Board of Education of the City of Bessemer v. Brown Supplemental Brief of Petitioners

    IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1967.

No. 301.

TH E BOARD O F EDUCATION OF THE CITY OF BESSEMER, et al., 
Petitioners,

v.
UNITED STATES OF AMERICA, et al.,

Respondents.

SUPPLEMENTAL BRIEF OF PETITIONERS.

REID B. BARNES,
WILLIAM G. SOMERVILLE, JR., 

3 17 North Twentieth Street, 
Birmingham, Alabama, 

MAURICE F. BISHOP,
JOHN C. SATTERFIELD,

Counsel for Petitioners.
Of Counsel:

LANGE, SIMPSON, ROBINSON & SOMERVILLE,
Exchange Security Bank Building,

Birmingham, Alabama.

St . L ouis L aw  P rinting  Co., I nc., 411-15 N. Eighth St., 63101. CEntral 1-4477,



INDEX.

Page

Explanatory statement ................................................  1
Appendix 1—Opinion in case of Monroe v. Board of 

Commissioners, City of Jackson, Tenn.....................  7

Cases Cited.
Briggs v. Elliott, 132 F. Supp. 776 (E. D. S. C. 1955).. 2
Deal v. Cincinnati Board of Education, 369 F. 2d 55 

(6th Cir. 1966), petition for certiorari filed, 0. T. 
1967, No. 131 ............................................................. 2

Goss v. Board of Education of City of Knoxville, 373 
U. S. 683 ....................................................................  2

Monroe v. Board of Commissioners, City of Jackson, 
Tenn., Nos. 17118 and 17119 (6th Cir., decided July 
21, 1967) ....................................................................  1,2



IN THE

SUPREME COURT OF H E  UNITED STATES,

OCTOBER TERM, 1967.

No. 301.

THE BOARD OF EDUCATION OF THE CITY OF BESSEMER, et al„ 
Petitioners,

v.
UNITED STATES OF AMERICA, et a l.

Respondents.

SUPPLEMENTAL BRIEF OF PETITIONERS.
The purpose of this supplemental brief is to invite to 

the Court’s attention a recent decision of the 'Sixth Circuit 
Court of Appeals which was decided after the filing of our 
petition for certiorari. In that case, Monroe v. Board of 
Commissioners, City of Jackson, Tenn., Nos. 17118 and 
17119 (6th Cir., decided July 21, 1967), the Sixth Circuit 
criticizes and refuses to follow the decision below of the 
Fifth Circuit with regard to its newly adopted constitu­
tional standards governing student assignments—which is 
the principal issue as to which review is sought by our



2

petition. The Monroe opinion is printed as Appendix 1, 
infra. This decision now brings the Sixth Circuit, as well 
as the Fourth and Eighth Circuits, clearly into conflict 
with the decision below.

In Monroe the Sixth Circuit specifically rejects the view 
of the Fifth Circuit in Jefferson County that the Four­
teenth Amendment and this Court’s decisions in Brown v. 
Board of Education and its progeny affirmatively require 
compulsory integration, that the constitutional sufficiency 
of a desegregation plan depends upon its mathematical 
results, and that different constitutional duties and prin­
ciples apply to Southern schools previously having so- 
called “de jure segregation” than to Northern schools hav­
ing so-called “de facto segregation.” In doing so, the Sixth 
Circuit reaffirmed the principles previously formulated by 
it in Deal v. Cincinnati Board of Education, 369 F. 2d 55 
(6th Cir. 1966), petition for certiorari filed, 0. T. 1967, No. 
131, and applied them to two school systems in Tennessee 
which, until the commencement of desegregation suits in 
1963, had operated “de jure-segregated” schools. Ironic­
ally, the Tennessee school systems involved are located 
little more than fifty miles from schools in Alabama and 
Mississippi which are governed by the contrary decision 
of the Fifth Circuit.

The conflict between Monroe and the decision below is 
indicated in the following excerpts from the Sixth Cir­
cuit’s opinion. After noting and approving the district 
court’s conclusion that “the Fourteenth Amendment 
[does] not command compulsory integration of all of the 
schools”,1 the Sixth Circuit holds that its interpretation of 
Brown in Deal v. Cincinnati Board of Education, supra, as

1 The district court’s conclusion was based on this Court’s 
opinion in Goss v. Board of Education of City of Knoxville,
373 U. S. 683, on Briggs v. Elliott, 132 F. Supp 776 (E. D. S. C. 
1955), and on previous decisions of the Fifth Circuit which the 
decision below now overrules. See 244 F. Supp. at 356-58.



3

“prohibiting only enforced segregation” is applicable 
equally to a school system which had “de jure-segregated” 
schools:

We are at once aware that we were there [in Deal] 
dealing with the Cincinnati schools which had been 
desegregated long before Brown, whereas we consider 
here Tennessee schools desegregated only after and in 
obedience to Brown. We are not persuaded, however, 
that we should devise a mathematical rule that will 
impose a different and more stringent duty upon states 
which, prior to Brown, maintained a de jure biracial 
school system, than upon those in which the racial 
imbalance in its schools has come about from so-called 
de facto segregation—this to be true even though the 
current problem be the same in each state.

It then considers and rejects the contrary view of the 
Fifth Circuit in the decision below:

We are asked to follow United States v. Jefferson 
County Board of Education, 372 F. (2) 836 (C. A. 5,
1966), which seems to hold that the pre-Brown biracial 
states must obey a different rule than those which 
desegregated earlier or never did segregate. This 
decision decrees a dramatic writ calling for mandatory 
and immediate integration. In so doing, it distin­
guished Bell v. School City of Gary, Indiana, 324 F. 
(2) 209 (C. A. 7, 1963), cert. den. 377 U. S. 924, on 
the ground that no pre-Brown de jure segregation had 
existed in the City of Gary, Indiana, 372 F. (2) at 873. 
It would probably find like distinction in our Tina 
Deal decision because of Cincinnati’s long ago de­
segregation of its schools. We, however, have ap­
plied the rule of Tina Deal to the schools of Tennes­
see. * * * However ugly and evil the biracial school 
systems appear in contemporary thinking, they were, 
as Jefferson, supra, concedes, de jure and were once



— 4 —

found lawful in Plessy v. Ferguson, 163 U. 8. 537 
(1896), and such was the law for 58 years thereafter. 
To apply a disparate rule because these early systems 
are now forbidden by Brown would be in the nature 
of imposing a judicial Bill of Attainder. Such pro­
scriptions are forbidden to the legislatures of the 
states and the nation—U. S. Const., Art. I, Section 9, 
Clause 3 and Section 10, Clause 1. Neither, in our 
view, would such decrees comport with our current 
views of equal treatment before the law.

The opinion concludes that:
[T]o the extent that United States v. Jefferson 

County Board of Education, and the decisions re­
viewed therein, are factually analogous and express a 
rule of law contrary to our view herein and in Deal, 
we respectfully decline to follow them.

The Fourth, Sixth, and Eighth Circuits, together with 
the Fifth, embrace most of the Southern and Border states, 
which of course are those principally concerned with the 
desegregation of school systems operating segregated 
schools countenanced by state law when Brown was de­
cided in 1954. As the Fifth Circuit’s majority opinions 
below acknowledge, there certainly is no basis for ap­
plication of different constitutional standards and theories 
of constitutional interpretation to previously “ de jure- 
segregated” schools in the Fifth Circuit than to such 
schools in the Fourth, Sixth, and Eighth Circuits. Whether 
the decision below of the Fifth Circuit or the decisions of 
the Fourth, Sixth, and Eighth Circuits are ultimately 
determined to be the correct interpretation of the con­
stitutional requirements of Brown v. Board of Education, 
the anomaly of such disparate results should not be per­
mitted to stand. Petitioners therefore respectfully re­
iterate their suggestion to the Court that the questions 
raised by their petition and the decision below are of such



— 5 —

far-reaching importance to the implementation of this 
Court’s school desegregation decisions and to uniformity 
in the framing of constitutional standards by the circuits 
that their resolution by this Court through a grant of 
the writ of certiorari is fully warranted.

Respectfully submitted,

REID B. BARNES,

WILLIAM G. SOMERVILLE, JR.,
317 North Twentieth Street, 

Birmingham, Alabama,

MAURICE F. BISHOP,

JOHN C. SATTERFIELD,
Counsel for Petitioners.

Of Counsel:
LANGE, SIMPSON, ROBINSON & 

SOMERVILLE,
Exchange Security Bank Building, 

317 North Twentieth Street, 
Birmingham, Alabama.



A P P E N D I X .



APPENDIX.

Exhibit 1.

Nos. 17,118 and 17,119.

United States Court of Appeals for the Sixth Circuit.

Brenda K. Monroe et al.,
Plaintiff s-Appellants,

v.

Board of Commissioners, City of 
Jackson, Tennessee, et al., and 
County Board of Education, 
M a d i s o n  County, Tennessee, 
et al., Defendants-Appellees.

Appeal from the U. S.
District Court for 

“■ the Western Dis­
trict of Tennessee.

Decided July 21, 1967.

Before: O’Sullivan, Phillips and Peck, Circuit Judges.
O’Sullivan, Circuit Judge. In 1963 a suit was filed by 

Brenda K. Monroe and others, Negro children and their 
parents, to bring about the desegregation of the public 
schools of the City of Jackson and of Madison County, 
Tennessee.1

The District Court required the school authorities to 
submit plans to accomplish desegregation and ultimately 
granted the relief sought by approving parts of a submit­
ted plan and ordering other steps to be taken. Separate 
opinions were written, one involving the City of Jackson 
schools, reported as Monroe v. Board of Commissioners of 
the City of Jackson, Tennessee, et al., 221 F. Supp. 968

1 The City of Jackson is located in Madison County and the 
respective school authorities are the Board of Commissioners 
of the City of Jackson and the County Board of Education of 
Madison County.



—  8 —

(W. D. Tenn. E. D. 1963), and the other relating to Mad­
ison County Schools, reported in Monroe v. Board of Com­
missioners, etc., et al, 229 F. Supp. 580 (W. D. Tenn. 
E. D. 1964). Appeals to this Court from these cases were 
dismissed by agreement. Obedient to the above decisions, 
all grades of the schools involved have been desegregated.

The litigation with which we now deal arises from Mo­
tions for Further Relief filed in the District Court by 
plaintiffs. By these motions, plaintiffs, sought to accom­
plish greater integration of the school children, desegrega­
tion of the teaching staffs, and the enjoining of described 
practices of the school authorities which were alleged to 
be violative of the District Judge’s original decrees and 
contrary to new developments in the law. The District 
Judge, again, dealt separately with the city and the county 
schools in disposing of the Motions for Further Relief. 
His decision as to the city schools is reported in Monroe 
v. Board of Commissioners, City of Jackson, 244 F. Supp. 
353 (W. D. Tenn. E. D. July 30, 1965), and as to the 
county schools in Monroe v. Board of Education, Madison 
County, Tennessee, et al. . . .  F. Supp. . . .  (W. D. Tenn. 
E. D. August 2, 1965). These are the cases before us on 
this appeal; the plaintiffs are the appellants. These opin­
ions, with the earlier ones reported at 221 F. Supp. 968 and 
229 F. Supp. 580, swpra, set out the facts and we will re­
state them only where needed to discuss the present con­
tentions of the plaintiffs-appellants.

1) Compulsory Integration.

Appellants argue that the courts must now, by recon­
sidering the implications of the Brown v. Board of Edu­
cation decisions in 347 U. S. 483 (1954), and 349 U. S. 294 
(1955), and upon their own evaluation of the commands 
of the Fourteenth Amendment, require school authorities 
to take affirmative steps to eradicate that racial imbalance



— 9 —

in their schools which is the product of the residential 
pattern of the Negro and white neighborhoods. The Dis­
trict Judge’s opinion discusses pertinent authorities and 
concludes that the Fourteenth Amendment did not com­
mand compulsory integration of all of the schools regard­
less of an honestly composed unitary neighborhood system 
and a freedom of choice plan. We agree with his con­
clusion. We have so recently expressed our like view in 
Tina Deal et al. v. The Cincinnati Board of Education, 
389 F. (2) 55 (CA 6, 1966), petition for cert, filed, 35 LW 
3394 (U. S. May 5, 1967) (No. 1358), that we will not here 
repeat Chief Judge Weick’s careful exposition of the rele­
vant law of this and other circuits. He concluded, “ We 
read Brown as prohibiting only enforced segregation” . 
369 F. (2) at 60. We are at once aware that we were there 
dealing with the Cincinnati schools which had been de­
segregated long before Brown, whereas we consider here 
Tennessee schools desegregated only after and in obedi­
ence to Brown. We are not persuaded, however, that we 
should devise a mathematical rule that will impose a dif­
ferent and more stringent duty upon states which, prior 
to Brown, maintained a de jure biracial school system, 
than upon those in which the racial imbalance in its 
schools has come about from so-called de facto segrega­
tion—this to be true even though the current problem be 
the same in each state.

We are asked to follow United States v. Jefferson County 
Board of Education, 372 F. (2) 836 (CA 5, 1966), which 
seems to hold that the pre-Brown biracial states must 
obey a different rule than those which desegregated ear­
lier or never did segregate. This decision decrees a dra­
matic writ calling for mandatory and immediate integra­
tion. In so doing, it distinguished Bell v. School City of 
Gary, Indiana, 324 F. (2) 209 (CA 7, 1963), cert, den. 377 
U. S. 924, on the ground that no pre-Brown de jure seg­
regation had existed in the City of Gary, Indiana. 372 F.



—  10 —

(2) at 873. It would probably find like distinction in our 
Tina Deal decision because of Cincinnati’s long ago de­
segregation of its schools. We, however, have applied the 
rule of Tma Deal to the schools of Tennessee. In Mapp 
v. Board of Education, 373 F. (2) 75, 78 (CA 6, 1967), 
Judge Weick said,

“ To the extent that plaintiffs’ contention is based 
on the assumption that the School Board is under a 
constitutional duty to balance the races in the school 
system in conformity with some mathematical for­
mula, it is in conflict with our recent decision in Deal 
v. Cincinnati Board of Education, 369 F. (2) 55 (6th 
Circ. 1966).”

However ugly and evil the biracial school systems appear 
in contemporary thinking, they were, as Jefferson, supra, 
concedes, de jure and were once found lawful in Plessy v. 
Ferguson, 163 U. S. 537 (1896), and such was the law for 
58 years thereafter. To apply a disparate rule because 
these early systems are now forbidden by Brown would 
be in the nature of imposing a judicial Bill of Attainder. 
Such proscriptions are forbidden to the legislatures of the 
states and the nation—U. S. Const., Art. I, Section 9, 
Clause 3, and Section 10, Clause 1. Neither, in our view, 
would such decrees comport with our current views of 
equal treatment before the law.

This is not to say that Tennessee school authorities can 
dishonestly construct or deliberately contrive a system for 
the purpose of perpetuating a “ maximum amount” of its 
pre-Brown segregation. Northeross v. Board of Educa­
tion of City of Memphis, 33 F. (2) 661, 664 (CA 6, 1964). 
But to the extent that United States v. Jefferson County 
Board of Education, and the decisions reviewed therein, 
are factually analogous and express a rule of law contrary 
to our view herein and in Deal, we respectfully decline to 
follow them.



—  11 —

2) Gerrymandering.
Appellants assert that while giving surface obedience 

to the establishment of a unitary zoning system and free­
dom of choice, the school officials of the City of Jackson 
had been guilty of “ gerrymandering” in order “ to pre­
serve a maximum amount of segregation.” Were this true, 
it would be violative of the law. Northcross v. Board of 
Education of City of Memphis, 302 F. (2) 818, 823 (CA 
6, 1962), cert. den. 370 U. S. 944, and Northcross v. Board 
of Education of City of Memphis, 333 F. (2) 661, 664 (CA 
6, 1964). The District Judge in the instant matter did 
hold that as to some boundary lines “ there appears to be 
gerrymandering.” Monroe v. Board of Commissioners, 
City of Jackson, supra, 244 F. Supp. at 361. As to these in­
stances, he ordered changes in the school zone lines. Id. 
at 361, 362. But, as to the junior high schools, he con­
cluded,

“ that the proposed junior high school zones proposed
by defendants do not amount to gerrymandering.”
244 F. Supp. at 362.

Without making our own recitation of the relevant evi­
dence, we express our agreement with the District Judge.

3) Faculty Desegregation.

In the accomplishment of desegregation in the involved 
schools, there remain some that are attended only by 
Negro and other only by white children. The teaching 
staff conforms substantially to this pattern—all Negro 
teachers in the all Negro schools and all white teachers 
in the all white schools. Little attention was paid to the 
teaching staff in the early desegregation cases. Brown v. 
Board of Education, supra, did not speak on it, nor did 
the early relevant decisions from this circuit. In Mapp v. 
Board of Education of Chattanooga, 319 F. (2) 571, 576 
(CA 6, 1963), however, we ordered restored to the com-



—  12 —

plaint there involved allegations and prayers for relief 
relating to assignment of teachers and principals, hut 
ordered also that “ decision of the legal question presented 
await development of the progress of the plan approved.” 
319 F. (2) at 576. And we further concluded that “ within 
his discretion, the District Judge may determine when, if 
at all, it becomes necessary to give consideration to the 
question. . . . ” Ibid.

This leisurely postponement of consideration of faculty 
desegregation appealed to the Fourth Circuit, when in 
Bradley v. School Board of City of Richmond, Virginia, 
345 F. (2) 310, 320, 321 (CA 4, 1965), it said:

‘ ‘ The possible relation of a reassignment of teachers 
to protection of the constitutional rights of pupils 
need not be determined when it is speculative. When 
all direct discrimination in the assignment of pupils 
has been eliminated, assignment of teachers may be 
expected to follow the racial patterns established in 
the schools. An earlier judicial requirement of gen­
eral reassignment of all teaching and administrative 
personnel need not be considered until the possible 
detrimental effects of such an order upon the adminis­
tration of the schools and the efficiency of their staffs 
can be appraised along with the need for such an 
order in aid of protection of the constitutional rights 
of pupils.”

But the Supreme Court declared this would not do, and 
in Bradley v. School Board, 382 U. S. 103 (1965), re­
manded the case to require the Richmond School Board 
to proceed with study and resolution of the faculty in­
tegration question, stating:

“ There is no merit to the suggestion that the 
relation between faculty allocation on an alleged 
racial basis and the adequacy of the desegregation 
plans is entirely speculative.” 382 U. S. at 105.



13 —

The Bradley opinion was followed by Rogers v. Paul,
et al., 382 U. S. 198 (1965); once again the Supreme Court 
remanded the cause for consideration of the faculty de­
segregation problem.

The District Judge in the matter now before us did 
hear some evidence on the question of faculty desegrega­
tion and concluded:

“ We do not believe that the proof of the plaintiffs 
is sufficiently strong to entitle them to an order re­
quiring integration of the faculties and principals.” 
244 F. Supp. at 364.

He did, however, attack a then current policy of the 
school authorities whereby white teachers and Negro 
teachers, “ simply because of their race,” were respec­
tively assigned only to schools whose pupils were all or 
predominantly of that teacher’s race. The order imple­
menting his decision contained the following:

The application of plaintiffs for an order requir­
ing integration of faculty is at this time denied. How­
ever, the policy of defendants of assigning white 
teachers only to schools in which the pupils are all or 
predominantly white and Negro teachers only to 
schools in which the pupils are all Negro is by this 
order rescinded to the extent that white teachers, who 
so desire, will not be barred from teaching in schools 
in which the pupils are all or predominantly Negro, 
and Negro teachers, who so desire, will not be barred 
from teaching in schools in which the pupils are all 
or predominantly white.

To implement this change in policy, defendants 
must forthwith, as to substitute teachers, and each 
year beginning with the year 1966-67, as to all 
teachers, publicize it and obtain from each teacher 
an indication of willingness or an indication of objec­
tion to teaching in a school in which the pupils are 
all or predominantly of the other race. All teachers



•—14 —

who indicate such a willingness will be assigned to 
schools without consideration of the teacher or the 
pupils, but all other usual factors may be considered 
in assigning teachers. Nothing in this order, however, 
will be construed as requiring the assignment of an 
objecting teacher to a school in which the pupils are 
all or predominantly of the other race or will be con­
strued as requiring a refusal to employ or a dismissal 
of a teacher who objects to teaching in such a school. 
This change in policy will be effective as to substitute 
teachers during the remainder of the school year 
1965-66 and as to all teachers beginning with the 
school year 1966-67.”

We note that this order was handed down before 
Bradley v. School Bd., supra, and we are constrained to 
hold that it does not commit or require the school author­
ities to adopt an adequate program of faculty desegre­
gation which will pass muster under the implied com­
mand of the Bradley case. Whatever Bradley’s clear 
language, we cannot read it otherwise than as forbidding 
laissez faire handling of faculty desegregation. It implies 
that the accomplishment of that goal cannot be left to the 
free choice of the teachers and that the Board must 
exercise its authority in making faculty assignments so as 
to assist in bringing to fruition the predicted benefits of 
school desegregation.

No Supreme Court decision, however, has as yet pro­
vided a blue print that will achieve faculty desegregation. 
The United States Office of Education has indicated that, 
in some affirmative way, school boards must act to correct 
past discriminatory practices in the assignment of 
teachers.2 But its recommendations do not have the force

2 Ҥ 181.13 Faculty and Staff
(a) Desegregation of Staff. The racial composition of the 

professional staff of a school system, and of the schools in the 
system, must he considered in determining whether students are



15 —

of law; neither does it provide clear guidelines to make 
easy the job of school boards in dealing with this problem. 
It will be difficult to eliminate the forcing of people into 
places and positions because of race and at the same time 
compulsorily assign a school teacher on the basis of his or 
her race.

It is sufficient for us to say now that the formula an­
nounced by the District Judge, leaving the decision of 
integration of the faculties to the voluntary choice of the

subjected to discrimination in educational programs. Each 
school system is responsible for correcting the effects of all 
past discriminatory practices in the assignment of teachers and 
other professional staff.

(b) New assignments. Race, color, or national origin may not 
be a factor in the hiring or assignment to schools or within 
schools of teachers and other professional staff, including stu­
dent teachers and staff serving two or more schools, except to 
correct the effects of past discriminatory assignments.

(d) Past assignments. The pattern of assignment of teach­
ers and other professional staff among the various schools of 
a system may not be such that schools are identifiable as in­
tended 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, 
jor the majority, of the students are of that race. Each school 
system has a positive duty to make staff assignments and re­
assignments necessary to eliminate past discriminatory assign­
ment patterns. Staff desegregation for the 1966-67 school year 
must include significant progress beyond what was accom­
plished for the 1965-66 school year in the desegregation of 
teachers assigned to schools on a regular full-time basis. Pat­
terns of staff assignment to initiate staff desegregation might 
include, for example: (1) Some desegregation of professional 
staff in each school in the system, (2) the assignment of a 
significant portion of the professional staff of each race to par­
ticular schools in the system where their race is a minority 
and where special staff training programs are established to 
help with the process of staff desegregation, (3) the assign­
ment of a significant portion of the staff on a desegregated 
basis to those schools in which the student body is desegre­
gated, (4) the reassignment of the staff, of schools being closed 
to other schools in the system where their race is a minority, 
or (5) an alternative pattern of assignment which will make 
comparable progress in bringing about staff desegregation suc­
cessfully.



— 16 —

teachers, does not obey current judicial commands. We, 
therefore, remand this phase of the litigation to the Dis­
trict Judge to reconsider upon a further evidentiary hear­
ing the matter of faculty desegregation.

4) Desegregation of Teachers Organizations.
It appears that at the time of the hearing in the District 

Court there existed in Tennessee two voluntary organiza­
tions, the Tennessee Education Association, whose mem­
bership was confined to white teachers, and the Tennessee 
Education Congress, made up of Negro teachers. Tradi­
tionally, the School Board allowed separate holidays to 
permit the members of these organizations to attend so- 
called ‘ ‘ teacher in-training ’ ’ programs. The District Judge 
dealt with this subject as follows:

“ Plaintiffs also seek an order prohibiting segrega­
tion of teacher in-service training. Although the proof 
is not completely clear, it appears that the only such 
segregation that remains results from the fact that the 
white teachers and the Negro teachers are members 
of separate professional organizations. It appears 
without dispute that defendants do not control the 
policies of these organizations. In any event, as here­
tofore indicated, the Mapp case, supra, holds that 
plaintiffs have no standing to assert any constitutional 
claims that the teachers may have and may assert a 
claim for teacher desegregation only in support of 
their constitutional right, as pupils, to an abolition of 
discrimination based on race. The assertion by plain­
tiffs that what remains of segregation in teacher in- 
service training has an effect on their right as pupils 
is, on the proof in this case extremely tenuous. We 
deny this application for relief.” 244 F. Supp. at 365.

The evidence on this subject is too meager to permit us 
to evaluate the extent to which the school authorities par­
ticipated in or aided the activities of these separate



— 1 7 —

teacher organizations, and the degree to which member­
ship by the teachers in them would, in turn, affect the 
rights of the pupils. It appears, however, that these in- 
service training programs for teachers are conducted pur­
suant to state law, and are financed with public funds.3 
We make clear that the plaintiff pupils do have standing 
to assert that the existence of separate teacher organiza­
tions based on race and the school authorities’ coopera­
tion with their separated activities such as the in-training 
program “ impairs the students’ rights to an education 
free from any consideration of race.” Mapp v. Board, 
supra, 319 F. (2) at 576. If the District Judge’s above 
quoted language can be read as a contrary holding, it is 
error. We also remand this issue to the District Judge for 
further consideration.

5) The Jackson Symphony Orchestra.
It appeared that the Jackson Symphony Association, 

with permission of the school authorities, arranged for a 
program by the Jackson Symphony Orchestra at one of 
the Jackson schools. The ladies in charge of this event in­
vited the children in several grades of the Jackson City 
Schools, the County schools, and the Catholic schools. 
Those students included some from the all-white schools, 
and some from the schools, public and parochial, contain­
ing both Negro and white students. Students in all-Negro 
schools were not invited for the two performances in­
volved. Testimony by one of the ladies of the Symphony 
Association denied any discriminatory motivation in the 
selection of the pupils, suggesting that the capacity of the 
auditorium was exhausted by those invited and in at­
tendance. She said,

“ If we had room, we would have had every child in 
town there—fourth, fifth and sixth grades of every 
school, but we didn’t have room.”

8 See e. g., Chap. 76, Term. Public Acts, 1965, Sec. 24.



18 —

The school authorities had nothing to do with the mat­
ter of who was to he chosen to attend the concert. Its 
only participation was to allow the use of the auditorium. 
While it would be impermissible for school authorities to 
allow use of school facilities for entertainment that was 
discriminatory, nothing was developed by the evidence to 
cause us to criticize the District Judge’s conclusion that 
the “ defendants were not motivated by racial considera­
tions” in their handling of this matter. Monroe v. Board 
of Commissioners, supra, 244 F. Supp. at 365.

Another issue discussed by the District Judge, . . .  F. 
Supp. at . . . ,  the so-called “ split season,” has been ren­
dered moot by the elimination of the practice.

The cause is remanded to the District Judge for further 
consideration of the matter of faculty desegregation and 
teacher in-service training, and is otherwise affirmed.



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