United States v. Jefferson County Board of Education Consolidated Brief on Behalf of Appellees

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 23,331
UNITED STATES OF AMERICA,

AppelIant-Intervenou
GEORGE ROBERT BOYKINS, ET AI*

Intervenors,
Vs.

No.UNITED STATES OF AMERICA,
Appellant-'Intervenor,

DORIS ELAINE BROWN, ET AL., 
Intervenors,

Vs.
FAIRFIELD BOARD OF EDUCATION,: 
ET AL., :

Appellees. :
THE BOARD OF EDUCATION OF THE 
CITY OF BESSEMER, ET AL., 

Appellees.

NO. 23,345 
UNITED STATES OF AMERICA,

Appe1lant-Intervenor,
LINDA STOUT, by her father and next 
friend, BLEVIN STOUT,

Intervenor,
V s .

JEFFERSON COUNTY BOARD OF EDUCATION,
Appellees.

ALL ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF ALABAMA

CONSOLIDATED BRIEF ON BEHALF OF ABOVE APPELLEES
Reid B. Barnes 
Willieun G. Somerville, Jr. 

3i7 North 20th Street 
Birmingham, Alabama 

J. Howard McEniry
1721 4th Avenue North 
Bessemer, Alabama 

John C. Satterfield 
P.O. Box 466 
Yazoo City, Mississippi

Attorneys for Bessemer 
Board of Education

Maurice F. Bishop
Frank Nelson Building 
Birmingham, Alabama 

George Rogers
Frank Nelson Building 
Birmingham, Alabama 

John C, Satterfield 
P.O. Box 466 
Yazoo City, Mississippi

Attorneys for Fairfield 
and Jefferson County 
Boards of Education

Dated; May 14, 1966



INDEX

\

*

4

STATEMENT OF THE CASES.................................... 3
Jefferson County Board of Education (No, 23345)......  3
Fairfield Board of Education (No. 23331)....... ..... 11
Bessemer Board of Education (No. 23335).............. 16

ARGUMENT
A. RESPONSE TO GOVERNMENT'S ARGUMENT THAT THE PLANS

RETAIN RACIAL ASSIGNMENTS OF STUDENTS IN DESEGRE­
GATED GRADES..............   21

B. THE PLANS CONTAIN SUFFICIENT DETAILS AND PRESCRIBE
REASONABLE NOTICE..................................... 38

C. RESPONSE TO PART C OF GOVERNMENT'S BRIEF...............40
1. Necessity or Propriety in Bessemer Desegrega­

tion Plan of Provision to Eliminate Inferiority
of Traditionally Negro Schools...................... 40

2. Comparative Condition of Former White and Negro
Schools in the Jefferson County and Fairfield 
Systems............................................ 64

D. RESPONSE TO GOVERNMENT’S ARGUMENT THAT THE PLANS 
PAIL TO CONTAIN PROVISIONS DESIGNED TO ELIMINATE
RACIAL SEGREGATION OF FACULTY AND STAFF...................69 ̂

E. RESPONSE TO GOVERNMENT'S ARGUMENT THAT THE PLANS
FAIL TO GUARANTEE TO STUDENTS WHO TRANSFER THAT 
THERE WILL BE NO RACIAL DISCRIMINATION OR SEGRE­
GATION IN SERVICES, ACTIVITIES AND PROGRAMS, PRO­
VIDED SPONSORED BY OR AFFILIATED WITH THE SCHOOL 
SYSTEM................................................ 72

F. RESPONSE TO ARGUMENT OF UNITED STATES THAT THE 
PLANS SHOULD CONTAIN PROVISIONS ALLOWING NEGRO 
STUDENTS IN NON-SEGREGATED GRADES TO TRANSFER TO 
PREVIOUSLY WHITE SCHOOLS ............................. 73

GENERAL RESPONSE TO QUESTIONS CONCERNING THE EXTENT 
TO WHICH THE COURTS SHOULD RELY UPON HEW GUIDELINES 
AND POLICIES.............................................. 75

1. The 1966 Guidelines not only exceed the au­
thority granted in the Act but are contrary 
to its provisions and to constitutional in­
tent expressed in the Act................   ,77

2. Legal nature of the "Guidelines".................. 83
3. Definition of terms utilized by Department 

of Health, Education and Welfare and Depart-



ment of Justice................................... 84
The 1966 Guidelines and their adoption by 
this Court would result in destruction of 
generally accepted constitutional principles
applicable to desegregation of schools........... 87
The power of the Department of Health,Educa­
tion and Welfare and the Commissioner of Edu­
cation arise from Title VI construed in con­
junction with Title rv of the Act................ 95

A

IF THE 1966 GUIDELINES ARE ADOPTED BY THE COURT AND 
MADE JUDICIALLY EFFECTIVE, OR ARE RELIED UPON OR GIVEN 
WEIGHT BY THE COURT IN DETERMINING PENDING AND FUTURE 
CASES,THE COURT WILL THEREBY OVERRULE OR MATERIALLY 
ALTER MANY OF ITS DECISIONS ENUNCIATING THE CONSTITU­
TIONAL PRINCIPLES APPLICABLE TO DESEGREGATION OF 
SCHOOLS.................................................. 99

1. If the 1966 Guidelines are judicially enforced
compulsory integration will be substituted for 
desegregation.........   101

2. The 1966 Guidelines are designed to and will
result in the destruction of all "freedom of 
choice" plans of desegregation.................. 107

3. Judicial enforcement of the 1966 Guidelines 
would destroy the constitutional right of
school boards to administer their schools...... ..110

4. Enforcement of the 1966 Guidelines would
overrule decisions recognizing the duties 
and responsibilities of school boards and 
District Courts in violation of the express 
provisions of the Civil Rights Act of 1964....... 112

5. The 1966 Guidelines by both affirmative and
negative provisions require compulsory trans­
fer of students under "freedom of choice" 
plans contrary to the Act and constitutional 
principles...................................... 119

6. The immediate compulsory integration of facul­
ty and school employees required by the 1966 
Guidelines is not authorized by the Civil 
Rights Act of 1964 and is contrary to court 
decisions....................................... 122

7. The 1966 Guidelines would require overruling 
or materially altering decisions of this
and other courts................................ 12 5

INSOFAR AS THE 1966 GUIDELINES EXCEED AUTHORITY UNDER 
THE ACT, THEY ARE VOID. INSOFAR AS THEY ARE WITHIN 
THE ACT'S AUTHORITY, THEY HAVE NO MORE DIGNITY OR LEGAL 
EFFECT THAN AN ADMINISTRATIVE RULING....*............... 126

11



\

A
i

TABLE OF CASES AND AUTHORITIES
CASES :
Armstrong v. Board of Education 
of Birmingham
323 F.2d 333 (5th Cir.1963).............. 28, 29, 32, 74, 102
Armstrong v. Board of Education 
of Birmingham
333 F.2d 47 (5th Cir. 1964).......... 2, 3, 25, 28, 29, 30, 32
Augustus V. Escambia County
306 F.2d 862 (5th Cir. 1962)......................... 107, 122
Avery v. Wichita Falls Ind.
School Dist.
241 F.2d 330 (5th Cir. 1957).............................. 103
Bivins V. Board of Public Education 
and Orphanage for Bibb County
342 F.2d 229 (5th Cir. 1965).............................. 108
Blatt Co. V. United States
305 U.S. 367, 83 L.Ed.l67 (1938)......................... 134
Boson V. Rippy,
285 F.2d 43 (5th Cir. 1960)............................... 102
Bradley v. School Board of City 
of Richmond
382 U.S. 103, 15 L.Ed.2d 187 (1965)............. 69, 121, 123
Brov?n V. Board of Education of Topeka
347 U.S. 294 (1954).......................................74
Brov>n V. Board of Education of Topeka
349 U.S. 294 (1955),...................................... 112
Calhoun v. Latimer
321 F.2d 302 (5th Cir.1963)................ 27, 107, 111, 114
Calhoun v. Latimer
377 U.S. 263 (1964).................................. 61, 114
Chattanooga Auto Club v. Commissioner
182 F.2d 551 (6th Cir. 1950).............................. 132
Cooper V. Aaron,
358 U.S. 1 (1958)........................................113

iii



Davis V, Board of School Conun*rs 
of Mobile
333 F,2d 53 (5th Cir.1964)............................... 117
Dodson V, School Board of City 
of Charlottesville
289 F.2d 439 (4th Cir.,1961)............................. 117
Goss V. Board of Education of 
Knoxville
373 U.S. 783 (1963)........................ 61, 109, 114, 118
Hackett v. Coniinissioner
159 F.2d 121 (1st Cir.1946).............................. 131
Helverinq v. Edison Bros, Stores, Inc.
133 F.2d 575 (8th Cir.1943).............................. 134
Kemp V. Beasley
352 F.2d 14 (8th Cir.1965)........................... 21, 129
Lockett V. Board of Education of 
Muscogee County
342 F.2d 225 (5th Cir.1965)............ 21, 25, 108, 116, 123
Manhattan G.E, Company v. Conanissioner
297 U.S. 129...............  133
Missouri ex rel. Gaines v. Canada
305 US. 337 (1938).........................................51
Price V. Denison Independent School 
District
348 F.2d 1010 (5th Cir.1965).................. 6, 16, 22, 116
Rogers v. Paul
382 U.S. 198, 15 L.Ed.2d 265 (1965).......... 55, 61, 73, 123
Shuttlesworth v. Birmingham Board 
of Education
162 F.Supp.372 (N.D. Ala.1958),
Aff'd. 358 U.S. 101.........................................30
Singleton v. Jackson Separate 
Municipal School District
348 F.2d 729 (5th Cir.1965)..................... 3, 6, 16, 22
Singleton v. Jackson Separate
Municipal School District 22, 23, 27,
355 F.2d 865 (5th Cir.1964)......... 30, 39, 70, 73, 120, 128

iv



Stell V, Savannah Chatham County 
Board of Education
333 F.2d 55 (5th Cir.1964)......  2, 25, 26, 27, 38, 107, 117
United States v, Bennett
186 F,2d 407 (5th Cir.1951)............................... 131
United States v, Higinson
238 F.2d 439 (1st Cir.1956)............................... 133
U.S. V. Lov;ndes County Board of 
Education
Civil Action No, 2328-N (M.D.Ala. 1966).................... 33
U.S, V, Mississippi Chemical Corp,
326 F.2d 569 (5th Cir.1964),.............................. 130
Watson V. Memphis
373 U.S. 526............................................. 114

^STATUTES:
20 U.S.C. 11-15, 16-28.................................... 36
20 U.S.C. 15i-15q, 15aa-15jj, 15aaa-15ggg................... 36
20 U.S.C. 30-34........................................... 37
Title 52, §61(4), Ala,Code of 1940 (Recomp.1958)...... 30, 74
42 U.S.C. §2000(h) (2) (24-29)...............................11

* Various sections of the Civil Rights Act of 1964 are cited 
and discussed throughout the brief. Because of the frequency 
of citation of these provisions, they are not contained in the 
table of statutes.

V,



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

NO. 23,331
UNITED STATES OF AI^RICA,

Appellant-Intervenor,
GEORGE ROBERT BOYKINS,
ET AL.,

Interveners,
vs.

FAIRFIELD BOARD OF 
EDUCATION, ET AL.,

Appellees.

NO. 23,335
UNITED STAiES OF AMERICA,

Appellant-Intervenor,
DORIS ELAINE BROWN, ET AL., 

Interveners,
vs.

THE BOARD OF EDUCATION OF THE 
CITY OF BESSEMER, ET AL., 

Appellees.

NO. 23,345
UNITED STATES OF AMERICA,

Appe 11 an t-I nte rven er,
LINDA STOUT, by her father and next 
friend, BLEVIN STOUT,

Intervener,
vs.

JEFFERSON COUNTY BOARD OF EDUCATION,
Appellees.

ALL ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF ALABAMA

CONSOLIDATED BRIEF ON BEHALF OF ABOVE APPELLEES

PREFATORY STATEMENT
The entire argioment and approach of the negre 

plaintiffs and the government is directed to the assumed in­
dolence, and not to the proven industry of this Court. They



urge that the "multifarious local difficulties" and "variety
of obstacles incident to the transition from segregation to
integration should be surrendered by the Court to the United
States Department of Health, Education and Welfare (HEW), and,
with that abdication of judicial power, they suggest the Court
may avoid, and perhaps forget the problems.

They seek to substitute compulsion for freedom, and
direction for choice. They would have this Court embark upon
an era of compulsory integration which is just as unconstitu-

i/tional and discriminatory as compulsory segregation.
2/These appeals relate to three of the four largest 

school systems in Jefferson County. The District Court ex­
pressed the opinion that the systems should, and all have 
followed substantially identical general plans for desegre­
gation .

This brief is filed on behalf of the school boards of

i/ In Stell V. Savannah-Chatham County Board of Education
(5th Cir. 1964), 333 F. 2d 55, 59, the court took occasion 
to note that:

"No court has required a 'compulsory racially inte­
grated school system to meet the constitutional man­
date that there be no discrimination on the basis of 
race in the operation of the public schools. See Evers 
V. Jackson Municipal Separate School District (5th Cir. 
1964) 328 F. 2d 408, and cases there cited. The inter­
diction is against enforced racial segregation.’"

2/ Birmingham being the other. Its plan for desegrega­
tion has been before this Court in Armstrong v.
Board of Education (5th Cir. 1964), 333 F. 2d 47.

- 2-



Jefferson County (No. 23,345), Bessemer (No. 23,335) and 
Fairfield (No. 23,331) which serve contiguous areas in Jeffer­
son County, Alabama. Their plans are substantially identical 
with and "track" the grade designation directions of this 
Court in Singleton v.Jackson Municipal Separate School 
District (5th Cir. 1965), 348 F. 2d 729, and Price v. Denison 
Independent School District (5th Cir. 1965) 348 F. 2d 1010.

The government brief is supplemented by four volumes 
of appendices, the last of which (IV) contains a suggested form 
of decree which the government asks this Court to make applic­
able to all desegregation cases in this Circuit, without re­
gard to, and in violation of the prior recognition by this 
Court that:

" . . .  the long-standing order of responsi­
bility is 'first the school authorities, 
then the local district court, and lastly 
the appellate courts.' Ri.ppv v. Borders 
(5th Cir. 1957), 250 F. 2d 590, 693." 3/
For convenience of the Court, this brief generally

will follow the format of the brief filed on behalf of the
government.

The Jefferson County Board of Edu.cation Case - 
______________No. 23.345______________________

STAj’̂ jMENT OF TOE CA3S
This is a class action filed on June 4, 1965, by 

one negro student through her father against the elected

^  From Armstrong v. Board of Education of the City of 
Birmingham. 323 F. 2d 333, 337.

-3-



members of the Jefferson County Board of Education (School 
Board) seeking a preliminary and permanent injunction frc»n re­
quiring segregation of the races in any county school and to 
require the Board to make arrangements for the admission of
students to such schools on a racially non-discriminatory 

4/basis (9-20) School Board filed a verified
answer on June 22, 1965 (20-22) and by agreement the case 
was submitted for final injunctive relief (77) on the complaint 
and verified answer, the testimony of Dr. Kermit Johnson, 
superintendent of schools, and exhibits thereto. The District 
Court noted (25);

"... the evidence is undisputed that no 
application has ever been filed seeking the 
transfer of a Negro pupil to any school with­
in the system attended by white pupils, as 
authorized by the Alabama Sc.Jiool Placement 
Law, the Court of Appeals for the Fifth 
Circuit, in its opinion ordering the issuance 
of an interlocutory injunction in Armstrong, 
et â l. V. M .  of Ed., Birm.. Ala.. et al..
323 F. 2d 333 (5th Cir. 1963), held: ‘The 
burden of initiating desegretation does not 
rest on Negro children or parents or on 
whites, but on the School Board.*..."

The District Court enjoined the School Board from requiring
segregation of the races in any school under their supearvision
and ordered them to submit a desegregation plan.

4/ Figures in parenthesis throughout this brief refer to 
transcript pages of the respective case unless other­
wise specifically indicated.

-4-



( 1)
The Original Desegregation Plan 

Pursuant to said order the School Board on June 30, 
1965, filed a detailed plan providing for desegregation of 
the (30-37):

First, Ninth, Eleventh and Twelfth Grades 
for the 1965 - 1966 school year.
Second, Third, Eighth and Tenth Grades 
for the 1966 - 1967 school year.
Fourth, Fifth, Sixth and Seventh Grades for 
the 1967-1968 school year.

All students entering school for the first time in September, 
1965, and thereafter would be assigned to the school of their 
choice. Widespread publicity was given to the plan.

On July 9, 1965, the single negro plaintiff filed ob­
jections to the plan. On July 12, 1965, the United States 
filed its motion for leave to intervene as a party plaintiff.
On the same date the motion was granted (42-43) and the Govern­
ment filed objections to the plan for desegregation (44-45).
The School Board responded to all objections and outlined in 
detail the reasons which prompted each part of the plan (46- 
51), further noting that fifteen negro students had filed 
applications to transfer to formerly all v;hite schools of which 
fourteen were approved and one denied for admittedly proper 
reasons without regard to race (50). After a hearing on the 
plan, the objections thereto and the response of the School 
Board, the plan was approved without material alteration by 
order of the District Court entered July 22, 1965 (52-53).

-5-



From that order the plaintiffs appealed on July 23, 1965 (54-
55). Without notice, brief or argument the case was remanded
to the District Court (56-57):

"... for further consideration in the light 
of Singleton v. Jackson Municipal Separate 
School District, et al., .. Fed,2d ..,
Mo. 22527, decided by this Court on 
June 22, 1965, and Price v, Denison Inde­
pendent School District Board of Educa­
tion, et al., .. Fed. 2d .., No. 21632, 
decided by this Court on July 2, 1965."

(2)
The Approved Amended Desegregation Plan 
Pursuant to Order of this Court_________
The Government then moved in the District Court to 

enter an order "in confomity with the mandate" of this Court 
(58-59), and the School Board filed an amended plan for de­
segregation in conformity with said mandate "tracking" the 
grade desegregation directions of this Court (Singleton v. 
Jaqkeop. Municipal Separate School District. 348 F. 2d 729- 
5 Cir.1965, and Price v. Denison Independent School District 
Board ot Education. 348 F. 2d 1010- 5 Cir.1965) and providing 
for desegregation of the:

First, Seventh, Ninth, Eleventh and Twelfth 
Grades for the school year commencing 
September, 1965.
Second, Third, Eighth and Tenth Grades for the 
school year commencing September, 1966.
Fourth, Fifth and Sixth Grades for the school 
year commencing September, 1967.

And extending the time to file applications to transfer and
for a more extended and publicized notice of the plan (66-69),

- 6-



which, as thus amended, was approved by Honorable Seybourn H. 
Lynne, Chief Judge, on August 27, 1965 (70-71). On October 25,
1965, the Government appealed but the negro plaintiff did not 
appeal from this order (72).

On November 23, 1965, on motion of the Government 
the time within which to file the record in this Court was ex­
tended and subsequently was extended again. Not until April 8
1966, did the individual plaintiff who brought the suit move 
to intervene in this Court. The intervention was allowed.

Brief Statement Of Facts
Dr. Kermit A. Johnson, B.S., M.A., Ph. D., Superin­

tendent, County Schools (79) testified that 114 county schools 
(86) attended by 18,000 negro and 45,000 white students serve 
all the territory in Jefferson County except the five munici­
palities (Birmingham, Bessemer, Fairfield, Tarrant City, and 
Mountain Brook) which have city school systems- The county 
schools are organized on a 6-3-3- plan, generally six years 
elementary school, three years of junior high and three years 
of senior high (80) . Children entering the county system for 
the first time go to the school of their choice accompanied 
by a parent and enroll (87). They fill out no other applica­
tion forms until and unless they desire to change schools (87), 
The students are accepted at the school of their choice ex­
cept for occasional situations when overcrowding would result 
(88). The county has never established any attendance or

-7-



zone lines (88). Dr. Johnson testified that (91):
"They are given the privilege of going 
to the school which they prefer, if that 
school is not overcrowded - ..."

There are 2,268 teachers in the county system of which ap­
proximately 600 are negro (118). The School Board has a negro 
director and assistant director of schools (122). The school 
population served by the School Board is increasing at the 
rate of 1,500 to 2,000 students a year with the greater in­
crease in white students (128). In an effort to keep pace 
with this growth, 600 new classrooms have been constructed in 
the past six years with 12 to 15 additional construction pro­
jects now underway (129).

In the opinion of Dr. Johnson it would be difficult for 
white or colored teachers to hold their positions and 
effectively contribute to education of classes of the oppo­
site race under present conditions (139). No colored or 
white teacher has ever requested transfer to a school at­
tended principally by members of the opposite race (140). 
Teachers are employed and retained on the basis of their qua­
lifications, their acceptance at the school, and whether they 
can successfully teach and discipline their classes (145).

The county schools have never operated on a geographi­
cal zone plan (160). The parent of every child entering 
school for the first time has the freedom to chose the school 
he desires his child to attend (162).

- 8 -



(3)
Co-Ordination of Plan with Those of Other 
______School Boards in the County________
An earnest effort was made to coordinate the plan 

with those of other school systems in Jefferson County since 
each has some transfers from the other (169). About 1,500 stu­
dents residing in Birmingham attend county schools and approxi­
mately an equal number of county students attend city schools 
(214, 239). Accordingly it is desirable that identical plans 
be placed in effect to cover the contiguous systems (214).

Government counsel inquired of Dr. Johnson what the 
School Board proposed to do if a large number of negroffi ajpplied 
for a transfer to an already overcrov;ded white school. Dr. 
Johnson noted that (211):

"This might necessitate asking some white 
children to withdrav; from that school and 
go to a school where there v;as room."

We then inquired and we here repeat v;hether that is the desire
and position of the Government (212).

Ecaialitv of Schools
Of the 26 negro schools presently over capacity 20 

will be relieved as the result of a building program already 
underway. The Board has under construction additional facili­
ties to eliminate overcrowding in 20 of the 26 colored schools 
where that condition exists (240). That is not true of the 
43 formerly white schools that are and will continue to be 
overcrowded (240). Many of the negro schools in Jefferson 
County are superior to formerly white schools in the same area.

-9-



For example, the Wenonah (formerly negro) school has a gym­
nasium, modern lunch room facilities, spacious library 
facilities, whereas Lipscomb (a formerly white school) in the 
same neighborhood has no gymnasium, no modern lunch room 
facilities and no library. That example could be repeated 
over and over (241). It is true as the negro plaintiff argued 
(9) that negro schools do not play football at night but this 
is due solely to the fact that negro administrative and 
supervisory personnel have strongly advised against night 
ball games for negro students and confessed that "they can't 
control the discipline" (242).

Dr. Myron Liberman was presented as a witness for
the plaintiff. He testified that he was a consultant on
race relations for the New Rochelle,New York system for six 

4/
months (253). He admitted that he had never talked with 
any representative of the School Board, had never been in Ala­
bama until the night preceding his testimony (268). He advo­
cated geographical zoning. Obviously this witness lacked any 
information or knowledge upon which to base any intelligent 
appraisal of the local situation. For example, he compared 
the Rosedale School with Shades-Valley without noting that 
the recreational area of the Rosedale School recently had been 
condemned for a Federal interstate highway, that many of the 
additional facilities at Shades Valley were constructed by a

^  If so the results are reported in the integration 
conscious Life Magazine of May 6, 1966, page 94

- 10 -



special local tax voted by the white residents in the area
served and that additions were made possible by contributions
from and other groups v/ithout the expenditure of tax
funds. We recognize that this does not exempt any school or
area from constitutional requirements but it does account for
the nature and character of this school plant.

The Fairfield Board of Education Case - 
________No. 23,331__________________

Statement of the Case
This suit was filed on March 21, 1965, by negro 

plaintiffs against the Fairfield Board and its members seeking 
an injunction to prohibit the operation of a racially segre­
gated school system and to compel adoption of a plan for the 
desegregation of the nine public schools of the system serving 
3,938 students, of which 1779 are v;hite and 2,159 are negro. 
Without objection the United States was permitted to inter­
vene pursuant to Section 902 of the Civil Rights Act of 1964, 
42 U.S.C., Section 2000 (h) (2) (24-29).

The Original Plan
Following hearing and pursuant to court order the 

Board filed a detailed plan providing for desegregation of 
the (48-58):

First, Ninth, Eleventh and Tv;elfth Grades 
for the 1965 school year.
Second, Third, Eighth and Tenth Grades for 
the 1966 school year.
Fourth, Fifth, Sixth and Seventh Grades for 
the 1967 school year.

- 11-



The Amended Plan
Objections were filed to the plan by the plaintiffs 

and the United States. Thereafter the Board filed an amended 
plan (59-64) providing for desegregation of the s

First, Seventh, Eighth, Tenth and Twelfth
Grades for the 1965 school year.
Second, Third, Ninth and Eleventh Grades
for the 1966 school year.
Fourth, Fifth and Sixth grades for the 1967
school year.
On September 7, 1965, the District Court entered an 

order, approving the plan, as amended (65-72). On October 22, 
1965, the United States (but not the original negro plaintiffs) 
appealed fromthe order of the District Court approving the 
Board's amended plan (73-74). By appropriate order, at the 
request of the Government, the time was extended to file the 
transcript of record.

The plan provides 'that application forms are made
available at the offices of the principal of each school
and are to be filed in accordance with existing regulations
at the office of the superintendent in Fairfield with assurances
that they will be promptly handled. Students who do not apply
for transfer will remain assigned to the schools to which
they are now attending. Students entering the system for
the first time can apply for assignment to the school of their
choice without regard to whether the student's grade has been
desegregated. Wide publicity was given and notice of the- 12-



detailed provisions was published three times in a daily 
newspaper circulated throughout the area.

Brief Statement of Facts
Prior to filing the subject suit the Fairfield Board 

had never received an application from a colored student for 
transfer to a formerly white school (77, 113) and no teacher 
or supervisory personnel had requested transfer to a school 
formerly attended by members of the opposite race. Provisions 
had been made and publicized of the availability of such 
transfer applications which would originate with the pupil or 
teacher (119). The District Court ordered the School Board to 
file a plan for desegregation of its schools, and the plan, 
above noted, was filed in response to this order. Before 
the plan was ever prepared or filed, the Justice Department 
stated it desired to object thereto (81).

The brief filed by the negro plaintiff (19) failed 
to note that the Fairfield system is in the process of 
organizing into a 6-3-3 system (86) with a new building 
and three year junior high school to be available for 
students at the beginning of the 1966 school term (88).
The schools historically serving the Fairfield area with the 
grades in each at the time of hearing and the pupil-teacher 
ratio as set out in Plaintiff's Exhibit 1, v;ere as follov7S 
(178):

-13-



Formerly Negro
Grades 1 - 6  Elementary

Englewood 1 - 2 3  
Robinson 1 - 3 3

Formerly VJhxte
Donald 1 - 2 6
Forest Hill 1 - 2 6  
Glen Oaks 1 - 2 9

Grades 7 - 8 - Jr. High
Interurban Heights 1 - 3 4  Fairfield Jr. High 1-28

Grades 10 - 12 - Sr. High
Fairfield Industrial 1 — 20 Fairfield 1 — 18

It is noted that the lowest pupil—teacher ratio in 
the elementary schools was formerly colored, and that there 
is no wide disparity in any of the schools.

The negro plaintiffs are in error in suggesting 
that the plant facilities proyided for negro students are in­
ferior to those proyided for white students (their brief p.20). 
The white schools do have playground equipment, shrubbery 
and some black-topped areas all of which were provided by 
interested PTI\ organizations without any cost to the school 
board (98). During the past two years PTA organizations 
have raised and contributed to the Fairfield Board for improve­
ment of specific schools the sum of $42,500 (111) of which 
$40,000 was contributed by PTAs at formerly white schools 
and $2500 by colored PTAs at formerly colored schools (112) . 
The construction program of the Fairfield Board covering the 
period from the 1953-1954 school year through the 1964-1965 
school year shows a total expenditure for formerly white

-14-



schools of $784,000 and a total for formerly colored schools 
of $941,000 (103) or $157,000 more for formerly colored than 
for formerly white schools. Many facilities of the formerly 
negro schools are superior to those of the formerly white 
schools. For example, the library at the Fairfield Industrial 
High School is far more adequate and modern in design and 
in capacity than the library at the formerly white Fairfield 
High School (105). The same situation is true with respect 
to the auditorium, buildings and other facilities. Additional 
examples were not developed in accord with and conformity to 
the statement (and ruling) of the District Court that such 
evidence in this proceeding was immaterial. Admittedly, 
the Englewood (formerly colored) school has been a problem to 
the Board. Students have poured concrete in the urinals, 
filled the vent pipes with slag, removed doors from the rooms, 
destroyed windows in the building (109) making it difficult 
for the Board to keep it in the condition desired (110).

Notice of the Fairfield plan was published three 
times in a daily newspaper of general circulation throughout 
the area, and in addition was carried on all news, radio, and 
television media. The application forms are simple and pro­
vide for desegregation of choice. The requirement that first 
grade students report to the school to v/hich they would have 
reported prior to any plan of desegregation was incorporated 
with the feeling that such applications, originally filed with 
their own race, would receive prompt, considerate attention.

-15-



STATEMENT OF THE CASE IN BEHALF OF APPELLEES 
(Bessemer School Board, et al. No. 23335)

The Bessemer School Board plan of desegregation is shown 
at pages 43 (the original plan submitted to the District Judge) 
64 (the order of the Court approving it with modifications), 81 
(the amendment to the plan submitted by the Board following the 
order of vacation and remandment of the Fifth Circuit dated 
August 17, 1965, R.71), and 85 (the order of the District Court 
dated August 27, 1965, finally approving the plan as amended, 
the order from which this appeal is taken).

The Board's amendment to the plan (R.81) approved by the 
Court's final judgment put into effect a plan providing that 
for the school year commencing in September, 1965, the fitst, 
fourth, seventh, tenth and twelfth grades were desegregated for 
the school year commencing September, 1965. The second, fifth, 
eighth and eleventh grades were desegregated for the school 
year commencing September, 1966 and the third, sixth and ninth 
grades were desegregated for the school year commencing in 
September, 1967. The final amendment and order of the Court, 
effectuated a three-year desegregation plan, conforming as far 
as grades were concerned to the Singleton (first) and Price 
decisions, 348 F.2d 729, 348 F.2d 1010, respectively, decided 
on June 22, and July 2, 1965, respectively. The form of the 
notice to be given, specified as a part of the Court's first 
order (R.66) that all applications filed in the office of the 
Superintendent of Education located at 412 North 17th Street,

-16-



(spelled out in the notice) for assignment or transfer "to a 
school theretofore attended only, or predominently, by pupils 
of a race other than the race of pupils in whose behalf the 
applications were filed, would be processed and determined by 
the Board, without discrimination as to race or color.

As to the first grade, it was specified in the plan, the 
Court's order, and the notice that Negro children entering the 
first grade would report on the first day of September, 1965, 
to each of the four elementary schools named in the plan. 
Carver, Dunbar, Hard and 22nd Street Schools; that upon "regis­
tration" meaning, we say, reporting, an application might be 
made by the parents for the child's assignment to any school 
whether formerly attended only or predominently by white chil­
dren or by Negro school, and an attack is made upon the plan 
in that regard. However, not knowing the identity of the first 
grade children (who of course had never been enrolled by the 
schools) it was determined best by the Board and approved by 
the Court that they report to the particular school to which 
they would have reported prior to any plan of desegregation.
It was known that they had to report somewhere and it is to be 
assumed that it would be best for them to report to a school 
rather than to the office of the Board. The plan does not 
state that they would be first enrolled in the school to which 
they reported but merely that they would be registered and 
that their parents immediately could ask for assignment either
to that particular school or to another, whether formerly

-17-



white or colored. This feature of the plan will be more par­
ticularly discussed in the argument under Section A.

It is stated on p.3 of appellant's brief, footnote, that 
the District Court in approving the plan "excepted" the pro­
vision governing the initial assignment to the first grade.
No such language was used. The actual language is shown at 
R.86, wherein the Court stated that the defendants were re­
quired to restudy such plan and report their conclusions on 
or before December 31, 1965, meaning necessarily for ensuing 
school years. The appellant states, same page, that the Board 
has not reported to the Court.

The true fact is that the defendants (appellees), after 
the taking of the present appeal, filed a statement with the 
Court stating in effect that since the United States had elec­
ted to appeal from the Court's order of August 27, 1965, it 
was assumed that no report was due to be filed or submitted 
pending disposition of the appeal unless further directed by 
order of the Court. (See index to Record, p.lO) We do not 
find this statement printed, but evidently it was transmitted 
as a part of the record. No further directions were given by 
the District Court and these appellees therefore assumed that 
the District Court thought that since the entire matter had 
been thrown into the Court of Appeals, it would be futile, to 
say the least, for the District Court to attempt to proceed 
further; and it was doubtful whether the appeal deprived the
Court of jurisdiction so to proceed. Had the matter been left

-18-



to the District Court, a full report would have been made and 
undoubtedly the entire administrative problem relating to the 
assignment of pupils in the first grade would have been ironed 
out anew.

On p.13 of appellant's brief, in footnote, it is stated 
that the plan contains no notice provisions for the school 
years following 1965-1956. This statement is entirely inac­
curate. The amended plan which, along with the original plan, 
(as modified by the District Courts first order of July 30, 
1965, R.64) makes provision with reference to notice for all 
years under the plan subsequent to the year commencing in Sep­
tember, 1965, as to all desegregated grades, the form of the 
notice to conform to that specified in the District Court's 
original order, varying necessarily only as to dates. While 
some mention is made, we believe, in one of the briefs that 
publication only one time was required, it will be noted from 
the original order, R.64, adopted by the amended plan, that 
there were to be at least three publications "in a news paper 
of general circulation in the City of Bessemer." This proce­
dure was followed.

The plan as amended further provides that students enter­
ing the Bessemer school system for the first time "shall ob­
tain application from the school of their choice which shall 
be completed, delivered to and promptly processed by the 
Superintendent without regard to race or color." (R.83).

We think that at some place in briefs there is a com-
-19-



plaint that there was no provision for students entering the 
system for the first time (other than the first graders). In 
any case, the provision to which we refer is set out in the 
amended plan, R.83.

The plan in its various aspects, and in the effect there­
of, will be referred to and discussed in our argument in the 
appropriate portions thereof, but we here point out that the 
rights of choice to be exercised under the plan were accorded 
both initially and on an annual basis.

In the brief of the United States, it is stated that both 
the plaintiffs and the government noted an appeal from the 
order of August 27, 1965. We submit that this is an inaccurate 
statement. The only notice of appeal ever filed by the plain­
tiffs was from the order of July 30, 1955 (R.69). While later 
an appeal bond was filed by plaintiffs (R.87), this neces­
sarily was merely to perfect the appeal already taken. No no­
tice of appeal by plaintiffs was ever filed or served, as far 
as the order of August 27 is concerned. In fact, the plain­
tiffs, who seek to "intervene" in the appeal, purport to state 
in their intervention petition, which was allowed, that it was 
through inadvertence that no appeal was taken. While this 
fact may be of no particular significance, it is nevertheless 
a fact upon which the record should be set straight.

Hence, when we refer to "appellant" or to appellant's 
brief, we are referring to the brief of the United States 
only. - 20 -



ARGUMENT

A..
The first argument made in the brief for the United 

States is that the plan for desegregation retains racial as­
signment for students in grades purportedly desegregated. The 
principal basis of this argument apparently is (1) the objec­
tion that the plan approved by the District Court simply pro­
vides that students in desegregated grades may apply for trans- 
f ^  to a school previously attended by students of another race 
and that (2) the children entering the first grade are to re­
port to formerly all Negro schools nearest their homes and 
white children report to formerly all white schools and that 
upon registration thereat an application may be made by the 
parents for assignment to any school.

The appellant concludes that the plan therefore retains 
"the dual school system", and cites not only the Brown case, 
but also Lockett v. Board of Education of Muscogee County, 342 
F.2d 225, 228 (C.A. 5, 1964) and Kemp v. Beasley, 352 F.2d 14, 
22 (C.A. 8, 1965).

We first cliscuss the situation pertaining to the election
of pupils already in the schools (not those entering the first
grade or those otherwise coming into tha system for the first
time) to transfer to another school. Appellant's complaint
evidently is, although it does not specifically say so, that
requiring pupils already in segregated grades and in segregated
schools at the time a plan for desegregation is put into effect

21



to apply for a transfer to a desegregated school and grade, 
even though under circumstances that do not make the right of 
transfer onerous and without regard to race or color, consti­
tutes the maintenance of a "dual system" and is, therefore, a 
violation of the Fourteenth Amendment in itself.

Implicit in that contention, we suppose (taking into con­
sideration what the appellant's brief says in other places and 
also the contention for the putting into effect of the 1966 
HEW'Guidelineis that each year each child must make an af­
firmative choice, whether white or colored, as distinguished 
from a permissible choice. We have found no decision of this 
Court up to now which, in our opinion, supports this view (and 
we think the same may be said of the 1965 HEW "Guidelines").
Let us take the last decision, the second Singleton case, Sin­
gleton V. Jackson Separate Municipal School District, 355 F.2d 
865. While admittedly the decision there was that the "stan­
dards promulgated by" HEW should be imposed in the plan in 
order to make it sufficient (the question as to what, if any, 
weight should be given to such standards, especially the 1966 
standards, promulgated since Price and Singleton [two Single- 
ton cases]), the opinion on the question with which we are now 
dealing, and which is the subject of other portions of this 
brief relating to the contention of the appellant which we are 
now discussing, refutes that contention. We illustrate this 
and other points involved.

In the first instance, if the government is now contending
22



that there should be an iminediate desegregation of all grades, 
whether on a freedom of choice basis or not, such a contention 
was rejected in the Singleton opinion (See III(1)(2), p.870).

Another objection by the United States to the Jackson, 
Mississippi plan was that it failed to provide for the desegre­
gation of all services, programs and activities. With refer­
ence thereto, the Court said (p.870, Hda.3) ;

"The United States objects that the plan fails 
to provide for the desegregation of all services, 
programs, and activities. The Board adequately 
answers this objection by stating that all public 
services, buses, and other transportation facili­
ties, and all programs and activities ‘shall be 
available to all pupils duly enrolled [in a school] 
without regard to race, color, and national origin'."
Thus, even though the plan involved did not specifically

refer to the factor of services, programs and activities, this
Court evidently treated such an omission as cured by the
board's "assurance". This is a matter which will be treated
in another portion of this brief.

Another objection made by the United States in Sinaleton;
That the plan does ro t provide for the elimination of race in
the employment and retention of teachers, staff personnel, etc.
Admittedly, our plan does not cover this factor, and this will
be discussed in another portion of this brief.

With reference to other objections made by the United
States in the Sinqleton case, the opinion states, p.870, Hdn.5;

"The United States objects to the failure of the 
Board to require all students to make an affirmative 
choice of school. The Board's answer is that there 
is no compulsory school attendance law in Mississip-

23



pi; however, children in the desegregated grades 
have a free choice of schools." [Emphasis by 
the Court]

"At this stage in the history of desegregation 
in the deep South a 'freedom of choice plan is an 
acceptable method for a school board to use in ful­
filling its duty to integrate the school system.
In the long run, it is hardly possible that schools 
will be administered on any such haphazard basis.
Although this Court has approved freedom of choice 
plans, we have conditioned our approval on proper 
notice to the children and their parents and also 
on the abolition of the dual geographic zones as 
the basis for assignment. As we said in Lockett;

'We approve the use of a freedom of choice 
plan provided it is within the limits of 
the teaching of the Stell and Gaines cases.
We emphasize that those cases require that 
adequate notice of the plan to be given to 
the extent that Negro students are afforded 
a reasonable and conscious opportunity to 
apply for admission to any school which they 
are otherwise eligible to attend without re­
gard to race. Also not to be overlooked is 
the rule of Stell that a necessary part of 
any plan is a provision that the dual or bi- 
racial school attendance system, i.e., sepa­
rate attendance areas, districts or zones 
for the races, shall be abolished contempo­
raneously with the application of the plan 
to the respective grades when and as reached 
by it. Cf. Augustus v. [Board of Public In­
struction of] Escambia County [Florida], 5 
Cir.306, P.2d 862, supra. And onerous re­
quirements in making the choice such as are 
alluded to in Calhoun v. Latimer, 5 Cir., 1963,
321 F.2d 302, and in Stell may not be re­
quired.'" [Emphasis ours]

The Court's rejection of the objections dealt with in the
above excerpt from the opinion appears to us to be clear.

We assert that the statement made in appellant's brief.

5.
At this point we have not had the opportunity to examine spe­

cifically the terms involved in any plans or plans involved.
24



p.9, that the plan retains the dual school system, and violates 
the Fourteenth Amendment by reason thereof, is not supported 
by the decisions of this Court, including Lockett, cited in 
support thereof.^*

Under the Fifth Circuit decisions, what is meant by the 
term "dual system"? The meaning is shown in the quotation 
from Lockett as embracing separate areas, districts or zones 
for the races, a discussion of which will be amplified below.

Stell, the identical language is used in defining a dual 
school attendance system (Hdn.l7, p.64).

In Armstrong, similar language is used, to-wit (p.51,333 
F.2d) :

"The dual or bi-racial school attendance system, 
that is, any separate attendance areas, districts 
or zones, shall be abolished as to each grade to 
which the plan is applied and at the time of the 
application thereof to such grades, and thereafter 
to additional grades as the plan progresses. Bush 
V. Orleans Parish School Board, (5th Cir. 1962)
308 F.2d 491."

6.
Other decisions of the Fifth Circuit are Stell v. Savannah 

Chatham County Bd. of Ed.,333 F.2d 55, Armstrong v. Board of 
Education of City of Birmingham, 333 F.2d 47, as well as 
Lockett V. Board of Ed. of Muscogee County Sch. Dist., Ga., 
342 F.2d 225.

25



In the Bessemer plan for desegregation, there is no es­
tablishment or requirement of any dual zone or separate zone, 
pertaining to the right of Negro pupils to attend formerly all 
white schools. This is also true of the Jefferson County and 
Fairfield plans. There is no prohibition against the colored 
student's attending a proper grade in a formerly all white 
school merely because the formerly all Negro school which he 
attends is closer to his place of residence or is within a dif­
ferent locality from that of the "white" school which he de­
sires to attend. He is given in effect a freedom of choice, 
upon request, to attend any such school in the isystems.
While all students in desegregated grades are not required to 
make an affirmative or mandatory choice, in order to remain in 
the school to which they are previously assigned, nevertheless, 
under the plan they are given a choice after notice, of their 
rights to leave the school and enter another of their choice. 
While the pupils are not directed to sign a form choosing one 
way or another,

"Negro pupils are afforded a reasonable and con­
scious opportunity to apply for admission to anv 
school for which they are otherwise eligible 
without regard to their race or color, and to 
have that choice fairly considered by the enrol­
ling authorities. This is the first step. The 
School boards must give timely notice of this 
fact, and in such manner and terms as to bring 
home to Negro students notice of the rights that 
are to be accorded them. Cf. the notice given 
in Augustus v. Board of Public Instruction of 
Escambia County, 5 Cir., 1962, 306 F.2d 862."
The above words are quoted from Stell, at p.65, 333 F.2d.

26



While Stell requires that any plan of assignment "and 
transfer" must be applied without regard to race in an even- 
handed manner (p.65) and that "Onerous requirements such as 
the notarization of applications for assignment or transfer 
are not to be condoned", and holds, for example, that "testing 
criteria", as in Calhoun v. Latimer (especially where applied 
only to Negro students seeking transfer and assignment) are 
not permissible, nevertheless, where onerous requirements do 
not exist, a plan will not be struck down where the right of 
transfer is available and is extended. We think that such a 
principle runs through all of the decisions of this Court, and 
we construe none of them as being to the contrary.

Also, while the right of choice is permissible and not 
mandatory, the pupil staying where he is unless he requests a 
transfer, this right of transfer is at least an annual one, 
and all, we say, that was required even by the 1965 Guidelines. 
The compulsory or mandatory annual freedom of choice was first 
prescribed in the 1966 Guidelines and doubtless more stringent 
and complicated requirements will be implemented not later 
than the year 1967, and at least annually thereafter.

We revert to the last quotation made from Singleton, se­
cond case, in this brief, to the effect that in a court plan 
of desegregation the failure of the plan to specify a contin­
gency of overcrowding, or otherwise, is by no means fatal, the 
idea being that much is to be left to the supervision of the
District Judge whose ever watchful eye is over the case. The

27



situation might be different where the plan is a voluntary one 
submitted to the official of an executive department in Wash­
ington, far removed from the situs of the school system.

The plans in the Jefferson County, Bessemer and Fairfield 
Board cases are essentially the same, and were patterned es­
sentially after the plan submitted following final hearing in 
the District Court in Armstrong v. the Board, the Birmingham 
case.

In the Armstrong opinion, second case, allusion was made 
to the first Armstrong decision involving an application to 
the Fifth Circuit for an injunction pending appeal, 323 F.2d 
333. In that first decision directing the desegregation of 
at least one grade, reference was made to the plan submitted 
pursuant thereto which in essence was the same as the plan 
finally submitted following final judgment (after the second 
decision of the Fifth Circuit), as far as the provisions for 
an application for transfer, in the desegregated grade, from 
a previously all Negro school (in which the applicant was ne­
cessarily enrolled) to the formerly all white school are con­
cerned. The language of Armstrong, second, referring to this 
first plan, aided by necessary implication, shows that it was 
in effect approved, although it contained the exact provision 
that except as provided in the plan, students should remain 
assigned to the school to which they had been assigned accord­
ing to tradition and custom, prior to any decision in the case.
Such a provision, of which the government strenuously com-

28



plains, is similar to that contained in the three Cases now 
on appeal to this Court.

In Armstrong, it is further said, with reference to the 
discretion to be imposed in the trial court, and of the confi­
dence that was placed in him:

"Applicants will not be required to submit to 
undue delay in the consideration of their ap­
plications, or to burdensome or discriminatory 
administrative procedures."* * * * * * * *

"The United States District Court has wisely 
retained jurisdiction of this case for the pur­
pose of permitting the filing of supplemental 
complaints in case of any unconstitutional ap­
plication of the Alabama Pupil Placement Law^^̂J 
against the plaintiffs, or others similarly si­
tuated, or with respect to any other unconsti­
tutional action on the part of defendants (Su­
perintendent, Board of Education, etc.) against 
them. Such complaints may be submitted as a 
class action as authorized by F.R.Civ.P.23, 
thus avoiding the necessity of time consum­
ing delays on the part of those who complain, 
and also avoiding repeated and extended hear­
ings in the District Court.
All of this shows that mere details which might otherwise 

be considered necessary in an HEW voluntary plan, should be 
left to the judgment of the trial court, available for quick

We have underscored these words because of the attack made 
in appellant's brief, p.lO, upon the plan merely upon the 
ground that the regulations of the Board (evidently implement­
ed by testimony of the Superintendent) prescribed that the 
"Alabama Pupil Placement Law" would be employed in considering 
applications for transfer.
8 .

The Court noted that the provision in the District Court's 
decree that the District Court would exercise its discretion 
in directing the further implementation of the plan and in 
hearing any complaint which might be presented.

29



hearings, as also pointed out' in Singleton.
The Court in Armstrong saw no objection whatsoever to a 

consideration of the Alabama Pupil Placement Law, Title 52, 
§61(4), Code of Alabama (Recomp.1958), in considering applica­
tions. Incidentally, this law, first passed in 1956 and re­
passed in 1957, along with Alabama constitutional provisions, 
effected a repeal of all Alabama statutes requiring segrega­
tion of the races in schools and authorized the school boards 
in effect to entertain and grant applications of individuals 
on a non-racial basis. It was upheld on its face in Shuttles- 
worth V. Birmingham Board, 162 F.Supp. 372, 374, affirmed, 358 
U.S. 101, as pointed out in Armstrong.

It is not to be presumed, therefore, that because refer­
ence is made to the Alabama Pupil Placement Law in the testi­
mony of the Superintendent, or in regulations of the Board 
pertaining to transfers, the right to transfer will be made 
onerous or will be made to depend upon criteria which are not 
permissible. The distinguished Trial Judge in Armstrong has 
warned all boards that the law is not to be applied in an un­
constitutional manner and that he will immediately hear com­
plaints to that effect.

Since it appears to be the fashion these days to make re­
ference to everything that might be considered relevant to the 
case, whether it is in the record on appeal or not (appellantis 
brief, p.l4, ftn.7, Bessemer case, the enrollment of the Bes-

30



semer schools for the school years 1955-66 is given as 5284 
Negro students - 2920 v/hite students, with 13 Negro students 
attending schools with white children), we take the liberty of 
stating that, although few Negro students applied to attend 
formerly all white schools, none was turned down. This con­
stitutes an assurance from the Board that care will be taken 
that there be no unconstitutional application of the placement 
law or any other in processing applications for assignment or 
transfer. Fifteen applications for transfer were filed with 
the County Board. Fourteen were approved, and one was denied 
on admittedly valid grounds having no relation to race.

Further reference to cases pertaining to freedom of 
choice plans for desegregation, some of which are referred to 
in this portion, will be made in that part of the brief which 
specifically discusses the question of what weight, if any, 
should be given to the effect of the standards of the HEW, as 
implemented by the 1966 Guidelines.

We have already referred to the possible or probable mo­
tives governing the Board in the administration features per­
taining to processing of first grade students. As stated, 
administratively they must report somewhere and the meet sim­
ple procedure would be to allow them to report to the school 
which by tradition and custom the members of their race have 
reported before. Assurance is given that their parents will 
be fully informed of their right to attend a formerly all

31



white school by the principal and teachers in charge of the 
registration. They v;ill then be allowed to make a free choice. 
In the first Armstrong plan (referred to and considered by the 
Court in the second Armstrong decision), there ware provisions 
that except as provided in the plan, pupils would be assigned 
to the schools to which they had been traditionally assigned 
before desegregation. It was never thought that there was any­
thing wrong with this provision. As far as the first grade is 
concerned, the plan is not intended to go that far. It is in­
tended that there merely be a place to report for registrat ion 
with an immediate choice to attend another school.

It is difficult, we submit, to instruct parents to take 
first graders to any school in the system which they prefer. 
The administrative difficulties are apparent. It is the in­
tention of the Board that, while a general policy of freedom 
of choice has always been in effect, it is preferable that the 
children be persuaded to go to school in a particular locality 
if possible. This does not mean that any attempt will be made 
in the future to persuade any Negro child to go to a school 
attended by the members of his race merely because he lives 
closer to that school.

We note in Vol.IV, Appendix to briefs of the United 
States under B, annotations to proposed decree, and under sub­
section (d) entitled "Mandatory Exercise of Choice" only four 
cases, three of which are decisions of the U.S. District Court

32



Middle District of Alabama, and one of which is a consent de­
cree of the District Court of the Eastern District of Virginia.

We have examined a copy of the three orders which were 
not consent decrees and find that in each of them, on the ques­
tion of so-called mandatory exercise of choice, the provisions 
of the 1966 Guidelines were obviously adopted. We say this be­
cause essentially the same language in that regard is used. 
While the order in one of these cases, U.S. V. Lowndes County 
Board, dated February 10, 1966 (the 1966 Guidelines are stated 
to have come into effect in March, 1966) may have been ren­
dered prior to the official date of effectiveness of the 1966 
Guidelines, these Guidelines were certainly in the mill at 
that time and evidently urged upon the Court by the Department 
of Justice; in view of the language of the Guidelines. All of 
this leads us to wonder whether, when the Department of Justice 
urges upon this Court the "expertise" of HEW in the matter of 
formulating a uniform plan for the desegregation of all schools 
in the South, it is really talking about the so-called "exper­
tise" of the Department of Justice itself. It is understand­
able that those who are employed in the education branch of 
the Department of HEW, supposedly having some knowledge in the 
field of education in order to be there, should be called ex­
perts along that line, but it is less understandable how, in 
the short span of time between the passage of Title VI of the 
Civil Rights Act of 1964, they could have become experts in

33



the matter of integrating schools.
The standards and Guidelines of HEW will be more fully ex­

plored near the end of this brief, but we wish to make our po­
sition plain now that, since they involve a statute (Title VI) 
having to do with the expenditure of tax money and not the de­
segregation of schools under the Fourteenth Amendment, these 
standards and Guidelines should not be given any more effect 
than that of expert testimony which might be introduced in a 
desegregation case. Viewed in that light, they should be ad­
mitted only upon the supporting testimony of the so-called ex­
perts, to cross examine whom the defendants should be entitled.

While Title VI, the 1964 Civil Rights Act, covers every 
conceivable activity (including numerous ones having no rela­
tion to the Fourteenth Amendment), it conferred no power per­
taining to the desegregation of schools which did not exist 
prior to the passage of the Act itself. As to school desegre­
gation, it is limited by Title IV, the only Title which estab­
lishes a "national policy" as far as school desegregation is 
concerned. This can be demonstrated by the language of Title 
IV (schools are not mentioned in Title VI as such) and also by 
the debates and statements shown in the Congressional Record. 

The pertinent provision of Title IV is as follows;
"...provided that nothing herein shall empove r any 
official or court of the United States to issue any 
order seeking to achieve a racial balance in any 
school by requiring the transportation of pupils or 
students from one school to another or one school

34



district to another in order to achieve such racial 
balance, or otherv/ise enlarge the existing pov;er of 
the court to insure compliance with constitutional 
standards."
The language itself effectively demonstrates that on this 

subject the powers of a court are not enhanced over and above 
the prohibitions of the Fourteenth Amendment itself and the 
statements by the floor leader in the Congressional Record de­
monstrate that this limitation is effective (upon executive
departments) as far as Title VI is concerned when applied to

9desegregation of schools. *

Senator Pastore, Floor Leader for Title VI said:
"Let me advise Senators that the failure of a district 

court to desegregate the schools will not jeopardize the 
school lunch program; it absolutely will not. Even if a 
community does not desegregate/ that will not jeopardize 
the school lunch program - unless in that particular 
school the white children are fed, but the black children 
are not fed; and I refer Senators to page 33 of the bill, 
which states very, very clearly: 'which shall be consist­
ent* - in other words, the orders and rules - 'shall be 
consistent with the achievement of the objectives of the 
statute authorizing financial assistance.'

"We have a school lunch program, and its purpose is to 
feed, not to desegregate the schools; therefore, that 
would not be consistent. But if a school district did not 
desegregate, it could no longer get federal grants,let us 
say, to build a dormitory - not unless it integrated; and 
a hospital could not receive 50 percent of the money with 
which to build a future addition unless it allowed all 
American citizens who are taxpayers and who produce the 
tax funds that would be used to build the addition, to 
have access to the hospital.

"So we must remember that the shutting-off of a grant 
must be consistent with the objectives to be achieved. A 
school lunch program is for the purpose cf feeding the 
school children. If the white children are fed, but the 
bjack children are not fed, that is a violation of this 
law." (110 Cong.Rec., p.13936, June 19, 1964) * * * * * * * *

35



The footnote demonstrates that the Department of Health,
actingEducation and Welfare and every other executive department/un- 

der Title VI are limited by Title IV and given no power to en­
large upon the bare prohibition of the Core titution itself 
(Fourteenth Amendment) regardless of the power they may have 
assumed, as far as school desegregation is concerned.

Furthermore, by the terms of the Civil Rights Act itself,
application of discrimination is limited to the single ac­

tivity, or program, in which it is charged that discrimination 
P^^cticed. For example, under the Acts providing for grant 

in aid to education existing at the time of the Civil Rights 
Act of 1964, the grants in aid were not general ones to the 
schools but only to those providing aid for a particular pro­
gram. One has already been mentioned in the footnote, the 
school lunch program (administered by the Department of Agri­
culture) . Another is in the Acts granting federal aid for vo­
cational training under 20 U.S.C. 11-15, 16-28, 20 U.S.C. 15i-
9. (Con't)

"Both Senators Pastore and Humphrey (D.Minn.) declared that 
school desegregation would not effect the school lunch program 
and that the matter of desegregation of schools properly would 
come under the provisions of Title IV of the Act, which is di­
rected specifically at integration of schools." (This state­
ment is taken from Operations Manual, Civil Rights Act of 1964 p.94]

* * * *  * * * * *
"A further proviso is added to this section which provides 

that nothing herein shall empower an official or court of the 
United States to require the transportation from one school 
district to another in order to achieve racial balance, or 
otherwise enlarge the existing power of the court to insure 
compliance with constitutional standards." (Cong. Rec. 12381-5 
June 5, 1964 - Senator Dirksen)

36



15-q, 15aa-15jj, 15aaa-15ggg, and 20 U.S.C. 30-34, training 
which, as shown by the record in the Bessemer case, for exam­
ple, is confined exclusively to the high schools and even to 
particular grades in high schools. We say that the Congress 
did not intend to confer upon an executive department the pow­
er to require a plan for the desegregation of an entire school 
system, merely to abolish discrimination in a particular pro­
gram, and the Congress did not intend, therefore, that the 
"expertise" of the HEW be employed for that purpose.
9. (Con't)

See, also, "Humphrey Explanation (Title VI)", Cong.Rec. 
12288-9. * * * *

"Mr. BYRD of West Virginia. Can the Senator from Minnesota 
assure the Senator from West Virginia that under title VI 
school children may not be bused from one end of the community 
to another end of the community at the taxpayers' expense to 
relieve so-called racial iiribalance in the schools?

Mr. HUMPHREY. I do.
Mr. BYRD of West Virginia. Will the Senator from Minnesota 

cite the language in title VI which would give the Senator 
from West Virginia such assurance?

Mr. HUMPHREY. That language is to be found in another title 
of the bill, in addition to the assurances to be gained from a 
careful reading of title VI itself.

Mr. BYRD of West Virginia. In title IV?
Mr. HUMPHREY. In title IV of the bill."

* * * *
"Mr. JAVITS. * * * * *  Taking the case of the schools to 

which the Senator is referring, and the danger of envisaging 
the rule or regulation relating to racial imbalance, it is ne­
gated expressly in the bill, which would compel racial balance; 
Therefore, there is no case in which the thrust of the statute 
under which the money would be given would be directed toward 
restoring or bringing about a racial balance in the schools.
If such a rule were adopted or promulgated by a bureaucrat,and 
approved by the President, the Senator's State would have an 
open and shut case under section 603. That is why we have pro­
vided for judicial review. The Senator knows as a lawyer that 
we never can stop anyone from suing, nor stop any Government of­
ficial from making a fool of himself,or from trying to do some­
thing that he has no right to do,except by remedies provided by 
law. So I believe it is that set of words which is operative."

37



B
The Plans contain sufficient details 
and prescribe reasonable notice____

The negro plaintiffs and the Government are in error 
in stating that the plans "fail to specify how or when the 
,applications for transfer can be obtained." To the contrary 
the plans specifically provide that the forms may be obtained 
from the offices of the Superintendent of Education, whose 
address is given and further that parents of first grade 
students may file notice of their choice and obtain forms at 
the schools in their neighborhood. The forms simply provide 
for indication of choice and were framed to avoid any "onerous 
requirements" as directed by this Court in Stell v. Savannah- 
Chatham County Board of Education, 333 F. 2d 55. In a separate 
section (hpp. iO/ we discuss in detail the abdication decree 
suggested by the Government, Section II (d) of which details 
with public notice of the pj^oposed plan, we find no objection 
to this paragraph, except as to the requirement that notices 
be sent to every home. Subsection (f) suggests that the 
notice required be sent by "First class mail - together with 
a return envelope addressed to the superintendent." Appar­
ently they recognize that the proper and suitable place to 
file the application is the office of the superintendent. To 
require a letter to be sent to every home, as hereinafter 
noted would constitute unreasonable and excessive cost to
many local boards already faced with the difficult task of

-38-



living within a limited budget in an era of continued 

inflation.
The present plans require that notice be published

on three separate occasions in a daily newspaper and already
are given to and carried by all news, radio and television
media. This Court has set out with exactitude its notice
requirements in Singleton v. Jackson Municipal Separate School
District (5th Cir. 1-26-66) 355 F. 2d 865, 871, as follows:

"The plan does not provide for individual 
notices to students and their parents. The 
Board does provide for publication of the 
Plan August 16, 23, and 30 in a newspaper 
having a general circulation throughout 
the district'so as to give all pupils and 
their parents or guardians notice of the 
rights that are accorded them, and such 
publications will also inform them where 
copies of the form for exercising their 
rights may be readily obtained.' In clari­
fying the plan, the Board added that it 
would use newspaper, radio, and television 
facilities to inform pupils and their parents 
of their rights; that the entire plan would 
be published; and that office telephone numbers 
of the general administrative staff would be 
listed for calls for information. We regard 
such notice as adequate."
The subject plans are in accord with this requirement. 
The Singleton case does not require and in fact 

pointed out that "the plan does not provide for individual 
notices to students and their parents." To require the local 
school boards initially or annually to undertake the burden 
of preparing and mailing out the hundreds of thousands of 
letters proposed by the Government is unreasonable and would
constitute a tremendous waste of public time and money.

-39-



c.

RESPONSE TO PART C OF APPELLANT'S BRIEF

1. Necessity Or Propriety In Bessemer 
Desegregation Plan Of Provision To Elim­
inate Inferiority Of Traditionally Negro 
Schools.

This part of the brief pertains only to No. 23335, the 
suit against the Bessemer Board of Education, and is in reply 
to the contentions of the government on pages 15 through 17 of 
its brief that the formerly colored schools in the Bessemer 
system are inferior to the formerly all-white schools and that 
the Bessemer desegregation plan is defective in that it does 
not contain provisions designed to correct the inferiority of 
schools traditionally attended by negroes. We expect to de­
monstrate that as to the Bessemer Board of Education the fact­
ual assertions in Section C of the government's brief are in­
accurate and misleading, and that the relief requested by the 
government in this regard, both in the brief and in Part VI 
of its proposed decree, is not only unnecessary and indeed in 
large part impossible, but also beyond and inconsistent with 
anything thus far required by any appellate-court decision of 
which we are aware. As hesitant as we are to burden this brief 
and the Court with factual details concerning the relative 
attributes of the schools, the misleading tendencies of the 
government's factual assertions and statistical tables and the

- 40 -



fear that they may unduly and unfairly prejudice Bessemer's 
case, we are compelled to do so.

As the basis for its claim that the physical and educat­
ional facilities and curricula in some traditionally negro 
schools in Bessemer are "markedly inferior" to those in white 
schools, the government relies upon a number of statistical 
tables compiled by it and appended to the brief as an attach­
ment; upon the testimony of a supposed expert employed by the 
U. S. Office of Education who made a two-day trip for the pur­
pose of inspecting the Bessemer schools in order to testify on 
behalf of the government; and upon the fact that there are two 
frame buildings which are still a part of the former colored 
schools pending their replacement. A good portion of the testi­
mony respecting the alleged inferiority of colored schools in 
Bessemer was during the second hearing on the objections to the 
plan of desegregation submitted by the Bessemer Board held on 
July 29, 1965, and commencing at page 181 of the Record. Due 
to lack of time. Judge Lynne terminated this hearing without 
affording the Bessemer Board an opportunity either to cross- 
examine its superintendent. Dr. Knuckles, or to present any 
other evidence in rebuttal to or explanation of the evidence 
presented by the government. (See R.259,265,267) Appellee 
Bessemer Board of Education has thus been placed at a disad­
vantage in respect to the portion of the record pertaining to

- 41 -



the condition of the schools. Since it had little opportunity 
to put on any evidence in its behalf, this portion of the brief 
must necessarily take the somewhat negative approach of em­
phasizing the relative lack of evidence of inferiority of the 
traditionally Negro schools. It is submitted, however, that 
with the record in this state it cannot fairly be concluded 
that Negro schools are not equal or required that the Bessemer 
Board take any affirmative action in this regard.

Physical Facilities. The fact that the traditionally 
Negro schools in the Bessemer system are not as a whole infer­
ior is underscored by the fact that with respect to the con­
dition of the physical plants and facilities the briefs of both 
the United States and of the plaintiffs below (intervenors here) 
can point to only the same two isolated buildings as evidence 
of inferiority of Negro schools. Both opposing briefs (brief 
of United States, p. 15; brief of plaintiffs-intervenors, pp.
16, 17) can cite as specific evidence of the alleged inferior­
ity of all colored schools only two frame buildings, in one 
of which coal-stoves and "bare bulb" lighting are used and in 
a portion of the other of which there are some partitioned 
classrooms and bare bulbs for lighting. By emphasizing only 
these instances, which are structures forming only a part of 
only two schools, both opposing briefs attempt to convey the
false impression that all of the Negro schools are inferior. 10 ,

1 0.
Indeed, the brief of the plaintiffs-intervenors (p.45) makes

- 42 -



Similar evidence of isolated conditions at white schools could 
equally be cited. Actually, however, the fact that both the 
United States and the plaintiffs-intervenors are able to point 
to only these two isolated situations in support of their 
attempted indictment of the Negro schools in Bessemer serves 
in itself as evidence that in all other respects the Negro 
schools must be equal.

The opposing briefs (particularly that of the plaintiffs- 
intervenors) state that several of the photographs of tradit­
ionally Negro schools show broken windows, with the intended 
implication that broken windows are allowed to remain at Negro 
schools throughout the year. These photographs were taken in 
late June during summer vacation when there were no students 
in attendance; windows in these schools as in others are broken 
by rock throwers every summer and replaced before the opening 
of school in the fall, and we are prepared to offer an affida­
vit so stating if it should be necessary. In this connection, 
moreover, it may be noted that neither the government nor the 
plaintiffs-intervenors introduced any photographs of tradit­
ionally white schools from which any comparison may be drawn.

10. (con't)
the remarkably inaccurate statement that in Bessemer "the 
Negro schools are, in the main, poorly heated, poorly illumin­
ated, neglected wooden structures".

- 43 -



other than the two small frame buildings^^* the only spe­
cific evidence urged by the opposition (particularly the plain- 
tiffs-intervenors) as indicative of inferiority are the loca­
tions of Negro schools. It is stated (brief of plaintiffs- 
intervenors, pp. 17, 18) that Negro schools are close to rail­
road tracks and that one is near an automobile junk yard. But 
Dr. Knuckles (the superintendent) also stated that the white 
schools are equally, and sometimes more, close to railroad 
tracks and industrial plants. (R. 143-144, 197-198)

In sum, the only specific evidence upon which the oppos­
ing parties base their arguments of inferiority of formerly 
Negro schools are the two small frame buildings, one of which 
also has the coal-stoves and the partitions relied upon. As 
noted above, particularly in view of the absence of evidence 
of the nature of specific conditions and structures at formerly 
white schools, this in not evidence of inferiority. Moreover, 
the opposing parties neglect to mention that several white 
schools are the oldest of the school buildings in the Bessemer 
system. (R. 172-73) Nor is it mentioned that only two years 
ago a new elementery school replaced a white school which was

11.
areCuriously, the opposition assumes that frame buildings/in­

herently inferior to any other type of structure. There is no 
evidence of the nature of the construction of the traditionally 
white schools except that they are not frame buildings. This 
plainly is not evidence that the traditionally white schools 
are superior.

- 44 -



"considerably worse" than either of the Negro frame buildings 
and which had to be used for white students long after it had 
been condemned. (R. 139-173) The evidence shows that a simi­
lar replacement of the frame buildings traditionally attended 
by colored students is and was at the time of the testimony be­
low planned for the immediate future. With the limited funds 
available, all of Bessemer's buildings obviously cannot be re­
placed with new ones at the same time. The testimony demon­
strates that the Bessemer Board has endeavored in recent years 
and proposes in the future to up-grade as best it can all of 
its school facilities as the necessary money becomes available. 
There has been substantially more construction and more money 
used in traditionally Negro schools than in the white schools. 
Dr. Knuckles testified that since 1958, when he first became 
superintendent, over $800,000 had been spent for construction 
and renovation of Negro schools,vhereas only approximately 
$360,000 was spent during the same period on traditionally 
white schools. (R. 173-74) During this period there have been 
constructed with these funds three new Negro schools: Hard, 
in 1958 at a cost of $325,000; a building at Abrams, in 1960 
at a cost of over $500,000; and an addition at Carver, in 1962 
at a cost of $100,000. (R.174) In this time only two build­
ings have been constructed at traditionally white schools, one 
at Vance for $110,000, and one at Westhills for $125,000, (one 
of which replaced the condemned building mentioned above).

- 45 -



This, we submit, serves to demonstrate both that the tradition­
ally Negro schools as a whole are not inferior and that there 
certainly has been no discrimination by the Bessemer Board.

Within the next year the frame buildings — the only spe­
cific evidence the opposing parties urge as indicative of in­
feriority — will be replaced or renovated. Not mentioned by 
the government is the fact that of $460,000 from a recent bond
issue all except approximately $50,000 will be used for addit-

12.ional construction and renovation in Negro schools. (R.125-26) 

$150,000 will be used to construct fourteen additional rooms 
for a junior high school at Carver (traditionally Negro); this 
new building will accommodate 420 students and will replace the 
two frame buildings (now with 300 students) on the Carver site 
which have the coal-stoves and bare bulbs stressed so heavily 
by the opposing parties. Bids for this construction have been 
advertised and the anticipated date of completion is Fall of 
1966. $180,000 will be used to construct a building with four­
teen additional rooms for Hard Elementary and Junior High 
Schools (traditionally Negro), the anticipated time of comple- 
—  _ _ _ _  __

Since Dr. Knuckles' testimony in this connection last June, 
a change in plans for the allocation of these funds has been 
dictated by the impending opening in June 1966 of a housing de­
velopment immediately adjacent (across the street) to the Hard 
School (traditionally Negro), causing a shift in population 
concentration and the need for additional space in that school. 
Accordingly, plans for the proposed construction of a new ele­
mentary school in a predominantly white residential section 
(R.126) have been abandoned.

- 46 -



tion being winter of the 1956-57 school year. Hard School (now 
accommodating grades 1 through 8) is also being increased, be­
ginning the current school year, a grade a year so that it will 
have twelve grades. $20,000 will be used for the renovation 
of Abrams Elementary School, which is the frame building in 
which one wing originally designed as an auditorium has been 
partitioned into several classrooms. This will be changed by 
the renovation, which will install a suspended ceiling, replace 
the partitions with walls, install new lighting, and renovate 
eight classrooms. Finally, $50,000 will be used for installa­
tion of a new heating plant, lighting, and toilet facilities 
and the renovation of the interior and the exterior entrances, 
in Dunbar School (traditionally Negro).

Thus, the elimination of the only specific factors —  

the small frame buildings at Carver with coal-stoves and older 
lighting and the part of Abrams with the partitioned rooms and 
older lighting —  is not only expected to be effected within 
a few months but was planned at the very time of the hearing 
in the court below. (R.125-26)

The only other evidence concerning the relative condit­
ion, of traditionally Negro schools was the testimony of the 
government's expert, Mr. Stormer. Mr. Stormer is employed 
by the United States Department of Health, Education and Wel­
fare (R. 188), and was first brought by the government to 
Bessemer after this suit was begun for the sole purpose, it

- 47 -



may be inferred, to testify that Negro schools are inferior.
At the most he spent only one and one—half days inspecting some 
eleven schools. (R. 191) Appellee Bessemer Board had absolut­
ely no opportunity to rebut his testimony in any way. Not only 
was it precluded from presenting evidence of a similar type from 
another expert, but it was not even afforded the opportunity to 
examine the check-bits on which Mr. Stormer rated the schools 
(R. 193) and which were not put in evidence by the government.

Although Mr. Stormer on direct examination mentioned sev­
eral of the general factors considered by him in the rating 
process (R. 191), the reasons for the relatively lower rating 
of the Negro schools were not mentioned. It was admitted on 
cross-examination, however, that site location "contributed 
greatest' to the lower grades of the Negro schools. if this 

is the criterion of inferiority, the only solution we can see 
is to tear down all the schools and replace them with a single 
building for all students. But it is not even accurate. Negro 
and white schools alike in Bessemer are close to railroads and

.13.
The witness made specific reference to only one school, 

Abrams High School. On cross-examination (R. 194-95) he stated 
that while it was a modern structure (1963) with adequate class­
rooms and good science and special facilities, it was on a 
"questionable site in terms of its general location," and that 
its low grade was due to "questionable" storage facilities in 
the chemistry-physics area and "general appointment" (whatever 
that term means).

- 48 -



industrial areas (R. 143-44, 197-200). The testimony of the 
government's expert is unconvincing as evidence of inferiority. 
But, in any event, it should be accorded no weight until the 
Bessemer Board* has been given an opportunity to reply to it in 
kind.

Physical inventory and library books. The tables on pages 
6 and 7 of the attachment to the Government's brief contain a 
valuation per pupil of certain catagories of equipment in white 
and and Negro schools, and the value per pupil of school inven­
tory in each school in the Bessemer system. The source of and 
figures in these tables are somewhat uncertain. Footnotes to 
them state that it is information compiled from 1965 school in­
ventories which apparently were not in evidence. We have not 
yet been able to check each catagory and school listed in these 
two tables. It might be noted, however, that information re­
ceived from the Bessemer Board of Education indicates that the 
present valuation per pupil for furniture (not including kitchen 
equipment) in the Negro schools is approximately $22.32, where­
as the government's table on page 5 shows a per pupil valuation
of both furniture and kitchen equipment in Negro schools of only

13.
$9.40.

14.
It should also be noted that of this first catagory in the 

table on page 5, only furniture is supplied by the Board of Ed­
ucation. Kitchen equipment in the cafeterias is acquired in­
dependently by each school for the operation of its school lunch 
program (which is an independent, self-contained operation).

- 49 -



The reason for this apparent discrepency and whether there are 
others in the government's tables are not known.

Be that as it may, however, all of the inventory items 
listed on the government's tables except furniture in the first 
category and, to a lessor extent, machines, tools and vocat­
ional equipment in the fourth category are bought and paid for 
not by the Bessemer Board of Education but rather by the indi­
vidual schools themselves from funds contributed by their pat­
rons and community organizations and from school instructional 
fees collected by the schools from the students. Consequently, 
most of the items of inventory are purchased by the respective 
schools with funds obtained by them from various sources and 
not from the Board of Education, and these purchases by the 
schools are matched by the Federal Government under the pro­
visions of Title 30 of the National Defense Education Act.

14.(R. 132)

I4  • (con' t)
More kitchen equipment is used in the white schools than the 
traditionally Negro schools for the reason that some 70% to 95% 
of the students in traditionally white schools eat at school 
cafeterias whereas only about 10% to 32% of Negro students do.
1 5 .

With respect to one of these sources used by the schools 
to buy equipment —  the instructional fee fund collected by the 
schools from the students —  the traditionally Negro schools 
have for some reason spent substantially less of the monies 
available to them for this purpose than have the white schools. 
The amounts of the balances of unexpended fee funds in each

- 50 -



The fact that equipment and inventory are bought by the 
individual schools from independent sources is demonstrated by 
the great disparities between per pupil values for tradition­
ally white schools of comparable grade level as shown by the 
table on page 7 of the attachment to the Government's brief. 
Thus, Vance Elementary (white, grades 1 through 6) had a val­
uation per pupil of only $32.69, while Jonesboro Elementary 
(white, grades 1 through 5) had a per pupil inventory valuation 
of $101.89.

In short, the requisition of equipment and inventory is 
a matter over which the Board of Education has had no control 
and in which it has played no part. It does not furnish to one 
school and not to the other within the meaning of the"separate 
but equal" doctrine, see Missouri, ex rel. Gaines v. Canada.
305, U.S. 337 (1938), because it furnishes to none. The govern­
ment in its brief and proposed decree demands "equalization"

15 . (con't)
school as of August 31, 1955, was as follows:

SCHOOL
White

Bessemer High School 
Bessemer Jr. High School 
Arlington Elementary 
Jonesboro Elementary 
Jonesboro Annex 
Vance Elementary 
Westhills Elementary

UNEXPENDED FEE FUND

- $240.39 
306.20 
449.08
569.94 
343.90
596.95 
102.70

- 51 -



and a provision in the decree requiring the Board to take 
"steps necessary to provide physical facilities, equipment, 
courses and instruction of quality equal to that provided in 
schools previously maintained for white students." The short 
answer is that the '.equipment which the Board has "provided" has 
been provided equally. There is no constitutional basis of 
which we are aware which requires it to begin now to "provide" 
to traditionally Negro schools types of equipment which it has 
not furnished to other schools in the past. What further steps 
does the government demand? Distribution of equipment at, for 
example, Jonesboro (which its parents and patrons bought) to 
other schools? Must it also equalize the traditionally white 
schools (otherwise it plainly would discriminate against the 
white students on the basis of color)?

Since there is no inequality in equipment and inventory 
provided by the Board to its schools, there manifestly is no 
need for any provision in the Board's plan for correction of 
inequality.

The same is equally true of the table on page 8 of the 
attachment to the government's brief pertaining to the book —

15. (con't)
Negro

Abrams High School 
Abrams Elementary 
Carver High School 
Carver Elementary 
Dunbar Elementary 
Hard Elementary

$2,990.86
1.048.39 
881.05

1.980.40 
865.38

3,608.01
- 52 -



pupil ratio of libraries in the Bessemer High Schools. Until 
two years ago the Bessemer Board of Education paid not one cent 
to or on behalf of any school (white or colored) for the pur­
chase of books. (R. 175) All of the books in the Bessemer 
high school Library were bought independently by the patrons 
and students of the high school. (R. 175) The first time the 
Board of Education paid anything for the purchase of books in 
schools was in 1963, when Carver and Abrams high schools (both 
Negro) each were appropriated $2,000 for the purchase of books. 
(R. 175) If there has been any discrimination or inequality 
in the provision of books, it therefore has been against the 
white schools.

Curricula. On pages 2 and 3 of the attachment to the
government's brief is a table compiled by the government to
compare the elective courses taught in the three high schools
in the Bessemer school system. There was no evidence that
either the required or the elective courses actually taught at
Negro schools were not absolutely on a par with the same or
similar courses taught at white schools; and the government
apparently does not contend that those courses are not of equal 

, . 16:'quality. Therefore, the government's only possible conten­
tion respecting inferiority of curricula is on the basis of 
the relative number and types of elective courses taught at

16. The brief of the plaintiffs-intervenors (at p. 16) does 
imply, however, that similar courses in Negro schools are not 
equal, and our reply to that portion of their brief appears at 
the end of this section.

- 53 -



17the Negro and white schools as shown by the table in its brief.

As elsewhere, the number and types of elective courses 
offered and taught in the secondary schools in Bessemer are 
governed by the demand and interest of the students. (R. 124, 
175,76) If there are a sufficient number of students who are 
interested in and request any course, it will be taught in that 
school whether it be white or Negro. And, as a general rule, 
the Bessemer schools adhere to a policy of offering any course 
for which requests by at least 15 students are received (or 10 
in the case of language electives). * If a sufficient number

17.
The government's table exaggerates substantially, though 

unintentionally, the number of courses taught at Bessemer High 
School. In many instances the use in the accreditation appli­
cations (from which this information was obtained) of Roman 
numeral designations after a course description denotes not 
that there are two or three separate courses, but that there is 
one course which may be taken by students in the tenth, elev­
enth or twelth grades. Thus, for example, there is only one 
course in art although the government's table lists Art I,
Art II and Art III; only one course in plane geometry (which 
is the same course as "plane and solid geometry" also listed 
as a separate course); one course in home economics; one course 
in reading lab, etc. In some instances, however, the Roman 
numerals do designate two successive courses, as in the case 
of Algebra I and II, French, Spanish, typing, and shorthand 
(two rather than three courses).

18.
The Southern Regional Accrediting Association recommends a 

minimum of 10 students in any elective course.

- 54 -



of students in traditionally Negro schools request Spanish, it 
will be taught. But plainly it is not economically or academ­
ically feasible to teach a course for only two or three stu­
dents .

For this reason it would be impracticable, if not impos­
sible, to "equalize" the number and types of elective courses 
taught at the Bessemer high schools. But student demand in one 
school is insufficient to permit the offering of a course which 
is taught in another because of greater demand, the student de­
siring to take it can choose under the present desegregation 
plan to attend that school which does offer it. That is what 
was done in Rogers v. Paul. 382 U.S. 198(1965), where the 
Supreme Court required only that the Negro students be given 
an opportunity to transfer to the school offering the desired 
course, not that the school board offer a course in the Negro 
school for the only two persons interested in taking it. Any 
other or greater requirement is not only beyond any constitut­
ional obligation, but would be physically impossible to accom- 
kish. It would be tantamount to the dictation by the federal 
government of the curricula of local schools.

This is equally true of extra-curricular activities such 
as yearbooks, newspapers, and the like. (See R. 124,175) The 
traditionally Negro schools can publish a yearbook and a news­
paper if there is sufficient student interest for these activ­
ities, but neither the Board of Education nor the individual

- 55 -



schools can require students to publish a yearbook. If there 
are now students in traditionally colored schools vho have an 
overriding desire to go to a school that publishes a yearbook# 
they can do so now under the Board's desegregation plan.

The statements concerning curriculum at page 16 of the 
brief of the plaintiffs below (intervanors here) are either 
flatly untrue or misleading. Their brief states (p,16) that 
Dr. Knuckles "admitted that many more electives are offered at 
Bessemer High School than at the Negro high schools# including 
Latin# Spanish# and Journalism." Directly to the contrary#
Dr. Knuckles testified (R, 167):

Q. [By Mr. Barrett]; Is Latin taught in the 
Negro schools?

A. No# sir# and neither is it in the white 
schooIs.

Similarly# he did not state that Journalism was taught in white 
schools but only that it was not in Negro schools (R.168);and 
the government's table of electives affirmatively shows that 
Journalism is not taught at white schools. These are minor 
points but reveal the length to which the plaintiffs will gs in 
order to create a false impression of "inferiority" in tradi­
tionally Negro schools. They also observe [p,16] that two 
Negro students requested second-year French at Carver but did 
not get it; but# as discussed above# a course cannot be taught 
on the basis of requests by three or four students. There was

56



also testimony by several Negro students and former students 
concerning aspects of chemistry and physics laboratory instruc­
tion which they apparently did not like. (R. 218-35) But 
there was not a shred of evidence that these courses were not 
taught in the same manner in the white schools, and in fact 
they are. This plainly is not evidence of discrimination or 
inequality.

In summary part VI of the government's proposed decree 
demands that the plan provide "steps necessary to provide ... 
courses, and instruction of quality equal to that provided in 
schools previously maintained for white students." As we have 
pointed out, there is al^eolutely,np evidence that the courses 
which are taught at previously Negro schools are not of the 
same"quality" as similar courses taught in previously white 
schools. Under the evidence the only additional thing that 
could be required of the Board is that it offer the same 
courses at all schools. But this is neither possible nor re­
quired by any legal or constitutional principle of which we are 
aware. Consequently, any provision in the Bessemer Board of 
Education's plan respecting equality of courses and instruction 
in previously Negro schools is totally unnecessary and inappro­
priate .

Capacity and enrollment. The table on page 1 of the 
attachment to the Government's brief shows a net over-enrollment 
in Negro schools of 130. The reason for this has been the sub­
stantial increase in numbers of enrolled students at the tra-

- 57 -



ditionally Negro schools. As indicated on Plaintiffs' Exhibit 
#3, since the school year 1953-54 the enrollment at the formerly 
Negro schools has increased from 3,493 to 5,286, whereas the 
enrollment at traditionally white schools has increased only 
200. The undercapacity of the traditionally Negro schools has 
resulted not from any discrimination in the construction and 
furnishing of facilities but from this increase in the numbers 
of students. New classrooms to be constructed at the colored 
schools and anticipated to be finished in the fall and winter 
of 1956 will more than accommodate the undercapacity of 130 re­
flected by the government's table.

More importantly, however, students or parents who feel 
that the school they are in is overloaded may choose to attend 
one which they feel is not. They have the absolute right to do 
this under the freedom-of-choice plan the Board has adopted.
In fact, the choice period under the Bessemer plan is now open 
and over 75 applications have already been received from Negro 
students for attendance at formerly white schools and it is ex­
pected that at least 100 will be received before the choice 

19period closes. * This shift in attendance in itself elimin- 
a.tes the small degree of overcrowding in traditionally Negro

19.
These figures do not take into consideration the potential 

number of first graders who will choose formerly white schools,

- 58 -



schools as shown by the government's table. It also demonst­
rates emphatically that under a freedom-of-choice plan there
is no need for any compulsory assignment of students to schools 
they do not wish to attend, as the government requests in part 
VI of its proposed decree. The government's demand is that 
"conditions of overcrowding ... shall ... be distributed evenly 
between schools formerly maintained for Negro students and those 
formerly maintained for white students." This proposal would 
require compulsory reassignment of students to schools against 
their choices and desires and would in effect, if not by de­
sign, result in the assignment of students to relieve a so- 
called racial imbalance.

Pupil-teacher ratios. The government's table on page 4 
of its attachment contains pupil-teacher ratios in the tradit­
ionally white and Negro schools in Bessemer. This table is
somewhat misleading in that it does not compare the same grades
^ . 20.of white and colored schools. As shown by the government's

table, the number of pupils per teacher increases uniformly for 
both white and Negro schools in the lower, elementary school

2 0.
The formerly Negro high schools, Abrams and Carver, accom­

modate grades 7-12, whereas Bessemer High School has only grades 
10-12. Therefore a comparison on the basis of these schools as 
a whole is inaccurate. (See brief of plaintiffs-intervenors, 
p. 15). Schools with comparable grades, such as traditionally 
Negro Dunbar Secondary and Hard Secondary and white Bessemer 
Jr. High School, reflect a comparable ratio of 25 or 25 pupils 
per teacher.

- 59 -



grades. (See also R. 144) More teachers per pupil are needed 
in the high-school grades. However, a substantially higher 
proportion of the total enrolled Negro students are in the 
lower grades than there are white students.Consequently, 
the average pupil-teacher ratios for white and Negro students 
on the government's table does not represent a true comparison 
of the condition in the white and Negro schools. Moreover, the 
change this fall of over 100 Negro students to formerly white 
schools will substantially modify the pupil-teacher ratios re­
flected in the government's table. Furthermore, since the 
number of teachers is primarily dependent upon the number of 
classroom units available, the anticipated addition of a number 
of classroom units to the formerly Negro schools will also sub­
stantially affect if not eliminate any disparity between the 
ratios in the traditionally white and Negro schools. The com­
pulsory assignment of students, as suggested by the government 
in its proposed decree, thus.- is not necessary and is certainly 
not desirable since it would override individual desires of the 
students, Negro and white.

21.
A table prepared by the government which was not offered 

in evidence and is not attached to its brief shows that in the 
Bessemer School System as of May 1955 there were 1,365 white 
students in grades 1-5, 652 white students in grades 10-12, 
2,853 Negro students in grades 1-6, and 936 Negro students in 
grades 10-12.

- 50 -



Appellee Bessemer Board of Education believes that on the 

basis of the limited record before the Court, and certainly in 
fact, the claim of the government and the plaintiffs below that 
the schools traditionally attended by Negroes are inferior is 
unfounded. But even if it were true, the extraordinary pro­
visions demanded by the government in the last two sentences 
of part VI(a) and in part VI(b) of its proposed decree are en­
tirely inappropriate and impractical. Moreover, they not only

22transcend the requirements of any appellate court decision,, 
but they are inconsistent with the concept underlying freedom- 
of-choice plans which has been repeatedly approved by this Court 
and the Supreme Court (e.g., Calhoun v. Latimer. 377 U.S. 263 
(1964); Goss v. Board v. Education. 373 U.S. 783) and with the 
Supreme Court's most recent expressions in Rogers v. Paul, 382 
U.S. 198 (1965).

The first objectionable provision proposed by the govern­
ment is the requirement that under specified circumstances, 
students shall "be distributed evenly between schools formerly 
maintained for Negro students and those maintained for white 
students." This provision does two things. First, it ignores

22.
We have not seen most of the unreported district court de­

cisions cited at pages 16 and 17 of the government's brief and 
in the annotation to its proposed decree.

- 61 -



the fact that under the Board's present plan any student has 
the absolute right to choose ^to attend any school which he 
feels has facilities superior to those in which he is presently 
enrolled. It thus overrides the desires of the individual for 
the sake of compelled integration.

Secondly, by removing from the local boards of education
the administrative discretion respecting the manner of alloca-

government'stion of students and substituting the/dictation of the manner 
of allocation, the provision manifests a further effort to dis­
locate the local control of details of the administration of 
schools and a subtle but effective attempt to alleviate so 
called racial imbalances by compulsory assignment of students.

The last sentence of part VI(a) of the proposed decree 
provides that if a school "formerly maintained for Negro stu­
dents" cannot be sufficiently improved, the school "shall be 
closed as soon as possible." While the government's brief cites 
district court decisions in which such a requirement has been 
imposed, we are frank to say that we can conceive of no way in 
which such an extraordinary requirement could be effectuated in 
the Bessemer system. The objective of the Bessemer Board of 
Education, as it should be of any other, is to expand its fa­
cilities as quickly as it can with the financial resources 
available; it simply cannot close schools. Its schools are 
crowded enough now.

Finally, part VI(b) of the proposed decree contains and

-  62 -



is based upon the unwarranted assumption that the education 
heretofore provided in previously Negro schools has been in­
adequate. Since there is no basis in fact or theory for this 
assumption, inclusion of any such provision for "remedial ed­
ucation" is unwarranted and inappropriate.

- 53 -



2. Comparative Condition of Former White 
and Negro Schools in the County and 
Fairfield Systems.___________________

The suggestion in briefs of negro plaintiffs and government 
that the schools traditionally attended by negroes in the school 
systems are inferior to those traditionally attended by v;hites is 
inaccurate and unfair. As illustrative of the unfairness is the 
comparison in Government Brief of the Docena Junior High School 
to the Shades Valley High School without statement of the actual 
facts involved. Shades Valley High School is one of the finest 
in the South. It was constructed from funds obtained from a 
specific local tax voted by the citizens whose children attend 
this school. The Docena Junior High School is being closed. The 
Government compared the finest high school with the worst 
formerly negro school which, as noted, is being closed. The stu­
dents which formerly attended the Docena Junior High School will 
attend the Alden High School— a nev; modern $600,000.00 plant to 
be completed and opened for the September, 1966 school year. They 
also failed to note that the Docena Elementary School has modern 
facilities and compares favorably with all other elementary 
schools in the district.

In the Fairfield case the Government stated (their brief 
p. 15) that "the d^endants introduced evidence showing the primi­
tive condition of bathrooms of one negro school— ^Englewood 
School". They omitted material facts, specifically that the 
Englewood School has constituted a problem to the Board because

- 64 -



students fiave poured concrete in the urinals, filled the vent 
pipes with slag, removed doors from the rooms and smashed windows 
throughout the building (109) making it difficult for the Board 
to maintain the desired condition. There are holes in some of 
the concrete blocks at Englewood which have been drilled and 
punched by students attending the school (109-111). The brief 
for the negro plaintiffs is replete with mis-statements and , j 
omissions in an attempted comparison between the schools tradi­
tionally attended by negroes and the schools traditionally 
attended by whites. They first argue that the negro Praco High 
School has not applied for accreditation. They do not note that 
this school is being closed and that the children formerly 
attending the Praco High School now will attend the new Alden 
High School which will be one of the finest in the South. Their 
attempt to compare the Rosedale School with Shades Valley omits 
the facts, previously noted, and also neglects to state that the 
recreational area for the Rosedale School recently was condemned 
for a Federal Interstate Highway. It is true that in both the 
County and Fairfield systems recreation areas at the formerly 
negro schools are normally not equipped v;ith lights. This is due 
solely to the fact that negro principals and supervisory person­
nel have strictly recommended against night athletic contests or 
exhibition confessing that "they can't control the discipline" 
(242). In addition, it should be noted that the stadium equip­
ment at traditionally white schools principally has been con­
structed from funds furni'slwQ by the white parents without cost

- 65 -



to the taxpayers. The Boards of Education have generally pro­
vided assistance by grading the grounds. Colored organizations 
have been urged, without success, to take a similar interest and 
have been offered greater contributions by the school boards than 
they have offered traditionally v̂ 7hite schools.

The witness presented as an expert by the plaintiff in the 
County School Board case apparently had only misinformation 
insofar as the county school system is concerned. In brief on 
behalf of the negro plaintiffs (p. 7) this witness is quoted as 
saying that pupils attending the schools named resided closer to 
the white schools having a capacity to absorb them. Again, 
important material facts are omitted and other statements are 
completely inaccurate. For example, the first school listed is 
"Sumpter". There is not and never has been such a school in the 
county system. The situation with respect to each of the other 
traditionally white schools mentioned in the county system is as 
follows:

The Johns white school is a frame building out of date. The 
negroes have been attending the W. A. Bell, Jr. High School which 
is new, modern and far superior to the Johns School.

The Adqer School burned and is closed.
The negroes in the McAdory community have attended the 

W. A. Bell Junior High School which, as noted, is far superior to 
the traditionally white schools in that area.

The traditionally v/hite school at Shannon has four teachers.

-  5 5  -



The negroes have attended Wenonah, one of the most complete 
facilities in the County, adequately accommodating approximately 
1400 students with beautiful brick buildings, modern facilities 
and with a high school, vocational school, and Junior College 
located at the complex. There are few, if any, negroes anywhere 
in the area of Alliance Elementary.

The traditionally white school at North Collie is over­
crowded. The negroes attended the new modern Alden school. The 
elementary students attend Praco which is under-capacity and 
with empty classrooms.

As previously noted, the Docena School is being closed. If 
the plaintiffs intended to refer to the Docena Elementary School, 
they are again in error because that school has complete inside 
toilet facilities, central heating and other conveniences.

There are no negro residents in the area of the Cabaha ' 
Heights School.

The negroes residing in the Roebuck Plaza area have attended 
the Trussville School which has facilities superior to the 
Roetuck School.

The Trafford Elementary School traditionally attended by 
white students has only four teachers. On the other hand, the 
negroes attend the North Jefferson School which has twelve grades 
and all modern facilities.

Further illustrative of the egregious errors throughout this 
portion of the appellants' brief is their suggestion that Muscoda 
is "very close" to Bayview. As a matter of fact, they are 10 to

- 67 -



15 miles apart, separated by Bessemer (a separate school districl^ 
and Hueytown. It would require more than one hour to make the 
trip between the schools by automobile. The formerly crowded 
condition at the Muscoda School has been relieved by construction 
of the new A. G. Gaston Junior High School located in the immedi­
ate vicinity and named for a prominent negro citizen. The Mulga 
School traditionally attended by negro students is superior in 
facilities and equipment to the Mulga School traditionally 
attended by white students.

The Brighton School has been closed. In addition, it is far 
removed from Muscoda and separated by the city of Bessemer.

The formerly overcrowded condition at Ketona is being 
relieved by the construction of a new school at New Castle.

Examples throughout both systems can be given and more would 
have been incorporated in the record but for the statement and 
proper ruling of the District Court in all three cases that the 
comparative condition of the schools is immaterial to the subject 
suits. Suffice to state that the schools traditionally attended 
by negroes in the systems here involved, on the basis of any fair 
consideration, v;ill compare favorably as to plant, equipment and 
facilities with the schools traditionally attended by white stu­
dents. Any suggestion to the contrary is a disservice to the 
cause which appellants purport to sponsor.

-  68 -



D.
Response to the Government's Argument that 

the Plan Fails to contain a provision 
designed to Eliminate the Racial 
Segregation of Faculty and Staff

This Court should not go further, we respectfully say, 
than the directives of the Supreme Court in Bradley v. School
Board of City of Richmond, 15 L.Ed.2d 187, ______ U.S._______
decided November 15, 1965, as far as this subject is concerned, 
and should not by any means express yourselves as being in any 
wise in accord with the extreme provisions set out in the 1966 
Guidelines, or in accord with the "proposed decree" in that re­
gard contained in the government's Appendix IV.

We quote the pertinent language:
"The petitions for writs of certiorari to the 

Court of Appeals for the Fourth Circuit are granted 
for the purpose of deciding whether it is proper to 
approve school desegregation plans without consider­
ing, at a full evidentiary hearing, the impact on 
those plans of faculty allocation on an alleged ra­
cial basis.

* * *
"We hold that petitioners were entitled to such 

full evidentiary hearings upon their contention.
There is no merit to the suggestion that the rela­
tion between faculty allocation on an alleged ra­
cial basis and the adequacy of the desegregation 
plans is entirely speculative. Nor can we perceive 
any reason for postponing hearings; each plan had 
been in operation for at least one academic year; 
these suits had been pending for several years".
In remanding the Couart said:
"We, of course, express no opinion on the merits of 
the desegregation plans, nor is further judicial re­
view precluded."

- 69 -



The case came up on petition for certiorari to the Fourth 
Circuit, 345 F.2d 310, in which action, as shown on p.320, the 
question of assignment of teachers was ignored in the hearings 
in the District Court, and "the plaintiffs made no effort to 
develop a record upon which a finding of actual discrimination 
against pupils could be predicated". There was no inquiry, 
said the Fourth Circuit, as to the “proposed relation in fact 
or in law, in teacher assignments to discrimination against 
pupils".

Thus, the Supreme Court held only that a proper decision 
involved factual and evidential questions, a hearing upon 
which, on account of the long delay, the District Court should 
hold as soon as possible. The Court did not hold (we inter­
pret) that the Constitution required as a matter of law 
that a plan of desegregation must contain a provision for de­
segregation (or immediate desegregation, at least) of faculty, 
etc., except upon a full hearing establishing the relevancy or 
necessity therefor. Citing Bradley, Singleton, 355 F.2d 865, 
870, in dealing with this subject, says:

"In a recent decision of the Supreme Court, Bradley 
V. School Board, Richmond, Virginia, decided Novem- 
ber 15, 1965, 86 ^.Ct. 224, the Court remanded the 
case to the district court for an evidentiary hear­
ing on the petitioner's contention that the school 
desegregation plan allocated faculty on an alleged 
racial basis. Here, the Jackson Board has gone 
only as far as to hold joint faculty meetings and 
a joint inservice program. In view of the neces­
sity that the Jackson school system be totally de­
segregated by September, 1967, we regard it as es-

- 70 -



sential that the plan provide an adequate start 
toward elimination of race as a basis for the em­
ployment and allocation of teachers, administra­
tors, and other personnel,"
While we realize that Singleton is subject to the con­

struction that it directs more than an evidential hearing, we 
ask the Court to give further consideration to the effect of 
Bradley.

The time of the rendition of the final orders by the Dis­
trict Court, in the three cases now on appeal, August, 1965, 
was of course before the Bradley decision and also Rogers v, 
Paul, and there is no provision in the decrees relating to this 
subject. * Whatever directives this Court may give with re­
ference to holding a hearing along this line will undoubtedly 
be followed by the District Judge and this, we respectfully 
submit, is the limit to which this Court should go.

It is interesting to note provision of the 1965 Guidelines 
on this subject, E4a(6):

"Steps will be taken for the desegregation of faculty, 
at least including such actions as joint faculty meet­
ings and joint inservice programs".
This is a vastly different provision from the harsh re­

quirements of 1966. The 'proposed decree" is a "foot in the door"
"snrsr.  ̂ "  '

In the Bessemer case. Judge Lynne referred to the subject 
in memorandum opinion prior to the first appeal and prior to 
remandment and final hearing (R.39, June 30, 1965):

"For obvious reasons it would be premature " 
for the court to rule at this time with refer­
ence to the assignment of teachers,’ principals, 
supervisors, or other professional school per­
sonnel. The court expressly disclaims the ex-

- 71 -



E
RESPONSE TO APPELLANT'S ARGUMENT THAT THE PLAN FAILS TO 
GUARANTEE TO STUDENTS WHO TRANSFER THAT THERE WILL BE NO 
RACIAL DISCRIMINATION OR SEGREGATION IN SERVICES, ACTIVI­
TIES, AND PROGRAMS, PROVIDED, SPONSORED BY OR AFFILIATED

THE SCHOOL SYSTEM
On this particular subject Singleton said the following 

and no more:
The United States objects that the plan fails 

to provide for the desegregation of all services, 
programs and activities. The Board adequately an­
swers this objection by stating that all public 
services, buses and other transportation facilities 
and all programs, and activities "shall be available 
to all pupils duly enrolled [in a school] without 
regard to race, color, and national origin." 355 F,2d 
870. [Emphasis added]
The words used in the above quotation are by no means as 

broad as those contended for by the government and stated in 
the Guidelines.

Each board is willing to give an assurance in the wording
of the assurance given by the Jackson, Mississippi Board as
above quoted, limited to such facilities, programs and activi- 

(cont'd)
pressly disclaims the expression of any opi- 

/ nion as to whether a Negro pupil, as opposed
to other persons who would be immediately af­
fected, has standing to seek such relief. Such 
question can be more appropriately considered 
by the Board and by the court if necessary at 
some future date."

The last hearing was concluded by Judge Lynne dviring the 
examination of the Superintendent of Education by the govern­
ment as an adverse witness . On the hearing and without an op­
portunity for examination of him or any other witnesses.

In both the Fairfield and Jefferson County cases, the 
orders of the Court make no mention of the subject of the de­
segregation of faculties or other personnel, and the situation 
with reference to the termination of evidence is similar to 
that of the Bessemer case.

- 72 -



ties as shall be so closely connected with the functions of 
the school as to bring them within the prohibition of the lan­
guage of the Fourteenth Amendment itself, unembellished and un­
enlarged by any statute, regulation, rule, guidelines or execu­
tive interpretation of any natiore whatsoever. The boards do 
not agree, for example, that the activities of the parent- 
teachers associations are enibraced within the meaning of the 
Fourteenth Amendment itself, and when the words "affiliated 
with the school system" are employed, they are subject to a 
construction (a construction which will doubtless be advanced) 
that goes far afield and outside the scope of the desegrega­
tion under the Foxxrteenth Amendment and as defined under the 
Civil Rights Act of 1964.

F
Response to Argument of United States that 

the Plan should contain a Provision 
Allowing Negro Students in Non-Desegregated 

Grades to Transfer to Previously White Schools
On page 21 of its brief the United States maintains that 

the plan is defective in that it "fails to contain a provision 
allowing Negro students in non-desegregated grades to transfer 
to schools from which they have been excluded because of racei' 
In support of this contention, the government relies not on 
Rogers v. Paul, 382 U.S. 198 (1965), but on language in Single­
ton V. Jackson Municipal Separate School District, 355 F.2d 
865, 869-70 (5th Cir.,1966), which in turn relies on Rogers v.

- 73 -



Paul.
Because their grades had not yet been desegregated, the 

petitioners in Rogers v. Paul were prevented by their assign­
ments on a racial basis from taking certain courses which were 
available in a white school but not in the colored schools. 
Therefore, the Court observed, those assignments were uncon­
stitutional not only under Brown v. Board of Education of To­
peka, but also under the pre-Brown (separate-but-equal) cases 
requiring admission of Negroes to white schools when the cur­
ricula afforded were not equal. In the second Singleton deci­
sion, Rogers was interpreted as requiring an absolute right of 
transfer by students in non-desegregated grades.

But neither the second Singleton opinion, nor any other 
decision has required anything like what the government urges 
here. The government’s contention that "the plan ... must ex­
tend [immediately] to all twelve grades ..., " which was made 
and rejected in Singleton, with the caveat respecting the 
right to transfer under the rationale of Rogers v. Paul, supra 
(355 F.2d at 858, 869). Thus, the Court there stated that 
provision for non-desegregated grades need not be made in the 
plan, as the government insisted, but need only be available. 
Here, a right of transfer for all students (whether or not in 
desegregated grades) not only is available but is prescribed 
under state law by the Alabama Pupil Placement Law, Title 52,
§§61(4)-61(7), Alabama Code of ^940 (Recomp.1958), on indivi­
dual application. See Armstrong v. Board of Education of 
City of Birmingham, 323 F.2d 333, 342 (5th Cir. 1963).

- 74 -



GENERAL RESPONSE TO QUESTIONS CONCERNING THE EXTENT 
TO WHICH THE COURTS SHOULD RELY UPON HEW GUIDELINES

AND POLICIES
The two questions submitted to counsel in the twelve ca­

ses listed by the Court, when considered together, contemplate 
three possible actions by this Court with relation to the HEW 
Guidelines.

(1) That the 1966 HEW Guidelines and policies should be 
made judicially effective through some practicable means such 
as adoption and enforcement through court order;

(2) That this Court should rely upon the 1966 HEW Guide­
lines and policies in deciding the twelve pending cases and 
that similar action should be taken by this Court and the Dis­
trict Courts in all other cases which are pending or may arise 
in the future;

(3) That this Court and the District Courts should give 
weight to the HEW Guidelines and policies in formulating their 
judgments.

(4) Inferentially, if any such action is taken, then this 
Court and the District Courts would be governed by the Guide­
lines issued in 1967 and succeeding years. This would be par­
ticularly true of the District Courts, unless and until this 
Court held such directives to be contrary to constitutional 
principles or beyond the judicial function.

In reaching a decision of these matters, it is necessary 
to consider the revised Guidelines issued on March 7, 1966, by

- 7.5 ~



the Office of Education and (a) the extent to which they would 
require this Court to overrule or materially modify its exist­
ing decisions, (b) the extent to which they conflict with or 
exceed the powers granted by the Civil Rights Act of 1964 and 
the regulations issued under Title VI thereof by the Departmert 
of Health, Education and Welfare, and (c) the changes from the 
original Guidelines issued in April, 1965.

As this brief is particularly concerned with the three ca­
ses which are No. 23331, United States v. The Board of Educa­
tion of the City of Fairfield, et al. No. 23335, United States 
V. The Board of Education of the City of Bessemer, et al, and 
No. 23345, United States, et al v. Jefferson County Board of 
Education, et al, it is material that these cases have not been 
filed under Title VI of the Civil Rights Act of 1964. It may 
be that the remaining nine cases are in the same status. This 
is of special importance for the reason that the Guidelines 
issued by the Office of Education, and also the Regulations 
adopted by the Department of Health, Education and Welfare, are 
applicable only to suits which involve a judicial review of 
actions of the Office of Education cutting off federal funds 
under Section 603 of Title VI of the Act.

As pointed out in detail below, the Constitutional and 
legislative principles applicable to the expenditure of fede­
ral funds, the legislative and administrative discretion plac­
ing conditions upon the receipt and use thereof, the lack of

. - 76 -



due process in the adoption thereof and the lack of any oppor­
tunity to be heard by those affected thereby all render such 
Guidelines inapplicable to the pending cases. In this brief 
v?e refer to the three cases specifically mentioned as "the 
pending cases", bo the Guidelines issued March 7, 1956 as "the 
Guidelines", and to the Civil Rights Act of 1964 as "the Act".
1. The 1965 Guidelines Not Only Exceed the Authority 

Granted in the Act but are Contrary to its 
Provisions and to Congressional Intent 

______________Expressed in the Act_______________
section 602 of the Act authorizes the federal department 

or agency involved to issue "rules, regulations or orders of 
general applicability which shall be consistent with the 
achievement of the objectives of the statute authorizing the 
financial assistance in connection with which such action is 
taken. No such rule, regulation, or order shall become effec­
tive unless and until approved by the President."

The 1966 Guidelines (as well as the 1955 Guidelines) were 
not approved by the President. They were issued by the Office 
of Education unilaterally without an opportunity for the repre­
sentatives of the thousands of school districts affected there­
by to be heard. As unilateral directives they have not been

23subject to judicial review. * The 1966 Guidelines differ in 
many particulars from the 1965 Guidelines, demonstrating that 

23. This is directly contrary to the legislative history of the 
Act as evidenced by an opinion rendered by Attorney General Ro­
bert F. Kennedy to Senator Cooper dated April 29, 1964, in re-

- 77 -



as the political situation shifts and as the personnel of the 
Department of Health, Education and Welfare and of the Office 
of Education changes it may be reasonably expected that the 
Guidelines v?ill materially vary from year to year. Such chancH 
es v>ill include the political expertise, the expertise arising 
from party affiliation and the educational expertise of the 
changing personnel formulating these unilateral directives.

As elsewhere were pointed out in detail, numerous provi­
sions of the 1956 Guidelines are in direct conflict with the 
express prohibition which Congress inserted as Section 604 of 
the Act that "nothing contained in this Title shall be con­
strued to authorize action under this Title by any Department 
or Agency with respect to any employment practice of any em­
ployer." Nevertheless, the Guidelines attempt to control the 
hiring, assignment, dismissal, demotion, retention, promotion 
and re-hiring of all "teachers and other professional staff" 
of all schools affected thereby. The prohibition contained in 
Section 604 was inserted in the Senate to prevent the federal 
agency or department administering federal funds from dictat-

23. (Con't)
sponse to a question as to the power granted in the Act to the 
agencies and departments to make rules and regulations: 

"Section 602 provides that each agencies* rules 
and reegulations must be approved by the President.
The validity of such rules and regulations will be 
subject to judicial consideration in any judicial 
review proceedings. Any cut off of funds must be 
reported to the appropriate Congressional Commit­
tees ."

- 78 -



ing employment policies of schools, businesses, farmers and 
other entities and individuals. Section 701(b) of Title VII 
of the Act which covers Equal Employment Opportunity - speci­
fically excepts **a state or political aubdivision thereof"?^ * 

Title VI makes no reference to education or schools as 

such. It is drawn in broad and general terms.
24. When the Senate version which was enacted into law reached 
the House floor, Mr. Cellar,Chairman of the House judiciary 
Committee, who was the floor leader, on July 2, 1964, as shown 
by the Congressional Record on that date, pages 15363-15365, 
stated as follows:

"The Senate amendment adds a new section 604 which 
provides that nothing in this Title authorizes fe­
deral departments or agency action with respect to 
employment practices except where a primary objec­
tive of federal financial assistance is to provide 
employment."

Deputy Attorney General Nicholas deB. Katzenbach (who is now 
Attorney General of the United States) wrote an opinion to 
Congressman Emanuel Cellar, Chairman of the Committee on Judi­
ciary of the House of Representatives, concerning the version 
of the bill which was later enacted, and became the present 
law. Its effect upon employment was an issue which had been 
raised in the House debates. In this opinion, the following 
statement was made by the then Deputy Attorney General:

"The impact of Title VI is further limited by the fact 
that it relates only to participation in, receipt of 
benefits of, or discrimination under, a federal assisted 
program. As to each assisted program or activity, 
therefore. Title VI would require an identification 
of those persons whom Congress regarded as partici­
pants and beneficiaries andin respect of whom the 
policy declared by Title VI would apply. For example, 
the purpose of benefit payments to producers of agri­
cultural commodities under 7 J.S.C. 608 is to 'estab­
lish and maintain ... orderly marketing conditions for 
agricultural commodities in interstate commerce.' (7 
U.S.C. 602). The Act is not concerned with farm em­
ployment. As applied to this federal assistance pro­
gram, Title VI would preclude discrimination in con- 
nection with eligibility of farmers to obtain benefit 
payments, but it would not affect the employment poli­
cies of a farmer receiving such payments,"

- 79 -



It applies to and is limited to the hundreds of programs and
activities "receiving federal financial assistance". Hence we
must turn to Title IV of the Act to determine the legislative
intent concerning public education. In Section 401(b) the
follovrfing definition is contained:

"'Desegregation' means the assignment of students to 
public schools and within such schools without re­
gard to their race, color, religion, or national 
origin, but 'desegregation* shall not mean the as­
signment of students to public schools in order to 
overcome racial imbalance."
The 1966 Guidelines are in direct violation of this sta­

tutory provision and expression of Congressional intent, as 
pointed out below.

The intervention by the Attorney General purports to be 
under Section 902 of the Act which is applicable to every suit 
filed "seeking relief from the denial of equal protection of 
the laws under the Fourteenth Amendment to the Constitution on 
account of race, color, religion, or national origin." That 
section provides expressly "in such action the United States 
shall be entitled to the same relief as if it had instituted 
the action". In actions involving schools, the Congressional 
intent and the authority of the Attorney General is delineated 
in Section 407(a) of the Act, and is subject to the following 
proviso:

"...provided that nothing herein shall empower any 
official or court of the United States to issue any 
order seeking to achieve a racial balance in any 
school by requiring the transportation of pupils

- 80 -



from one school to another or one school district 
to another in order to achieve such racial balance, 
or otherv?ise enlarge the existing power of the court, 
to insure compliance with constitutional standards."
The action of the Attorney General in supporting the 1966 

Guidelines ia in direct violation of this prohibition. Under 
Section 902 the United States has the same status in the pend­
ing cases "as if it had instituted the action" by authority of 
Section 406(b) of the Act.

The Guidelines and also the Regulations adopted by the De­
partment of Health, Education and Welfare violate specific pro­
visions of the statute in number of particulars related to the 
disbursement of federal funds. However, as we are not here 
concerned with federal funds, we will limit our reference to 
such provision which, if adopted by this Court, violates re­
cognized constitutional principals and express provisions of 
the Act.

The present intent of the Department of Health, Education 
and Welfare and the Commissioner of Education to act without 
any semblance of due process and in direct violation of express 
prohibitions contained in the Act is demonstrated by the fact 
that the regulations directly violate the express provisions 
of Title VI and are therefore invalid in that they awthorize 
the denial or discontinuance of finaicial_assj.^stancejrior 
and pending the administrative proceedings.

The invalidity of the provision of the regulations which 
permits termination during the pendency of administrative pro-

- 81 -



ceedings can be clearly demonstrated by simply con^aring it 
v/ith the pertinent provisions of Title VI.

The pertinent part of section 602 of the Act is as fol­
lows :

Provided, however, that no such action, i.e., termi­
nation of or refusal togrant or continue assistance 
shall be taken until the department or agency con­
cerned has advised the appropriate person or per­
sons of the failure to comply with the requirement 
and has determined that compliance cannot be se­
cured by voluntary means. In the case of any ac­
tion terminating or refusing to grant or continue 
assistance because of failure to comply with a re­
quirement imposed pursuant to this section, the 
head of the federal department or agency shall fit 
with the committee of the House or Senate having 
legislative jurisdiction over the program or acti­
vity involved, a full written report of the circum­
stances and the grounds for such action. No such 
action shall become effective until thirty days 
have elapsed after the filing of such report.
[Emphasis added]
Thus, under the terms of the statute any action by the 

administrative agency which terminates financial assistance 
shall not become effective until thirty days after the filing 
of a report of the administrative findings by the appropriate 
agency of the ground for such termination. In the face of this 
statutory requirement, §80.8(b) of the regulations provides to 
the contrary that:

The department shall not be required to provide 
assistance in such a case during the pendency of the 
administrative proceedings under such paragraph 
[paragraph (c) of §80.4].
The point need not be belabored, for it is obvious from 

simply reading the above two portions of the regulation and

- 82 -



statute that provide for the withholding of federal funds 
without a hearing and without any process whatsoever during 
the pendency of administrative proceedings is in direct con­
flict with the Act.

Should the courts not only condone, but give "judicial ef­
fect" to such arbitrary, unilateral action? Due process is 
still a viable constitutional principle.

We will not refer to the numerous other particulars in 
which the Regulations or the Guidelines violate the Act or ex­
ceed the authority granted thereby. The pending cases do not 
involve administrative action terminating federal financial 
assistance.

2• Legal Nature of the "Guidelines"
At the conclusion of this portion of the brief we discuss 

the decisions of this Court, Courts of Appeals of other ctoaita 
and of the Supreme Court of the United States which clearly de- 

legal nature of the "Guidelines" issued from year to 
year by the Commissioner of Education. At this point we 
simply adopt as descriptive of these directives the words of 
Chief Judge Hutcheson of this Court concerning rulings of the 
Bureau of Internal Revenue of the Treasury Department in United

_Bennett, 186 F.2d 407, that they are merely "rulings
gade to order for the Commissioner by his legal staff, hav­

ing no more binding effect than the opinion of any other law­
yer. "

- 83 -



3. Definition of terms utilized by Department of Health, 
Education and Welfare and Justice Department.

Semantics is one of the most powerful weapons used today 
in molding the government of the United States. Although not 
here involved, in former days the word "dole" was utilized to 
describe the giving to needy persons of public funds or of com­
modities purchased with public funds. The term now substituted 
is "war on poverty," If the first t e m  had been used, we feel 
confident that the program now in effect would never have been 
adopted by the Congress of the United States. Similar substi­
tutions or the use of words in lieu of the heretofore well re-

i cognized terms calculated to disguise the effect of the Guide­
lines which are used by the Department of Health, Education 
and Welfare in the Guidelines or by the Attorney General in 
the brief filed by him as the legal voice of such department, 
are as follows:

(a) "Abdication of the judicial function" has been trans­
lated into "use of the expertise of the Office of Education," 
totally abrogating the expertise of Boards of Trustees of 
Schools and the discretion of District Courts.

(b) The well known term "text books" has been translated 
into the words "teaching materials," as to which HEW would as­
sume right of final determination (§181.15 of the Guidelines).

(c) The terms "racial balance" or "racial imbalance" 
have been replaced by the term "a significant portion...of 
each race," or by assignment so that "schools are not identi-r

- 84 -



fiable as intended for students of a particular race" (S181.54 
2181.13 and other paragraphs of the Guidelines).

(d) The term "transportation of students to remove racial 
imbalance" (prohibited in Title IV of the Act) has been re­
placed by the words requiring that transportation "routes and 
schedules must be changed to the extent necessary to comply 
with this provision", i.e., the elimination of a dual system
of schools and tha attaining of a "significant portion" of each 
race in each school (2181.14(b)(2) and other paragraphs of the 
Guidelines).

(e) "Freedom of Choice" for many years has been construed 
in the field of education as meaning a freedom of choice by the 
student. This term has now been changed in the brief of the 
Department of Justice and the Guidelines to mean the exercise 
of "freedom of choice" solely by the Department of Health, Edu­
cation and Welfare. No student would have "freedcan of choice" 
when it conflicts with the HEW directives. Not one of the 
thousands of Boards of Trustees throughout the fifty states 
would have "freedom of choice". Says the Justice Department, 
"local responsibility can then be turned to ... the task of 
administration and performance, i.e., obeying the orders of 
the HEW. The "tongue in cheek" use of the word "administra­
tion" by the local authorities is clarified by the statement
on page 30 of the brief which states in referring to the pro­
posed decree that "The administrative details are largely drawn

- 85 -



from the HEW Guidelines". Performance alone is to be vested 
in local authorities.

(f) "Desegregation of schools" is differently defined by 
different entities;

The Congress of the United States —  (§401)(b) of the Act
-- "'Desegregation' means the assignment of students to public
schools and within such schools without regard to their race, 
color, religion or national origin, but 'desegregation' shall 
not mean the assignment of students to public schools in order 
to overcome racial imbalance". —  Section 407(a) of the Act,—  

In providing appropriate legal proceedings to attain "the or­
derly achievement of desegregation" in education" Congress ex­
pressly limited the meaning of desegregation by stating "pro­
vided that nothing herein shall empower any official or court 
of the United States to issue any order seeking to achieve a 
racial balance in any school by requiring the transportation 
of students or pupils from one school to another or one school 
district to another in order to achieve racial balance, or 
otherwise enlarging the existing power of the Court to insure 
compliance with constitutional standards" —  Section 410 of 
the Act —  "Nothing in this title shall prohibit classification 
and assignment for reasons other than race, color, religion,or 
national origin" —  Section 604 of the Act —  "Nothing con­
tained in this title shall be construed to authorize action un­
der this title by any department of agency with respect to any

-  86 -



employment practice of any employer" —  Section 701(b) "The 
term 'employer* ... does not include ... a state or political 
subdivision thereof".

The Courts —  The opening of all grades in public schools 
to attendance by any student (a) by application of a freedom 
of choice plan to designated grades accomplished within the 
time fixed as minimum by the courts or (b) by use of another 
proper plan, both subject to reasonable discretion of the 
School Board exercised without regard to race, color or na­
tional origin, all subject to supervision of the District 
Courts in the protection of Constitutional rights.

Guidelines issued by HEW - Assignment of pupils (regard­
less of freedom of choice by pupils and destroying all discre­
tion of school boards in proper administration of their 
schools) so as to attain increasing fixed percentages of so­
cial transfers as fixed by the Commissioner of Education, re­
sulting in the ultimate racial balance of students. Similar 
assignment and hiring of faculty and other employees resulting 
in racial balance by the employer.
4. The 1966 Guidelines and Their Adoption by This Court would 

Result in Destruction of Generally Accepted Constitutional 
Principles Applicable to Desegregation of Schools_____

In this brief it will not be possible to point out all of 
the conflicts between the 1966 Guidelines and the constitution­
al principles announced by the Supreme Court of the United 
States and this Court which protect the cons titutional rights

- 87 -



of students in schools supported by the States, However, we 
call the Court's attention to the following:

The 1966 Guidelines are fashined to destroy the freedom 
of choice plan of desegregation. Although the Guidelines os­
tensibly permit a freedom of choice plan, the- ultimate result 
of their enforcement will be that the United States Commission­
er of Education will require the abandonment thereof and the 
substitution of a plan directed by him whenever he so desires, 
as evidenced by the following:

(a) §181.41 requires that any such plan must meet the 
requirements of sub-part D as well as the other requirements 
of the Guidelines.

(b) §181.11 provides that "under certain conditions, a 
plan based on free choice of school may be a way to undertake 
desegregation.,,.based on consideration of all the circumstan­
ces of a particular school system,the Commissioner may deter­
mine that its desegregation plan is not adequate to accomplish 
the purposes of Title VI, in which case he may require the a- 
doption of an alternative plan."

(c) After describing certain particular situations,
§181.14 provides "free choice desegregation procedures normal­
ly may not be applied to such programs."

(d) If any type of geographic attendance zone is utilized, 
free choice may not be exercised, as §181.33 provides "regard­
less of any previous attendance at another school, each stu-

-  88 . -



dent must be assigned to the school serving his own residence" 
with certain very narrow exceptions.

(e) The intention of the Commissioner is evidenced by the 
provision of §181.54 which recites that "the Commissioner will 
scrutinize with special care the operation of voluntary plans 
of desegregation in school systems which have adopted the free 
choice plan." It further contains compulsory requirements of 
assignment of pupils contrary to their free choice by provid­
ing in the same paragraph that "In determining whether a free 
choice plan is operating fairly and effectively...the progress 
actually made in eliminating past discrimination and segrega­
tion" shall be considered. The same section further provides 
"The single most substantial indication as to whether a free 
choice plan is actually working to eliminate the dual school 
system is the extent to which Negro or other minority group 
students have in fact transferred from segregated schools."

(f) §181.54 further provides that if the Commissioner is 
not satisfied with the progress made under a freedom of choice 
plan "the Commissioner will review the working of the plan and 
will normally require school officials to take additional ac­
tions as a prerequisite to continued use of the free choice 
plan, even as an interim device." It then sets up an arbitra­
ry percentage criterion whereby if eight or nine percent or 
more have transferred for the school year 1965 to 1966, twice 
that percentage must transfer in the succeeding school year ,

- 89 -



and if a smaller percentage of students have transferred during 
such school year, three times that percentage must transfer in 
the succeeding year.

(g) §181.54(4) provides "if a school system in these 
circumstances is unable to make such a start for the 1966-1967 
school year under a free choice plan, it v>ill normally be re­
quired to adopt a different type of plan." The reference is to 
the arbitrary percentages mentioned above. Any deviations from 
these "expectations" would be evidence that the Commissioner 
feels that the plan is not properly operating and he will re- 
cpjire the school system to take additional steps to further de­
segregation.

(h) The substantially more rigid and preemptory require­
ments of the 1966 Guidelines over the 1965 Guidelines demon­
strate that if the freedom of choice plans do not result in the 
racial balance desired by the Commissioner, they will be eli­
minated by him.

Desegregation of the teaching and professional staff is 
required immediately and on a basis wholly unrelated to the de­
segregation of each school. The following demonstrate the ef­
fect of adoption of the 1966 Guidelines contrary to the princi­
ples which have been adopted by the Court as applicable to the 
teaching staffs of the schools.

(a) §181.13 provides that "each school system is respon­
sible for correcting the effects of all past discriminatory

- 90 -



practices in the assignment of teachers and other professional 
staff." Under various executive orders which have been in ef­
fect for a number of years singular provisions have been con­
strued to require the employment of Negroes to the exclusion 
of white personnel until a racial balance is obtained.

(b) §181.54 provides that "in districts with a sizeable 
percentage of Negroes or a minority group of students...where 
schools are identifiable on the basis of staff composition as 
intended for students of a particular race, color or national 
origin, such steps must in all such cases, include substantial 
further changes in staffing patterns to eliminate such identi- 
fiability." By the use of many words, it is thus provided that 
a racial balance must be obtained in the professional and teach­
ing staff, regardless of the extent of desegregation among the 
students and in the schools themselves.

(c) §181.13(d) requires the assignment of "a significant 
portion of the professional staff of each race to particular 
schools in the system where their race is in a majority." It 
requires that "the pattern of assignment of teachers and other 
professional staff among the various schools of a system may 
not be such that the schools are identifiable as intended for 
students of a particular race, color, or national origin, or 
such that teachers or other professional staff of a particular 
race are concentrated in those schools where all, or the majori­
ty, of the students, are of that race." It took ninety-four

- 91 -



words to disguise the fact that racial balance will be required,
(d) No discretion whatsoever is accorded to the Board of 

Trustees of schools familiar with the abilities of their teach­
ers, the local requirements, and all of the other factors which 
have been recognized as being proper by this Court. The deter­
mination will be made solely by the Commissioner of Education 
as to whether or not a proper "significant portion" or racial 
balance has been obtained.

The 1966 Guidelines require an assignment of pupils to 
schools so as to result in a racial balance, destroying free­
dom of choice by the students. The Court has condemned the use 
of a dual system of attendance zones and a separate system of 
schools for the races. It has not been held that the constitu­
tional rights of students are violated when a reasonable and 
proper freedom of choice plan results in different schools of 
the system having different percentages of the races. Although 
the result is somewhat disguised by the use of many words, the 
following provisions are material:

(a) §181.5(a) states that "a school system which does not 
maintain any characteristic of a dual school structure may ini­
tially demonstrate compliance by submitting HEW Form 441." This 
reveals the actual and ultimate intent of the Guidelines.

(b) §181.11 provides, "It is the responsibility of a 
school system to adopt and implement a desegregation plan which
will eliminate the dual school system..." and this is followed

- 92 -



by §181.12 providing that "Title VI precludes a school system 
from any action or any action designed to ...maintain what is 
essentially a dual school structure."

(c) Further prohibition is contained in §181.32 concern­
ing the maintenance of "what is essentially a dual school struc­
ture. "

(e) §181.66(c) defines the term "dual school structure"
as meaning "a system of separate school facilities for students 
based on race, color, or national origin."

Although the wording is deliberately vague and attempts to 
come within cases referring to a dual system of school zones, 
or separate systems of schools for the races, it appears incon­
trovertible that the intention of theCommissioner is to require 
racial balance in the school regardless of the desires of the 
students, i.e., "substantial portions" of the student body and 
of the faculty will be required to be assigned in order to at­
tain that which the Commissioner determines he desires. This 
directly violates Section 401(b) and Section 410 of the Act.

In the face of a prohibition to the contrary contained in 
the Act, the 1966 Guidelines require desegregation of programs 
or activities which do not receive any federal financial assis­
tance. The following matters are significant;

(a) Section 602 of the Act limits the application of the 
prohibition against discrimination in programs receiving feder­
al assistance "to the particular program, or part thereof in

- 93 -



which such non-compliance has been found." It applies only to 
"any program or activity receiving federal financial assistance.

(b) Desegregation meeting the approval of the Commission­
er of Education must be applied, according to §181.14, not only 
to facilities, activities and programs conducted or sponsored 
by schools, but also to such matters "affiliated with" the 
schools.

(c) §181.14(b)(3) specifically includes parent-teacher 
meetings and is clearly intended to apply to any activities af­
filiated with or related to schools even though they are con­
ducted by persons not enrolled in these schools and even though 
students in the schools do not attend the same.

Although Section 407(a) of the Act expressly provides that 
nothing therein "shall empower any official or court of the 
United States to issue any order seeking to achieve a racial 
balance in any school by requiring that transportation of pu­
pils from one school to another or one school district to an - 
other in order to achieve such racial balance" the following 
provisions appear in the 1966 Guidelines, which are calculated 
to bring about that result:

(a) §181.49 provides that "no choice may be denied in as­
signing students to schools for any reason other than overcrowd­
ing."

(b) §181.51 provides that "no factor such as...the opera­
tion of the school transportation system or any other factor

- 94 -



except overcrowding, may limit or affect the assignment of stu­
dents to schools on the basis of their choice,,. . Where trans­
portation is generally provided, busses must be routed the maxi­
mum extent feasible so as to serve each student choosing any 
school in the system."

(c) §181,14 provides that "routing and scheduling of
transportation must be planned on the basis of such factors as 
economy and efficiency, and may not operate to impede desegre­
gation. Routes and schedules must be changed to the extent ne­
cessary to comply with this provision." The statement of the 
requirement in the negative does not change its mandatory ef­
fect.
5, The Power of the Department of Health, Education and 

Welfare and the Commissioner of Education Arise From 
Title VI Construed in Conjunction with Title IV of 
 the Act____________________
In an early portion of this brief, in the very last part 

of our argument under Section A, we made some observations 
about Title IV, and its impact upon Title VI. We would like 
to amplify this in dealing with the Guidelines, and in 
response to this Court's request for a special treatment of 
the weight to be given the actions of HEW.

We assert that Title IV constitutes a limitation upon 
Title VI, insofar as the power of HEW to prescribe standards 
for desegregation of schools is concerned, that it was not 
the intention of Congress that HEW by Guidelines or other­
wise exceed the bounds of Title IV in relation to school

- 95 -



desegregation; and consequently if those bounds were exceeded 
then under no conditions should the Guidelines or other 
standards of HEW be given any weight whatsoever.

Htew has undoubtedly assumed in the field of desegregation 
of schools as well as other activities that it has the power 
to enact rules defining and spelling out the details of what 
should constitute discrimination precluding the expenditure 
of federal funds, and has prescribed such rules by executive 
and administrative fiat. This is undoubtedly done under the 
supposed authority of the stautte. Title VI.

Within this domain, which it assumed was created by 
Congress, it has prescribed in minutia detailed rules 
which (to give the Executive Department credit for exercising 
good faith) it assumed it had the right to do. A right, 
however, not prescribed by the Fourteenth Amendment but by 
the act of Congress itself, and what it conceive^ to be the 
national policy established by the Act. Indeed, there is 
language in the opinion in Price which intimates that the 
Court in giving weight to HEW standards is following a 
national policy prescribed by Congress, in lieu of merely 
enforcing without more the self-executing prohibition of 
the Fourteenth Amendment.

What we mean is this. The present philosophy appears 
to be exemplified by the recent decision of the Supreme 
Court of the United States in the Voting Rights

- 96 -



25,Act * (involving the Fifteenth Amendment) holding that 
while a court, in construing the equal protection clause 
of the Fourteenth Amendment itself unsupported by any act 
of Congress, is restricted to a determination of actual 
discrimination on the ground of race or color and without 
any rational basis for such classification, the Congress has 
the powei; under Section 2 of the Amendment, to pass laws 
affirmatively defining that which should be determined to be 
discrimination under the Fourteenth (or Fifteenth) Amendment, 
and thus by defining and regulating such discrimination to 
enlarge the power of a Court itself in enforcing the 
Fourteenth Amendment and the Act of Congress enacted there­
unto.

Therefore, in view of the wide-spread policy adopted in 
some states prior to and contemporaneously with the passage 
of the Civil Rights Act of 1964,to transport children from 
one school to another in a school system or to use other 
methods to create a "racial balance", members of Congress

25 . From a reading of the decision, and the writing of 
this particular part of the brief (having listened to all of 
the arguments involving the recent Voting Rights Bill case) 
the Supreme Court has unquestionably held in effect that 
Congress under the power to enforce the provisions of the 
Fifteenth Amendment, has the power to declare invalid, or at 
least suspend indefinitely, the literacy tests and standards 
prescribed the states, or particular states, as qualifications 
of voting electors, and that, upon a finding or conclusion by 
Congress that such literacy tests and standards had been used 
as a means of discrimination. In the absence of such language 
there could have been no such suspension of invalidation of 
voter qualifications as was declared by Congress,

- 97 -



and Senators, opposed to the passage of the Civil Rights Act 
or to certain parts thereo f, were gravely concerned as to 
whether Title IV, or other parts of the Act, intended to 
prescribe factors of discrimination, as a regulation under 
the Fourteenth Amendment (which would otherwise not be 
considered or enforced by the courts without such statutory 
regulations) and to confer upon the courts an injunctive 
power to enforce a statutory regulation over and above the 
self-executing prohibitive injunction of the Fourteenth 
Amendment itself. This undoubtedly led, in order to meet 
these objections, to the insertion of the following provi­
sions in Title IV as finally passed:

"'Desegregation' means the assignment of 
students to public schools and within such 
schools without regard to their race, color, 
religion, or national origin, but 'desegregation' 
shall not mean the assignment of students to 
public schools in order to overcome racial 
imbalance.

* * *
" ... provided that nothing herein shall empower 
any official or court of the United States to 
issue any order seeking to achieve a racial 
balance in any school by requiring the trans­
portation of pupils or students from one 
school to another or one school district to 
another in order to achieve such racial balance, 
or otherwise enlarge the existing power of the court to insure compliance with constitutional 
standards. The Attorney General may implead as 
defendants such additional parties as are or 
become necessary to the grant of effective 
relief hereunder."
In promulgating the Guidelines, HEW, however, has done 

what it conceived its perogative to be in every other

- 98 -



instance in regard to the desegregation of schools. It not 
only has required plans for desegregation but has inserted 
therein the minutest details as to what those plans should 
contain, details which have been discussed and which far 
transcend that which the Fourteenth Amendment itself, 
without any attempt at statutory regulation, enjoins.
In doing so, the Department of Health, Education and Welfare 
has far exceeded its powers. It has transcended the inten­
tion of Congress. It has established decrees which are 
beyond the powers of this Court to enforce; and therefore 
what it has done should not be honored by this Court.

IF THE 1966 GUIDELINES ARE ADOPTED BY THE COURT AND MADE 
JUDICIALLY EFFECTIVE, OR ARE RELIED UPON OR GIVEN WEIGHT 
BY THE COURT IN DETERMINING PENDING AND FUTURE CASES,
THE COURT WILL THEREBY OVERRULE OR MATERIALLY ALTER MANY 
OF ITS DECISIONS ENUNCIATING THE CONSTITUTIONAL PRIN­

CIPLES APPLICABLE TO DESEGREGATION OF SCHOOLS

The combination of the 1966 Guidelines issued by the 
Commissioner of Education and the brief filed by the 
Attorney General as the legal voice of the Department of 
Health, Education and Welfare constitute the most brilliant 
piece of legal writing which the writer of this portion of 
this brief has read in thirty-seven years of the practice 
of law. They have all of the power and destructive effect 
of a "one two punch" of a heavyweight champion of the 
world, such as Jack Dempsey. They constitute an amazing, 
subtle and powerful attempt to overthrow the Constitutional 
principles governing public education which have been

- 9 a  -



announced by the Supreme Court of the United States and by 
this Court from Brown through Singleton. Their purpose and 
effect are disguished by a masterful use of the English 
language.

While this brief is limited to a discussion of the 1956 
Guidelines, a dangerous precedent would be set even if such 
current version were valid and acceptable. In considering 
the prior decisions of this and other courts discussing HEW 
"Guidelines", we should keep in mind that the courts were 
considering the 1965 guidelines. The unilateral action taken 
by the Office of Education in materially altering the Guide­
lines within twelve months of their original release, 
accomplished without the opportunity for a hearing or 
judicial review, demonstrates the danger of setting a 
precedent whereby such unilateral directives are clothed 
within the dignity and effect of judicial decisions rendered 
after due process of law has been accorded by the courts and 
all parties have had the opportunity of a hearing. The 
Guidelines are unilateral orders by an administrative officer.

The 1966 Guidelines and the brief filed herein purport 
to be based upon authority assumed to be conferred by the 
Act on the Department of Health, Education and Welfare and 
the Commissioner of Education, In Price, this Court very 
correctly referred to "the passage of the Civil Rights Act 
of 1964 which declares a strong legislative policy against

-  100 -



racial discrimination in public education". But the 1966 
Guidelines and the brief completely ignore the express pro­
visions of that Act inserted to protect the constitutional 
principles theretofore announced by the Courts delineating 
the extent to which the constitutional guarantees of the 
Fourteenth Amendment require the desegregation of schools. 
They particularly ignore those portions of the Act which are 
designed to and expressly preserve the rights of students, 
members of the faculty and other employees of schools and 
local school boards as political subdivisions of the states.
1. If the 1966 Guidelines are judicially enforced or 
followed by this Court, compulsory integration will be 
substituted for desegration. The fundamental constitutional 
principles governing public education will be overruled.

The House of Representatives passed HR 7152 as amended 
by the Senate on July 2, 1964, and this bill became the
Civil Rights Act of 1964 when it was signed by the President 
on the same date.

The writer of this portion of the brief (at the request 
of and in consultation with the members of the House 
Judiciary Committee who signed the Minority Report) 
personally wrote the Minority Report of such Committee. 
Thereafter, he conferred with numerous members of the 
Senate in the preparation of some of the amendments adopted 
by the Senate which were accepted by the House.

-  101 -



Section 470(a) of the Act empowers the Attorney General, 
under certain circumstances, to institute appropriate legal 
proceedings which "will materially further the orderly 
achievement of desegregation in public education".
Section 601 provides that "no person in the United States 
shall, on the ground of race, color or national origin, 
be excluded from participation in, be denied the benefits of, 
or be subject to discrimination under, any program or 
activity receiving federal financial assistance". While all 
schools and colleges are not "operated wholly or pre­
dominantly from or through the use of federal funds or 
property" (Section 401(c)),nevertheless, the above statement 
of this Court in Price is clearly correct.

In Armstrong v. Board of Education of the City of 
Birmingham. 323 F,2d 333, decided July 12, 1963, this court 
made the following statement:

"Nothing contained in this opinion or in the 
order directed to the issue by the District 
Court is intended to mean that voluntary segre­
gation is unlawful; or that the same is not legally permissible".
The above is a suscinct statement of the rules recog­

nized by this Court, the Court of Appeals of the Sixth 
Circuit, and the courts generally. Such rule was stated by 
this Court on November 30, 1960, in Boson v, Rippv. 285 F.2d, 
43, 48 as follows:

-  102 -



"Indeed, this Court has adopted the reasoning in 
Briggs v. Elliott, D.C. E.D.S.C* 1955, 132 F.Supp.
776, relied upon by the Sixth Circuit (Avery v,
Wichita Falls Independent School District, 5 Cir.,
1957, 241 F.2d 230, 233)and has further said:

"'The_equal protection and due process 
clauses of the fourteenth amendment do not affirm­
atively command integration, but they do forbid 
any state action requiring segregation on account 
of their race or color of children in the public 
schools. Avery v. Wichita Falls Independent 
School District,5 Cir. 1957, 241 F.2d 230, 233.
Pupils may, of course, be separated according to 
their degree ojf .advancement or retardation, their 
ability to learn, on account of their health, or 
for.any other legitimate reason, but each child 
is entitled to be treated as an individual without 
regard to his race or color,'
"Borders v. Rippy, 5 Cir., 1957, 247 F.2d 268, 271."

In Avery v. Wichita Falls Independent School District. 
241 F.2d 230, 233-4, this Court announced the rule as 
follows:

"The Constitution as construed in the School 
Segregation Cases, Brown v. Board of Education,
347 U.S, 483, 74 S. Ct. 686, 98 L.Ed. 873; Id.,
349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, and 
Bolling V. Sharpe, 347 U.S. 497, 74 S.Ct. 693,
98 L.Ed. 884, forbids any state action requiring 
segregation of children in public schools solely 
on account of race; it does not, however, require 
actual integration of the races. As was well said 
in Briggs v. Elliott, D.C.E.D.S.C,, 132 F.Supp.
776, 777:

"' ... it is important that we point out 
exactly what the Supreme Court has decided and 
what it has not decided in this case. It has not 
decided that the federal courts are to take over 
or regulate the public schools of the states. It 
has not decided that the states must mix persons 
of different races in the schools or must require 
them to attend schools or must deprive them of the 
right of choosing the schools they attend. What

- 103 -



it has decided, and all that it has decided, is 
that a state may not deny to any person on account 
of race the right to attend any school that it 
maintains. This, under the decision of the 
Supreme Court, the state may not do directly or 
indirectly; but if the schools which it maintains 
are open to children of all races, no violation of 
the Constitution is involved even though the 
children of different races voluntarily attend 
different schools, as they attend different 
churches. Nothing in the Constitution or in the 
decision of the Supreme Court takes away from the 
people freedom to choose the schools they attend.
The Constitution, in other words, does not 
require integration. It merely forbids discrimin­
ation, It does not forbid such segregation as 
occurs as the result of voluntary action. It 
merely forbids the use of governmental power to 
enforce segregation. The Fourteenth Amendment is 
a limitation upon the exercise : of power by the 
state or state agencies, not a limitation upon 
the freedom of individuals,*"
In order to preserve the constitutional rights of all 

students regardless of race, color, religion or national 
origin, and of the School boards in their responsibility of 
administering of local schools, the Senate added the follow­
ing clause in Section 401(b) of the Act at the end of the 
definition of "desegregation" as shown in the House bill:

"But 'desegregation' shall not mean the assign­
ment of students to public schools in order to 
overcome racial imbalance,"
The Senate also added the following restriction which

now appears in Section 407(a) of the Act:
"Provided that nothing herein shall empower any 
official or court of the United States to issue 
any order seeking to achieve a racial balance in 
any school by requiring the transportation of 
pupils or students from one school to another or 
one school district to another".

- 104 -



The Senate also added in the section which now appears 
as Section 407(a), a part of the above restriction, the 
following:

"Provided that nothing herein shall ... enlarge 
the existing power of the court to insure com­
pliance with constitutional standards".
The Senate also added to the Act Section 604 as follows;

"Sec, 604, Nothing contained in this title 
shall be construed to authorize action under this 
title by any department or agency with respect to 
any employment practice of anv employer, employ­
ment agency, or labor organization except where a 
primary objective of the Federal financial 
assistance is to provide employment.
These clear and express restrictions upon the power

granted by the Act were added to clarify the effect of the
Act and the Congressional intent. They were adopted in part
to meet the objections contained in the Minority Report of
the House Judicial Committee as follows:

"If the proposed legislation is enacted, the 
President of the United States and his 
appointees, - particularly the Attorney General - 
will be granted the power to seriously impair the 
following civil rights of those who fall within 
the scope of the various titles of this bill:

"In the rights of Board of Trustees of public 
and private schools and colleges to determine the handling of students and teaching staggs (Title IV,
Title VI, Title VII),,.,
"The proposed legislation would ultimately 
result in total federal control of the educa­
tional processes in the United States,

- 105 -



"Under provisions of this bill the President 
and his appointees and federal agencies would 
have the right to dictate pupil assignments in 
local schools and to approve of the faculties 
(Section 601, 602, 711(b), 602)."
The Senate struck out Section 711(b) of HR 7152 as

passed by the House, In commenting upon the difference
between the original administration bill and the House
Committee substitute which was passed by the House and
considered by the Senate, the Minority Report of the House
Judiciary Committee contained the following:

" ... the administration bill contained refer­
ences to 'racial imbalance* in connection with 
desegregation in public education. The sub­
committee proposal and the pending bill have 
omitted this reference. As heretofore 
explained, it appears that this action is a 
matter of 'public relations' or semantics, 
devised to prevent the people of the united 
States from recognizing the bill's true intent 
and purpose. The administration apparently 
intends to rely upon its own construction of 
'discrimination' as including the lack of 
racial balance, as distinguished from a 
statutory reference to 'racial imbalance', as 
evidenced by the reports of the U.S. Commission 
on Civil Rights and recent Executive orders and 
regulations,"
In order to meet these objections, the Senate inserted 

the above quoted express prohibitions. It is clear that 
when Congress expressly determined that the orderly process 
of desegregation to remove discrimination on the ground of 
race, color or national original from the schools did not 
mean the assignment of pupils to public schools in order 
to overcome racial imbalance; that no official or court of

- 106 -



the United States should issue any order seeking to achieve 
a racial balance in any school by requiring transportation 
of students in order to achieve racial balance and expressly 
provided that nothing "herein contained" shall "otherwise 
enlarge the existing power of the court to insure compliance 
with constitutional standards", the Act was intended to and 
did preserve the rights as delineated in the above cases,
2. The 1966 Guidelines Are Designed to and Will Result In 
the Destruction of All "Freedom of Choice" Plans of
Desegregation.__________________________________________

Freedom of choice plans which afford students "a 
reasonable and conscious opportunity to file for admission 
to any school for which they are eligible without regard to 
their race or color, and have that choice fairly considered 
by the enrolling authorities with other reasonable safe­
guards" have been repeatedly approved by this Court and 
other courts. The quotation is from Gibson v, Dade County. 
272 F.2d 763, decided by this Court on November 24, 1959, 
Among the decisions of this Court approving freedom of 
choice plans are Augustus v. Escambia Countv. 306 F,2d 862, 
decided on July 24, 1962; Calhoun v. Latimer. 321 F,2d 302, 
decided June 17, 1963, and Stell v. Savannah v, Chatham 
County Board of Ed.. 323 F,2d 55, decided June 18, 1964, 
Stell was handed down on June 18, 1964 and the Civil Rights 
Act of 1964 was passed by Congress and signed by the

- 107 -



President on July 2, 1964. The intention of Congress to 
preserve the freedom of choice plans recognized by all the 
courts as meeting constitutional requirements is evidenced 
by the above quoted amendments inserted in the Senate and 
enacted into law expressly prohibiting the assignment of 
students to public schools in order to overcome racial 
imbalance, in the prohibition of any request to transport 
students from one school to another to achieve racial balance 
and the express limitation "provided nothing herein shall ,,, 
enlarge the existing power of the Court to insure compliance 
with constitutional standards". The rule that constitutional 
principles do not require compulsory integration but prevent 
compulsory segregation necessarily carries with it the 
constitutionality of freedom of choice plans.

Since the enactment of the Civil Rights Act of 1964, 
this Courthas repeatedly recognized the constitutionality 
and validity of such plans.

In the case of Lockett y.. Bd. of Ed. of Muscogee County 
School Dist.. 342 F.2d 255, decided by this Court on 
February 24, 1965, the following statement was made by the 
Court:

"We approve the use of a freedom of choice plan, 
provided it is within the limits of the teaching 
of the Stell and Gaines cases."
On the same day in the case of Bivins y. Board of Public

Ed. and Orphanage for Bibb Countv. 342 F.2d 299, this Court
said; • ' ,

- 108 -



"We approved the use of a freedom of choice plan 
there, provided it is within the limits of the 
teaching of the Stell and Gaines cases, Stell v. 
Savannah Chatham County Bd. of Ed., 5 Cir. 1964,
333 F.2d 55r Gaines v. Doucrhertv County Bd. of 
Ed., 5 Cir., 1964, 334 P.2d 983."
The Supreme Court of the United States in the case of 

Gass V . Bd. of Ed.. 373 U.S. 683, 10 L.Ed. 2d 632, 83 S.Ct. 
1405, recognized a constitutional validity of a freedom of 
choice plan when it used the following words in discussing 
a transfer plan which was faulty and restrictive:

"In doing so, we note that if the transfer 
provisions were made available to all students 
regardless of their race and regardless as well 
of the racial composition of the school to 
which he requested transfer, we would have an 
entirely different case. Pupils could then at 
their option (or that of their parents) choose, 
entirely free of any imposed racial consideration, 
to remain in the school of their zone or to 
transfer to another,"
It is useless to multiply authorities. The Guidelines 

do not seek to protect constitutional rights of students or 
of school boards charged with the responsibility of main­
taining their schools and providing for the best interests 
of their students. The only freedom of choice which would 
remain, if the 1966 Guidelines are enforced, would be the 
freedom of choice by the Commissioner of Education. How far 
the 1967 Guidelines would go cannot be foretold. Even if we 
gaze into the crystal ball, the result is obscure.

As pointed out above, freedom of choice plans properly 
and carefully prepared and executed would be restricted and

- 109 -



outlawed by the Commissioner at his pleasure, and he would 
require any other plan desired by him. Under Section 181,54 
a freedom of choice plan would be outlawed in any instance 
where eight per cent or nine per cent of the students 
transferred from segregated schools for the 1965-1966 school 
year if, during the succeeding school year total transfers 
were not at least sixteen per cent to eighteen per cent; 
where the percentage of transfers was four per cent or five 
per cent during the 1965-1966 school year, such plan would 
be outlawed unless the transfers for the succeeding school 
year equaled twelve per cent or fifteen per cent. We have 
pointed out above the numerous othe rprovisions of the 1966 
Guidelines designed to destroy freedom of choice plans,
3. If Made Judicially Effective by This Court, the 1966 
Guidelines Would Destroy the Constitutional Right of
School Boards to Administer Their Schools,------------- -

Numerous decisions of this Court and of the Courts of 
Appeal of other Circuits have recognized the right of school 
boards to assignmeait or classification of students upon 
reasonable and proper educational and academic bases wholly 
unrelated to lace or color. This includes, as stated Boson 
above,assignment "according to their degree of advancement 
or retardation, their ability to learn, on account of their 
health, or for any other legitimate reason". Boson was 
decided on November 30, 1960, Among the cases reiterating

-  110 -



this rule are Calhoun v. Latimer. 321 F.2d 302, decided on
June 17, 1963, which recognized the right of school officials
to "take into account .the residence, academic qualifications,
personal desires, need for particular courses, school
enrollment, available teaching personnel and physical
facilities and 'all other lawful and objective considerations'
but ,,, race cannot be a consideration".

On June 18, 1964, this Court handed down Stell. which
suscinctly stated this constitutional principle as follows:

"In this connection, it goes without saying that 
there is no constitutional prohibition against 
an assignment of individual students to particular 
schools on a basis of intelligence, achievement or 
other aptitudes upon a uniformly administered 
program but race must not be a factor in making 
the assignment. However, this is a question for 
educators and not the Courts,"
Vihen the objections quoted above were advanced by the 

Minority Report of the House Judiciary Committee, pointing 
out the power apparently granted by the House Bill to the 
Commissioner of Education or the department administering 
financial assistance to any program or activity, including 
schools, the Senate inserted the following section in the 
Act:

"Section 410, Nothing in this title shall 
prohibit classification and assignment for 
reasons other than race, color, religion or 
national origin.
It is clearly the express effect of the Act and the 

Congressional intent to preserve such right of local school

- Ill -



boards. These would be utterly destroyed by the Guidelines, 
The Guidelines would require mandatorily that if a student 
does not actually send in or deliver his choice under a 
"freedom of choice plan" by a certain date the local school 
board must assign such student "to the school nearest his 
home where space is available" (Section 181.45 of the 1966 
Guidelines). This completely abrogates the rights preserved 
in all of the cases and by the Act and would require this 
Court to overrule not only the cases mentioned above but 
numerous other cases setting forth the same rule.
4. Adoption Or Enforcement of the 1966 Guidelines Would 
Overrule Decisiins of the Court Recognizing the Duties and 
Responsibilities of School Boards and of District Courts in 
Violation of the Prohibition Outlined in the Civil Rights
_____________________ Act of 1964._________________________

In October, 1964, the Supreme Court of the United States 
decided the second Brown case, reported in 349 U.S. 294, 99 
L.Ed. 1083, 75 S.Ct, 753. The Court recognized that there 
is no uniform pattern vhich may be fashioned to protect the 
constitutional right of students in the orderly desegregation 
of schools. The applicable rule was announced as follows;

"'Pull implementation of thesfe constitu­
tional principles may require solution of varied 
local school problems. School authorities have 
the primary responsibility for elucidating, 
assessing, and solving these problems; courts 
will have to consider whether the action of 
school authorities constitutes good faith

-  112 -



implementation of the governing constitu­
tional principles. Because of their proximity 
to local conditions and the possible need for 
further hearings, the courts which originally 
heard these cases can best perform this 
judicial appraisal.

'"In fashioning and effectuating the 
decrees, the courts will be guided by equitable 
principles. Traditionally, equity has been 
characterized by a practical flexibility in 
shaping its remedies and by a facility for 
adjusting and reconciling public and private ' 
needs.

*  *  4r

"'To that end, the courts may consider problems 
related to administration, arising from the 
physical condition of the school plant, the 
school transportation system, personnel, 
revision of school districts and attendance 
areas into compact units to achieve a system of 
determining admission to the public schools on 
a nonracial basis, and revision of local laws and 
regulations which may be necessary in solving the 
foregoing problems. They will also consider the 
adequacy of any plans the defendants may propose 
to meet these problems and to effectuate a 
transition to a racially nondiscriminatory school 
system. During this period of transition, the 
courts will retain jurisdiction of these cases,'"
Also, in Cooper v. Aaron. 358 U.S. 1, 78 S.Ct. 1401,

3 L,Ed.2d 5, decided in 1958, the Supreme Court said:
"'Of course, in many locations, obedience to 
the duty of desegregation would require the 
immediate general admission of Negro children, 
otherwise qualified as students for their 
appropriate classes, at particular schools.
On the other hand, a District Court, after 
analysis of the relevant factors (which, of 
course, excludes hostility to racial desegre­
gation) , might conclude that justification 
existed for not requiring the present nonse- 
gregated admission of all qualified Negro 
children.'"

-113-



The above determination was quoted by this Court on 
June 17, 1963 as the basic applicable rule in Calhoun v, 
Latimer. 321 P.2d, 302. When Calhoun reached the Supreme 
Court of the United States, as reported in 377 U.S, 263,
12 L,Ed.2d 288, 84 S.Ct, 1235, the effect of the above state­
ment of the law was not weakened. It was pointed out, 
however, as has been held by this and other courts,that the 
lapse of time requires speedier action by the local school 
boards and the District Courts. But the same duties and 
responsibilities still rest upon the school boards and the 
District Courts. On June 18, 1964, the Court decided Stell. 
reviewing the decision of the Supreme Court in Calhoun, in 
gofiS V. Bd. of Ed. of City of Knoxville. 373 U.S. 683,
83 S.Ct. 1405, 10 L.Ed.2d 632, and Watson v. Memphis. 373 
U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 429, and then recognized 
the necessity of considering local conditions (as distin­
guished from the adoption of a nuiform pattern determined 
unilaterally on a nation-wide basis) as follows:

"The decision of this court in Calhoun v,
Latimer, supra, points out that the second 
Brown decision as well as Cooper v. Aaron,
1958, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5, 
made it plain that while the implementation of 
the constitutional priciples which make the 
elimination of racial discrimination in public 
education necessary might entail some delay, 
in all events the burden was to rest upon the 
school boards to establish that:

... such time [delay] is necessary in 
the public interest and is consistent with good

-114-



faith compliance at the earliest practicable 
date. la...that ,thfi-S9mrt6..may. ..CQnsi4?y.
problems related to administration, arising 
from the physical condition of the school 
p.IaGL̂ ĝ-.:a?̂  aghgpl -tj.angpQgtatign syjat;.effi/ 
personnel, revision of school districts .aiLd 
attendance areas into compact units■to achieve 
a system of determining admission to the pub,lip 
schools on a nonracial basis....
In response to the objection made by the Minority Report 

of the House Judiciary Committee and particularly that the 
Act was designed to impair "the right of Boards of Trustees 
of public and private schools and colleges to determine the 
handling of students and teaching staffs"^ the Senate 
inserted and the House accepted the prohibition appearing in 
Section 407(a) "provided that nothing herein shall ... 
enlarge the existing power of the Court to insure compliance 
with constitutional standards". The (a) prohibition of 
transfer or assignment of students to other schools in order 
to overcome racial balance, (b) the preservation of the right 
to school boards of "classification and assignment for 
reasons other than race, color, religion or national origin", 
and (c) the express exception from Title VI for any authority 
for a department or agency to act "with respect to any 
employment practice of any employer" demonstrate the 
congressional intent to maintain the constitutional principles 
set forth in the above cases. After the adoption of the Act, 
this Court has several times recognized the responsibility 
of school boards and District Courts as a continuing

-115-



Constitutional principle. In Lockett v. Board of Ed. of 
Muscogee County. 342 F,2d 225, decided by this Court on
February 24, 1965, and in Price v. Dennison Independent
School District. 348 F.2d 1010, decided July 2, 1965,
the responsibility of the school boards and the District
Courts was set out.

We have detailed above the numerous provisions of the 
1966 Guidelines which would destroy the constitutional 
principles repeatedly announced by the courts, not only 
of this Circuit but of other circuits. The unlimited 
extension of power by the Commissioner of Education in the 
1966 Guidelines as compared by the 1965 Guidelines, the 
broad positions taken by the Attorney General in his 
brief, and the history of the vast extension of federal 
control over public education, all demonstrate that if either 
of the questions asked by the Court is answered in the 
affirmative, the minority members of the House Judiciary 
Committee would have been correct, even though Congress 
thereafter acted to prevent the accomplishment of the 
very objectives here involved.

-116-



5. The 1966 Guidelines by both affirmative and negative pro­
visions require compulsory transfer of students under "freedom 
of choice plans,” contrary to the Act and constitutional prin­
ciples announced by this Court.

As detailed above, the Guidelines require transfer to ac­
complish racial balance or remove racial imbalance by an arbi­
trary increasing formula (substituting the words "so that 
schools shall not be identifiable as intended for students of 
a particular race, color or national origin" for the words 
"racial balance"), They also arbitrarily require any school 
board to transfer a student who does not make an affirmative 
choice "to the school nearest!; his home where space is avail- 
able," regardless of all other considerations.

When a student has attended one school with his friends 
for one to eleven years, a compulsory assignment to another 
school when he fails to deliver an affirmative choice, is an 
invasion of his constitutional rights. This Court has long 
recognized that if a transfer system properly designed and ad­
ministered (with true and proper freedom of choice thereunder) 
it meets all constitutional requirements. The brief filed by 
the Attorney General attacks such a system and the 1966 Guide­
lines would destroy it. Assignments would be compelled accord­
ing to unilateral determinations of the Commissioner of Educa­
tion,

On June 17, 1963 this Court reiterated the rule announced

-118-



by Boson and recognized in 1961 by the Fourth Circuit in Dod~ 
son V, School Board of City of Charlottesville*289 F.2d 439, 
which protects the constitutional right of students to freely 
transfer to the school of their choice, subject to reasonable 
and proper regulation by local school boards under the super­
vision of the District Courts as follows:

But, as this coiart was at pains to say in Boson v.
Rippv, a school board has ample authority to trans­
fer pupils from school to school upon any reason­
able and legitimate basis without regard to race or 
color. The New Orleans and Houston plans contain 
provisions in point. The Charlottesville, Virginia 
plan also demonstrates this teaching. Once assign­
ments have been made there on the basis of residence, 
transfers are permitted upon request of parents or 
students, and school officials are to take into ac­
count residence, academic qualifications, personal 
desires, need for particular courses, school enroll­
ment, available teaching personnel aid physical faci­
lities, and "other lawful and objective considera­
tions," but the court made it clear upon review of 
the plan that race cannot be a consideration. Dod­
son V, School Board of City of Charlottesville, 4 
Cir., 1961, 289 F.2d 439, Calhoun v, Latimer, 321 
F2d 302, 309 (Sth.Cir.1963V'[Emphasis added]
On June 18, 1964, this Court rendered the decision in 

Stell in which it was expressly held that in reviewing actions 
of school boards the District Courts "may consider problems 
related to administration, arising from the physical condition 
of the school plant, the school transportation system, person­
nel, revision of school districts and attendance areas into 
compact units to achieve its system of determining admission 
to the pxiblic schools on a non-racial basis," And on the same 
day in Davis, this Court emphasized "the responsibility and

-117-



duty resting on school boards to provide a constitutional plan 
of desegregation'' and "the retention of jurisdiction by the 
District Courts for further implementation and supervision."

Congress also had before it the decision of the Supreme 
Court of the United States in Goss v. Board of Education^ 373 
U.S. 683, 10 L.Ed,2d 632, 83 S.Ct. 1405 decided on June 3,1963, 
This included the statement of the constitutional principals 
quoted above from Goss and also the following statement:

"This is not to say that appropriate tramsfer pro­
visions. upon the parents* request, consistent with 
sound school administration and not based upon any 
state-inposed racial coiv5iticns would fall, Like-- 
wise , we would have a different case here if the 
transfer provisions were unrestricted , allowing 
transfers to or from any school regardless of the 
race of the majority therein,"
When the Civil Rights Act of 1964 was adopted on July 2, 

1964, Congress inserted the restrictions quoted above express­
ly prohibiting any official or court of the United States from 
requiring transportation of pupils from one school to another 
in order to achieve racial balance and the assignment to pub­
lic schools for the same purpose. Congress further provided 
that nothing in the Act would "enlarge the existing power of 
the courts to insure compliance with the constitutional stand­
ards" and excepted from Title VI the power of any agency or 
department to act "with respect to any employment practice of 
any eit^loyer". All these actions were calculated to preserve 
the constitutional rights theretofore recognized by the courts

-119-



as being vested in the school boards and the district courts.
Since the adoption of the Act, the courts have recognized 

that the constitutional principles under which the powers of 
local school boards as political subdivisions of the States 
are preserved by the Tenth Amendment and unaffected by the 
Fourteenth Amendment and the fact that the district courts are 
the entities on the federal judicial system most nearly able 
to arrive at a reasonable and just conclusion upon problems 
involving many local problems.

The most recent decision by this court since the enactment 
of the ct which affirms the constitutional validity of a free­
dom of choice plan and of reasonable and proper transfer pro­
visions thereunder appears in Singleton v, Jackson Municipal 
Separate School District, 355 F,2d 865, decided on January 6, 
1966, in which the Court held as follows:

"At this stage in the history of desegregation in 
the deep south a "freedom of choice plan is an accep­
table method for a school board to use in fulfilling 
its duty to integrate the school system. In the long 
run, it is hardly possible that schools will be ad­
ministered on any such haphazard basis. Although 
this Court has approved freedom of choice plans, we 
have conditioned our approval on proper notice to 
the children and their parents and also on the abo­
lition of the dual geographic zones as the basis 
for assignment. As we said in Lockett;

'*We approve the use of a freedom of choice 
plan provided it is within the limits of 
the teaching of the Stell and Gaines cases.*"

Freedom of choice necessarily includes freedom to choose
to transfer to another school subject to reasonable local ad-

- 120-



In the recent case of Bradley v. Richmond, 382 U.S. 103,
15 L.Ed.2d 187, rendered by the Supreme Court of the United 
States on Novenber 15, 1965, that Court recognized the United 
States on November 15, 1965, that Court recognized the func­
tion of the District Courts in our judicial system in the pro­
tection of the constitutional right of students. The Supreme 
Court stated this rule as follows:

"The petitions for writs of certiorari to the 
Court of Appeals for the Fourth Circuit are granted 
for the purpose of deciding whether it is proper to 
approve school desegregation plans without consider­
ing, at a full evidentiary hearing, the impact on 
those plans of faculty allocation on an alleged ra­
cial basis.

"We hold that petitioners were entitled to such 
full evidentiary hearings upon their contention.

"The'judgments of the Court of Appeals are vaca­
ted and the cases are remanded to the District Court 
for evidentiary hearings consistent with this opin­
ion. We, of course, express no views of the merits 
of the desegregation plans submitted, nor is further 
judicial review precluded in the cases following the 
hearings,"
If the 1966 Guidelines are adopted or if they are given 

great weight, or otherwise govern the action of this Court and 
the District Courts, the varying directives of the Commissioner 
of Education (acting contrary to the express provisions of the 
Civil Rights Act of 1964 and issued unilaterally without a hear­
ing and without opportunity of the school boards to be heard) 
will be substituted for the constitutional rights preserved to 
such boards by the Tenth Amendment. Even the discretionary 
rights of the District Courts would be destroyed.

- 121-



6, The immediate compulsory integration of the faculty 
and the employees of the schools to attain racial balance re­
quired by the 1966 Guidelines is not authorized by the Act 
and is contrary to the decisions of the Courts. The adoption 
of such Guidelines would necessarily overrule these decisions. 
We have pointed out above tbe specific requirements of the 
1966 Guidelines directing compulsory integration of facilities 
and other school employees. Under the Guidelines it is manda­
tory that such integration be accomplished by the school boarci 
without delay to the extent necessary to provide racial bal­
ance in all schools within the single integrated system. To 
disguise the effect, however, the requirement of racial bal­
ance appears in §181.13(d) by use of the following words*

(d) Past Assignments. The pattern of assignment 
of teachers and other professional staff among the 
various schools of a system may not be such that 
schools are identifiable as intended for students 
of a particular race, color, or national origin, 
or such that teachers or other professional staff 
of a particular race are concentrated in those 
schools where all, or the majority of, the students 
are of that race. Each school system has a positive 
duty to make staff assignments and reassignments ne­
cessary to eliminate past discriminatory asssignment
oatternc
Prior to the adoption of the Act on July 2, 1964, this 

Court had held as follows in Augustus v. Board of Public Edu­
cation, 306 F.2d 862, decided July 24, 1962;

"...We hold, therefore, that, at the then stage of 
the proceeding, the district court erred in sustain­
ing the defendants' motion to strike the allegations 
relating to the assignments of teachers, principals 
and other school personnel on the basis of race. In

- 122-



the exercise of its discretion, however, the dis­
trict court may well decide to postpone the con­
sideration and determination of that question un~ 
til the desegregation of the pupils has either 
been accomplished or has made substantial progress."
Although the 1966 Guidelines are void in this connection 

because of the prohibition in Title VI, these cases are govern­
ed by the constitutional principles in Lockett v. Bd, of Ed. 
of Muscogee County, 342 F.2d 225 as follows:

"What we attempted to do in the five cases 
of last summer, heretofore discussed, was to 
lay out minimal standards with some degree of 
discretion left in the hope that school boards 
and the District Courts where school boards 
fail, would invoke such standards. That is 
still our hope and purpose and it will be up 
to the school Board here to fill the interstices 
which will remain in the implementation of any 
plan for transition from a segregated to a 
desegregated school system. Implementation 
is, of course, best left to the school Board 
where there is a willingness to assume the 
responsibility that is so manifest under the 
law.

4r *  *

"We, as was the District Court, are willing to 
rely on the integrity and good faith of the 
members of the school Board where they 
represent, as they have here, an intention to 
effectuate the law."
We will not burden the brief with additional quotations 

from this Court which are available to the same effect. The 
Supreme Court of the United States considered the effect of 
desegregation of the faculties of schools in Rogers v. Paul,
15 L. Ed.2d 265 decided on December 6, 1965, and also in the 
Bradley v. School Board of City of Richmond, 15 L.Ed.2d 187 de­
cided on November 15, 1965. In these cases the Court held that

123



students did have a right for the district courts to consider 
the effect of the status of the teaching and professional staff 
upon their status as students. VThile the Court held that con­
sideration of this matter might not be deffered until "all di­
rect discrimination in the assignment of pupils has been eli­
minated", it also held that it was the duty of the district 
courts to hear evidence and reach a determination thereof.

In Singleton, this Court commented upon the holding in 
Bradley and held that in view of the fact that the plan adopt­
ed by the school board would result in the Jackson School Sys­
tem being totally desegregated by September, 1957, "We regard 
it as essential that the plan provide an adequate start toward 
the elimination of race as a basis for the employment and allo­
cation of teachers, administrators and other personnel".

No authority was granted to the Commissioner of Education 
under Title IV of the Act to make any such requiremert and the 
authority to adopt rules, regulations and orders granted to 
HEW contained the restriction that "Nothing contained in this 
Title shall be construed to authorize action under this Title 
by any department or agency with respect to any employment 
practice of any employer". Although the Guidelines violate 
the statute, the pending cases are governed by the judicial 
decisions and hence the above principles mentioned are appli­
cable to them. The compulsory requirements of the 1966 Guide­
lines are a far cry from the constitutional basis in accord-

124



ance with which the school boards and District Courts must ne­
cessarily act. The Guidelines would compel integration of 
faculties without any relation whatsoever to the racial composi­
tion of the student body of the schools involved. It would 
violate the principles laid in Bradley, Lockett and Singleton 
to force school boards to be governed by such Guidelines.

7, The 1966 Guidelines would require overruling or ma­
terially altering decisions of this Court and of other courts 
in many additional particulars. Several other instances have 
been covered elsewhere in this brief. Ore of the requirements 
of the 1966 Guidelines appears in 5181,34 requiring an indivi­
dual notice of choice to be mailed by first class mail. In 
Singleton, this Court remarked that "We find the government's 
proxy's position unclear, if not unreasonable." While this 
was not particularly directed toward the matter of notice, it 
is certainly applicable thereto. In Singleton, this Court held 
that a plan is sufficient which profides for publication of the 
plan for three consecurive weeks in the newspaper having gene­
ral circulation throughout the district and that the board 
would use newspaper, radio and television facilities to inform 
the pupils and their parents of their rights. This Court said 
such notice was adequate even though it does not provide for 
individual notices to students and their parents.

125



INSOFAR AS THE 1966 GUIDELINES EXCEED THE STATU­
TORY AUTHORITY GRANTED HEW AND THE COMMISSIONER 
OF EDUCATION, THEY ARE VOID AND OF NO EFFECT.
INSOFAR AS THEY FALL WITHIN SUCH AUTHORITY THEY 
HAVE NO MORE DIGNITY NOR LEGAL EFFECT THAN A 
RULING, MEMORANDUM OR DIRECTIVE ISSUED BY ANY 
OTHER ADMINISTRATIVE AGENCY AND DEPARTMENT.
We recognize that this Court has favorably considered the 

April, 1965 Guidelines entitled "General Statement of Policies 
under Title VI of the Civil Rights Act of 1964 Respecting De­
segregation of Elementary and Secondary School." Elsewhere in 
this brief we point out the startling and material differences 
between that document and the 1966 Guidelines issued in March 
of this year. We have already pointed out many of the require­
ments of the 1966 Guidelines which either directly violate ex­
press provisions of the Civil Rights Act of 1964 or which are 
not authorized by the Act, we have also pointed out many con­
flicts with constitutional principles announced by this Court 
and other courts. There are other portions of such Guidelines 
which fall in the above categories.

Title VII of the Act concerning "Equal Employment Oppor­
tunity" provides in Section 713 (a) that the Commissioner shall 
have authority to issue procedural regulations to carry out the 
provisions of that title, subject to the limitation "that regu­
lations issued under this section shall be in conformity with 
the standards and limitations of the Administrative Procedure 
Act," No such protection is afforded in Title VI, Section 602 
permits the issuance of rules, regulations and orders of gener-

126



Al applicability by the nxunerous federal departments and agen­
cies extending federal financial assistance to any program or 
activity. It requires that the same "shall be consistent with 
achievement of the objectives of the statute authorizing the 
financial assistance in connection with which action is taken. 
No such rule, regulation or order shall become effective unless 
and until approved by the President." The "Revised Statement 
of Policies for School Desegregation Plans under Title VI of 
the civil Rights Act of 1964," referred to as the 1966 Guide­
lines, have not been approved by the President. They have not 
been adopted in conformity with the Administrative Procedure 
Act. Even if they had been approved by the President, however, 
they would not be effective where they conflict with prohibi­
tions in the Act, or where they exceed the authority granted 
thereby. In any event,they have no more legal standing nor 
authority than any statement of policy, departmental memoran­
da, staff rulings or other similar actions by administrative 
bodies or departments.

The scope of restrictions which may be placed by Congress 
upon the expenditure of public funds is far broader than the 
extent to which the Fourteenth Amendment restricts the powers 
reserved to the states and their political subdivisions by the 
Tenth Amendment. On the other hand. Congress may place restric­
tions upon actions of administrative departments or agencies 
which are not required by constitutional limitations,

127



In considering the 1966 Guidelines and whether or not they 
should be judicially effective by order of this Court or should 
govern its actions, we also should remember that they have been 
unilaterally devised, have been issued without a hearing and 
without opportunity of judicial review.

We emphasize that references to the HEW Guidelines in both 
appearances of Singleton and in Price are to the 1965 Guidelines 
In Price it was said "These executive standards, perhaps long 
overdue, are welcome," It was also stated that "By the 1964 
Act and the action of HEW, administration is largely where it 
ought to be,,,in the hands of the executive and its agencies 
with the function of the judiciary confined to those rare cases 
presenting justiciable, not operational, questions,"

In Singleton, which considered HEW's statement of April, 
1965,this co\art stated that in certain school districts and in 
certain respects the HEW standards may be too low to meet the 
constitutional requirements and then hopefully said "We doubt 
that they would ever be too high We believe that the unila­
teral action of the United States Commissioner of Education in 
March, 1966, taken less than twelve months after the issuance 
of the first set of directives, has demonstrated that this hope 
was in vain.

T h is  C o u rt made th e  fo l lo w in g  sta tem en t in  S in g le t o n i

We consider it important, to make clear that although 
we "attach great weight to the standards established 
by the Office of Education," 348 F,2d 729, we do not

128



abdicate our judicial responsibility for deter­
mining whether a school desegregation plan vio­
lates federally guaranteed rights. In this re­
spect we agree with the Eighth Circuit in Kemp v.
Beasley^ 352 F,2d 14, decided October 7, 1965:
“It is for the courts and the courts alone, to 
determine when the operation of a school system 
violates rights guaranteed by the Constitution."
348 P.2d 1012 [Emphasis added]
In Kemp, quoted above, the Eighth Circuit quoted from the 

decision of the Fifth Circuit in the Singleton case, in which 
reference was made to the HEW guidelines,and theustatement was 
made by the Court, "If judicial standards are lower, recalci­
trant school boards in effect will receive a premium for recal­
citrance; the more the intransigence, the bigger the bonus." 
The Court then continued:

While this argument for high and uniform standards 
should be kept in mind by the courts, we are not in 
complete agreement with the conclusion of the Fifth 
Circuit. It is for the courts, and the courts alone, 
to determine when the operation of a school system 
violates righx.s guaranteed bv the Constitution. The 
constitutional right of plaintiffs to attend a nonse- .. 
gregated school is not dependent upon federally fi­
nanced programs, but is an inherent right that is com­
pletely separate and apart from the executive func­
tion of regulating and financing schools. Furthermore, 
we feel that the regulations themselves contemplate 
judicial acceptance of something which differes from 
the executive guidelines. Bv allowing acceptance of 
a court approved plan in lieu of one approved by the 
Department of Education,the regulations recognize 
the need for day-bv-day and case-bv-case flexibility 
that can be supplied by the Federal courts sitting in 
the various districts.

Therefore, to the end of promoting a degree of uni­
formity and discouraging reluctant school boards from 
reaping a benefit from their reluctance the courts 
should endeavor to model their standards after those 
promulgated by the executive. They are not bound,

129



however, and when circvunstances dictate, 
the coxicts may require something itvore, less or 
different from the HEW guidelines. [Emphasis 
added]
The HEW Guidelines fall legally within the classification 

of rulings by the Treasury Department and other administrative 
agencies. Various departments prepare similar directives vari­
ously referred to as Solicitor's Memoranda, Department Commit­
tee Regulations, Advisory Board Memoranda, etc. One of the 
most recent announcements by this Court of the attitude of the 
coTorts toward such rules, directives, or memoranda was made in 
the case of U.S. v. Mississippi Chemical Corn., 326 P.2d 569 
(Sth.Cir.1964) where the court said:

As it is stated in Helvering v, Edison Brothers . 
Stores, 133 P.2d 575: "The Treastarv Department can?t 
not, bv interpretative regulations, make income of 
that which is not income within the meaning of the 
Revenue Acts of Congress." Compare the statement 
of the Supreme Court in Blatt Co. v. United States,
305 U.S. 267: "Treasury regulations can add nothing 
to income as defined by Congress." Treasury Regula­
tions and Treasury Decisions, however, are not in­
volved in the issue for decision here. The taxpayer's 
position is that the Commissioner cannot, bv solici­
tor's memoranda, departmental committee recommenda­
tions, or rulings, or bv his own private rulings in 
this case, make taucable income to the cooperative 
of that which is tcixable income to the patron... •

The a p p e l la n t  has qu oted  o r  c i t e d  t h i r t e e n  d e p a r t­
m en ta l memoranda, r u l in g s  and recom m endations in  an 
attem p t t o  e s t a b l i s h  " lo n g  c o n t in u e d  a d m in is t r a t iv e  
p r a c t ic e "  c o n c e rn in g  th e  e x c lu s io n  o f  " t ru e  p a t ro n ­
age d iv id e n d s ,"  When num erous c o u r t s  have r e f e r r e d  
t o  t h e i r  r e c o g n it io n  o f  lo n g  c o n t in u e d  a d m in is t r a t iv e  
p r a c t ic e  c o n c e rn in g  p a tro n a g e  d iv id e n d s ,  th e y  do n ot  
a d ju d ic a te  t h a t  t h i s  p r a c t ic e  i s  th e  o n ly  sov irce , o r  
r e a l  b a s is ,  o f  th e  e x c lu s io n  from  g ro s s  income o f  a 
c o o p e r a t iv e  o f  p a tro n a g e  r e b a t e s .  The a d m in is t ra t iv e  
p r a c t ic e s  must conform  t o  th e  law , th e y  do n ot make 
th e  la w . . .  .

130



a As a matter of fact and law, administrative
practice has no effect upon the determination of 
what constitutes gross income, except insofar as 
the practice is in accord with the rules of law 
governing that determination. [Emphasis added]
Another determination of the nature of this type of ad­

ministrative directive or ruling is contained in the opinion of 
this’Court in the case of United States v, Bennett, 186 F.2d 
407, in which the Court said through Chief Judge Hutcheson;

On the basis of these rulings of the Income Tax 
Unit of the Bureau# made to order for the commis­
sioner by his legal staff, and having no more bind­
ing or legal force than the opinion of any other law- 
yer, Fleming v. A. H. Belo Corp., 5 Cir. 121 F.2d207, 
the collector claims: that the statute, though intend­
ed as a relief measure, does not relieve these tax­
payers; that this is so simply because it is known at 
the time the calf is dropped that, whether it goes to 
market as a calf or as a worn out breeder, to market 
it will go.,. ,

The construction contended for by the taxpayers 
seems the more reasonable to us. It has the support 
of the Albright v. United States, 8 Cir., 173 F.2d 339, 
and of two tax cases, Emerson v. Commissioner, 12 T.C.
875; Fawn Lake Ranch Co. v. Commissioner, 12 T.C. 1139; 
and in principle of Delsing v. United States, 5 Cir.,
1951, 186 F.2d 59. [Emphasis added]
The reluctance of the courts to accept without question 

tinilateral action of administrative departments, particularly 
where they have become Regulations without approval, publica­
tion and opportunity for a hearing, as required by the appli­
cable statute, is illustrated by the decision of the First Cir­
cuit in Hackett v. Commissioner, 159 F.2d 121 (1946), as follows

The second point urged upon us by petitioners is 
the effect of long standing administrative construc­
tion assumed to have gained Congressional cognizance 
and hence endorsement due to reenactment of the sta-

131



tute without change by subsequent revenue acts 
prior to 1942. Petitioners refer to

I.T. 2874, XIV-1 Cuia.Bull.p.49 (1935);
I.T. 2891, XIV-1 Cvmi.Bull.p.50 (1935); 

l.'i. lvT.,2984,^ XV^l Cum.pull,p.87 (1936) ;
I.T. 3292, 1939-1 Cum.BiilL. p.84 and 
I.T. 3346, 1940-1 Cum. Bull.p. 62.

... It was indicated that there and is reiterated 
here that, when the Supreme Court was referring to 
the effect of statutory reenactment on long stand­
ing administrative interpretation, it had before it 
Treasury Regulations and Decisions, not mere rulings 
of the Commissioner on isolated transactions which 
do not commit the Treasury to any interpretation of 
the law. Helvering v. New York Times Co., 1934, 293 
U.S. 455, 468, 54 S.Ct.806, 78 L.Ed.1361. Moreover, 
practicality requires us to assert doubt as to the 
breadth of Congressional fcuniliarity with, and en­
dorsement of, the myriad rulings and interpretations 
of the Commissioner. See 1 Mertens, Federal Income 
Taxation (1942) Sec.3.24. [Emphasis added]
The xiniversal acceptance of this distinction is demonstra­

ted by the opinion of the Sixth Circuit (citing the Third and 
Ninth Circuits) in the case of Chattanooga Auto Club v. Commis­
sioner, 182 P.2d 551 (1950);

The curgioment is made on behalf of petitioners L 
that former long-standing r\alings of the Bureau of 

J Internal Revenue exenpted automobile clvibs from taxa­
tion, and that the repeated reenactment by Congress 
of Section 101(9) indicated that Congress approved 
the exeirption. This same arg^^ment was rejected re­
cently upon sound reasoning by the Covirt of Aj-paals 
for the Third Circuit in Keystone Automobile Club v. 
Commissioner of Internal Revenue, 3 Cir., 18.1 F^2d 
402, See also Smyth v, California State Autoiriobile 
Ass'n, 9 Cir., 175 F.2d 752,

The rulings relied upon bv petitioners were not 
even Treasxirv Regulations of general applicability, 
but were mere departmental rxalings. general counsel 
memoranda, and office decisions. The Supreme court 
in Biddle v. Commissioner, 302 U.S. 573, 582, 58 S.
Ct.379, 383, 82 L.Ed.431, stated that ''depart.TTir:rtal 
rulings not promulgated bv the Secretary fof the

132



T re a su ry ]  a r e c f  l i t t l e  a id  in  in t e r p r e t in g  a ta x  
s t a t u t e . ”

A similar contention was made before the First Circuit con­
cerning the weight of long continued administrative practice 
and policy as reflected in rulings of the staff. This conten­
tion was rejected in the case of U.S. v, Higginson. 238 P.2d 
439 (1st.Cir.1956) as follows:

Another contention presented by the Government 
is that an administrative ruling, I.T.1733, II-2 
Cum.Bull. 169 (1923), requires that on the facts 
before us trust income be made taxable to the trus­
tees ... .

Admittedly, treasury regulations and interpre^- 
tations long continued without sxabstantial change 
are entitled to great weight. Helvering v. Winmill,
1938, 305 U . S .  79, 59 S . C t .  45, 83 L.Ed.52. B u t, 
since I.T.1733 is a ruling, it does not rise to the 
stature of a regulation and does not have the force 
thereof. H.L. McBride, 1955, 23 T.C. 901; The Nivi- 
son-Weiskopf Co., 1952, 18 T.C. 1025.[Emphasis added]
Of course, even Administrative Regxilations and Administra­

tive Decisions are subject to construction by the courts and 
must conform to the rules laid down by the courts. The rule 
is stated by the Supreme Court in Manhattan G.E. Company v. 
Commissioner, 297 U. S. 129, 80 L.Ed. 528 (1936), follows:

The power of an administrative officer or boJ’rr to 
administer a federal statute and to prescribe t-tles 
and regulations to that end is not the powov: tc itake 
law - for no such power can be delegated by *'!ovigress- 
but the power to adopt regulations to carry into ef­
fect the will of Congress is expressed by the statute.
A r e g u la t io n  w hich  does n o t do t h i s ,  b u t  opf;i'ohes to  
c r e a t e  a r u le  o u t o f  harmony w ith  th e  statu-tie, i s  a 
mere n \ i l l i t y .  Lynch  v .  T i ld e n  P ro du ce  C o . ,  U S .
315, 320-322, 68 L.Ed.1034-1036, 44 S.Ct.488; filler 
v. United States, 294 U.S. 435, 439, 440, 7̂; t y-l.
977,980, 981, 55 S.Ct. 440, and cases cited. And not

133



only must a regulation, in order to be valid, be 
consistent with the statute, but it must be rea­
sonable. International R, Co. v, Davidson, 257 
U. S. 506, 514, 66 L.Ed. 341,346, 42 L.Ed.179.
The o r i g i n a l  r e g u la t io n  as a p p l ie d  t o  a s i t u a t io n  
l i k e  t h a t  under re v ie w  i s  b o th  in c o n s is t e n t  w ith  
th e  s t a t u t e  and u n re a s o n a b le . [Em phasis added]

In the case at bar the Department of Health, Education and 
Welfare, through its legal voice, is attempting to make law by 
the unilateral issuance of guidelines which do not rise to the 
dignity of administrative actions comparable to"Treasury Regu­
lations and Dec is ions "issued by the Depeirtment of the Treasury. 
Even Administrative Regulations and Decisions promulgated in 
accordance with the applicable statute cannot make law. in the 
case of Helverinq v. Edison Brothers Stores. 133 F.2d 575 (8th 
Cir.1943), the Court said:

The principles controlling in the decision of the 
questions stated are established. The Treasury 
Department cannot, by interpretative regulations, 
make incoire o^ that which is not income within the 
meaning of the Revenue Acts of Congress, nor can 
Congress, without apportionment, tax as income that 
which is not income within the meaning of the Six­
teenth Amendment. Eisner v. Macoiriber, 252 u.S. .189,
40 S.ct. 189, 64 L.Ed. 521, 9 ALR 1570; M. E. F.-lt 
Co. v. United States, 305 U.S. 267, 59 S.Ct.
83 L.Ed.167.
This rule was succinctly stated by the Suprer.,'- r rr.rt in 

Blatt Co. v. United States. 305 U.S. 367, 83 L.Ed K'^ >.?-938) 
when it said: ‘‘Treasxiry regulations can add nothin- to i.ncome 
as defined bv Congress."

In conclusion, we earnestly request the Cc.-i'- -.o ^ive
full and earnest consideration to the appellees' por.icion and

134