Davis v. Mobile County Board of School Commissioners Motion to Advance and Petition for a Writ of Certiorari to the US Court of Appeals for the Fifth Circuit
Public Court Documents
January 1, 1970

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Brief Collection, LDF Court Filings. Davis v. Mobile County Board of School Commissioners Motion to Advance and Petition for a Writ of Certiorari to the US Court of Appeals for the Fifth Circuit, 1970. a4b1001c-af9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/0d403f11-466f-4a79-97b7-7683df9662e0/davis-v-mobile-county-board-of-school-commissioners-motion-to-advance-and-petition-for-a-writ-of-certiorari-to-the-us-court-of-appeals-for-the-fifth-circuit. Accessed July 12, 2025.
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I n the CUouri of tljp ^tatrs October Term, 1970 No.......... B irdie M ae D avis, et al., v. Petitioners, B oard oe S chool C ommissioners oe M obile C o u nty , et al. MOTION TO ADVANCE AND PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT J ack Greenberg J ames M. N abrit, III M ichael D avidson N orman J. Ch a c h k in 10 Columbus Circle New York, New York 10019 V ernon Z. Crawford A lgernon J. Cooper 1407 Davis Avenue Mobile, Alabama 36603 Attorneys for Petitioners Opinions Below Jurisdiction .... I N D E X PAGE 1 2 Question Presented ..................................-.................. ..... 2 Constitutional Provision Involved ------- ------ - ..... -....... - 3 Statement: 1. A Brief Overview of the School System.... - .... 3 2. Summary of Proceedings in the Courts Below 4 3. The Techniques of Segregation —..................... 12 Reasons for Granting the W rit: I. The Decision Below Conflicts With Rulings Both of This Court Since Brown and of Other Courts of Appeals. It Absolves School Boards of Responsibility to Provide Equal Educational Opportunity to Black Students Contained in Segregated Schools by “Neighborhood Resi dential Patterns” Which Are Themselves the Result of State Action Combined With Private Discrimination ....................................................... 15 II. This Court Should Grant Certiorari in Order to Insure Petitioners’ Due Process Right to an Evidentiary Hearing in the District Court .... . 28 Conclusion 31 11 Appendix : Order of District Court of January 31, 1970 ........ . la Opinion of Court of Appeals dated June 8, 1970 .... 8a Judgment of Court of Appeals dated June 8, 1970 2-3a Orders of Court of Appeals on Rehearing dated June 29, 1970 ......... ....... ........................................ 25a Orders of Court of Appeals Denying Rehearing dated June 29, 1970 ................................................. 26a Tables of Cases: Alexander v. Holmes County Board of Education, 396 U.S. 19 (1969) .........................................................17,27,30 Anthony v. Marshall County Board of Education, 419 F.2d 1211 (5th Cir. 1969), rev’d on other grounds, sub. nom, Carter v. West Feliciana Parish School Board, 396 U.S. 290 (1970) ........ ..... ............................ 16 Bradley v. Board of Public Instruction of Pinellas County, No. 28639 (5th Cir., July 1, 1970) _______16,29 Brewer v. School Board of City of Norfolk, 397 F.2d 37 (4th Cir. 1968) ............................. ........................-21, 24 Brewer v. School Board of City of Norfolk, No. 14,544 (4th Cir., June 22, 1970), cert, denied, 38 U.S.L.W. 3522 (June 29, 1970) ......... ........ ............................... 15,25 Brown v. Board of Education, 347 U.S. 483 (1954).... 15 Calhoun v. Cook, Civ. No. 6298 (N.D. Gra., Feb. 19, 1970) ..................................... .............. .......... .................. 16 Calhoun v. Latimer, 377 U.S. 263 (1964) ..................... . 15 Carr v. Montgomery County Board of Education, No. 29521 (5th Cir., June 29, 1970) .................... ............. 16 Carter v. West Feliciana Parish School Board, 396 U.S. 290 (1970) ..........................................1,4,6,17,19,29 Clark v. Board of Education of the Little Rock School District, No. 19,795 (8th Cir., May 13, 1970) ............. 23 PAGE I ll Cooper v. Aaron, 358 U.S. 1 (1958) .............................. 15 Crawford v. Board of Education of City of Los Angeles, No. 822-854 (Super. Ct. Cal., February 11, 1970) ..... -...... .................................................................... 25 PAGE Davis v. Board of School Commissioners of Mobile County, 414 F.2d 609 (5th Cir. 1969) ................... -12, 28 Davis v. Board of School Commissioners of Mobile County, 364 F.2d 896 (5th Cir. 1966) ...............-.... . 17 Davis v. School District of City of Pontiac, 309 F. Supp. 734 (E.D. Mich. 1970) ......... ..... ....................... 25 Dove v. Parham, 282 F.2d 256 (8th Cir. 1960) ........... . 15 Ellis v. Board of Public Instruction of Orange County, Florida, 423 F.2d 203 (5th Cir. 1970) ...........10,16,19, 25 Gross v. Board of Education of Knoxville, 373 U.S. 683 (1963) 15, 20 Green v. County School Board of New Kent County, 391 U.S. 430 (1968) ..................... -......... -.... -.15,16,19,21 Jones v. Alfred H. Mayer & Co., 392 U.S. 409 (1969).... 21 Mannings v. Board of Public Instruction of Hills borough County, No. 28,643 (5th Cir., May 11, 1970) ....... ......... ......... -...... -----..................................... ..10,16 McFerren v. Fayette County Board of Education, Civ. No. C-65-136 (W.D. Tenn., December 24, 1969) ....... 16 Monroe v. Board of Commissioners of Jackson, No. 19720 (6th Cir., June 19, 1970) ...............-.................. Northcross v. Board of Education of Memphis, 397 U.S. 232 (1970) ................................-............................ Ross v. Eckels, Civ. No. 10,444 (S.D. Tex., June 1, 1970) ...................... -......................................................... 16 IV PAGE Singleton v. Jackson Municipal Separate School Dis trict, No. 26285 (5th Cir., Jan. 15, 1970) ....... ............. 29 Singleton v. Jackson Municipal Separate School Dis trict, 419 F.2d 1211 (5th Cir. 1969) ....................... 1, 6 Spangler v. Pasadena City Board of Education, Civ. No. 64-1438-R (C.D. Cal., March 12, 1970) ............... 25 Stell v. Savannah-Chatham County Board of Educa tion, 333 F.2d 55 (5th Cir.), cert, denied, 379 U.S. 933 (1964) ........................... ............ ...................... .......... 15 Swann v. Charlotte-Mecklenburg Board of Education, No. 281, O.T. 1970, cert, granted, June 29, 1970, 38 U.S.L.W. 3522 ................................................................ 25 Swann v. Charlotte-Mecklenburg Board of Education, 300 F. Supp. 1358 (W.D. N.C. 1969) ...................20,24,31 United States v. Lincoln County Board of Education, 301 F. Supp. 1024 (S.D. Ga. 1969) ............................. . 16 Valley v. Rapides Parish School Board, Civ. No. 10,946 (W.D. La., July 5, 1970) ........................... .................. 16 Statutes: Fair Housing Act of 1968, 42 U.S.C.A. §§ 3601 et seq. 21 28 U.S.C. § 1254(1) ............................................................ 2 Other Authorities: Abrams, Forbidden Neighbors (1955) .......................... 21 Racial Isolation in the Public Schools, A Report of the U.S. Commission on Civil Rights (1967) .................. 21 Weaver, The Negro Ghetto (1948) ................................ 21 Weinberg, Race and Place—A Legal History of the Neighborhood School (U.S. Gov’t Printing Office, Catalogue No. FS 5.238:38005, 1967) ........................ 19 I n the (Emtrt nf Hit United States O ctober T erm 1970 No.......... B irdie M ae D avis, et al., Petitioners, v. B oard oe S chool C ommissioners oe M obile C ou nty , et al. MOTION TO ADVANCE Petitioners, by their undersigned counsel, respectfully move that the Court advance its consideration and disposi tion of this case, which presents issues of national im portance about which the court below and other United States Courts of Appeals are divided in their interpretation of Green v. County School Bel. of New Kent County, 391 U.S. 430 (1968), Alexander v. Holmes County Bd of Educ., 396 U.S. 19 (1969) and Carter v. West Feliciana Parish School Bd., 396 U.S. 296 (1970). These issues require prompt resolution by this Court for the reasons stated in the annexed Petition for Writ of Certiorari. W herefore, petitioners pray that the Court: 1. Consider this motion immediately; 2. shorten the time for filing respondents’ response to the annexed petition and 2 3. consider the annexed petition at the Court’s earliest possible opportunity. Respectfully submitted, J ack Greenberg J am es M. N abbit, III N orman J. C h a c h k in 10 Columbus Circle New York, New York 10019 V ernon Z. Crawford A lgernon J. Cooper 1407 Davis Avenue Mobile, Alabama 36603 Attorneys for Petitioners I n the i§>ttprm£ Glmtrt of tip Htufrfc States October Term, 1970 No.......... B irdie M ae D avis, et al., Petitioners, v. B oard of S chool Commissioners of M obile C o u nty , et al. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Petitioners 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 entitled case on June 8, 1970. Petition for rehearing was denied June 29, 1970. Opinions Below The opinions of the courts below directly preceding this petition1 are as follows: 1 Earlier proceedings in this case are reported as Davis v. Board of School Comm’rs of Mobile County, 318 F.'2d 63 (5th Cir. 1963); J^322 F.2d 356 (5th Cir.), stay denied, 11 L.Ed.2d 26 (Mr. Justice Black, Circuit Justice), cert, denied, 375 U.S. 894 (1963), rehear ing denied, 376 U.S. 898 (1964) ;L333 F.2d 53 (5th Cir.), cert, de nied, 379 U.S. 844 (1964) ;(364 F.2d 896 (5th Cir. 1966) ; 393 F.2d _ ^ 690 (5th Cir. 1968); 414 F.2d 609 (5th Cir. 1969); sub mina. Singleton v. Jackson Municipal Separate School Dist., 421 F.2d 1211 (5th Cir.), interim relief ordered, 38 U.S.L.W. 3220 (1969), rev’d sub nom. Carter v. West Feliciana Parish School Bd., 396 U.S. 290 (1970). 2 1. Opinion and order of the District Court filed Janu ary 31, 1970, unreported (la-7a). 2. Opinion of the Court of Appeals filed June 8, 1970, not yet reported (8a-22a). 3. The judgment of the Court of Appeals (23a-24a). 4. Orders of the Court of Appeals on the petition for rehearing (8a-22a). Jurisdiction The judgment of the Court of Appeals was entered on June 8, 1970 (24a). The jurisdiction of this Court is in voked under 28 U.S.C. §1254(1). Question Presented Upon request from the courts below, the United States Department of Health, Education, and Welfare developed several plans to desegregate public schools in Mobile County, Alabama. One plan integrated each school in the system by establishing a number of school pairings and clusters which necessitate the incidental transportation of both black and white students. This technique of student assignment—the use of school attendance zones with non contiguous parts and the transportation of students—had long been used in the Mobile school system to maintain segregated schools. In spite of this history and without any evidentiary hearing in the District Court, the Court of Appeals rejected this H.E.W. plan and ordered the implementation of a plan which leaves 7,725 black students in eight all-black schools. The rejection of the H.E.W. plan was based solely on the Court’s deference to a hypo thetical “neighborhood school concept” (13a) which Mobile had not theretofore had. 3 The fundamental question presented to this Court is whether black students are denied the equal protection of the laws when they continue to be assigned to segregated black schools despite the availability of an alternative method of student assignment which would desegregate every school in the system and which is proved feasible by the school board’s past use of the same assignment techniques. Constitutional Provision Involved This case involves the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. Statement 1. A Brief Overview of the School System. Mobile has a combined rural and metropolitan school system serving the whole of Mobile County. It is the largest school system in Alabama; 91 schools in the sys tem served 73,504 students during 1969-70. The total number of white students is 42,620, or 58% of all students, and the total number of black students is 30,884, or 42% of all students. Throughout the litigation to desegregate Mobile’s schools, the rural and metropolitan portions of the system have been treated separately. Since September 1969 the rural portion of the system has been desegregated adequately and this petition concerns only the metropolitan area com prised of the contiguous cities of Mobile, Pritchard and Chickasaw. Within the metropolitan area there are 65 schools serving 54,913 students, of whom 27,769 or 50.5% are white and 27,144 or 49.5% are black. 4 In addition to the rural-metropolitan division, another division has more recently been advanced in this litigation. This newer division is between the eastern and western parts of the metropolitan area with Interstate Highway 1-65 used as a north-south divider. The western part is predominantly white with 17 schools serving 13,875 stu dents, of whom 12,172 or 88% are white and 1,703 or 12% are black. The eastern part is majority black with 48 schools serving 41,038 students, of whom 15,597 or 38% are white and 25,441 or 62% are black. The controversy which led to this Court’s decision in Carter v. West Feliciana Parish School Board, 396 U.S. 290 (1970), concerned the decisions of the courts below to treat separately the predominantly white and majority black parts of metropolitan Mobile by permitting the for mulation of separate plans for each, and to delay desegre gating the majority-black part until 1970-71. It is the continuing effort by the school board and the courts below to subdivide the metropolitan area which necessitates action by this Court. 2. Summary of Proceedings in the Courts Below. This action by black parents and students to desegregate Mobile County’s public schools began in 1963. The United States intervened in 1967 and successive groups of white parents intervened in 1968 and earlier this year. The cur rent phase of this litigation began with the Court of Ap peals’ June 3, 1969 decision. The main issue before the Court of Appeals at that time was whether the School Board and the District Court had complied with a previous decision of the Court of Ap peals2 by establishing school attendance zones for elemen- 2 The June 3, 1969 decision is reported at 414 F.2d 609; the previous decision is reported at 393 F.2d 690. 5 tary and junior high schools, and maintaining freedom of choice for high school students in metropolitan Mobile. A second issue was retention of freedom of choice for all students in rural Mobile County. The Court of Appeals found that the District Court had “ignored the unequivocal directive to make a conscious effort in locating attendance zones to desegregate and eliminate past segregation.” 414 F.2d at 611. Freedom of choice in metropolitan high schools and all rural schools was also held to be unac ceptable. Accordingly, the Court of Appeals ordered the prompt formulation of a plan “to fully and affirmatively desegregate all public schools in Mobile County, urban and rural . . and directed the District Court to request the Office of Education of the United States Department of Health, Education, and Welfare to collaborate with the School Board and submit its own desegregation plan if agreement with the Board was not possible. Ibid. H.E.W. and the School Board could not agree on a plan and H.E.W. submitted its own county-wide desegregation plan on July 10, 1969. The plan provided for zoning all schools in rural and metropolitan Mobile (some schools would be paired within zones), closing four black schools in eastern Mobile, and transporting 2,000 black students from the closed schools to white schools in the western and southern parts of the metropolitan area. Petitioners sought implementation of the plan with amendments to correct two deficiencies: (1) the plan retained five large all-black elementary schools serving 5,500 students because H.E.W. was unwilling to recommend the transportation of white students in addition to the transportation of black students; and (2) the plan deferred desegregation in eastern metropolitan Mobile, where 85% of the system’s black students live, until 1970-71. On August 1, 1969, with out a hearing, the District Court ordered the implemen- 6 tation of H.E.W.’s plan for rural and western metropoli tan Mobile, as modified by the Court to eliminate the H.E.W. proposal to transport 2,000 black students from eastern to western metropolitan Mobile. The District Court did accept H.E.W.’s plan to defer desegregation in eastern metropolitan Mobile until 1970-71. Petitioners appealed the delay, the Court of Appeals affirmed,3 Mr. Justice Black ordered the School Board to prepare for desegregation by February 1, 1970,4 * and this Court reversed the delay.6 The case returned to the Dis trict Court in late January 1970 for second semester im plementation of a plan to complete the desegregation of Mobile’s schools. In the meanwhile, H.E.W. had submitted two additional plans to the District Court on December 1, 1969.6 Using the July 10, 1969 plan as a base (and labelling it Plan B), H.E.W. proposed one modification (Plan B Alternative) which totally eliminated the transportation of students by continuing in operation the four black schools which the July, 1969 plan closed. Plan B Alternative would leave nine all-black schools serving 7,971 students (15a). The second modification (Plan B-l Alternative) recom mended closing two black schools, and pairing or clustering all other black schools in eastern Mobile with white school in western or southern Mobile. Transportation of both 3 Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (5th Cir. 1969). 4 38 TJ.S.L.W. 3220 (1969). 6 Garter v. West Feliciana Parish School Board, 396 U.S. 290 (1970). 6 These additional H.E.W. plans were submitted in accordance with the District Court’s August 1, 1969 decision which established December 1, 1969 as the time for submitting plans for the 1970-71 school year. 7 black and white students would be required and all schools in the system would be integrated (Ibid.).7 The same day, the School Board submitted its own plan for eastern Mobile. It assigned 18,832 black students to 21 all or nearly all black schools.8 The District Court called attorneys for all parties to a “pre-trial conference” in chambers on January 23, 1970 (2a). At the conference the following positions were taken: (1) petitioners contended that the elementary school pro visions of H.E.W.’s Plan B-l Alternative and the junior and senior high school provisions of H.E.W.’s Plan B should be implemented forthwith, but if the transportation proposals made immediate relief impossible and the Dis trict Court selected another plan pendente lite, then a hearing should be promptly set to determine a permanent plan; (2) the United States proposed that the H.E.W. plan involving no transportation (Plan B Alternative) be implemented pendente lite while discovery and hearings on a permanent plan proceeded; (3) the School Board argued against any changes in its operations; and (4) the District Court stated it would not consider the plans petitioners supported and that the School Board’s December 1, 1969 plan was unacceptable without modifications. The District Court concluded the conference by asking the School Board for modification of its December 1, 1969 plan and the United States “ for [a] revision of the H.E.W. plan which the government thought should be followed for the remainder of the present school year” (2a). The 7 Plan B-l Alternative involved only elementary schools. For junior and senior high schools it proposed to incorporate the pro visions of Plan B. 8 Petitioners, despite repeated requests, were not served with a copy of the Board’s plan and had to move on January 2, 1970 for an order compelling service which was not made until the District Court granted the motion February 27, 1970. 8 School Board failed to respond to the court’s request.9 The United States submitted a revision of H.E.W.’s no-trans portation alternative (Plan B Alternative) “as a plan which could be implemented immediately to remain in effect only for the present school year.” 10 Then, despite its own characterization of the January 23 conference as a “pretrial conference” and both petitioners’ and the United States’ clearly stated position that plaintiffs sought only mid-year relief pending hearings on a permanent deseg regation plan, the District Court without an evidentiary hearing entered an order on January 31, 1970 which pur ported to finally disestablish the dual system in Mobile (la-7a). Mindless of its expressed view at the January 23, 1970 conference that the Board’s proposals were unacceptable, the District Court’s order adopted the School Board’s De cember 1, 1969 plan with only several modifications. The order left 18,623 black students, or 60% of the system’s black students, in IS all- or nearly all-black schools (18a- 22a). The court dismissed H.E.W.’s Plan B-l Alternative, which would establish pairings and clusters of non-con- tiguous zones and require transporttion of students, by making the general observation that it “would require busing of children from areas of the city to a different and unfamiliar area” (3a) and by singling out one11 of 9 In its January 31, 1970 order the District Court commented on the Board’s failure: “ The school board and its staff of administrators and profes sional educators, who know the Mobile Public School System best, who have all the facts and figures which are absolutely necessary for a meaningful plan, have not assisted or aided the Court voluntarily. Consequently, the plan which is by this decree being ordered is not perfect . . (2a-3a). 10 Brief for the United States in the Court of Appeals, p. 22. 11 The one elementary arrangement which the court singled out involved three schools, two white and one black, in a cluster. All 9 the sixteen H.E.W. proposed pairs or clusters, presumably to illustrate the court’s conclusion that H .E W .’s proposal was “motivated for the sole purpose of achieving racial balance” (4a). Similarly, the court dismissed H.E.W.’s Plan B for junior high schools by citing but one atypical proposal to establish a cluster of three junior high schools, stating that in the court’s view “the Supreme Court has not held that such drastic techniques are mandatory for the sole purpose of achieving racial balance” (4a). Petitioners, the United States, and the School Board appealed. Petitioners challenged both the failure of the District Court to conduct an evidentiary hearing before ordering a final plan and the court’s failure to require the School Board to implement H.E.W.’s plan to establish non contiguous pairings and clustering and transport both black and white students to achieve complete desegregation. The United States, while acknowledging that the School Board’s past practices indicate that any of H.E.W.’s plans would be feasible, asked the Court of Appeals to require the implementation of H.E.W.’s sole no-transportation plan for the negative reason that “no argument can be made that plan B Alternative, which is the most modest plan, students in the cluster would attend one of the white schools for the first and second grades, the second white school for the third grade, and the black school for grades four through six (4a). Of the remaining fifteen elementary school arrangements in H.E.W.’s Plan B-l Alternative, only one other was similar. Eleven involved only two schools with all students attending either the black or white schools for two or three years and then attending the other school for the remaining elementary school grades. Three other arrangements involved three schools but required attendance at only two schools. Under these arrangements all students: in the cluster would attend one school for grades one and two and then divide, with one-half attending the second school in the cluster for grades three through five and the other half attending the third school for the same grades. Neither the simple pairing of two schools serving non-eontiguous black and white zones nor this latter type of clustering were discussed by the District Court. 10 is either educationally unsound or administratively in feasible.” 12 The School Board, although cross appealing, sought affirmance of the District Court’s order. The Court of Appeals, after remanding for further find ings of fact,13 decided the appeal on June 8, 1970. The court defined its judicial task in these words: We have examined each of the plans presented to the district court in an effort to determine which would go further toward eliminating all Negro or virtually all Negro student body schools while at the same time maintaining the neighborhood school concept of the school system (13a). In the court’s view the neighborhood assignment system allows two alternatives. One alternative requires the as signment of each student to the school nearest his home with such assignments limited only by the capacity of the schools. Ellis v. Board of Public Instruction of Orange County, Florida, 423 F.2d 203, 207 (5th Cir. 1970). The other alternative is the establishment of attendance zones “ on a discretionary basis as distinguished from a strict neighborhood assignment. . . . ” Mannings v. Board of Public Instruction of Hillsborough County, Florida, No. 28643 (5th Cir., May 11, 1970) (Slip Op., p. 6). Mobile, the 12 Brief for the United States in the Court of Appeals, p. 47. 13 The remand was required by the District Court’s failure to determine how the School Board’s plan, which it adopted, would affect the racial composition of any of the system’s schools. The remand also directed the District Court to make findings on the extent of desegregation of faculty, transportation and extracur ricular activities. Petitioners moved in the District Court on April 6, 1970 to establish a procedure whereby after the Board submitted proposed findings of fact an evidentiary hearing would be held. The School Board submitted an affidavit which the Dis trict Court accepted in toto “ excluding self-serving declarations and speculative opinions.” Order of April 14, 1970. Petitioners’ motion for a hearing was denied the same day. 11 court concluded, had itself chosen not to use “the strict neighborhood assignment system” but instead uses “discre tionary zones lines” (13a). As Mobile had made that deci sion for itself, the Court ruled that the desegregation plan “can be greatly improved by pairing some schools located in proximity to each other . . . [and] also be improved by recasting the grade structure in some of the buildings but, at the same time, maintaining the neighborhood school concept” (Ibid.). The plan which found favor with the court was the plan submitted by the United States as a modification of H.E.W.’s no-transportation Plan B Alternative. The plan left 8,515 black students in all-or nearly all-black schools (Ibid.) ; the court required modifications of the plan to reduce the number of black students in all-black schools to 7,725 students in 8 elementary schools, which it noted amounted to 25% of Mobile’s black students being assigned to all-black schools (24a). In terms of elementary school students in metropolitan Mobile, the plan results in the assignment of 58% of black elementary school students to all-black schools. These results were justified by the court in four ways: (1) “ every Negro child would attend an integrated school at some time during his education career” (13a); (2) “ the all Negro student body schools which will be left after the implementation of the Department of Justice plan, as modified, are the result of neighborhood patterns” (15a- 16a); (3) the remaining segregation can be “alleviated” through a policy allowing black students to transfer to white schools with transportation provided (16a); and (4) the situation may be further alleviated by the establish ment of a bi-racial committee to serve in an “ advisory capacity” to the School Board (Ibid). 12 The Court of Appeals remanded the case to the District Court with instructions to implement a new plan by July 1, 1970. On remand the District Court ordered the implemen tation of the plan submitted by the United States except for amendments to two school districts which the Court will make. 3. The Techniques of Segregation. Although the District Court has not permitted any evi dentiary hearings on a desegregation plan since the sum mer of 1968, the record of the extensive hearing that sum mer and in previous years fully documents the various techniques used by the School Board to segregate Mobile’s schools.14 a. Grade Structures. The Mobile school system has used an extraordinarily wide variety of grade structures, in cluding schools serving grades 1-5, 1-6, 1-7, 1-8, 1-9, 1-12, 2-5, 6-7, 6-8, 6-9, 6-10, 6-12, 7, 7-8, 7-9, 7-11, 7-12, 8-12, 9-12, 10-11, 10-12. By selectively decreasing or increasing the number of grades served at particular schools, the School Board has increased or decreased the area served by the school to coincide with racial residential patterns (R- 26,886 Vol. V, pp. 1527-1534). For example, the School Board established the Hillsdale School as the only metropolitan school serving grades 1-12 in order to restrict its attendance area to a small black community in the western part of the metropolitan area. In downtown Mo bile, the School Board between 1962 and 1967 candidly re organized grade structures, and assigned portables and closed schools, to maintain segregated schools in the face of rapidly shifting racial residency patterns (R. 26,886 14 This portion of the petition is a summary of a longer analysis of these techniques contained in the Brief for the United States in the Court of Appeals, pp. 4-18. Citations to R. 26,886 axe to the record before the Court of Appeals in Davis v. Board of School Commissioners of Mobile County, 414 F.2d 609 (5th Cir. 1969). 13 Yol. VI, pp. 25-35). School segregation was also the ob jective in arranging grade structures at four white schools surrounding a black school in northern metropolitan Mo bile to enable white students to attend one white school for grade 6, a second for grades 7 and 8, a third for grade 9, and a fourth for grade 10, all in order to prevent their attendance at a nearby black school (R. 26,886 Vol. IV, pp. 1331-32). b. Zones. The splitting of school attendance zones (i.e., non-contiguous zones) has been a common method of school assignment in Mobile. As many as nineteen non-contiguous zones were used in one year, 1964-65, including one split zone in which the parts were separated by over 11 miles.15 Transportation between split zones was provided by the School Board (R. 26,886 Vol. I, pp. 5-6). c. Portable Classrooms. The selective assignment of portable classrooms in order to expand the capacity of black schools as a way of avoiding the assignment of black students to under-utilized nearby white schools has been a method of maintaining segregated schools (R. 26,886 Vol. I, pp. 90-93). d. Transportation. Busing has not been limited to the rural parts of the school system. During 1966-67 the School Board bused 7,116 students daily in the metropolitan area. Approximately 2,350 of these students were bused because of non-contiguous zoning (R. 26,886 Vol. I, pp. 5-6) A considerable amount of busing was designed to maintain segregation. As an example, 582 black students were bused over 6 miles from rural Saraland and Satsuma to a black school in metropolitan Mobile to prevent integration at white schools in their communities (Ibid). 15 The facts were culled from numerous exhibits and appear in summary form in the Brief of the United States in the Court of Appeals, pp. 7-9 and Appendix C. 14 e. Construction. New schools in Mobile have been lo cated in order to serve only selected racial groups. For example, although population movements in downtown Mo bile left unused classrooms in white schools, the Board embarked on a plan during the 1966-67 school year to construct four schools for black students in order to avoid the reassignment of blacks at overcrowded black schools to available space at white schools (R. 26,886 Vol. VI, pp. 25-35). A few years earlier, in 1963, the School Board sought to justify to this Court its failure to even begin desegregation by pointing to its ongoing construction of “colored schools.” Justice Black’s opinion in chambers recited the Board’s contentions: Yet this record fails to show that the Mobile Board has made a single move of any kind looking towards a constitutional public school system. Instead, the Board in this case has rested on its insistence that continuation of the segregated system is in the best interests of the colored people and that desegregation would “ seriously delay and possibly completely stop” the Board’s building program “particularly the im provement of and completion of sufficient colored schools which are so urgently needed.” In recent years, more than 50% of its building funds, the Board pointed out to the parents and guardians of its colored pupils, had been spent to “build and improve colored schools,” and of eleven million dollars that would be spent in 1963, over seven million would be devoted to “colored schools.” It is quite apparent from these statements that Mobile County’s program for the future of its public school system “lends itself to perpetuation of segregation” . . . Davis v. Board of School Commissioners of Mobile County, 11 L. Ed. 2d 26, 28 (1963) 15 REASONS FOR GRANTING THE WRIT I. The Decision Below Conflicts With Rulings Both of This Court Since Brown and of Other Courts of Ap peals. It Absolves School Boards of Responsibility to Provide Equal Educational Opportunity to Black Stu dents Contained in Segregated Schools by “ Neighbor hood Residential Patterns” Which Are Themselves the Result of Slate Action Combined With Private Discrimi nation. Since Brown v. Board of Educ., 347 U.S. 483 (1954), this Court has consistently invalidated subterfuges by which school districts have sought to maintain racially separate and identifiable schools, whether such devices relied upon school board or private initiative to produce the desired result. E.g., Cooper v. Aaron, 358 U.S. 1 (1958) (delay sought due to community opposition); Goss v. Board of Educ. of Knoxville, 373 U.S. 683 (1963) (minority-to- majority transfer allowing avoidance of integration); Green v. County School Bd. of New Kent County, 391 U.S. 430 (1968) (free transfer plan permitting same result) ; cf. Calhoun v. Latimer, 377 U.S. 263 (1964) (grade-a-year desegregation). Lower courts have done the same. E.g., Dove v. Parham, 282 F.2d 256, 258 (8th Cir. 1960) (pupil placement); Brewer v. School Bd. of City of Norfolk, No. 14, 544 (4th Cir., June 22, 1970) (en lane) (assignments based on social class); Monroe v. Board of Comm’rs of Jackson, No. 19720 (6th Cir., June 19, 1970) (same); Stell v. Savannah-Chatham County Bd. of Educ., 333 F.2d 55, 62 (5th Cir.), cert, denied, 379 U.S. 933 (1964) (assignment based on purported intelligence differences among races), compare Anthony v. Marshall County Bd. of Educ., 419 16 F.2d 1211 (5th Cir. 1969), rev’d on other grounds sub nom. Carter v. West Feliciana Parish School Bd., 396 U.S. 290 (1970) (assignment by achievement test scores); United States v. Lincoln County Bd. of Educ., 301 F. Supp. 1024 (S.D. Ga. 1969) (same); McFerren v. Fayette County Bd. of Educ., Civ. No. C-65-136 (W.D. Tenm, December 24, 1969) (sex segregation). The progress so far been realized in converting dual school systems into unitary ones from which all vestiges of discrimination have been extirpated, Green v. County School Bd. of New Kent County, supra, is severely jeopar dized by the decision below and others like it which have seized upon a justification for continued segregation in the so-called “neighborhood school concept.” 16 This concept, whatever it means—imprecision is one of its characteristics, compare Ellis v. Board of Public In struction of Orange County, supra, with Mannings v. Board of Public Instruction of Hillsborough County, supra—has been advocated in the past as in the present by those seek ing to preserve segregation. As former Chief Judge Tuttle observed earlier in this very litigation, the “neighborhood school is a euphemism for separation.” Both in the testimony and in the briefs, much is said by the appellees about the virtues of “neighborhood schools.” Of course, in the brief of the Board of Educa tion, the word “neighborhood” doesn’t mean what it usually means. When spoken of as a means to require Negro children to attend a Negro school in the vicinity 16 E.g., EUis v. Board of Public, Instruction of Orange County, supra; Mannings v. Board of Public Instruction of Hillsborough County, supra; Carr v. Montgomery County Bd. of Educ., No. 29521 (5th Cir., June 29, 1970) ; Bradley v. Board of Public In struction of Pinellas County, No. 28639 (5th Cir., July 1, 1970) ; Boss v. Eckels, Civ. No. 10,444 (S.D. Tex., June 1, 1970) ; Calhoun v. Cook, Civ. No. 6298 (N.D. Ga., Feb. 19, 1970) ; Valley v. Rapides Parish School Bd., Civ. No. 10,946 (W.D. La., July 5, 1970). 17 of their homes, it is spoken of as a “neighborhood” school plan. When the plan permits a white child to leave his Negro “neighborhood” to attend a white school in another “neighborhood” it becomes apparent that the “neighborhood” is something else again. As every member of this court knows, there are neighbor hoods 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 edu cation has claimed the right to assign every white child to a school other than the neighborhood school under such circumstances. And yet, when it is suggested that Negro children in Negro neighborhoods be permitted to break out of the segregated pattern of their own race in order to avoid the “ inherently unequal” education of “ separate educational facilities,” the answer too often is that the children should attend their “neighborhood school.” So, too, there is a hollow sound to the superficially ap pealing statement that school areas are designed by observing safety factors such as highways, railroads, streams, etc. No matter how many such barriers there may be, none of them is so grave as to prevent the white child whose “ area” school is Negro from crossing the barrier and enrolling in the nearest white school even though it be several intervening “areas” away. Davis v. Board of School Comm’rs of Mobile County, 364 F.2d 896, 901 (5th Cir. 1966). It is only now, after the decisions of this Court in Alex ander, Carter and Northeross have made unmistakable the 18 requirement of integration, that the “neighborhood school” is offered as an inviolate principle of student assignment. Like its predecessors—pupil placement and similar schemes —its purpose is obvious: to provide a superficially neutral gloss to the maintenance of racially separated schools. Manipulating the “neighborhood school concept” today, as many school boards seek to have it applied, and as the Court of Appeals used it, means in almost every instance (except in small, rural districts) that a significant segment of a school district’s black student population will continue to be assigned to all-black schools. This departure from the clear mandates of this Court from Brown to Northcross is offered as justifiable because of “neighborhood residential patterns.” Nowhere is this new rule more anomalous in result than in Mobile. The district court had before it a number of different desegregation plans for the Mobile school system, submitted under court order because freedom of choice had failed to change Mobile’s dual school system. Yet neither the district court nor the Court of Appeals chose the plan which would integrate every school and destroy racial identifiability in the school system. Instead, both courts left black students and white students alike in segregated schools to preserve what they erroneously per ceived to be Mobile’s “neighborhood school system.” But we do not deal here, as Judge Tuttle recognized four years ago, with a school system in which the neighborhood school concept has a long, hallowed or neutral history. Mobile never considered the neighborhood school concept a bar to its efforts to prevent the attendance of black and white students at the same schools. The extensive record and prolonged proceedings in this case show that the pair ing of non-contiguous attendance zones, the transportation of students from one school zone to another, the closing 19 and conversion of schools, and the manipulation of grade structures—techniques proposed by HEW to completely dismantle Mobile’s dual system by desegregating every school—were all established techniques of school adminis tration when the objective was segregation. This Court held in Green that school districts must con sider proposed desegregation plans not in isolation and abstraction but in “ light of any alternatives which may be shown as feasible and more promising in their effective ness.” 391 U.S. at 439. In Mobile, there is an alternative plan to test the effectiveness of that approved below.17 The appropriate allocation of burdens requires the School Board to demonstrate its unworkability beyond question. That task has not been undertaken because the Court of Appeals saw fit to create, on its own, a new and absolute principle— Under the neighborhood assignment basis in a unitary system, the child must attend the nearest school whether it be a formerly white school or a formerly Negro school. Ellis v. Board of Public Instruction of Orange County, 423 F.2d 203, 207 (5th Cir. 1970) —and then excuse the board from burdens it must carry under decisions of this Court. The fashioning by the Court of Appeals of the neighborhood school concept in absolute terms is as new a judicial invention as it is a principle of school administration in Mobile.18 Invoking this concept 17 Where, as here, the alternative was formulated with the ex pertise of the United States Department of Health, Education and Welfare at the request of the district court, the “school districts are to bear the burden of demonstrating beyond question, after a hear ing, the unworkability of the proposals. . . . ” Carter v. West Feli ciana Parish School Bd., 396 U.S. 290, 292 (1970) (concurring opinion). 18 See generally, Weinberg, Race and Place—A Legal History of the Neighborhood School (U.S. Gov’t Printing Office, Catalogue No. FS 5.238:38005, 1967). 20 as an absolute bar to considering feasible alternatives in a process which requires the examination of individual circumstances of individual districts is plainly contrary to the decisions of this Court. The absoluteness of the neighborhood school concept employed by the Court below cannot be overstated. Only the pupil assignment techniques of contiguous single-school zoning or contiguous pairing have been held permissible; any segregated school remaining after these two techniques have been exhausted is judicially sanctioned on the ground that it results solely from “neighborhood residential pat terns.” Yet the Court overlooks the vital role played by the school system itself in creating and defining the “neighbor hoods” which are now held to be beyond the pale of school board corrective action. As Judge McMillan has said, re ferring to Charlotte, “Putting a school in a particular loca tion is the active force which creates a temporary com munity of interest among those who at the moment have children in that school,” Swann v. Charlotte-Mecklenburg Bel. of Educ., 300 F. Supp. 1358, 1369 (W.D.N.C. 1969) (emphasis omitted). We have pointed out above that the record in this case vividly demonstrates the degree to which the Mobile school board has in the past been able to main tain white and black school “ neighborhoods” through ma nipulation of attendance boundaries, grade structures, port able classroom placement and the pupil transportation system. Like the minority-to-majority transfer disapproved in Goss v. Board of Educ. of Knoxville, supra, the “neighbor hood school concept” permits private action which results in the maintenance of segregated schools. To begin with, there is a historic and pervasive pattern of housing segre gation caused by discrimination against black people throughout the Nation. In the past, the policy of discrimi- 21 nation received the blessing of the federal government. Racial Isolation in the Public Schools, A Report of the U.S. Commission on Civil Rights 254 (1967). See also, Abrams, Forbidden Neighbors 233 (1955) and Weaver, The Negro Ghetto 71-73 (1948). In 1968, recognition of the problem led the United States to take affirmative steps to make housing available to minorities with the passage of the Fair Housing Act of 1968, 42 U.S.C.A. §§ 3601 et seq. (Supp. 1970); see also, Jones v. Alfred II. Mayer & Co., 392 U.S. 409 (1969). But even if active housing discrimina tion were to cease, its residual effects persist. See Racial Isolation in the Public Schools, supra, at 201-02, Legal Ap pendix at 255-56. Furthermore, the record in this case shows that the pres ent residential patterns in Mobile result to a substantial degree from discriminatory policies of the federal, state and local governments. For example, there has been a close relationship between the school board and the public hous ing authorities in the Mobile area regarding location of racially identifiable housing projects and the concommitant nearby location of school facilities which have traditionally been, and which continue to be racially identifiable. E.g., PI. Int. Ex. 87 (July 1967 hearing). Making pupil assignment merely reflective of housing patterns will therefore often but mirror community segre gation and discrimination; it ignores the affirmative duty of school boards formerly operating dual systems to bring about integration. Green v. County School Bd. of New Kent County, supra. The Court of Appeals for the Fourth Circuit has recog nized the problem. In Brewer v. School Bd. of City of Norfolk, 397 F.2d 37, 41-42 (4th Cir. 1968), that Circuit held that 2 2 Assignment of pupils to neighborhood schools is a sound concept, but it cannot be approved if residence in a neighborhood is denied to Negro pupils solely on the ground of color. Other Courts have likewise measured the “neighborhood school concept” as a permissible desegregation device by examining the alternatives available and the results of its application. The United States Court of Appeals for the Eighth Circuit recently considered the mandates of this Court in a challenge to Little Rock, Arkansas’s continuing failure to desegregate its schools. At issue in this urban school system was the acceptability of a geographic zoning plan in light of several alternative plans involving the pairing of schools and transportation of students. The Eighth Circuit reviewed the results of Little Rock’s geographic zoning plan against this statement of the law: Thus, as of this date it is not enough that a scheme for the correction of state sanctioned school segrega tion is non-discriminatory on its face and in theory. It must also prove effective. As the Court observed in Green-. “In the context of the state imposed pattern of long standing, the fact that in 1965 the Board opened the doors of the former ‘white’ school to Negro children and of the ‘Negro’ school to white children merely begins, not ends, our inquiry whether the Board has taken steps adequate to call for the dismantling of a well-entrenched dual system.” 391 U.S. at 437. We believe that geographic attendance zones, just as the Arkansas pupil placement statutes, “freedom of choice” or any other means of pupil assignment must 23 be tested by this same standard. In certain instances geographic zoning may be a satisfactory means of de segregation. In others it alone may be deficient. Always, however, it must be implemented so as to promote desegregation rather than to reinforce segre gation [citations omitted]. Clark v. Board of Educa tion of the Little Rock School District, No. 19,795 (8th Cir., May 13, 1970) (en banc) (Slip op., pp. 14-15). Applying this test to the results of Little Rock’s geographic zoning plan the Eighth Circuit found that the plan retained racially identifiable schools in the face of at least one alter native which would eliminate the racial identifiability at several such schools. The court held that the record could not sustain a holding that the geographical zoning plan “ is the only ‘feasible’ means of assigning pupils to facilities in the Little Rock School System” (Ibid.) and while declin ing to decide on an absolute basis whether “geographical zoning or the neighborhood school concept are in and of themselves either constitutionally required or forbidden” the Court held “that as employed in the plan now before us they do not satisfy the constitutional obligations of the District” (Id. at 19-20). The Eighth Circuit also declined to establish an absolute rule of transportation: Lastly, we do not rule that busing is either required or forbidden. As Judge Blackmun stated in Kemp III, “Busing is only one possible tool in the implementation of unitary schools. Busing may or may not be a useful factor in the required and forthcoming solution of the . . . problem which the District faces.” Kemp III, the El Dorado, Arkansas school case, focused on the feasibility of transportation as a technique of deseg regation : 24 It may or may not be feasible to use it [busing], in whole or in part, for Fairview-Watson-Murmil Heights and it may or may not be feasible to use it, in whole or in part, elsewhere in the system. Busing is not an untried or new device for this District. Kemp v. Beas ley, No. 19,782 (8th Cir., March 17, 1970) (Slip op., p. 14). Similarly in Little Rock the Court took occasion to note “that busing is not an alien practice” and had been used by the District “ to preserve segregation” (Slip op. p. 20). Following its 1968 decision in Brewer, supra, the United States Court of Appeals for the Fourth Circuit has refused to make the neighborhood school concept an inviolate prin ciple in the way the Fifth Circuit believes it is. The Fourth Circuit, although observing that “ [busing] is not a pana cea,” has held that “busing is a permissible tool for achiev ing integration.. . . ” Swann v. Charlotte-Mecklenburg Board of Education, No. 14,517 (4th Cir., May 26, 1970) (Slip op., p. 18). The court specifically condemned the School Board’s rejection of a variety of legitimate techniques of desegre gation. The district court properly disapproved the school board’s elementary school proposal because it left about one-half of both the black and white elementary pupils in schools that were nearly completely segre gated. . . . The consultants that the board employed were undoubtedly competent, but the board limited their choice of remedies by maintaining each school’s grade structure. This, in effect, restricted the means of overcoming segregation to only geographical zon ing, and as a further restriction the board insisted on contiguous zones. The board rejected such legitimate techniques as pairing, grouping, clustering, and satel lite zoning (Slip op., pp. 22-23). 25 On remand, the Court held that “ every method of deseg regation, including rezoning with or without satellites, pairing, grouping, and school consolidation” should be ex plored, and that “undoubtedly some transportation will be necessary to supplement these techniques” (Slip op., p. 25). Nowhere is there any suggestion that the neighbor hood school concept is an absolute bar to a plan entailing the transportation of students.19 20 See also, Davis v. School Dist. of City of Pontiac, 309 F. Supp. 734 (E.D. Mich. 1970); Spangler v. Pasadena City Bd. of Educ., Civ. No. 64-1438-R (C.D. Cal., March 12, 1970); Crawford v. Board of Educ. of City of Los Angeles, No. 822-854 (Super. Ct. Cal., February 11, 1970). Ellis v. Board of Public Instruction of Orange County, Florida, supra, suggests that the objectives served by neighborhood schools are “ to eliminate transportation costs and to permit the student to remain as near home as pos- 19 Petitioners wish to make clear that noting the conflict between the Fourth and Fifth Circuits does not in any way constitute an endorsement of the Fourth Circuit’s limitation of remedial power by its “ reasonableness” doctrine. See Petition for Writ of Certi orari, Swann v. Charlotte-Mecklenburg Bd. of Educ., No. 281, O.T. 1970, cert, granted, June 29, 1970, 38 U.S.L.W. 3522. 20 20 In a concurring opinion in Brewer v. School Bd. of City of Norfolk, No. 14,544 (4th Cir., June 22, 1970), cert, denied, 38 U.S. L.W. 3522 (June 29, 1970), Judges Sobeloff and Winter wrote: The District Court should not tolerate any new scheme or “principle,” however characterized, that is erected upon and has the effect of preserving the dual system. This applies to the “neighborhood school” concept, a shibboleth decisively re jected by this court in Swann (Judge Bryan dissenting), as an impediment to the performance of the duty to desegregate. The purely contiguous zoning plan advanced by the Board in that case was rejected by five of the six judges who partici pated. A new plan for Norfolk that is no more than an overlay of existing residential patterns likewise will not suffice. (Slip op. at pp. 1-2) 2 6 sible” . Ibid. The absoluteness of the principle prevents any inquiry into the extent to which alternative assignment methods may in fact or law counteract these objectives. If the saving of transportation costs is a legitimate objec tive then the actual impact of a plan on these costs must be appraised. Yet the Court of Appeals’ formulation of the neighborhood school concept bars any determination of these increased costs, the school board’s ability to bear them, and the availability' of state assistance to defray a portion of the costs. Mobile is a school district which en gages in extensive busing (during 1967-68 207 buses trans ported 22,094 students daily)21 and by examining its past operation and present financial situation it would be pos sible to determine the actual impact of an order requir ing the transportation of additional students. Furthermore, the court’s formulation permits no consideration of the savings which transportation might enable in the system’s school construction program. The School Board has been enjoined since 1969 from constructing two additional schools in Mobile’s black ghetto. 414 F. 2d at 610. The use of presently unused capacity in white schools would eliminate the need to construct these facilities and the use of trans portation to better utilize existing* facilities might actually save the school system money. Finally, if the facts show that Mobile’s transportation expenditures must actually increase beyond state assistance and savings in school con struction costs, then the absoluteness of the court’s neigh borhood school concept forecloses judicial consideration whether the saving of money is a legitimate basis for main taining racially separated schools. The other objective which the neighborhood school con cept is said to serve is allowing students to remain as close 21 The average round trip was 31 miles. (H.E.W. Report, July 10, 1969, p. 61). 27 to home as possible. Again the absoluteness of the neigh borhood school concept prevents inquiry into the extent to which alternative assignment systems counteract this objec tive. The non-eontiguous zoning plan proposed by the H.E.W. does not disperse students throughout the school system without relationships to any neighborhood schools. What the H.E.W. plan typically proposes to do is to re quire students and parents to relate to two neighborhoods, one black and one white, instead of to just one racial neighborhood. If parents living in proximity to one an other wish to organize to act upon school problems they may still do so, except that they would hopefully work in concert with the parents of the paired zone to solve mutual problems. Yet no consideration may be given to these views given the absoluteness of the court’s ruling below. The Court of Appeals offers three alternatives to the desegregation of all schools: an integrated educational experience at some point in a child’s educational career, a transfer policy allowing black students to transfer to white schools with transportation provided, and the estab lishment of a bi-racial committee to advise the School Board (16a). None of these alternatives provides a remedy for the constitutional wrong involved in maintaining racially segregated elementary schools. Offering an integrated education in junior and senior high schools merely postpones the constitutional right to an integrated education and does not grant it “now” . Alex ander v. Holmes County Board of Education, 396 U.S. 19 (1969). It also fails to consider the damage caused by five or six years of segregated elementary education and the difficulties black children will face in integrated junior and senior high schools after a segregated elementary educa tion. The second alternative, transfers with transportation provided, unlawfully seeks to shift the burden from the School Board back to black children. Freedom of choice by whatever name has never worked in Mobile. Davis v. Board of School Commissioners of Mobile County, 393 F.2d 690 and 414 F.2d 1211 (5th Cir. 1968-69). The third “ alter native,” a bi-racial advisory committee, while probably sal utary is not an alternative in fact. It is just an advisory committee to an all-white and recalcitrant school board. Finally the Court of Appeals offers the illusion that “ open housing, Title VIII, Civil Rights Act of 1968 . . . [and] Jones v. Mayer, 392 U.S. 409 (1969) . . . will serve to prevent neighborhood entrapment” (16a). To the con trary, open housing, which is a difficult enough goal to achieve, will probably become even more difficult now that the Court of Appeals has provided an added inducement for whites to maintain neighborhood segregation. If, on the other hand, everyone realized that no matter where any one moved in the school system his children would attend an integrated school—and assuming that local interest in a neighborhood school system is strong—then the more the Mobile community integrated its neighborhoods the less it would have to transport students. II. This Court Should Grant Certiorari in Order to In sure Petitioners’ Due Process Right to an Evidentiary Hearing in the District Court. The instructions of the Court of Appeals to the district court on June 3, 1969, Davis v. Board of School Comm’rs of Mobile County, 414 F.2d 609 (5th Cir. 1969), provided for the submission of a new desegregation plan to replace free dom of choice in Mobile, and that 3 . . . (e) For plans as to which objections are made . , . the District Court shall commence hearings begin ning no later than ten days after the time for filing objections has expired. 29 Id. at 611 (emphasis supplied). Despite this dear man date, and petitioners’ expressed objections to provisions of the plan filed by the Mobile school board, the district court acted August 1, 1969 without a hearing. Similarly, on remand from this Court (sub nom. Garter v. West Feli ciana Parish School Bd., supra, implemented sub nom. Singleton v. Jackson Municipal Separate School Dist., No. 26285 (5th Cir., Jan. 15, 1970)), the district court merely held a “ pre-trial conference” and then entered an order on a permanent desegregation plan without affording an opportunity for an evidentiary hearing. The absence of a record upon which to review the district court’s judgment led the Court of Appeals to issue a limited remand for fact finding by the district court on specific issues vital to determining the propriety of the district court’s action, such as the extensiveness of Mobile’s pupil transportation system. Yet again, the district court denied petitioners’ motion for a hearing and made its findings without petitioners’ having been able to confront the board’s version of the facts and introduce evidence contradicting it. Petitioner’s appeal below raised the denial of an eviden tiary hearing as one of the issues, but the Court of Appeals, which also acted summarily,22 ignored it. 22 The last regularly scheduled oral argument in a school deseg regation case in the Fifth Circuit was held last summer, except for one argument held March 18, 1970 in Bradley v. Board of Public Instruction of Pinellas County, supra. Ten cases were removed from the regular calendar and argued together en banc November 15-16, 1969. Singleton v. Jackson Municipal Separate School Dist., supra, rev’d sub nom. Carter v. West Feliciana Parish School Bd., supra. Since that time, more than twenty decisions in such cases have been issued, all—with the exception of Bradley—without the benefit of oral argument. In addition, since Singleton, all school desegregation appeals have been subject to its vastly accelerated time schedule, see 419 F.2d at 1222, which often requires briefing and decision without benefit of a transcript. In light of the accel erated and summary procedures of the Court of Appeals, the dis trict court’s refusal to hold a hearing assumes even greater signifi cance. 30 Petitioners submit that this consistent refusal to permit them to present their case is contrary to the most funda mental notions of due process. Particularly in our adver sary system, courts rely upon the vigorous presentations of counsel to sharpen issues, focus litigation, and bring out the facts. Yet neither the district court, which selected and modified a plan, nor the Court of Appeals, which selected and modified a different plan, has heard counsel in this case. The plans do, in a limited sense, speak for themselves. Assuming arguendo that the district court might have se lected a plan to be implemented pendente life without a hearing, (and we submit that under the principles of Alex ander and Garter, this Court should require the implemen tation of Plan B-l Alternative pendente life) the final dis position of a case of this magnitude affecting tens of thousands of students should not be attempted without full exploration of the facts. If the district court was under the impression that it had an obligation to finally dispose of the case by February 1, 1970 at the cost of a full explora tion of the facts at a hearing, then the court misread Carter and Alexander. Only after a full hearing at which all parties have the opportunity to present their evidence should the district court rule on a permanent plan and in so doing, make detailed findings of fact. The findings of the district court in its January 31, 1970 order hardly acquit the court’s obligation. The selection of isolated facts from a com prehensive plan to desegregate a large school district pro vides plainly inadequate support for whatever ultimate conclusion the court may reach. Finally, if the court by an appropriate standard does find isolated problems with a comprehensive plan it should require amendments rather than reject the plan in its entirety. 31 Merely remanding to the district court for an eviden tiary hearing will serve no purpose, however, unless this Court also makes clear that in devising a remedy for the state-imposed dual school system in Mobile, neither the school board nor the district court is in any way limited by the “neighborhood school concept” expounded by the Court of Appeals. And, pending such hearing and the district court’s determination, this Court should require Mobile to implement Plan B -l Alternative pendente lite. Cf. Swann v. Charlotte-Mecklenburg Bd. of Educ., supra note 19. CONCLUSION For the foregoing reasons it is submitted that the peti tion for certiorari should be granted to review the judg ment of the United States Court of Appeals for the Fifth Circuit. Respectfully submitted, J ack Greenberg J ames M. N abrit, III M ichael D avidson N orman J. Ch a c h k in 10 Columbus Circle New York, New York 10019 V ernon Z. Crawford A lgernon J. Cooper 1407 Davis Avenue Mobile, Alabama 36603 Attorneys for Petitioners APPENDIX Order o f District Court I n the UNITED STATES DISTRICT COURT F or th e S outhern D istrict oe A labama S outhern D ivision Civil A ction No. 3003-63 B irdie M ae D avis, et al ., and Plaintiff, U nited S tates oe A merica, by R amsey Clark , Attorney General, etc., Plaintiff -Intervenor, vs. B oard oe S chool Commissioners oe M obile Cou nty , et al ., and Defendants, T w ila F razier, et al ., Intervenors. This Court entered a decree in this case on August 1, 1969, under which the public school system of Mobile County opened and operated through the first semester of 1969. That part of the desegregation plan devised in said order which was to be implemented in September 1970, was in accord with recommendations of Health, Education and la 2a Welfare, with alterations or modifications to meet par ticular educational principles. This Court’s decision was appealed and was affirmed by the Fifth Circuit Court of Appeals sitting en banc on December 1, 1969. On January 14, 1970, the Supreme Court of the United States reversed the Fifth Circuit Court of Appeals and remanded the decision to the Court of Appeals for further proceedings consistent with the Supreme Court’s opinion. On January 21, 1970, the Court of Appeals issued its man date to this Court, which in effect stated that there could be no deferral of school desegregation beyond February 1, 1970. Faced with this mammoth task, the Court on its own motion sought the advice and professional assistance of all the parties. On the afternoon of January 23, 1970, the Court conducted a pretrial conference with the attorneys representing all of the parties and at such time the Court requested attorneys for the school board and the govern ment to submit a revision of the plans submitted by the school board on December 1, 1969. The Court realizing its plan of August 1, 1969, in some respects was still a dual system, ordered the school board to submit a plan not later than December 1, 1969, which would disestablish such system, which plan was to be implemented on September 1, 1970. The Court also called upon the government for revision of the HEW plan which the government thought should be followed for the remainder of the present school year. These revised plans were to be furnished to the Court by 9 o’clock A.M. on the 27th day of January. The government furnished the requested plans. The school board did not, and by order dated January 28, 1970, at 9 :30 A.M., the school board was ordered to submit such revised plans. As of this date, they have not done so. The school Order of District Court 3a board and its staff of administrators and professional edu cators, who know the Mobile Public School System best, who have all the facts and figures which are absolutely necessary for a meaningful plan, have not assisted or aided the Court voluntarily. Consequently, the plan which is by this decree being ordered is not perfect, but the ten day period from January 21st to February 1st obviously allows inadequate time to work out an ideally legal and workable plan for educating approximately 75,000 school children, particularly when the change comes in mid-semester. This plan pleases no one—the parents and students, the school board, Justice Department, NAACP, nor in fact, this Court. The Court’s plan closes schools which the school board wants open. It opens schools which the Justice Department wants closed. But a decision had to be made and it was the duty and the responsibility of this Court to make that decision. The Supreme Court of this country has spoken, and this Court is bound by its mandate. It is the law. It must be followed. The revised HEW plan which the government submitted to the Court would require no busing of students, but ex tensive pairing of several schools. An alternate plan sub mitted by HEW and upon which the plaintiffs insist, would require the busing of children from areas of the city to a different and unfamiliar area as well as the pairing of many schools. The distance between some of the schools by vehicular traffic would be approximately fifteen miles. The government plan and the HEW plan would materially change the grade structure for approximately thirty-four schools, and in some instances, would completely change each school’s identity. The government asked the Court to close many of the high schools which are attended by 90% or more of Negro pupils, among them, Central High Order of District Court 4a and Mobile Training. This I am unwilling to do as I think it would be unfair to the Negro population of this city. Many of them have graduated from one or more of these schools. They take pride in them. In many areas, includ ing sports, there is much rivalry between these schools and I do not think the traditions which they have created over the years should be destroyed. Under one of the HEW plans it would have necessitated a child in the Austin area to attend Austin in the fifth grade and from the sixth through ninth grades he would have to change three times, namely, to Phillips, Washington and Toulminville, and in the tenth grade to Murphy, thus at tending five different schools in six years. Under one of the HEW plans of pairing schools, a child would have gone to Dodge in the first and second grades, Williams in the third grade, and Owens in the fourth, fifth and sixth grades. The distance from Dodge to Williams is approximately 8.6 miles and from Williams to Owens approximately 7.4 miles and from Dodge to Owens, approximately 11.4 miles. Admittedly these material changes in grade structures and in identity, and the pairing of schools and the necessity of busing great distances, are motivated for the sole pur pose of achieving racial balance. In this Court’s opinion, the Supreme Court has not held that such drastic techniques are mandatory for the sole purpose of achieving racial bal ance. By the same token, the Court is of the opinion that such techniques in certain instances, must be utilized to re move the effect of the dual school system.. Therefore, it was necessary to change the grade structure on a limited basis and in one instance, the identity of a school. These altera tions were not motivated to achieve racial balance, but to desegregate the public school system. Order of District Court 5a I have said many times that the best thing that could happen would be for this litigation to come to an end. This is true. But I am unwilling to disregard all common sense and all thoughts of sound education, simply to achieve racial balance in all schools. I do not believe the law requires it. And this litigation will continue to be stirred as long as adequate funds are provided for those who want litigation, for the sake of litigation, without regard to the rights of the children and parents involved. The Court has attempted as nearly as possible to com ply with the mandate of the Appellate Courts and yet leave it humanly and educationally possible to operate the schools. Laboring under the handicap of time, the Court has accom plished what it finds to be the plan most workable under the circumstances, both from an educational and imple- mental point of view. Therefore, it is Ordered, A djudged and D ecreed by the Court that the area attendance desegregation plan sub mitted by the school board on December 1, 1969, for those school zones lying East of 1-65, with one exception set out below, is hereby adopted and put into effect as of Febru ary 1, 1970, with the following exceptions: Elementary Schools East of 1-65 1. The Emerson Elementary School serving Grades 1-6 shall be closed. Those students who attend Emerson will now attend Council or Leinkauf Elementary Schools, as il- lustraetd by the map attached hereto and identified as Ex hibit “A ” . Those sixth grade students now attending Emer son shall be enrolled at Hall Junior High School. The placement of the Emerson students in other area attendance zones are reflected by modification of the Council-Leinkauf area attendance zones. Order of District Court 6a Order of District Court Middle Schools East of 1-65 2. The Hall area attendance zone shall be increased to relieve the overcrowding situation at Dunbar Junior High and to include those sixth grade students who previously attended Emerson or Old Shell Road. The area attendance zones for Washington Junior High, Phillips Junior High, Mae Eanes Junior High, and Dunbar Junior High, have all been altered to achieve a desegregated school system, as reflected by area attendance zone map attached hereto and identified as Exhibit ‘‘B” . High Schools East of 1-65 3. Trinity Gardens School is hereby changed to a middle school serving Grades 6-8. The high school students who previously attended Trinity Gardens shall attend Blount High School. Murphy High School area attendance zone has been in creased to achieve desegregated school system and to elimi- nat the overcrowded enrollment at Toulminville High School, as reflected by area attendance zone map attached hereto and identified as Exhibit “ C” . It is F u rther Ordered, A djudged and D egreed by the Court that those graduating high school seniors who are not presently attending the high school which serves their area under the Court’s plan submitted this date, shall be allowed to remain in the high school which they presently attend for the remainder of the 1969-70 school year. However, since the identity of the Trinity Gardens school has been changed from a high school to a school serving the middle grades, the seniors at Trinity Gardens shall now be attending Blount High School. Under the circumstances, the Court authorizes the Board, faculty, and the students themselves, in instituting this plan, to maintain the identity 7a of the Trinity Gardens seniors as a unit by whatever proper programs they deem necessary at Blount High School. Schools Lying West of 1-65 4. The Davidson High School attendance area is hereby enlarged to include those students who previously attended Murphy High School under the area attendance zone lying West of 1-65 as illustrated by Exhibit “ C” attached hereto. It is F u rther Ordered, A djudged and D ecreed that the area attendance zones lying West of 1-65 as decreed by this Court on August 1, 1969, with the one exception above noted, shall remain in effect. Paragraph V II of the Court’s order of August 1, 1969, pertaining to faculty is incorporated in its entirety in this order and should be implemented forthwith. The Board shall publish or cause to have published in the local newspaper, the complete text of this decree and the maps attached, not later than Wednesday, February 4, 1970. In addition, the school board shall post or cause to be posted, in a conspicuous place in each school in the system in which this decree changes area attendance zones from that established in the August 1, 1969, decree, and at the offices of the school board. The Court finds that this decree disestablishes the opera tion of a dual school system in Mobile County and estab lishes a unitary system. This plan shall be implemented forthwith. D one at Mobile, Alabama, this the 31st day o f January 1970. / s / D aniel, H. T homas United States District Judge Order of District Court 8a I n the UNITED STATES COURT OF APPEALS F oe th e F if t h Circuit Opinion o f Court o f Appeals No. 29332 Summary B irdie M ae D avis, et al ., Plaintiffs-Appellants-Cross Appellees, and U nited S tates of A merica, E tc., Plaintiff-Intervenor-Appellants-Cross Appellees, versus B oard of S chool Commissioners of M obile C ou nty , et al ., Defendants-Appellees-Cross Appellants, and T w ila F razier, et al ., Intervenors-Appellees. appeals from the united states district court for the SOUTHERN DISTRICT OF ALABAMA (June 8, 1970) Before B ell, A in sw o rth , and G odbold, Circuit Judges. 9a B ell , Circuit Judge: We consider again the effort to convert the Mobile County School System from dual to unitary status. This is the ninth appeal of the matter to this court.1 * * * 5 The system is now operating on a student as signment system fashioned by the district court after con sidering a school board plan of assignment, three separate HEW plans, and one plan submitted by the Department of Justice. In Singleton v. Jackson Municipal Separate School Dis trict, supra, fn. (1), we approved the student assignment plan of the Mobile County system then in effect for all schools located west of Interstate Highway 65. This ap peal basically complains only of the student assignments in the schools located east of 1-65. However, in an effort finally to adjudicate the status of this system from the standpoint of all of the essentials required to convert a dual school system into a unitary school system, we have obtained supplemental findings of fact from the district court. See Ellis v. The Board of Public Instruction of Orange County, Florida, 5 Cir., 1970, ------ F.2d ------- [No. 29,124, slip opinion dated February 17, 1970] ; Mannings v. The Board of Public Instruction of Hillsborough. County, Florida, 5 C ir .,------F .2 d -------- [No. 28,643, slip opinion dated May —, 1970], as examples of the same approach. 1 Singleton v. Jackson Municipal Separate School District, 5 Cir., 1969, 419 F.2d 1211 (en banc consideration of Mobile case and 12 additional school desegregation eases); Davis v. Board of School Commissioners of Mobile County, Ala., 5 Cir., 1969, 414 F.2d 609; Davis v. Board of School Commissioners of Mobile County, Ala., 5 Cir., 1968, 393 F.2d 690; Davis v. Board of School Commissioners of Mobile County, Ala., 5 Cir., 1966, 364 F.2d 896; Davis v. Board of School Commissioners of Mobile County, Ala., 5 Cir., 1964, 333 F.2d 53; Davis v. Board of School Commissioners of Mobile County, Ala., 5 Cir., 1963, 322 F.2d 356; Davis v. Board of School Commis sioners of Mobile County, Ala., 5 Cir., 1963, 318 F.2d 63; Davis v. Board of School Commissioners of Mobile County, Ala., 5 Cir., 1970, 422 F.2d 1139. Opinion of Court of Appeals 10a In Ellis v. Orange County and in Mannings v. Hills borough County, we adverted to the school desegregation requirements set out in Alexander v. Holmes County Board of Education, 1969, 396 U.S. 19, 90 S.Ct. 29, 24 L.E.2d 19; Green v. County School Board of New Kent County, 1968, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716, and the deci sion of this court in Singleton v. Jackson Municipal Sepa rate School District, supra. In Ellis v. Orange County, we said: “ . . . In Green v. County School Board of New Kent County, . . . the mechanics of what must be done to bring about a unitary system were outlined. They were stated in terms of eliminating the racial identification of the schools in a dual system in six particulars: composition of student bodies, faculty, staff, transpor tation, extracurricular activities, and facilities. . . . It was such dual systems, organized and operated by the states acting through local school boards and school officials, which were held unconstitutional in Brown v. Board of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (Brown I), and which were ordered abol ished in Brown v. Board of Education, 1955, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (Brown II). “In Green the court spoke in terms of the whole system—of converting to a unitary, nonracial school system from a dual system. Then, in Alexander v. Holmes County Board of Education, . . . the court pointed to the end to be achieved. The result, if a constitutionally acceptable system may be said to exist, must be that the school system no longer operates as a dual system based on race or color but as a ‘unitary school . . . [system] within which no person is to be Opinion of Court of Appeals 11a effectively excluded from any school because of race or color.’ . . ------ F.2d at p . ------ We thus proceed to a determination of the status of the Mobile system with respect to each of the six essential elements which go to disestablish a dual school system.2 We find the system deficient in student assignment in cer tain schools and also in faculty and staff assignment. The Mobile system covers the whole of Mobile County including the City of Mobile. The county is quite large in area, embracing 1,222 square miles. There are a total of 96 schools in the system in 91 buildings, and the 96 schools consist of senior high, junior high, and elementary schools plus one special school. Some of the buildings house sepa rate elementary or junior high or high schools; others house combinations of these. There were 73,504 students in the system as of September 26, 1969. This total breaks down into 42,620 or 58 percent white students, 30,884 or 42 per cent Negro students. Under the present plan 18,623 or 60 per cent of the Negro students in the system are as signed to schools having all or virtually all Negro student bodies. These Negro students are housed in 12 elementary, 3 junior high schools, 1 combination junior-senior high, and 3 senior high schools. 2 Under the stringent requirements of Alexander v. Holmes County Board of Education, supra, which this court has earried out in United States v. Hinds County School Board, 5 Cir., 1969, 417 F.2d 852 [Nos. 28030, 28042, Nov. 7, 1969], this court has judicially determined that the ordinary procedures for appellate review in school segregation cases have to be suitably adapted to assure that each system, whose case is before us, “begin immediately to operate as unitary school systems.” Upon consideration of the record, the court has proceeded to dispose of this case as an ex traordinary matter. Rule 2, FRAP, Opinion of Court of Appeals 12a Opinion of Court of Appeals F aculty and S taff The faculty and staff desegregation standard enunciated in Singleton v. Jackson, supra, requires assignment on a basis whereunder the ratio of Negro to white teachers and staff members in each school is substantially the same as each such ratio is to teachers and staff in the entire school system. The faculty ratio for the system is approximately 60 per cent white and 40 per cent Negro. As of April 7, 1970, there were 1,642 white faculty members and 1,098 Negro members or a total of 2,740. We have no informa tion on staff ratios. The Mobile County school system has almost totally failed to comply with the faculty ratio requirement although or dered to do so by the district court on August 1, 1969. Only a few schools approach the 60-40 faculty ratio. The district court is directed to require strict compliance with the Singleton v. Jackson rule for faculty and staff on or before July 1, 1970. T ransportation , F acilities and E xtracuekicular A ctivities In the 1967-68 school term, 207 school buses transported 22,094 students daily. The facts disclose that school buses are used in all rural areas of the county and in the out lying areas of metropolitan Mobile and that they are oper ated on a non-segregated, non-discriminatory basis. The facts also demonstrate that all extracurricular activities and facilities are operated on the same basis. Indeed, there is no complaint regarding transportation, facilities and extracurricular activities. The district court is directed to enter an order requiring the continued desegregation of facilities and extracurricular activities and to include the requirements of Singleton v. Jackson, supra, as to trans- 13a portation, school construction and school site selection as a part of the order. S tudent A ssignment We have examined each of the plans presented to the district court in an effort to determine which would go fur ther toward eliminating all Negro or virtually all Negro student body schools while at the same time maintaining the neighborhood school concept of the school system.. Un like Orange County (Ellis v. Orange County, supra), Mobile does not purport to use the strict neighborhood assignment system. It employs zones based on discretionary zone lines. In that sense it is like the Hillsborough County system (.Mannings v. Hillsborough County, supra), and the situa tion, as in Hillsborough, can be greatly improved by pairing some schools located in close proximity to each other. See the description of neighborhood pairing used in Mannings v. Hillsborough County. The situation can also be improved by recasting the grade structure in some of the buildings but, at the same time, maintaining the neighborhood school concept. The plan submitted by the Department of Justice on January 27, 1970, contemplates both pairing and the recast ing of grades. It produces a result of 9 all or virtually all Negro student body elementary schools instead of 12 as at present, and 1 senior high school of the same type in stead of 7 junior and senior high schools as at present. Instead of 60 per cent of the Negro students being assigned to such schools, the result under the Department of Justice plan would be 28 per cent (8,515 students instead of 18,623). Every Negro child would attend an integrated school at some time during his education career under the Department of Justice plan. Opinion of Court of Appeals 14a The result to be achieved under this plan proves an obvi ous fact. Ordinarily, it is easier to desegregate high and junior high schools than elementary schools. This is due to the difference in the size of the schools. Elementary schools are generally smaller and thus they receive students from a more restricted area. On the other hand, high and junior high schools, with their large student capacities, encompass larger areas and, more likely, areas containing diverse racial groups. We conclude that the Department of Justice plan, as hereinafter modified, must be invoked. By way of modifica tion, it will be necessary to desegregate the one all Negro high school—Toulminville. It appears from maps of record that the zone line between Murphy high and Toulminville high can be redrawn so as to include some of the students living in the area of the Crichton elementary school. Some of these students appear to reside nearer Toulminville than Murphy. In addition, the Department of Justice plan must be modified to close the Emerson elementary school (soon to be eliminated in an urban renewal project). This school would have an all Negro student body under the Justice Department plan. The 450 students who would be assigned to Emerson are to be assigned as follows: 200 to Council, 200 to Caldwell, and 50 to Lienkauf. This will leave only 8 all Negro student body schools (all elementary), with 25 per cent of the Negro students assigned thereto (7,725 instead of 18,623), and every Negro child in the Mobile system will attend school in a desegre gated junior high and high school on a neighborhood basis.8 3 * * * 3 The Department of Justice plan coupled with the Toulminville and Emerson feature seems superior to the HEW plans. Any one of the plans, HEW or Department of Justice as modified, would lead to a unitary system. The original HEW plan (Plan B ), filed Opinion of Court of Appeals 15a Opinion of Court of Appeals Attached as Appendix A is a chart depicting student body composition by school and race under the present district court plan and the Department of Justice plan of January 27, 1970.4 The district court is directed to im plement the Department of Justice plan on or before July 1, 1970 together with the Toulminville-Murphy and Emer son changes above described. From the standpoint of demography, a majority of the Negro population in the Mobile school system is situated in a concentrated area within the City of Mobile to the east of Highway 1-65. The all Negro student body schools which will be left after the implementation of the Department of on July 10 1969, principally utilized zoning, but also proposed transporting approximately 2,000 Negro students from the heavy Negro concentration in eastern Mobile to predominantly white schools in the western and southern part of Mobile. It did not contemplate transporting white students m exchange. 1 his plan would retain 6 all Negro schools serving 5,949 Negro student^ or 19 per cent of the total Negro students in the system. HEW Plan B-alternative, filed December 1, 1969, employed contiguous zoning as well as contiguous pairing. The plan contemplated no transpor tation of students. It would leave 9 all Negro schools serving 7,971 “ d e n i o T S per cent o£ the total. HEW Plan B-l-alterpat™, filed December 1, 1969, was limited to elementary schools and in corporated Plan B-alternative for junior and senior high schools The plan involves non-contiguous pairing of each all Negro school in eastern Mobile with a predominantly white school m western or southern Mobile (across the system). The plan calls for cross transportation of both whites and Negroes. There would be no all Negro schools under this plan. This non-neighborhood plan is euphemistically referred to in plaintiff’s brief as a Shared Neigh borhood Plan.” 4 The defendants warn that the figures used by the Department of Justice and HEW are inaccurate. This may be true but the defendants, the only parties in possession of current and accurate information, have offered no help. This lack of cooperation and generally unsatisfactory condition, created by defendants, should be terminated at once by the district. Such errors m information as do exist may be corrected and the situation adjusted accordingly by the district court. 16a Justice plan as modified, are the result of neighborhood patterns. This condition can be further alleviated through a majority to minority transfer policy and through the functioning of a bi-racial committee. The student assign ments in the school system depend on zone lines which are drawn on a discretionary basis and therefore may be sub ject, in some instances, to abuse and in others, to improve ment. The proper administration of zone lines depends upon good faith in establishing and maintaining the lines as well as continuing supervision over them. The district court is directed to see that a bi-racial com mittee of the type described in Ellis v. Orange County, supra, is established. See Singleton v. Jackson Municipal Separate School District, 5 Cir., 1970,------F.2d ------- [No. 29226, slip opinion dated May, 1970]. In addition, the district court is directed to require the majority to minority transfer rule of Ellis v. Orange County. All transferring students must be given transportation if they desire it and the transferee is to be given priority for space. The district judge is also directed to require that the bi- racial committee serve in an advisory capacity to the school board in the areas of the operation of the majority to minority transfer rule, the promulgation and maintenance of zone lines, and in school site location. As we said in Ellis v. Orange County, with respect to eliminating all Negro student body schools: “ . . . The majority to minority transfer provision under the leadership of the bi-racial committee is a tool to alleviate these conditions now. Site location, also under the guidance of the bi-racial committee, will guarantee elimination in the future. In addition, open housing, Title VIII, Civil Rights Act of 1968, 42 USCA, § 3601, et seq., Jones v. Mayer, 1968, 392 U.S. 409, 88 Opinion of Court of Appeals 17a S.Ct. 2186, 20 L.Ed.2d 1189, will serve to prevent neighborhood entrapment.” D eficiencies to be R emedied We conclude that three of the six elements that go to make up a unitary system have been accomplished in Mobile County: transportation, extracurricular activities, and facilities. The remaining deficiencies in faculty and staff desegregation and in student assignment must be remedied on or before July 1, 1970 on the basis heretofore stated. All other diretion herein given to the district court must also be accomplished not later than July 1, 1970. Once done, and when the district court, by the standards herein stated, has made its own conclusion as to the system being unitary, the district court must retain jurisdiction for a reasonable time to insure that the system is operated in a constitutional manner. As the Supreme Court said in Green, “ . . . whatever plan is adopted will require evalua tion in practice, and the court should retain jurisdiction until it is clear that the state-imposed segregation has been completely removed.” 391 U.S. at 439. R eversed and R emanded w ith direction. Opinion of Court of Appeals APPEN DIX “A ” COMPARISON OF DEPARTM ENT OF JUSTICE PLAN WITH DISTRICT COURT PLAN Projected Enrollment Under Zone Lines Of- Assignm ents Under fered by the U. S. on District Court Plan 1/27/70 of 1/31/70 t ? t J7MVATT4RY SCHOOLS SCHOOL GRADES WHITE NEGRO GRADES WHITE NEGRO South. Brookley 1-6 502 71 1-6 484 76 Morningside 1-5 631 0 1-5 751 0 Williams 1-6 571 43 1-6 554 60 M aryvale 1-5 414 117 1-5 453 171 Mertz 1-5 498 104 1-5 453 0 Craighead 1-5 347 489 1-5 290 569 Arlington 1-5 160 170 - closed - Council 1-5 4 391 1-5 2 548 ^Emerson 1-5 0 450 - closed - Lienkauf 1-5 273 165 1-5 224 235 W oodcock 1-5 424 167 1-5 193 186 O pinion of C ourt of A ppeals Projected Enrollment Assignments Under Under Zone Lines Of- District Court Plan fered by the U. S. on of 1/31/70 1/27/70 ELEM EN TARY SCHOOLS — cont. SCHOOL GRADES WHITE NEGRO GRADES WHITE NEGRO Westlawn 1-5 532 0 1-6 541 0 Crichton 1-5 438 348 1-6 457 240 Old Shell Road 1-5 232 295 1-6 267 106 Caldwell 1-5 0 350 1-8 20 390 Howard - closed - 1-6 12 432 Owens 1-5 2 1414 1-6 0 112.1 Fonvielle 1-5 0 1000 1-6 4 1163 Stanton Road 1-5 6 900 1-6 6 976 Gorgas 1-5 7 963 1-6 ' 4 1168 Brazier 1-5 10 1022 1-5 0 955 Grant 1-5 15 1285 1-5 0 1231 Palm er/G lendale 1-5 434 931 1-5 66 600 G lendale/P aimer 1-5 434 931 1-5 385 192 Whitley 1-5 216 481 1-5 0 383 Robbins/Ham ilton 1-5 638 855 1-5 0 859 O pinion of C ourt of A ppeals Projected Enrollment Under Zone Lines Of- Assignments Under fered by the U. S. on District Court Plan 1/27/70 of 1/31/70 ELEM EN TARY SCHOOLS — cont. SCHOOL GRADES WHITE H am ilton/Robbins 1-5 638 Chickasaw 1-5 473 WEST OF 1-65 Whistler 1-5 181 Thomas 1-5 180 Indian Springs 1-5 535 Eight Mile 1-6 280 •Shepard 1-6 409 Dodge 1-6 675 Austin 1-6 396 Fonde 1-6 679 Dickson 1-6 835 •Orchard 1-5 754 Will 1-5 657 Forest Hill 1-5 560 NEGRO GRADES WHI ' rE GRO 855 1-6 621 0 100 1-6 3 20h 1-6 m 231 95 1-6 •'')9 101 11 1-6 520 12 66 1-8 586 110 29 1-6 409 29 65 1-6 675 65 22 1-6 396 22 11 1-6 679 11 193 1-6 835 193 113 1-5 754 113 175 1-5 657 175 0 1-5 560 0 O pinion of C ourt of A ppeals P rojected Enrollment MIDDLE SCHOOLS Under Zone Lines Of- Assignments Under fered by the U. S. on District Court Plan 1/27/70 of 1/31/70 SCHOOL GRADES WHITE NEGRO GRADES WHITE NEGRO Rain 7-12 1150 97 7-12 1089 112 Eanes/H all 6-9 1292 977 6-8 978 280 ^all/E anes 6-9 1292 977 6-8 180 838 Phillips/Washington 6-9 1170 1716 7-8 691 179 Wa s hin gton/P hi Hip s 6-9 1170 1716 7-9 0 1463 Dunbar 6-9 181 985 7-8 5 738 Central 6-9 468 1206 9-12 0 1233 Mobile Co. Training 6-7 432 859 6-12 57 1125 Prichard 6-7 240 410 6-8 299 201 Trinity Gardens 6-7 380 690 6-8 0 996 Clark 8 536 948 7-9 T080 290 WEST OF 1-65 Azalea Road 7-8 1039 38 7-8 1039 38 Scarbrough 6-8 638 77 6-8 638 77 Hillsdale 6-8 431 217 6-8 431 217 O pinion of C ourt of A ppeals Projected Enrollment Under Zones Lines Of- Assignments Under fered by the 17. S. on District Court Plan 1/27/70 of 1/31/70 HIGH SCHOOLS SCHOOL GRADES WHITE NEGRO GRADES WHITE NEGRO Rain 7-12 1150 97 7-12 1089 112 Williamson 10-12 880 471 9-12 472 383 Murphy 10-12 1643 1761 9-12 2340 513 **Toulminville 10-12 9 740 10-12 0 1125 Biount/Carver 3-12 854 1846 n 1 o '!u 8 1818 Carver/Blount 9-12 854 1546 6-8 1 899 V igor/B ienville 9-12 1134 1211 9-12 1447 439 Bienville/Vigor 9-12 1134 1211 1-6 288 313 WEST OF 1-65 .Davidson, 9-12 2302 72 9-12 2296 72 Shaw 9-12 1250 240 9-12 1242 237 * An optional provision of the Department of Justice plan called for closing all Negro Emerson elemen tary school and assigning its 450 students to six non-contiguous schools: Maryvale, Woodcock, West- lawn, Fonde, Morningside, and Lienkauf. This option is eliminated. As modified by the court, the stu dents who would attend Emerson will, instead, attend Council, Caldwell and Lienkauf. Council will have 4 white and 591 Negro students, Caldwell will have 550 Negro students, and Lienkauf will have 273 white and 215 Negro students. ** To be rezoned and integrated (see modification in text). O pinion of C ourt of A ppeals 23a F ob th e F ifth C ircuit O ctober T eem , 1969 No. 29332 D. C. D ocket N o. CA 3003-63 Judgment o f United States Court o f Appeals B irdie M ae D avis, et al, Plaintiffs-Appellants- Cross Appellees, and U nited S tates of A merica, etc., Plaintiff-Intervenor-Appellants- Cross Appellees, versus B oard of S chool Commissioners of M obile C o u nty , et al, Defendants-Appellees- Cross Appellants, and T w ila F razier, et al, Interveners-Appellees. APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA B e f o r e : B ell , A insw orth and Godbold, Circuit Judges. 24a Judgment of United States Court of Appeals J U D G M E N T This cause came on to be heard on the transcript of the record from the United States District Court for the Southern District of Alabama, and was taken under sub mission by the Court upon the record and briefs on file; O n C onsideration W hereof, It is now here ordered and adjudged by this Court that the judgment of the said Dis trict Court in this cause be, and the same is hereby, re versed; and that this cause be, and the same is hereby remanded with direction to the said District Court in accordance with the opinion of this Court. It is further ordered that defendants-appellees-cross appellants and intervenor-appellees pay the costs on appeal to be taxed by the Clerk of this Court. June 8, 1970 Issued as Mandate: Jun 8 1970 25a I n the U nited S tates C ourt of A ppeals F or the F if t h Circuit No. 29332 B irdie M ae D avis, et al ., Plaintiffs-Appelants-Cross Appellees, U nited S tates of A merica, E tc ., Plaintiff-Intervenor-Appellants-Cross Appellees, versus B oard of S chool C ommissioners of M obile County , et al ., Defendants-Appellees-Cross Appellants, and T w ila F razier, et al ., Intervenors-Appellees. APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA Orders o f Court o f Appeals on Rehearing B efore : B ell , A in sw orth , and Godbold, Circuit Judges. It I s Ordered that appellees ’ m otion fo r leave to file petition fo r rehearing out o f tim e and leave to file peti tion fo r rehearing in excess o f 10 pages hut not to exceed 20 pages is h ereby Granted. 26a In the United States Court oe A ppeals F or the F ifth Circuit Orders o f Court o f Appeals Denying Rehearing No. 29,332 B irdie Mae Davis, et al., Appellants-Cross Appellees, v. B oard of School Commissioners of Mobile County, et al., Appellees-Cross Appellants. appeal from th e united states district court SOUTHERN DISTRICT OF ALABAMA Before: (June 29, 1970) (On Petition for Rehearing) Bell, A insworth, and Godbold, Circuit Judges. By the Court:— It is Ordered that the petition for rehearing filed in the above entitled and numbered cause be, and the same is hereby Denied. MEIIEN PRESS INC. — N. Y. C. 219