Adams v. Bibb County Board of Education and Orphanage of Bibb County Brief for Plaintiffs-Appellants

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE
ELEVENTH CIRCUIT 

No. 84-8384

JULIUS C. ADAMS, et al.,
Plaint if fs-Appe Hants, 

v.
BIBB COUNTY BOARD OF EDUCATION 

AND ORPHANAGE OF BIBB COUNTY, et al.,
Defendants-Appellees.

On Appeal From The United States District Court 
For The Middle District Of Georgia 

Macon Division

BRIEF FOR PLAINTIFFS-APPELLANTS

JULIUS LeVONNE CHAMBERS 
JAMES M. NABRIT III 
CHARLES STEPHEN RALSTON 
THEODORE M. SHAW 

16th Floor 99 Hudson Street 
New York, N.Y. 10013 
(212) 219-1900

THOMAS M. JACKSON 
655 New Street 
Macon, GA 31201 
(912) 746-2370

Attorneys for Plaintiffs-Appellants



TABLE OF CONTENTS

Page

Certificate of Interest Persons .................  i
Statement Regarding Preference ......................  111
Statement Regarding Oral Argument ................  1V
Table of Cases ..................................  v
Questions Presented ..................................  1
Statement of the Case ................................  2

1. History of the Litigation ..............  2
2. The 1978 Consent Decree and Subsequent

History ............................  H
3. The Proceedings below ..................  16

Summary of Argument..............................  19
Argument ......................................... 21

I. The District Court Erred When It 
Applied Incorrect Legal Standards 
For Reviewing The School Board's
Plan .................................... 21

II. The District Court Erred When It 
Approved A Plan Which Placed 
Disproportionate Burdens On The
Black Plaintiffs .......................  26

III. The District Court Erred When It 
Refused To Find The Board To Be 
In Violation Of The September 5,
1978 Order As Augmented By The
August 8, 1979 Order ...................  33



Page

IV. The District Court Erred When It Limited The Scope Of The March 5, 
1984 Hearing And Placed The Burden 
Of Proof On Plaintiffs ..........

Conclusion 37

Cerificate of Service 39



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE
ELEVENTH CIRCUIT 

No. 84-8384

JULIUS C. ADAMS, et al.,
Plaintiffs - Appe Hants, 
v.

BIBB COUNTY BOARD OF EDUCATION 
AND ORPHANAGE OF BIBB COUNTY, et al.,

Defendants-Appellees.

On Appeal From The United States District Court 
For The Middle District Of Georgia 

Macon Division

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record for plaintiffs-appel- 
lants certifies that the following listed parties have an 
interest in the outcome of this action.

1. The plaintiffs-appellants are:
Mr. and Mrs. Julius C. Adams, Mr. Andrew Dillard,

Mrs. Mary E. Deshazier, Mrs. Minnie Seabrooks, Mr. Alfred 
Sandifer, Mr. and Mrs. Melvin Cheney, Mr. and Mrs. James 
Mays, Mrs. Lucille Wells, Mr. and Mrs. Albert Hill, Mrs.
Thelma Bradley, Mr. and Mrs. Charles H. Blackmon, Mrs. Grade 
Sandifer, Mrs. Irene Mallory, Mr. and Mrs. Joseph Rodgers,
Mr. and Mrs. J. C. Walker, Mr. Walter Williams and Mrs. Lillie

1



M. White, by themselves and on behalf of their minor child or 
children enrolled in Bibb County public schools, and on behalf 
of the class of all black children attending those schools.

2. The defendants are Dr. Thomas E. Hagler, Superinten­
dent, Mr. William S. Hutchings, Mr. Ed DeFore, Mr. William A. 
Lane, Dr. R. J. Martin, Mr. Ken Priester, Mrs. Judy Townsend, 
Dr. Melvyn Williams, Mr. T. Louie Wood, Jr., Mr. George Israel 
(Major), Mr. Earl Zimmerman, County Commissioner, members of 
the Bibb County Board of Education, a public body corporate 
under the laws of Georgia.

These representations are made pursuant to Rule 22(f)(2) 
of the Local Rules for the United States Court of Appeals for 
the Eleventh Circuit in order that judges of this Court, 
inter alia, may evaluate possible disqualification or recusal.

Respectfully submitted,

Counsel for Plamtifts-Appellants

1 1



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE
ELEVENTH CIRCUIT 

No. 84-8384

JULIUS C. ADAMS, et al.,
Plaintiffs-Appe Hants,

BIBB COUNTY BOARD OF EDUCATION 
AND ORPHANAGE OF BIBB COUNTY, et al.,

Defendants-Appellees.

On Appeal From The United States District Court 
For The Middle District Of Georgia 

Macon Division

v .

STATEMENT REGARDING PREFERENCE

In accordance with Local Rule 22(f)(3) plaintiffs-appel- 
lants state that this case is not entitled to preference in
disposition and processing.

Respectfully submitted,

Counsel tor Plaintitts-Appeiiants

in



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE
ELEVENTH CIRCUIT 

No. 84-8384

JULIUS C. ADAMS, et al. ,
Plaintiffs-Appellants,

BIBB COUNTY BOARD OF EDUCATION 
AND ORPHANAGE OF BIBB COUNTY, et al.,

Defendants-Appellees.

On Appeal From The United States District Court 
For The Middle District Of Georgia 

Macon Division

In accordance with Local Rule 22(f)(4) plaintiffs-appel- 
lants suggest that the decision of the court below rests on 
clear legal error and may be summarily reversed. However, in 
light of the length and complexity of the procedural history 
of this case, oral argument would be of assistance to the 
Court.

v .

STATEMENT REGARDING ORAL ARGUMENT

Respectfully submitted,

Counsel tor Plaintirrs-Appeilants

rv



TABLE OF CASES

Page

Arlington Heights v. Metropolitan Housing Corp.,
4-29 U.S. 252 (1977) ............................  24-

Arvizu v. Waco Independent School District,
495 F. 2d 499 (5th Cir. 1974) ...................  28,32

Bell v. West Point Municipal Separate SchoolDistricts, 446 F. 2d 1362 (5th Cir. 1971)........  28
Bivins v. Board of Education and Orphanage for

Bibb County, 342 F.2d 229 (5th Cir. 1965)......  2
Bivins v. Board of Education and Orphanage forBibb County, 284 F. Supp. 888 (M.D. Ga. 1967) .... 2
Bivins v. Bibb County Board of Education,.424 F.

2d 97 (5th Cir. 1970)...........................  2"3
Bivins v. Bibb County Board of Education, 331

F.2d 9 (M.D. Ga.. 1971)..........................  3
Bivins v. Bibb County Board of Education, 460

F . 2d 430 (5th Cir. 1972) .......................  3 - 23
Brown v. Board of Education, 349 U.S. 294 (Brown II). 21
Cisneros v. Corpus Christi Independent School

District, 467 F. 2d 142 (5th Cir. 1972)...........  28
Columbus Board of Education v. Penick, 443 U.S.

449 (1979).......................................  23,24

Green v. County School Board, 391 U.S. 430 (1968).... 23
Keyes v. School District No. 1, Denver, 413 U.S.

189 (1973 ).......................................  22,36

Lee v. Macon County Board of Education, 448 F.2d
746 (1971).......................................  27

v



Page
Mims v. Duval County School Board, 4-4-7 F. 2d

1330 (5th Cir. 1971)..........................  28

Singleton v. Jackson Municipal Separate School
District, 355 F . 2d 865 (5th Cir. 1966)........  2

Singleton v. Jackson Municipal Separate School
District, 419 F.2d 1211 (5th Cir. 1970).......  2

Singleton v. Jackson Municipal Separate School
District, 425 F .2d 1211 (5th Cir. 1971).......  3

Swann v. Charlotte-Mecklenburg Board of
Education, et al . , 402 U.S. 1 (1971)..........  3,22,26

United States v. Hendry County School District,
504 F . 2d 550 ( 5th Cir. 1974)..................  27-28

United States v. Scotland Neck Board of
Education, 407 U.S. 484 (1972)................  22

United States v. Texas Education Agency, 467
F . 2d 848 (5th Cir. 1972)......................  28,33

Valley v. Rapides Parish School Board, 702
F . 2d 1221 (5th Cir. 1983).....................  27

Wright v. Council of City of Emporia, 407 U.S.
451 (1972)..................................... 22,23

vi



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE
ELEVENTH CIRCUIT 

No. 84-8384

JULIUS C. ADAMS, et al.,
Plaintiffs-Appellants,

v .
BIBB COUNTY BOARD OF EDUCATION 

AND ORPHANAGE OF BIBB COUNTY, et al.,
Defendants-Appellees.

On Appeal From The United States District Court 
For The Middle District Of Georgia 

Macon Division

BRIEF FOR PLAINTIFFS-APPELLANTS

Questions Presented
1. Did the district court err when it ruled that the 

school board's actions "were not to be examined from the stand­
point of whether or not they promote further integration of the 
elementary schools"?

2. Did the district court err in allowing the defendant 
school board to close five schools located in black communities, 
thus placing disproportionate burdens on black public school 
children?

3. Did the district court err in not finding the defen­
dant school board to be in violation of the September 5, 1978,



order as augmented by the August 8, 1979, order?
4. Did the district court err in limiting the scope of 

the March 5, 1984, order, thereby preventing plaintiffs from 
producing evidence of racially discriminatory intent and by 
placing the burden of proof upon plaintiffs?

STATEMENT OF THE CASE
This is an appeal from a district court order of April 6, 

1984, approving a plan by the Bibb County School Board which 
closes five schools serving predominantly black communities. 
Plaintiffs-appellants assume that their motion for injunctive 
relief directing the school board to comply with a September 5, 
1978, order as augmented on August 2, 1979, while not explic­
itly ruled upon by the district court below, was denied sub 
silentio.

1. History of the Litigation
Plaintiffs—appe11ants, a class of black students and 

their parents, initiated this litigation on September 14, 1963. 
They sought the dismantling of Bibb County's racially dual sys­
tem of public education and the operation of a nondiscrimina- 
tory school district. After years of litigation, segregation 
remained unabated."^ This case was last before this Court in

]_/ Plaintiffs-intervenors will not recount a detailed his 
tory of this litigation. Prior reported decisions which 
chronicle the history of this case include Bivins v. Board of 
Education and Orphanage for Bibb County, 342 F.2d 229 (5th 
Cir. 19 65 ); Singleton v. Jackson Municipal Separate School 
District, 355 F.2d 865 (5th Cir. 1966); Bivins v. Board of 
Education and Orphanage for Bibb County, 284 F. Supp. 888 
(M.D. Ga. 1967); Singleton v. Jackson Municipal Separate School 
District, 419 F.2d 1211 (5th Cir. 1970); Bivins v. Bibb County

2



1972, when it reversed and remanded the cause for further pro­
ceedings consistent with the Supreme Court’s ruling in Swann
v. Charlotte-Mecklenburg Board of Education, et al., 402 U.S.

2/1 (1971).” At that time, this Court said
Upon remand, the district court should consider 

the relative merits of the plans submitted by the 
parties designed to eliminate or minimize the 
number of one-race elementary schools in Bibb 
County and should frame his order with that objec­
tive-compliance with Swann in mind. In so doing, 
the district court should further bear in mind 
that the burdens of closed schools and being bussed 
should not fall unequally on the minority race.

Bivins v. Bibb County Board of Education, 460 F .2d 430 at 433
( 1972 ) .

On July 1, 1972, the district court ordered the defen­
dants—appel lees (hereinafter referred to as "the board ) to 
"suggest to this Court in what manner and by what means a 
plan or plans— this court in the exercise of its equity powers 
should order compliance with the order of the Court of Appeals

3/and Swann." Vol. I 31-A.- The board complied with the July 1

1/ Continued
Board of Education, 424 F.2d 97 (5th Cir. 1970); Singleton v. 
Jackson Municipal Separate School District, 425 F.2d 1211 (5th 
Cir. 1970); Bivins v. Bibb County Board of Education, 331 F .2d 
9 (M.D. Ga. 1971); Bivins v. Bibb County Board of Education, 
460 F.2d 430 (5th Cir. 1972).
2/ Prior appeals were to the Fifth Circuit before its divi­
sion. We shall refer to earlier appellate court decisions in 
this case, made by the predecessor circuit court, as "this 
Court."
3/ References to the record are to the three volumes dating 
from January 11, 1973, until May 3, 1984, and Volume 5, the 
164 pages of transcript of the March 5, 1984, hearing before 
the district court.

3



Order by submitting three alternative plans but did not recom 
mend adoption or implementation of any. Instead, the board 
asked the district court to determine which schools were segre­
gated as a result of discrimination. Vol. I 24-A. The dis­
trict court declined to do so, and instead ordered the board 
to submit a recommendation on or before May 1, 1973. Vol. I 
31-A; Vol. I 35-A.

When filed, the board's plan provided for neighborhood 
schools for students in grades 1-5 with no involuntary busing 
(Vol. I 37-A) and declared that "[a] strong effort will be 
made to modernize and improve the elementary schools where 
such needs exist so that all such schools will be as nearly 
equal in terms of facilities as is reasonably possible." Vol.
I 38-A. The plan further provided for the creation of new 
middle schools for grades 6, 7 and 8, to be located in racially 
neutral areas where transportation burdens would fall equally 
on students of both races. The high school assignment scheme 
remained unchanged. Id.

On May 24, 1973, plaintiffs-intervenors (hereinafter 
referred to as"plaintiffs" )t moved for an order summarily 
rejecting the board's desegregation plan and for an order to 
compel the board to immediately adopt one of the three plans 
previously submitted to the district court. Vol. I 45-A. The 
plaintiffs argued that the district court, by failing to pass 
on one of the plans before it at the time of the appellate 
decision, failed to comply with the Court's remand order.

4



Pointing out that the board's plan would not immediately elim­
inate the dual system as reflected in numerous remaining one- 
race schools, plaintiffs prayed for further relief.

On that same date the board filed a Motion by Defendants 
for Order Adding Additional Parties as Plaintiffs and Defen­
dants. Vol. I 42-A. The motion alleged that, with three 
exceptions, the named class representatives were no longer 
enrolled within the school system "due to graduation and other 
causes."

On July 27, 1973, the district court held a hearing at
which it directed the board to file a definitive desegregation
plan for elementary schools on or before August 17, 1973. On
the latter date the board complied by filing "Integration
Plans for Bibb County Schools." Vol. I 55-A; Vol. I 107-A.
Dubbed the "Trotter Plan," it called for, inter alia, pairing

4/eight of the forty-two elementary schools in the system.
Plaintiffs moved on October 24, 1973, to dismiss the 

board's motion to add parties, arguing that the action was per­
petrated by the designation of a plaintiff class and that the 
proper focus of future proceedings was compliance with this 
Court's mandate of May 3, 1972. Vol. I 116-A. Nonetheless, 
on October 26, 1973, the district court ordered the selection 
of new black class representatives. Vol. I 122-A. The dis­
trict court also ordered, sua sponte, the addition of a new

47 The Trotter Plan prompted a motion to intervene on 
August 28, 1973, by parents and students opposed to the 
pairing. Vol. I 111-A.

5



class of parties-defendant consisting of white students and 
parents. The district court reasoned that the latter action 
would free the board of the past assumptions that it was par­
tial to the interests of white students and their parents.
Vol. I 124-A. The court further directed that selection of 
both groups of class representatives be made by computer, ran­
domly selected from each elementary school. Vol. I 127-A.

The district court heard oral arguments on the addition 
of new plaintiffs and a class of white defendants on October 
24, 1973. Vol. I 130-A through 177-A. Counsel for plain­
tiffs urged the district court to not divert its attention
away from the May 3, 1972, mandate of this Court by focusing

n I /on the board's motion to add new parties. Vol. I 149-A. I 
support of the motion to add new named plaintiff class repre­
sentatives the board's lawyer argued the necessity of having 
identifiable individuals with whom the board could negotiate
in an effort to settle "this disruptive type of litigation."

6/Vol. I 155-A.

5/ At one point during the hearing, the district court 
admonished plaintiffs' counsel not to remind it of this 
Court's mandate again, but to instead address himself only 
to the issue of selecting class representatives.
6/ The district court met separately with the black and 
white individuals chosen to represent their respective clas­
ses on December 11 and 12, 1973. Vol. I 192-A through 228-A. 
During the meeting with the representatives of the proposed 
new class of white defendants the district court expressed 
its "personal hope [that communication between the two groups 
of parents] might result in some permanent solution to this 
lawsuit ... and get it out of court." Vol. I 211-A. The 
district court made it clear that, at that point, it thought 
that white parents could reach a settlement with black par­
ents that would resolve the entire lawsuit. Vol. I 211-A- 
212-A.

6



Subsequently, on December 28, 1973, plaintiffs moved to 
intervene additional individuals as class representatives,
Vol. I 179-A, and for reconsideration of the district court's 
October 26, 1973, order to randomly select class representa­
tives by computer. Vol. I 185-A. Reiterating this Court's 
language in its May 3, 1972, opinion and order regarding the 
Swann mandate to eliminate one-race schools, plaintiffs alleged 
that throughout the proceedings following the mandate, "neither 
the spirit nor the letter of such mandate was being complied 
with, i.e ., to expedite the process of disestablishing the dual 
school system in Bibb County without the necessity of further 
proceedings." Vol. I 187-A. Plaintiffs further objected to 
any expansion of the litigation on the grounds that it would 
delay disestablishment of the dual school system and that white 
parents had no constitutional right to oppose desegregation. 
Plaintiffs argued that only the Bibb County Board of Education 
had the power, authority and responsibility to disestablish 
the dual school system. Vol. I 189-A.

On March 13, 1974, the district court ordered the addi­
tion of twenty-eight new, computer-selected black class repre­
sentatives comprised of individuals from twenty-one families.
Fifty-three individuals were named to represent the newly

7/intervened class of white plaintiffs. Vol. I 237-A through

77 The district court reconsidered its initial intention to 
align the class of white parents and students as defendants 
and instead ordered their intervention as plaintiffs.

7



240-A. The district court on that same date denied plain­
tiffs' motion to intervene their own selected class represen­
tatives and did not address their motion for substantive relief 
conforming with this Court's mandate. Plaintiffs appeal, 
noticed on March 22, 1974, Vol. I 242-A, was dismissed by this 
Court pursuant to the board's motion on July 30, 1974, without 
comment.

In the ensuing months the district court ruled on mis­
cellaneous administrative motions consonant with its retention 
of jurisdiction over this case, but issued no substantive
order requiring elimination of remaining one—race schools.

8 /Vol. I 248-A through 260-A.~ On April 15, 1976, the board 
notified the district court of its plans for certain changes, 
including closing Carver, a historically black elementary 
school. Vol. II 11-B. Plaintiffs, on July 20, 1976, filed 
their opposition to the proposed closing of Carver, stating 
that

Plaintiffs submit that this Court should not 
approve the closing of any elementary school 
until and unless such closing is part of a total 
plan to desegregate the elementary schools in 
the defendant system. That to do otherwise 
would be inconsistent with the per curiam opin­
ion of the Fifth Circuit Court of Appeals (May 
3, 1972), 460 F.2d 430, directing this Court to 
consider the merits of those plans which it has 
before it involving the desegregation of the 
entire elementary school system.

8/ In an order dated October 20, 1975, the district court 
approved the board's plan to close the Virgil Powers building 
at the Bibb County Vocational Technical Complex, but explic­
itly declined to rule on other proposals set forth in "A Plan 
for Reorganization of Bibb County Public Schools," approved 
by the board on January 29, 1975. Vol. I 257-A.

8



Vol. II 13-B.
On November 17, 1977, the board filed an application to 

rebuild the L. H. Williams School, which had been destroyed 
by fire on January 8 of that year. Vol. II 25-B. The Board 
claimed that rebuilding L. H. Williams, a historically black 
school located in a black community would "... not tend to lead 
to the recurrence of a dual school system in Bibb County but 
would "... simply return the situation to the status which 
existed immediately prior to the fire and [would] not help or 
hinder any further desegregation efforts which might be re­
quired in the future." Vol. II 25-B. Plaintiffs opposed the 
board's application to rebuild L. H. Williams because it was 
a segregated school, and on November 30, 1977, moved the dis­
trict court to order the board to submit a desegregation plan 
for the entire district. Id.

On December 8, 1977, the district court ordered the school 
board to file a "definitive plan" for the future operation of 
Bibb County including construction, physical improvements to 
existing schools, changes in the pupil attendance zones and 
other matters deemed necessary within ninety days of the entry 
of the order. Vol. II 31-B.

The board filed its plan in compliance with the district 
court's order on March 8, 1978. Vol. II 33-B. Melvyn Williams, 
a black board member, filed a letter stating his belief that 
the plan submitted did not represent a good faith effort to 
desegregate the schools. Vol. II 39-B through 44-B. Mr. 
Williams also complained of disproportionate burdens to be

9



borne by black students under the plan in connection with the 
closing of the Minnie Butler Elementary school. Vol. II 43-B.

The board's plan, as described by the district court, 
included financing three new elementary schools, additional 
classrooms and vocational laboratories at three junior high 
schools, a gymnasium at Central High School, and long range 
improvements of high school vocational education facilities.
The estimated cost of construction was $12,950,000.00 in 
capital outlay funds over the plan's ten years. The district 
court sua sponte, on March 10, 1979, ordered that the members 
of the Bibb County Board of Commissioners be joined as necesary
parties and ordered them to file a response to the board's ten

9/year plan within thirty days. Vol. II 46-B.
On April 5, 1978, plaintiffs filed objections to the 

board's Ten Year Plan. Vol. II 57-B. They claimed that as 
of the 1977-78 school term, the board operated 41 elementary 
schools. Of these, 26 (15 black, 11 white) were alleged to 
have populations of 75% and above one race or the other. Plain­
tiffs further alleged that thirteen schools built as black 
schools remained racially identifiable (over 80% black), as was 
true for fourteen (over 80% white) schools built as white 
schools. Five schools originally built for whites were now

97 On April 4, 1978, the white plaintiff class filed a 
response in support of the board's plan and recommended its 
adoption to the extent it proposed to preserve the principle 
of neighborhood schools. Vol. II 52-B. The white plaintiffs 
moved for declaration of unitary status and dismissal of the 
suit. Vol. II 54-B.

10



racially identifiably black. Vol. II 58 B 59 B.
The plaintiffs objected to the board's ten year plan 

because it did not substantially increase desegregation and 
it placed disproportionate burdens upon black children. With 
respect to the latter point, plaintiffs noted that under the 
plan 89.4% of the students dislocated as a result of closings 
would be black. Vol. II 61-B. They further alleged that 
racially identifiable and historically black schools were not 
maintained as well as other schools. Vol. II 63-B.

2. The 1978 Consent Decree and Subsequent History 
On June 30, 1978, the district court tentatively approved 

a proposed consent decree subject to objection by the defendant 
members of the County Board of Commissioners and to a reserva­
tion of final decision until after a fairness hearing. Vol.
2j 84-B. The district court's order tentatively approving the 
decree maintained that if entered the decree "[would] resolve 
all claims of discrimination based on race alleged in the var­
ious pleadings filed in this case and occurring prior to the 
entry date of the Consent Decree." Id.

The consent decree, filed with the district court s order,
contained the following provisions:

(1) The student assignment plan for high schools 
ordered into effect on February 11, 1970, was 
continued;

(2) the elementary school assignment plan of February 
11, 1970, was continued except insofar as it 
related to the Butler, L. H. Williams, Ft. Hawkins 
and Carver schools.
a. Butler was to be closed as a K-7 schooland utilized as a special education center

11



for students then attending Pleasant Grove Center. Butler students were reassigned to 
the Bellevue and Union.schools;

b. L. H. Williams was not to be rebuilt. Its 
students were to be assigned to Taylor,
Tinsley and Green Street;

c. Ft. Hawkins was to be closed; its students 
were to be sent to Burdell and Danforth;

d. Carver was to be closed; its students were 
to be sent to Ingram and Burke;

e. attendance zone lines were to be adjusted 
for Lane, Clisby, Banks and Hunt schools.

(3) The Alexander II school was designated as a mag­
net school;

(4) Future changes in attendance zones, closing of 
schools, construction of new schools or additions 
to existing schools shall be made in the sound 
discretion of the board, provided that such future 
changes shall be done in a manner which will pre­
vent the recurrence of the dual school structure 
and which will effectuate the continued existence 
of a unitary school system as established by this 
consent decree;

(5) inner city schools were to be given priority 
for magnet programs;

(6) "The defendants' building program to correct 
[older structures which have become inadequate 
or the need for new schools] shall include a 
firm commitment to upgrade the physical plants 
in the inner city by constructing a new school 
or making substantial renovation to existing 
buildings." Vol. II 89-B;

(7) Majority to minority transfer provisions were 
continued;

(8) The board committed itself to develop and sub­
mit to the district court an educational "qual­
ity control program" which would guarantee 
quality education in all schools, regardless of 
racial composition, within 150 days of the date 
of the court order approving the settlement.

The notice of proposed settlement, published on June 30,

12



1978, stated that representatives of the black and white plain­
tiff classes had negotiated a settlement. Vol. II 98-B.

On July 18, 1978, black plaintiffs, including the great
majority of the named class representatives, filed Objections

10/to the Current Bibb County School Desegregation Plan. Vol.
XX 112-B. They objected on the basis that the plan placed dis­
proportionate burdens on the students at the Butler, Carver,
Ft. Hawkins and L. H. Williams schools. They alleged that 1,606 
black and 238 white children would be uprooted and that over 
1,000 black children who previously walked to school would have 
to be bused. They further objected on the basis that the plan 
did not contribute appreciably to desegregation, Vol. II 114-B; 
that it contained no definite plans for new inner city schools; 
that the plan did not approximate the wishes of a majority or 
substantial number of black plaintiffs; and that the plan did 
not adequately address the issue of the loss of black princi­
pals that would attend the closing of black schools.

At the Rule 23 fairness hearing held on August 4, 1978, 
counsel for plaintiffs moved for an order allowing him to with­
draw his name from the consent decree. Vol. II 152-B. His 
affidavit, Vol. II 153-B, stated that at some time prior to 
June 10, 1978, he had been informed that black and white plain­
tiffs had been meeting and had reached a compromise with the

10/ Of the twenty-one named black plaintiffs chosen by com­
puter to be representatives of the class, 13 signed the 
statement objecting to the board's plan, four could not be 
reached, three had moved and one was deceased. Vol. II 116—B.

13



school board. On June 10 he met with counsel for the board, 
the superintendent of schools, representatives of the white 
plaintiffs and a few other individuals, and was asked to join 
in a settlement. At subsequent meetings at which one of the 
black court-appointed class representatives was present along 
with other members of the black community, counsel for plain­
tiffs was led to believe that the consent decree was supported 
by the black plaintiff class. Although he personally was 
opposed to the terms of the decree as an effective desegrega­
tion plan, plaintiffs' counsel placed his name on the decree. 
Vol. II 155-b.

Subsequently, after named black class representatives 
signed a petition opposing the decree, Vol. II 112-B, counsel 
learned that their views had not been represented in the nego­
tiation. — ^ Vol. II 155-B. The board did not controvert the 
facts alleged in plaintiffs' counsel's affidavit. Vol. II 
179-B.

In making remarks at the end of the fairness hearing, the 
district court made clear that it was not going to consider 
a student transportation plan, Vol. II 144-B - 145-B, and on 
September 5, 1978, entered an order approving the consent 
decree.

11/ In his affidavit counsel for plaintiffs stated that he 
assumed that the one named black class representative who par­
ticipated in the settlement negotiation had been designated 
by the remaining black named plaintiffs. Vol. II 153-B.
That individual's name was not among the names of black class 
representatives who opposed the proposed settlement. Vol. II 
112-B. He was among the four individuals who could not be 
reached by his fellow class representatives. See n. 10, 
supra.

14



The September 5, 1978, order closed the Butler Elementary 
School and converted it into a special education center. It 
also closed Carver, Ft. Hawkins and Alexander IV. The district 
court deferred a decision on rebuilding the L. H. Williams 
school and ordered the board to explore the options of remodel­
ing and enlarging the Green Street School or rebuilding L. H. 
Williams at its old site to serve the population of the Green 
Street and L. H. Williams zones or constructing an entirely 
new school at some other location in the community.

As proposed, the September 5, 1978, order did leave the 
issues of closing and construction of schools within the 
board's discretion, with the caveat that those decisions not 
result in a recurrence or perpetuation of segregation. Vol.
II 187-B. Inner city schools were given priority for magnet 
programs and a firm commitment to upgrade the physical plants 
in the inner city was included. Vol. II 188-B. The order 
further provided that the board would appoint principals to 
elementary schools without regard to race. Id. As contem­
plated, the Educational Quality Control Plan was to be filed 
within 150 days.

The board filed its quality control plan on February 9, 
1979, and supplemented it on June 8, 1979. Vol. II 209-B. The 
total cost of the board's capital outlay plan was $21,675,028, 
of which $14,572,883.00 was necessary to comply with the Quality 
Control provision and Section C of the September 5, 1978, order 
dealing with upgrading inner city schools. Vol. II 210-B. 
Specifically, the funding priorities included figures for three

15



new inner city schools: L. H. Williams (the board proposed to 
close Green Street), Burke and Ingram. Other inner city 
schools to receive money for renovations and upgrading were 
Alexander II, Burdell, Clisby, Hamilton, Dnionville and Winship. 
Vol. II 213-B. Eleven other schools were designated as sub­
standard and targeted for funding, including Duresville. Vol.
II 215-B.

The district court issued an order on August 8, 1979,
stating that "[t]he construction and renovation described [in
the capital improvements plan] is appropriate and necessary to
carry out the obligations previously agreed upon with the
plaintiff classes in the Consent Decree and to achieve a uni-

12/tary school system." Vol. II 227-B.
3. The Proceedings Below
On January 27, 1984, the board by letter notified the 

district court that on December 15, 1983, it had adopted a 
6—2—4 reorganization plan and passed a resolution closing five 
elementary schools: Duresville (90% black), Hall (73% black), 
Hunt (94% black), Unionville (100% black) and Neel (62% black). 
Vol. Ill 522. The board reminded the Court that in 1981 it 
had voted to delay construction of Ingram, one of the schools 
to be rebuilt under the Capital Improvements Plan approved by 
the court in 1979. The board initially wanted to wait until

12/ The district court approved the construction of a new 
L. H. Williams school at its former site and combining it 
with the Green Street School attendance zone. Id.

16



However, on13/fall to decide whether to rebuild Ingrain.
February 6, 1984, it voted 5-4 with one abstention to close

14/Ingram.
On February 24, 1984, plaintiffs moved for relief enjoin­

ing the board from implementing the proposed reorganizational
plans and ordering the board to fulfill its obligations set

15/forth in the September 5, 1978, order. They alleged that
the plan was racially discriminatory because:

(1) it violates Section C of the September 5, 1978, 
order;

(2) violates Section B of the 1978 order in that 
closing Neel and Hall causes recurrence of 
the dual structure;

(3) subjects black public school children to 
unequal burdens;

(4) the board defaulted on its commitment to re­
build Ingram, for which it had raised money 
through a bond election.

Vol. Ill 522. The plaintiffs also alleged that the board had 
ignored alternatives which were less discriminatory and bur­
densome to the black community.

13/ The board's initial vote on whether to close Ingram on 
December 12, 1983, resulted in a 5—5 tie, meaning that the 
school remained open. Vol. Ill 499. On February 6, 1984, the board's reconsideration resulted in the 5-4 vote to close, 
with one abstention. Vol. Ill 507.
14/ The proposed closings prompted motions to intervene Par­
ent-Teachers Associations at Ingram, Vol. Ill 507, Hall, 
Unionville, Duresville, Hunt and Neel, Vol. Ill 512, 519, to 
oppose the closings on the grounds that they would cause the 
recurrence of the dual school structure. The district court 
never explicitly ruled on these motions but allowed the PTA s 
to participate in the March 5 "show cause" hearing.
15/ The class of white plaintiffs supported the proposed 
closing of the 5 schools serving the black community and the 
decision not to rebuild Ingram. Vol. Ill 537.

17



On March 5, 1984, the district court held the "show cause"
hearing on the school board's reorganization plan. The court
limited the scope of the hearing to the merits of the proposed
plan and ruled that the plaintiffs could not adduce evidence

16/of racially discriminatory intent underlying the plan.
An alternative plan, drafted by Dr. W. L. Winecoff, was 

submitted to the district court on March 26, 1984, Vol. Ill 
579, which supported maintaining desegregated schools. Vol.
Ill 587. It recommended an alternative and more equitable 
plan for school closings and the creation of two new magnet 
schools.

On April 6, 1984, the district court entered an order
approving the closing of Ingram, Neel, Unionville, Duresville 

17 /and Hall.—  Plaintiffs noticed this appeal on May 3, 1984.
Standard For Review

The district court below erred as a matter of law.

16/ The court stated that "[w]hat the Board has done since 
'r68 and whether or not the objective is one thing or another, 
we're not here about that." The court directed counsel to 
limit his inquiry to events occurring after the 1978 decree 
and disallowed evidence showing a pattern of discriminatory 
burdensome school closings since 1968. Vol. II 22-24.

Similarly, when counsel for plaintiffs tried to_estab­
lish the school board's intentions regarding rebuilding Ingram, 
the court cut off examination. Vol. V 81-82.
17/ The board modified its plan to provide for reopening Hunt 
as a magnet school. Vol. Ill 598.

18



SUMMARY OF ARGUMENT
1. The school board's proposal to close five schools 

with predominantly black enrollments should be scrutinized 
from the standpoint of its desegregative impact and equitable 
distribution of burdens. If this were not a desegregation 
case, the district court would have no continuing jurisdic­
tion and no basis on which to exercise its equitable powers. 
The measure of the actions of the Bibb County School Board, 
which is under an unsatisfied duty to liquidate the vestiges 
of its dual system of public education is the effect, not 
the intent of its actions on the level of desegregation.

2. The burden of desegregation, as occasioned through 
school closings in this instance, cannot fall inequitably 
upon black students. In this case the board did not propose 
closing any schools serving predominantly white populations. 
The plan abandons the "neighborhood school" policy the dis 
trict purports to maintain, implementing such policy for white 
patrons of the school district but not for black patrons. 
Supreme Court law and the law of this Circuit prohibit such 
discriminatory treatment.

3. The board should be ordered to comply with the dis­
trict court's orders of September 5, 1978, and August 8, 1979, 
in which it was obligated to upgrade and maintain schools 
serving the black community, particularly those in the inner 
city. To the extent that the plan ordered into effect by 
those orders represented an agreement on the part of black 
plaintiffs, it was because they perceived a commitment on the

19



part of the school board to quality education in inner city 
schools. The board should not be allowed to renege on its
commitment.

4. The district court should have permitted plaintiffs 
the opportunity to prove racially discriminatory intent under­
lying the adoption of the plan which closes five black schools. 
The court's refusal to allow such an opportunity, coupled with 
its placement of the burden of proof on plaintiffs at the 
March 5, 1984, hearing constituted reversible error. The 
burden is on the board to prove that its actions are nondis- 
criminatory in that they do not place disproportionate burdens 
on black students or tend to perpetuate or reestablish the 
effects of the dual system.

20



ARGUMENT

I.
The District Court Erred When It 
Applied Incorrect Legal Standards 

For Reviewing The School Board's Plan

The district court erred when it ruled that the changes 
proposed in the board's plan were not to be examined from the 
standpoint of whether or not they promote further integration 
of the elementary schools." Vol. Ill 607. The court ruled 
that "[t]he settlement agreement and resulting decree elimi­
nated possible further integration of Bibb County s elementary 
schools as an issue in this lawsuit. That issue remains elim­
inated." Id. This ruling tainted the district court's actions 
so strongly that, standing alone, it warrants reversal.

In this law suit the issue of desegregation is the sine 
qua non for the exercise of judicial equity power. If deseg­
regation is not at issue in this litigation, the district court 
is without jurisdiction. Indeed, the district court's juris­
diction rests upon the Supreme Court's mandate in Brown v.
Board of Education, 349 U.S. 294 (1955) (Brown II), in which
the Court observed that:

School authorities have the primary responsi­
bility for elucidating, assessing and solving 
[desegregation related] problems; courts will 
have to consider whether the action of school 
authorities constitutes good faith implementa­
tion of the governing constitutional 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. Accord­
ingly, we believe it appropriate to remand the 
cases to those courts.

21



Id. at 299. The Court further directed the district courts 
to "consider the adequacy of any plans the defendants may pro­
pose ... and to effectuate a transition to a racially nondis- 
criminatory school system," adding that "[d]uring this period 
of transition, the courts will retain jurisdiction of these 
cases." Id. at 301.

The Supreme Court's Brown II directive to the district 
courts is the seminal ruling from which the district court 
draws authority to retain jurisdiction over this action. That 
ruling has been supplemented and expanded upon so that there 
can be no doubt about the jurisdictional predicate in a school 
desegregation case. In Wright v. Council of City of Emporia, 
407 U.S. 451 (1972), the Supreme Court ruled that part of the 
affirmative duty imposed by school desegregation cases is the 
obligation not to take any action that would impede the pro­
cess of disestablishing the dual system and its effects. See 
also United States v. Scotland Neck Board of Education, 407 
U.S. 484 (1972). As the Supreme Court later pointed out,
Keyes v. School District No. 1, Denver, 413 U.S. 189 (1973), 
and Swann v. Charlotte-Mecklenburq Board of Education, 402 
U.S. 1 (1971), established that

the Board had to do more than abandon its prior 
discriminatory purpose.... The Board has an 
affirmative responsibility to see that pupil 
assignment policies and school construction 
and abandonment practices 'are not used and do 
not serve to perpetuate or re-establish the 
dual school system' ... and the Board has a 
'heavy burden' of showing that actions that 
increased or continued the effects of the dual 
system serve important and legitimate ends.

22



Dayton Board of Education v. Brinkman, 443 U.S. 526 at 538, 
citing Columbus Board of Education v. Penick, 443 U.S. 449 
(1 9 7 9 ); Wright v. Council of City of Emporia, supra; and Green 
v. County School Board, 391 U.S. 430, 439 (1968).

When this action was last before this Court in 1972, it 
was clear that the board had not yet fulfilled its constitu­
tional duty to disestablish the dual school system. Moreover, 
this Court recognized the principle that as long as the court 
retains jurisdiction, the entry of an order purporting to 
desegregate a school district does not eliminate the issue of 
race from future instances when the court might scrutinize the 
actions of the school board. Bivins v. Bibb County Board of 
Education, 460 F .2d 430, 432 (5th Cir. 1972). This Court said 
that its "order of February 5, 1970, was not intended to bring 
the litigation to desegregate the Bibb County public schools 
to a final close, but rather was designed to expedite the 
process of the disestablishment of the dual school system in 
that county without the necessity for further proceedings in 
the district court." Id.

Moreover, until the district court carries out the mandate 
of this Court "to consider the relative merits of the plans 
submitted by the parties designed to eliminate or minimize the 
number of one-race elementary schools" and to do so in a fash­
ion that does not place "the burden of closed schools and 
being bussed ... unequally on the minority race, id• 433,
the charge of Brown II has not been met.

23



Having erroneously determined that this action is no 
longer a desegregation case, the district court then proceeded 
to apply an incorrect standard of review when it scrutinized 
the constitutionality of the board's plan. [T]he measure of 
the post-Brown X conduct of a school board under an unsatis 
fied duty to liquidate a dual school system is the effective 
ness, not the purpose, of the actions in decreasing or increasing
the segregation caused by the dual system. " Dayton Board_of̂
Education v. Brinkman, supra, at 538. Thus, in reaching its 
decision, the district court erroneously applied the wrong 
legal standards, and must be reversed.

Moreover, even if the district court had required plain­
tiffs to prove intent, the school closings would have consti­
tuted an equal protection clause violation. School district 
officials were well aware of the racial impact of their proposed 
action. Although forseeable disparate impact does not make out 
a prima facie case of intentional discrimination, Columbus 
Board of Education v. Penick, 443 U.S. 449, 464 (1979); Dayton 
Board of Education v. Brinkman, 443 U.S. 526, 536 n. 9, "[a]d- 
herence to a particular policy or practice with full knowledge 
of the predictable effects of such adherence upon racial imbal­
ance in a school system is one factor among many others which 
may be considered by a court in determining whether an inference 
of segregative intent should be drawn.1" Penick, supra, at 465.

In Arlington Heights v. Metropolitan Housing Corp., 429 
U.S. 252 (1977), the Supreme Court observed that "[djetermin- 
ing whether invidious discriminatory purpose was a motivating

24



factor demands a sensitive inquiry into such circumstantial
18/and direct evidence of intent as may be available. Id.

at 266. Included in the indicia of segregative intent are 
the following:

(1) whether the impact of the official action bears 
more heavily on one race than another;

(2) the historical background of the decision;
(3) the specific sequence of events leading up to the 

challenged decision;
(4) any procedural and substantive departure from 

the norm in connection with the decision or 
action; and

(5) the legislative or administrative history of the 
decision or action.

Id. at 266-68. These factors are not exhaustive, but they 
are helpful in determining the existence of discriminatory 
intent. No one denies that the school closures impact more 
heavily on black students than they do upon white students. 
The historical background of the decision, specifically the 
agreement on June 30, 1978, Vol. II 85-B, enshrined in the 
district court's September 5, 1978, order, Vol. II 84-B, 
establishes a failure to abide by a commitment made by the 
school board in satisfaction of proven claims of racial 
discrimination. The decision was made in the context of 
objections and concerns from the black community, to which 
the board did not give serious consideration. Vol. Ill 483.

18/ As recounted supra, at 18, the district court did not 
allow plaintiffs the opportunity below to engage in such a 
"sensitive inquiry." The limitation on the scope of the March 5, 1984, hearing therefore constituted reversible 
error. See supra, at

25



The specific sequence of events leading up to the challenged 
decision has been recounted, supra, at 16-18. Suffice it to 
say that it appears that the board, between the date on 
which this Court last visited this case and the date of the 
order appealed herein, apparently accomplished a long-time 
goal— it secured a court ruling seemingly foreclosing any 
future attempts to further desegregate elementary schools 
and a free hand to respond to budgetary and administrative 
pressures by passing the burdens of any economizing moves to 
the black community. In so doing, the board continues to 
defy the dual purposes of this Court's 1972 mandate— the 
elimination of one-race schools and the equal distribution 
of the burdens of desegregation.

II.
The District Court Erred When It Approved 

A Plan Which Placed Disproportionate 
Burdens On The Black Plaintiffs

Both this Court and the Supreme Court have recognized 
that school closings and construction can have significant 
impact on the racial composition of schools and quality of 
education within a community. In Swann v. Charlotte—Mecklen­
burg Board of Education, supra, the Supreme Court stressed 

that:
The construction of new schools and the closing 
of old ones are two of the most important func­
tions of local school authorities and also two 
of the most complex. They must decide questions 
of location and capacity in light of population 
growth, finances, land values, site availability, 
through an almost endless list of factors to be 
considered. The result of this will be a deci­
sion which, when combined with one technique or

26



another of student assignment, will determine 
the racial composition of the student body in 
each school in the system. Over the long run, 
the consequences of the choices will be far 
reaching. People gravitate toward school facil­
ities, just as schools are located in response 
to the needs of people. The location of the 
schools may thus influence the patterns of resi­
dential development....

Id. at 20-21.
Given the importance of construction of new schools and 

the closing of old ones, it follows that as long as the dis­
trict court retains jurisdiction it must give special scrutiny 
to these issues to ensure that they are not used to perpetuate 
or reestablish segregation, or in any other discriminatory 
manner. This Court has held that black, students must not be 
unequally burdened by the requirements of a desegregation plan

Closing schools for racial reasons would be uncon­
stitutional. The equal protection clause of the 
fourteenth amendment prevents any invidious dis­
crimination on the basis of race. Yick Wo v. 
Hopkins, 1886, 118 U.S. 356, 6 S.Ct. 1064, 30 
L.Ed. 220. A governmental unit bears a "very 
heavy burden of justification" to support any 
use of racial distinctions. Loving v. Common­
wealth of Virginia, 1967, 388 U.S. 1, 9, 87 S.Ct. 
1817, 18 L.Ed.2d 1010. Under general equal pro­
tection doctrine, therefore, it would be imper­
missible for the school board to close formerly 
black schools for racial reasons. More partic­
ularly, such action is prohibited by the school 
desegregation cases. Brown II [349 U.S. 294 
(1955)], calling for "a racially nondiscrimina- 
tory school system," and its progeny require 
not only that past discriminatory practices be 
overcome by affirmative actions but also that 
new forms of discrimination not be set up in 
their place. Closing formerly black school 
facilities for racial reasons would be such a 
prohibited form of discrimination.

Lee v. Macon County Board of Education, 448 F.2d 746 at 753-
54 (1971). See also Valley v. Rapides Parish School Board,
702 F . 2d 1221, 1227 (5th Cir. 1983 ); United States v. Hendry

27



County School District, 504 F.2d 550, 553 (5th Cir. 1974);
Arvizu v. Waco Independent School District, 495 F.2d 499, 504- 
508 (5th Cir. 1974); United States v. Texas Education Agency,
467 F. 2d 848, 885 ( 5th Cir. 1972) (Bell, J., concurring);
Cisneros v. Corpus Christi Independent School District, 467 
F.2d 142, 153 (5th Cir. 1972) (en banc); Mims v. Duval County
School Board, 447 F . 2d 1330, 1331 ( 5th Cir. 1971); Bel 1_v_̂_
West Point Municipal Separate School District, 446 F .2d 1362,
1363 (5th Cir. 1971).

Thus, in any action that appears to make racial distinc­
tions, a governmental unit bears a "very heavy burden of 
justification." And in school desegregation cases, "it is 
incumbent upon district courts to insure that the burdens of 
desegregation are distributed equitably...." Arvizu v. Waco 
Independent School District, 495 F .2d 499 at 504 (5th Cir. 1974).

The district court order closed five schools: Ingram 
(99% black), Unionville (100% black), Neel (62% black), Dures- 
ville (90% black), and Hall (73% black). Vol. Ill 449-450, 
609-615. 57.5% of the total student population is black. Vol.
Ill 606. Approximately 1,500 students were displaced. Vol.
Ill 460, 461, 466, 609, 612. The black Plaintiffs' Alterna­
tive Plan concludes that 86% of the displaced students are 
black. An analysis of each of the county's districts shows 
that the board considered only predominantly black areas when 
looking for means to save money, and that it did not consider 
alternative plans that would more equitably divide the burdens 
of school closings.

28



Northeast District
The plan closed two Northeast schools- Duresville and 

Hall— and opened a junior high school (Appling A) to house 
the displaced elementary school children. Vol. Ill 459, 460.
Of the Northeast elementary students, 84.3% are black. Vol.
Ill 613. The Black Plaintiffs' Alternative Plan concludes that 
the population in the Northeast schools has grown by 51 stu­
dents in the past four years. The Alternative Plan notes that 
the Planning and Zoning Commission's 1990-City of Macon Plan, 
Phase II Housing Analysis, 1982, predicts a growth in the 
Northeast student population of approximately 1,000 by 1990. 
Vol. Ill 590.

Hall School was to be closed because of declining enroll­
ment, although the board describes its condition as "very 
good." Vol. Ill 460. In his brief for the March 5, 1984, 
hearing, counsel for the plaintiffs argued that between 1973 
and 1983, the student population decreased from 406 students 
to 366 students, while the racial composition shifted from 34% 
black to 73% black. Duresville school is being closed because 
of insufficient space to house necessary programs. Vol. Ill 
460. Counsel for the plaintiffs argued in his brief for the 
March 5, 1984, hearing that residential construction is cur­
rently taking place in the Duresville area.

The plan moved 599 of the displaced elementary school 
children to Appling A, a facility which is designed for chil­
dren in junior high school, not for children in elementary 
school. Vol. Ill 449, Vol. V 114. Dr. Melvin Williams, a

29



member of the Bibb County Board of Education, expressed his 
doubt that this structure could be successfully used as an 
elementary school, and cautioned against herding a large num­
ber of students into one building, especially in such close 
proximity to Danforth Elementary School. Vol. V 106, 114. 
Nevertheless, the District Court stated that:

The arguments for and against the Northeast modi­
fied plan having been carefully considered, it 
is this court's considered judgment that the 
Board of Education's decisions are educationally 
and fiscally sound, are consistent with said 1978 
consent decree, and are unquestionably deserving 
of approval by this court subject to one further 
change. The proposed Appling A elementary school 
attendance zone and the proposed Danforth atten­
dance zone will be merged into one so that all 
children in that area can have equal access to 
both facilities. Appling A and Danforth will 
be identified as Danforth Elementary and Dan­
forth Primary Schools and will be operated as one 
grammar school complex.

Vol. Ill 614-615.
The black plaintiffs' Alternative Plan proposed changes

in the northeast district that respond to present needs and
projected population changes. The Plan states:

[The northeast] area is expected to grow rather 
substantially over the next decade with a pro­
jected population increase of 5,169 by 1990. 
[Planning and Zoning Commission, 1990-City of 
Macon Plan: Phase II Housing Analysis, 1982. J 
Such growth would indicate an increase in the 
student population of +/- 1,000, especially 
since the major growth is expected to be in the 
20-34 year old group.

a. Therefore both Hunt and Hall should 
remain open with Hunt becoming a magnet 
school. While not essential, the Blind 
Academy property could enhance this site 
and provide additional space for an excel­
lent magnet fine arts center stressing the 
humanities and the expressive arts.

30



Vol. Ill 590. The Plan suggests that Bernd School be closed 
since it now has a declining population, is in an industrial 
area, has had declining test scores since 1981, and already 
brings most of its students to school by bus. The Plan stated 
that there appears to be no reason to reopen Appling A. Vol.
Ill 591.
Central District

The 1978 decree provided for the rebuilding of Ingram 
School. Vol. Ill 608. The bright future thus given to this 
badly run-down school was a major feature of the decree. In 
1981, the board announced its plans to delay the rebuilding, 
now, they proposed to raze the school. The board cited as 
reasons for closing Ingram insufficient facilities, declining 
enrollment and lack of funds. Vol. Ill 609-611. The insuffi­
cient facilities and the lack of funds stemmed solely from the 
board's neglect and its refusal to comply with the decree.
At the time of the board’s proposal, four hundred thirty-five 
students attended Ingram. Vol. Ill 610. When Ingram was 
closed, the children, nearly all of whom are black (99%), were 
sent to two different schools, and a large number of black 
children at Pye School were to be displaced to make room for the
Ingram children. Vol. Ill 598e.

The black plaintiffs' Alternative Plan suggested that 
Unionville be closed and Ingram be rebuilt as a magnet school.
It suggested significant changes at Ingram, including a modi­
fied curriculum that emphasizes basic communications, computer 
and math skills; significant community participation, includ­
ing teaching by community members and regular field trips; a

31



community volunteer program to supplement the tutoring and 
clinical aide staff; a community education program to generate 
support for the school and provide guidance in the home; and 
a strong program for gifted and talented students. Vol. Ill 
589-590.

In Arvizu v. Waco Independent School District, supra, 
this Court disposed of similar issues as are presented by this 
appeal. In Arvizu the appellants objected to the closing of 
four predominantly black schools and the conversion of two 
others into special attendance grade centers. This Court noted
that:

Although not without some ambiguity appellants 
claim that the impermissible burdens of desegre­
gation imposed upon them are evidenced by the 
elimination of neighborhood schools in the 
[black sector] in contravention of the Board's 
avowed policy of preserving neighborhood schools, 
and the disproportionate numbers of black school 
children bussed to implement desegregation 
plans.

Id., 495 F .2d at 504. The court added that "...it is incum­
bent upon district courts to insure that burdens of desegrega­
tion are distributed equitably." Id. In disposing of asser 
tions similar to those made by the board in the instant case,
the court noted that:

The Board provided three explanations for 
the school closings: first, the schools were 
housed in out-moded facilities, second, they 
operated at under capacity or had a capacity 
so limited that the costs of operation were 
prohibitive, and third, they were confined by 
a small physical plant. Each of these justi­
fications is facially legitimate. But where 
measures proposed by a school board are chal­
lenged, the Board must adduce evidence suffi­
cient to support the conclusion that their

32



actions were not in fact motivated by racial 
reasons, see Keyes v. School District No. 1,
413 U.S. 189, 209, 93 S.Ct. 2686, 2698, 37 
L .Ed.2d 548, 564 (1973). To the extent that 
other schools which were kept open operate 
under the same handicaps from which the closed 
schools suffered the viability of the Board's 
justifications is diluted commensurately. See 
United States v. Texas Education Agency, supra 
at 872.

Id. at 505.
In the instant case, this Court's precedents with respect 

to the standards for district court review of proposed school 
closings by school districts under court supervised desegre­
gation decrees did not guide the district court. Because the 
burdens of the board's plan are borne disproportionately by 
black students, the district court must be reversed.

Ill.
The District Court Erred When It Refused 
To Find The Board To Be In Violation Of 

The September 5, 1978, Order As Augmented 
By The August 8, 1979, Order

The district court's order of August 8, 1979, provided 
for the following expenditres: Ingram School, $1,600,000 for 
rebuilding; Unionville School, $91,746 for substantial repairs 
Neel School, $122,101 for substantial repairs; Duresville 
School, $91,412 for substantial repairs; Hunt School, $91,412 
for substantial repairs; and Hall School, $83,228 for substan­
tial repairs. Vol. Ill 211-B - 221-B. The district court 
stated that those expenditures were "appropriate and necessary 
to carry out the obligations previously agreed upon with the
plaintiff classes in the Consent Decree and to achieve a uni-

19/tary school system." Vol. II 227-B. The obligations to

19/ see p. 16, supra.



which the board was committed by the September 5, 1978, and 
August 8, 1979, orders have not been met. Instead the board 
has partly justified its decision to close schools serving all­
black communities by arguing that the facilities are inferior 
and unfit. But these are among the same schools that were tar­
geted for substantial repairs and in the case of Ingram, for 
reconstruction, in the Capital Improvements Plan. To the extent 
that the school board can advance as justification for their 
closing the argument that these schools were run-down, the
spirit and letter of the September 5, 1978, and August 8, 1979,

, 20/orders must have been violated.
Presently the plaintiffs are deprived of any significant 

form of relief from unconstitutionally discriminatory school 
board actions on the elementary school level. Throughout the 
history of this litigation they have pressed for desegregation 
of elementary schools and equitable distribution of its bur­
dens. See statement of facts, supra, passim. During the six 
years between this Court's May 3, 1972, order and the district 
court's September 5, 1978, order no relief was forthcoming.

20/ Plaintiffs hasten to point out that they do not argue 
that the board can never close a predominantly black school 
or otherwise address legitimate administrative or financial 
concerns. However, when the burden of school closings over 
a substantial period of time falls almost exclusively on black 
children, in a school district with a history of de jure dis­
crimination which is being dismantled under court scrutiny, 
that scrutiny must be brought to bear on a pattern of unequal 
burdens such as exists here. Plaintiffscontend that the closings must be carried out in such a way 
as to distribute burdens equitably. The plaintiffs' alter­
native plan drafted by Dr. Winecoff would have met this 
requirement. Vol. Ill 579.

34



Finally, with less than lukewarm enthusiasm, see pp. 13-14, supra, the 
plaintiffs acceded to a plan which appeared to hold out the 
promise of some improvements of their schools. Yet, unless 
reversed, the district court’s April 6, 1984, ruling will leave 
plaintiffs in a situation where they are barred from seeking 
the desegregation of elementary schools, unable to enforce 
school board commitments to upgrade and maintain schools ser­
vicing the black community and subject to shouldering dispro­
portionate burdens.

The evil of the dual system was not solely manifested in 
the forced physical separation of children on the basis of 
race, although, to be sure, that was its most pernicious incar­
nation. The dual system was also discriminatory because it 
ignored the educational needs and concerns of black children 
and their parents. Segregation, more often than not, was a 
prelude to other forms of discrimination— inferior physical 
facilities, lower expenditures on black schools, meager cur 
ricula, inadequate supplies. The board's refusal to fulfill 
its court— imposed obligations, to which it had committed itself, 
is an expression of callous indifference to the educational 
needs and concerns of the black community, much like these 
other forms of expression. The board should be ordered to com 
ply with the district court orders of September 5, 1978, and 
August 8, 1979.

35



IV.
The District Court Erred When It Limited The 
Scope Of The March 5, 1984, Hearing And 
Placed The Burden Of Proof On Plaintiffs

At the March 5, 1984, hearing the district court did not 
allow plaintiffs to pursue evidence showing racially discrimina­
tory intent on the part of the school board. This restriction 
apparently rested upon the district courts erroneous ruling that 
this action was no longer a desegregation case. The court s 
refusal to hear evidence establishing racially discriminatory 
intent compounded the initial error and warrants reversal. 
Moreover, in so ruling, the district court did not allow plain­
tiffs an opportunity to adduce evidence in support of their mo-

21/tion for injunctive relief. This constituted reversible error.
Moreover, by virtue of its order to show cause, issued on 

the same day as the plaintiffs' motion for injunctive relief, 
see supra at 18, the district court incorrectly placed the bur­
den of proof on plaintiffs at the March 5, 1984, hearing. "In 
discharging [its] burden, it is not enough, of course, that the 
school authorities rely upon some allegedly logical racially 
neutral explanation for their action. Their burden is to adduce 
proof sufficient to support a finding that segregative intent 
was not among the factors that motivated their action."
Keyes v. School District No. 1, supra, 403 U.S. 189, 109-210.

21/ Plaintiffs realize that the March 5, 1984, hearing was on 
the court's order to show cause and thus not technically on 
their motion. However, a ruling on the order to show cause in 
favor of the board necessarily meant that the plaintiffs' motion 
was denied. Thus, the district court did not explicitly rule on 
the latter motion.

Plaintiffs submit that the court committed error when it 
denied their motion sub silentio without affording them the 
opportunity to produce supportive evidence.

36



CONCLUSION

After twenty-one years of litigating this case, public 
elementary schools in Bibb County are still identifiable by 
race. Throughout this litigation plaintiffs have advanced 
two paramount principles: (1) the dual system should be dis­
established, and (2) the burden of desegregation should not 
fall inequitably on black students. In 1978, under circum­
stances in which their support can be described as lukewarm, 
at best, plaintiffs acceded to a plan which promised to ensure 
the upgrading and maintenance of schools serving black commun­
ities and the construction of new facilities where necessary. 
Pursuant to that order the board made certain commitments 
which it has failed to honor. Given a perceived necessity for 
closing some schools the board has chosen to do it in a manner 
which perpetuates segregation when less segregative alterna­
tives exist, and in a manner which inequitably burdens black 
school children.

On the elementary school level, plaintiffs are therefore 
deprived of any significant relief from the condition about 
which they have complained throughout this litigation.

For these reasons and those advanced above, the district 
court's opinion below should be reversed and the cause remanded 
for appropriate proceedings in which the school board would be 
charged with the responsibility of (1) closing schools in a 
manner which will promote desegregation and prevent a perpetua­
tion or recurrence of the dual system, and (2) fulfilling its

37



commitment to upgrade and maintain schools located in black 
communities and ensure that they deliver quality education.

Respectfully submitted,

JULIUS LeVONNE CHAMBERS 
JAMES M. NABRIT III 
CHARLES STEPHEN RALSTON 
THEODORE M. SHAW 

16th Floor 
99 Hudson Street 
New York, N.Y. 10013 
(212) 219-1900

THOMAS M. JACKSON 
655 New Street 
Macon, GA 31201 
(912) 746-2370

Attorneys for Plaintiffs-Appellants

38



CERTIFICATE OF SERVICE

This is to certify that we have this day served a copy 
of the foregoing Brief for Plaintiffs-Appellants on attorneys 
for defendants-appellees by United States mail, first class 
postage prepaid, addressed to the following:

W. Warren Plowden, Jr., Esq.
500 First National Bank Building 
Macon, Georgia 31201
George C. Grant, Esq.Martin, Snow, Grant & Napier 
Home Federal Building 
Macon, Georgia 31201
Robert E. Steele, Jr., Esq.
Suite 504American Federal Building 
Macon, Georgia 31201
Edward S. Sell, Jr., Esq.
Sell, Comer & Popper 
Georgia Power Building 
Macon, Georgia 31201
James F. Carson, Jr., Esq. Harris, Watkins, Taylor & Davis 
Georgia Power Building 
Macon, Georgia 31201
John D. Carey, Sr., Esq.
Old Federal Building 
Macon, Georgia 31201

This 10th day of October, 1984.

Attorney for Plaintiffs-Appellants



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