Yarbrough v. The Hubert-West Memphis School District No. 4 Brief for Plaintiffs-Appellants
Public Court Documents
November 15, 1971

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Brief Collection, LDF Court Filings. Yarbrough v. The Hubert-West Memphis School District No. 4 Brief for Plaintiffs-Appellants, 1971. 06702ba9-c99a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/1217e890-e452-43a9-ac3a-cb888641bdf2/yarbrough-v-the-hubert-west-memphis-school-district-no-4-brief-for-plaintiffs-appellants. Accessed July 09, 2025.
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NO. 71-1524 DELOIS YARBROUGH, et al.. Appellants, v. THE HULBERT-WEST MEMPHIS SCHOOL DISTRICT NO. 4, et al.. Appellees. NO. 71-1510 DELOIS YARBROUGH, et al.. Appellees, v. THE HULBERT-WEST MEMPHIS SCHOOL DISTRICT NO. 4, et al.. Appellants. IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT BRIEF FOR PLAINTIFFS-APPELLANTS JACK GREENBERG NORMAN J. CHACHKIN 10 Columbus Circle New York, New York 10019 GEORGE HOWARD, JR. 329*5 Main Street Pine Bluff, Arkansas 71601 Attorneys for Plaintiffs- Appe Hants INDEX PRELIMINARY STATEMENT................ ISSUES PRESENTED FOR REVIEW.......... STATEMENT.................... ARGUMENT THE DISTRICT COURT'S REQUIREMENT THAT A THIRTY PER CENT MINORITY ENROLLMENT BE MAINTAINED IN EACH SCHOOL IS ILL CONCEIVED AND FAILS TO CREATE A UNITARY SCHOOL SYSTEM IN WEST MEMPHIS ................ CONCLUSION........ TABLE OF CASES Clark v. Board of Educ. of Little Rock- 426 F.2d 1035 (8th Cir. 1970) ............... Clark v. Board of Educ. of Little Rock, No. 71-1409 (8th Cir., Sept. 10, 1971)................... Davis v. Board of School Commr's of Mobile 402 U.S. 33 (1971).................. [ Davis v. School District of Pontiac, 309 F.*Supp! 734 (E.D. Mich. 1970), aff'd 443 F.2d 573 (6th Cir.), cert, denied, ___ U.S. (1971).. Green v. County School Board of New Kent Countv 391 U.S. 430 (1968)..................... .. Kemp v. Beasley, 423 F.2d 851 (8th Cir. 1970)..... . Swann v. Charlotte-Mecklenburg Board of Educ 402 U.S. 1 (1971).................. Whitley v. Wilson City Board of Educ., 427 F 2d 179 (4th Cir. 1970)....................... *...... Yarbrough v. Hulbert-West Memphis School District 380 F. 2d 962 (8th Cir. 1967)............... Yarbrough v. Hulbert-West Memphis School District, 243 F. Supp. 65 (E.D. Ark. 1965)........... [. 15 16 13,14n 13 11,12 15 3,4,12, 16 9 2 2n, 13 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT NO. 71-1524 DELOIS YARBROUGH, et al., Appellants, v. THE HULBERT-WEST MEMPHIS SCHOOL DISTRICT NO. 4, et al., Appellees. NO. 71-1510 DELOIS YARBROUGH, et al.. Appellees, v. THE HULBERT-WEST MEMPHIS SCHOOL DISTRICT NO. 4, et al.. Appellants. BRIEF FOR PLAINTIFFS-APPELLANTS PRELIMINARY STATEMENT This is an appeal from an order of the United States District Court for the Eastern District of Arkansas, Hon. Garnett Thomas Eisele, united States District Judge. ISSUES PRESENTED FOR REVIEW I* Aether the district court's establishment of minimum ratio requirements was proper. 2. Whether the plan approved by the district court fails to establish a unitary school system in West Memphis because it permits substantially disproportionate student racial enrollments characteristic of the traditional racial identity of the schools. STATEMENT This^school desegregation case was commenced January 28, 1965 (2a), and was last before this Court in 1967, Yarbrough — — Hiilbert-West Memphis School District. 380 F.2d 962 (8th Cxr. 1967), at which time this Court declined to disapprove the school district's freedom-of-choice plan but directed greater faculty desegregation. November 12, 1970, new plaintiffs, members of the class on whose behalf the action had originally been brought, sought leave to intervene (5a-6a) alleging that faculty segregation was continuing and that defendants had not undertaken affirma tively to dismantle their dual school system (7a-9a). Defendants did not oppose intervention but suggested proceedings be stayed pending decision of the United States Supreme Court in — Citations are to the Appendix herein. —/ T*le Previous district court opinion is reported at 243F. Supp. 65 (E.D. Ark. 1965). -2- Swann v._Charlotte-Mecklenburg Board of Educ.. 402 U.S. 1 (1971) (lOa-lla), and on December 10 the district court granted leave to intervene (12a). Statistical information for the 1970-71 school year requested by the district court and counsel for the plaintiffs showed (15a) three all-black schools in the system and two additional schools over 99% black. Four schools had no Negro faculty members (16a-17a); two schools had two or fewer white teachers and four other schools had between one and four black teachers each (ibid.). The district had closed one formerly all-black school at the beginning of the 1970-71 school year (18a). Pursuant to the suggestion of the district court at an unrecorded pretrial conference and by letter to counsel, the school district filed a proposed plan of desegregation to replace freedom of choice on or about February 12, 1971 (75a- 78a). This plan proposed to pair West Memphis and Wonder Senior High Schools commencing March 6, 1971 (teaching all students in grades 11 and 12 at the West Memphis school and all students in grade 10 at the Wonder site); to reassign on that date all black junior high school students living outside the West Memphis city limits, who were previously transported to Wonder Junior High School, to the East and West Junior High Schools— but not to reassign any white students to Wonder Junior High; and to implement on that date majority-to-minority transfer rights for junior high and elementary school students -3- (with no guarantee of free transportation for students exercising transfer rights). Plaintiffs objected to the selection of West Memphis Senior High School to house the upper grades, to the sufficiency of the elementary and junior high school desegregation plans, and to the sufficiency of defendants' proposed faculty reassign ments (79a-80a). Following a further pretrial conference, the district court required submission of a new and comprehen sive desegregation plan but approved the board's senior high school and faculty desegregation proposals on an interim basis for the second semester of the 1970-71 school year (85a-86a). On April 2, 1971, the school district filed a tentative "plan of desegregation" for 1971-72 which would have maintained the pairing of the senior high schools, "gerrymandered," "wherever feasible and workable," elementary and junior high school "geographic attendance zones [otherwise] drawn so as to assign students to the school closest to their homes, to increase integration," and assigned at least 25% minority race faculty members to each school in the system (87a-88a). Plaintiffs' subsequent objections noted, inter alia, the district's failure to project enrollments or delineate zone lines under its plan (89a-90a). On May 21, 1971, the district court ordered the district to file another plan for the 1971-72 school year, designed to meet the requirements of Swann, supra. The district's final proposal included the following: (1) pair the high schools as -4- in 1970-71; (2) zone junior high schools so that each would 47%, 50% and 53% black students, respectively; (3) zone elementary schools so that two schools would enroll 23% and 27% white students, respectively, and four schools would enroll between 65% and 71% white students; (4) assign faculty substantially in accord with the system-wide ratio (93a-103a). Plaintiffs objected to the district's plan and proposed a restructuring of grade levels in the West Memphis school system so as to close Wedlock Elementary as an identi- fiably black school and increase the proportion of blacks attending the traditionally white schools in the system (104a- 107a). The matter was tried to the court on July 6, 1971 (108a-298a). 1*he contentions of the parties at the trial were relatively simple and straightforward. Plaintiffs' expert witness. Dr. Michael j. Stolee, whose qualifications are set out in the testimony (227a-229a), discussed his reservations as an educator and desegregation expert about the school district's elementary school plan (233a). These were basically that most schools would remain racially identifiable, with traditionally white schools enrolling disproportionately low percentages of black students and Wonder and Wedlock schools (both formerly black schools) enrolling disproportionately low percentages of white students. Dr. Stolee expressed particular concern about the chances that the Wedlock School would actually enroll the 101 whites who were to be assigned to it; these white children had previously been transported by the district into West -5- Memphis to attend white schools (268a-269a; 287a). Stolee offered an alternative plan involving the closing of the predominantly black Wedlock school. The white students whom the school district would assign to Wedlock would instead be assigned to Wonder; the black students who formerly attended Wedlock would be distributed among the traditionally white elementary schools in West Memphis (252a). In order to utilize the capacity of each school without over crowding, Dr. Stolee's plan proposed a grade reorganization, moving from a 6-3-3 organization to a 5-3-2-2 structure (251a) He testified that in his opinion the plan was educationally sound and feasible for the West Memphis school district (271a) and he pointed out that an increasing number of American school systems are currently adopting middle school, grades 6-8 programs— the essence of his proposed grade reorganization (234a-235a). Defendants called the Superintendent who justified their plan on the grounds that it provided for the minimum necessary departure from the principles of neighborhood school zoning while still representing increased sesegregation, that the school district did not favor the middle school concept but believed sixth grade students should remain in elementary schools, that implementation of grade restructuring and more transportation would be disruptive, that execution of Dr. Stolee's plan would require up to five additional buses which the school district neither had nor could afford to purchase, and that the Wedlock School was in satisfactory condition, was -6- a source of community pride, and ought not to be closed (137a- 145a, 150a-151a, 156a). The only other witness for the defendants was the principal of Wedlock for some twenty years, who supported the Superintendent's desire not to close the facility (222a). Dr. Stolee estimated the chances of effectuating successful desegregation to be greater if Wedlock were closed (233a) and also testified that isolated, rural schools in homogeneously low-income areas such as Wedlock (202a) do not and cannot offer an education comparable to that available in the West Memphis city schools (240a-241a). (The district did not propose to assign any city children to Wedlock.) Finally, Dr. Stolee said that he understood the feelings of some of the black community around the Wedlock School but that their emotional ties to the school and desire for its retention was secondary to the need for desegregation, in his opinion (284a). The district court followed neither the approach taken by the defendants nor that suggested by the plaintiffs. Instead, while rejecting the district's proposal as formulated because it would maintain schools with enrollments substantially disproportionate to the system-wide enrollment (307a), the district court modified the plan to impose a minimum 30% minority-race enrollment requirement at each school and indicated it would approve the plan as modified (310a). The school district filed revised attendance zones which projected at least 30% black students in the formerly white -7- schools and at least 30% white students in the formerly black schools (316a-317a) and the district court approved the plan (318a). Subsequently, after the 1971-72 school year had begun but before the filing of a report by the school district, a group of proposed intervenors brought to the attention of the district court and counsel the fact that the white student enrollment at Wonder Elementary School was considerably below 30% (322-323a). The district court by letter directed the school district to modify its plan (by transferring students from schools in which their race is in the majority to other schools in which their race would be in the minority, or otherwise) so as to maintain the 30% minimum minority enroll ment (331a-333a), and denied a stay of its order which had been sought by the school district (324a-330a). The district thereupon proposed modifications of its plan for implementation on October 11, 1971 to achieve enrollment shifts (334a-339a)? the district court approved the modifications on the day that they were filed (340a-341a). The report prepared by the district as of October 27, 1971 shows (342a—343a) that as of this time each elementary school had at least a 30% minority enrollment. However, the three formerly black elementary schools enroll 63%, 67% and 70% black students, respectively, while three formerly white ele mentary schools enroll 57%, 61% and 62% white students, respectively? the entire system is now 53% black, 47% white (335a). -8- ARGUMENT THE DISTRICT COURT'S REQUIREMENT THAT A THIRTY PER CENT MINORITY ENROLLMENT BE MAINTAINED IN EACH SCHOOL IS ILL CON CEIVED AND FAILS TO CREATE A UNITARY SCHOOL SYSTEM IN WEST MEMPHIS. It should not be taken as any indication of rough-hewn justice that all of the parties to this litigation are dis satisfied with the district court's resolution of the contro versy. Plaintiffs have appealed because the district court's order sanctions— indeed contemplates— assignment of students to the West Memphis public schools in a manner which preserves the racial identity of those schools. The defendants have cross appealed the decree which requires them to readjust boundary lines and make midyear reassignments of students in order to maintain an artificial racial composition in its schools (325a). And a group of parents whose children have been made the subject of that reassignment process (compare Whitley v. Wilson City Board of Educ., 427 F.2d 179 (4th Cir. 1970)) have intervened seeking provision of transportation for West Memphis city students reassigned to comply with the order and maintenance of stable, integrated school populations (323a). This case may be a rarity among school desegregation cases in this Circuit: one in which the plaintiffs and the defendants agree that the lower court's decree is in error. The real issue on this appeal is what must replace that decree. -9- Plaintiffs argue that if this Court agrees that the lower court's decree is defective because it maintains a pattern of racially identifiable schools, a fortiori the Constitutional mandate will not be satisfied by implementing the defendants' original proposal; we would expect defendants to argue the contrary. In fairness to the district court, we should state that its opinion and its later correspondence reveal substantial doubt on the part of the court about the efficacy of the plan approved by its order. See the court's trial comments (294a). The opinion recognizes the problem with defendants' plan to be the projected enrollments of 23% and 21% white students at Wedlock and Wonder, traditionally black elementary schools (307a). While the court states that it is imposing a higher minority race enrollment requirement as a modification of defendants' plan in an attempt to insure a workability which the court doubts would be achieved by the district's plan without modification (311a), the lower court goes out of its way to invite the school district to adopt and submit a dif- f^^snt plan which would "dramatically reduc[e] the imbalance" inherent in even the modified plan and avoid the midyear reassignments which the district court clearly foresaw as a distinct possibility under its order (310a-311a). Subsequently, when modification of the plan during the course of the present school year was made necessary because the projected enrollments at several schools failed to materia -10- lize, the court again reminded the parties that it would have welcomed submission of a different plan by the defendants, although it felt barred from considering a new plan at the time because the matter had been appealed (333a). And in approving the board's modifications, the district court said that "[t]he problem that has developed was clearly foreseeable back in June and July, and was in fact foreseen and discussed at the earlier hearing" (341a). Yet the district court somehow felt obligated to approve a plan based upon defendants' alleged concepts of neighborhood zoning and a 6-3-3 grade structure while recognizing that even as modified in accordance with its order, the plan would bring about "minimum" desegregation (310a): Before even considering any other plan, it is incumbent upon the Court to examine the pro posal of the school board. if that plan [even barely] meets constitutional requirements, the Court should look no further. It is for the school board, not the Court, to establish educational policy. And it is not for the Court to pick and choose among various plans where each meets constitutional requirements (307a). This passive attitude is startling, and we submit, led the court into accepting a plan which its instincts correctly told it would not work. There was ample authority to support the district court's obligation to select a plan which did away with the pattern of racially identifiable schools in West Memphis, and which achieved more than "minimum" desegregation. In Green v. County School Board of New Kent County. 391 u.S. 430, 439 (1968), the Supreme Court said: -11- The obligation of the district courts, as it always has been, is to assess the effectiveness of a proposed plan in achieving desegregation ... in light of the circumstances present and the options available in each instance. it is incumbent upon the school board to establish that its proposed plan promises meaningful and immediate progress toward disestablishing state- imposed segregation. it is incumbent upon the district court to weigh that claim in light of the facts at hand and in light of any alternatives whi_ch may be shown as feasible and more promising in their effectiveness--- Of course, where other, more promising courses of action are open to the board, that may indicate a lack of good faith; and at the least it places a heavy burden upon the board to explain its preference for an apparently less effective method. Whatever doubts there may have been, whatever ambiguities may have resided in the Green language, the directive of Swann v. Charlotte-Mecklenburg Board of Educ.. 402 U.S. 1, 26 (1971) is clear; the court must select that plan among the alterna tives presented to it which achieves the greatest amount of desegregation. But the district court here deferred to the defendants' expressed desire to maintain what it characterized as a modified neighborhood school plan (309a). As the Supreme Court has suggested, such deference is ill-placed when desegre gation is not thereby maximized: As we have held, "neighborhood school zoning," whether based strictly on home-to-school distance or on "unified geographic zones" is not the only constitutionally permissible remedy; nor is it P^r se adequate to meet the remedial responsibili ties of local boards. Having once found a viola tion, the district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation. A district court may and should consider the use °f all available techniques including restructuring °f attendance zones and both contiguous and non— -12- contiguous attendance zones. See Swann, supra, at 22-31. The measure of any desegregation plan is its effectiveness. Davis v. Board of School Commr's of Mobile. 402 U.S. 33, 37 (1971). (emphasis supplied in part). Furthermore, this is a school system in which there ought to be a strong presumption against a "neighborhood school" zoning plan which achieves anything less than maximum desegre gation. School site location and school construction establish school "neighborhoods" for the purposes of assignment of students. In West Memphis, where a strict biracial school system was enforced until the 1965-66 school year without exception, Yarbrough v. Hulbert-West Memphis School District. 243 F. Supp. 65 (E.D. Ark. 1965), most of the schools presently operating were constructed after 1954 in racially homogeneous "neighbor hoods" and designed to serve students of the predominant race residing in such "neighborhoods" (169a-175a). The Super intendent admitted that white schools were planned and built in white communities and black schools were planned and built in black communities (176a). Under such circumstances, a "neighborhood" plan is almost necessarily foredoomed to failure. Cf. Davis v. School District of Pontiac. 309 F. Supp. 734 (E.D. Mich. 1970), aff'd 443 F.2d 573 (6th Cir.), cert, denied ___ U.S. ___ (1971) . The prospects for success of any such plan are also dimmed by the deliberate location of public housing projects designed for predominant occupancy by one race adjacent to schools serving students of that race (178a-181a). And the district's -13- claims for its "neighborhood school system" are vitiated by its consistent disregard of "neighborhood zone lines" in the past in order to achieve segregation. As recently as 1970-71, white students outside the city limits who were living closer to the Wedlock school than any other district facility were transported at school district expense to white schools inside West Memphis. The solution adopted by the district court erroneously attempts to maintain a "neighborhood school" system that never was; it does not meet constitutional standards because it sets up artificial ratios which result in racially identifiable schools. The October 27, 1971 attendance figures submitted by the 3/ defendants show that the three formerly black elementary schools. Wonder, Jackson and Wedlock, have black enrollments signifi- 1/cantly greater than those of other schools in the system. On 1 / This Court may consider the actual effects of defendants' modified plan, as implemented, in measuring its constitutional sufficiency. See Davis v. Board of School Commr's of Mobile. 402 U.S. 33, 37 (1971). The lower court's opinion, in fact, indicates that the court anticipated reconsidering this matter if the plan as implemented did not achieve the expected desegre gation (309a). However, the district court has now taken the position (332a-333a) that it cannot change its order while the case is on appeal. Plaintiffs, who were put to a Hobson's choice of accepting what they considered to be an insufficient order in the hope that the district court would change its order in the fall, or appealing that insufficient order and divesting the district court, in its view, of jurisdiction to change its order, are thus enduring a non-unitary and unconsti tutionally constituted school system because of litigation delays— even though there is reason to suspect that the district court may have concluded that the plan now in effect fails to meet constitutional standards. Plaintiffs attempted to persuade the district court of its power to act (see Appendix A) but as yet to no avail. 4/ Under defendants' plan, Jackson Elementary was projected to be majority-white (317a), but because the school district under- -14- the other hand, the formerly white Weaver and Richland elemen tary schools enroll 62% and 61% white students, respectively. The other formerly white schools are 49%, 53% and 57% white (344a). we submit that this plan, and these results, do not shake loose the racial identities which the defendants have over the years affixed to the schools. Those schools which remained all-black during operation under freedom of choice will have a distinctively and consistently higher black enrollment than other schools in the system. Similarly, many of the traditionally white schools remain sharply distinguish able because of their relatively lower black enrollments. We intend no disagreement with this Court's statement in Kemp v. Beasley, 423 F.2d 851, 857 (8th Cir. 1970) that "[w]e certainly can conceive of a fully desegregated system where percentages do vary from school to school and where even one school might have a black majority and another a white majority but still, when all factors are fairly and unemotionally considered, the system is 'unitized' within the Supreme Court's Alexander requirement." That is not this case, or this plan, which deliberately sets out to achieve minimal desegregation in a fashion which maintains the pattern of higher black enroll ments at traditionally black schools and vice versa, and thus preserves constitutionally invalid patterns of school assign ment. See Clark v. Board of Educ. of Little Rock. 426 F.2d 1035 (8th Cir. 1970). 4/ cont'd estimated movement into one of the black housing projects adjacent to the school (328a), it continues a heavily black school. -15- The question of remedy is more difficult. Obviously, at the time of the hearing before the district court, the Stolee plan promised to achieve greater desegregation and should properly have been ordered implemented under the Swann standard. However, Dr. Stolee's proposal was designed for immediate implementation at little cost (271a) and it had the weakness of leaving Wonder Elementary School only 35% white (253a). Dr. Stolee himself expressed concern that Wonder, which would be the only school with such a low proportion of white students assigned to it, might not hold its enrollment (269a) but the Superintendent (in defending the district's plan which would have resulted in even smaller white minorities at Wedlock and Wonder) predicted no white withdrawal at all (162a, 293a). Inasmuch as the report filed by the school district shows a considerable disinclination on the part of white students to attend disproportionately black schools in West Memphis, it could hardly be said at this juncture that even the Stolee plan, without further modification, would bring about a com pletely unitary school system. Dr. Stolee recognized, for example, that a formerly black school with nearly 50% white or black students assigned to it would be more likely to remain stable (287a). And in a school system as small as West Memphis, there is no warrant for even a single school substantially disproportionate in racial composition. While a total desegregation plan might require acquisition of additional transportation facilities -16- (see 188a-196a), state aid would increase proportionately (185a) and transportation within the city of West Memphis would alleviate burdens presently caused by the operation of the desegregation plan (273a). This Court has approved plans which require the purchase of transportation capability, Clark v.— Board of Educ. of Little Rock. No. 71-1409 (8th cir., September 10, 1971) (en banc), and there is no reason why such a requirement ought not be imposed here. On remand, the district court should be directed, therefore, to require the submission and implementation, upon approval, of a plan which completely desegregates the public schools of West Memphis and eliminates their continuing racial identifiability root and branch, through the use of whatever techniques are required including the transportation of West Memphis city students in order to achieve desegregation. WHEREFORE, appellants respectfully pray that the judgment be reversed and the cause remanded to the district court for the submission and implementation of a constitutional plan to achieve a fully unitary school system in the public schools of the Hulbert-West Memphis School District. CONCLUSION NORMAN J. CHACHKIN 10 Columbus Circle New York, New York 10019 -17- J GEORGE HOWARD, JR. 329*5 Main Street Pine Bluff, Arkansas 71601 Attorneys for Plaintiffs- Appellants CERTIFICATE OF SERVICE I hereby certify that on this 15th day of November, 1971, I served two copies of the Brief for Plaintiffs-Appellants in this matter upon G. Ross Smith, Esq., 1100 Boyle Building, Little Rock, Arkansas 72201, attorney for defendants, and John I* Purtle, Esq., 300 Spring Building, Little Rock, Arkansas 72201, attorney for intervenors, via united States Mail, first class, postage prepaid. -18- October 21, 1971 Hon. c;. Thomas Uisele Unite' 1 states District Judqe Pont O tfi.oe 3o:z 3604 " Little Hock, Arkansas 72203 Dear Judge Eisele* *C: No. J-65-C-3, Xirbroueh v. Huihorfc-ve-ttep7u» -chooi to of p o n t i f f "*»* ru.pph.t3 school n l ^ S ^ L ^ r ?.lnn fiiftd * « » rodif 1 l'r< 1?3ithrvhr M s e ^ t o T h °?j? ^ lrna to *ho Plan as the court is correct the t tho ri”^ 1*1 ? lnn* think b titutea a new plan h ^oc.if.ication hardly con- chance to root the r.^tio r J ^ J * Cr "2 adrrini3trative court's order. reqi.arcrents set down in the tire f v O r ^ c ^ x V t ^ ^ o ^ c c o ^ i d c r ^ appropril,t* approach to de5e^ r p t<on Jhlch entire plan and the respect, vo vould r e - ^ t f u l W M 1 represents, m this -pressed in this * * , ” * * * *cross appeal tcrc *■'... • • s. a. tho epocri and rncadity or change in its entirftv Z ? t l 0 ? of thie court to tlon in a school district if ♦•vie plna of ^Heeretjn- plan is not working as cant, ~ « ? % C?Urt conclude» that the tinuing oblication to^inaure^h thiS court*s con- rights of the Nearo fc the constitutional only to further orders‘ ^forced extends not court's jurisdiction h»f !i y protective of the stitute new nndftffective^lan^f^^fK the court to sub working, even if theyare on^^rvf0? those vh*ch are not X t-.Choct^v Countv 5<ie IMited rtates Cir. 1969T: Khi'I~ t ro t3̂ ftt1.rVl» 417 F.2d sTa (5th for exmrple, isplerrentatio^ 2?W 0n?*r requiring, semester of the current- rj.~v.JLo ̂ fective with the second proposed J ' ^ , , r r r' °f »ppenl and oros3 ,.PPeilPvli1l,cK°haCer>S : r k rrlL r t ^ . f if P C M o n C - A " Hon. G. Thomas Eisele 2- October 21, 1971 ,Voui d ^ nothing to prevent tin* p a rtie s fron *rcmiiicr 3 L E h ^ T » " I ^ H n ?* > * % • ' " r * « r % p r * f 1f P - g| - - ' ^ a s ja | * f 39 p - 2 ° " i i 9?6iS ac i ; r ,T 5 ^ l 7 !Cl.^ u 25a i6r.m Oxr. 1971). '* ? af ure o f th i® case in p a rtic u la r suggest the c h a S thoan inea3 ° e tha c o u r t ‘ s View th at i t ^ L y not o f the S S e ? i " P f oe»tx y *n e f fe c t curing the pendency raci illv 1 y’ f°r ««• *•»•* "■ -.<•*»<»« •vste* h in ttu V m t h ^ p h ia s c .o a l the nlan mi ayreoa at i.nc present tliun th *t tne plan si.ixuu no longer ue continued in e f f e c t because — s not working, taea the only effect: of waiting forI7i .... i . . .the appeal will be to fnvfcl»im4 4- -----_ _ « • f uni+ -»*•«» __------ u,:iJy realisation of a in vioT->tion°o ,**VLs,:c:n in tha w*st Jwohia iiehooi district3S6 U l ? ^ r--Xr.J‘oi»^.Coianvy Hoard of fic.uc the court L ' t ’- .Jt Vcuic ^ c ^ra^rooVraVeTol5 r * er ail,Ce * * * P^txes are di*~ eatinn -i ii:, Z ? paragraph 2 of defendants* *m>li- 29, 1971. y filed in fch;l<* c‘'«ao on or about September For these reasons, we respectfully su'-'v— t th-*r *•’«« court vacate it:: crier c£ ju ... . » L « . . * Jne30 1^71 , ' * "■ — d *̂ t® on.or or ouly t s n s i s : ™ ^ thB ™« tion J L Cl°3Xnqf VH «-»»*•«* to bring to the court*o attoa- !L_?_iACr̂ “g iron: ranainos v. board of>.̂...—l truetion of F illnbornnch r^*»*v r*A "Vv> V S W " (M.D. Fla. , M-y 11, ' l^TTnrrSor----- l~ f 554 and^«^7?9re9at:i0n Pl9n Wil1 be successful addJ5 rf>3°vrC^ tion vhere « few whites are rfna?«t?r>5OIT er4ly bK'ck scho° l8 vhich otherwise reraain intacti in a plan vhich anticipate* retention of ioentifiably black schools will t?7l* Partial desegregation results in white flight, resort to private schools, and other maneuvering* vhich frustrate the course of justice. Successful desegregation must extend throughout the school system and. be done in Hon. G. Thoras risele -3 October 21/ 1971 such n v,-!y tint the. tactics which impede court orders rendered futile." Very truly your3. I Horvnn J. Chschkin Attorney for Plaintiffs HJCinu CC G. Ross Smith, Ei-q. Johsi P u r tie , Eaq. George Howard, £*<7.