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

    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