Clarksdale School District v. Henry Petition for Writ of Certiorari to the US Court of Appeals for the Fifth Circuit

    Rf c / P f l i f i 2%

IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1969

THE CLARKSDALE MUNICIPAL SEPARATE 
SCHOOL DISTRICT, ET AL.,

Petitioners,
vs.

REBECCA E. HENRY, ET A L , 
Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

Semmes Luckett 
121 Yazoo Avenue 
Clarksdale, Mississippi 

Hardy Lott

105 West Market Street 
Greenwood, Mississippi 

Counsel for Petitioners

E. L M endbnhall, I n c ., 926 Cherry Street. Kansas City. Mo. 64106. HArrison 1-3080



INDEX

Opinions Below ............. ..................................................— 2
Questions Presented for Review ................ ..................... 3
Constitutional Provisions and Statutes Involved ....... 5
Statement of the Case .......................... ....... ................. 6
Reasons for Allowance of the Writ ................... ..........  14

Brown Directed, As the Means of Achieving the 
Desegregation of the Schools of a District, the 
Creation of Compact Attendance Areas or Zones .... 15

Brown Requires the Creation of School Systems Not 
Based on Color Distinctions ......... ...... ........... .......  16

De Facto Segregation—Which Occurs Fortuitously 
Because of Housing Patterns—According to Brown
and the Holdings of the Seventh, Tenth, Fourth 
and Sixth Circuit Courts of Appeals, Does Not 
Make an Otherwise Acceptable Desegregation
Plan Unconstitutional ............................ ................. .. 20

The Civil Rights Act of 1964 Validates Bona Fide 
Neighborhood School Lines and Prohibits Court 
Orders Intended to Alleviate Racial Imbalance in 
Neighborhood Schools ................. ......... ....... .......... _ 31

The Constitutionality of an Attendance Area De­
segregation Plan Is to Be Judged by the Decisions 
in Those Cases Dealing with Such Plans. It Is 
Not to Be Judged by Decisions Dealing with 
“Freedom-of-Choice” Plans, for Those Decisions
Are Based on Considerations Foreign to Attend­
ance Area Plans ........... ..... ............ ......... .................  34

Conclusion ................ ................................... ........................ 40
Certificate of Service ...... ........ .............  ..........................  42

Appendix—

Opinion, United States Court of Appeals, Fifth Cir­
cuit, March 6, 1969 ......................................... ... .......  A1



II In dex

Judgment, United States Court of Appeals, Fifth 
Circuit, issued June 26, 1969 ........................... ...... A23

Petition for Rehearing and Petition for Rehearing 
en Banc, United States Court of Appeals, Fifth 
Circuit, denied June 26, 1969 ........... ............ ....... . A25

Order of the District Court Dated June 26, 1964 .... A26
Memorandum Opinion of District Court Dated Au­

gust 10, 1965 ............... ..... ..................................... . A31
Order of the District Court Dated August 10, 1965 A68
Order of the District Court Amending Order of Oc­

tober 1, 1965 ................ .............................. .................A74
Memorandum Opinion of the Court Dated De­

cember 13, 1965 __________ __ - _______ _______ A76
Order of the District Court Dated December 13,

1965 ..................... ....... ................................... .................A83

Table of Cases

Bell v. School City of Gary, Ind., 324 F. 2d 209 (certio­
rari denied 377 U.S, 924, 12 L. Ed 2d 216) 3, 4, 22, 30, 31,34

Broussard v. Houston Independent School District,
206 F. Supp. 266, 395 F. 2d 817 ___________ ____-.-28, 30

Brown v. Board of Education, 347 U.S. 483, 98 L. Ed.
873; 349 U.S. 294, 99 L. Ed. 1083 .......  3, 4, 7,12,14,15,16,
.... ........................ .................17, 20, 21, 22, 34, 35, 36, 37, 38, 41

Brown v. Board of Education of Topeka, 139 F. Supp.
468 ........ ............................. ....................................... ........  21

Collins V. Walker, 328 F. 2d 100 ...................................... 19
Davis v. Board of School Commissioners of Mobile

County, 364 F. 2d 896 ................. .......... ................- ...... . 34
Deal V. Cincinnati Board of Education, 369 F. 2d 55 ....24, 26
Downs v. Board of Education of Kansas City, 336 F.

2d 988 (certiorari denied 380 U.S. 914, 13 L. Ed. 2d 
800) ........ ..........................................................................23,30

Gilliam v. School Board of the City of Hopewell, Va.,
345 F. 2d 325 ................................ .................. ....... ......24,30



Index hi

Goss v. Board of Education, 373 U.S. 683, 10 L. Ed.
2d 632 ..................................... .......... ............. .................-

Goss v. Board of Education, City of Knoxville, Tenn., 
406 F. 2d 1183 ............................................................... 26,

Green v. County School Board of New Kent County, 
Va., 391 U.S. 430, 20 L. Ed. 2d 716 ...... ......... ....... ...38,

Griggs v. Cook, 272 F. Supp. 163 (N.D. Ga., July 21, 
1967), affirmed 384 F. 2d 705 .......................... ...... ...26,

Holland v. Board of Public Institutions, 258 F. 2d
730 __ ____ _____ _______________ _________- .... ... .

Monroe v. Board of Commissioners of the City of 
Jackson, Tenn., 391 U.S. 450, 20 L. Ed. 2d 733 _____

Moses v. Washington Parish School Board, 276 F. 
Supp. 834 (E.D. La., Oct. 26, 1967 ...........28, 30, 36, 37,

Plessy v. Ferguson, 163 U.S. 537, 41 L. Ed. 256 .......17,
Raney v. Board of Education, 391 U.S. 443, 20 L. Ed.

2d 727 ____ ________________ __________ ____________
Singleton v. Jackson Municipal Separate School Dis­

trict, 355 F. 2d 865 ...... .......... ............. ................ ..... .
United States v. Jefferson County Board of Education,

372 F. 2d 836; 380 F. 2d 385 ...............31, 32, 33, 34, 38,

Statutes and Constitutional Provisions

Civil Rights Act of 1964 ......................3,4,5,15,31,33,
Section 401 (42 U.S.C. §2000c) .... .......... ......4,5,32,
Section 407 (42 U.S.C. §2000c-6) .............. 4, 5, 32, 33,
Section 410 (42 U.S.C. §2000c-9) ______ 4, 6, 32, 33,

Fourteenth Amendment, Constitution of the United 
States ................................................... ............ .5, 6, 15, 40,

28 U.S.C. §1343 (3) ........................................... .............
42 U.S.C. §1983 .................................................................

17

30

39

30

29

35

38
41

39

37

39

34
40
40
40

41
6
6



IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1969

No.

THE CLARKSDALE MUNICIPAL SEPARATE 
SCHOOL DISTRICT, ET AL„ 

Petitioners,

vs.
REBECCA E. HENRY, ET AL., 

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

Petitioners, Clarksdale Municipal Separate School Dis­
trict, a school district organized under the laws of Missis­
sippi, Gycelle Tynes, Superintendent of the schools of the 
school district, and the members of the Board of Trustees of 
the school district, pray that a writ of certiorari issue to 
review the judgment of the United States Court of Appeals 
for the Fifth Circuit entered in the above case on March 
6, 1969.



2

OPINIONS BELOW

The opinions and orders of the District Court of the 
United States for the Northern District of Mississippi in 
the above case are not reported. Copies are included in 
the Appendix at pages A26 to A84. The opinions of 
Claude F. Clayton, District Judge, rendered August 10,
1965, and December 10, 1965, which are included in the 
Appendix at pages A31 to A67, and pages A76 to A82, 
and the orders of the District Court entered pursuant thereto 
on said dates, which are included in the Appendix at 
pages A68 to A75, and pages A83 to A84, are the opinions 
and orders from which respondents appealed to the United 
States Court of Appeals for the Fifth Circuit.

The opinion of the United States Court of Appeals, 
which was rendered March 6, 1969, more than 33 months 
after the case was argued before that court on May 25,
1966, is reported at 409 F. 2d 682. A copy is included in 
the Appendix at pages A1 to A22.

JURISDICTION

The judgment of the United States Court of Appeals 
for the Fifth Circuit was made and entered on March 6, 
1969. A copy is included in the Appendix at pages A23 to 
A24.

The order of the United States Court of Appeals for 
the Fifth Circuit denying petitioners’ Petition for Rehear­
ing in Banc was made and entered on June 26, 1969. A 
copy is included in the Appendix at page A25.

The jurisdiction of this Court is invoked under U.S.C. 
1254 (1).



3

QUESTIONS PRESENTED FOR REVIEW

In Brown I and Brown II (347 U.S. 483. 98 L. Ed. 
873; 349 U.S. 294, 99 L. Ed 1083), this Court called for 
the cessation of the practice of segregating children solely 
on the basis of their race, and the establishment of sys­
tems whereby the admissions of children to public schools 
would be determined on a nonracial basis. In spelling out 
how those objectives could be accomplished, it authorized 
the revision of school districts and attendance areas, 
within the limits set by normal geographic school district­
ing, into compact units, to bring about a system not based 
on color distinctions. Consequently, when the Seventh, 
Tenth, Fourth and Sixth Circuit Courts of Appeals were 
required to pass on the constitutionality of desegregation 
plans which provided for the creation of attendance areas 
or zones fairly arrived at, bounded by natural, nonracial 
monuments which defined, in truth and in fact, true 
neighborhoods, and directed that all children living in an 
attendance area or zone, without exception, should attend 
the appropriate school in his or her attendance area or 
zone, each ruled in favor of the constitutionality of such 
plans, even though some of the attendance areas or zones 
were populated, as a result of housing patterns in the 
community, with people of one race. In addition, the 
Congress and the President of the United States, through 
the enactment of the Civil Rights Act of 1964, placed 
their approval on the holding of the Court of Appeals for 
the Seventh Circuit in Bell v. School City of Gary, Ind., 
324 F. 2d 209 (certiorari denied 377 U.S. 924, 12 L. Ed. 
2d 216) wherein the fact of de facto segregation which 
fortuitously resulted from housing patterns was held not 
to invalidate a school system developed on the neigh­
borhood school plan, honestly and conscientiously con­



4

structed with no intention or purpose to segregate the 
races.

Yet despite the fact that when this Court spoke in 
Brown of attendance areas, it said that such areas should 
be “compact units” constructed “within the limits set by 
normal geographic school districting,” and when it spoke 
in Brown of the type of school system which should be 
created, it said that such system should be “a system not 
based on color distinctions,” and when it spoke in Brown 
of admission policies which should be achieved, it said 
that admissions of children to public schools should be 
on “a nonracial basis,” and despite the fact that the thrust 
of Bell—“which was that if school districts were drawn 
without regard to race, . . . those districts are valid even 
if there is racial imbalance caused by discriminatory prac­
tices in housing”—was written into the Civil Rights Act 
of 1964, and despite the provisions of Sections 401, 407 
and 410 of the Civil Rights Act of 1964, wherein school 
districts were authorized to assign students according to 
their residences and courts were prohibited from shifting 
students in order to achieve racial balance, the Court of 
Appeals for the Fifth Circuit, relying on “ freedom-of- 
choice” cases, ruled in this case that petitioners’ zone lines 
should be gerrymandered in order to alleviate racial im­
balance resulting from housing patterns and that “ if there 
are still all-Negro schools, or only a small fraction of 
Negroes enrolled in white schools, . . . then, as a matter 
of law, the existing plan fails to meet constitutional stand­
ards as established in Green and its companion cases.”

The questions presented for review are:

1. Whether de facto segregation which occurs fortui­
tously because of housing patterns renders an otherwise 
acceptable desegregation plan unconstitutional.



5

2. Whether a school district can be required to gerry­
mander its attendance area or zone lines so as to include 
pupils of a certain race within an attendance area or zone, 
who would not be included therein if its attendance area 
or zone lines were drawn in a reasonable, rational and 
nonracial fashion.

3. Whether the courts, in view of the provisions of 
the Civil Rights Act of 1964, have authority to issue orders 
seeking to achieve a racial balance in neighborhood schools.

4. Whether the constitutionality of an attendance 
area or zone plan should be judged by the requirements 
of decisions dealing with “freedom-of-choice” plans.

THE CONSTITUTIONAL PROVISIONS AND 
STATUTES INVOLVED

This case involves the pertinent parts of the Four­
teenth Amendment to the Constitution of the United 
States—

“ . . . No State shall make or enforce any law 
which shall abridge the privileges or immunities of 
citizens of the United States; . . . nor deny to any 
person within its jurisdiction the equal protection of 
the laws.”

It also involves the pertinent parts of Section 401 of 
the Civil Rights Act of 1964 (42 U.S.C. §2QQ0c.)—

“ ‘Desegregation’ means the assignment of students 
to public schools and within such schools without re­
gard to their race, color, religion, or national origin, 
but ‘desegregation’ shall not mean the assignment of 
students to public schools in order to overcome racial 
imbalance.”

And the pertinent part of Section 407 of the Civil 
Rights Act of 1964 (42 U.S.C. §2000c-6.1—-



6

. . nothing herein shall empower any official 
or court of the United States to issue any order seeking 
to achieve a racial balance in any school by requiring 
the transportation of pupils or students from one school 
to another or one school district to another in order to 
achieve such racial balance,..

And Section 410 of the Civil Rights Act of 1964 (42 
U.S.C. §2000c-9.)—

“Nothing in this subchapter shall prohibit classi­
fication and assignment for reasons other than race, 
color, religion, or national origin.”

STATEMENT OF THE CASE

This is the first school desegregation case brought in 
the Northern District of Mississippi. It was begun April 
2,2, 1964, by the filing of a complaint, accompanied by a 
motion for a preliminary injunction, wherein respondents, 
on behalf of themselves and other Negro children similarly 
situated, demanded, among other things—

a) the end of all racial designations and consid­
erations in the budgets, expenditures, programs, pol­
icies and plans of the school district;

b) the establishment of school zones or attend­
ance areas on a nonracial basis; and

c) the assignment of pupils to the schools of the 
school district on a nonracial basis.

Jurisdiction was invoked pursuant to the provisions 
of 28 U.S.C. §1343 (3), 42 U.S.C. §1983, and the Fourteenth 
Amendment to the Constitution of the United States.

Petitioners did not question the right of respondents 
to such relief. To the contrary, in order to acquaint them­
selves with the requirements respecting such relief, they 
employed the writer as their attorney and sought his advice



7

about the requirements of Brown v. Board of Education, 
347 U.S. 483, 98 L. Ed. 873; 349 U.S. 294, 99 L. Ed. 1083, and 
the cases which had followed in its wake (R. 203). They 
were advised by him that Brown required the cessation 
of the practice of segregating children solely on the basis 
of race and the achievement of a system of determining 
admissions to the schools of the district on a nonracial basis 
(R. 203), and that in the pursuit of those objectives the 
Constitution and the cases required them to discard all 
considerations of race and to treat the pupils of the district 
as individuals—neither as Negroes nor whites (R. 203, 205).

On the basis of such advice, petitioners thereupon un­
dertook to provide respondents with the relief to which 
they were entitled under Broivn, and to do so in the manner 
spelled out by this court in Brown. That meant, of course, 
the choice of desegregating the schools of the district by 
the establishment of attendance areas or zones, rather than 
through the dubious but more popular “freedom-of-ehoice” 
method (R. 205).

Then, having chosen to establish attendance areas or 
zones, petitioners proceeded to the fixing of the boundary 
lines. That, of course, required a consideration of the way 
the district is laid out and the location of its schools (R. 
209, 210).

Clarksdale is a town of approximately 25,000 inhabi­
tants. It is bisected by the railroad tracks of the Illinois 
Central Railroad Company which run in an easterly and 
westerly direction from the northeastern to the south­
western corner of the town, dividing it into approximately 
equal northerly and southerly halves (R. 213, 214). Ac­
centuating the division of the residential areas of the town 
made by those railroad tracks is the fact that throughout 
a good portion of the town the lands adjacent to both the 
northerly and southerly side of those railroad tracks are



8

occupied by commercial and industrial establishments. Also 
adding to such division is the fact that those railroad 
tracks, located as they are in a town situated in the flat 
lands of the Yazoo-Mississippi Delta, are on an embank­
ment. With but one exception (which is where Sunflower 
Avenue crosses over the tracks), no one can cross those 
railroad tracks from one residential area to another except 
through an underpass. And throughout the length of those 
railroad tracks as they pass through Clarksdale—some three 
and a half miles—there are but four underpasses, with but 
one west of the Sunflower River and that one right next 
to the river. (See maps.)

There is a high school north of those railroad tracks 
which is adequate—but not more than adequate—for those 
high school pupils who live north of those railroad tracks 
(R. 219, 223).

There is a more than adequate high school south of 
those railroad tracks which is modern in every particular 
—much more so than the high school north of the tracks 
—for those high school pupils who live south of those rail­
road tracks (R. 219, 221).

There is a junior high school north of those railroad 
tracks which is also adequate, although obsolete, for those 
junior high school pupils who live north of those railroad 
tracks (R. 225).

There was a modern and adequate junior high school 
south of those railroad tracks for those junior high school 
pupils who live south of those railroad tracks (R. 225). 
Now there are two.

In the light of those facts, petitioners reached the ob­
vious conclusion that two high school sub-districts and two 
junior high school sub-districts should be established, 
with those railroad tracks as the dividing line between the 
sub-districts. fSeemaps.l



9

The southerly half of the town is bisected almost 
equally by the railroad tracks of the Illinois Central Rail­
road Company which run in a southerly direction from 
Clarksdale to Jackson and are referred to in the plans as 
running from Clarksdale to Mattson (R. 210). Those 
tracks, which create a southwest quadrant and a southeast 
quadrant, are not elevated and one can cross over at grade 
level at almost every intersection. About as many pupils 
live in the southwest quadrant as in the southeast quadrant.

There are two modern elementary schools in the south­
west quadrant of the town which can adequately take care 
of the pupils in that neighborhood (R. 227).

There are three elementary schools in the southeast 
quadrant of the town—one quite modem—which can ade­
quately provide for the pupils in that neighborhood (R. 
227).

Since those are the facts with reference to the terri­
tory and schools south of the east-west railroad tracks of 
the Illinois Central Railroad Company, petitioners reached 
the obvious conclusion that two elementary sub-districts 
should be established south of those east-west railroad 
tracks, with the north-south railroad tracks of the Illinois 
Central Railroad Company as the dividing line between 
them, and with each of those sub-districts divided into at­
tendance areas or zones. They then divided the south­
west quadrant into two attendance areas or zones, with an 
elementary school in each of those attendance areas or 
zones, and they divided the southeast quadrant into three 
attendance areas or zones, with an elementary school in 
each of those attendance areas or zones. (See maps.)

The northerly half of the town is bisected by the Sun­
flower River, but there are many more pupils in the 
northerly half of the town west of the river than east of the



10

river, due principally to the fact that the central business 
district of the town is in the northerly half of the town east 
of the river (R. 216, 228, 230). There are two bridges over 
the river in that section of the town (just as there are 
two bridges over the river in the southerly half of the 
town) which enable those elementary school pupils who 
live in the northeast quadrant of the town and north of 
First Street to pass over into the northwest quadrant of the 
town (which is entirely residential) without passing 
through the central business district. (See maps.)

There are three elementary schools in the northwest 
quadrant of the town (R. 228). The northeast quadrant 
had none, but petitioners’ plans committed them to try to 
have one built there in 1966 (R. 228).

With those facts before them, petitioners established 
two elementary sub-districts in the northerly half of the 
town with Sunflower River as the dividing line between 
them; divided the northwest quadrant of the town into 
three attendance areas or zones, with an elementary 
school located in each of them; and then provided that 
those elementary school pupils in the northeast quadrant 
of the town (where there was no elementary school) could 
—for the present—attend either Oakhurst Elementary 
School (the westernmost elementary school in the north­
west quadrant) or Eliza Clark School (the northernmost 
elementary school in the southeast quadrant) (R. 229, 231).

Thus, by utilizing the obvious and indisputable nat­
ural barriers which separate Clarksdale into separate and 
distinct neighborhoods as the boundary lines for the vari­
ous sub-districts, petitioners established sub-districts de­
manded by the topography of the town, the location and 
the capacity of the school buildings, the proximity of the 
pupils to the school buildings, and the requirements of 
good educational practices. They took the same action as



11

they would have taken had all of the pupils of the school 
district been white, or all Negro, or had every other resi­
dence in the town been occupied by whites and the re­
mainder by Negroes. They discriminated against no one.

None of the interior lines dividing the elementary 
school districts into separate attendance areas or zones 
have ever been seriously questioned with the exception of 
the north-south line between what was originally the 
E-l-B (Hall) zone and the E-l-C (Clark) zone, which was 
originally selected so as to ensure sufficient room at the 
Eliza Clark School for those children who lived closest to 
it and those children in the E-3-A zone who had to go 
there because of a lack of an elementary school in their 
home zone (R. 246). Because of its dubious validity as a 
dividing line between the two zones, it failed to win ap­
proval of the district court. Thereafter, to meet that prob­
lem, petitioners proposed what is favorably known as the 
“ Princeton Plan” among those active in mixing the races 
in the schools. Their proposal called for combining the two 
zones into one, to be designated E-l-B, with the two schools 
(Hall and Clark) to be administered by one set of adminis­
trative officials. Grades one and two would attend Eliza 
Clark and grades three, four, five and six would attend 
Myrtle Hall (R. 130).

After a hearing, petitioners’ revised plans were ap­
proved by the trial court and ordered into effect for the 
1966-67 school year (R. 148-149).

Racially, Clarksdale is almost evenly divided between 
Negroes and whites, and, of course, as in all other towns 
and cities where there is a bi-racial population, there is no 
even distribution of the races throughout the community. 
A majority of the whites live north of the east-west rail­
road tracks. Most of the Negroes live south of those 
tracks. But there are sizable areas where the races are



12

mixed. Sub-District S-l and Sub-District J-l both have 
a substantial amount of racial mixture in their population. 
In Zone E-2-B (Riverton), about half of the area is com­
posed of white residences and a considerable proportion 
of the population is white. In Zone E-2-A (Booker T. 
Washington), there are a few people who are not Negroes. 
The original Zone E-l-C (Eliza Clark) was populated en­
tirely by whites, but then it was combined with Zone 
E-l-B (Myrtle Hall) which is predominantly, but not 
entirely populated by Negroes. Zone E-l-A  (George 
Oliver) has a considerable number of whites among its 
predominantly Negro population. By adopting a “neigh­
borhood school” plan and requiring all pupils to attend 
the school in the zone wherein he or she lives—thus bas­
ing their admissions’ policy on residence and not on race—• 
and particularly by providing that every white pupil in 
a racially mixed neighborhood is assigned by virtue of 
his residence to a formerly all-black school, petitioners 
met all requirements of Brown and established, as much 
as it was within their power so to do, a desegregated 
school system which necessarily had to result in integrated 
schools if the school children of Clarksdale attend public 
schools.

To be specific, under petitioners’ desegregation plan—

The schools of the district were completely 
desegregated by the beginning of the 1967-1968 school 
year.

The segregation of pupils on the basis of race 
has been ended.

Compact attendance areas or zones, with reason­
able, rational and natural boundaries have been es­
tablished in order to achieve a system of determin­
ing admission to the schools of the district on a non- 
racial basis.



13

All racial designations have been abolished and 
all racial considerations have been abandoned.

All students desiring to take a course not offered 
at the school he or she attends but offered at another 
school are allowed to transfer to the latter school.

No transfers other than those referred to in the 
paragraph immediately preceding this paragraph are 
granted.

Petitioners are required to offer an identical cur­
riculum at all of the district’s elementary, junior high 
and senior high schools; to maintain substantially the 
same teacher-pupil ratios for each grade in all of the 
district’s schools; to maintain substantially the same 
level of expenditures of public funds per pupil at all 
of the district’s elementary schools, each of the dis­
trict’s junior high schools, and at each of the dis­
trict’s senior high schools.

Those requirements—which are a part of the court’s 
order of August 10, 1965—make certain that no school 
in the district will be inferior to any other school in the 
district. But lest this court be misled into believing what 
respondents say about what were formerly the Negro 
schools of the district, petitioners—with understandable 
pride—call attention to these facts:

Every school in the district is fully accredited, 
with every so-called Negro school graded AA. (See 
Answer to Interrogatory 3G in 2nd Set of Interroga­
tories.)

Every school in the district is a member of the 
Southern Association of Colleges and Schools. (See 
Answer to Interrogatory 3G in 2nd Set of Interroga­
tories.) But one other school system in Mississippi 
can make that claim.

Every Negro teacher in the system possesses a 
Class A or Class AA professional certificate (R. 186).



14

Teacher salaries, pursuant to a program adopted 
several years before the beginning of this action, have 
been equalized. (See Answer to Interrogatory 8D in 
2nd Set of Interrogatories.)

There is no real difference in the courses offered 
throughout the system and any course really desired 
by pupils in any of the schools is provided. (See 
Answer to Interrogatory 3F in 2nd Set of Interroga­
tories.)

There is no overcrowding in any of our schools.

The orders of the District Court approving petitioners’ 
plan and putting it into effect were made and entered 
on August 10, 1965, and December 10, 1965. Respondents’ 
appeal therefrom was argued before the Circuit Court of 
Appeals for the Fifth Circuit on May 25, 1966. On March 
6, 1969, more than 33 months thereafter, and largely on 
the basis of decisions in “ freedom-of-choice” cases, the 
Court of Appeals reversed the orders of the District 
Court by the order which petitioners pray this Court to 
review.

The questions presented for review are unquestion­
ably the most important questions in the field of school 
law.

REASONS FOR ALLOWANCE OF THE WRIT

There are many reasons why the decision below should 
be reviewed by this Court:

First, it is in conflict with the decisions of the 
Seventh, Tenth, Fourth and Sixth Circuit Courts of Ap­
peals on the same matter.

Second, it decides important questions of federal law 
which, if not decided by Brown, has not been, but should 
be, settled by this Court.



15

Third, it decides important questions of federal law 
in a way which, if those questions were decided by 
Brown, as we believe, is in conflict with the applicable 
decisions of this Court, particularly those in Brown.

Fourth, it violates the express provisions of the 
Civil Rights Act of 1964.

Fifth, it is based on an untenable and erroneous 
construction of the Fourteenth Amendment to the Con­
stitution of the United States.

Sixth, it does not accord with the applicable decisions 
of this Court and the other Circuit Courts of Appeals.

Seventh, it is erroneous and its probable results will 
be so mischievous as to make a “ shambles” of public 
education throughout the nation.

Brown Directed, As the Means of Achieving the 
Desegregation of the Schools of a District, the 
Creation of Compact Attendance Areas or Zones

This Court, in Brown, authorized the lower federal 
courts to consider—

“ . . . problems related to administration, arising 
from the physical condition of the school plant, the 
school transportation system, revision of school dis­
tricts and attendance areas into compact units to 
achieve a system of determining admission to the public 
schools on a nonracial basis.” (Emphasis added).

The sort of attendance areas which this court had in 
mind was indicated in one of the questions propounded 
for reargument as attendance areas resulting from

“normal geographic school districting.”

And those words have been almost unanimously con­
strued by the courts as authorization for attendance



16

areas or zones honestly and conscientiously constructed 
without regard for race, and as requiring the disapproval 
of attendance areas gerrymandered for racial purposes.

Respondents, whose contentions in this case are 
voiced by the NAACP, should have no quarrel with that 
construction of those words. For in the brief filed by 
the NAACP in Brown II, it was stated on page 12:

“The extent of the boundary alterations required, 
in the reformulation of school attendance areas on a 
nonracial basis, will vary. This is illustrated by the 
recent experience in the District of Columbia in re­
casting attendance boundaries on a wholly geograph­
ical basis. In the neighborhoods where there is little 
or no mixture of the races, and where school facilities 
have been fully utilized, it was found that the elimina­
tion of the racial factor did not work any material 
change in the territory served by each school.”  (Em­
phasis supplied).

Petitioners, in fashioning the plan now before this 
Court, have also so construed those words of this Court.

Brown Requires tlie Creation of School Systems 
Not Based on Color Distinctions

In Brown II, this Court directed school boards “to 
achieve a system of determining admission to the public 
schools on a nonracial basis.”

That the systems to be created pursuant to its direc­
tions should be free of racial considerations was made clear 
by this Court in one of the questions propounded for re­
argument when it described the sort of system it desired 
as—

“a system not based on color distinctions.”

The “separate but equal” doctrine repudiated in Brown 
was, as we all know, the legal basis for segregation. It



17

had its genesis in the majority opinion in Plessy v. Fergu­
son, 163 U.S. 537, 41 L. Ed. 256, wherein a Louisiana statute 
regulating the privileges of passengers on public carriers 
by race was held not to violate the fourteenth amendment. 
Its antithesis, i.e., the doctrine that the right of any citizen 
to enjoy the privileges of a public institution to which he 
is otherwise entitled cannot be made to depend on his race 
or color—which Brown established as the law of the land 
for all public school districts—was thus expressed in the 
dissenting opinion of Mr. Justice Harlan:

“ In respect of civil rights, common to all citizens, 
the Constitution of the United States does not, I think, 
permit any public authority to know the race of those 
entitled to be protected in the enjoyment of such rights. 
. . .  I deny that any legislative body or judicial 
tribunal may have regard to the race of citizens when 
the civil rights of those citizens are involved.

“These notable additions to the fundamental law 
(the 13th, 14th and 15th Amendments to the Constitu­
tion of the U.S.) were welcomed by the friends of 
liberty throughout the world. They removed the race 
line from our governmental systems.

“There is no caste here. 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 law regards man as man, 
and takes no account of his surroundings or of his color 
when his civil rights as guaranteed by the supreme law 
of the land are involved.”

When the transfer provisions incorporated into the de­
segregation plans of the public school systems of Knox­
ville, Tennessee, which were based solely on racial factors, 
came on for review in Goss v. Board of Education, 373 U.S. 
683, 10 L. Ed. 2d 632, this Court, in invalidating them, bor­



18

rowed from the language in one of its prior decisions to 
say—

“Racial classifications are ‘obviously irrelevant 
and invidious.’ ”

And then went on to capsulize a history of those of its 
decisions which demonstrated its animosity toward racial 
classifications:

. . The cases of this Court reflect a variey of in­
stances in which racial classifications have been held 
to be invalid, e.g., public parks and playgrounds, 
Watson v. Memphis, 373 U.S. 526, 10 L. Ed. 2d 529, 
83 S. Ct. 1314 (1963); trespass convictions, where 
local segregation ordinances pre-empt private choice, 
Peterson v. Greenville, 373 U.S. 244, 10 L. Ed. 2d 
323, 83 S. Ct. 1119 (1963); seating in courtrooms, 
Johnson v. Virginia, 373 U.S. 61, 10 L. Ed. 2d 195, 
83 S. Ct. 1053 (1963); restaurants in public buildings, 
Burton v. Wilmington Parking Authority, 365 U.S. 
715, 6 L. Ed. 2d 45, 81 S. Ct. 856 (1961); bus ter­
minals, Boynton v. Virginia, < 364 U.S. 454, 5 L. Ed. 
2d 206, 81 S. Ct. 182 (1960); public schools, Brown 
v. Board of Education, 347 U.S. 483, 98 L. Ed. 873, 
74 S. Ct. 686, 38 A.L.R. 2d 1180, supra; railroad din­
ing car facilities, Henderson v. United States, 339 U.S. 
816, 94 L. Ed. 1302, 70 S. Ct. 843 (1950); state enforce­
ment of restrictive covenants based on race, Shelley 
v. Kraemer, 334 U.S. 1, 92 L. Ed. 1161, 68 S. Ct. 836, 
3 A.L.R. 2d 441 (1948); labor unions acting as statu­
tory representatives of a craft, Steele v. Louisville & 
N, R. Co., 323 U.S. 192, 89 L. Ed. 173, 65 S. Ct. 226, 
supra; voting, Smith v. Allwright, 321 U.S. 649, 88 
L. Ed. 987, 64 S. Ct. 757, 151 A.L.R. 1110 (1944); and 
juries, Strauder v. West Virginia, 100 U.S. 303, 25 
L. Ed. 664 (1879).”

It followed with a gist of a decision by the Court 
of Appeals for the Fifth Circuit:



19

. . The recognition of race as an absolute 
criterion for granting transfers which operate only 
in the direction of schools in which the tranferee’s 
race is in the majority is no less unconstitutional 
than its use for original admission or subsequent as­
signment to public schools. See Boson v. Rippy, 285 
F. 2d 43 (C.A. 5th Cir.).” (Emphasis added).

In that case which this Court cited with approval, 
the Court of Appeals for the Fifth Circuit said:

. . 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. 
The dissenting view of the elder Mr. Justice Harlan 
in Plessy v. Ferguson, 1895, 163 U.S. 537, 559, 16 S. 
Ct. 1138, 1146, 41 L. Ed. 256, has been proved by 
history to express the true meaning of our Consti­
tution:

“ . . There is no caste here. 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 surroundings or of his 
color when his civil rights as guaranteed by the su­
preme law of the land are involved.’ ”

Many other decisions from this and other courts could 
be cited to the same effect, but one will suffice. It is 
that of Collins v. Walker, 328! F. 2d 100, wherein the Court 
of Appeals for the Fifth Circuit ruled that a grand jury 
upon which Negroes had been purposely included was as 
unconstitutional as one from which they had been pur­
posely excluded. The court said:



20

“A Negro is entitled to the equal protection of 
the laws, no less and no more. He stands equal be­
fore the law, and is viewed by the law as a person, 
not as a Negro.”

Hence, as the foregoing cases show, petitioners, in 
carrying out the mandate of Brown, which was to admit 
children to the schools of the district on a nonracial basis, 
were enjoined to disregard the face of every school child 
in the district, to look on every pupil simply as a pupil 
and not as a white pupil or a Negro pupil. They were ob­
liged to come up with the same segregation plan as they 
would have produced had all of the pupils of the district 
been white, or all colored, or had every other residence 
in the district been occupied by whites and every other 
been occupied by Negroes. As the record shows, that is 
exactly what they did.

De Facto Segregation—Which Occurs Fortuitously Be­
cause of Housing Patterns—According to Brown and the 
Holdings of the Seventh, Tenth, Fourth and Sixth Cir­
cuit Courts of Appeals, Does Not Make an Otherwise 

Acceptable Desegregation Plan Unconstitutional.

As we have pointed out, the directives of this Court 
for the construction of attendance areas or zones, as set 
forth in Brown, are—

First, the attendance areas or zones must be
“ compact units,” and

Second, the system thus created must be “a sys­
tem not based on color distinctions.”

Brown necessarily was to the effect that de facto 
segregation—that which occurs fortuitously because of 
housing patterns—does not make an otherwise acceptable 
desegregation plan unconstitutional. For if an area around
a school is inhabited solely by whites or blacks, the ere-



21

ation of the “compact units” required by Brown will nec­
essarily result in racially imbalanced attendance areas or 
zones. And only by the drawing of zone lines without 
regard to color can “a system not based on color consider­
ations” be devised. For only if attendance areas or zones 
are set up as they should be: through the drawing of rea­
sonable, rational and nonracial lines, without regard to the 
race of the pupils enclosed thereby, will admissions to the 
school of that zone be determined on a nonracial basis, 
i.e., the residence of the pupils. But if the boundaries of 
the attendance areas or zones must be gerrymandered 
so as to include certain pupils within the zone who would 
not be included therein if those boundary lines were 
drawn in a reasonable, rational and nonracial fashion, 
then the admission into the school of the zone of those 
pupils artificially brought into the zone will be based on 
racial considerations, in defiance of the command of 
Brown.

From the very beginning—in fact, in Brown after re­
mand to the trial court—it has been held that if attendance 
areas or zones are fairly arrived at, and all children living 
in each attendance area or zone are required to attend the 
school in that area or zone, no violation of the Fourteenth 
Amendment results even though the concentration of chil­
dren of one race in particular areas or zones results in 
racial imbalance in the schools. Brown v. Board of Educa­
tion of Topeka, 139 F. Supp. 468. To quote from the trial 
court’s opinion:

“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,



22

“If it is a fact, as we understand it is, with respect 
to Buchanan School that the district is inhabited en­
tirely by colored students, no violation of any constitu­
tional right results because they are compelled to at­
tend the school in the district in which they live.”

At least four Courts of Appeals have reached the same 
conclusion. The Seventh, in Bell v. School City of Gary, 
Ind., 324 F. 2d 209 (certiorari denied 377 U.S. 924, 12 L. Ed. 
2d 216), which first appeared in 213 F. Supp., at page 
819, was presented the question whether the schools of 
Gary, with some having all-white and some all-colored 
student bodies, met the requirements of Brown. After 
pointing out that the composition of those student bodies 
was the result of the concentration of the city’s Negroes 
in certain sections, the court added:

“ Plaintiffs argue that Brown v. Board of Educa­
tion, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873, pro­
claims that segregated public education is incompatible 
with the requirements of the Fourteenth Amendment 
in a school system maintained pursuant to state law. 
However, the holding in Brown was that the forced 
segregation of children in public schools solely on the 
basis of race, denied the children of the minority group 
the equal protection of the laws granted by the Four­
teenth Amendment.

“We approve . . . the statement in the District 
Court’s opinion, ‘Nevertheless, I have seen nothing in 
the many cases dealing with the segregation problem 
which leads me to believe that the law requires that 
a school system developed on the neighborhood school 
plan, honestly and conscientiously constructed with 
no intention or purpose to segregate the races, must 
be destroyed or abandoned because the resulting effect 
is to have a racial imbalance in certain schools where 
the district is populated almost entirely by Negroes 
or whites. * * ”



23

The Tenth Circuit Court of Appeals reached the same 
conclusion in Downs v. Board of Education of Kansas City, 
336 F. 2d 988 (certiorari denied 380 U.S, 914, 13 L. Ed. 2d 
800), which involved a broad attack on the administration 
of the Kansas City, Kansas, school system, and particularly 
on the action of the school board in defining school bound­
ary lines and requiring students to attend the school in 
the district in which they lived, with the result that some 
of the schools were all-white and some all-Negro. But, 
said the court:

“The neighborhood school system and other school 
systems, by which admission to the school is deter­
mined upon the basis of similar criteria such as res­
idence and aptitude, are in use in many parts of the 
country. . . .  In the second Brown case, supra, the 
Supreme Court appears to have recognized that school 
admissions may be based upon such factors as res­
idence. It said that in determining ‘good faith com­
pliance at the earliest practicable date,’ the lower 
courts might take into account problems arising from 
the * * revision of school districts and attendance 
areas into compact units to achieve a system of de­
termining admission to the public schools on a non- 
racial basis * * *.

“The drawing of school zone lines is a discretion­
ary function of a school board and will be reviewed 
only to determine whether the school board acted ar­
bitrarily.

“We conclude that the decisions in Brown and 
the many cases following it do not require a school 
board to destroy or abandon a school system developed 
on the neighborhood school plan, even though it re­
sults in a racial imbalance in the schools, where, as 
here, that school system has been honestly and con­
scientiously constructed with no intention or purpose 
to maintain or perpetuate segregation.”



24

The Fourth Circuit Court of Appeals reached the same 
conclusions in Gilliam v. School Board of the City of Hope- 
well, Va., 345 F. 2d 325, which involved a neighborhood 
school plan which inevitably resulted in some all-Negro 
schools because of “ the fact that the surrounding res­
idential areas are inhabited entirely by Negroes.” In re­
jecting the objections thereto, the court said:

“The plaintiffs object that the result of the geo­
graphic zoning is a large measure of de facto segrega­
tion. It is true that it is, but this is because of the 
residential segregation that exists. The Harry E. 
James School zone, for instance, bounded in part by 
Hopewell’s city limits, is otherwise largely surrounded 
by railroad classification yards and industrial tracks, 
with adjacent industrialized areas, which isolate the 
residential portions of that zone from all other res­
idential areas. De facto segregation could be avoided 
for those pupils only by transporting them to distant 
schools.

“The Constitution does not require the abandon­
ment of neighborhood schools and the transportation 
of pupils from one area to another solely for the pur­
pose of mixing the races in the schools.”

Deal v. Cincinnati Board of Education, 369 F. 2d 55, 
decided by the Sixth Circuit Court of Appeals on Decem­
ber 6, 1966, is also to the same effect. In it, the appel­
lants posed the question—

“Whether the neighborhood system of pupil place­
ment, 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.”

In responding, the court said:

“The neighborhood system is in wide use through­
out the nation and has been for many years the basis



25

of school administration. This is so because it is 
acknowledged to have several valuable aspects which 
are an aid to education, such as minimization of safety 
hazards to children in reaching school, economy of 
cost in reducing transportation needs, ease of pupil 
placement and administration through the use of 
neutral, easily determined standards, and better home- 
school communication. The Supreme Court in Brown 
recognized geographic districting as the normal 
method of pupil placement and did not foresee chang­
ing it as the result of relief to be granted in that 
case.

“Because of factors in the private housing market, 
disparities in job opportunities, and other outside in­
fluences (as well as positive free choice by some Ne­
groes), the imposition of the neighborhood concept 
on existing residential patterns in Cincinnati creates 
some schools which are predominantly or wholly of 
one race or another. Appellants insist that this situa­
tion, which they concede is not the case in every 
school in Cincinnati, presents the same separation and 
hence the same constitutional violation condemned 
in Brown. We do not accept this contention. The 
element of inequality in Brown was the unnecessary 
restriction on freedom of choice for the individual, 
based on the fortuitous, uncontrollable, arbitrary fac­
tor of his race. The evil inherent in such a classifica­
tion is that it fails to recognize the high value which 
our society places on individual worth and personal 
achievement. Instead, a racial characterization treats 
men in the mass and is unrelated to legitimate gov­
ernmental considerations. It fails to recognize each 
man as a unique member of society.

“ In the present case, the only limit on individual 
choice in education imposed by state action is the use 
of the neighborhood school plan. Can it be said that 
this limitation shares the arbitrary, invidious char­
acteristics of a racially restrictive system? We think



26

not. In this situation, while a particular child may 
be attending a school composed exclusively of Negro 
pupils, he and his parents know that he has the choice 
of attending a mixed school if they so desire, and they 
can move into the neighborhood district of such a 
school. This situation is far removed from Brown, 
where the Negro was condemned to separation, no 
matter what he as an individual might be or do. 
Here, if there are obstacles or restrictions imposed 
on the ability of a Negro to take advantage of all the 
choices offered by the school system, they stem from 
his individual economic plight, or result from private, 
not school, prejudice. We read Brown as prohibiting 
only enforced segregation.” (Emphasis supplied).

The Sixth Circuit Court of Appeals, on February 10th 
of this year, reaffirmed its holding in Deed. In Goss v. 
Board of Education, City of Knoxville, Tennessee, 406 
F. 2d 1183, it had this to say of a plan which required each 
student to be assigned to the school in the district in which 
he or she resides:

“Preliminarily answering question I, it will be 
sufficient to say that the fact that there are in Knox­
ville some schools which are attended exclusively or 
predominantly by Negroes does not by itself estab­
lish that the defendant Board of Education is violat­
ing the constitutional rights of the school children of 
Knoxville. Deal v. Cincinnati Bd. of Education, 369 
F. 2d 55 (6th Cir. 1966), cert, denied, 389 U.S. 847, 
88 S. Ct. 39, 19 L. Ed. 2d 114 (1967); Mapp. v. Bd. of 
Education, 373 F. 2d 75, 78 (6th Cir. 1967). Neither 
does the fact that the faculties of some of the schools 
are exclusively Negro prove, by itself, violation of 
Brown.”

And there are comparatively recent district court 
cases from the Fifth Circuit to the same effect. Griggs v. 
Cook, 272 F. Supp. 163 (N.D. Georgia, July 21, 1967), af­
firmed by the court in 384 F. 2d 705, clearly recognizes



2?

that there is nothing unconstitutional or illegal about 
fortuitous de facto segregation. We quote:

. . the sole question here is whether the loca­
tion of a neighborhood school, ipso facto, is uncon­
stitutional, because it will result in a predominantly 
all-negro enrollment. Short of racially motivated ac­
tion in the manipulation of attendance patterns or 
‘gerrymandering’ of school districts, and prior to Jef­
ferson County, the matter appeared to be at rest un­
der such cases as Bell v. School City of Gary, 213 
F. Supp. 819 (N.D. Ind. 1963), aff’d 324 F. 2d 209 
(7th Cir. 1963), cert. den. 377 U.S. 924, 84 S. Ct. 1223, 
12 L. Ed. 2d 216 (1964), and Briggs v. Elliott, 132 
F. Supp. 776 (E.D.S.C. 1955); Holland v. Board of 
Public Instruction, 258 F. 2d 730 (5th Cir. 1958); 
Deal v. Cincinnati Board of Education, 369 F. 2d 55 
(6th Cir. 1966).

“ The dilemma arises from the legal application 
of a decree directed at de jure situations upon facts 
which plaintiffs themselves assert are de facto prob­
lems. It is apparent to all that the difficulty here arises 
out of residential racial patterns in the City of At­
lanta. That such residential segregation actually pro­
duces educational segregation and renders the task 
of school integration extremely difficult is obvious. 
However, it is impossible for the court in this action to 
abolish the Atlanta housing problem by judicial solu­
tion of the school problem. Such result must await 
effective legislation and social maturity on the part 
of many parties not remotely concerned with this suit.

“ . . . What is decided is that the establishment 
of a school on nonracially motivated standards is not 
unconstitutional because it fortuitously results in all­
negro or all-white enrollment.”



28

In Moses v. Washington Parish School Board, 276 
F. Supp. 834 (E.D. La., Oct. 26, 1967), it was said:

“ . . . This Court’s considered position is that 
separation which occurs fortuitously is not ‘inherently’ 
unequal.

. . this Court cannot sanction a rule of law 
which places the legal burden on the state to correct 
the effects on one class of individuals of chance occur­
rences or of the free exercise by another group of their 
rights of free association.”

Broussard v. Houston Independent School District, 395 
F. 2d 817, decided May 30, 1968, by a three-judge court, 
rejected the contention that the construction of new schools 
should be halted because they might promote and per­
petuate de facto segregation in the schools.

“ The Constitution does not require such a result, 
and we entertain serious doubt that it would permit 
it. Racial imbalance in a particular school does not 
in itself, evidence a deprivation of constitutional rights. 
Zoning plans fairly arrived at have been consistently 
upheld, though racial imbalance might result.”

We live in a pluralistic society. Our communities are 
as diverse as the races and the ethnic groups which popu­
late them. All-white communities abound in sections out­
side the South. A few all-Negro communities can be found 
in the South. Towns made up of French-speaking citizens 
exist in Louisiana. Scandinavian groups compose com­
munities located in the Mid-West. Perhaps the same can 
be said about German and Italian groups. For this country 
has provided a refuge for those of every race and nation­
ality, with no restrictions on where they should settle. 
And since like attracts like, our various racial and ethnic



29

groups have inevitably moved into those communities 
which numbered among their inhabitants those of their 
own group and have shunned those communities which do 
not have those of their background. For instance, while 
Mississippi has, along with its many Anglo-Saxons, those 
of German and Italian stock, it has no Scandinavians or 
Poles. It has Chinese but not Japanese. And other il­
lustrations could be given.

Where communities have sizable racial or ethnic 
groups, those groups tend to congregate in identifiable 
sections of their community. In parts of Boston, none 
but Irish can be found. The same can be said of New 
York, which also includes sections composed exclusively 
of Italians. In San Francisco, Chinese have their own 
part of the city. Those are but examples of a phenomena 
well known to those familiar with American communities. 
Other such examples can easily be given.

Negroes have the same tendencies as the white groups. 
Where they form a sizable proportion of the population, 
whether it be in the South, North, East or West, they nat­
urally, and of their own volition, create their own neigh­
borhood. It can be safely said that there is not a com­
munity in this country where Negroes, if there are enough 
of them, do not congregate into a particular section of their 
community. The instincts which motivate their white 
counterparts to do so, also impel Negroes to live together.

Such de facto segregation as exists in Clarksdale is, 
of course, the fortuitous result of the housing patterns in 
the community. But those housing patterns did not result 
from any state law or local ordinance, as did the housing 
patterns in the community under consideration in Holland 
v. Board of Public Institutions, 258 F. 2d 730. The fact of 
the matter is that they are the result of the natural desires 
of people to live near those of their own kind.



30

There is some de facto segregation in Clarksdale, just 
as there is in every community in this nation where there 
is a sizable proportion of Negro population. Given the 
housing patterns which prevail in towns and cities through­
out the country, any other result would be inconceivable. 
But the de facto segregation found in Clarksdale is 
fortuitous de facto segregation and not the result of any 
law or ordinance. It is, in every essential respect, the same 
type of de facto segregation as prevails in Gary, Indiana, 
which was before the court in Bell; as prevails in Kansas 
City, Missouri, which was before the court in Downs; as 
prevails in Hopewell, Virginia, which was before the court 
in Gilliam; as prevails in Cincinnati, Ohio, which was be­
fore the court in Deal; as prevails in Knoxville, Tennes­
see, which was before the court in Goss v. Board of Edu­
cation, City of Knoxville, Tennessee, 406 F. 2d 1183; as 
prevails in Houston, Texas, which was before the court in 
Broussard v. Houston Independent School District, 262 F. 
Supp. 266; as prevails in Atlanta, Georgia, which was be­
fore the court in Griggs v. Cook, 272 F. Supp. 163, 384 F. 
2d 705; as prevails in Washington Parish, Louisiana, which 
was before the court in Moses v. Washington Parish School 
Board, 276 F. Supp. 834; and as prevails in numerous other 
communities whose plans have been validated by the 
courts even though they encompassed areas where de 
facto segregation prevailed.

Where such de facto segregation exists, and a district’s 
zones are set up as they should be: through the drawing
of reasonable, rational and nonracial lines, without regard 
to the race of the pupils enclosed thereby, there will be, of 
necessity, some all-black and some all-white schools. 
There is no escape from such an inevitable result, except 
the racist solution advanced by the court below. But 
neither race, nor religion, should be acknowledged as con­
stituting in any way a valid condition or measure, in this



31

nation, of a person’s access to public facilities, positions or 
activities of any sort. Those who would make it such ought 
to be rejected with finality because, in racial matters, en­
during progress and justice will come about only under 
rules of law which unswervingly treat all men as equal 
before the law, regardless of race, color or national origin.

The Civil Rights Act of 1964 Validates Bona Fide
Neighborhood School Lines and Prohibits Court
Orders Intended to Alleviate Racial Imbalance in

Neighborhood Schools

As we have pointed out, Bell v. School City of Gary 
holds that de facto segregation which occurs fortuitously 
because of housing patterns is not unconstitutional. Now 
we point out that the gist of that holding was incorporated 
into the Civil Rights Act of 1964. This is clear from the 
language of Senator Humphrey, floor manager of the bill, 
as quoted in Jefferson 1 (372 F. 2d 836):

“ Senator Humphrey explained:

“ ‘Judge Beamer’s opinion in the Gary case is sig­
nificant in this connection. In discussing this case, 
as we did many times, it was decided to write the 
thrust of the court’s opinion into the proposed sub­
stitute.’ (Emphasis added).

“ ‘The bill does not attempt to integrate the schools, 
but it does attempt to eliminate segregation in the 
schools. The natural factors, such as density of 
population, and the distance that students would 
have to travel are considered legitimate means 
to determine the validity of a school district, if 
the school districts are not gerrymandered, and 
in effect deliberately segregated. The fact that there 
is a racial imbalance per se is not something which 
is unconstitutional. That is why we have attempted 
to clarify it with the language of Section 4.’ (Em­
phasis added).”



32

The pertinent provisions of the Civil Rights Act of 
1964 are, of course, Sections 401, 407 and 410, which read 
as follows:

“ Sec. 401. As used in this title—

“ (b) ‘Desegregation’ means the assignment of 
students to public schools and within such schools 
without regard to their race, color, religion, or national 
origin, but ‘desegregation’ shall not mean the assign­
ment of students to public schools in order to over­
come racial imbalance.

“ Sec. 407 .. .

“ . . . nothing herein shall empower any official 
or court of the United States to issue any orders seek­
ing to achieve a racial balance in any school by re­
quiring the transportation of pupils or students from 
one school to another or one school district to another 
in order to achieve such racial balance.

“Sec, 410.

“Nothing in this title shall prohibit classification 
and assignment for reasons other than race, color, 
religion, or national origin.”

In defining the latter part of Section 401—

“but desegregation shall not mean the assign­
ment of students to public schools in order to over­
come racial imbalance,”

the Court of Appeals for the Fifth Circuit, in Jefferson 1, 
said:

“The negative portion, starting with ‘but’, ex­
cludes assignment to overcome racial imbalance, that 
is acts to overcome de facto segregation.”



33

In support of its conclusion that the prohibition in 
Section 407 against assignment of students to overcome 
racial imbalance was related solely to racial imbalance 
resulting from de facto segregation, the Court, in Jefferson 
1, went on to say this about the undefined term “racial 
imbalance” :

“ It is clear however from the hearings and de­
bates that Congress equated the term, as do com­
mentators, with ‘de facto segregation’ that is, non- 
racially motivated segregation in a school system 
based on a single neighborhood school for all children 
in a definable area.”

In recognition of the fact that “classification and as­
signment for reasons other than race, color, religion, or 
national origin,” as used in Section 410, includes classi­
fication and assignment on the basis of residence, the 
Court, in Jefferson 1, said:

“The thrust of the Gary case (Bell) was that if 
school districts were drawn without regard to race, but 
rather on the basis of such factors as density of popu­
lation, travel distances, safety of the children, costs of 
operating the school system, and convenience to par­
ents and children, those districts are valid even if there 
is a racial imbalance caused by discriminatory prac­
tices in housing.”
When the Court of Appeals for the Fifth Circuit de­

cided in Jefferson 1, as it had to do, that the thrust of Bell 
had been written into the Civil Rights Act of 1964 and that 
the Act applies, at the very least, to those school districts 
whose zone lines are drawn without regard to race, but 
rather on the basis of such factors as density of popula­
tion, travel distances, safety of the children, cost of operat­
ing the school system, and convenience to parents and chil­
dren, it decided, beyond all question, that the Act applies 
to the Clarksdale Municipal Separate School District. For



34

petitioners’ zones are set up exactly as were the zones in 
Bell.

It follows therefore, from the decision in Jefferson 1 
and the express words of the Civil Rights Act of 1964, that 
petitioners’ attendance areas or zones are valid even if 
there is a racial imbalance therein and that the court was 
without authority to issue any order designed to achieve 
a racial balance in petitioners’ schools.

The Constitutionality of an Attendance Area Desegre­
gation Plan is to Be Judged by the Decisions in Those 
Cases Dealing with Such Plans. It Is Not to Be Judged 
by Decisions Dealing with “Freedom-of-Choice” Plans, 

for Those Decisions Are Based on Considerations 
Foreign to Attendance Area Plans.

The plan before the court is unique in that no other 
school district in the Fifth Circuit has initially proposed to 
do exactly that which is required by Brown, to-wit: to
abolish its dual zone lines, to revise its attendance areas 
into compact units, and to establish a system of determining 
admissions to its schools on a nonracial basis, without in­
cluding in its proposal an escape provision whereby a white 
pupil in a predominantly black neighborhood could avoid 
the school for that zone and attend a school designated for 
a different zone. As Judge Tuttle put it in Davis v. Board 
of School Commissioners of Mobile County, 364 F. 2d 896—

“As every member of this court knows, there are 
neighborhoods in the South and in every city of the 
South which contain both Negro and white people. So 
far as has come to the attention of this court, no Board 
of Education has yet suggested that every child be re­
quired to attend his ‘neighborhood school’ if the neigh­
borhood school is a Negro school. Every board of ed­
ucation has claimed the right to assign every white 
child to a school other than the neighborhood school 
under such circumstances.”



35

Judge Tuttle simply didn’t know about the plan now before 
this court, which was then before another panel of his 
court.

In the plan before the court every pupil is required 
to attend the school in his or her zone with the exception 
that students desiring to take a course not offered at the 
school he or she attends but offered at another school are 
allowed to transfer to the latter school. That exception is 
nullified for all practical purposes by the requirement that 
identical curriculum be offered at all of the district s ele­
mentary, junior high and senior high schools. During the 
five years the plan has been in operation, not a single white 
pupil has taken advantage of that exception, nor been ex­
cused from his or her initial assignment under the plan. 
In sum, the plan before the court has no transfer provi­
sions such as that which led this court to equate the plan 
in Monroe v. Board of Commissioners of the City of Jack-, 
son, Tennessee, 391 U.S. 450, 20 L. Ed. 2d 733, with a free- 
dom-of-choice” plan, and no gimmick such as those re­
ferred to by Judge Tuttle in Davis.

Since the plan before the court is a bona fide attend­
ance area plan, and uncontaminated with “ freedom-of- 
choice” provisions, it should, we submit, be judged by the 
decisions in those cases dealing with attendance area plans. 
In particular, it should be judged by what this court said 
in Brown, for what this court had in mind when deciding 
Brown was the organization and operation of school dis­
tricts by the establishment of attendance areas, with single 
rather than dual lines, and with admissions determined by 
the residences of the pupils.

Of course, primarily Brown called for the achievement 
of a system of determining admissions to the public schools 
on a nonracial basis. But it contemplated that such result 
would be obtained through revision of school districts and



36

attendance areas into compact units. For it directed the 
lower courts to consider, in determining whether a school 
district’s efforts were consistent with good faith compli­
ance at the earliest possible date,

“problems related to administration, arising from the 
physical condition of the school plant, the school trans­
portation 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 nonracial basis.”  (Emphasis supplied).

At the time Brown was decided, pupils everywhere 
were required to attend their neighborhood school. Hence 
it is certain that what Brown contemplated was the elim­
ination of dual zone lines and the drawing of single zone 
lines around each school, with the new attendance areas 
to be the “compact units” which result from “normal geo­
graphic school districting,” coupled with the requirement 
that every pupil be required to attend that school located 
in the zone of his residence. The resulting school systems 
would not be based on “ color distinctions.” Districts so 
organized and operated would have a system of deter­
mining admissions on a nonracial basis.

What we have just said was better said in Moses v. 
Washington Parish School Board, 276 F. Supp. 834:

“ . . . One need not go back more than three or four 
years in time to find the school systems in the South 
operating, along with those in the rest of the nation, 
smoothly and efficiently. In the days before the im­
pact of the Brown decision began to be felt, pupils were 
assigned to the school (corresponding, of course, to the 
color of the pupils’ skin) nearest their homes; once 
the school zones and maps had been drawn up, nothing 
remained to be done but to inform the community of 
the structure of the zone boundaries. Upon the rendi­
tion of the Brown decision and the issuance of the ulti­
matum to abolish the segregated dual zones in each



37

school district, it was natural for the citizenry to ex­
pect to see the old coterminous dual zones abolished, 
and single independent zones drawn up around each 
school in each district.”
After Brown was decided, most Southern school dis­

tricts took the first step required by that decision, i.e,, the 
elimination of their dual zone lines. But practically none 
of them took the second step required, i.e., the establish­
ment of single zone lines around each school, so as to cre­
ate new compact units as attendance centers. Instead, the 
idea which culminated in the “ freedom-of-choice plan ap­
peared on the scene and was embraced as an excuse for not 
meeting the second requirement of Brown.

Beyond peradventure, the “ freedom-of-choice” 
method of operating schools was not that called for by 
Brown. Equally clear was the fact that “ freedom-of- 
choice” is a “haphazard” way of administering a school 
system. Singleton v. Jackson Municipal Separate School 
District, 355 F. 2d 865. “When attempted on a permanent 
basis,” according to Moses, “ the system becomes so un­
workable as to be ridiculous. But its real defect, as 
viewed by the courts, was that it transferred the burden 
of achieving a system of admissions to public schools on a 
nonracial basis from the school boards, where the courts 
felt it belonged, to the parents of black pupils, and that 
the parents of black pupils, in the opinion of the courts, 
were so conditioned by their heritage that they were in­
capable of exercising their choices in a free and unfettered 
manner. Hence the usefulness of “ freedom-of-choice” 
plans had to be limited to the interim period required for 
the transition to a school system impartially zoned on a 
geographic and nondiscriminatory basis. In other words, 
school districts were simply given the privilege of op­
erating under “ freedom-of-choice” plans for a limited pe­



38

riod. They never had the right so to operate their schools. 
To quote from Moses again:

“Obviously there is no constitutional ‘right’ for 
any student to attend the public school of his own 
choosing. But the extension of the privilege of choos­
ing one’s school, far from being a ‘right’ of the 
students, is not even consistent with sound school 
administration.”

The question presented in cases involving “ freedom- 
of-choice” plans was whether, and on what conditions, the 
defendant district would be permitted to operate its schools 
by a method designed to avoid the zoning requirements 
of Brown. Such question is, of course, vastly different 
from the question of whether a district organized and op­
erating under an attendance area plan has defined its 
attendance areas or zones on the nonracial basis called 
for by Brown. Thus cases such as Green v. County School 
Board of New Kent County, Va., 391 U.S. 430, 20 L. Ed. 2d 
716, and United States v. Jefferson County Board of Educa­
tion, 372 F. 2d 836; 380 F. 2d 385, both “ freedom-of- 
choice” cases, and cases of that ilk, have no bearing on the 
question of the constitutionality of the plan now before 
this court.

In Green, according to this court—

“The question for decision (was) whether, under 
all the circumstances here, respondent School Board’s 
adoption of a ‘freedom-of-choice’ plan which allows 
a pupil to choose his own public school constitutes 
adequate compliance with the Board’s responsibility 
‘to achieve a system of determining admissions to the 
public schools on a nonracial basis. . . .’ ”

That the answer to that question did not depend on 
facts which are present in zone cases such as this, is amply 
shown by this paragraph from the court’s opinion:



39

“ There is no residential segregation in the county; 
persons of both races reside throughout. The school 
system has only two schools, the New Kent school on 
the east side of the county and the George W. Watkins 
school on the west side. . . . The School Board operates 
one white combined elementary and high school (New 
Kent), and one Negro combined elementary and high 
school (George W. Watkins). There are no attend­
ance zones. Each school serves the entire county.”

The first paragraph in Raney v. Board of Education, 
391 U.S. 443, 20 L. Ed. 2d 727, shows that it is subject 
to the same comments as were applied to Green:

“This case presents the question of the adequacy 
of a ‘freedom-of-choice’ plan as compliance with Brown 
v. Board of Education, 349 U.S. 294, 99 L. Ed. 1083, 75 
S. Ct. 753 (Brown II), a question also considered today 
in Green v. County School Board of New Kent County, 
391 U.S. 430, 20 L. Ed. 2d 716, 88 S. Ct. 1689. The fac­
tual setting is very similar to that in Green.”

In Monroe v. Board of Commissioners, 391 U.S. 450, 
20 L. Ed. 2d 733, the question, according to the court, was 
similar to the question decided in Green and Raney in that 
the “ free transfer” provision in the plan then before the 
court, which operated as a device to allow resegregation 
of the races to the extent desegregation would be achieved 
by geographically drawn zones, converted the plan into 
what was essentially a “ freedom-of-choice” plan, subject 
to the same tests as were applied in Green v. Raney.

Jefferson, which the court below leaned on so heavily, 
was concerned solely with “ freedom-of-choice” plans, a 
fact that is emphasized by the fact that this case was ar­
gued in the court below in conjunction with the Jefferson 
cases and yet was not covered by the decision therein. 
In addition, it specifically stated that it was not concerned 
with cases such as this case.



40

“We leave the problem of de facto segregation in 
a unitary system to solution in appropriate cases by 
the appropriate courts.”

And it further distinguished the “ freedom-of-choiee” cases 
it was dealing with and cases such as this case by holding 
that Sections 401, 407 and 410 of the Civil Rights Act of 
1964 do not apply to “ freedom-of-choice” plans but do ap­
ply to plans such as the plan now before this court.

Because the question before the courts in “ freedom- 
of-choice” cases was vastly different from the question 
which was before the court below in this case, and because 
the facts in “ freedom-of-choice” cases bear no relationship 
to the facts in this case, we submit that the constitutional­
ity of petitioners’ plan should not have been judged in the 
light of language found in “freedom-of-choice” cases.

CONCLUSION

We submit that the decision below, for the several rea­
sons heretofore assigned, should be reviewed by this Court. 
In particular, we submit that the fundamental question 
presented herein, i.e., whether the Fourteenth Amendment 
to the Constitution of the United States requires a school 
district, in order to bring about racial balance in its schools, 
to so gerrymander its zone lines as to include pupils of a 
certain race within an attendance area or zone who would 
not be included therein if its attendance area or zone lines 
were drawn in a reasonable, rational and nonracial fash­
ion, should be decided by this Court. It is probably the 
most important question now troubling the people of this 
nation, especially now that so many school districts are 
being required to abandon “ freedom-of-choice” and to cre­
ate attendance areas or zones.

A permanent and universal choice must be made be­
tween the mutually exclusive goals of color-consciousness



41

and color-blindness. The policy of legal segregation, of 
“separate but equal” facilities for the races, was based on 
color-consciousness, on classification by race. Now that 
it has been outlawed by Brown, it must be permanently 
replaced by an endui’ing and universal principle of even- 
handed fairness. The principle which meets that require­
ment, which squares with the correct interpretation of the 
Fourteenth Amendment to the Constitution of the United 
States, is that suggested by Mr. Justice Harlan, in his dis­
sent in Plessy v. Ferguson, that “our Constitution is 
color-blind and neither knows nor tolerates classes among 
citizens.”

Respectfully submitted,

Semmes Luckett 
121 Yazoo Avenue 
Clarksdale, Mississippi 38614 

Hardy Lott
105 West Market Street 
Greenwood, Mississippi 38930 

Counsel for Petitioners



42

CERTIFICATE OF SERVICE

The undersigned counsel for petitioners hereby certi­
fies that true copies of the foregoing petition have been 
served on counsel for respondents, by depositing the same 
in a United States Post Office, with first class postage 
prepaid, addressed to Hon. Melvyn R. Leventhal, Hon. 
Reuben V. Anderson, and Hon. Fred L. Banks, Jr., at their 
post office address: 538 1/2 North Farish Street, Jackson,
Mississippi, 39202, and Hon. Jack Greenberg, Hon. Jona­
than Shapiro, and Hon. Norman Chachkin, at their post 
office address: Suite 2030, 10 Columbus Circle, New York, 
New York, 10019.

Dated: August 27, 1969.

Hardy Lott 
Counsel for Petitioners



APPENDIX



A1

IN THE

U n i t e d  S t a t e s  C o u r t  o f  A p p e a l s
FOR THE FIFTH CIRCUIT

No. 23255

REBECCA E. HENRY, ET AL., 
Appellants,

VERSUS
THE CLARKSDALE MUNICIPAL SEPARATE 

SCHOOL DISTRICT, ET A L , 
Appellees.

Appeal from the United States District Court for the 
Northern District of Mississippi.

(March 6, 1969)

Before WISDOM and THORNBERRY, Circuit Judges, 
and COX,* District Judge.

WISDOM, Circuit Judge: As this case demonstrates, 
a school board’s adoption of a geographic zoning system 
instead of a “ freedom of choice” system is not a guarantee 
of effective desegregation. “Geographic zoning, like any 
other attendance plan adopted by a school board in this 
Circuit, is acceptable only if it tends to disestablish rather

*W illiam  H arold  C ox, U nited States D istrict Judge fo r  the 
Southern  D istrict o f  M ississippi, sitting b y  designation.



A2

than reinforce the dual system of segregated schools.” 
United States v. Greenwood Municipal Separate School
District, 5 Cir. 1968, ....... F. 2d ........  In Davis v. Board
of School Commissioners of Mobile County, 5 Cir. 1968, 
393 F.2d 690, we recognized that in many instances geo­
graphic zoning offers “administrative improvement and 
greater desegregation” but required the Board to make a 
new effort to draw zone lines “ on a non-racial basis so 
that its plan would promote desegregation rather than per­
petuate segregation” .

Here the district court found that the school board 
acted in good faith. But good faith does not excuse a 
board’s non-compliance with its affirmative duty to liqui­
date the dual system. Good faith is relevant only as a 
necessary ingredient of an acceptable desegregation plan.

In 1964, under court order, the Clarksdale Municipal 
Separate School District of Mississippi redrew its attend­
ance zones and adopted a geographic zoning system as 
the basis for desegregating its schools. In the fall of that 
year, not a single child in Clarksdale was enrolled in any 
school with members of the other race. Again, for the 
spring semester of the 1964-65 year, not a single child was 
enrolled in a school attended by children of the other race. 
When this case was tried in April 1965, 2800 Negro pupils 
attended the five “Negro” schools in Clarksdale and 2100 
white children attended white schools along with two Ne­
gro girls who had transferred to the white high school to 
obtain a course, Latin, not available in the Negro high 
school.

In Jefferson this Court considered freedom of choice 
plans in operation in Jackson, Biloxi, and Leake County, 
Mississippi, and in other parish and county school districts 
throughout this circuit. United States v. Jefferson County



A3

Board of Education, 5 Cir. 1966, 372 F.2d 847, a ffd  en 
banc, 380 F.2d 385, cert, denied sub nom. Caddo Parish 
School Board v. United States, 1967, 389 U.S. 840, 88 S.Ct. 
72, 19 L.Ed.2d 103. Much of what we said in our opinion 
in that case applies to any school desegregation plan. We 
held that school officials have an “ affirmative duty” to 
reorganize their schools into “an integrated, unitary school 
system in which there are no Negro schools and no white 
schools—just schools” . 380 F.2d at 389. We recognize 
that freedom-of-choice plans have “ serious shortcomings” 
and suggested a detailed order to attempt to overcome 
some of the shortcomings. We pointed out, “ The only 
school desegregation plan that meets constitutional stand­
ards is one that works.”  (Original emphasis.) 372 F.2d at 
847. Recently, the Supreme Court has underscored a 
school board’s “ affirmative duty” today “to come forward 
with a plan that promises realistically to work, and prom­
ises realistically to work now” . (Original emphasis.) Green 
v. County School Board of New Kent County, Virginia, 
1968, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716. In Green 
the Court found that the freedom of choice plan used in 
New Kent County was ineffective and suggested alterna­
tives, including zoning, that might bring about a “ speedier 
and more effective conversion [of the dual system] to a 
unitary, nonracial school system” .1 1

1. T he cou rt ca re fu lly  stated, “ A lth ou gh  the general e x ­
perien ce  under ‘freedom  o f ch o ice ’ to  date has been  such as to in ­
d icate  its ineffectiven ess as a too l o f  desegregation , there m ay w ell 
be  instances in w h ich  it can serve as an e ffe ctiv e  device . W h ere it 
o ffe rs  real prom ise o f  a id ing a desegregation  program  to  e ffe c ­
tuate con version  o f  a sta te -im posed  dual system  to  a unitary, 
n onracia l system  th ere m ight be n o  ob jection  to a llow in g  such a 
d ev ice  to p ro v e  itse lf in  operation .”  G reen  v . S ch oo l B oard  o f
N ew  K en t C ounty, 391 U .S. at _____  In areas w h ere residential
segregation  is substantial, freedom  o f  ch oice  o r  fre e  transfer 
plans m ay aid desegregation .



A4

A geographic system of allocating students to schools 
is a pragmatic solution that avoids the “haphazard”2 3 ele­
ment in administering a freedom of choice plan based on 
the individual pupil’s considered or perhaps capricious se­
lection of a school to attend. A district court in Louisi­
ana recently observed:

If this Court must pick a method of assigning students 
to schools within a particular school district, barring 
very unusual circumstances, we could imagine no 
method more inappropriate, more unreasonable, more 
needlessly wasteful in every respect, than the so- 
called “ free-choice” system. Moses v. Washington 
Parish School Board, E.D. La. 1968,.......F. Supp. .........

Historically, a compulsory attendance zone system al­
most invariably prevailed in the school districts in this 
circuit8—until Brown4 ordered an end to school segrega­
tion. But an attendance zone plan also may fail to work. 
When a particular plan does not succeed in converting a 
dual system into a unitary system, the school board must 
find ways for the plan to succeed.

The plaintiffs contend that the attendance zone plan 
in Clarksdale extends promises it cannot fulfill. They 
allege also that the zones were drawn for the purpose and 
have had the effect of maintaining the racial identity of each 
formerly white and formerly Negro school.

The plaintiffs raised additional issues in the district 
court. One concerned the speed of desegregation to take

2. See S ingleton  v . Jackson  M u nicipal Separate S ch oo l D is­
trict, 5 Cir. 1966, 355 F .2d 865. 871.

3. See M oses v . W ashington  P arish  S ch ool B oard, E.D. La.
1967, ____  F .Supp. --------  See also M eador, T h e C onstitution  and
the A ssignm ent o f  Pupils to  P u b lic  Schools, 45 V a. L. R ev. 517 
(1 9 5 9 ).

4. B row n  v. B oard  o f  E ducation  (Brown  I ) ,  1954, 347 U.S. 
483, 74 S.Ct. 686, 98 L.Ed. 873; B row n  II, 1955, 349 U.S. 294, 
75 S.Ct. 753, 99 L.Ed. 1083.



A5

place in Clarksdale. This issue, of course, is settled: The
time is now. As Green puts it, “delays are no longer 
tolerable . . . [and] a plan that at this late date fails to 
provide meaningful assurance of prompt and effective dis­
establishment of a dual system is also intolerable” . 391
U.S. at ____  Other issues in the district court involved
the qualitative differences between “white” schools and 
“Negro” schools.5 6 Jefferson tried to put an end to such 
differences by requiring integration “ lock, stock, and bar­
rel” : faculty and staff (part VIII), services, facilities, ex­
tracurricular activities and programs (part V ), and school 
equalization (part V I).B Similarly, Green requires “ dis­
mantling” of the state-imposed dual system “root and 
branch” .

The issue on this appeal centers on the geographic 
zones established by the school board. The record clearly 
establishes that all pupils living in each zone are required 
to attend the school in that zone. As we recognized in 
Jefferson, however, such factors as residential patterns, 
the mushrooming of private schools, and a minority-to- 
majority transfer policy may bring about a school at­
tended exclusively or almost exclusively by students of 
one race, although the zone originally etched out to sup­
ply students for that school may have been racially mixed.

5. T he order o f  the district cou rt corrected  a num ber o f 
deficien cies in  the adm inistration  o f schools b y  p rov id in g  for  
equalization  o f  cu rricu la , teach er-sa lary  scales, teach er-p u p il 
ratios, and o f per pu pil expenditures fo r  all schools o f  each leve l 
(e lem en tary , ju n ior  high, and h igh  sch o o ls ) . U nited States v.
B essem er B oard  o f Education , 5 Cir. 1968, ____  F .2d _____, [N os.
25809, 25810, 25811, M ay  1968]; M oses v . W ashington  Parish,
E.D. La. 1968, ____  F .Supp. _____, n. 17; H E W  G uidelines § 9.
T he cou rt fou n d  m erit in the appellants ’ com pla in t that teachers 
w ere  segregated but h eld  that, because o f teacher contracts h a v ­
ing been  signed fo r  the 1965-66 year, fa cu lty  desegregation  should  
b e  tem porarily  deferred .

6. See especia lly  U nited States v . B essem er B oard  o f  E duca­
tion, 5 Cir. 1968, ____  F.2d ____  [N os. 24809, 25810, 25811, June
3 ].



Clarksdale is bisected from the northeast to the south­
west by a main line of the Illinois Central Railroad track. 
Commercial and industrial establishments lie adjacent to 
both the northern and southern side of the railroad tracks, 
accentuating the division of the residential areas of the 
town. Elevated tracks on an embankment add to this di­
vision.

Clarksdale is also bisected by the Sunflower River 
running north-south through the city. The southern half 
of the city is divided by another line of railroad tracks 
running north-south, which is built on the same grade 
as the surrounding lands. There are four underpasses 
and one grade crossing transversing the embanked railroad 
tracks. Only one of these underpasses is west of the Sun­
flower River, and it is next to the river. The central business 
district is in the northern half of Clarksdale, and east of the 
Sunflower River. Two bridges span the river in both the 
northern and southern sections of the community.

Traditionally, most Negro residents in the city have 
lived south of the Illinois Central tracks, while the great 
majority of the white residents have lived north of the 
tracks. Under the school board’s proposed attendance- 
zone plan, no school child will cross those tracks. The 
result was obvious from the beginning: the zoning could 
produce only token desegregation.

The plaintiffs attempted to prove that the purpose 
behind the board’s drawing of the present zone lines is to 
perpetuate a dual, segregated school system in Clarksdale.7

7. A  zon ing ord inance, enacted in  Ju ly  1964 b y  the C ity  o f 
C larksdale, d e -a n n ex ed  the p rop erty  on  East S econd  Street w h ere 
the N egroes liv ed ; the C ity  and C oun ty  purchased  and dem olished  
th e  hom es located  near the C oun ty  Jail; and the C ity  purchased  
and dem olish ed  the hom es in  T u xed o  Park, a fter annexing a d jo in ­
ing territories conta in ing w hite  residences. T he B oard  denies any 
k n ow led ge  o f  the C ity  and C oun ty  action, and city  o ffic ia ls  m ain ­
tain  that the ord in an ce w as not in tended  to  a ffe ct  sch ool desegre­
gation.



A7

They allege that certain pockets of Negro residences north 
of the tracks were purposefully removed through dean­
nexation, purchase, or urban renewal by public author­
ities so that no Negroes would reside in the attend­
ance zones of the northern half of Clarksdale,8 We agree

8, T h e H iggins H igh  School, conta in ing all the N egro pupils 
in  grades 7-12  is located  south o f  these tracks, w h ile  the h igh  
schools conta in ing all the w h ite  p u b lic  h igh  school pupils are lo ­
cated north  o f  the tracks. F our elem entary schools, O liver, H all, 
W ashington  and R iverton , conta in ing a ll th e  N egro elem entary 
pupils are located  south o f the Illinois C entral’s tracks. T hree o f 
the fo u r  elem entary  schools serving w hite  pupils are located  north  
o f  the tracks. T h e  fou rth  elem entary school, Eliza C lark, is lo ­
cated in a w h ite  residential section  south o f  the tracks. B ased on 
B oard  statistics p rov id ed  in M arch  1965, 865 N egro h igh  school 
pupils, a ll bu t tw o  o f  the tota l e lig ib le  to attend high school, live  
south  o f  the Illin ois tracks, attend H iggins, and i f  the B oard  has 
its w ay , w ill continue at H iggins. T he e ffe ct  o f  zon ing one w hite 
and fou r N egro  elem entary schools located  south o f the Illinois 
C entral tracks is that all N egroes w ill be assigned to schools trad i­
tion a lly  serving N egro pupils and the great m a jor ity  o f  w h ite  p u ­
p ils  w ill be assigned to the w h ite  Eliza C lark School. The three 
rem ain ing w h ite  elem entary schools located  north  o f  the Illinois 
C entral tracks serve on ly  pupils liv in g  north  o f the tracks. F ew  
i f  any o f  these students are N egroes. T he B oard  estim ated that 
in D ecem ber 1964 on ly  one N egro elem entary sch ool ch ild  was 
e lig ib le  b y  reason o f  residence to attend an elem entary school 
n ow  serving on ly  w h ite  pupils. T he district court approved  the 
h igh  sch ool zones and the elem entary zones located  north  o f the 
Illinois C entral tracks, adding requ irem ents that all sch ool fa ­
cilities be equalized  and that students seeking courses not o ffered  
in their assigned schools be g iven  the righ t to transfer to  schools 
w h ere such courses are o ffered . T he ord er tem porarily  approved  
the sch ool zones located  south o f the Illinois C entral tracks, but 
requ ired  reconsideration  o f these zones b y  the board  and a resu b ­
m ission  o f  zones “ pred icated  on  e ffic ien t u tilization  o f available 
sch ool facilities on a racia lly  n ond iscrim inatory  basis in accordance 
w ith  sound education  p rin cip les” . T he order fu rth er p rov id ed  that, 
notw ithstanding the elem entary  subdistricts located  north  o f  the 
Illin ois C entral tracks had been  approved , the B oard  was free  to 
rev ise  these boundaries i f  this w as necessary to accom m odate 
changes in the elem entary  attendance zones located  south o f the 
Illinois C entral tracks. T he order aw arded  costs to  appellants 
and retained ju risd iction  o f  the case fo r  additional orders w hich  
m ight becom e necessary or appropriate. In O ctober 1965 the 
B oard  subm itted its revised  p lan  fo r  the elem entary attendance 
zones located  south o f  the Illinois C entral tracks. The sole change 
recom m ended  w as that the zone line d iv id in g  the w h ite  E liza C lark 
sch oo l from  the N egro M yrtle  H all sch ool be eradicated and that, 
e ffe ctiv e  in Septem ber 1966 a ll first and second grade pupils in 
the com bined  zone be assigned to the E liza C lark  sch ool and all



A8

with the district court that evidence on this issue is irrele­
vant, but not for the reasons supporting the district judge’s 
conclusion. It is irrelevant because the ultimate in­
quiry is not whether the school board has found some 
rational basis for its action, but whether the board is ful­
filling its duty to take affirmative steps, spelled out in 
Jefferson and fortified by Green, to find realistic meas­
ures that will transform its formerly de jure dual segre­
gated school system into a “unitary, nonracial system of 
public education” .

In Monroe v. Board of Commissioners of the City of 
Jackson, 1968, 391 U.S. 450, 88 S.Ct. 1701, 20 L.Ed.2d 733, 
a companion case to Green, the school board for the city 
of Jackson, Tennessee, established a plan involving at­
tendance zones drawn according to certain established 
criteria and containing a free-transfer provision. The 
schools of Jackson retained their racial identity, with only 
token integration. The Supreme Court, focusing on the 
free-transfer aspect of the plan, observed:

Plainly, the plan does not meet respondent’s “af­
firmative duty to take whatever steps might be nec­
essary to convert to a unitary system in which racial 
discrimination would be eliminated root and branch.” 
Green v. County School Board, supra, at p. 7. Only 
by dismantling the state-imposed dual system can 
that end be achieved. And manifestly, that end has

pupils in grades three through  six  be assigned to the M yrtle  H all 
school. A ppellan ts p rom p tly  filed  ob jection s to the revised  plan, 
con ten d in g  that there w as no greater ju stifica tion  fo r  retaining 
the zone lines o f  th e  other elem entary sch ools and that, w h ile  the 
eradication  o f  the lin e  betw een  the M yrtle  H all and Eliza C lark 
zones appeared to have advantages from  an educational and d e -  
segregational standpoint, the p ractica l e ffe ct  o f  assigning the 115 
w h ite  ch ildren  from  E liza C lark  w ith  the approxim ate 415 N egro 
pupils from  M yrtle  H all w ou ld  be  that w h ite  parents w ou ld  refuse 
to  send their ch ildren  to the sch ool and w ou ld  m ove  their resi­
dences to areas north  o f  the Illinois C entral tracks w h ere, as the 
ev iden ce show s, N egroes cou ld  not obtain  housing.



A9

not been achieved here, nor does the plan approved 
by the lower courts for the junior high schools prom­
ise meaningful progress towards doing so. . . . That 
the Board has chosen to adopt a method achieving 
minimal disruption of the old pattern is evident from 
its long delay in making any effort whatsoever to 
desegregate. . . .

The Court concluded that “free transfer” , like free­
dom of choice, “ can have no place in a desegrated plan 
. . .  if it cannot be shown that such a plan will further 
rather than delay conversion to a unitary, nonracial, 
nondiscriminatory school system. . . .”

In Clarksdale only two elementary schools are likely 
to be attended by children of both races. All other schools 
will be “ white” and “Negro” , corresponding to their status 
before the present plan was adopted. It is evident then 
that the board here has not fulfilled its duty, spelled out 
in Green, “ to come forward with a plan that promises 
realistically to work, and promises realistically to work 
now.”

The basic criteria the school board used in this case 
were rational: (1) maximum utilization of school build­
ings; (2) density of population; (3) proximity of pupils 
to schools; (4) natural boundaries; and (5) welfare of 
students. This fifth criterion requires consideration of at­
tractive nuisances and health hazards. The presence of 
public transportation for school children would be rele­
vant to the weight to be given the proximity criterion. 
By the same token, natural boundaries, such as the tax 
districts used in Moses v. Washington Parish, are not to 
be confused with “historical” boundaries, i.e. those that 
have historically separated white and Negro residential



A10

areas.9 Finally, safety hazards may be applicable to stu­
dents of various ages in differing degrees, and the history 
of community action vis-a-vis those hazards should be 
taken into consideration.10 11 No one doubts the relevance 
of such criteria. But a relationship otherwise rational 
may be insufficient in itself to meet constitutional stand­
ards—if its effect is to freeze-in past discrimination. For 
example, a rational relationship exists between literacy 
or citizenship tests (fairly administered) and the right to 
vote. But we enjoin the use of such tests when they 
freeze into a voters’ registration system the effects of past 
discrimination.

But there is a sixth basic criterion the Board did not 
use: promotion of desegregation. Jefferson, Stell, Davis, 
Braxton., Polk County, Carr, Bessemer, Adams, Graves 
and Greenwood, and other cases decided by this Court,11

9. T he sch ool b oard ’s orig ina l p lan  w ou ld  have contained  an 
irregu larly  draw n  bou n d ary  surrounding the on ly  a ll-w h ite  resi­
dentia l area south o f  the ra ilroad  tracks. T his bou n dary  w ou ld  
h ave z ig -za gg ed  and fo llo w e d  u npaved  roads; in sum , it w ou ld  have 
cut b etw een  the w h ite  and n eigh borin g  N egro residential areas. 
T he district cou rt d isapproved  this zone, fo r  obviou s reasons.

10. F or exam ple, w h ile  the use as a bou n dary  o f  the e le ­
vated  ra ilroad  tracks in C larksdale w ou ld  appear reasonable, such 
appearance m ust be  m easured against the past h istory  o f  school 
ch ildren  crossing those tracks to  go to a school fo r  their particu ­
lar race. H aving d isregarded  the tracks as im pedim ents in order 
to  m aintain  the racia l pu rity  o f  its schools, the sch ool board  can ­
not turn around and consider the tracks im penetrable  w h en  doing 
so w ill perpetuate that fo rm er racia l pu rity . See U nited States v. 
Louisiana, E.D.La. 1963, 225 F. Supp. 353, a ff ’d 380 U.S. 145, 85 
S.Ct. 817, 13 L.Ed.2d 709; U nited States v. M ississippi, S.D., Miss. 
1964, 229 F .Supp. 925, re v ’d  380 U.S. 128, 85 S.Ct. 808 13 L.Ed.2d 
717.

11. B oard  o f  D uval C oun ty  v . B raxton , 5 Cir. 1968, 402 F.2d 
900; S tell v . Savannah-C hatham  B oard  o f  E ducation, 5 Cir. 1967, 
387 F.2d 486; U. S. v. B oard  o f P u b lic  Instruction  o f P o lk  C ounty, 
Fla., 5 Cir. 1968, 395 F.2d 66; M on tgom ery  B oard  o f  E ducation  v. 
Carr, 5 Cir. 1968, 400 F .2d 1; U nited States v. B essem er B oard  o f 
Education , 5 Cir. 1968, 396 F .2d 44; A dam s v. M athews, 5 Cir. 1968,

___  F.2d ____ ; G raves v. W alton  C ounty B oard o f E ducation, 5
Cir. 1968, ____  F.2d _____  Jefferson, Davis, and Greenwood  are
cited  in the b o d y  o f  this opinion .



A ll

and now Green v. County School Board of New Kent 
County, require school authorities to take affirmative ac­
tion that will tend to eradicate all vestiges of the dual sys­
tem. For example, given a choice of alternatives, a school 
board should draw zone lines, locate new schools, con­
solidate schools, change feeder patterns, and resort to 
other measures that will reduce the effect of past patterns 
tending to maintain segregation (or token desegregation). 
“Where the Board is under compulsion to desegregate the 
schools (1st Brown case, 347 U.S. 483) we do not think 
that drawing zone lines in such a manner as to disturb 
the people as little as possible is a proper factor in rezon­
ing the schools.” Northcross v. Board of Education of 
City of Memphis, 6 Cir. 1964, 333 F.2d 661. In Davis v. 
Board of School Commissioners of Mobile, Alabama, 5 Cir. 
1968, 393 F.2d 690 we considered it our primary concern 
“ to see that attendance zones in the urban areas . . . [are] 
devised so as to create a unitary racially nondiscrimina- 
tory system.” We held:

We therefore accept the board’s policy decision in this 
regard but insist on a survey and new effort to draw 
zone lines on a nonracial basis so that the attendance- 
area plan will promote desegregation rather than per­
petuate segregation. It is intended that attendance 
areas be designed according to strictly objective cri­
teria with the caveat that a conscious effort should 
be made to move boundary lines and change feeder
patterns which tend to preserve segregation....... . F.2d
at ........

As stated by the U.S. Dept, of Health, Education, and 
Welfare, in its Policies on Elementary and Secondary 
School Compliance with Title VI of the Civil Rights Act 
of 1964 (March 1968):

School systems are responsible for assuring that to 
the extent it is administratively feasible, the zone



A12

boundaries do not perpetuate any vestiges of a dual 
school structure and that among the various attend­
ance zone arrangements which are possible, it estab­
lishes the one which best promotes elimination of its 
dual school structure.

Bearing in mind the historical background of state- 
compelled educational segregation, consideration of race 
may be necessary to provide an adequate remedy that will 
erase or minimize the effects of the dual school system. 
“The Court has not merely the power but the duty to ren­
der a decree which will so far as possible, eliminate the 
discriminatory effects of the past as well as bar like dis­
crimination in the future.” United States v. Louisiana, 
1965, 380 U.S. 145, 154, 85 S.Ct. 817, 13 L,Ed.2d 709. A 
school board’s zoning policy may appear to be neutral but 
in fact tend to retard desegregation because it binds pupils 
to custom-segregated neighborhoods. In this situation, the 
board’s failure to take corrective action amounts to the 
State’s giving official sanction to continued school segre­
gation, contrary to the mandate of this Court and of the 
Supreme Court.12 Black nationalists and white racists 
notwithstanding, school integration is relevant: It is an
educational objective as well as a constitutional impera­
tive.

At the time this case was tried Clarksdale still had 
segregated schools. A long time has elapsed since the * I,

12. “ T he im pact [ o f  segregation ] is greater w h en  it has the 
sanction  o f  the law ; fo r  th e  p o licy  o f  separating the races is usually  
in terpreted  as denoting the in fer ior ity  o f  the N egro grou p .”  B row n
I, 347 U.S. at 494. See Strauder v . V irg in ia , 1880, 100 U.S. 303, 
25 L.Ed. 664. See also U nited States v . S ch ool D istrict 151 o f
C ook  C ounty, Illinois, 7 Cir. 1968, ____  F .2d ____ , in w h ich  the
Seventh  C ircu it distinguished B ell v. G ary, 7 Cir. 1963, 324 F.2d 
209, fo llo w e d  b y  D eal v. C incinnati B oard  o f  Education , 6 Cir. 
1966, 369 F.2d 55 and D ow ns v . B oard  o f  Education , 10 Cir. 1964, 
336 F .2d 988 on the ground that th ey  dealt w ith  “ in n ocen tly  a r­
r ived  at de facto  segregation  w ith  ‘no intention  or pu rpose ’ to seg ­
regate N egro pupils from  W h ite” . T he dissenting op in ion  here 
cites w ith  approva l Bell, Deal, and Downs.



A13

trial, partly because this Court delayed rendering its de­
cision in order to obtain further enlightenment from the 
Supreme Court on the subject of attendance zones plans 
as against freedom of choice plans. In view of the delay, 
we believe that the interests of justice require that the 
case be remanded for a hearing to determine the effective­
ness of the Clarksdale plan in today’s factual setting and 
in the light of Green and other decisions of the Supreme 
Court and of this Court. The Board should bear in mind 
that it bears the burden of proving that its existing plan 
of desegregation is adequate now “ to convert [the dual 
system] to a unitary system in which racial discrimina­
tion would be eliminated root and branch” . If the plan 
does not promise “realistically to work now” , the Board 
bears the burden of taking corrective action. An effective 
plan should produce desegregated faculties, staff, facili­
ties, transportation, and school activities (such as ath­
letics) along with integrated student bodies. If there are 
still all-Negro schools, or only a small fraction of Negroes 
enrolled in white schools, or no substantial integration 
of faculties and school activities then, as a matter of law, 
the existing plan fails to meet constitutional standards as 
established in Green and its companion cases. The board 
should consider redrawing its attendance-zone boundaries, 
incorporating a majority-to-minority transfer provision in 
its plan,13 closing all-Negro schools, consolidating and pair­
ing schools, rotating principals, and taking other measures 
to overcome the defects of the present system. As to its 
attendance zones,

13. “ I f  sch ool o ffic ia ls  in any district should  fin d  that their 
d istrict still has segregated facu lties and schools or on ly  token  in ­
tegration , their a ffirm ative  duty  to take corrective  action  requires 
them  to  try  an alternative to  a fr e e d o m -o f-ch o ice  plan, such as a 
geograph ic-a tten dan ce  plan, a com bination  o f the tw o, the P rin ce ­
ton  P lan, or som e other acceptable  substitute, perhaps aided b y  
an educational park .”  J efferson  I, 372 F.2d at 895-896.



A14

zone boundaries or feeder patterns designed or used 
to perpetuate or promote segregation shall be discon­
tinued, and such zone lines shall be redrawn, wherever 
feasible, to maximize desegregation or eliminate seg­
regation. No zone boundaries or feeder patterns which 
maintain what is essentially a segregated school struc­
ture shall be used. Braxton v. Board of Public In­
struction of Duval County, M.D.Fla. 1967, .......  F.
Supp....... —

Accordingly, we REMAND this case to the district 
court for entry of a judgment or further proceedings con­
sistent with this opinion.

COX, United States District Judge, Dissenting.

This school case was argued before and presented to 
this Court on May 25, 1966, with the other school cases 
presented to and decided by the Court in what is gener­
ally known as the Jefferson decision.1 This case has been 
voluntarily held through the intervening time by the Court 
without any effort to dispose of it prior to this time. On 
August 10, 1965, Honorable Claude F. Clayton, as trial 
judge,1 2 issued an opinion and entered a consequent order

for a permanent injunction to end all aspects of segrega­
tion of the public schools in Clarksdale, Mississippi. On 
December 18, 1965, another opinion was issued, and an 
order was entered for the final approval of school plans 
for the year 1965-1966. Notice of appeal to this Court was 
given by the plaintiffs “ from this Court’s order entered 
December 14, 1965.” The entire record with transcripts 
and exhibits was designated by appellants, and it is pre­

1. United States of America and Linda Stout, Appellants, v. 
Jefferson County Board of Education, et al., Appellees, (5 C A ) 372 
F .2d 836, 380 F .2d 385, cert, den ied 88 S.Ct. 72.

2. H on orab le  C laude F. C layton  w as in du cted  on N ovem ber 
24, 1967 to the ben ch  o f  the U nited States C ourt o f  A ppeals fo r  the 
F ifth  C ircuit.



A15

sumed that they complain of and appeal from the opin­
ions and orders previously stated.

The 1965-1966 school year has long since passed, and 
school laws have been updated and strengthened on sev­
eral occasions in the interim. The people of Clarksdale have 
acquiesced in the mandate of the Supreme Court in its 
Brown decision and have displayed a good faith effort in 
this record to respect and comply with such requirements. 
The trial judge very carefully and very thoroughly and 
very skillfully assayed all of the facts and circumstances 
in this case in such school plan, now four years old, with 
full knowledge of the law and his judicial obligation in 
the connection. A completely voluntary advisory opinion 
by this Court under the circumstances would be and is 
unwarranted and improper. The trial judge not only 
knew the law, but knew facts and circumstances and drew 
inferences which unquestionably support his sound deci­
sion and judgment in this case. Clarksdale has a very 
nearly equal Negro and white population, and also has a 
very large Chinese population and even a large Indian 
population in the area. These school zones which were 
set up in these school plans followed natural barriers such 
as a railroad on an elevated right-of-way running diago­
nally (northeast to southwest) through and bisecting the 
city; another railroad dividing the southern part of the 
city, and Sunflower River dividing the city on the west. 
An effort was made by appellants to convince the Court 
that some of these lines were gerrymandered, but the 
facts clearly show in this record that city streets were 
used as dividing lines for the school zones, and that in 
many cases white people lived on both sides of the street; 
and that when they found themselves in a particular school 
zone that the children were obliged to attend schools in 
that zone regardless of predominance of race. The highly



A16

experienced and well informed trial judge carefully ex­
amined these plans and approved them for the school year 
indicated and observed that the plaintiffs had nothing bet­
ter to offer toward complete eradication of segregation 
from the attendance center involved.

The opinions and orders of the trial judge were care­
fully drafted to comply with all of the requirements of 
Civil Rule 52(a) as to finding of facts and conclusions of 
law where injunctions are involved. There is not a case 
cited by counsel, or to be found in the majority opinion 
of the Court in this case, or that has been found on inde­
pendent research to support any inference or conclusion 
to the effect that these school zones, as contained in these 
school plans, with these perfectly natural boundaries and 
barriers should not have been accepted and approved as they 
were at the time by the Court. The accusations of the plain­
tiffs that these appellees had anything whatever to do with 
the acquisition by the county of some dilapidated buildings 
for use of the land as a public park,3 and that these appel­
lees had anything whatever to do with the municipality 
changing its boundary as having any effect upon these 
plans is completely without merit as the trial judge prop­
erly held. There was simply nothing that the trial judge 
did in this case which is not abundantly supported as to 
its propriety by facts and circumstances in this record.4 
It is simply not for this Court to usurp the function of the 
trial court in making its own findings and conclusions of 
the facts and circumstances in this case independently of 
the findings and conclusions of that able trial jurist. It

3. This park  a long both  sides o f  S u n flow er R iver as a recre ­
ation  p ro ject w ill cost one and on e -th ird  m illion  dollars accord in g  
to  recen t estim ate.

4. Y et C iv il R ule  5 2 (a ) p rov id es : “ F inding o f facts shall not 
be  set aside unless clearly erroneous and due regard  shall be g iven  
to  the opportu n ity  o f  th e  tria l cou rt to ju d ge  o f  the cred ib ility  o f  
the w itnesses.”



A 17

must be remembered that the United States Court of Ap­
peals is a creature of statute, and is vested with only statu­
tory appellate jurisdiction as an appellate court, and not 
as a court of original jurisdiction as a trial court. 28 
U.S.C.A. §1292.

In an injunction case, a plaintiff is entitled to such 
relief as may be justly due him at the time of the trial of 
the case, and not to a declaratory expression by this Court 
on a gratuitous basis, without regard to the facts and cir­
cumstances existing at the particular time, which may or 
not justify a trial judge as knowledgeable of the law, and 
certainly more familiar with the facts, to reach an en­
tirely different conclusion. Surely the Green case“ and 
the Monroe case8 may be expected to receive careful anal­
ysis and intelligent and proper consideration and appli­
cation by the trial court when called upon to consider and 
apply its criteria; but there is surely nothing to be found 
in either of those cases which can be safely said to con­
demn the plans which were approved in 1965 by the trial 
court for the 1965-1966 school year in this case. The facts 
as disclosed in this record simply do not support any such 
conclusion or inference to the contrary here.5 6 7

5. Charles C. Green v. County School Board of New Kent 
County, Virginia, 391 U S 430, 88 S.Ct. 1689.

6. Brenda K. Monroe v. Board of Commissioners of Jackson, 
Tennessee, 391 U S 450, 88 S.Ct. 1700.

7. T he tria l court, w ith  a ll o f  the facts and circum stances 
clearly  b e fore  it, and bein g  im pregnable  to  any criticism  under the 
clearly  erroneous rule, fou n d  as a fa ct on a fu ll ev iden tiary  h ear­
in g  that the plans o f  this C larksdale sch ool w ere  proper, and a f­
ford ed  an education  to each ch ild  at an attendance center as a 
part o f  a unitary system  com plete ly  w ith ou t regard  to  race and in 
com pliance w ith  the Brown  cases. T he C ourt fu rth er fou n d  that 
the natural barriers to  these school zones constituted the lines o f  
their boundaries; and that such boundaries w ere  not gerrym an ­
dered , and that the sch ool authorities had done noth ing to m ake 
these boundaries to these school zones w ork  in any particu lar w ay. 
T hese school zones w ere  designed and grew  gradu ally  through  the 
years b y  reason o f econ om ic destiny o f the com m un ity  w ith  n oth -



A18

There is no evidence in this record that anybody did 
anything in this school district to effect the vested rights 
of any colored child or to affect the resulting de facto seg­
regation. Certainly nothing has been done under any 
law, or by force of any public authority or power to even 
contribute thereto. This Court is called upon to pass 
judgment on a plan for these Ciarksdale schools now four 
years old. These plans will require and doubtless receive 
some necessary updating. The plan in suit surely does 
not aid or encourage or foster or preserve any aspect of 
segregation of the races under any sort of compulsion. An 
honest application of freedom of choice as a sound Ameri­
can principle should certainly satisfy all vested rights of 
all persons.

Under the Green decision, it is surely the non-dele- 
gable duty of the school board and nobody else to devise 
a sound workable school plan in compliance with existing 
decisional law. No court has yet said that there must be 
forced mixing of the races in any particular ratio contrary 
to the expressed wishes of students and parents of both 
races! There could not be much, either constitutional or 
American, in such a judicial fiat. When the Court finds 
as the trial court here found, that the board was acting in 
good faith and that its plan had real prospects for dis­
mantling the state imposed dual system at the earliest 
practicable date, then the plan would meet all require­
ments of the last announcement of the Supreme Court on 
this subject.

ing else in v iew . T he tria l ju d g e  thus approved  these zones w h ere  
disparities in  population  as to  race natu rally  g rew  and existed , 
and w ere  accepted  as de fa cto  segregation . T he facts and c ircu m ­
stances in the Green and Monroe decisions do not condem n or 
even  d isapprove such con clu sion  under the facts here. T he Green 
and Monroe prin cip les m ay n ot be  d istorted  to say that a g iven  
percen t or ratio o f ch ildren  as to race  m ust exist as a m athem ati­
ca l equation  under a ll circum stances to m eet the requirem ents o f  
law



A19

The principle of bona fide de facto segregation has 
been approved in four Circuits and the Supreme Court 
has never said aught to the contrary. In Rachel Lynn 
Bell v. School City of Gary, Indiana, (7CA) 324 F.2d 
209, cert, denied 377 US 924, it is said: “ Plaintiffs are 
unable to point to any court decision which has laid 
down the principle which justifies their claim that there 
is an affirmative duty on the Gary school system to re­
cast or realign school districts or areas for the purpose of 
mixing or blending Negroes and whites in a particular 
school.” In Renee Patrice Gilliam v. School Board of City 
of Hopewell, Virginia, (4CA) 345 F.2d 325 the Court held: 
“ The constitution does not require the abandonment of 
neighborhood schools and the transportation of pupils from 
the area to another solely for the purpose of mixing the 
races in the schools.” That principle was followed in Deal 
v. Cincinnati Board of Education, (6CA) 369 F.2d 55, cert, 
denied 389 US 847; and in Downs v. Board of Education, 
(10CA) 336 F.2d 988, cert, denied 380 US 814. The same 
result was reached in Renee Patrice Gilliam v. School 
Board of City of Hopewell, Virginia, supra, where the 
opinion of the trial court was vacated without opinion 
on such question in 382 US 103, 86 S.Ct. 224, because of 
a lack of an evidentiary hearing in the trial court. The case 
at bar was accorded a full evidentiary hearing by an ex­
perienced trial judge far more competent than any mem­
ber of this panel to weigh and judge the problem from 
the cold pages of this record.

The principle of freedom of choice was heralded in 
the Jefferson decisions which were companion cases to 
this case and were argued and presented to this Court at 
the same time. There is nothing wrong with that princi­
ple as a means of uprooting every vestige of state enforced 
segregation. The trouble with the plan not working in



A20

most instances is occasioned by an insincere, less than 
halfhearted, effort on the part of some school authorities 
to see that such plan really worked. No devious devices 
should be allowed to be engrafted upon such a plan to 
keep it from being an honest expression of the free will 
and choice of the parent and child as to the school to be 
attended.® If these school plans in Clarksdale afforded a 
child a freedom of choice as to the desired attendance cen­
ter (as does the Jefferson plan), such a plan would seem 
impervious to any just criticism. It is incumbent upon 
the board, as experienced school people, to devise a plan 
which will “work”  within valid constitutional limits. It 
should not be necessary for the public to have any school 
closed, or any new school built just to accommodate a 
workable plan, but the board should have the power and 
authority to permit transfers from one zone to another 
within limits of existing facilities and without discrimi­
nation as to race. These observations, in response to sug­
gested changes in the plan contained in the majority 
opinion, are doubtless vulnerable to the same criticism as 
being dicta, if not obiter dicta.

The suggestion of the majority that the board con­
sider “incorporating a majority-to-minority transfer pro­
vision in its plan” is with deference a distortion of the

8. S ign ifican tly , as a declaration  o f  C ongressional p o licy  in 
“ D epartm ents o f  L abor, and H ealth, E ducation  and W elfare  A p -  
propriations A ct  1969”  (P .L . 90-557 ; 82 Stat. 969; T itle  IV  -  G en ­
era l P ro v is io n s ), it is said: “ Sec. 409. N o part o f  the funds 
conta ined  in  this A ct  m ay  b e  used to  fo rce  busing o f  students, 
abolishm ent o f  any school, o r  to  fo r ce  any student attending any 
e lem entary  or  secon dary  sch oo l to attend a particular school 
against the ch oice  o f  his or  h er parents or parent in order to 
overcom e racia l im balance. Sec. 410. N o part o f  the funds co n ­
tained in  this A ct shall be  used to  fo rce  busing o f students, the 
abolishm ent o f  any sch ool or th e  attendance o f  students at a p a r - : 
ticu lar sch ool in order to  overcom e racia l im balance as a con d i­
tion  preceden t to  obta in ing F ederal funds otherw ise availab le  to 
any State, sch ool district, or  sch oo l.”



A21

furtherest reaches of Brown and is completely untenable 
as a sound principle of constitutional law.9 The principles 
announced in Green are: “That it is incumbent upon the 
school board to establish that its proposed plan promises 
meaningful and immediate progress toward disestablish­
ing state imposed segregation;” that “where the Court 
finds the board to be acting in good faith and the proposed 
plan to have real prospects for dismantling the state im­
posed dual system at the earliest practicable date, then 
the plan may be said to provide effective relief.” These 
principles are simply not consonant with the newly de­
vised principles found for the first time in the majority 
opinion here.

The majority do not reverse or vacate the opinion and 
order of the trial court, but remand the case to the trial 
court and in such respects I concur. But insofar as the 
trial court is directed to enter a judgment consistent with 
and in conformity to the majority opinion, I very respect­
fully dissent: First, because the majority opinion in this
state of record is mere dicta, if not obiter dicta; second, 
because the majority opinion assumes that the law re­
quires forced mixing in these Clarksdale schools in some 
undesignated ratio as to race to satisfy present require­
ments as to desegregation of these schools as a matter of 
decisional law.

Obviously, the delay of the majority in awaiting an 
announcement of any such principles from the Supreme 
Court of the United States to support their majority opin­

9. A n  unchanged  F ourteenth  A m en dm ent to  the U nited 
States C onstitution  w as n ot v io la ted  said the C h ief Justice o f  the 
U nited States speaking fo r  every  m em ber o f the C ourt in 1927 
w h ere  it w as com pla in ed  that the state had a p o licy  based on  o r ­
ganic law  and statutes w h ich  exclu d ed  a co lored  ch ild  from  at­
tendance at a w h ite  school. Gong Lum v. Rice, 48 S.Ct. 91, 275 US 
78. In Brown, the C ourt decided  the case as one o f first im pres­
sion.



A22

ion was not fruitful or rewarding. Green said that in 
1968 a plan had to promise meaningful and immediate 
progress toward disestablishing state imposed segrega­
tion. Judge Clayton thought and found as a fact in 1965 
that this plan did exactly that to his entire satisfaction 
and the plaintiffs then had nothing better to offer as he 
said after hearing all of the testimony and receiving all 
of the evidence in the case, and such finding may not be 
arbitrarily and capriciously brushed aside as clearly er­
roneous when it is so abundantly supported, as it is, by 
the proof in this record. I would affirm and remand.

/s /  Harold Cox
United States 
District Judge



A23

U n i t e d  S t a t e s  C o u r t  o f  A p p e a l s
FOR THE FIFTH CIRCUIT

OCTOBER TERM, 1965

No. 23255

D. C. Docket No. CA-DC-6428

REBECCA E. HENRY, ET AL., 
Appellants,

VERSUS

THE CLARKSDALE MUNICIPAL SEPARATE 
SCHOOL DISTRICT, ET AL., 

Appellees.

Appeal from the United States District Court for the 
Northern District of Mississippi.

Before WISDOM and THORNBERRY, Circuit Judges, 
and COX,* District Judge.

JUDGMENT

(Filed June 30, 1969)

This cause came on to be heard on the transcript of 
the record from the United States District Court for the 
Northern District of Mississippi, and was argued by coun­
sel;

* W illiam  H arold  C ox , U nited States D istrict Judge fo r  the 
Southern  D istrict o f  M ississippi, sitting b y  designation.



A24

ON CONSIDERATION WHEREOF, It is now here 
ordered and adjudged by this Court that the judgment 
of the said District Court in this cause be, and the same 
is hereby, remanded to the said District Court for entry 
of a judgment or further proceedings consistent with the 
opinion of this Court.

Costs of the appeal shall be taxed against the appel­
lees.

Cox, District Judge, dissenting.

March 6, 1969

Issued as Mandate: June 26, 1969.



A25

IN THE

United States Court o f  Appeals
FOR THE FIFTH CIRCUIT

No. 23255

REBECCA E. HENRY, ET AL„ 
Appellants,

VERSUS

THE CLARKSDALE MUNICIPAL SEPARATE 
SCHOOL DISTRICT, ET AL., 

Appellees.

Appeal from the United States District Court for the 
Northern District of Mississippi.

ON PETITION FOR REHEARING AND PETITION 
FOR REHEARING EN BANC

(June 26, 1969)
Before WISDOM and THORNBERRY, Circuit Judges, 

and COX,* District Judge,

PER CURIAM:
The Petition for Rehearing is DENIED and no mem­

ber of this panel nor Judge in regular active service on 
the Court having requested that the Court be polled on 
rehearing en banc, (Rule 35 Federal Rules of Appellate 
Procedure; Local Fifth Circuit Rule 12) the Petition for 
Rehearing En Banc is DENIED.

*W illiam  H arold  C ox , U nited States D istrict Judge fo r  the 
Southern  D istrict o f  M ississippi, sitting b y  designation.



A26

(Caption Omitted)

ORDER OF THE DISTRICT COURT DATED 
JUNE 26, 1964

Order for Preliminary Injunction

This case is before the court on plaintiffs’ motion for 
a temporary injunction to require defendants to submit a 
plan for the desegregation of the public schools of the 
Clarksdale Municipal Separate School District, memoran­
dum briefs of the parties and other materials furnished 
by the parties. It is conceded, and the court agrees, that 
it is the court’s duty, especially under cases heretofore 
decided by the Supreme Court, by the Court of Appeals 
for the Fifth Circuit and by other cases decided by other 
courts, some of which are listed following this order, to 
sustain said motion and issue an injunction for the afore­
mentioned purposes. However, there are certain facts 
which must guide the court in shaping its preliminary 
order in this case at this time. They are:

1. The Clarksdale Municipal Separate School Dis­
trict, acting by and through its Board of Trustees as au­
thorized by the laws of the State of Mississippi, before 
this suit was filed contracted with some of the other de­
fendants (see Chapter 301, General Laws of Mississippi 
1960, appearing as Sections 6328-71, 72, 73, 74, 75, 76 and 
76.5, Mississippi Code 1942 Recompiled) and this contract 
will expire, unless renewed with the end of the school 
year 1964-1965. That, as it seems, these statutes and this 
contract caused some confusion on the part of plaintiffs 
and caused said other defendants to be joined in this case. 
Apparently no school with which this suit is concerned 
is under the present jurisdiction of any of said other de­
fendants, but only the Board of Trustees of said Clarksdale



A27

Municipal Separate School District has the sole and ex­
clusive power to designate which of the children in said 
separate school district will attend the schools with which 
this case is presently concerned. No relief, at this time, 
against any defendant, other than the Clarksdale Munic­
ipal School District and its Board of Trustees, would be 
proper. It would be improvident, however, to eliminate 
said other defendants at this time and they should be re­
tained as defendants pending full development on the 
merits and further order of the court.

2. The schools operated by the Clarksdale Munici­
pal Separate School District are and have been operated 
on a racially segregated basis with white children only 
attending schools operated for them and only Negro chil­
dren attending schools operated for them. This has been 
the situation for many years. There is no dispute in this 
regard. The parties concede that this is true. And, it is 
also true that this suit is the first formal court under­
taking that has ever sought to make any change at all 
with such segregated practices in this school system. This 
suit was filed April 22, 1964.

3. Negro children of public school age are in the 
overwhelming majority as compared to white children in 
the same category in said separate school district.

4. All the schools now and heretofore available to 
and attended by Negro children in said school district, on 
recognized standards, are rated AA, while some of the 
schools now and heretofore available to and attended by 
white children of this district are rated A, which is a 
lower classification than AA.

5. No protest with respect to the assignment of any 
Negro child to any school has ever been made to the Su­
perintendent of Schools for said district or his representa­



A28

tives either by a child or a child’s parents, although all 
pupil assignments to schools are first made on a tempo­
rary basis with the right of protest, or to request a change.

6. Only a small part of the facts and circumstances 
which will be pertinent to ultimate disposition of this case 
are now known to the court from the files and records or 
otherwise, and, all such facts and circumstances cannot 
be fully known until a full hearing on the merits.

7. In cases such as this, different decrees, different 
plans, different systems have been used from court to 
court, from district to district, from school to school, with 
each designed to fit the facts and circumstances of each 
particular situation on a fair and an equitable basis. And, 
it may be that the plan which will be initially approved 
or prescribed by this court will not be exactly like any 
plan used by any other court or in any other school, 
since the plan here must be fashioned to fit the prob­
lems as they exist in the Clarksdale Municipal Separate 
School District.

8. This court has the utmost confidence in the pres­
ent members of the Board of Trustees of the Clarksdale 
Municipal School District and their counsel. It fully be­
lieves that they will promptly, and in good faith, under­
take to fully comply with this court’s orders in this case.

9. This court also has great faith in the people of 
this school district, both white and Negro. It believes 
and expects that the leadership of both races will ap­
proach solution of the many problems inherent in this 
developing situation with calmness and in friendship, 
good will and understanding.

Having in mind all of the foregoing, and as to the 
defendants, Clarksdale Municipal Separate School District



A29

and the members of the Board of Trustees of said school 
district, their agents, servants and employees, and the 
successors in office of said trustees, those acting in con­
cert with them or with any of them who shall receive 
notice of this order, it is,

Ordered:

1. That they (the aforementioned) shall be and are 
hereby temporarily restrained and enjoined, in assigning 
pupils to the public schools now and hereafter operated 
by or under the supervision of said school district, from 
making any or all of such assignments solely because of 
the race of any or all of such pupils from and after such 
time as may be reasonably necessary to plan for and make 
arrangements for assignment of pupils and admission of 
pupils to such schools on a racially nondiscriminatory 
basis.

2. They, said defendants, shall be and are hereby 
required to fully prepare a plan by which an immediate 
start will be made in the desegregation of such schools, 
with such plan to provide that desegregation is to progress 
with all deliberate speed until all grades in all schools 
shall be included in said plan, and to provide that a mini­
mum of one grade in all schools shall come under said 
plan at the beginning of the school term in September 
1964. Said plan shall be submitted to this court for its 
consideration no later than July 30, 1964. A  copy of said 
plan will be served on counsel for plaintiffs not later than 
five days before said date.

3. Said defendants may submit to the court simul­
taneously with, or promptly after, disapproval of the plan 
above required (if it is not approved) one or more alter­
nate plans and may designate the order of preference as­
signed by them to such plan or plans.



A30

4, A hearing will be held following submission of 
the plan (or plans) aforementioned at a time and place 
to be fixed by the court.

It is further ordered that no relief at this time is 
granted against the other defendants but they are re­
tained in the case pending a full hearing on the merits or 
until further order of this court.

This the 26th day of June, 1964.

C l a u d e  F . C l a y t o n ,

District Judge



A31

MEMORANDUM OPINION OF DISTRICT COURT 
DATED AUGUST 10,1965

I n

UNITED STATES DISTRICT COURT 
For the Northern District of M ississippi 

D elta D ivision 
No. DC6428

Rebecca E. Henry, et al.,
Plaintiffs,

—v.—
The Clarksdale Municipal 

Separate School D istrict, et al.,
Defendants.

This is a school desegregation suit which was filed in 
April 1964 by Negro residents of Clarksdale, Mississippi, 
seeking injunctive relief to end segregation by race in the 
schools of the Clarksdale Municipal Separate School Dis­
trict. On June 26, 1964, this court ordered the Board of 
Trustees of this school system to submit a plan which 
would provide, as a minimum, for the desegregation of one 
grade in September 1964. Defendants were given the right 
to submit alternative plans. Within the time required, de­
fendants filed plans in the alternative providing a selec­
tion of four different modified stair-step time schedules 
for desegregation.1 Each of these plans was bottomed on

1. C om m endably , P lan  IV  p rov id ed  fo r  com plete  desegre­
gation  o f  a ll grades w ith in  a tota l o f fiv e  years, a faster rate 
than the s ix  year o v e r -a ll p eriod  a llow ed  defendants b y  the C ourt 
o f  A ppeals o f  this circu it in  Armstrong v. Board of Education, 333 
F. 2d 47; Davis v. Board of School Commissioners, 333 F. 2d 55 
and Stell v. Savannah-Chatham County Board, 333 F. 2d 55, 
decided  June 18, 1964.



A32

the establishment of neighborhood school zones with pu­
pils living in a zone to be required without exception to 
attend the school for that zone when the plan had pro­
gressed to the point where the grade for that child was 
included therein. Until that time arrived, each pupil was 
to continue attendance at the school to which the pupil 
was already assigned. Pupils newly come to the system 
would be assigned in the same way—zone of residence and 
school for the zone. Assertedly, the zones as proposed 
are based on (1) utilization of school buildings (2) prox­
imity of pupils to schools to be attended (3) natural 
boundaries and (4) the welfare of all pupils.

Plaintiffs promptly objected to the plan as lacking in 
specificity, speed and completeness. A hearing was held 
on August 19, 1964, on defendant’s proposals and plain­
tiffs’ objections thereto, as a result of which the court 
ordered into effect portions of defendants’ Plans I and II 
to require the desegregation of grade one in September 
1964 and grade two in January 1965. This was a tenta­
tive, interim procedure made necessary by the late filing 
of the complaint, the time necessary to formulate plans2 
and the imminence of the opening date for these schools 
in the fall of 1964.

On January 5, 1965, alleging that no desegregation had 
resulted from the plan as ordered into effect and that be­
cause of the nature of the plan, no desegregation is likely 
to result in the future, plaintiffs filed a motion for fur­
ther injunctive relief. Following this a full hearing was 
had and the case is for disposition on briefs.

All of the schools of the Clarksdale Municipal Sepa­
rate School District were operated on a completely segre­

2. D u ring  the short tim e availab le  fo r  p lan n in g  under the 
first order, m an y o f the p rofessiona l sta ff o f  these schools w ere  
not ava ilab le  to participate therein  since the 1963-1964 school 
session had ended w ith  the usual sum m er scatteration  o f teachers.



A33

gated basis before the filing of this suit. Pupils and staffs 
were assigned to schools on a racial basis. Thus each 
school was either all Negro or all white. The physical 
plant now consists of two high schools8 (each with a jun­
ior high school in connection therewith or operated from 
the same buildings) and eight elementary schools.11

The controversy between plaintiffs and defendants with 
respect to the proposals made by defendants is focused on 
two principal areas, (1) the rate at which desegregation 
will progress, and (2) the suitability or validity of the 
attendance zones as contemplated. There are other issues 
which will be mentioned later.

I.

The Rate at W hich Desegregation M ust Progress

Following the latest teachings of the Court of Appeals 
for this circuit now available to this court as they appear 
in Singleton v. Jackson Municipal Separate School Dis­
trict, .....  F. 2d .......  (5th Cir. June 22, 1965), and giving
careful consideration to the fact that the defendants have 
the first responsibility in this area, it appears reasonable 
and proper that desegregation of the Clarksdale schools, 3 4

3. W hen  this suit w as filed , the B oard  o f Trustees o f  the 
C larksdale M u nicipal Separate S ch ool D istrict shared ju risd iction  
w ith  the C oahom a C ounty S ch oo l B oard  over a h igh  school, ow ned 
b y  the cou nty , and the ph ysica l p lant o f  the C larksdale high 
sch o o l-ju n io r  h igh  sch ool facilities. This w as under a contract 
p rov id in g  that white senior h igh  sch ool students from  both  the 
city  and cou n ty  w ou ld  attend the school ow n ed  b y  the county 
and white ju n ior  h igh  sch ool pupils from  the city  and county 
w ou ld  attend sch ool at the facilities ow ned b y  C larksdale. This 
agreem ent has exp ired  and has n ot been  renew ed.

4. O ne o f the elem entary sch ool bu ild ings w as under contract 
and in the process o f  bein g  constructed at the tim e o f  the hearing 
o f  A ugust 19, 1964. It w as estim ated to be ready  fo r  occu pan cy  
at the begin n in g  o f  the second  h a lf o f that school year (1 9 6 4 -1965 ). 
This w as one o f the factors considered  in d irectin g  that P lan I go 
into e ffe ct  in S eptem ber and Plan II in January 1965.



A34

in addition to grades one and two heretofore ordered de­
segregated, must progress in accordance with the sched­
ule following:

In Singleton, the Court of Appeals cited the General 
Statement of Policies Under Title VI of the Civil Rights 
Act of 1964 Respecting Desegregation of Elementary and 
Secondary School, United States Office of Education, De­
partment of Health, Education, and Welfare, April 1965, 
and, inter alia, said:

We attach great weight to the standards estab­
lished by the Office of Education. The judiciary has 
of course functions and duties distinct from those of 
the executive department, but in carrying out a na­
tional policy we have the same objective. There 
should be a close correlation, therefore, between the 
judiciary’s standards in enforcing the national policy 
requiring desegregation of public schools and the ex­
ecutive department’s standards in administering this 
policy. Absent legal questions, the United States Of­
fice of Education is better qualified than the courts 
and is the more appropriate federal body to weigh 
administrative difficulties inherent in school deseg­
regation plans. If in some district courts judicial 
guides for approval of a school desegregation plan 
are more acceptable to the community or substan­
tially less burdensome than H.E.W, guides, school

School Year in 
Which Desegregation 

Is to Occur

Grades 
to be

Desegregated
1965-1966

1967-1968

1966-1967

Third, Fourth and 
Twelfth
Fifth, Sixth, Tenth 
and Eleventh
Seventh, Eighth 
and Ninth



A3 5

boards may turn to the federal courts as a means of 
circumventing the H.E.W. requirements for financial 
aid. Instead of a uniform policy relatively easy to 
administer, both the courts and the Office of Educa­
tion would have to struggle with individual school 
systems on ad hoc basis. If judicial standards are 
lower, recalcitrant school boards in effect will re­
ceive a premium for recalcitrance; the more the in­
transigence, the bigger the bonus.

The aforementioned progressive schedule for desegre­
gation seems to meet the requirements of Singleton and 
defendants will be required to proceed in accordance there­
with. See also Price, et al. v. The Denison Independent
School District Board of Education, et al., ....... F.2d .......
(5th Cir. July 2, 1965, No. 21632).

II.
Proposed A ttendance Zones

In reality defendants had but two choices when they 
were required to prepare and submit plans for the desegre­
gation of the Clarksdale public school system—the “ free­
dom of choice” system of pupil assignment, or the “neigh­
borhood” plan. They chose the latter, which they had the 
constitutional right to do. Plaintiffs do not object to the 
basic choice of methods (in fact, they recommend it) but, 
they vigorously attack the zone boundaries as proposed, 
saying in substance that they do not comport with stand­
ards and practices generally recognized in professional ed­
ucation circles,5 and that by design they are calculated 
to perpetuate a segregated school system and thus to de­
feat desegregation.

5. T w o exp erts  testified  fo r  p la in tiffs  and w ere  critica l o f 
the plans o f  defendants as to  zone boundaries in som e particulars. 
H ow ever, th ey  w ere  not in agreem ent as to w hat should be  done. 
T heir testim on y w ill be  dealt w ith  later in this opinion .



A36

The cases which have approved “neighborhood” or at­
tendance zone plans for assignment of pupils to schools 
within a public school system are legion.6 Lengthy quota­
tions from them are not required and would unduly 
lengthen this opinion. In sum, these cases teach that at­
tendance zones are constitutionally permissible if (1) all 
pupils living in each zone are required to attend the school 
in that zone, and (2) the boundaries of each zone are fairly 
determined on a color blind or non-racial basis. Under 
defendants’ proposals, all pupils in each zone will be re­
quired to attend the school for that zone.7 Thus, attention 
need be given here primarily to the justification advanced 
by defendants for the zone boundaries as proposed and the 
points in opposition thereto as advanced by plaintiffs.

Careful consideration must and has been given to the 
physical facts as they exist in Clarksdale as they bear on 
the troublesome problems incident to the establishment of 
public school attendance zones.

Clarksdale is situated on the flat Mississippi Delta. It 
has a population in excess of 20,000 and is cut almost in 
half by a railroad which runs through the community in a

6. Som e o f these cases are: Bell v. School City of Gary,
Indiana, 213 F. Supp. 819 (N .D . Ind. 1963), a f f ’d 324 F. 2d 209 
(7 th  Cir. 1963), cert, den., 377 U. S. 924 (1 9 6 4 ); Northcross v. 
Board of Education of City of Memphis, 302 F. 2d 818 (6th  Cir. 
1962), cert, den., 370 U.S. 944 (1 9 6 2 ); Gilliam v. City of Hopewell,
Va., ____  F. 2d _____ (4th  Cir. A p r il 7, 1965); Downs v. Board
of Education of Kansas City, 336 F. 2d 988 (10th  Cir. 1964 ); 
Holland v. Board of Public Instruction, 258 F. 2d 730 (5th  Cir. 
1958); Blakeney v. Fairfax County School Board, 231 F. Supp. 
1006 (E .D . V a. 1 9 6 4 ); Lynch  v. Kenston School District Board of 
Education, 229 F. Supp. 740 (N . D. O hio 1964); Bush v. Orleans 
Parish School Board, 230 F. S upp . 509 (E .D . La. 1963); Monroe 
v. Board of Commissioners of City of Jackson, Tennessee, 221 F. 
Supp. 968 (W . D. Term. 1963 ); W ebb  v. Board of Education of 
City of Chicago, 223 F. Supp. 466 (N .D . 111. 1963); Evans v. 
Buchanan, 207 F. Supp. 820 (D . Del. 1962 ); Henry v. Godsell, 
165 F. Supp. 87 (E .D . M ich. 1958); Brown v. Board of Education 
of Topeka, 139 F. Supp. 468 (D . K an . 1955).

7. A tten dance w ill now , o f  course, begin  in accordance w ith  
the desegregation  schedule h eretofore  listed in this opinion .



A37

northeasterly-southwesterly direction. This railroad is 
built on an earth fill which elevates the tracks an appre­
ciable height above the grade of the surrounding lands. 
Throughout a substantial portion of the length of this rail­
road through this community, the area immediately ad­
jacent thereto on both sides is occupied by commercial 
and industrial establishments. From municipal boundary 
to municipal boundary along these tracks is approximately 
3y2 miles.

The northerly half of Clarksdale is bisected by the Sun­
flower River. The southerly half is divided by another 
line of railroad which is built on approximately the same 
grade as the surrounding lands. It runs north and south.

Vehicular and pedestrian traffic moving across the rail­
road which is on the embankment is required to use one 
of four underpasses or the one crossing which is at the 
same grade as the railroad track. Only one of these under­
passes is west of the Sunflower River and it is right against 
the river. To move from a residential area on one side of 
this railroad to a residential area, or to any one of the 
several school sites on the other side requires, in most 
instances, that the movement be made through either a 
commercial area, an industrial area, or both.

The central business district of Clarksdale is in the 
northerly half and east of the Sunflower River. There 
are two bridges over the river in both the northerly and 
southerly sections of the community.

High School and Junior High School Zones

As aforementioned, there are two combination high 
school-junior high school plants in this system. One of 
these is in the northerly half of Clarksdale, while the 
other is in the southerly half. Defendants propose that 
the railroad tracks, at a height above ground as afore­



A38

mentioned, which run in a northeasterly-southwesterly di­
rection shall be the boundary line for high school and 
junior high school pupil assignment purposes, between the 
northerly and southerly parts of the city. They contend 
that this is a natural boundary and that to use it for these 
purposes will be for the welfare of all the pupils of junior 
high school and high school ages and that it will eliminate 
pupil movement across the railroad tracks through com­
mercial and industrial areas, and thus minimize dangers 
incident to traffic.

Geographically it is without question that the school 
plant north of the railroad tracks is reasonably well sit­
uated with respect to the residential areas in the northerly 
section of the school district.

The school plant south of the railroad tracks is not as 
well located with respect to the residential areas in 
the southerly part of the district, but no other boundary 
line for high school-junior high school purposes which can 
be envisioned would afford a more efficient utilization of 
this school plant and the plant north of the railroad tracks 
from the standpoint of nearness of pupils to both schools.

Plaintiffs complain that nearly all Negro pupils who 
are now of junior high school and high school ages and 
who will reach such ages in the future live in the southerly 
part of Clarksdale and would therefore be required to at­
tend the school south of the railroad, which is the one 
formerly operated as a Negro school, and, that thus such 
a zone will result in the continuation of a segregated school 
at this site. This argument, however, overlooks the fact 
that there are also a substantial number of white pupils 
who live in this zone who will be required to attend the 
school south of the railroad at junior high school and high 
school levels, if they wish to avail themselves of the facili­
ties of this public school system.



A3 9

Complaint is also made that practically no school age 
Negroes live in the northerly zone and that thus the junior 
high school-high school facility in this zone, which was 
and is all white, will continue to be all white. It is pos­
sible that the use of this railroad as the dividing line be­
tween these zones may result in this school remaining, 
from the pupil standpoint, all white. But, some Negro 
families have lived in the northerly zone. Perhaps some 
Negroes live there now. It must also be noted that there 
are no laws or ordinances to prevent Negroes living in 
this zone—in fact there could not be.

The facts which give rise to these two of plaintiffs’ 
complaints arise from racial housing patterns which have 
developed over the years. They were not caused by the 
proposal to use this railroad as the boundary between 
these zones and they do not cause this railroad to be any 
less a proper boundary when all factors are considered.

It appears to this court without question that the use 
of this raised railroad track as a zone boundary for junior 
high school and high school purposes is reasonable. It is a 
natural boundary. Its use will permit efficient utilization 
of both these school plants, will place a great majority of 
pupils in both zones closer to their school than would be 
the case if any other boundary proposed or considered 
were used and will eliminate for all pupils attending both 
schools the risks inherent in movement through busy com­
mercial and industrial areas.

III.

Proposed Elementary Zones

Of the eight8 elementary schools now operated by this 
school system, three are located north of the railroad on 
the fill and five are to its south.

8. O ne o f these w as com pleted  in tim e fo r  use begin n in g  in 
January 1965 (see  footnote  4, supra).



A40

Defendants’ approach to the establishment of attend­
ance zones for elementary schools was to divide the school 
district into four sub-districts, with three of the sub-dis­
tricts being divided into attendance zones and the fourth 
to be itself an attendance zone.

Two of these proposed sub-districts are in the afore­
mentioned northerly part of the school district and two are 
in the area to the south of the elevated railroad.

Defendants propose to use the Sunflower River as the 
boundary between the two sub-districts north and to use 
the north-south railroad (unelevated) as the boundary be­
tween the two sub-districts south.

These sub-districts may be utilitarian from the stand­
point of school administration, but, frankly, with respect 
to the problems here presented by this case, sub-districts, 
as such, seem to have little significance. They do not 
appear to bear with any appreciable force with respect 
to the problems this court has in considering the proposed 
boundary lines for attendance zones, since the court must 
look at each attendance zone as it is proposed to be es­
tablished for each school. With these thoughts in mind 
and with the disposition this court is making with respect 
to attendance zones, it is sufficient now to say that the 
sub-district boundary lines as proposed, both north and 
south are natural boundary lines easily defined and easy 
to be seen. Plaintiffs have made no objection to these 
proposed sub-district boundary lines directly. Hence, they 
will be approved.

However, in the light of this court’s action with respect 
to proposed elementary school attendance zones south of 
the elevated railroad, defendants, if they care to do so, 
may revise the sub-district boundaries for that territory, 
but subject to approval by the court.



A41

Attendance Zones—North

The attendance zones proposed for the existing Heidel­
berg, Kirkpatrick and Oakhurst Schools and for the school 
being constructed for the fourth proposed zone north of 
the elevated railroad9 all seem to be reasonably well de­
signed for efficient use of these school facilities, taking into 
account the proximity of residential areas within each 
zone10 11 to the school plant therein (or to be therein), the 
pupil capacity of these facilities, and the safety and wel­
fare of the pupils residing therein. Even the educational 
experts who testified for plaintiffs could find little real 
fault with the plans for these zones. There was some 
criticism of some of these zones by these witnesses, but 
this was so only as these zones were related by them to 
the area south of the elevated railroad. In the light of 
this court’s views heretofore expressed with respect to 
the suitability of this railroad as a zone boundary for 
high school-junior high school purposes, such criticism has 
little weight.11 These are good plans for these four zones. 
They should and will be approved.

Attendance Zones—South

The territory south of the railroad which is on the 
earth fill is divided into two “sub-districts” (E-l and E-2), 
The boundary between these two sub-districts, as afore­
mentioned, is the north-south railroad which is not on a 
fill. E-l is east of the north-south railroad and E-2 is to 
the west. In the eastern sub-district (E -l), three schools 
are located, Oliver (E -l-A ), Hall (E-l-B) and Clark (E-

9. This p roposed  zone is also a “ su b -d is tr ict” .
10. P robab le  increases in som e o f  the residential areas b y  

reason o f  n ew  residential developm ents also have been  considered.
11. It w ou ld  be even  m ore  u ndesirable fo r  ch ildren  o f e le ­

m entary school ages to  cross this ra ilroad  and the territory  a d ja ­
cent thereto than it w ou ld  be  fo r  ch ildren  in the h igher grades to 
do so.



A42

1-C). Two schools are in the western sub-district (E-2), 
Washington (E-2-A) and Riverton (E-2-B).

The eastern sub-district territory approximates a 
rough triangle with the northern and western sides 
formed by the two railroads and the eastern by the school 
district boundary which zigzags somewhat like stair­
steps. The Oliver School is in the southeastern part of 
this territory, while Clark and Hall are in the north­
western section. Hall is somewhat further to the north 
than Clark and is east of Clark, although these two school 
buildings are quite close together.

In the western sub-district (E-2), Washington School 
is located in the southeastern section, while Riverton is 
located in the west central section.12

From what has been said and from a careful examina­
tion of the maps in evidence, it is apparent that a number 
of these school facilities are poorly located when con­
sidered in the light of present needs and in the light of 
the many problems now presented incident to desegrega­
tion of a school system whose physical plant was largely 
developed over a period of many years when all schools 
in the system were operated on a completely segregated 
basis. Moreover, it goes without saying that the wisdom 
of hindsight with respect to where schools should have 
been built has no value now. The “Monday morning 
quarterback” can contribute nothing here. The realities 
of the locations of these schools must be accepted and at­
tendance zones devised which will best meet the needs of

12. R iverton  S ch ool is a n e w ly  constructed  fa c ility  w h ich  
w as first used begin n in g  w ith  th e  second sem ester o f  the school 
year 1964-1965. (S ee  footn ote  4, supra.) It is situated at the 
n orth -w estern  edge o f  the bu ilt up residential areas in this part 
o f  the school district. It is said that this site w as selected  fo r  tw o 
prin cipa l reasons— the h igh  cost o f  land at a m ore  suitable lo ca ­
tion  and prospective  fu ture residential developm en t and grow th.



A43

this school system and of all of the pupils who are en­
titled to attend school in the facilities operated by this 
school district. The attendance zones proposed by defend­
ants must be evaluated objectively to determine whether 
they will afford efficient use of the existing school plant, 
if they have taken into account proximity of prospective 
pupils to the school to which these zones would require 
they be assigned, to ascertain if the safety and welfare 
of the pupils will be reasonably well served and to resolve 
what is a most important issue in this case—whether 
these zones have been proposed on a completely racially 
non-discriminatory basis.

As has been pointed out, sub-districts, as such, have 
little value here. This court must look to the proposed 
attendance zones.

Riverton (E-2-B)

This attendance zone as proposed has as its northerly 
boundary the elevated railroad, its southerly boundary 
the boundary of the school district and its easterly bound­
ary the Sunflower River north to Fifth Street.13 Then the 
boundary runs east along Fifth Street to the north-south 
railroad and then along this railroad to the elevated rail­
road. The school building is in the approximate geo­
graphical center of the proposed zone, but at the western 
edge of the built up area.

This new building14 operated at near capacity during 
the last semester of the 1964-1965 school year.15

13. T here is a m odern  b r id g e  across the river on  F ourth  
Street, the m id line o f  this area.

14. T his bu ild in g  has 12 room s w ith  a m axim um  rated pu pil 
capacity, accord in g  to  the rating system  com m on ly  used b y  ac­
cred itin g  (ra tin g ) agencies in M ississippi, o f  420. A ll  12 room s 
w ere  in use during  the school year 1964-1965.

15. O ne o f  p la in tiffs ’ experts b e lieved  it to  be crow ded . T he 
superintendent o f  these schools said this w itness had m isinterpreted 
data and that the school w as n ot crow ded .



A44

Accepting, as this court has done, that the elevated 
railroad is a valid, suitable zone boundary, criticism of 
this proposed zone by plaintiffs’ experts was minimal.16

Taking the physical facts as they are (location and 
capacity of school building, residential areas in the zone, 
routes of travel) and applying the mentioned criteria 
these proposed boundaries seem to establish a valid at­
tendance zone,17 with the possible exception of the ter­
ritory east of the Sunflower River and north of Fifth 
Street. The center of the residential area within that 
rectangle seems about as near to the Washington School 
(E-2-A)18 as to the Riverton School, and much nearer 
to Clark School (E -l-C ).19

Oliver (E -l-A )

This proposed attendance zone has as its easterly and 
southern boundaries the boundary lines of the school dis­
trict.20 From the western end of the south boundary the 
line runs due north and then northwesterly along Florida

16. One o f them  w ou ld  have had som e pu pils  from  som e­
w h ere  in  this d istrict cross the ra ilroad  and attend sch ool at O ak - 
hurst w h ich  he claim ed had space available. But, apparently  he 
m isin terpreted  data and d id  n ot appreciate  fu lly  the situation w ith  
respect to  the O akhurst zone

17. It is crossed  b y  U nited States H ighw ay No. 61, but ap­
paren tly  all residential areas n ow  in  existence are on the sam e 
side o f  the h igh w ay  as the school bu ilding.

18. I f  this section  is added to the W ashington  S ch ool zone 
( E - 2 - A ) , the pupils liv in g  there w ou ld  n ot h ave  to  cross the river 
and w ou ld  travel about the sam e distance. T hey  w ou ld  have to 
cross U nited States H igh w ay  N o. 61.

19. I f  this area is m ade a part o f  the C lark S ch ool zone 
( E - l - C )  the pupils w ou ld  be m u ch  closer but w ou ld  cross the 
n orth -sou th  ra ilroad  to go  to  school. S ince it  is not elevated , and 
apparently  has reasonably  safe street crossings and since a d jo in ­
ing territory  at this section  is not h ea v ily  com m ercia lized  or  in ­
dustrialized, it is not as great a barrier or hazard as the elevated 
railroad.

20. T he southern bou n dary  exten ds in to the district fo r  about 
150 feet along the south line o f  W issler Street.



A45

Street to the elevated railroad which forms the northerly 
boundary. The school building21 is in the southeastern 
portion of this territory. Florida Street is prominent and 
improved. Thus all proposed boundaries are clearly de­
fined and easy to identify. But, there are several ap­
parently bad features with respect to this proposed zone.

The school building is not at all well located with refer­
ence to all of the territory. Pupils in the extreme north­
western area are approximately 800 to 800 yards from 
the school and only 100 to 200 yards from Hall School 
(E -l-B ). Pupils living in the extreme northeasterly area 
are more than 1000 yards from the school, but they would 
be about 700 yards from Hall School. United States High­
way No. 61 runs through this territory in a southwesterly- 
northeasterly direction. About one-third of the territory 
is south and the rest north of this highway. The highway 
is an obstacle and a hazard to pupil traffic across it. It 
might be feasible to use this highway as the northerly 
boundary of the zone for Oliver School and extend the 
zone westward along this highway to United States 
Highway No. 49 (which runs in a northwesterly-south- 
easterly direction) and to the south along that highway to 
the school district boundary.

Hall (E-l-B)

The zone proposed for this school has as its northerly 
boundary the elevated railroad, for its easterly boundary 
Florida Street from this railroad to Wissler Street then 
the school district boundary. For its southerly boundaiy 
it has the district line. For its westerly boundary it has * 14

21. T here  are 19 room s in this p lant bu t 4 o f  them  are a l­
located  to H iggins (h igh  sch o o l-ju n io r  h igh sch o o l) . O f the 15 
ava ilab le  fo r  e lem entary  sch ool purposes, on ly  14 are used. These
14 room s h ave a m axim u m  rated capacity  o f  490. (S ee  footnote  
14, supra.) T he 15 room s w ou ld  have a m axim um  rated capacity  
o f  525. N ineteen room s w ou ld  have a m axim um  rated capacity  o f  
665.



A46

the unelevated railroad from the southerly boundary to 
United States Highway No. 61, the highway to Mississippi 
Street, that street to Seventh Street. It then runs a short 
distance in an easterly direction along that street, then 
northeasterly along a subdivision boundary (which is not 
even a street or an alley) which would be difficult for a 
layman to identify on the ground, to Wilson Avenue 
and then along this avenue to the elevated railroad. The 
school plant is located in the extreme north central area 
of this elongated zone. It is adjacent to the elevated rail­
road.22

The evidence shows that the section of Wilson Avenue 
which forms a part of this boundary is improved for only 
a short distance, the rest is unimproved and some consists 
only of “ tracks in the grass.” Further, the evidence 
strongly indicates, if it does not conclusively show, that 
to the west of Wilson Avenue and the subdivision bound­
ary the population is white and to the east the population 
is Negro.

It is fully recognized that the proximity of this 
school—Hall—to Clark School presents a built in problem 
for defendants. These buildings probably were well lo­
cated when built years ago, for the operation of a racially 
segregated school system. No reasonable person would 
contend that they are well located for a desegregated 
system.

From the map it appears that more than fifty blocks 
of what appears to be residential area is included in this 
proposed zone, with the rather tortured and indistinct 
section of boundary aforementioned, while it thus also 14

22. T his p lant consists o f  three units. One unit o f  4 room s 
is not in  use. In the tw o  units in use there are 16 room s, but on ly
14 are in use. These 14 h ave  a m axim u m  rated pu p il capacity  o f  
490. T he 16 room s w ou ld  have a m axim um  rated capacity  o f  560. 
A ll 20 room s w ou ld  have a m axim u m  rated capacity  o f  700.



A47

appears that less than half that number of blocks of ap­
parent residential area are included in the compact regu­
lar shaped zone proposed for Clark School.23 Considera­
tion must also be given to the fact that children living in 
many sections of this proposed zone would be closer to 
other schools, notably Clark School for some in the 
north-western area24 and Washington or Oliver Schools for 
all in the southern area.25

It must also be noted that this proposed zone is bi­
sected by the aforementioned United States Highway 
No. 61.26

It seems probable that an attendance zone for this 
school could be devised on a more efficient basis.

Washington (E-2-A)

The territory proposed for the attendance zone for this 
school is—in crude form—shaped like a boot. Its southerly 
boundary is the school district line which forms the heel and 
sole of the boot. Its westerly boundary, the Sunflower 
River, forms the toe, foot and upper front of the boot. 
Fifth Street from the river easterly to the unelevated rail­
road forms the top of the boot and is the northerly bound­
ary. From Fifth Street southeasterly to the heel of the boot 
the unelevated railroad forms the boundary. All of these 
boundaries are clear and easily identifiable.

23. It m ust also be  noted  here that a substantial n um ber o f 
pupils w h o  reside in p roposed  zone E -3 -A  w ill attend C lark Sch ool 
until the n ew  b u ild in g  fo r  that zone is com pleted  and ready  fo r  
use.

24. Som e o f  these w ou ld  be  w ith in  abou t one b lock  o f  C lark 
as com pared  to about s ix  to  Hall.

25. T o attend W ashington  fo r  those in  this area w ou ld  re ­
qu ire  that th ey  cross the unelevated  railroad. (S ee  footn ote  17, 
su pra .)

26. See discussion  o f  O liver ( E - l - A ) ,  supra.



A48

The school plant is just north of the arch of the boot.27 
It is not well located for most of the area in this zone. 
There appear to be about twelve to fourteen blocks of res­
idential area extending to the north of the school. Just to 
the north of this area there seems to be an industrial area 
entirely across the zone, averaging approximately 900 yards 
north and south. To the north of this industrial area, in 
the upper one-half of the boot leg or top, there appear to 
be between fifteen to twenty blocks of residential area. 
Approximately four to five of these blocks are south of 
United States Highway No. 61, with the others being to the 
north. This highway cuts across this zone in a northeast­
erly-southwesterly direction. As has been mentioned, this 
highway is an obstacle and a hazard to pupil traffic across 
it.

Most of the northerly residential area in this zone is 
as close to other schools (Riverton and Clark) as to Wash­
ington. Much of it is closer to Clark.

It may well be that to use this school—Washington— 
to its capacity will require that this proposed attendance 
zone be used for it. However, if changes are made in the 
zones proposed for other schools south of the elevated rail­
road, consideration probably should be given to a redesign 
of the zone for this school. One apparent possibility would 
be to add to this zone the territory bounded by United 
States Highway No. 49, the unelevated railroad, United 
States Highway No. 61 and the school boundary, deleting 
the area within the zone as now proposed north of United 
States Highway No. 61. This, of course, may not be feasible 
because of pupil population within these areas and the 
places of residence of these children.

27. T here  are 16 room s availab le in this p lant, but on ly  15 
are in  use. T he 15 room s h ave a m axim um  rated pu pil capacity  
o f  525. A ll  16 room s w ou ld  have a m axim um  rated capacity  o f 
560. (S ee  footn ote  14, supra,)



A49

Clark (E-l-C)

The proposed zone for this school28 is bounded on the 
north by the elevated railroad, on the west by the unele­
vated railroad, on the south by Highway No. 61 and on the 
east by the tortured line discussed as the northwesterly 
boundary proposed for Hall (E -l-B ), supra. All of these 
boundaries are easy to locate and identify and are suitable,29 
except the easterly line north of Seventh Street. It is not 
suggested that the sound capacity of this school be ignored 
or that its physical condition30 not be considered, or that de­
fendants must extend the zone for it in any particular di­
rection, or that the temporary non-zone pupil load be 
ignored (see footnote 23, supra). But, considering the de­
fects of other zones as aforementioned, this zone as now 
proposed cannot and will not be approved for permanent use 
for this school.

Summary—South Zones

From what has been said, it is apparent that this court 
is not now convinced that all or any of the proposed at­
tendance zones south of the elevated railroad meet the 
criteria thus far discussed. It may well be that the lack 
of educational expertise on its part causes this uncertainty. 
Facts and figures in the record here, which are now obscure 
to this court, may well demonstrate with certainty that

28. F or the area w ith in  this p roposed  zone the sch ool plant 
is reason ably  w e ll located . It is w ith in  a p prox im ately  on e  b lock  
o f  the geograph ica l center o f  the zone. C lark  has 7 classroom s 
bu t on ly  6 are in  use. T he 6 in use h ave  a m axim u m  rated pupil 
capacity  o f  210. A ll  7 room s w ou ld  have a m axim um  rated ca ­
pacity  o f  245.

29. T he u nelevated  ra ilroad  is a “ su itable”  bou ndary , but is 
n ot such an obstacle  as w ou ld  m ake its use as a bou n dary  m anda­
tory . (S ee  footn ote  17, supra.)

30. T he ev iden ce  show s w ith ou t dispute that this sch ool p lant 
is in  a p o o r  state o f  repair and that defendants are seriously  co n ­
cern ed  as to w h eth er it can sa fe ly  be  used m uch longer.



A50

these proposed zones are, or are not, constitutionally ac­
ceptable. But, at this time, in good judicial conscience, these 
proposals can neither be approved nor disapproved, either 
in whole or in part. The obvious interrelation of all these 
zones forbids approval of less than all. This is so to a large 
extent, also, because the probabilities are that this court’s 
final action in this regard may well be action which will 
vitally affect the educational rights and the welfare of the 
children of this school district for years to come. Schools 
in this system are to open in approximately a month. Reg­
istration for the oncoming session will occur before that. 
Time, then, is extremely important. The school children 
of this district, plaintiffs and, assuredly, defendants need 
now to know what will and will not be done for the opening 
of schools for the school year 1965-1966. Moreover, as a 
practical matter, it would be impossible for defendants, up­
on whom the first and basic responsibility rests, to recon­
sider adequately, and revise if necessary, their plans for 
these attendance zones, in time for them to be submitted 
to and properly considered on an adversary basis by this 
court, and disposed of in time to be effective by the sched­
uled time for registration.

In these circumstances, in an effort to prevent anxiety 
and confusion on the part of all interested parties, and dis­
ruption of this school system, the attendance zones proposed 
for all elementary schools south of the elevated railroad 
will be approved for use, but only for the first semester of 
the oncoming school session for the school year 1965-1966, 
and defendants will be required to restudy and reconsider 
their proposals and to resubmit their plans for the attend­
ance zoning for elementary school purposes of all of the 
school district south of the elevated railroad.



A51

IV.

O t h e r  I s s u e s

Plaintiffs complain of differences as between schools 
which have been31 all white—pupils and staffs—and those 
which have been all Negro, which have existed with re­
spect to teacher salary scales, curricula,32 33 teacher-pupil 
ratios and per pupil expenditures of public funds. On the 
face of the figures furnished by defendants, most of these 
complaints are justified. Some of these differences have 
already been corrected (i. e., all teachers—Negro and 
white—are to be paid on exactly the same basis begin­
ning with the 1965-1966 school session). All pupils who 
are entitled to attend school in this public school system 
have the undoubted right to benefits equal to those afforded 
to any other pupil of the same age or grade. Thus, all such 
differences as now exist will be required to be eliminated. 
This court’s orders, inter alia, will provide:

A. That curricula at all schools of each type38 be 
identical.

B. That if defendants wish to offer any course at 
one junior high school or at one high school and not 
at the other, all pupils at the other such school will be

31. No m ix in g  o f  the races in  any sch ool resu lted  from  the 
desegregation  under orders o f  this court o f  grades one and tw o 
during the sch ool year 1964-1965. A n  appreciable  n um ber o f 
w h ite  pupils d id  not attend any school in this system  during that 
tim e, w h ere  the only sch ool availab le  had N egro pupils. Thus all 
sch ools and a ll grades continued  to  be segregated  and p la in tiffs  
consistently  re fer  to  “ N egro”  and “ w h ite”  schools.

32. This com pla in t w as w ith  respect to  d ifferen ces thought 
to  exist b y  one o f  p la in tiffs ’ experts betw een  courses availab le to 
the h igh  sch ool south o f  the elevated  ra ilroad  and the h igh  school 
n orth  o f the railroad. In response to questions from  the bench , 
defen dants ’ superintendent said that this w as n ot the case and 
that any course availab le  at one sch ool w as availab le  on  the sam e 
basis as at the other.

33. T ype o f school, o f  course, m eans elem entary, ju n ior  high 
and h igh  schools.



A52

so notified and any pupil at such other school will have 
the right to transfer if so desired to the school where 
such course is to be offered.

C. Teacher-pupil ratios must be maintained at 
substantially the same level for each grade taught at 
each school of each type.

D. Per pupil expenditures of public funds must be 
maintained at substantially the same level for all 
schools of each type, except for such differences as 
may reasonably result from:

1) Variations in age and physical condition of 
school buildings and fa'cilities.

2) Variations in types of licenses held by 
members of the teaching staff assigned and salaries 
paid.

3) Greater expenditures which may be reason­
ably required to bring any library, laboratory, shop, 
home economics equipment, visual aids equipment or 
supplies, or other such equipment or supplies34 to the 
level of all other similar equipment or supplies at all 
schools of each type.

4) Greater expenditures which may be reason­
ably required to bring comfort and recreational facil­
ities, equipment and supplies,34 to the level of all 
other similar facilities, equipment and supplies, at all 
schools of each type.

Any other significant variation from standards of equal 
opportunity and equal treatment for all pupils of each age 
or grade grouping must and will be eliminated by orders of 
this court, where shown to exist.

Plaintiffs, with merit, also complain that the staff at 
each school is now on a completely segregated basis—that

34. Som e o f  these m ight better be  classed as capital in vest­
m ents rather than operating  expenses, bu t all o f  them  are som e­
tim es classed gen era lly  as expenses. H ence all are in cluded  here.



A53

is, that they are all Negro or all white in every school in 
the system.

Employment contracts for principals and teachers in 
all public schools of Mississippi extend, at the maximum, 
for three years. The Board of Trustees, in its discretion, 
may elect to enter into contracts for the maximum period, 
or for lesser periods of one or two years. Mississippi Code 
Annotated 1942 (Recompiled) §6282-17. There is no ten­
ure except for the contractual period. The defendant 
school board has apparently elected to enter into contracts 
for the minimum period, so that principals and teachers 
are currently employed on one-year contracts. Contracts 
for the 1965-1966 school year have already been executed.

Each individual teacher is employed for a specific pur­
pose at a specific school. The employment is accomplished 
upon recommendation of the principal of the particular 
school to the superintendent, the recommendation of the 
superintendent to the Board of Trustees, and the acceptance 
of such recommendation by the Board, followed by author­
ization for the execution of the contract. Mississippi Code 
Annotated 1942 (Recompiled) §§6282-05 to 6282-09. Thus, 
it is at once apparent that it would be improvident at this 
time to order any staff desegregation for the oncoming 
school year. To do so would cause unwarranted confusion, 
and would, as this court finds, probably result in a general 
lowering of the quality of education in this school system 
for that school year. For example, such a course of action 
would result in many teachers working under a principal 
who had not recommended that teacher’s employment and 
at a school not considered by the teacher or the school 
authorities at the time when application was made to 
teach during the school year 1965-1966. It could result in 
some teachers being required to teach subjects outside the 
teacher’s field, i.e., a history major teaching mathematics



A54

or a science major teaching English. In effect, it would 
be a drastic rewriting of the contract for each teacher, and, 
in fact it would cause dissatisfaction and a lowering of staff 
morale generally. It could cause resignations by some 
teachers, which would, if such occurred, create the now un­
necessary and serious problems of last minute efforts to 
find qualified replacement teachers.86

Hence, for these reasons, resolution of the problem of 
faculty desegregation will be deferred for the time being.

V.

Expert W itnesses

Three witnesses, each with special learning, knowl­
edge and experience in public education, testified on the 
last hearing. Two of these were offered by plaintiffs. The 
other—the superintendent of this school system—was the 
principal witness for defendant. This last witness also 
testified extensively at the hearing held on August 19, 1964. 
For years he has lived and is now living with this school 
system. He is the principal architect of the zoning plans 
proposed by defendants and is an articulate, persuasive ad­
vocate for their total acceptance. He consistently planned 
and is now planning ahead to meet the needs of this school 
system which is rated and recognized as one of the out­
standing public school systems in Mississippi. There can 
be no doubt about his devotion to the cause of public educa­
tion and to the education of all children—white and 
Negro—who attend school at any Clarksdale public school. 
His lifetime of actual experience in this field demonstrates 
his competence. His intimate knowledge of the public 
school situation at Clarksdale is obvious. 35

35. It is a m atter o f  com m on  k n ow ledge  that qu a lified  teach ­
ers are in short su pp ly  in M ississippi. C larksdale n ow  has an e x ­
cep tion a lly  w e ll qu a lified  professiona l staff.



A55

The other two experts are accepted as being educa­
tionally and theoretically well qualified. The practical ex­
perience of neither, in the actual operation of a school sys­
tem (such as that of the Clarksdale Municipal Separate 
School District) approaches that of the superintendent. 
Their knowledge of this school system came from data fur­
nished by defendants in response to interrogatories,88 and 
from personal observations made during only a few hours 
visit to this community.

Additionally, it was obvious that each of these wit­
nesses is committed to the philosophy that mixing of Ne­
gro and white pupils in classrooms is desirable and that 
such a system produces a better education for all pupils. 
This may well be so, but the devotion of these two wit­
nesses to this philosophy made it difficult for them to ex­
press valid opinions with respect to the legal problems for 
solution by this court in this litigation. Basically, the solu­
tion of those legal problems rests on the answer to the 
question, “are pupils dealt with as individuals without re­
gard to race?” . The legal question is not, “are Negro and 
white pupils mixed in the classrooms?” .

It is the legal responsibility of defendants to operate 
a racially non-diseriminatory, desegregated school system, 
and the obligation of this court to see that they do. It is 
neither the legal responsibility of defendants, nor the ob­
ligation of this court to require that Negro and white pupils 
be mixed in the classroom. This is the present legal dis­
tinction between integration and desegregation. The lan­
guage of the court in Avery v. Wichita Falls Independent 36

36. A pp a ren tly  som e o f  the term in ology  used b y  defendants 
(w h ich  w as that used b y  pu b lic  schools in  M ississippi, b y  the state 
rating agencies, and b y  sch ool rating agencies in this a rea ) was 
d ifferen t from  that w ith  w h ich  these w itnesses w ere  fam iliar, 
causing som e con fu sion  and m isinterpretation  on their part.



A56

School District, 241 F. 2d 230 (5th Cir. 1957) cert. den. 
353 U. S. 938 makes this distinction clear:

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.

The court then quoted the now classic per curiam of the 
three-judge court in Briggs v. Elliott, 132 F. Supp. 778 
(E. D. S. C. 1955), in which it was said:

(The Supreme Court) has not decided that the states 
must mix persons of different races in the schools or 
must require them to attend schools or must deprive 
them of the right of choosing the schools they attend. 
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. 
. . . Nothing in the Constitution or in the decision 
of the Supreme Court takes away from the people 
freedom to choose the schools they attend. The Con­
stitution, in other words, does not require integra­
tion. It merely forbids discrimination.87

Judge Bell, speaking for the court in Evers v. Jackson 
Municipal Separate School District, 328 F. 2d 408, 410 
(5th Cir. 1964), recently reaffirmed these principles, as 
did the Courts of Appeals for the Seventh Circuit in 
Bell v. School City of Gary, Indiana, 324 F. 2d 209 (7th 
Cir. 1963), and the Tenth Circuit in Downs v. The Board 
of Education of Kansas City, 336 F. 2d 988 (10th Cir. 37

37. This cou rt is not u nm in d fu l o f  footn ote  5 to Judge W is­
d om ’s op in ion  in Singleton v. Jackson School District, decided
June 22, 1965 b y  the C ourt o f  A ppeals o f  this circu it, ......... F. 2d
_____  H ow ever, the precise  question  o f  “ in tegration ”  vis a v is
“ desegregation ”  w as in no w a y  an issue in that case. H ence, this 
court m ust treat the rem arks in that footnote  as dictum .



A57

1964).38 In this circuit, see also Borders v. Rippy, 247 
F. 2d 268 (5th Cir. 1957); Rippy v. Borders, 250 F. 2d 
690 (5th Cir. 1957); Holland v. Board of Public Instruc­
tion, 258 F. 2d 730 (5th Cir, 1958); and Stell v. Savannah- 
Chatham County Board of Education, 333 F. 2d 55 (5th 
Cir. 1964).

The same view was adopted by Congress in drafting 
the Civil Rights Act of 1964. Section 401 (b) of the Act, 
42 U.S.C. § 2000c (b ), provides:

(b) “Desegregation” means the assignment of 
students to public schools and within such schools 
without regard to their race, color, religion, or national 
origin, but “desegregation” shall not mean the assign­
ment of students to public schools in order to over­
come racial imbalance.
Nor, as it must be noted, do plaintiffs seek here a right 

to require affirmative integration in these schools. They 
clearly so state in their brief.

The aforementioned precise legal requirements, the 
fact that neither of plaintiffs’ experts had intimate knowl­
edge of this community or of this school system, plus the 
fact that neither these witnesses nor anyone else for plain­
tiffs offered a complete substitute zoning plan39 for that

38. In  Downs, the cou rt said:
A ppellan ts also con ten d  that even  though  the B oard  m ay 

not be  pursu ing a p o licy  o f  in tentional segregation , there is 
still segregation  in fa ct in the sch ool system  and under the 
prin cip les o f  B row n  v . B oard  o f E ducation, supra, the B oard  
has a positive  and a ffirm ative  du ty  to  elim inate segregation  
in fa ct as w e ll as segregation  b y  intention . W h ile  there 
seem s to be  authority  to support that contention , the better 
ru le  is that a lthough the F ourteenth  A m en dm ent proh ib its 
segregation, it does not com m and integration  o f the races 
in  the pu b lic  schools and N egro ch ildren  have no constitutional 
right to have w h ite  ch ildren  attend sch ool w ith  them . (C ita ­
tions om itted .)
39. Substantially  all suggestions w ere  w ith  respect to  in d i­

v id u a l districts or a “ b road  bru sh ”  generalized  and sw eeping state­
m ent o f  princip les, or a sim ilar n egative statem ent that the p ro ­
posed  zones did not con form  to such principles.



A58

proposed by defendants makes it appropriate to say that 
these witnesses gave little help to the court. Moreover, 
their difficulty in distinguishing between their own ap­
parent philosophical educational objective—integration— 
and the legal requirements of desegregation make it seem 
that some of their zoning suggestions were the product of 
their own beliefs, rather than the result of objective analy­
sis of all relevant facts.40

It is obvious that plaintiffs’ experts did not know, nor 
understand, what weight was, or should be, given to the 
actual physical condition of the several school plants of 
this system (and the several parts of some of the plants 
at individual school sites). It is equally as obvious that 
defendants’ superintendent did understand these and all 
other relevant factors to a remarkable degree for a man in 
his position and that he, in most instances, gave proper 
weight to all.41 It is also obvious that these experts knew 
little about the development of this community, its prospec­
tive growth or the probable areas or directions thereof, 
while defendants did. They knew little about funds avail­
able to defendants, or sources of these funds, or require­
ments for budgeting or application of these funds, while 
defendants did. Their knowledge of actual locations of 
pupil population was sparse, but defendants’ was sound. 
Their knowledge of the type of character42 of pupils was

40 A t least one zon ing  recom m endation  b y  one o f  these w it ­
nesses had n o  apparent ju stifica tion  excep t that it w o u ld  re­
quire an actual m ix in g  o f N egro  and w hite  pupils. A ll other re le ­
vant factors seem ed to  b e  against this proposal.

41. In v ie w  o f  the cou rt ’s present action  w ith  respect to e le ­
m entary  sch ool attendance zones south o f the e levated  railroad, 
he w ill h ave tim e to consult m ore  fu lly  w ith  the p rin cipa l o f  each  
o f  these schools and w ith  the m aintenance and custod ial personnel 
(m a n y  o f  w h om  w ere  not availab le  to h im  w hen  the plan w as first 
design ed ) so that, h op efu lly , defendants w ill be  able to re -su bm it 
plans fo r  those zones w h ich  this court can approve prom ptly .

42. W hether am bu latory  or  w ith  a fixed , perm anent res i­
dence, w h eth er from  disadvantaged or poor hom es, or from  e co ­
n om ica lly  sound and secure homes.



A59

virtually nonexistent, while defendants’ was sound and 
comprehensive. Other similar comparisons could be made, 
but it suffices now to say, in sum, that their approach was 
essentially negative disapproval of defendants’ plans—in 
almost every category. Thus, although fully recognizing 
their competence in specialized fields of public education 
and accepting their sincerity and good purposes, this court 
can give little weight to their views.

On the other hand, this court is convinced that defend­
ants’ superintendent, in addition to having the qualities 
aforementioned, is commendably objective and without 
guile. It goes without saying that he is the best informed 
witness with respect to this school system to testify in 
this case. His views command respect, and it may well be 
that the court was at fault in not taking a more active 
part in examining him with respect to some, or all, of the 
questions for which this court does not, at this time, have 
clear and certain answers.

As has been said, the facts upon which such answers 
could be properly based may now be before the court. But, 
to solve the many and varied problems which obtain in 
devising permanent elementary school attendance zones 
for the area of this school district which is to the south of 
the elevated railroad presents to this court as formidable 
a legal maze as any ever dealt with by it.

Hence, the aforementioned action will be taken with 
respect to that part of this case in order that, in the end, 
this court may have as sound an understanding as possible 
of every aspect, every fact, every condition, every situation 
which may properly relate to or bear upon these problems.



A60

VI.

The City of Clarksdale, Urban Renewal 
and Coahoma County

There are some unusual aspects to the record here and 
plaintiffs’ position with respect thereto. Viewed pragmat­
ically, much of this evidence, which will be discussed, is ir­
relevant. except as it may affect credibility of some wit­
nesses and the good faith of defendants in preparing their 
plans which are at issue here.

To view it in proper perspective, it must be understood 
that although the territory in the Clarksdale Municipal 
Separate School District is identical to the territory in 
the City of Clarksdale, the governments of the school and 
of the municipality are separate and distinct. The schools 
are governed by a Board of Trustees. Individual trustees 
are elected for staggered statutory terms by the govern­
ing authorities of the municipality. Mississippi Code An­
notated 1942 (Recompiled) § 6328-07 (b). Other than such 
elections the only connection the governing authorities of 
the municipality have with the school system is that they 
must levy taxes required by state law for the support of 
the separate school district under the minimum education 
program, Mississippi Code Annotated 1942 (Recompiled) 
§ 6518-02, and additional taxes up to a statutory limit 
upon demand of the Board of Trustees, Mississippi Code 
Annotated 1942 (Recompiled) § 6518-06. Further, on peti­
tion of the Board of Trustees for tax support in addition 
to that provided by the last cited statute, the governing 
authorities of the city must call a special election so that 
the electors of the school district may approve or disap­
prove of such additional taxes. Mississippi Code An­
notated 1942 (Recompiled) § 6518-07.

The governing authorities of the city have no other re­
sponsibility in law for the schools of the school district



A61

or authority over the trustees, and the trustees of the 
school district have no authority with respect to any mu­
nicipal problem or program.

The governing authorities of Coahoma County have no 
connection with, authority over or responsibility for this 
school district, nor for this municipality.

With that background the aforementioned evidence 
will be discussed. In 1961, long before this case began, the 
City of Clarksdale initiated a program of urban renewal, 
designed to improve the community primarily by the elim­
ination of slum areas and sub-standard housing, and other­
wise by the creation or construction of modern housing 
facilities, utility systems, and other related facilities of 
public usefulness. It is a matter of common knowledge 
that similar programs began on a nationwide basis as a re­
sult of federal programs and federal financing for them. 
In Clarksdale, independent, outside consultants were em­
ployed to study and survey the local situation and make 
recommendations to the governing authorities through the 
Planning Commission. These surveys, studies and plans 
were well under way, with the expectation that a large 
part of the financing to put them into effect would come 
from federal sources. These expectations were frustrated, 
however, when the Mississippi Legislature by statute de­
stroyed the right of the city to participate in such a fed­
eral program. Mississippi Code Annotated 1942 (Recom­
piled) § 7300.5, effective December 21, 1962. But, the 
Planning Commission and governing authorities of the city 
chose another route to follow in financing this planned 
program—a city sales tax. With the proceeds of this tax, 
the program was undertaken, but at a much slower pace 
than as originally planned in the then contemplation of 
federal financing.



A62

City Actions

1. The city acquired by purchase for park purposes a 
small group of houses and the land on which they were 
situated in what was known as Tuxedo Park. This ter­
ritory was not in the school district. Thus children living 
there could not attend school in the defendant school sys­
tem. These sub-standard, dilapidated houses were occu­
pied by Negroes. They were situated on low lands adja­
cent to a creek which overflowed with each heavy rain. 
Drainage from this area, including human excreta, flowed 
onto the grounds of a Catholic school located across the 
creek and created what was recognized as an unsanitary, 
unhealthy situation.

2. The city, ostensibly to aid in solving its parking 
problems, which it, like many cities, has in abundance, pur­
chased an area near the jail in the edge of the central busi­
ness district for a public automobile parking lot. Sgme 
houses occupied by Negroes were in this area.

3. The city purchased property upon which were 
some houses occupied by Negroes, for garage and storage 
area for its street department equipment. This was in 
the school district.

4. Every few years Clarksdale (as do many other 
municipalities) makes changes (most of which are minor) 
to its corporate limits. The statutory procedure43 for such 
10 to  3374-16.
changes provides for

a) Adoption of an ordinance describing the ter­
ritory involved, defining the entire corporate limits 
as they will exist after the change and stating the rea­
sons for the change.

b) Publication of a certified copy of the ordi­
nance in a local newspaper.

43. M ississippi C ode A nn otated  1942 (R ecom p iled ) §§ 3374-



A63

c) Filing a petition in Chancery Court seeking 
approval of the proposed changes.

d) Making defendants to such court proceedings 
any municipality within three miles of the city limits 
and all parties interested in, affected by or aggrieved 
because of the proposed changes.

e) Having the court fix a time and place for a 
hearing.

f) Publishing a notice to all defendants in a 
local paper of the nature of the proceedings and the 
time and place of the hearing as fixed by the court.

g) Having a hearing before the court at the time 
and place fixed and obtaining court approval.

In July 1964, following all these steps as required by 
law, Clarksdale de-annexed some territory and annexed 
other. There were no objections by plaintiffs or by anyone 
else. At the end of the hearing the proposed changes 
(annexation and de-annexation) were approved by the 
Chancery Court.

In the de-annexed area there were small numbers 
of substandard homes occupied by Negroes. These houses 
were on an unimproved extension of a street alongside 
the railroad embankment or fill, mentioned many times 
herein, on very narrow, shallow lots, and were not served 
by two key city operated utilities—water and sewers. No 
area immediately adjacent is suitable for residential de­
velopment in the near future, tax revenues from this 
property were negligible and to furnish these utility serv­
ices (which would have been required if the area remained 
in the city) would have been prohibitively expensive to 
the city.

All of the areas mentioned in 1), 2), 3) and 4) are 
north of the elevated railroad which has been approved 
by this court as a key school zoning boundary.



A64

County Action

The governing authorities of Coahoma County deter­
mined that it was necessary to enlarge and modernize its 
county jail (which this court judicially knows is also a 
federal contract prison) at a cost of $200,000. For this 
purpose and for a parking area adjacent thereto the county 
purchased property upon which were some houses occupied 
by Negroes. This area is north of the railroad on the 
fill.

One result of the foregoing actions, city and county, 
was that some Negro families44 45 were required to move 
out of these areas. Most, if not all, of these actions were 
consistent with the survey, study and recommendations 
of the aforementioned independent consultants.

Defendants’ Attorney

Defendants’ attorney46 was a member of the Planning 
Commission, which recommended all the foregoing munic­
ipal actions. His personal knowledge of each of these de­
velopments is not clear, except with respect to the Tuxedo 
Park acquisition. For many years before the first case 
in 1954 in which desegregation of public schools was re­
quired, he, for personal as well as community reasons, 
had worked for the correction of the unhealthy and un­
sanitary conditions which existed at Tuxedo Park. Ob­
viously, these reasons had nothing to do with this case. 
He did and does approve all these actions. Even if he had 
personal, intimate knowledge of each one as it developed, 
and expressed his formal approval of each municipal 
action as a member of the Planning Commission, he was

44. It is not clear w h eth er any ch ildren  o f sch ool age w ere  
m em bers o f  these fam ilies or not. T he cou rt assumes there w ere 
som e. N or is it clear w h ere  these fam ilies w ent.

45. H e w as ca lled  as a w itness b y  p la in tiffs , and testified
exten sively .



A65

not then acting in any way as defendants’ attorney. Other 
than this tenuous connection, the evidence does not show 
that anyone connected with the Clarksdale school system 
took any part in these aforementioned projects of the city 
and county.

Plaintiffs’ position as to the foregoing actions of the 
municipality and county seems to the court to be that 
they demonstrate a conspiracy between defendants, the 
Planning Commission, the city and the county to prevent 
Negro children from going to school with white children 
and that, therefore, the proposed school attendance zones 
as proposed by defendants are all invalid. If this in fact is 
plaintiffs’ argument, it must fail for many reasons which 
seem clear to the court. Some of those reasons will be 
discussed.

a) To accept plaintiffs’ position would, in effect, 
require the court to find that defendants’ attorney 
(an honorable respected member of the bar of this 
court for many years, known to be deeply religious), 
defendants’ superintendent, a commissioner of the 
City of Clarksdale and the chairman of the Planning 
Commission all perjured themselves when testifying 
as witnesses in this court.46 Such a finding is wholly 
unjustified.

b) Plaintiffs overlook the fact that the zoning 
plans as proposed by defendants have zones in which 
there are families of both the Negro and white races, 
with children of school ages. (The fact that no actual 
integration came about as a result of the desegrega­
tion during the 1964-1965 school year may be under­
stood only when the facts are known that there is no 
compulsory school attendance law in Mississippi; that 
some white parents whose children were assigned by 
defendants’ plans under this court’s order to schools 
which Negro children would attend, sent those chil­

46. A ll but the school superintendent w ere  ca lled  to the stand 
b y  p laintiffs.



A66

dren to other schools, and that some grades have not 
yet been reached in which children of both races will 
attend the same school—if they go to school in this 
system. These grades and these schools will soon be 
reached under the desegregation schedule being es­
tablished by this court.)

c) Even if plaintiffs’ position is accepted arguendo 
(which it is not) the fact remains that defendants had 
(and now have partially) the problem of devising 
school attendance zones, subject to this court’s approval 
based on the actual situation as it existed at the time 
these plans were devised,47 and this without regard to 
why any or all of the facts and realities of the situa­
tion came about. This court cannot require that jails, 
parking lots and garages be razed or destroyed, nor 
can it require that substandard homes be built on lots 
where they formerly existed, to be occupied by Negro 
families. It cannot here undo what has been done.

This court does not yet have the power or authority to 
order school buildings to be built, moved or destroyed. Nor 
does it yet have the authority or power to require families 
to move from one neighborhood to another.

Plaintiffs and defendants both want and approve a 
school system to be operated on the neighborhood attend­
ance zoning plan. Any fair and reasonable plan for such an 
operation for this school system must fit conditions as they 
now exist, not as they existed in the past, nor as they might 
ideally exist at some distant time in the future.

Thus, as has been said, the only possible value evidence 
of the aforementioned actions of the City of Clarksdale and 
Coahoma County has in this case is as it may bear on 
the question of good faith of defendants in their plans to 
deal with the grave problems presented to them by this 
suit. It has been so considered.

47. O f course, defendants m ust deal w ith  the situation as it 
n ow  exists south o f  the elevated  ra ilroad  as to devising  attendance 
zones fo r  elem entary schools in that area.



A67

VII.

C o n c l u s io n

As has been many times said in the cases, the respon­
sibility to accomplish desegregation in a constitutional 
way rests first with the school and then with the courts.48 
It is in reliance on that obvious truism that this court will 
call on defendants, in accordance with what has been said 
in this opinion, to again exercise that first responsibility 
with respect to plans for the attendance zoning for ele­
mentary school purposes of the southerly territory of this 
district. This course of action also results from the fact 
that this court recognizes fully that courts are ill equipped 
to deal with problems of this sort.49

Final order will be entered with respect to all elements 
of this controversy upon which this court has expressed its 
final determination in this opinion. Nisi or interim orders 
will be entered as to all other issues and this court, in 
such orders, will formally retain jurisdiction over this en­
tire case to enter all such orders as may hereafter be re­
quired.

This the 10th day of August, 1965.

Claude F. Clayton 
District Judge

48. Brown  v. Board, of Education, 349 U.S. 294, 299 (1 9 5 5 ); 
Armstrong v. Board of Education, 333 F. 2d 47, 53 (5 th  Cir. 1964).

49. Calhoun v. Latimer, 321 F. 2d 302 (5th  Cir. 1963).



A68

(Caption Omitted)

ORDER OF THE DISTRICT COURT DATED 
AUGUST 10,1965

Order for Permanent Injunction

Part I.
It appearing to the satisfaction of the court that there 

is no just reason for delaying entry of final judgment on 
certain of the multiple claims for relief presented in this 
action, and that there is in fact pressing need for entry 
of final judgment as to certain of these claims, then, in 
accordance with the Memorandum Opinion released this 
date, it is

Finally Ordered:

1) That the clerk of this court shall be, and he hereby 
is, directed to enter a final judgment, as provided in Rule 
54 (b), Federal Rules of Civil Procedure, as to so much of 
this order as is contained in Part I. hereof.

2) That the defendants, Clarksdale Municipal Sepa­
rate School District and the members of the Board of 
Trustees of the said school district, their agents, servants 
and employees, and the successors in office of said trustees, 
those acting in concert with them or any of them who shall 
receive notice of this order, shall be, and they hereby are, 
permanently enjoined, in assigning pupils to the grades 
progressively included in the schedule for racial desegre­
gation of the public schools now or hereafter operated by 
or under the supervision of defendants, as provided in para­
graph 3) of this order, from making any or all of such as­
signments solely because of the race of any or all of such 
pupils.



A69

3) . That assignments of pupils to the said public school 
on a racially non-discriminatory basis, in addition to grades 
one and two heretofore ordered to be desegregated, shall 
be made in accordance with the schedule following:

a) Grades three, four and twelve shall be racially 
desegregated not later than the opening of the first 
term or session for each of such schools for the school 
year 1965-1966.

b) Grades five, six, ten and eleven shall be 
racially desegregated not later than the opening of the 
first term or session for each of such schools for the 
school year 1966-1967.

c) Grades seven, eight and nine shall be racially 
desegregated not later than the opening of the first 
term or session for each of such schools for the school 
year 1967-1968.

4) That the geographic attendance areas created by 
order of the defendant Board of Trustees entered 21 July, 
1964, and incorporated in the desegregation plans pre­
viously submitted by the defendants and temporarily ap­
proved by the court, shall be and hereby are approved 
to the extent hereinafter provided. Pupils who apply and 
are eligible for enrollment in the public schools of the dis­
trict and whose grade level has been included in those 
grades, racially desegregated pursuant to paragraph 3), 
supra, shall be assigned to the public school appropriate to 
their grade level which is related to and located’ in the geo­
graphic attendance area within which such pupils reside at 
the time of enrollment, whether such residence obtains 
now or is hereafter effected, except as may be otherwise 
provided in this order. Such pupils whose grade levels have 
not been racially desegregated at the time of enrollment 
shall be assigned to appropriate schools in accordance with 
such policies as may be devised by the defendants.



A70

5) That the following geographic attendance areas 
shall be, and they hereby are, finally approved:

Geographic
Attendance
Area
Senior High School 

Sub-District
One and Attendance 

Zone S-l-A

Related School
Clarksdale Senior High School

Senior High School 
Sub-District

Two and Attendance 
Zone S-2-A

W. A. Higgins Senior High School

Junior High School 
Sub-District

One and Attendance 
Zone J-l-A

Clarksdale Junior High School

Junior High School 
Sub-District

Two and Attendance 
Zone J-2-A

W. A. Higgins Junior High School

Elementary 
Attendance 
Zone E-4-A

Oakhurst Elementary School

Elementary 
Attendance 
Zone E-4-B

Heidelberg Elementary School

Elementary
Attendance

Kirkpatrick Elementary School

Zone E-4-C

6) That Elementary Attendance Zone E-3-A shall be, 
and it hereby is, finally approved as the geographical 
attendance area for the proposed elementary school to be 
constructed within this zone. From and after the com­



A71

pletion and opening of the said school, assignment of 
elementary pupils who reside within this zone shall be 
made to the new school in the same manner as in the other 
Elementary Attendance Zones. Prior to the completion 
and opening of the proposed new school in this zone, 
elementary pupils who reside within Zone E-3-A may, 
upon application, be assigned to Oakhurst Elementary 
School or to Eliza Clark Elementary School in accordance 
with the method of assignment now in effect in this zone 
pursuant to orders of the defendant Board of Trustees.

7) That curricula at all elementary schools within the 
school district shall be identical; curricula at all junior 
high schools within the district shall be identical; and 
curricula at all senior high schools within the district shall 
be identical.

8) That in the event defendants wish to offer any 
course or courses at one junior high school in the school 
district and not at the other, or at one senior high school and 
not at the other, all pupils enrolled in the other junior or 
senior high school, as the case may be, will be so notified. 
Any pupil enrolled in the school where the course is not 
to be offered shall have the right to transfer if so desired 
to the school where such course is to be offered.

9) That defendants shall maintain teacher-pupil 
ratios at substantially the same level for each grade at each 
elementary school; at substantially the same level for each 
grade at each junior high school; and at substantially the 
same level for each grade at each senior high school.

10) That defendants shall maintain expenditures of 
public funds per pupil at substantially the same level at 
each elementary school; at substantially the same level at 
each junior high school; and at substantially the same level



A72

at each senior high school; except for such differences as 
may reasonably result from:

a) Variations in age and physical condition of 
school buildings and facilities,

b) Variations in types of licenses held by mem­
bers of the teaching staff assigned and salaries paid,

c) Greater expenditures which may be reason­
ably required to bring any library, laboratory, shop, 
home economics equipment, visual aids equipment or 
supplies, or other such equipment or supplies to the 
level of all such similar equipment or supplies at all 
schools of each type.

d) Greater expenditures which may be reason­
ably required to bring comfort and recreational fa­
cilities, equipment and supplies to the level of all other 
similar facilities, equipment and supplies at all schools 
of each type.

11) It appearing that defendants have taken effective 
action to eliminate any and all discrimination with respect 
to salaries for professional personnel employed in the 
school district, no provision need, or will be, made here 
in this regard.

P a r t  II.

Further, in accordance with the Memorandum Opin­
ion released this date, it is,

O r d e r e d :

12) That the following proposed Elementary At­
tendance Zones shall be, and they hereby are, temporarily



A73

approved for use only during the first semester of the on­
coming school session for the school year 1965-1966.

Elementry
Attendance

13) That defendants shall be, and they hereby are, 
directed to reconsider their proposals with respect to the 
proposed Elementary Attendance Zones listed in para­
graph 12), supra, and to resubmit to this court a plan for 
attendance zoning for elementary school purposes of all 
of the school district now included in the said proposed 
Elementary Attendance Zones. The attendance zones to 
be devised by defendants in preparing the said plan shall 
be predicated on efficient utilization of available school 
facilities on a racially non-discriminatory basis in ac­
cordance with sound educational principles.

14) That the plan required by paragraph 13), supra, 
shall be filed by the defendants not later than 6 October, 
1965, and a copy thereof shall be served on counsel for 
plaintiffs not later than 1 October, 1965. Plaintiffs shall 
have twenty days after the filing of such plan within 
which to file objections thereto, if any they have. A hear­
ing will be held following the filing of the plan and ob­
jections at a time and place to be fixed by the court.

15) That Elementary Sub-Districts E-l, E-2, E-3, and 
E-4 shall be, and they hereby are, approved, provided, how­
ever, that defendants may, if they so desire, revise the 
boundaries of Sub-Districts E-l and E-2, subject to the 
approval of the court, in such manner as may be neces­

Zone
E-l-A
E-l-B
E-l-C
E-2-A
E-2-B

Related School
George H. Oliver Elementary School 
Myrtle Hall Elementary School 
Eliza Clark Elementary School 
Booker T. Washington Elementary School 
Riverton Elementary School



A74

sary to accommodate any changes in the Elementary At­
tendance Zones thereby encompassed, pursuant to the pro­
visions of paragraphs 12) through 14), supra.

16) That all issues relating to racial desegregation of 
faculties and administrative personnel employed in the 
school district shall be, and the same hereby are, deferred 
for later resolution.

17) That costs, as they may have accrued to this date, 
shall be, and the same hereby are, awarded to plaintiffs 
from defendants, as they may in course be taxed.

18) That jurisdiction of this cause shall be, and the 
same hereby is, retained for all purposes and especially for 
the purpose of issuing any and all additional orders which 
may become necessary or appropriate for the purposes of 
modifying or enforcing this order, either or both.

This the 10th day of August, 1965.

Claude F. Clayton 
District Judge

(Caption Omitted)

ORDER OF THE DISTRICT COURT AMENDING 
ORDER OF OCTOBER 1,1965

Order Amending Order for Permanent Injunction

It appearing that the Order for Permanent Injunction 
entered 10 August, 1965, contained an error in paragraph 5) 
thereof, in that the schools related to the senior high 
school and junior high school sub-districts and attendance 
zones were inadvertently transposed, it is,



A75

O r d e r e d :

That the said order shall be, and it hereby is amended 
pursuant to Rule 60 (a) , Federal Rules of Civil Procedure 
to read as follows:

5) That the following geographic attendance 
areas shall be and they hereby are, finally approved:

Geographic
Attendance Area Related School
Senior High School 

Sub-District 
One and Attendance 

Zone S-l-A  
Senior High School 

Sub-District 
Two and Attendance 

Zone S-2-A 
Junior High School 

Sub-District 
One and Attendance 

Zone J-l-A  
Junior High School 

Sub-District 
Two and Attendance 

Zone J-2-A 
Elementary 

Attendance Zone 
E-4-A 

Elementary
Attendance Zone 
E-4-B

Elementary
Attendance Zone 
E-4-C

W. A. Higgins Senior High School

Clarksdale Senior High School

W. A. Higgins Junior High School

Clarksdale Junior High School

Oakhurst Elementary School

Heidelberg Elementary School

Kirkpatrick Elementary School

This the 6th day of October, 1965.

Claude F. Clayton 
District Judge



A76

(Caption Omitted)

MEMORANDUM OPINION OF THE COURT 
DATED DECEMBER 13,1965

In response to the order entered in this cause on Au­
gust 10, 1965, defendants, within the time specified, filed 
a new revised plan for the establishment of attendance 
zones for the school children of elementary school age who 
reside south of the line of railway which is on a fill or 
levee and which almost bisects the school district. The 
territory is that included in Elementary Subdistrict E-l and 
Elementary Subdistrict E-2. Plaintiffs filed objections to 
these proposals and a hearing was held thereon. All as­
pects of the case pertinent to defendants’ proposed revi­
sions and plaintiffs’ objection thereto are now before the 
court for disposition.

Consideration has been given to all of the record made 
on the several hearings, as well as such interrogatories and 
answers thereto as seem pertinent to the issues now for 
determination.

Some questions were raised by the court in its Memo­
randum Opinion released with the aforementioned order of 
August 10, 1965, with respect to the boundaries proposed for 
Attendance Zones E-l-A (Oliver), E-2-A (Washington) 
and E-2-B (Riverton). Additional evidence bearing on 
these questions was presented and has been carefully con­
sidered. Such evidence consisted primarily of accurate lo­
cations of the places of residence of elementary school age 
children in each of the attendance zones and accurate and 
more complete information about the character of the oc­
cupancy and structures in other areas within these zones. 
This evidence is persuasive that defendants have devised 
attendance zones which are sound in the light of the need 
to take into proper account utilization of existing school



A77

buildings, distances which pupils will have to travel to get 
to the school for their attendance zone, traffic hazards and 
the safety and welfare of the children. No better solutions 
have been proposed. Hence, these attendance zones should 
and will be approved.

Defendants’ plan contemplates combining into one at­
tendance zone the elementary school attendance zones 
originally designated as E-l-B (Hall) and E-l-C (Clark). 
It was with respect to a portion of the boundary between 
these two districts that the court raised the most serious 
question in its aforementioned Memorandum Opinion. The 
revised and present proposal would eliminate all of those 
questions.

Serious problems exist by reason of the proximity of 
the Eliza Clark Elementary School and the Myrtle Hall 
Elementary School. The two are quite close together. 
Clark is on the easterly side of Mississippi Avenue between 
Fifth Street and Sixth Street, with Coahoma Avenue as 
its easterly boundary line. Hall is to the southeast on the 
northerly side of U. S. Highway 61 between Garfield Street 
and Grant Street, with Seventh Street as its northerly 
boundary line. The southeast corner of the grounds at Clark 
are thus but three blocks from the northwest corner of the 
Hall grounds. This close proximity of these two school 
plants makes any boundary line which could be drawn be­
tween the two subject to serious question. These two 
school plants can advantageously be operated as one unit, 
with a consequent saving to the school district in funds re­
quired for administrative and supervisory personnel.

Defendants propose that when this revised plan be­
comes effective, that the first and second grades should be 
housed at Clark; grades three and four at Myrtle Hall No. 
3 and grades five and six at Myrtle Hall No. 1, with all of



A78

the schools in the merged district to be supervised and di­
rected by the same personnel. The evidence indicates that 
if this proposal is approved, that approximately 530 pu­
pils of elementary school age would reside in the new dis­
trict where there will be 19 teachers, which would give a 
pupil-teacher ratio of thirty to one, a ratio favorably com­
parable to the system-wide pupil-teacher ratio for elemen­
tary schools.

Considering all pertinent factors, including the afore­
mentioned proximity of these two school plants and the 
savings which will result from such a consolidation, the 
court is now persuaded that it should approve this proposal, 
and it will do so.

Plaintiffs have offered no real objection to the afore­
mentioned proposed consolidation of territories into one 
elementary school zone. That is to say, they have, raised 
no objections which defendants have in their power to cor­
rect or deal with. Plaintiffs do point out that many of 
the white children who reside in the combined or recon­
stituted attendance zone probably will not attend the public 
school system, if this plan is approved. Defendants do not 
have the authority or power to require that any pupil at­
tend any public school within this system or elsewhere. 
And, such a position at this time is somewhat speculative, 
although past developments in this case indicate that plain­
tiffs’ position may be correct. But, as has been said, de­
fendants cannot solve this problem for plaintiffs.

The main point at issue, in the aspects of this case 
which are now under consideration, is that defendants pro­
pose that the revision to result from the consolidation of the 
aforementioned territory into one elementary school at­
tendance zone should not become effective until the open­
ing of school in the fall of 1966. To this proposal, plain­
tiffs strenuously object. They buttressed their position on



A79

the hearing by showing that defendants, to prevent over­
crowding at two elementary schools, one class, with 
teacher, had been moved intact from each to another ele­
mentary school building in the system where space was 
available. Such removals, however, are not analogous to 
what would occur if this court directed that this revised 
plan take effect at the end of the first one-half of the cur­
rent school session. If the earlier date were specified, 
many unnecessary and hurtful problems would be pre­
sented for solution.

A large number of the pupils involved would be re­
quired to leave the school buildings and classrooms to 
which they have become accustomed and enter those to 
which they are strangers. They would also be required to 
adjust to new classmates. In many instances, they would 
be required to adjust to new teachers. To say the least, a 
substantial amount of time is required at the beginning of 
each school year for pupils to become oriented to new 
classmates, new teachers and in some instances, a new 
school building, and in most instances, a new classroom. 
To require that this be done twice in a given school year 
could be nothing other than hurtful to the pupils.

The earlier date would also be needlessly hurtful to the 
teachers involved, since they would be required to start 
working with children with whom they now are unac­
quainted and about whom they then would know very little. 
This would double the strain of what is at best a very try­
ing period for any teacher, through which the teacher must 
pass at the beginning of each school session. Additionally, 
a substantial portion of these teachers would also be re­
quired to teach at a place or school building not specified 
in their contracts. This in effect would be for this court 
to change the provisions of these contracts between de­



A80

fendant school district and the teachers concerned. Such 
a course of action would result inevitably in dissatisfaction 
and a loss of teacher morale and thus a loss of teacher ef­
fectiveness.

Moreover, the use of the earlier effective date, in the 
middle of a school year, would create many unnecessary 
problems for the supervisory and administrative personnel 
of this school system. There are now two separate school 
plants, each having a separate principal and separate ad­
ministrative personnel, with teachers employed on the 
recommendation of the principal for that particular school 
to teach a particular grade in a particular classroom. The 
reassignment of the teachers which would be required 
in the middle of the year if the earlier date were used, 
would present many unnecessary problems which could 
not be solved to the satisfaction of all concerned. The 
choice between the two principals would present a dif­
ficult problem. The utilization of the services of the prin­
cipal not selected would present other serious problems. 
Rescheduling of school events, many of which are already 
planned and scheduled, would pose many problems not 
easy of solution.

Plaintiffs’ principal answer to the foregoing is that it 
is a long time since 1954. It is not, however, so long a time 
since the filing of this suit late in the school year 1963- 
64 (April 22, 1964). And, according to this court’s view, 
it has moved with more than “all deliberate speed” since 
the many problems incident to desegregation of defendant 
school system became its responsibility. It is not consid­
ered a part of this court’s responsibility in this case to 
create problems of the magnitude aforementioned by 
hasty action which could be hurtful to the school children 
of tender years who would be involved, whose welfare



A81

is uppermost in the court’s mind, as it should be in the 
mind of all who are connected with this litigation.

Use of the present two elementary attendance zones 
which would be merged into one attendance zone under 
defendants’ proposal, E-l-B (Hall) and E-l-C (Clark), for 
the remainder of this school session should and will be 
approved.

Use of the merged or consolidated district (E-l-B) 
should and will be approved for use effective with the 
opening of school in the fall of 1966.

Additionally, defendants were given the right to pro­
pose revisions for the aforementioned Subdistricts E-l and 
E-2 if they cared to do so. They made no such proposals, 
pointing out that the number of elementary school children 
resident in each of the two proposed subdistricts are ap­
proximately equal and that the north-south line of rail­
way affords a natural boundary between these two sub­
districts. Inasmuch as these subdistricts were approved 
in the order of August 10, 1965, no change will be made 
therein.

Defendants have also proposed that they should be 
given the authority to change attendance zone boundaries 
within each of these subdistricts as the need therefor may 
arise from the changing pattern of pupil populations and 
other developments of a similar nature. Such a proposal 
is certainly in keeping with good school administration 
and would, to a large extent, take defendants out of the 
rigid straight-jacket in which they now find themselves 
while the affairs of their school system are under the con­
trol of this court. However, in light of all of the facts and 
circumstances connected with this litigation, the court does 
not feel that it can approve this proposal at this time.



A82

This could and may well require that a very thorough 
pupil population census be taken for each elementary 
school zone well in advance of the opening of a new school 
year in order that application can be made to this court 
for revision of attendance zone boundaries as may then 
be indicated.

A final order will be entered in accordance with the 
foregoing, but with a provision therein that this court 
will retain jurisdiction to deal with such questions as 
may arise in the future with respect to the operation of the 
schools of this school system.

This the 13th day of December, 1965.

Claude F. Clayton 
District Judge



A83

(Caption Omitted)

ORDER OF THE DISTRICT COURT DATED 
DECEMBER 13, 1965

In accordance with the Memorandum Opinion re­
leased this date, it is,

Ordered:
1) The following geographic attendance areas and 

related schools created by the order of the defendant 
Board of Trustees on 21 July, 1964, shall be, and the same 
hereby are, finally approved.

Geographic 
Attendance 
Area
Elementary 

Subdistrict E-l
Elementary

Subdistrict E-2
Elementary Attend­

ance Zone E-l-A
Elementary Attend­

ance Zone E-2-A
Elementary Attend­

ance Zone E-2-B
2) The Elementary Attendance Zones which were 

temporarily approved in paragraph 12 of the order for per­
manent injunction entered 10 August, 1965, for use during 
the first semester of the 1965-1966 school year, shall be, 
and the same hereby are, approved for use during the 
second semester of the 1965-1966 school year.

3) The proposal in the revised plan for elementary 
attendance zones submitted by defendants that the present 
Elementary Attendance Zones E-l-B and E-l-C be com­

Related School

George H. Oliver Elementary School

Booker T. Washington 
Elementary School
Riverton Elementary School



A84

bined to form a new Elementary Zone E-l-B, and that the 
related schools, Eliza Clark Elementary School and Myrtle 
Hall Elementary School, also be combined and operated 
as one unit in the manner described in the said plan, all 
to be effective at the beginning of the 1966-1967 school 
year, shall be, and the same hereby is, approved.

4) The proposal in the said revised plan that the 
court delegate authority to the defendant Board of Trustees 
to change the boundaries of attendance areas or zones 
within the subdistricts shall be, and the same hereby is, 
disapproved and denied.

5) Jurisdiction of this cause shall be, and the same 
hereby is, retained for all purposes and especially for the 
purpose of entering any and all additional orders which 
may become necessary or appropriate for the purposes 
of modifying or enforcing this order, either or both.

This the 13th day of December, 1965.

Claude F. Clayton 
District Judge