2 1300
Fonville 37 787
Stanton Road 5 826
Brazier 0 1120
Grant 30 850
All of these schools are located more or less in the
middle of fairly densely populated residential areas that
*52 A statistical table of the number of black and white stu
dents assigned to each school by this plan was included by the
Court of Appeals in its Opinion, which is a part of the printed
Appendix.
*53 The Court of Appeals in its August 4, Opinion said seven,
counting Council with 40 white and 427 black students as all
black. A copy of the statistical table filed in the record by the
District Court in connection with its July 13 Order, is attached
to this brief as APPENDIX II.
44 —
have, for the most part since the inception of this litiga
tion, become either all black or very predominantly black
in character. Two, Owens in the City of Mobile and Grant
in the City of Prichard, are in areas that are totally urban
and most of the housing is in the form of Federally funded
urban renewal projects, subject to the Federal Open
Housing Laws. The other three, Fonville, Stanton Road
and Brazier, are located in areas of a suburban nature.
Two of these areas, Fonville and Stanton Road, were, at
the beginning of this litigation, all white in character but
have now become very predominantly black. The racial
make up of all five of these zones and schools results en
tirely from voluntary residential patterns, and is thus the
result of a pure d e f a c t o situation, rather than any practice
of maintaining segregated schools by law, by design or by
any other device (see Deal v. Cincinnati Board of Educa
tion, 419 F. 2d 1387).
On August 28, in the final of the three orders being
reviewed, the Court of Appeals further increased the
statistical extent of integration by redesigning two ele
mentary school zones and by pairing four more elementary
schools.
With the opening of the 1970-71 school year on Septem
ber 9, 1970, the plan of student assignment placed into
operation, as ordered by the court, produced the following
assignment of students and faculty for the area concerned,
the schools east of Interstate Highway 65.
CURRENT
1
NAME OF
SCHOOL
RACIAL
CHARACTER
OF SCHOOL
IN DUAL
SYSTEM ERA
(1 9 7 0 -7 1 )
RACIAL
CHARACTER
OF STUDENT
BODY
1 970-71
STUDENTS
ASSIGNED
B W
1 970-71
FACULTY
ASSIGNED-*
B W ..
i
BIENVILLE W B i - r a c i a l
BLOUNT B B i - r a c i a l 1233 1041 36 41 (1 2 )
BRAZIER B 1006 14 17 (3 )
BROOKLEY W ___ B i - r a c i a l 71 490 7 10 (1 )
CALDWELL B B i - r a c i a l 307 11 6 (4 ) 3 4 (6 4 )
CARVER B B i - r a c i a l * 2
CENTRAL B B i - r a c i a l 1563 231 24 2 7 ($ )
CHICKASAW W B i - r a c i a l 75 44$ 6 8 (2 )
CLARK W B i - r a c i a l 903 687 2 3 (1 ) 3 4 (2 )
/ COUNCIL B B i - r a c i a l 404 50 6 (1 ) 8
CRAIGHEAD W B i - r a c i a l 516 242 11 16 ( 1 )
CRICHTON w B i - r a c i a l 144 352 74 1 1 (1 )
✓ DUNBAR B B i - r a c i a l 940 86 14 1 3 (9 )
EANES W B i - r a c i a l 1$1 $23 1 3 (3 ) 23
EVANS w B i - r a c i a l 11$ 91 $ 8
FONVILLE B B i - r a c i a l $66 15 13 9 (1 1 )
GLENDALE W B i - r a c i a l 574 257 10 1 4 (2 )
GRANT B B i - r a c i a l 1077 7 16 9 (1 5 )
HALL B B i - r a c i a l $52 190 18 2 3 (4 )
HAMILTON W B i - r a c i a l 204 414 7 11
LEINKAUF w B i - r a c i a l 252 194 6 8
MARIVALE w B i - r a c i a l 207 395 $ 12
MERTZ w W 373 4 7
MOBILE COUNTY
TRAINING B B i - r a c i a l 699 202 14 8 (1 2 )
MORNINGSIDE W W 674 $ 1 1 (1 )
MURPHY W B i - r a c i a l 1546 1054 3 1 (7 ) 5$
OLD SHELL W B i - r a c i a l 357 117 5 6 (1 )
CURRENT
RACIAL (1 9 7 0 -7 1 )
CHARACTER RACIAL 1970-71 1970-71
OF SCHOOL CHARACTER STUDENTS FACULTY
*3NAME OF IN DUAL OF STUDENT ASSIGNED ASSIGNED
SCHOOL SYSTEM ERA BODY B W B ¥
OWENS B B 1479 20 13 (1 7 )
PALMER (SNUG
HARBOR) W B i - r a c i a l 493 104 10 5 (9 )
PHILLIPS w B i - r a c i a l 820 364 18 (1 ) 28
PRICHARD w B i - r a c i a l 566 187 12 (1 ) 19
RAIN w B i - r a c i a l 111 1155 23 35
ROBBINS B i - r a c i a l 702 129 9 (1 ) 12 (2 )
STANTON ROAD B B i - r a c i a l 894 4 13 17 (2 )
TOULMINVILLE W B i - r a c i a l 454 247 12 14 (3 )
TRINITY GARDENS B B i - r a c i a l 969 171 15 17 (6 )
VIGOR W B i - r a c i a l 1385 930 36 (6 ) 60 (3 )
WASHINGTON B B i - r a c i a l 780 636 14 11 (1 1 )
WESTLAWN W W 322 4 (1 ) 7
WHITLEY B B i - r a c i a l 345 127 6 7 (3 )
WILLIAMS W B i - r a c i a l 41 533 8 11
WILLIAMSON B B i - r a c i a l 570 594 18 25 (2 )
WOODCOCK W B i - r a c i a l 97 145 5 (2 ) ioi
*1 By Court o rd e r B ie n v i l le has become a p a r t o f th e V ig o r High S c h o o l
Com plex, w h ich has an a ss ig n e d e n ro llm e n t o f 1385 b la c k , 985 w h ite .
*2 By C ourt o rd e r C arver has become a p a r t o f th e B lou n t High S ch o o l
Com plex, w hich has an a ss ig n ed e n ro llm e n t o f 1233 b la c k , 1041 w h ite .
*3 The f ig u r e s in p a r e n th e s is in d ic a t e th e number o f v a c a n c ie s , by r a c e ,
y e t t o be f i l l e d in o rd e r to re a ch th e 6 0 /4 0 r a t i o .
< L
We would redirect your attention to the statistical table
set out in an earlier section of this brief (page'' T) :for
a view of the assignment of students for the whole system
produced by the total desegregation plan placed in full
implementation with the opening of school on September
9, 1970,
Y. Petitioners’ Contentions
Over the past eight years all of the normal techniques
of desegregation ever devised — — the option plan, uni
tary zones, freedom of choice, majority to minority trans
fers, zones drawn on a non-racial basis, zones drawn on
a racial basis, alteration of grade structure, enlargement
of zones, reduction of zones, consolidations, closings, pair
ing of adjacent schools------- have been imposed upon the
Mobile County Public School System. Some of these tech
niques are educationally sound some of them not.
Prom the standpoint of education the results are totally
ungratifying. From the standpoint of desegregation, it is
now abundantly clear that this school system is desegre
gated to the maximum extent that can be produced by
normal techniques and any further rearrangement of the
school system by such abnormal devices as massive
bussing, cross-bussing, now-contiguous pairing, or any
other arbitrary manipulation of students, can only be the
pursuit of an arbitrary and artificial racial balance. And
this is exactly what Petitioner now seeks.
As we understand the thrust of Petitioners contention,
it is that despite the fact that total desegregation has
been achieved, and despite the fact that this is a unitary
school system, further abnormal devices in pursuit of a
racial balance are justified, because:
(a) The District Court has not had evidentiary hear
ings ; «-*■ —*
— 47 —
(h) there have been exparte proceedings with the
Court;
(c) the School Board has used certain techniques such
as bussing black children, changing grade structure, port
able classrooms, building and closing schools arid manipu
lation of attendance zones, to maintain segregation.
We would rejoin these contentions briefly.
(a) Evidentiary Hearings
The District Court held exhaustive evidentiary hear
ings in 1963, 1965, 1967 and 1968. If anyone has been
handicapped for lack of an evidentiary hearing since the
July 1968 hearing, it has been the School Board, not peti
tioner. Without giving the Board the opportunity to offer
proof of the soundness of the several proposed plans of
student assignment it has filed in the district court since
July 1968, the court has on each occasion rejected the
Board’s proposals entirely, in favor of plans devised by
HEW, the Department of Justice and the Court itself,
which have not had to stand the test of an open hearing.
When this case was remanded by this Court in January
1970, (Carter v. West Feliciana Parish School Board,
supra) the School Board, not Petitioner, urged that there
be an evidentiary hearing and was ignored.*54 As we
have pointed out in an earlier section of this brief (pages
24, 33-34) petitioner’s complaints are all after the fact
and it is obvious that Petitioner is not so much in
terested in having evidentiary hearings, as it is in com
plaining for lack of such hearings.
*54 See:
(1) Letter of this Counsel to the Court of Appeals, dated Jan
uary 17, 1970 and proposed decree attached,
(2) Memorandum of the Justice Department filed in the Court
of Appeals, January 17, 1970,
(3) Proposed decree filed by Petitioner in the Court of Ap
peals (undated) in January, 1970.
— 48
(b) Exparte Proceedings
Certainly there have been exparte proceedings, by coun
sel for all of the parties. In an earlier part of this brief
(page 39) we freely admitted the mistake of this counsel
in responding to the District Judge’s oral request for in
formation, without reducing our response to writing and
sending copies to the other parties. No later than Wednes
day, September 23, 1970, while this brief was in prepa
ration we had another exparte request for information
from one Jerris Leonard, Esq., Chief of the Civil Rights
Division of the United States Department of Justice. In
a complex case such as this, it seems that exparte activity
is inevitable. Nor do school board attorneys have a cor
ner on the market. We have reference to:
(1) Petitioners exparte conference with the District
Court in March 1970.*53
(2) The Justice Department’s exparte hearing before
the district court on September 14, 1970.*56
(3) Petitioners’ failure to serve all parties with copies
of important pleadings, and the making of false certifica
tion of service.*37
*55 As referred to in Petitioner’s, own Motion For Injunction
Pending Appeal, filed in the Court of Appeals in March 1970.
See School Board’s Opposition to the Motion For Injunction,
pages 3 and 4 and footnote 1.
#56 See: School Board’s Report To The Court, September 16.
1970.
*57 Petitioner’s Motion For Summary Reversal filed in the
Court of Appeals on August 17, 1970 was not served on all par
ties. See: Petition of the Mobile County Council of Parent-
Teacher Associations (one of the parties) for Rehearing and a
Stay of the Court of Appeals Order of August 28, 1970 which
resulted from the exparte hearing on the motion for summary
reversal (pages 5-6), filed in the Court of Appeals on September
4, 1970.
— 49 —
(4) The Justice Department’s exparte submission of
documentary material, not a part of the record, to the
Court of Appeals.*58
(5) The Court of Appeals failure to notify all parties
and counsel of hearings in chambers as a result of which
the Mobile County Council PTA, one of the parties, was
not present at a most important conference in the Cham
bers of Judge Bell on August 24, 1970.*59
We do not complain of these occurrences. We simply
note them, lest the impression be left that the School
Board alone is at fault.
(c) Techniques to Maintain Segregation
Closing schools: Contrary to Petitioners implication, every
school closing in the last five years has resulted in an
increase in the extent of desegregation, rather than a
decrease. We would refer you to the full discussion at
pages 30-33 of this brief.
School Construction: The last new schools constructed in
the system opened their doors in 1967 (two) and 1968
(one). All three have bi-racial student bodies (see page
15 of this brief). Two proposed construction projects in
1968-69 were approved by the District Court and reversed
by the Court of Appeals. One has now been abandoned
and the other has an assigned enrollment of 454 black and
247 white (see page 15 of this brief).
*58 See:
(1) School Board’s Petition For Rehearing, filed in the Court
of Appeals on June 24, 1970.
(2) School Board’s Objection To and Motion To Strike and
Expunge filed in the Court of Appeals on March 28, 1970.
(3) School Board’s Objection to a portion of the record, filed
in the District Court on March 28, 1970.
*59 See: Petition of PTA Council for Rehearing and For Stay
filed in the Court of Appeals on September 4, 1970.
50 —
Manipulating Attendance Zones and Portable Classrooms:
Since 1965 all students have been assigned to schools on
the basis of zones either approved by the court or drawn
by the court, excepting a brief period of freedom of choice
(see pages 22-41 of this brief). Portable classrooms are
used only to provide emergency space to accommodate
overloads resulting from the assignment of students by
the court (see pages 17-18 of this brief).
Changing Grade Structure: Unquestionably this school
system has had a varied grade structure. Initially this re
sulted in part because of its combination rural-urban,
character, and in part because of the continuing effort to
shift from the old style elementary, junior high, senior
high concept (elementary grades 1-6, junior high grades
7-9, senior high grades 10-12) to the more modern middle
school concept (elementary grades 1-5, middle school
grades 6-8, senior high grades 9-12). In more recent times
the varied grade structure has resulted from the court
orders which have imposed upon the system a number of
grade structure arrangements thought to be educationally
unsound; such as a school for grades 6-9, or a school for
grades 1, 2, 3 and 5, or a school serving grade 8 only (as
proposed by HEW), or a school serving grades 1 and 2
only or 5 and 6 onty (as contained in Plan B-l Alternative
proposed by Petitioner, pendente life).
Bussing of Black Students: Admittedly, during the era of
the dual system and until a short time after this litigation
began, black students were bussed to preserve segregation.
This is a shameful part of the past of this system, just as
slavery is a shameful part of this nation’s past. It was
wrong then, it is wrong now; and two wrongs never made
a right. It was educationally- unsound then, it is educa
tionally unsound now. Those who would attempt to justify
bussing now, on the basis of bussing in the past, are seri
ously hampered by their own obvious inability to deter
— 51
mine whether they are more interested in education or
retribution and revenge. Petitioner cites to the court im
pressive figures to indicate the existence of substantial
bussing now. The court must bear in mind, as Petitioner
failed to note, that all of this bussing is in the rural por
tion of the system where there has always been and prob
ably always will be a substantial transportation need to
fill. The mere existence of transportation in the rural part
of the system hardly stands as justification for the crea
tion of an urban transportation system. Transportation in
the rural portion of the system is of course on a fully inte
grated basis (see pages 11-12 of this brief).
VI. The Relief That Is Needed
The desegregation plan now in implementation, insofar
as it concerns the schools east of Interstate Highway 65,
is a piecemeal concoction put together by the Court of
Appeals from various bits and pieces devised at various
times by HEW, the Justice Department and the District
Court. It has no integrity, nor rationality.
While the Court of Appeals spoke in terms of devising
a plan consisting of neighborhood schools, and Petitioner
has seized upon this as a vehicle to place before this court
a consideration of the constitutionality of the neighbor
hood school concept, the plan devised and promulgated by
the Court of Appeals is anything but a neighborhood
school plan. To immediately verify this, one need only
look at the map reflecting the elementary and junior high
school zones devised by the court and now in use (the
maps filed in the District Court on July 30 and July 13,
1970, respectively).
Based upon these zones, sixth grade students in the
Mertz elementary zone for example are required to travel
up to seven (7) miles diagonally across the City of Mobile,
crossing six major traffic thoroughfares — — U.S. High-
52
way 90, Cottage Hill Road, Airport Boulevard, Dauphin
Street, Old Shell Road and Spring-hill Avenue (U.S. High
way 9 8 ) --------at peak traffic hours to attend a school
that has an overload of almost 600 students (capacity 986,
assigned enrollment 1 5 2 5 )while their true neighborhood
school, Mertz Elementary School is within easy walking
distance of less than a mile and a half and has vacant
space. There are many other similar examples, but this
should suffice to illustrate the point that the plan devised
and promulgated by the court is not a neighborhood school
plan, notwithstanding the court’s characterization of it as
such.
The school year traditionally opens in September each
year. Normally, planning for each year would commence
the preceding April or May. For the past five years it has
been impossible to undertake any real pre-planning be
cause of last minute court orders requiring substantial
rearrangement of the school system in one way or another,
such as a shift from neighborhood attendance zones to
complete freedom of choice and then back again, or a sub
stantial rearrangement of attendance zones and grade
structure. Court orders requiring new and different de
segregation plans were imposed upon this school system
on August 16, 1966 for the 1966-67 school year; August
24, 1967 for the 1967-68 school year; July 29 and August 2,
1968 for the 1968-69 school year; and on August 1, 1969
for the 1969-70 school year. The 1969-70 school year was
further disrupted by a further court order on January 31,
1970 requiring mid-year reassignment of some 15,000 stu
dents. Since January 1, 1970 this school system has al
ready been under six different court ordered desegrega
tion plans, none of which have been prepared by the Board
or its professional staff. Three of these plans have been
fully implemented, and three superseded by subsequent
orders before they could be placed into full implementa
tion.
— 53 —
Since October 1967, the desegregation plans implemented
in this school system have been devised either by the Dis
trict Court, the Court of Appeals, the Justice Department,
HEW, or some combination thereof. The School Board
and its professional staff people have been completely
shoved out of the picture, and the chaos prevalent in the
school system at this time is the end result. Neither of
these parties seems to be able to satisfy the other, and the
petitioner has never been satisfied with anything. As a
result, the school system has become nothing more than a
bloody corpse battered from pillar to post now lying there
oozing its life’s blood away while being carved and hacked
to bits by its various antagonists. The death knell of utter
chaos and collapse can be heard pealing softly in the dis
tance, moving closer day by day.
The litigating parties in this case are the NAACP, and
the School Board. It is not they, however, who are suffer
ing from the seemingly interminable turmoil that the
courts have unwittingly created; it is the public school
children of Mobile County, black and white alike. Nothing
speaks more eloquently of this than the following statis
tical table comparing the advance of the desegregation
process year by year since 1965 when substantial integra
tion first occurred, to the achievement of fourth grade
students systemwide on the nationally recognized Cali
fornia Battery Achievement Test.
1965
-66
Total number
of schools................. 97
Total number of
schools with a
bi-racial stu
dent body ............... 10
Total number of
schools with a
bi-racial faculty . . . . 0
Total number of
students enrolled in
bi-racial schools . . . . 10474
— 54 —
1966 1967 1968 1969 1970
-67 -68 -69 -70 -71
98 96 91 89
15 34 57 68
0 10 89 88
15636 28558 47560 55314
System wide
achievement level
(4th grade students)
California Battery
Scores as compared
to grade placement.
(grade placement
equals 100%) ........... 104.4% 100% 99% 91.5% 89.7% Compiled
In the table, grade placement equals 100%. Note that
in the 1965-66 school year fourth grade students system-
wide were achieving at a level 4.4% above fourth grade
standards. Since that time there has been a steady down
ward trend, so that by last school year, 1969-70, fourth
grade students system-wide were achieving at a level
10.3% below fourth grade standards. The tests have not
yet been given for the current school year, but the results
are predictable.
We urge this Court to breathe the breath of life back
into this dying school system. We urge this Court to
direct the Court of Appeals to remand this case to the
District Court for the formulation of a revised plan of
desegregation for that part of the urban portion of the
school system lying east of Interstate Highway 65; that
the District Court be directed to:
1. Require the School Board to prepare and submit
a proposed plan to the court;
2. Receive and consider any objections or modifica
tions to the School Board’s proposed plan, that any
party to this case may wish to file;
3. Have an evidentiary hearing;
4. Approve a new plan by January 1, 1971 for im
plementation beginning the second semester of this
school year, in February 1971.
We further urge that the District Court be directed to
undertake the above in the light of certain principles that
we shall propose at the conclusion of this brief.
— 55 —
SUMMARY OF ARGUMENT
The Mobile County Public School System was at one
time a dual school system. The dual system has now been
completely disestablished, and the Mobile County Public
School System is now a fully integrated unitary school
system.
The school system has been involved in desegregation
litigation since 1963. This has resulted in a succession of
orders by the District Court and the Court of Appeals,
each requiring some further or different modification in
the plan of desegregation being implemented in the school
system. The School Board and its professional staff have
sought in good faith to implement, properly and promptly,
each order of the Court as it has been imposed; and to
— 56 —
otherwise discharge their legal and constitutional obliga
tion, as it has from time to time been interpreted and
defined by the Courts.
Since October 1967, the desegregation plans that have
been implemented in the system have been devised by the
District Court, the Justice Department, HEW, the Court
of Appeals, or some combination thereof. The School
Board and its professional staff have been completely
shoved out of the picture. Since January 1, 1970 six dif
ferent court ordered desegregation plans have been im
posed upon the school system, none of them have been
prepared by the Board or its professional staff. As a
result, the school system is in a position of near chaos;
faculty and staff morale is at low ebb; the Superintendent
has resigned; enrollment has dwindled from 79,000 to ap
proximately 68,000; system-wide student achievement has
steadily declined for the past five years, taking a course
essentially opposite the advance in the desegregation pro
cess during this same time period.
The Orders of the District Court and of the Court of
Appeals now being implemented and now before this Court
for review require: (a) the assignment of faculty through
out the system on the basis of a 60/40 racial ratio, (b)
the assignment of students (in that part of the city or
urban portion of the system east of Interstate Highway 65)
to schools on the basis of what the Court of Appeals con
tends to be unitary geographic zones resulting in neighbor
hood schools. This is a totally inaccurate description of
the content and effect of the court’s orders. True, the
zones are unitary, but they do not comport with the neigh
borhood school concept and do not result in neighborhood
schools, due to gross gerrymandering, un-natural pairing
of schools, and obvious inattention to numerous factors
that would have been considered in the creation of a true
system of neighborhood schools. Essentially, assignment
— 01
of students is on a basis calculated to produce an arbi
trary racial balance of students in the schools concerned.
The orders of the court now in implementation result in
the assignment of approximately 64,306 students (of a
total of approximately 68,623 in the system) to schools
with bi-racial student bodies. Nevertheless, Petitioners
urge this court to reverse the orders of the lower courts,
and pending the approval of a new desegregation plan by
the District Court on remand, to order the implementation,
pendente lite, of another plan of student assignment
hastily prepared almost a year ago by H EW ; which plan
comes to this Court untested by hearing, unsupported by
testimony and indeed totally unexplained.
It is the position of the respondent that the case should
be remanded to the District Court for the development of
a new plan of student assignment for that part of the
system here concerned, consistent with the principles de
veloped in the argument hereafter summarized. It is re
spondent’s position in argument that:
I
The so-called plan B-I Alternative should not be imposed
upon the Mobile County Public School System, because:
1. It has never been before any court for an evidentiary
hearing; it is unproved, untested and unexplained.
2. On the other hand, upon the basis of the affidavit
testimony of the Associate Superintendent who examined
and analyzed it thoroughly, along with other members of
the professional staff of the school system, it has been
totally discredited.
3. It was hastily prepared by one with no knowledge of
the school system. As a result it contains, in addition to
58 —
a number of overall functional drawbacks, approximately
a dozen specific functional impossibilities.
4. It has been rejected by the lower courts as imprac
ticable and educationally unsound.
5. It requires massive cross-town busing and cross-bus
ing, beyond the immediate, as well as long range, capabili
ties of the school system.
II
The Orders of the lower court, insofar as they require
the assignment of faculty on the basis of a racial ratio
(60% white, 40% black) are contrary to what is required
or permitted by the Fourteenth Amendment to the United
States Constitution.
I l l
The constitutional foundation of all public school de
segregation is the Fourteenth Amendment to the United
States Constitution. Brown v. Board of Education of
Topeka, 347 U.S. 483 (1954), in interpreting the Four
teenth Amendment, defines the constitutional rights of all
public school students, black and white. This right is that
they shall not be denied access to and use of public school
facilities on account of race. This original interpretation
has been both expanded and refined in subsequent cases,
including Green v. County School Board of New Kent
County Virginia, 391 U.S. 430 (1968) and Alexander v.
Holmes County Board of Education, 396 U.S. 19 (1969),
but it has not been changed nor abrogated, as indeed it
could never be in view of the very language of the Four
teenth Amendment itself.
The Constitution of the United States neither requires
nor permits the assignment of students in such a manner as
to achieve a racial balance in the school system. Similarly,
the mere existence in this school system of seven schools
with uniracial student bodies (2 all black and 5 all white,
out of a total of 83 schools in the system) does not make
this school system constitutionally deficient.
Under our Constitution, education is a right that must
be made available to all on an equal basis; where dual
school systems once existed they must be totally disestab
lished; students both black and white must be assigned to
schools on a non-racial basis; school systems must be oper
ated on a unitary basis within the framework of which no
person is totally compelled to attend any school because of
race or color, nor effectively excluded from any school be
cause of race or color.
IY
Under our Constitution black and white public school
students have an equal right to the benefit and protection
of the Constitution and of the laws of the United States.
Granted that every individual desire cannot be fulfilled
and every individual problem solved, by and large, a true
neighborhood school system is the most beneficial method
of student assignment for the school system and for all
children of the system, black and white. Assignment of
all students on the basis of attendance zones fairly drawn
to normal standards of educational soundness and upon
the basis of non-racial criteria in order to produce as
nearly as possible a system of unitary neighborhood
schools, is a constitutionally sufficient plan of student as
signment.
— 6 0
ARGUMENT
I
This School System Should Not Be Required to
Attempt to Implement Plan B-I Alternative
What is Petitioner really seeking by certiorari in this
case? Ostensibly, to have this Court review a decision
of the Court of Appeals in order to insure Petitioners due
process right to an evidentiary hearing, and to resolve
conflicting rulings of the Courts of Appeal. We have
already discussed in some detail (page 47) the evi
dentiary hearing aspect. From the standpoint of resolv
ing conflicts, it is apparent that this would have been
accomplished in Swann v. Charlotte-Mecklenberg Board
of Education (Nos. 281 and 349), which was already be
fore this Court when the Petition for Writ of Certiorari
was filed in this case. Consequently there must be
another reason. We suggest, that in reality what peti
tioner is really seeking, under the guise of pursuing an
evidentiary hearing and resolution of conflicts, is to have
this Court substitute its remote consideration and judg
ment for that of the District Court and the Court of
Appeals, by ordering the p en d en t e l i te implementation of
a desegregation plan that has already been rejected by
both lower Courts on two different occasions as “ im
practicable” and “ educationally unsound” .
Under the circumstances it is revealing, important and
perhaps essential to note that Plan B-I Alternative itself
has never been before any court for an evidentiary
hearing.
Plan B-I Alternative was prepared by HEW in two
stages. The first stage was the work of Dr. Joe Hall of
the Florida School Desegregation Consulting Center. It
61 —
was submitted to the District Court on July 10, 1969. Dr.
Hall submitted a superficially impressive report of some
109 pages to the District Court. Well over half of these
pages were devoted to a detailed discussion of typical
Chamber of Commerce information, totally irrelevant to
desegregation of the school system. For example, the
report explains that among Mobile’s major industries
are cement, naval stores, ship repair, etc.; and its modern
ocean terminal can handle 32 vessels simultaneously; and
in 1965 unemployment in Mobile totaled 4.3 percent of
the civilian “ at place’ ’ labor force; and on and on it
goes with reams of similar worthless information.* *60
Dr. Hall’s discovery testimony was taken by deposition,
during which he declined to indicate just how much of
the seventeen (17) days he spent on this matter was
expended on such trifling, but he did reveal the follow
ing very significant facts:*61
(a) The actual desegregation plan was prepared not
by himself, but by one Dr. Stolee of Miami, Florida
and one Dr. Weinkoff of South Carolina; both of
whom had never been to Mobile before; both of whom
had no prior contact with or information about Mobile
or its school system; both of whom arrived in Mo
bile one day and departed the next, and prepared
the recommendations during the short time of less
than 48 hours.
(b) He (Dr. Hall) had no ultimate authority with
reference to the HEW report. Everything had to be
approved by one Mr. Gregory Anrig of the Washing
ton office of HEW. Mr. Anrig did not come to Mobile
*60 Refer to the HEW report filed in the District Court on
July 10, 1969.
*ei Discovery deposition of Dr. Joe Hall, filed in the District
Court.
and had no prior contact with or information about
the school system. He had occasion to look at the
proposed recommendations only once, for a short
time, and yet required numerous changes and altera
tions.
Dr. Hall indicated to School Board officials that it
was impossible for HEW to do a proper job of evaluat
ing the school system and developing adequate recom
mendations within the time allowed by the Court for the
report; and yet because of delay by HEW half of this
time had elapsed even before he got started on his work.
Dr. Hall also stated that he is professionally opposed to
the busing of students for the sole purpose of achieving
integration, and yet the ultimate HEW recommendations,
after changes by Mr. Anrig, contained massive busing in
pursuit solely of some sort of racial balance.*62
This first stage HEW report was filed in the District
Court and was totally unsupported by testimony or ex
planation other than a very brief informal discussion with
the District Court. This was conceded by Petitioner at
pages 14b and 15b of the Appendix to its Petition for
Writ of Certiorari previously filed in this Court in De
cember 1969.
This report, and particularly the recommendations sub
sequently rejected as unsound by the lower courts but
which Petitioner would now urge upon this Court, were
soundly and thoroughly discredited by the only profes
sional educator with any background knowledge of the
school system who examined them.*63
* 6 2 Affidavit testimony of James A. McPherson, filed in the
District Court on July 29, 1969, page 4.
*63 Affidavit testimony of James A. McPherson filed in the
District Court on July 29,1970 . . . . and...........Findings of Fact,
April 14, 1970, pages 24-38.
63
The second state of Plan B-I Alternative was prepared
by yet another HEW functionary, one Ernest S. Bunch
who styles himself Acting Senior Program Officer, Equal
Educational Opportunities, and submitted to the District
Court on December 1, 1969. This stage was the result
of less than two weeks attention by Mr. Bunch. Like
Dr. Hall before him, Mr. Bunch had no prior contact
with or knowledge of the school system.
Mr. Bunch’s work took place over a period of less than
two weeks, immediately prior to December 1, 1969. Mr.
Bunch made no independent study of the school system,
conducted no research and gathered no original statistical
information. All Mr. Bunch did was to take statistical
data from the earlier HEW report, juggle these statistics
in several different ways and then set out four different
alternative plans, one of which was labeled Plan B-I Al
ternative. Mr. Buch’s ineptness is revealed in many
aspects of his work, not the least of which are his recom
mendations that would make senior high schools out of
elementary school plants, create one grade school and
assign 2886 students to a school with a capacity of 980.
As with the original HEW report, this Plan B-I Al
ternative (as well as the other 3 alternatives) did not
come before the Court for an evidentiary hearing, and in
this instance there was not even an informal conference
with the District Judge. Consequently, Plan B-I Alterna
tive is not only totally unsupported by testimony, but was
before the District Court and is now before this Court,
even without explanation. In seeking to justify the sound
ness and integrity of his work in the report itself, Mr.
Bunch is unbelievably terse, stating only, “ all of the
plans are based on educational concepts promulgated
either recently or not so recently” .
Plan B-I Alternative was subsequently thoroughly
examined and studied by a professional educator, whose
— 64
affidavit testimony relative to this examination and study
was filed in the District Court. This testimony pointed out
numerous fatal defects, and totally discredited the plan,
both from the standpoint of its educational unsoundness as
well as its functional impossibility.*64
With this spurious background, it should not be sur
prising that Plan B-I Alternative is educationally un
sound, administratively infeasible, detrimental to the
school system as a whole including both black and white
students, and functionally incapable of implementation.
This has been recognized by both the District Court and
the Court of Appeals, sitting en banc. (Singleton v. Jack-
son, supra).
Of the four different alternative plans submitted by
HEW in its December 1, 1969 report, Plan B-I Alternative
is by far the most unsound, most infeasible, most detri
mental of all.
What are some of the specific defects in Plan B-I Alter
native !
1. The plan purports to be based upon certain specific
geographic zones, but no maps or other description re
flecting or stating the location of the boundaries of zones
is included with the plan. As far as present relevancy of
the plan is concerned, the zones have been changed by
the Courts on four separate occasions since the plan was
filed on December 1, 1969. The plan, therefore, has ab
solutely no relation to reality at this time.
2. The basic statistical data upon which the plan was
based is now outdated and inaccurate. The original sta
tistical data was gathered and compiled by the School
Board in September 1968, and reported to the court. It
*64 Affidavit testimony of James A. McPherson, filed in the
District Court on February 24, 1970 . . . . Findings of Fact,
April 14, 1970, pages 24-38.
65 —
is now totally inaccurate. Spot checks made of this sta
tistical information, shortly after the HEW report was
filed on December 1, 1969, to determine accuracy and
relevancy, indicated that in a number of instances the
figures are in error by as much as 50%. The HEW report
itself recognized this error and sought to excuse itself
in advance with this seemingly innocuous statement:
“ These statistics may or may not agree with current
figures of the Board of Education. However, they may be
considered as relatively close approximates that could be
used as a guide for a more precise sophistication in this
vein.” No doubt, fifty percent (50%) error is a close ap
proximation to the sophisticated people of HEW, but it is
quite impossible to operate a school system of 83 schools
and 70,000 students on such a margin.
3. The plan requires the use of one elementary school
(Gorgas) that has already been closed by the court and
annexed to Toulminville High School (247 white, 454
black) on which campus it is located, to take care of an
overload there which occurs as a result of other provisions
of the existing Court ordered desegregation plan. This
leaves no place for the 890 elementary students assigned
to the Gorgas Elementary School by Plan B-I Alternative.
4. Similarly, Plan B-I Alternative requires for use as
an elementary school, another school (Hall) that is already
operating under the court ordered plan as a junior high
school. Either the 1149 elementary students assigned to
Hall by Plan B-I Alternative or the 1246 junior high
students already assigned there by the Court of Appeals
will have no school to attend.
5. Plan B-I Alternative does not assign to any school
the 806 elementary students (300 white and 506 black)
living in the Craighead zone.
6. Plan B-I Alternative makes no provision at all for
the sixth grade students living in the following zones:
6 6 —
South Brookley ................................. 93
Williams ............................................... 101
Indian Springs ................................... 76
Eight Mile ........................................... 109
Dickson ................................................. 121
Fonde .................................................. 131
Shepard ............................................... 74
Dodge .................................................. 92
TOTAL ............................................. 797
7. Plan B-I Alternative would assign 1174 elementary
students to an Arlington-Council complex (Arlington ca
pacity 476, Council capacity 544), but Arlington has al
ready been closed by the Court, and is being used as a
book depository and warehouse and as a laboratory for
the in service training of teachers.
8. Plan B-I Alternative does not assign to any school
the 591 elementary school students (424 white and 167
black) living in the Woodcock zone.
9. Utilizing Plan B-I Alternative, results in each of the
264 6th grade students in the Owens zone being assigned
to two different schools at the same time.
10. Plan B-I Alternative requires two one-grade ele
mentary schools; seventeen two-grade elementary schools
and fifteen three-grade elementary schools, making the
development of an adequate program in these schools im
possible, and creating an intolerable transportation prob
lem for parents because of the helter-skelter separation
and disbursement of students to separate schools. Some
students will have been assigned to as many as four dif
ferent schools by the time they reach the 6th grade, and
none will have been assigned to less than three.
11. The basic concept and arrangement of Plan B-T
Alternative is a non-contiguous pairing of schools, re-
67
quiring one-half, more or less, of the students directly
affected by the plan to attend school each year in schools
far removed from their homes and neighborhoods. In all in
stances but ten, this requires the students to attend schools
that are essentially across town from their homes; in the
excepted instances (ten schools) it requires attendance not
only across town, but in a different city (Indian Springs,
Brazier, Robbins, Hamilton, Chickasaw, Palmer, Glendale,
Fonde, Will and Whistler). There are approximately
27,320 students directly affected by Plan B-I Alternative;
this means that each year approximately 13,660 of these
students would be so affected. It should be kept in mind
that these are not high school or junior high school stu
dents, but young elementary school students in grades 1
through 5.
12. Because of the non-contiguous nature of the pair
ings and the illogical manner in which they have been
set up, requiring the movement of students long distances
across town and from one city to another, it will be im
possible for the approximately 13,600 cross-town students
to walk to their schools and vehicular transportation will
be imperative. To complicate matters, most of the pair
ings present travel requirements that are inconsistent with
commercial transportation routes and normal vehicular
traffic patterns.*65 The only answer would be school bus
transportation furnished by the School Board. At this
point in time, this is totally impossible; not merely diffi
cult, but impossible.
To implement Plan B-I Alternative would require 233
new buses. The acquisition cost of these buses would be
approximately $1,269,484.19 and there would be a yearly
*65 The Mobile municipal transit system has within the past
year closed entirely, then reopened on a limited basis. At this
point it is entirely speculative as to what bus service, if any, will
be available from time to time.
68 —
operating cost of $366,089.60 per year. This school system
simply does not have the financial ability to accomplish
such a requirement. It is entirely questionable as to
whether the school system could adjust its finances to
accommodate this requirement over a period of years; it
is totally incapable of doing so immediately.*66
In Petitioners’ brief a studied effort is made, by re
ferring to the present existence of bus transported stu
dents, to give the impression that the bussing inherent in
Plan B-I Alternative would be justified and would cause
little or no problem. In evaluating this contention one
must not lose sight of the fact that this is a consolidated
city-rural system and that bus transportation has histori
cally been provided for students in the rural part of the
system, as is traditional with virtually all rural and con
solidated systems. The existence of rural transportation,
however, is totally irrelevant and unrelated to the prob
lem that would be created in the city portion of the
system by Plan B-I Alternative, and offers no justification
for Plan B-I Alternative nor solution to the massive
transportation problem it would create.
One further point must be considered. Given the fi
nancial ability to purchase the necessary buses, they still
could not be obtained. In June 1970, in an effort to re
place worn equipment and to improve existing service
with relation to present needs, an order was placed for
50 new buses. Some weeks later, certain budgetary de
ficiencies and other financial problems necessitated a re
duction of the order, at which time the manufacturer
advised the school system that even the reduced order
would not be filled because no buses are available for pur
chase.
*66 Affidavit testimony of James A. McPherson filed in the
District Court on February 24, 1970, pages 11-12.
69 —
These are some of the more readily apparent defects
in Plan B-I Alternative which render it totally incapable
of implementation. The Petition makes the bare, unsup
ported statement that Plan B-T Alternative has been
proved feasible. This is simply not true. The plan has
not been proved; on the contrary, it is not only unproved,
but untested, and comes to the Court unsupported by tes
timony and even without explanation. It is not feasible;
it cannot be implemented.
Under such circumstances all logic and reason would
dictate that this court defer to the on the scene judgment
of the District Court and the Court of Appeals, both of
whom have rejected Plan B-I Alternative. This is en
tirely consistent with the prior holdings of this Court and
the Courts of Appeal. Brown v. Board of Education of
Topeka, 349 U.S. 294; Green v. County School Board of
New Sent County, Virginia, 391 U.S. 430; United States
v. Jefferson County Board of Education, 372 F.2d 836, 380
F.2d 385, Cert, Denied 389 U.S. 840; Downs v. School
Board, 236 F.2d 988.
II
Does the Constitution of the United States Require That
Public School Systems of the United States Assign the
Teachers of the Systems to the Schools of the Systems in
Such a Manner as to Achieve a Racial Balance of Teachers
in Each School, or Some Other Arbitrary Mathematical
Ratio of Black and While Teachers in the Schools of the
System?
It is the position of the Respondent that not only is such
action not required, but that constitutionally it cannot be
permitted.
The first reference to faculty assignments appeared in
Brown II where reference was made to the fact that the
Courts may consider problems relating to personnel.
— 70 —
Brown v, Board of Education of Topeka, 349 U. S. 294,
400 (1955).
In a number of subsequent cases, the Courts generally
held that the district courts might defer consideration on
the faculty question pending further progress with respect
to student desegregation. Board of Public Instruction of
Duval County, Florida v. Braxton, 326 F2d 616, 620 (C.A.
5th 1964) cert, den. 377 U.S. 924 (1964); Bowman v.
County School Board, 382 F2d 326 (C.A. 4th 1967).
At first, the Courts required only that faculty meetings
and staff conferences be desegregated. Singleton v. Jack-
son Municipal Separate School District, 384 F2d 729 (C.A.
5th 1965). Subsequently boards were directed to make
“ an adequate start toward elimination of race as a basis
for the employment and allocation of teachers, adminis
trators and other personnel.” Singleton v. Jackson Mu
nicipal Separate School District, 355 F2d 865 (C.A. 5th
1966). Then came United States v. Jefferson County
Board of Education, 372 F2d 836 (C.A. 5th 1966), where,
after observing that “ These and other decisions compel
states in this circuit to take affirmative action to reorga
nize their school systems by integrating the students, fac
ulties, facilities and activities,” (p. 868) the Court set
forth a model decree which required the assignment of
faculties so that at least one, and ‘ ‘ wherever possible .. .
more than one teacher of the minority race . . . be assigned
to each school” (p. 900).
In United States v. Montgomery County Board of Edu
cation, 395 U.S. 225, (1969), the Supreme Court held that
the Court of Appeals had erred in setting aside a district
court order requiring the Montgomery County, system to
achieve a racial balance in faculty assignments as a long
term goal. However, this opinion did not purport to im
pose such a requirement on all systems, but merely recog
nized the discretionary power of a trial judge under the
71
particular facts of a specific case. At least it would so
seem from the decision of the Fifth Circuit Court of Ap
peals rendered one month later in United States v. Board
of Education of Baldwin County, 417 F2d 848 (C.A. 5th
1969), where a ratio of one in five for 1969-70 was
required.
In December 1969 the Fifth Circuit Court of Appeals,
in Singleton v. Jackson Municipal Separate School Dis
trict, 419 F2d 1211 (C.A. 5th 1969), directed the 13 sys
tems involved in that appeal, including Mobile County, as
well as all other school systems then in litigation, to meet
the following requirements:
“ Effective not later than February 1, 1970, the prin
cipals, teachers, teacher-aides and other staff who
work directly with children at a school shall be so
assigned that in no case will the racial composition
of a staff indicate that a school is intended for Negro
students or white students. For the remainder of the
1969-70 school year the district shall assign the staff
described above so that the ratio of Negro to white
teachers in each school, and the ratio of other staff
in each, are substantially the same as each such ratio
is to the teachers and other staff, respectively, in the
entire school system. The school district shall, to
the extent necessary to carry out this desegregation
plan, direct members of its staff as a condition of con
tinued employment to accept new assignments.” (pp.
1217-18).
Then, in its opinion of June 8, 1970 the Fifth Circuit
Court of Appeals required the Respondent School Board
to achieve a 60/40 ratio of teachers throughout the system.
It is our contention that: racial faculty assignments are
invalid, indeed unconstitutional.
The necessary effect of Brown v. Board o f Education o f
Topeka, 347 U.S. 483 (1954), was to elevate to constitu-
tional doctrine the first Mr. Justice Harlan’s dissent in
Piessy v. Ferguson, 163 U.S. 537, 559 (1896), to the effect
that:
1 ‘ Our constitution is color-blind, and neither knows nor
tolerates classes among citizens. In respect of civil
rights, all citizens are equal before the law. The
humblest is the peer of the most powerful. The law
regards man as man, and takes no account of his sur
roundings or of his color when his civil rights as
guaranteed by the supreme law of the land are in
volved.”
Brown I was predicated not on an evidentiary finding
that equal educational opportunity could not be achieved
in fact except through integration, but rather upon the
holding that racial classifications are invidious per se.
United States v. Jefferson County Board of Education,
372 F2d 836, 871 (C.A. 5th 1966), adhered to on rehear
ing en banc, 380 F2d 385 (1967), affd. sub nom. Caddo
Parish School Board v. United States, 389 U.S. 840 (1967).
In Bolling v. Sharpe, 347 U.S. 497, 499, 884 (1954), this
Court declared:
“ Classifications based solely upon race must be scru
tinized with particular care, since they are contrary
to our traditions and hence constitutionally suspect.”
(p. 499).
In striking down the Knoxville, Tennessee minority to
majority transfer provision of the system’s school deseg
regation plan, the Court declared:
“ Classifications based on race for purposes of trans
fers between public schools, as here, violate the Equal
Protection Clause of the Fourteenth Amendment. As
the Court said in Steele v. Louisville & N.R. Co., 323
U.S. 192, 203, 98 L.ed. 173, 194, 65 S. Ct. 226 (1944),
racial classifications are ‘ obviously irrelevant and in
vidious.’ ” Goss v. Board of Education of Knoxville,
373 U.S. 683, 687 (1963).
In Teel v. Pitt County Board of Education, 272 F. Supp.
703, 709-10 (D.C. N.C. 1967), the Court declared:
“ The Court does not intend, nor does it read the law
to require, involuntary reassignment of teachers to
achieve racial blending of faculties in each school in
the Pitt County System. To do so would clearly be
nothing more than racial assignments for racial pur
poses; such would indeed be inimical to a rational
concept of equal protection of all persons under the
law without regard to their race. A compulsive mass
transfer to achieve racial blending would be an ill-
advised and disruptive measure.”
“ Desegregation and integration of faculty can and
must be accomplished without the use of racial cri
teria, for equal protection of the law must work in
both directions to be in fact and in law equal.”
The Sixth Circuit, in Deal v. Cincinnati, 419 F.2d 1387
(C.A. 6th 1969), has also spoken on the subject:
“ There was no constitutional duty on the part of the
Board to balance the races in teachers’ employment
and assignments. Teachers should be selected pri
marily on the basis of merit.” (at 1393).
And, as held recently in Clark v. Board of Education
of Little Rock School District, . . . F.2d . . . (C.A. 8th May
13, 1970), “ . . . (T)he ultimate goal is the assignment of
teachers solely on the basis of educationally significant
factors, wherein race in and of itself is irrelevant.”
In Alexander v. Holmes County Board of Education, 396
U.S. 19 (1969), this Court directed the lower federal courts
in school cases to require school systems to,
— 74
“ (B)egin immediately to operate as unitary school
systems within which no person is to be effectively
excluded from any school because of race or color.”
(emphasis supplied)
The basic position underlying Brown I was that racial
classifications could no longer be made, and that persons
could not be dealt with by governments on a racial basis.
This is entirely consistent with the rationale of the cases
referred to above that reject the notion of assigning fac
ulty on a racial basis. Obviously assigning faculty on a
60/40 ratio, as in the instant case, is assignment on a racial
basis.
The judicial rejection of classification based upon race,
distinctions based upon race and racial quotas, is not con
fined to public school desegregation cases, but is woven
throughout the fabric of the law.
In Loving v. Virginia, 388 U.S. 1 (1967), a state mis
cegenation statute was declared void under the 14th
Amendment on the reasoning that the statutes,
” . . . (R)est solely upon distinctions drawn according
to race.” (p. 11)
In McLaughlin v. Florida, 349 U.S. 184 (1964), in strik
ing down a Florida statute making it illegal for a Negro
man and white woman to cohabit together, the Court held:
‘ ‘ But we deal here with a classification based upon
the race of the participants, which must be viewed
in light of the historical fact that the central purpose
of the Fourteenth Amendment was to eliminate racial
discrimination emanating from official sources in the
States. This strong policy renders racial classifications
‘ constitutionally suspect,’ Bolling v. Sharpe, 347 U.S.
498, 499, 98 L.Ed. 884, 886, 74 S.Ot. 693; and subject
to the ‘ most rigid scrutiny,’ Korematsu v. United
— 75
States, 323 U.S. 214, 216, 89 L.ed. 194, 198, 65 S. Ct.
193; and ‘ in most circumstances irrelevant’ to any
constitutionally acceptable legislative purpose, Hira-
bayashi v. United States, 320 U.S. 81, 100, 87 L.Ed.
1774, 1786, 63 S. Ct. 1375. Thus it is that racial clas
sifications have been held invalid in a variety of
contexts. See, e.g., Virginia Board of Elections v.
Hamm, 379 U.S. 19, 13 L.Ed. 2d 91, 85 S. Ct. 157
(designation of race in voting and property records);
Anderson v. Martin, 375 U.S. 299, 11 L.Ed. 2d 430, 84
S.Ct. 454 (designation of race on nomination papers
and ballots); Watson v. City of Memphis, 373 U.S.
526, 10 L.Ed. 529, 83 St. Ct. 1314 (segregation in pub
lic parks and playgrounds); Brown v. Board of Edu
cation, 349 U.S. 294, 99 L.Ed. 1083, 75 S.Ct, 753 (seg
regation in public schools).”
In the jury discrimination cases, it has been held that
“ A defendant in a criminal case is not constitutionally
entitled to demand a proqiortionate number of his race on
the jury which tries him nor on the venire or jury roll
from which petit jurors are drawn.” Swain v. Alabama,
380 U.S. 202, 208 (1965).
Similarly, a deliberate effort to limit the number of
jurors because of racial considerations is unconstitutional.
In Cassell v. Texas, 339 U.S. 282, 286-7 (1950), it was held:
“ We have recently written why proportional repre
sentation of races on a jury is not a constitutional
requisite. Succinctly stated, our reason was that the
Constitution requires only a fair jury selected with
out regard to race. Obviously the number of races
and nationalities appearing in the ancestry of our citi
zens would make it impossible to meet a requirement
of proportional representation. Similarly, since there
can be no exclusion of Negroes as a race and no dis-
— 76
crimination because of color, proportional limitation
is not permissible.” (p. 286)
On the other hand in Collins v. Walker, 329 F.2d 100
(C.A. 5th 1964), an indictment against a Negro was held
unconstitutional where it had been returned by a specially
empaneled grand jury upon which 6 Negroes were deliber
ately included, the Court declaring:
“ A Negro is entitled to the equal protection of the
laws, no less and no more. He stands equal before
the law, and is viewed by the law as a pei*son, not as
a Negro. An accused cannot demand a mixed grand
jury, some of which shall be of his same race. What
an accused is entitled to demand under the Constitu
tion ‘ is that in organizing the grand jury there shall
be no discrimination against him because of his race
or color.’ ”
In other words, a person may not be included or excluded
solely because he is a negro or because he is white. The
requirement is that the system be designed without regard
to race, and once the system is so designed, the fortuitous
results that arise thereunder in any given instance give
rise to no legitimate cause for complaint just because one
race is not represented or is over-represented thereon.
Eacial quotas uniformly have been held invalid. Wright
v. Rockefeller, 211 F. Supp. 460 (D.C. N.Y. 1963), aff’d.
376 U.S. 52 (1964); Progress Development Corp. v.
Mitchell, 182 F. Supp. 681 (D.C. 111. 1960), rev’d. in part
286 F. 2d 227 (C.A. 7th 1961); Banks v. Housing Author
ity, 120 Cal. App. 2d 1, 260 P.2d 668 (1953), cert. den.
347 U.S. 974 (1954); Taylor v. Leonard, 30 N. J. Super.
116, 103 A.2d 632 (1954). “ The law does not require a
maximum of racial mixing or striking a racial balance
accurately reflecting the racial composition of the com
munity or the school population.” United States v. Jef
ferson County Board of Education, supra, 372 F.2d at 847.
— 77 —
In the context of racial quotas in public housing it was
stated of such a requirement in Taylor v. Leonard, 30
N.J. Super. 116, 103 A.2d 632 (1954):
“ . . . it is also a violation of section 1 of the Four
teenth Amendment of the Constitution of the United
States.
It is immaterial that the quota actually used bears
some relation to the percentage of negro population
in the particular municipality.
The evil of a quota system is that it assumes that
Negroes are different from other citizens and should
be treated differently. Stated another way, the al
leged purpose of a quota system is to prevent Negroes
from getting more than their share of the available
housing units. However, this takes for granted that
Negroes are only entitled to the enjoyment of civil
rights on a quota basis.”
Another trouble with quotas and the exclusions they
necessarily entail was pointed out in Traux v. Raich, 239
IJ.S. 33 (1915). In holding quotas respecting alien em
ployment rights unconstitutional under the Fourteenth
Amendment, the Court observed:
“ If the restriction to twenty percent now imposed is
maintainable the State undoubtedly has the power if
it sees fit to make the percentage less” (pp. 42-43).
The existence of racial quotas would presumably require
constant quota readjustments as the racial composition of
the body upon which the quotas are based changes. The
best way to avoid the problem is obviously to avoid its
beginnings. See West Virginia State Board of Education
v. Barnette, 319 U.S. 624, (1942).
Manifestations of Congressional understanding of what
the Constitution requires does not comport with what the
Fifth Circuit Court of Appeals has held in Singleton,
supra, nor in the instant case, for in section 703 (a) (2)
of the Civil Rights Act of 1964, it was provided that:
“ It shall be an unlawful employment practice for an
employer—
# # # * *
“ (2) to limit, segregate, or classify his employees in
any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise
adversely affect his status as an employee, because
of such individual’s race, color, religion, sex, or na
tional origin.” 42 XJSCA 2Q00e- 2 (a).
Section 703 (j) of the same title declares:
“ Nothing contained in this title shall be interpreted
to require any employer, employment agency, labor
organization, or joint labor-management committee
subject to this title to grant preferential treatment to
any individual or to any group because of the race,
color, religion, sex, or national origin of such indi
vidual or group on account of an imbalance which may
exist with respect to the total number of percentage
of persons of any race, color, religion, sex, or national
origin employed by any employment agency or labor
organization, admitted to membership or classified by
any labor organization, or admitted to, or employed
in, any apprenticeship or other training program, in
comparison with the total number or percentage of
persons of such race, color, religion, sex, or national
origin in any community, State, section, or other area
or in the available work force in any community,
State, section, or other area.” 42 USCA 2000e-2(j).
Granted that these statutes by their own terms do not
apply to state employment, they certainly represent an
authoritative Congressional declaration of what it feels
— 79 —
to be required by the Constitution, which by analogy is
referrable to Section 5 of the Fourteenth Amendment.
The Elementary and Secondary Education Act of 1965,
as amended, declares:
“ In the administration of this chapter no department,
agency, officer or employee of the United States, shall
exercise any direction, supervision or control over the
personnel, curriculum or program of instruction of
any school or school system, or any local or state
educational agency or require the assignment or trans
portation of students or teachers in order to overcome
racial imbalance.” (emphasis supplied)
Another inherent problem, either beyond the compre
hension of courts requiring racial balance of faculties, or
if comprehended, then ignored, is the fact that no correla
tion whatsoever is apt to exist between the system-wide
racial composition of faculty and the black-white ratio of
French teachers, science teachers, math teachers, or teach
ers of any other particular field or qualification.
In the words of Clark, supra,
“ . . . (T)he ultimate goal is the assignment of
teachers solely on the basis of educationally significant
factors, wherein race in and of itself is irrelevant.”
With respect, it is the position of this respondent that
the assignment of faculty in this school system on a racial
ratio basis, as required by the Orders, Opinions, judg
ments and mandates of the Court of Appeals and the Dis
trict Court, is not required by the Constitution, and is
indeed unconstitutional.
— 8 0
III
Does the Constitution of the United States Require That
the Public School Systems of the United States Assign the
Students of the Systems to the Schools of the Systems in
Such a Manner as to Achieve a Racial Balance of Students
or Some Arbitrary Mathematical Ratio of Black and White
Students in the Schools of the Systems?
Does the Mere Existence of a School With a Student
Body Made Up of Students All of One Race, in a Public
School System That Is Otherwise Completely Integrated
and Unitary, Render the School System Constitutionally
Deficient?
Does the Existence of Two (2) Schools That Have All
Black Student Bodies and Five (5) Schools That Have
All White Student Bodies, in a School System of Eighty-
Three (83) Schools That Is Otherwise Completely Inte
grated and unitary, Render the School System Constitu
tionally Deficient?
It is the position of Respondent that the Constitution
not only does not require a racial balance of students in
the schools of the system, but that a plan of student assign
ment, assigning students to schools in pursuit of such
balance would be constitutionally improper. It is Respond
ents further position that the mere existence in this school
system or any other of a school or schools with uniracial
student bodies, does not in and of itself render such school
system constitutionally deficient.
The constitutional foundation of all public school de
segregation is the Fourteenth Amendment to the United
States Constitution, which provides that:
“ No State shall . . . deny to any person within its
jurisdiction the equal protection of the laws.”
81 —
In Brown I (Brown v. Board of Education of Topeka,
347 U.S. 483 (1954)) this Court held that the Negro chil
dren for whom the action was brought, were “ by reason
of the segregation complained of, deprived of the equal
protection of the laws guaranteed by the Fourteenth
Amendment. ’ ’
Brown I removed all state restraints, based upon race,
upon admission to public schools. It also defined the con
stitutional rights of all children, both black and white,
indicating that none of them can be denied access and use
of public educational facilities on account of race, stating
that the opportunity for education is:
“ a right which must be made available to all on equal
terms.”
But that is the limit of the decision, as it necessarily had
to be, in view of the language of the Fourteenth Amend
ment. Brown I also articulated another important prin
ciple:
“ Public education is perhaps the most important
single function of local government. ’ ’
As stated in the brief for the United States in Brown II
(Nos. 1, 2, 3, 4 and 5, October Term 1954, page 5):
“ These problems must be viewed in proper perspec
tive. The starting point must be a recognition that
we are dealing here with basic constitutional rights,
and not merely those of a few children but of mil
lions. ’ ’
“ A prime consideration in dealing with the problems
of desegregation must be that the systems of public
education in the United States should not be ad
versely affected. Public education is one of the glories
of the United States, and an indispensable source of
its power. The richest resources of the United States
are its citizens, and, as the Court has observed (347
8 2 —
U.S. at 493), education, ‘ is the very foundation of
good citizenship’ (emphasis supplied)
Brown I was followed very shortly by Brown II. The
direction in Brown II, to the District Courts upon re
mand, is notable. They were told to consider, as was
pointed out to this Court by Petitioner’s Counsel, Mr.
Greenberg and Mr. Nabrit, in their brief in Green (No.
695, October term 1967, page 31):
“ problems related to administration, arising from the
X)hysical condition of the school plant, the school
transportation system, personnel, revision of school
districts and attendance areas into compact units
to achieve a system of determining admission to the
public schools on a non-racial basis, and revision of
local laws regulations which may be necessary in solv
ing the foregoing problems (349 U.S. at 300-301).”
(emphasis supplied)
In its brief in Brown II the United States seems to have
held the same opinion. There it was stated:
“ The Constitution prohibits the maintenance of seg
regated school systems. It does not compel the
adoption of any specific type of nonsegregated sys
tem. The decisive inquiry is whether race or color
has been entirely eliminated as a criterion in the ad
mission of pupils to public schools. The essence of
the Court’s decision in these cases is that there be
no governmental action which enforces or supports
school segregation. In passing upon the acceptability
of proposed programs, the criterion should be whether
the defendants have sustained the burden of showing
that their particular program will bring about the
total elimination of racial considerations in the ad
mission of pupils to public schools as rapidly as local
conditions allow.” (emphasis supplied)
— 83
And in Brown I Thurgood Marshall, Esq. now Mr. Justice
Marshall, in response to a question from Mr. Justice
Frankfurter stated:
“ I think, sir, that the decree would be entered which
would enjoin the school officials from, one, enforcing
the statute; two, from segregating on the basis of
race or color. Then I think what ever district lines
they draw, if it can be shown that those lines are
drawn on the basis of race or color, then I think
they would violate the injunction. If the lines are
drawn on a natural basis, without regard to race or
color, then I think that nobody would have any
complaint.
For example the colored child that is over here in this
school would not be able to go to that school. But
the only thing that would come down would be the
decision that whatever rule you set in, it shall not be
on race, either actually or by any other way. It
would violate the injunction, in my opinion.”
In the ten years following Brown there were a veritable
host of cases commenting upon what Brown had decided
and what it had not decided.
Briggs v. Elliott, 132 F.Supp. 776:
“ Having said this, it is important that we point out
exactly what the Supreme Court has decided and what
it has not decided in this case. It has not decided
that the federal courts are to take over or regulate
the public schools of the states. It has not decided
that the states must mix persons of different races
in the schools. . . . What it has decided, and all
that it has decided, is that a state may not deny
to any person on account of race the right to attend
any school that it maintains. . . . The Constitution,
in other words, does not require integration. It
84 —
merely forbids discrimination. . . . It merely for
bids the use of governmental power to enforce
segregation.”
Avery v. Wichita Falls Independent School Dist., 241
F.2d 230.
“ The Constitution as construed in the School Segre
gation Cases * * # forbids any state action requiring
segregation of children in public schools solely on
account of race; it does not, however, require actual
integration of the races.”
Borders v. Rippy, 247 F.2d 268.
“ The equal protection and due process clauses of the
fourteenth amendment do not affirmatively command
integration, but they do forbid any state action re
quiring segregation on account of their race or color
of children in the public schools.”
Holland v. Board of Public Education, 258 F.2d 730.
“ The fourteenth Amendment does not speak in posi
tive terms to command integration, but negatively,
to prohibit governmentally enforced segregation.”
Boson v. Rippy, 285 F.2d 43.
“ Negro children have no constitutional right to the
attendance of white children with them in the pub
lic schools. Their constitutional right to ‘ the equal
protection of the laws’ is the right to stand equal
before the laws of the State; that is, to be treated
simply as individuals without regard to race or
color.”
Cohen v. Public Housing Administration, 257 F.2d 73
“ Neither the Fifth nor the Fourteenth Amendment
operates positively to command integration of the
races but only negatively to forbid governmentallv
enforced segregation.”
— 85 —
Evers v. Jackson Municipal Separate School District, 328
F.2d 408
“ This is not to say that the Fourteenth Amendment
commands integration of the races in the schools, or
that voluntary segregation is not legally permissible
. . . The Supreme Court did not hold otherwise in
Brown v. Board of Education, 1954, 347 U.S. 483, 74
S.Ct. 686, 98 L.Ed. 873. Its holding was that enforced
racial segregation in the public schools is a denial of
the equal protection of the laws enjoined by the Four
teenth Amendment. Cooper v. Aaron, 1958, 358 U.S.
1, 78 S.Ct. 1401, 3 L.Ed. 2d 5.”
In 1958, in the Little Rock School case, Cooper v. Aaron,
358 U.S. 1 (1958), this Court held that:
“ (T)he constitutional rights of children not to be dis
criminated against in school admission on grounds of
race or color declared by this Court in the Brown case
can neither be nullified openly and directly by state
legislators or state executive or judicial officers . . . ”
It is perhaps notable that this Court did not say black
children, or white children, but children.
In Rogers v. Paul, 382 U.S. 198 (1965), this Court held
that a school desegregation plan under which children
were assigned to school on the basis of race was con
stitutionally impermissible.
The Fifth Circuit departed from this well established
doctrine in Jefferson (United States v. Jefferson County
Board of Education, 372 F.2d 836). Even there the dissent
was strong. In his dissenting opinion Judge Bell said:
“ Then there is the matter of personal liberty. Under
our system of government, it is not to be restricted
except where necessary, in balance, to give others
— 8 6 —
their liberty, and to attain order so that all may enjoy
liberty. History records that sumptuary laws have
been largely unobserved because they failed to recog
nize or were needlessly restrictive of personal lib
erty . . . . They (the majority opinion) cast a long
shadow over personal liberty as it embraces freedom
of association and a free society. They do little for
the cause of education. (Emphasis supplied.)
And in his dissent Judge Grewin stated:
“ . . . There must be a mixing of the races according
to majority philosophy even if such mixing can only
be achieved under the lash of compulsion. . . . Ac
cordingly, while professing to vouchsafe freedom and
liberty to Negro children, they have destroyed the
freedom and liberty of all students, Negro and white
alike. There must be a mixing of the races, or in
tegration at all costs, or the plan does not work
according to the opinion. Such has not been and is
not n ow the spirit or the letter of the law. . . . When
our concepts as to proportions and percentages are
imposed on school systems, notwithstanding free
choices actually made, we have destroyed freedom and
liberty by judicial fiat; and even worse, we have done
so in the very name of that liberty and freedom we
so avidly . . . embrace.” (Emphasis added.)
Notwithstanding the Fifth Circuit’s departure, the
other circuits remained fast, as indicated by the follow
ing cases: Fourth Circuit (Bradley v. School Board of
City of Richmond, 382 U. S. 103; the Sixth Circuit (Mon
roe v. Board of Commissioners of City of Jackson, 380
F.2d 955 (1967); the First Circuit (Springfield School
Committee v. Barksdale, 348 F.2d 261 (1965); the Seventh
Circuit (Bell v. School City of Cfary, 324 F.2d 209 (1963),
cert, den., 377 U.S. 924); the Eighth Circuit (Clark v.
Board of Education of Little Rock School District, 369
87
F.2d 661 (1966), reh. den., 374 F.2d 569) and the Tenth
Circuit (Downs v. Board of Education of Kansas City,
336 F.2d 988 (1964), cert, den., 380 U.S. 914).
This Court in Green (Green v. County School Board of
New Kent County, Virginia, 391 U.S. 430) took somewhat
of a partial departure, while dealing in the context of a
small, rural, two school system where freedom of choice
had been ineffective.
Even there Petitioner’s Counsel, Mr. Greenberg and
Mr. Nabrit, who are also counsel for Petitioners here, said
in their brief (page 14):
“ Prior to the relatively recent controversy concern
ing segregation in large urban systems, assignment by
geographic attendance zones was viewed as the sound
est method of pupil assignment. This was not without
good reason; for placing children in the school nearest
their home would often eliminate the need for trans
portation, encourage the use of schools as community
centers and generally facilitate planning for expand
ing school population.”
Subsequent to Green the original doctrine from Brown
I has been reasserted, by the Sixth Circuit:
“ It is submitted that the Constitution imposes no such
duty. Appellants are not the only children who have
constitutional rights. There are Negro, as well as
white, children who may not want to be bussed away
from the school districts of their residences, and they
have just as much right to attend school in the area
where they live. They ought not to be forced against
their will to travel out of their neighborhoods in order
to mix the races. ’ ’ Deal v. Cincinnati Board of Educa
tion, 419 F.2d 1387 (C.A. 6th 1969).
This is reminiscent of the language of Mr. Justice Frank
furter in Cooper v. Aaron, 358 U.S. 1.
“ The use of force to further obedience to law is in
any event the last resort, and one not congenial to
the spirit of our Nation.”
The criterion of race in the assignment of public school
students simply is improper under our governmental
system.
“ The genius of the American political tradition, in
its best sense, in relation to race is that it dictates
that racial criteria are not legitimate in the operation
of governmental facilities and should be rigorously
eschewed. To bring racial criteria in by the front
door, so to speak, even before throwing them out the
back, represents, in my opinion, no real gain for the
body politic and has potentially dangerous implica
tions for the future.” *67
The Petitioners’ position also endangers the fundamental
aim of the public school system. Clearly there is no re
deeming value in integration compelled at the expense of
education. The following statement gives some perspective
to the problem:
“ (T)he purpose of schools is education and . . . no
child is being served if education is being made im
possible. School authorities must make clear when
they believe that pupils are being used as pawns in
the struggles of adults. The question to be asked
about all proposals is whether they will contribute to
the education of the pupils involved, not whether they
will contribute to other goals, even desegregation.” *88
Notwithstanding Green, Deal is entirely justified in view
of this Court’s later Opinion in Alexander where this court
*67 Gordon, Assimilation in American L ife : The Role of Race,
Religion and National Origins, p. 250 (1964).
*68 DeFacto Segregation, Educational Policies Commission of
the NEA and the American Association of School Administra
tors, NEA Journal, p. 36 (October 1965).
— 89
again restated the constitutional mandate originally set
forth in Brown in terms of a unitary school system,
“ within which no person is to be effectively excluded
from any school because of race or color.”
Brown I and II, Green and Alexander, and essentially
everything in between, excepting Jefferson and the line of
Fifth Circuit cases that followed the Jefferson doctrine
(but for a more current expression by the Fifth Circuit see
Ellis v. Board of Public Instruction of Orange County, 423
F.2d 203) have an undeniably common view of the consti
tutional obligation of school systems. It is that under our
constitution education is a right which must be made
available to all on an equal basis; that students both black
and white must be assigned to schools on a non-racial
basis; that school systems must be operated on a unitary
basis within the framework of which no person is totally
compelled to attend any school because of race or color,
nor effectively excluded from any school because of race
or color.
If our position in this regard is not sound, then the
Court’s have come full-cycle from Brown: There, racial
classifications were prohibited by the Constitution; now,
they are held to be demanded by the same Constitution.
If the rule is to be that racial classifications are illegal
except those looked upon with favor by the Court, then it
is no longer the Constitution which is the Supreme law
of the land, but the transient views of the individuals who
happen to occupy judicial office at. any particular time.
90 —~
IV
Under the Constitution of the United States, Do White
Public School Students Have the Same Right or an Equal
Right as Do Black Public School Students, to the Benefit
and Protection of the Constitution and of the Laws of the
United States; Specifically the Equal Protection Clause of
the Fourteenth Amendment, and the Civil Rights Act of
1964. If They Do, Then Is It Not Constitutionally Sufficient
That Public School Systems Assign Students to Schools on
the Basis of Attendance Zones That Are Fairly Drawn to
Normal Standards of Educational Soundness and Upon the
Basis of Non-Racial Criteria, in Order to Produce as
Nearly as Possible a System of Unitary Neighborhood
Schools.
From the very beginning of this litigation, this School
Board and its professional staff have voiced their prefer
ence for and desire to maintain a system of neighborhood
schools, because of their sincere and unbending belief that
such a system is most beneficial for all children of the
system, black and white. Beneficial not only from a purely
educational standpoint, but also from the standpoint of the
general support for the school system when children and
parents identify themselves with the neighborhood school
and its related programs—recreation, social events, scout
ing activities, and a multitude of other things. Destruction
of this identification leads inevitably to just exactly the
sort of system-wide unrest and chaotic atmosphere now
prevalent in the Mobile County Public School System; and
ultimately this leads to a total withdrawal of public con
fidence in and concern for the quality of the entire school
system and public education in general. Some systems
have already experienced this withdrawal of support.*69
*69 p rom the Amicus Curiae brief o f the Chattanooga Board
of Education in Swann (No. 281) we notice that the people of
Chattanooga have three times voted down education bond issues
totaling thirty six million dollars.
91 —
This school system is now feeling it. Others will soon ex
perience it.
From time to time this School Board has yielded to
public pressure to seek freedom of choice (after the Courts
had initially injected the concept into the focus of public
attention); and from time to time this Board has yielded
to the mandate of the Court to employ a system of student
assignment that it has known to depart from the neighbor
hood school concept, and to be educationally unsound, such
as the plan of student assignment now in implementation
for the 1970-71 school year. But throughout, the Board
and its professional staff have held the conviction that
neighborhood schools with students assigned on a non-
racial basis, coupled with a majority to minority transfer
provision, is not only educationally sound, but constitu
tionally sufficient.
The gist of Petitioners’ argument is that a public school
system is segregated as long as there remains any school
which is not attended by both white and black children.
This argument was rejected by the three judge court on
the remand in Brown v. Board of Education of Topeka,
139 F. Supp. 468, 470 (d. Kan. 1955);
“ It was stressed at the hearing that such schools as
Buchanan are all-colored schools and that in them
there is no intermingling of colored and white chil
dren. Desegregation does not mean that there must
be intermingling of the races in all school districts.
It means only that they may not be prevented from
intermingling or going to school together because of
race or color.”
The same point is made in Downs v. Board of Educa
tion of Kansas City, 336 F.2d 988, where the use of geo
graphic attendance zones had resulted in some schools
having an all white and some schools having an all black
— 92 —
enrollment. The appellants’ argument that this result ren
dered the zone plan unconstitutional was rejected by the
Court, (p. 998).
“ Appellants also contend that even though the Board
may not be pursuing a policy of intentional segrega
tion, there is still segregation in fact in the school
system and under the principles of Brown v. Board
of Education, supra, the Board has a positive and
affirmative duty to eliminate segregation in fact as
well as segregation by intention. While there seems
to be authority to support that contention, the better
rule is that although the Fourteenth Amendment pro
hibits segregation, it does not command integration of
the races in the public schools and Negro children have
no constitutional right to have white children attend
school with them.” (Footnote omitted) (Citations
omitted) (Emphasis added)
At one time this seems also to have been Petitioners
view:
“ moreover, the jury discrimination precedents may be
recalled: Bias may be presumed from a consistently
segregated result; a token number of Negroes may be
legally equivalent to none. If, however, in education
there were complete freedom of choice, or geographic
zoning, or any other non-racial standard, and all Ne
groes still ended up in certain schools, there would
seem to be no constitutional objection.” (Greenberg,
Race Relations and American Law, page 239) (1959)
(emphasis supplied)
“ Prior to the relatively recent controversy segrega
tion in large urban systems, assignment by geographic
attendance zones was viewed as the soundest method
of pupil assignment. This was not without good rea
son; for placing children in the school nearest their
home would often eliminate the need for transporta-
— 93 —
tion, encourage the use of schools as community cen
ters and generally facilitate planning for expanding
school populations.” (Brief for Petitioner in Green,
No. 695, October term, 1967)
Deal v. Cincinnati Board of Education, 324 F.2d 209
(6th Cir. 1966) succinctly stated the case for neighbor
hood schools:
“ Appellants, however, pose the question of whether
the neighborhood system of public placement, fairly
administered without racial bias, comports with the
requirements of equal opportunity if it nevertheless
results in the creation of schools with predominantly
or even exclusively Negro pupils. The neighborhood
system is in wide use throughout the nation and has
been for many years the basis of school administra
tion. This is so because it is acknowledged to have
several valuable aspects which are an aid to educa
tion, such as minimization of safety hazards to chil
dren in reaching school, economy of cost in re
ducing transportation needs, ease of pupil placement
and administration through the use of neutral, easily
determined standards, and better home-school
communication. ’ ’
Subsequently this was reaffirmed by the Sixth Circuit
in Deal v. Cincinnati Board of Education, supra, (1969):
and notwithstanding Jefferson, the Fifth Circuit has also
recently approved the neighborhood school concept, in
Ellis supra, and approximately twenty other cases within
the past nine months.
The neighborhood school concept also has the endorse
ment of the Executive Branch of the Government. In
his policy statement of March 24, 1970, entitled SCHOOL
DESEGREGATION: A Free and Open Society (116 Cong.
Bee. $4351, Daily Ed., March 24, 1970), the President of
— 94 —
the United States addressed himself at length and in
depth to the important role that the neighborhood school
plays in the education of our public school children. He
said in part:
“ The neighborhood school will be deemed the most
appropriate base for such a (unitary) system.”
“ Transportation of pupils beyond normal geographi
cal school zones for the purpose of achieving racial
balance will not be required.”
The decisions by this Court in Brown I and II, Cooper
v. Aaron, Rogers v. Paul, Green and Alexander v. Holmes
are all consistent with the neighborhood school concept.
Brown forbade the use of racial criteria in the assign
ment of students. Cooper v. Aaron and Rogers v. Paul
were essentially of the same import. Green restated in a
different context the basic proposition that school boards
are required by Brown II,
“ to effectuate a transition to a racially nondiscrimina-
tory school system.”
Alexander again restated the prohibition against the ex
clusion of students from schools on the basis of racial
criteria, this time in the context of a “ unitary” school
system. The Alexander definition does not prohibit all
exclusion—only invidious ones based on race or color.
There are any number of reasons why a child can fairly
be required to attend one school instead of another; ca
pacity, distance, cost, disruptions, location of residence,
age, safety, administrative problems, educational considera
tions and a host of other factors that have absolutely
nothing to do with his race or color. All consistent with
the neighborhood school concept.
Deal v. Cincinnati Board of Education, supra, at 1391-92
(6th Circ. 1969) addressed itself to this matter:
95 —
“ It is the contention of appellants that the Board
owed them a duty to bus white and Negro children
away from the districts of their residences in order
that the racial complexion would be balanced in each
of the many public schools in Cincinnati. It is sub
mitted that the Constitution imposes no such duty.
Appellants are not the only children who have con
stitutional rights. There are Negro, as well as white,
children who may not want to be bussed away from
the school districts of their residences, and they have
just as much right to attend school in the area where
they live. They ought not to be forced against their
will to travel out of their neighborhoods in order to
mix the races.” (Emphasis added.)
The District Judge in Ross v. Eckels, Houston Inde
pendent School District, supra, raised this question.
“ Our hypothetical student well might say to the
Superintendent of Instruction, ‘You are excluding me
from School A, two blocks from my home, because
I am black, and for no other reason. How can you do
this when the Supreme Court of the United States in
its latest pronouncement on the subject imposes on
you the duty to operate as (a) unitary school system
within which no person is to be effectively excluded
from any school because of race or color?’ I would
be interested to know how this question would be
answered.” (Emphasis added)
The only view opposite to this is the one stated rather
cryptically by one three judge panel of the Fifth Circuit
in United States v. Indianaola Municipal Separate School
District, 410 F.2d 626:
“ . . . we are firm that a point has been reached in
the process of school desegregation where it is not
the spirit but the bodies that count.”
— 96 —
Surely this cannot be! How can this be squared with
Brown I -which stated that education is:
“ a right which must be made available to ail on
equal terms” . . . and . . . “ Public Education is
perhaps the most important single function of local
government. ’ ’
Quality Public Education as an American Institution
and the philosophy of Petitioners accurately reflected by
the quotation above from United States v. Indianola are
on a deadly collision course. Only one can survive.
The desire to have physically demonstrable evidence of
the fact that a change has been made in a school has led
to an emphasis upon the number of black students physi
cally present within any educational setting. This is a
part of the concept of the “ numbers game” which is re
ferred to frequently in writings relating to school deseg
regation. The number of black children physically present
has come to be equated with the attainment of the ulti
mate objective. Judges and others have been searching
for rules of conduct, a formula, or other yardsticks that
could be applied in any given situation to determine
whether or not a school district had met the minimum
standards of the Fourteenth Amendment as interpreted
by Brown I and II. The Courts have been placed under
intense pressure with regard to desegregation, and in cer
tain circuits as a result have had an intense motivation
to evolve and fabricate orders and procedures that can
be easily understood, and that can be evaluated by non-
academic personnel. This has caused the remedy to be
reflected in the “ numbers game” , in statistical informa
tion, with no regard for the educational environment or
the classroom atmosphere essential to educational oppor
tunity.
— 97 —
What impact will there be upon black pupils if they are
aware of the fact that the only reason why they are sit
ting alongside white students is because of the presence
of a governmental force in some form requiring them to
remain where they are? If desegregation is only possible
under these circumstances have we not allowed an ob
session with the numbers game to steer us away from the
basic constitutional right that got us here in the first
place ?
What degree of detriment to a public school system is
acceptable in order to achieve mathematical racial bal
ance? Are we really to the point where it is not the spirit,
but the bodies that count?
Presumably, it is the common goal of all to provide
the best possible education for each and every child
within our public school systems. Are there really no
constitutionally permissible alternatives to the present
juggling about of pupils and teachers (without any ap
parent regard for their highly individualized educational
needs, goals and desires) simply to achieve a well-blended
color scheme? Is this “ equal educational opportunity” ?
Must all opportunity for innovation and improvement
in public education be sacrificed to ever higher levels of
racial balance? Are the fundamental rights of parenthood
of which this Court so eloquently spoke in Pierce v. So
ciety of Sisters, 268 U.S. 510, 534-35 (1925), and Meyer v.
Nebraska, 262 U.S. 390, 399-400 (1923), to be discarded
in obedience to the notion that those who govern care
more for children than those who gave them life? We
think it a singular as well as tragic commentary on our
times that these questions of basic human liberty need
even be asked.
98 —
We agree with the President, Mr. Justice Marshall and
Mr. Greenberg, that the assignment of students to schools
on a non-racial basis is constitutionally sufficient, that the
transportation of pupils beyond normal geographic school
zones for the purpose of achieving racial balance should
not be required and that the neighborhood school is the
most appropriate base for the unitary school system.
CONCLUSION
Public education is in deep trouble, not only in the south,
but in the country as a whole. With respect, the lion’s
share of the problem emanates from the fact that the Fed
eral Courts have literally assumed the responsibility of
operating the local school systems, a task for which they
are by nature, experience, temperament and ability, un
believably ill-equipped.
Nor do those upon whom the courts have relied for
assistance, the Justice Department and HEW, bring any
improvement to the situation.
Perhaps there is no better illustration of this Federal
inability to run a local school system than is presented by
this very case, where for all practical purposes, for the
past four years, the local School Board has been nothing
more than a powerless administrative extension of the
Federal Courts.
Somewhere, somehow, we must return to a recognition
of the simple fact that the vital, essential purpose of
public education and public school systems, is education
and not integration.
Many well-meaning people apparently believe that the
solution to all of the racial ills of the country is to compel
— 99
people to associate. But this assumption has proven
false. Compelling people to associate against their will
does not lessen, but only exacerbates, racial tensions. How
ever desirable the goal of inter-racial association may ap
pear to some, we submit that it cannot be achieved by
measures that violate the Constitution. Desirable ends
do not justify unconstitutional means, whatever the
urgency of the situation, and this proposition applies with
just as much force to the federal courts and the executive
department as it does to the lowest county or city official.
Even for those who find basis to disagree with this basic
position, there still remains the further inscrutable fact
that if public education is to survive it can no longer
be used as the vehicle for this philosophy of association
by compulsion. We say, if public education is to survive;
perhaps to some this is not an important criteria!
The quest for racial balance on the one hand and
quality education for all children black and white on
the other, are on a deadly collision course. One will not
survive their ultimate meeting. For those who demand
racial balance, busing for the sake of busing, the vindica
tion of one constitutional right at the expense of another,
it is pertinent to inquire as to where their motivation
may lie. Are they interested in quality education, or are
they interested in revenge and retribution.
We respectfully urge this Court, to approve as a gen
eral principle the constitutional validity of the neighbor
hood school concept, and the constitutional invalidity of
the arbitrary assignment of public school students and
teachers on the basis of a racial ratio or quota, or in
pursuit of a racial balance.
100 —
We respectfully request that this case be remanded to
the District Court for the formulation of a revised de
segregation plan consistent with these principles.
Respectfully submitted
GEORGE F. WOOD
ABRAM L. PHILIPS, JR.
510 Van Antwerp Building
P. 0. Box 2245
Mobile, Alabama 36601
Attorneys for the Board of
School Commissioners of
Mobile County, et al.
Of Counsel:
HON. JOHN J. SPARKMAN, U. S. Senate
HON. JAMES B. ALLEN, U. S. Senate
HON. JACK EDWARDS, Member of Congress
Washington, D. C.
appendix.
— 101
STUDENT TRANSFER POLICY
Upon written request oi a parent or guardian, students may be granted
transfer from the school in which they are enrolled to any school
which serves their grade level.
i . Such transfers may be granted for one of the following
reasons provided space is available and provided that
such transfer does not require special transportation ̂
arrangements by the School Board.
A. Transfer shall be granted to students requiring
a course of study not offered at the school in
which they are enrolled or for other sound
educational reasons.
B. Transfers shall be granted to students in case
of extreme hardship or fo r other good cause
non-racial in character.
I I . Transfers shall be granted to students attending a school
in which his race is in the majority to a school where
his race is in the minority with transportation provided
by the School Board i f desired.
APPENDIX I
1
PROJECTED ENROLLMENT DATA
UNDER ZONES LINES
HIGH SCHOOL
: j u . S. DISTRICT i ! FIFTH CIRCUIT' { jl COURT PLAN |j PLAN f|
oto
I