Shuttlesworth v Birmingham AL Appendix

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APPENDIX

Supreme Court of the United States

OCTOBER TERM, 1967

No. 1207

FRED L. SHUTTLESWORTH, PETITIONER,

vs.

CITY OF BIRMINGHAM, ALABAMA.

ON W R IT  OF CERTIORARI TO T H E  SU P R E M E  CO U RT OF A LA B A M A

PETITION FOR CERTIORARI FILED MARCH 7, 1968 
CERTIORARI GRANTED APRIL 22, 1968

1



SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1967

No. 1207

FRED L. SHUTTLES WORTH, PETITIONER,

vs.

CITY OF BIRMINGHAM, ALABAMA.

ON W R IT  OF CERTIORARI TO T H E  SU P R E M E  COU RT OF A L A B A M A

I N D E X
Original Print 

Yol. I
Proceedings in the Circuit Court for the Tenth 

Judicial Circuit of Alabama
Complaint...........................................................  3 1
Demurrers ......... -............................-.................  4 2
Motion to Exclude the Testimony and for

Judgment .......................................................  8 4
Judgment E n try ...............................................  9 6
Motion for a New Trial ........................................  12 9
Defendant’s Refused Charge ..............................  14 12
Sentence ..................................................................  15 13
Transcript of Evidence ......................................  17 15

Witnesses
R. N. H igginbotham ....................................  19 18
Sarah W. Naugher ...............................  30 31
Edward Ratigan ..........................................  33 36
Herman Evers, Jr........................................ 41 45
Marcus A. Jones, Sr..............................  48 52
Rosa Lee Craig ............................................  59 66
John D. Brown .......................................  62 68
Barbara Jean Breedlove ..........................  63 70
Rev. Charles B illups .......... -...............  65 73
Rev. F red L. Shuttleswortii ..................  68 76

Oral Charge of the Court ................................  75 82



11 INDEX

Original Print 
Vol. I

Proceedings in the Court of Appeals of 
Alabama, Sixth Division

Assignment of Errors .....................................  80 86
Majority Opinion ...................      81 88
Dissenting Opinion .....................   121 144
Judgment ...........................................................  130 155

Original Print 
Vol. II

Proceedings in the Supreme Court of Alabama
Petition for Certiorari to Court of Appeals 1 157
Order Granting W r it .......................................  5 162
Opinion ...............................................................  6 163
Judgment ...........................................................  24 177
Application for Stay .......................................  25 179
Order Granting Stay .......................................  29 183



2

Demurrers

Isr t h e  C ircu it  C ourt of J efferson  C o u n ty  
A labam a , T e n t h  J udicial  C ircu it

No. 25988

C it y  of B ir m in g h a m ,
Plaintiff,

—vs.—

F red L . S h u t t l e s w o r t h ,
Defendant.

D em urrers

Comes the defendant, in the above styled cause, and 
demurs to the Complaint filed against him in this Court, 
and as grounds therefor assigns the following separately 
and severally:

1. That the allegations of the Complaint are so vague 
and indefinite as not to apprise the defendant of what 
he is called upon to defend.

2. That the Ordinance, under which said Complaint is 
brought and as applied to this defendant, violates Section 
25, Article 1 of the Constitution of Alabama.

3. That the said Ordinance, under which this action is 
brought constitutes an abridgement of his right to apply 
to those invested with power of government for redress 
of grievances or other purposes, violative of rights se­
cured to all persons by the First and Fourteenth Amend­
ments to the United States Constitution.



[fol. 3]
PROCEEDINGS IN THE CIRCUIT COURT FOR THE 

TENTH JUDICIAL CIRCUIT OF ALABAMA

Comes the City of Birmingham, Alabama, a municipal 
corporation, and complains that Fred L. Shuttlesworth 
within twelve (12) months before the beginning of this 
prosecution and within the City of Birmingham or the 
police jurisdiction thereof, did take part or participate 
in a parade or procession on the streets of the City with- 
out having secured a permit therefor from the commis­
sion, contrary to and in violation of Section 1159 of the 
General City Code of Birmingham of 1944.

In t h e  C ir cu it  C ourt for t h e  
T e n t h  J udicial  C ircu it  of A labam a

Case No. 25988

C it y  of B ir m in g h a m , A Municipal Corporation,
Plaintiff,

—vs.—

F red L. S h u ttle sw o r th

Complaint

W il l ia m  C. W alker

Attorney for City of Birmingham
F iled i n O pen  C ourt 
S ept  28^1953^

J u l ia n  S w if t  
C lerk  C ir cu it  C ourt

By V. D. 
[fol. 4]



3

Demurrers

4. That the said Ordinance is : unconstitutional on its 
face and constitutes deprivation of liberty without due 
process of law, in violation of the Fourteenth Amendment
to the United States Constitution.

--------------- A
5. That the said Ordinance, which is the basis of the 

complaint, constitutes an abridgement of the privileges 
and immunities of citizens of the United States in vio­
lation of the Fourteenth Amendment to the United States 
Constitution.

6. That to convict defendant under the said Ordinance, 
the basis of this complaint, would constitute a denial of 
the equal protection of the laws, in violation of the Four­
teenth Amendment to the United States Constitution.

[fol. 5] 7. That the allegations of said complaint are
mere conclusions of the pleader.

A r t h u r  D . S hores 
O rzell  B illin g sley , Jr.

Attorney for Defendant
F iled in  O pen  C ourt

S ept  28, 1963
J u l ia n  S w if t  
Clerk Circuit Court

By YD



4

| fol. 8]
Motion to Exclude the Testimony and for Judgment

In t h e  C ircu it  C ourt of J efferson  C o u n t y , A labam a

No. 25988

S tate of A labam a , 
J efferson  C o u n t y , 

C it y  of B ir m in g h a m ,

—vs.—
Plaintiff.

F red L . S h u t t l e s w o r t h ,
Defendant.

M otion to E xclude t h e  T estim o n y  and  for J udgm en t

Conies now Fred L. Shuttlesworth defendant in this 
cause after all of the testimony and evidence for the City 
of Birmingham has been given and received in this cause, 
and moves this Court to exclude said testimony and evi­
dence and to give judgment for defendant, and as grounds 
for said motion set out and assign the following, sep­
arately and severally.

1. The City of Birmingham has not made a case against 
this defendant.

2. All of the testimony and evidence given in this cause 
indicates that defendant during the time and on the occa­
sions in question merely exercises rights and privileges 
given to him as a citizen of the State of Alabama and of 
the United States of America, and by the First and Four­
teenth Amendments to the Constitution of the United 
States of America.



5

3. There lias been absolutely no evidence introduced by 
the City of Birmingham, to support the complaint or war­
rant in this cause.

4. All of the testimony and evidence offered by the 
City of Birmingham dose not prove defendant guilty of 
any criminal act or unlawful acts during the time in 
question.

A r t h u r  D . S hores 
O rzell  B illin g sley , J r .

Attorneys for Defendant
F iled  in  Open  C ourt 

Oct 1, 1963

J u lian  S w if t , Clerk Circuit Court By VD

Motion to Exclude the Testimony and for Judgment



6

[fol. 9]

Appealed from Recorder’s Court 
(Violation of Section 1159, General City Code) 
Honorable Geo. Lewis Bailes, Judge Presiding

Judgment Entry

T h e  S tate ,
C it y  of B ir m in g h a m ,

—vs.—
F red L. S h u t t l e s w o r t h .

This the 30th day of September, 1963, came Wm. C. 
Walker, who prosecutes for the City of Birmingham, and 
also came the defendant in his own proper person and 
by attorneys, Shores and Billingsley, and thereupon came 
a jury of good and lawful men, to-wit: H. I). Spivey and 
eleven others, who being duly empaneled and sworn ac­
cording to Law, before whom the trial of this cause was 
entered upon and continued from day to day and time 
to time, said defendant being in open Court at each and 
every stage and during all the proceedings in this cause; 
the City of Birmingham files its written Complaint in this 
cause, and the defendant files demurrer to said Com­
plaint, and said demurrer being considered by the Court, 
it is ordered and adjudged by the Court that said demur­
rer be and the same is hereby overruled, and the defen­
dant files motion to quash the jury venire, and said mo­
tion being considered by the Court, it is ordered and ad­
judged by the Court that said motion be and the same 
is hereby overruled; and the defendant being duly ar­
raigned upon the written Complaint of the City of Bir­
mingham, for his plea thereto says that he is not guilty. 
This the 1st day of October, 1963, the City rests and the 
defendant files motion to exclude, and said motion being



7

Judgment Entry

considered by the Court, it is ordered and adjudged by 
the Court that said motion be and the same is hereby 
overruled; defendant makes motion to modify stipula­
tion of counsel to present in evidence certain motion pic­
ture views, and said motion being considered by the Court, 
it is ordered and adjudged by the Court that said motion 
be and the same is hereby overruled; and on this the 1st
day of October, 1963, said jurors upon their oaths do say, 
“We the Jury, find the defendant guilty as charged in 
the complaint, and fix his punishment at a fine in the 
sum of $75.00 Dollars” . It is therefore considered by the 
Court, and it is the judgment of the Court that said de­
fendant is guilty as charged in the complaint, in accord­
ance with the verdict of the jury in this cause, and that 
[fol. 10] he pay a fine of Seventy-five Dollars ($75.00) 
and costs of this cause.

Said defendant being in open Court, and having pres­
ently failed to pay the fine of Seventy-five Dollars ($75.00) 
and the costs of $5.00 accrued in the Recorder’s Court 
of the City of Birmingham, or to confess judgment with 
good and sufficient security for the same, it is therefore 
considered by the Court, and it is ordered and adjudged 
by the Court, and it is the sentence of the Law that the 
defendant, the said Fred L. Shuttlesworth, perform hard , 
labor for the City of Birmingham for forty (40) days, 
because of his failure to pay said fine and costs of $5.00 
accrued in said Recorder’s Court, or to confess judgment 
with good and sufficient security therefor.

It is further considered by the Court, and it is ordered 
and adjudged by the Court, and it is the sentence of the 
Law that the defendant, the said Fred L. Shuttlesworth, 
perform additional hard labor for the City of Birming­
ham for ninety (90) days, as additional punishment in 
this cause. v



8

And the costs legally taxable against the defendant in 
this cause amounting to Twenty-eight Dollars ($28.00), 
not being presently paid or secured, and $4.00 of said 
amount being State Trial Tax, $3.00, and Law Library 
Tax, $1.00, leaving Twenty-four Dollars ($24.00) taxable 
for sentence, it is ordered by the Court that said defen­
dant perform additional hard labor for the County for 
eight days, at the rate of $3.00 per day to pay said costs. 
It is further ordered by the Court that after the sentence 
for the City of Birmingham has expired that the City 
authorities return the defendant to the County Authori­
ties to execute said sentence for costs.

It is further considered by the Court that the State of 
Alabama have and recover of the said defendant the costs 
in this behalf expended, including the costs of feeding the 
defendant while in jail, for which let execution issue, 
[ fo l .l l ]  This the 1st day of October, 1963, defendant 
files motion for new trial and said motion being con­
sidered by the Court, it is ordered and adjudged by the 
Court that said motion be and the same is hereby over­
ruled, to which action of the Court in overruling said mo­
tion, defendant duly and legally excepts.

Notice of Appeal being given and it appearing to the 
Court that, upon the trial of this cause, certain questions 
of Law were reserved by the defendant for the consider­
ation of the Court of Appeals of Alabama, it is ordered 
by the Court that the execution of the sentence in this 
cause be and the same is hereby suspended until the deci­
sion of this cause by said Court of Appeals of Alabama.

It is further ordered by/tlTe Court that the Appeal Bond 
in this cause be and the same is hereby fixed at Twenty- 
five Hundred Dollars ($2500.00), conditioned as required 
by Law, and defendant duly and legally excepts.

Judgment Entry



9

[fol. 12]

No. 25988

Motion for a New Trial

C ity  of B ir m in g h a m , 

— vs.---

F red L . S h u t t le sw o r th ,

Plaintiff,

Defendant.

M otion for a N ew  T rial

Now comes the defendant, in the above styled cause and 
with leave of the Court first had and obtained, and moves 
this Honorable Court to set aside the verdict and judg­
ment rendered on to-wit: Oct. 1, 1963 and that this Honor­
able Court will grant the defendant a new trial, and as 
grounds for said Motion sets out and assigns the follow­
ing, separately and severally:

1. That the verdict of the Jury and Judgment of the 
Court, in said cause, are contrary to law.

2. That the verdict of the jury and judgment of the 
court are contrary to the facts.

3. That the verdict of the jury and judgment of the 
court are not sustained by the great preponderance of 
the evidence in the case.

4. The Court erred in overruling the defendant’s de­
murrers filed in this case.



10

5. The Court erred in finding the defendant guilty of 
violating the laws or ordinances of the City of Birming­
ham, Alabama, in that the laws or ordinances, under which 
this defendant was charged and convicted, and as applied 
to this defendant, constituted an abridgement of freedom 
of speech violative of rights and liberties secured to the 
defendant by the First and Fourteenth Amendments to 
the Constitution of the United States of America.

6. That the Court erred in refusing to find that the 
ordinance under which this defendant was being tried, as 
applied to this defendant, constituted a denial of the equal 
protection of the laws, in violation of the Fourteenth 
Amendment to the Constitution of the United States of 
America.

[fol. 13] 7. That the Court erred in finding the defen­
dant guilty of violating the laws or ordinances of the City 
of Birmingham, Alabama, in that the laws or ordinances 
under which this defendant was charged and convicted, 
and as applied to this defendant, constituted a depriva­
tion of liberty without due process of law, in violation 
of the Constitution of the State of Alabama and the pro­
visions of the Fourteenth Amendment to the United States 
Constitution.

8. The Court erred in overruling defendant’s Motion 
to Exclude tire evidence in this cause.

9. The Court erred in overruling defendant’s Motion 
to Quash the Jury Venire in this cause.

10. For that the Court erred in overruling defendant’s 
Motion to Quash the Venire on grounds that Negroes had

Motion for a New Trial



11

been systematically excluded therefrom, because of their 
race or color in violation of rights and privileges guaran­
teed him by the Fourteenth Amendment to the Constitu­
tion of the United States.

11. For that the verdict of the jury is based on bias, 
prejudice and passion against defendant.

12. For that the Court erred in denying defendant’s 
Motion to Declare void and illegal the petit jury drawn 
to try defendant in this cause, in that there were no 
Negroes serving on said petit jury.

13. For that the Court erred in denying defendant’s 
Motion to Quash Venire returned against the defendant 
on the grounds that Negroes qualified for jury service 
in Jefferson County, Alabama, are arbitrarily systemati­
cally and intentionally excluded from jury duty in vio­
lation of rights and privileges guaranteed defendant by 
the Fourteenth Amendment to the United States Consti­
tution.

14. For that the Court erred in overruling defendant’s 
Motion to set aside the verdict of the jury and for judg­
ment in this cause.
[fob 14]

A rth u r  D. S hores 
O rzell  B illin g sley , J r .

Attorneys for Defendant
F iled in  O pen  C ourt

Oct. 1, 1963
.Ju lian  S w if t  
Clerk  C ir cu it  C ourt

Motion for a New Trial

VD



12

Defendant’s Refused Charge

DEFENDANT’S REFUSED CHARGES

The following charge was requested by the defendant, 
in the presence of the jury and before the jury retired, 
and was refused by the Court, said charge being in writ­
ing, and being endorsed separately and severally “Refused 
Bailes, J.” and being in words and figures as follows, 
to-wit:

Defendant’s requested Charge #1

If you believe the evidence in this case, then gentlemen 
of the jury, you should find the defendant not guilty.

Refused-Bailes, J.



13

[fol. 15]
Sentence

T h e  S tate of A labam a , 
J efferson  C o u n t y .

A ppeal  B ond— H ard L abor S en ten ce

K now  A l l  M en B y T hese P resents, That we F. L. Shut- 
tlesworth principal, and Jas. Esdale & Willie Esdale as 
sureties, are held and firmly bound unto the State of 
Alabama in the sum of Twenty Five Hundred & no/100 
($2500.00) Dollars, for the payment of which well and 
truly to be made, we bind ourselves, our heirs, executors 
and administrators, jointly and severally, firmly by these 
presents; and we and each of us waive our rights of 
exemption under the Constitution and laws of the State 
of Alabama as against this bond.

T he  C ondition  of t h e  A bove O bligation  Is S u c h , That 
whereas, the above bounden F. L. Shuttlesworth was on 
the 1 day of Oct. 1963. convicted in the Circuit Court of 
Jefferson County, Alabama, for the offense of Parading 
Without A Permit—Gen City Code Sec No 1159 and had 
assessed against him a fine of $75.00 Seventy Five & 
No/100 Dollars, together with the cost of this prosecution, 
and on the 1 day of Oct. 1963, on failure to pay fine was
sentenced to perform hard labor for the County f o r ..........
days, and an additional term for the cost, at the rate of 
seventy-five cents per day, and as additional punishment 
imposed the defendant was sentenced to perform hard 
labor for the County for 90, from which sentence the 
said F. L. ShnttleswortlTJias this day prayed and ob­
tained an appeal to the Court of Appeals of Alabama.



14

Sentence

Now, i f  t h e  S a i d  F. L. Shuttlesworth shall appear and 
abide such judgment as may be rendered by the Court of 
Appeals, and if the judgment of conviction is affirmed, or 
the appeal is dismissed, the said F. L. Shuttlesworth shall 
surrender himself to the Sheriff of Jefferson County, at 
the County Jail, within fifteen days from the date of such 
affirmation or dismissal, then this obligation to be null 
and void, otherwise to remain in full force and effect.

Given under our hands and seals, this the 1 day of Oct.

Approved:
J u l ia n  S w ift

Clerk of the Circuit Court of Jefferson County. 
F iled in  O ffice  

O ct . 1, 1963 
J u lian  S w if t

1963. 
[fol. 16]

F. L. S h u ttlesw o r th  
J as. E sdale 
W illie  E sdale 
By J as . E sdale, Atty in  fact 
E sdale B ail  B ond Co 
By J as. E sdale

(L.S.)
(L.S.)
( L S . )

(L.S.)
(L.S.)
(L.S.)

Atty. in Fact.

Clerk



15

[fob 17]
Transcript of Evidence

In t h e  C ikcuit C ourt of t h e  T e n t h  J udicial  C ircu it  
In and  for J efferson  C o u n t y , A labam a

Case No. 25988

Cit y  of B ir m in g h a m , 

—vs.—
Complainant,

F red S h u t t le sw o r th ,
Respondent.

C a p t i o n

Tiie above en titled  cause came on to be heard before 
the Honorable George Lewis Bailes, Judge Presiding, and 
a jury, on the 30th day of September, 1963, commencing at 
or about 3 :00 P.M., Jefferson County Courthouse, Birming­
ham, Alabama, when the following proceedings were had 
and done:

A p p e a r a n c e s :

William C. Walker, Assistant City Attorney, City Hall; 
and Lewis Wilkinson, Assistant City Attorney, City Hall, 
for the Complainant.

Arthur Shores and Orzell Billingsley, Jr., Masonic Tem­
ple Building, Birmingham, Alabama, for the Respondent.

P r o c e e d i n g s :

The Court: Both sides ready!
Mr. Walker: We are ready.
Mr. Billingsley: Yes, sir.



16

Colloquy

The Court: And you want to present, first, the demurrer 
to the complaint?

Mr. Shores: Well, first the motion to quash venire. We 
submit on our demurrers.

The Court: I would hear you on the question of sub­
mitting- them.
[fol. 18] Mr. Billingsley: Your Honor, we don’t neces­
sarily wish to argue the motion to quash venire, we are 
going to file another motion after the jury is empaneled, 
which I think will take care of some of the situation.

The Court: Very well, let the motion to quash venire 
be overruled.

Mr. Billingsley: We take exception.
The Court: And next would be the demurrer.
Mr. Billingsley: Yes, sir, the demurrer.
The Court: Let the record show the demurrer to the 

City’s complaint is overruled.
Mr. Billingsley: We take exception, Your Honor.
The Court: Is this Case No. 25988?
Mr. Shores: That is right.
(Whereupon, a jury venire was sent for and entered the 

Court Room at 3:40 P.M., were duly qualified by the Court, 
identified, and special questions were asked by counsel on 
behalf of the respective parties and the following oc­
curred:)

The Court: Now, the hour being what it is, what is the 
pleasure of counsel in the case?

Mr. Shores : We would like to recess until in the morning, 
Your Honor.

Mr. Walker: 1 have no objections to that, Judge Bailes.
The Court: Very well, in the morning. The next thing 

that the law requires me to say is please do not mention



I

Colloquy

the case to anyone of your brethren on the jury, nor to 
any member of the family, nor to anybody anywhere. Do 
not mention the case until you have heard all the evidence 
in the case and have retired to your room for deliberation, 
before you ever say anything about the case. With that 
little reminder, I bid you to be at leisure until 9:00 A.M. 
[fol. 19] in the morning.

(Whereupon, proceedings were in recess from 4:30 P.M., 
September 30, 1963, until 9 :00 A.M., October 1st, 1963, and 
the following occurred:)

O ctober 1st, 1963 9 :00 A .M .
M orning  S ession

The Court: Counsel ready?
Mr. Walker: Yes, sir.
Mr. Billingsley: Yes, sir.
The Court: Let the jury be brought into the box.
(Jury brought in at 9:10 A.M.)

The Court: Good morning, everybody. Counsel ready? 
Mr. Billingsley: We are ready.
Mr. Walker: We are ready.
The Court: I believe the jury was not sworn.
Mr. Walker: I don’t think they were.
(Whereupon, the jury was sworn by the Court.)

The Court: Let the cause be stated. Is the complaint— 
I believe it is already filed.

Mr. Walker: Yes, sir.

(Whereupon, Mr. Walker addressed the jury in opening- 
statement on behalf of the Complainant; following which 
Mr. Shores addressed the jury in the opening statement

\



18

on behalf of the Respondent; following which the follow­
ing occurred:)

Mr. Walker: Your Honor, are we ready!
The Court: Yes, sir.
Mr. Shores: Judge, we would like the witnesses put 

under the rule.
(Whereupon, the rule was invoked on the witnesses; fol­

lowing which the following occurred:)

E videxce  o x  B e h a lf  op C o m p l a ix a x t  

Mr. Walker: Call Officer Higginbotham.

K. N. Higginbotham—for Plaintiff—Hired

[ fo l .  20] R. N. H ig g ix b o t h a m , ca lled  as a w itn ess, b e in g  
first d u ly  sw orn , w as exam in ed  and testified  as f o l l o w s :

Dir ext Examination by Mr. Walker:

Q. State your name, please.
A. R. N. Higginbotham.
Q. And occupation!
A. Police Officer for the City of Birmingham.
Q. And, Officer Higginbotham, how long have you been 

so employed?
A. Eighteen years next month.
Q. Now, what detail are you assigned to A v ith  the Police 

Department?
A. Traffic Division.
Q. Were you working for the Traffic Division on April 

12th of this year?
A. I was.
Q. Is that Good Friday?
A. Yes, sir.



19

Q. Now, Officer Higginbotham, did you have an occasion 
to see or view a parade on that day?

Mr. Shores: Your Honor, we object to the term 
“parade” . That is a legal conclusion. I think he 
could go into or frame his questions in such a way 
as to determine what happened or what he saw or 
did during the day.

Mr. Walker: Judge Bailes, parade has a well de­
fined meaning and, if anything, would be an ultimate 
fact.

The Court: Let him answer the question.
Mr. Billingsley: He can ask the witness what hap­

pened. He doesn’t have to use words of conclusion 
as to say that they were parading. It would be a 
conclusion on Mr. Walker’s part.

The Court: The Court has ruled.
[fol. 21] Mr. Billingsley: We take exception.

Q. Officer, tell what you saw on that occasion, at that 
time.

A. I was sitting at 17th Street—at 18th Street and 5th
Avenue, when the large crowd.of.people turned east, on
5th Avenue from across the park at 17th Street, and also 
from 17th Street into 5th Avenue.

Q. Is that the first time you saw this group?
A. It was.
Q. And where were you at that time?
A. I was at the corner of 18th Street and 5th Avenue.
Q. And where was the group, again, please?
A. They was just coming on to 17th Street and 5th Ave­

nue on the 5th Avenue side.
Q. And which direction were they traveling?
A. East.

B. N. Higginbotham—for Plaintiff—Direct



20

Q. On which street?
A. 5th Avenue.
Q. Now, do you have any opinion as to how many people 

were in the group?
A. There was several hundred people.
Q. Several hundred.
A. Yes, sir.
Q. Were they in any kind of formation at that time?

_ A. There was a formation on the sidewalk on the north 
side of 5th Avenue. There was also a lot of people to the 
rear on the south side of the street that didn’t seem to be 
in any formation, just sort of walking along.

Q. You didn’t see this parade—

Mr. Billingsley: We object.
Mr. Walker: We withdraw that.

Q. You didn’t see this group of people—where they came 
from, is that correct?

A. No, I didn’t.
[fol. 22] Q. Now, what did you do when you saw them 
at that time, if anything?
A. 1 observed the crowd approaching. 1 heard singing- 
going on—

Mr. Billingsley: We are going to object to this 
line of questioning, until he has tied this Defendant 
up.

The Court: (five him time.

A. I approached the middle of the block towards 17th 
Street. I crossed over to the block to the sidewalk with 
my motor. 1 got off my motor, and when they got close

R. N. Higginbotham—for Plaintiff—Direct



21

enough to me I hollered in a loud voice, “ Does anyone in 
this group have a permit” ?

Mr. Billingsley: We object to that line of ques­
tioning.

The Court: Overruled.
Mr. Billingsley: We take exception.

Q. Did anyone in this group have a permit?

Mr. Billingsley: We object to that question.
The Court: Overruled.
Mr. Billingsley: We take an exception.

A. I received no answer from the parade at this time.
Q. Now, Officer Higginbotham, did you, at any time, see 

the Defendant in that group of people?
A. I did.
Q. Where did you see the Defendant?
A. The best I can remember, he wTas several—in the line 

across the sidewalk—he was several people back from the 
front. "

Q. Was he in the group?
A. Yes, he was in the group.
Q. And what did you see the Defendant do, if anything? 
A. I didn’t see him do anything that anyone else wasn’t 

doing.

Mr. Billingsley: WTe object and ask that that an­
swer be stricken from the record.

The Court: Overruled.
[fol. 23] Mr. Billingsley: It’s irrelevant, incom­
petent, and immaterial, and has nothing to do with 
the vital issues in this case.

R. N. Higginbotham—for Plaintiff—Direct



22

The Court: Overruled.
Mr. Billingsley: Exception.

Q. Officer Higginbotham, who, if anyone, was leading 
this group of people?

Mr. Shores: Your Honor, we object to the fram­
ing of this question. We are not concerned with 
anyone but the Defendant. I think that the proper 
question is whether or not the Defendant was lead­
ing, would be the proper question.

The Court: Well, please let him answer.

A. I couldn’t say who was leading, because they were 
all the way across the sidewalk and I don’t know who was 
leading.

R. N. Higginbotham—for Plaintiff—Cross

Mr. Walker: That is all.

Cross Examination by Mr. Shores:

Q. Officer Higginbotham, where did you first see this 
group of people that you speak of?

A. As it came on to 5th Avenue from 17th Street.
Q. Did you observe them coming through the park there ?
A. No, sir.
Q. You just observed them as they came?
A. I was at the corner of 18tli Street.
Q. And at the time how were they marching or walking?
A. They were four to six across the ̂ sidewalk all the 

way across the sidewalk on the north side ot 5th Avenue 
leading east.

Q. And had the street been blocked?
A . No, imhmTiTf at this time.-V

v



23
- Mr v V

V Q. Was it ever blocked off at 5th Avenue between 17th 
and 18tli Street, ever blocked!

A. No, now I don’t know.-----.
Q. Were you there all the time from the time that you 

observed them until the time they were arrested?
A. Yes, I was.

[fol. 24] Q. Did you—you don’t know whether it was 
blocked off?

A. I couldn’t see, there was some people in the way.
Q. Did you address the group yourself?
A. I did.
Q. And was there any bands along with them?
A. No.
Q. Was there-any particular organized sort, of form a - 

lion?
A. The group on the sidewalk was.
Q. The group on the sidewalk was?
A. Right.
Q. What about the other group, I believe you said there 

was another group to the rear and to the side.
A. There was milling, and there was a large crowd ap­

proaching from the back of them. They were all over. 
They were gathering all the time on the street on the 
opposite side of the sidewalk.

Q. And who were the group gathering on the opposite 
side and alongside?

A. I didn’t know any of them.
Q. Were they all the one race identity or were they 

white and black?
A. They were all black.
Q. Did you stop any of the other groups?
A. Everyone stopped at this time that I brought it to a 

halt, they did.

w R. N. Higginbotham—for Plaintiff—Cross

>



24

Q. How did you determine who was marching of the 
so-called marchers or paraders from the other group?

A. .The group to the north side of the sidewalk headed 
east were signing. They were in—I wouldn’t say exactly 
rows, but they were paired off in fours and sixes and they 
were the only group that there was singing, or any kind 
of formation.

Q. The group that was in the formation was paired off 
in fours and sixes, is that correct?

A. Right.
[fol. 25] Q. And I believe when you said you first 
observed this Defendant, he was back in one of the 
other groups?

A. He was in this group on the north side of the 
sidewalk headed east on 5tli Avenue, but he wasn’t 
exactly in the front row. The best 1 can remember he 
was in the, maybe, third or fourth row back.

Q. In the group on the opposite side of the street?
A. This was the group that was on the north side 

of 5th Avenue.
Q. And that was not the group singing?
A. Yes, it was.
Q. Was he part of that group and was he walking? 

Did you see whether or not he attempted to speak to 
somebody in this group?

A. That I don’t know. I was so busy I don’t even 
know whether he was singing or not.

Q. You don’t know whether he was in the organized 
group, do you?

\ A. He was in the organized group. ]
\ 'QTWas there somebody"marching- along beside, men 
in two’s or three’s or four’s?

R. N. Higginbotham—for Plaintiff—Cross



25

A. There was people around him at this time they 
was ahead of the other group.

Q. Where was he when you first saw him!
A. The first time that I noticed him was when I stopped 

the group.
Q. And where were you when you stopped the group?
A.^Approximatelv in the center of the block between 

17th mild 18th on 5th. Q
And at the time you stopped the group between 

17th and 18th—
A. Approximately in the center of it.
Q. Where was this Defendant?

[fob 26] A. The best I can remember, he was either 
two or three rows back from the front of the rows that 
were leading this, the front ones in the group.

Q. Was he on the outside, or within the group or just 
what was his position with respect to it?

A. I would say he was approximately in the center.
Q. And at the time you stopped him, were there other 

groups on either side of the so-called marching group?
A. To the reai-, in the center of the street, and coming 

up on the opposite side of the street.
The other group von sponk^nf, was it out in the 

center of the stre e t ? __\
A?~Yes! *
Q. And they was people you speak of as marching 

there on the sidewalk?
A. Right.
Q. Did they have a band?
A. No band.
Q. Were there any vehicles in this marching group?
A. No.

R. N. Higginbotham—for Plaintiff—Cross



26

Q. And all they were doing was marching and singing?
A. That is right.
Q. Did you personally arrest this Defendant?
A. 1 did not.
Q. Was he arrested at the time the others were ar­

rested?
A. The whole group was under arrest./
CJT W haTTiappen ed to the group after they were placed 

under arrest?
A. At this time, several other motor scouts and three- 

wheelers and cars came up and blocked the street behind 
me. There were several that came up at this time to 
my assistance and at this time there was a lot of people 
had turned and started back toward 17th Street.

Q. Now, at that time, these people that were stopped 
and the other officers came up and blocked off the street, 
[fol. 27] that meant that no one could move out of the 
area blocked in, is that correct?

A. At this time I presume.
Q. Not what you presume, what you know and what 

you saw and did.
A. To the rear of me was blocked, because when I 

turned around to get on the motor there was several 
police cars across in back of me.

Q. And then the crowd or group of marchers Avere 
blocked in, were they not?

A. To the back of me at this time, they A v e r e .

Q. To the back of you at this time. Was this Defendant 
to the back of you or to the front of you?

A. At this time he was in front of me.
Q. In front of you?
A. Eight.

R. N. Higginbotham—for Plaintiff—Cross



27

R. N. Higginbotham—for Plaintiff—Cross

Q. And where was lie at that time when the rest of 
them were placed in patrol cars or buses or something? 

A. At this time there was a lot of confusion going on.

A.

Mr. Billingsley: We object to that answer and 
ask that it be stricken from the record.

The Court: Overruled.
Mr. Billingsley: Exception.

that. He is not
answering the question.

There was a lot of rocki throwing. 

Mi-. Billingsley: We object^to

Q. My question was whether or not these people were, 
whether they were escorted off to the city jail in the 
bus or in the regular city paddy wagon, and what hap­
pened to them at that time?

A. The best I can remember, the patrol wagons came 
up and we started putting them in the patrol wagons.

Q. Was this Defendant placed in the patrol wagon?
A. At this time, I don’t know.
Q. Were you there?

[fol. 28] A. Yes, I was there.
Q. Had he left your view at that time?
A. I left the scene at this time.
Q. Where did you go?
A. 1 went to the opposite side of the street to assist 

some other officers.
Q. But you do know he was in the group that was 

blocked and held there until the patrol wagon was brought?
A. He was in the group that arrived there. Now, what 

happened to him after that, I don’t know.



28

Q. Did you ascertain where the group was going?
A. No, I didn’t.

Mr. Walker: We object to that as immaterial, 
where the group was going.

Mr. Shores: That is all, Your Honor.

Re Direct Examination by Mr. Walker:

Q. Now, Officer Higginbotham, what time of the day 
was this?

A. The best 1 can remember, it was approximately 2 :15 
or 2:30.

The Court: P.M.?

A. Yes, sir.
Q. And at the time of this arrest, would you describe 

to the gentlemen of the jury the circumstances or the 
conditions that existed then?

Mr. Billingsley: Your Honor, we object to that. 
Mr. Walker: Your Honor, they opened the door 

to that. We have a right to show what the cir­
cumstances were.

The Court: Please let the witness answer.
Mr. Billingsley: If Y7our Honor please, I don’t 

understand the question when he talks about con­
ditions and circumstances—

The Court: The Court has ruled.
Mr. Billingsley: We take exception.

[fol. 29] A. On the morning prior to this—

Mr. Billingsley: We object.

R. N. Higginbotham—for Plaintiff—Redirect



29

Q. Officer Higginbotham, I mean by the question at the 
immediate time of arrest, at 2 :30 or thereabouts, what 
were the conditions prevailing at the scene of the arrest, 
just what was going on?

Mr. Billingsley: Your Honor, we object on the 
further grounds that this witness is not qualified 
to tell what was the conditions. I don’t understand 
what condition he is talking about; the conditions 
in Bessemer or Houston, or about the weather.
I don’t see that Officer Higginbotham can answer 
that question and we object to that.

The Court: Overruled.

Q. Officer Higginbotham, just tell what you saw at the 
time of the arrest.

A. At the time of the arrest there was a lot of loud 
hollering going on, there was a lot of rocks being thrown, j  
who threw them I don't knouy I don’t have any idea 
who threw the rocks, but I know there was a lot of rock 
throwing. There was a lot of dodging going on.

Mr. Billingsley: If Your Honor please, we would 
like to object and ask for a mistrial in the case, 
as his answer was for the purpose of attempting 
to confuse the men of the jury in this case. He 
says rock throwing and that type of thing; it needs 
to be stated about the witness: How does he know 
rocks were being thrown. Was he hit and what 
happened to them?

The Court: He will be subject to cross-examina­
tion.

Mr. Billingsley: We take exception.

B. N. Higginbotham,—for Plaintiff—Redirect



30

A. And at the time right after we pnt, them under 
arrest—who the officers were, I don’t know—some officer 
hollers, “We got an officer in trouble” . I looked and saw—

Mr. Shores: We certainly object to that. That 
has nothing to do with the proceedings.

The Court: This, in the intention of the ques­
tion, was at the time and place of the occasion, or 
[fol. 30] occurrence, or incident, or episode.

Mr. Walker: Go ahead.
Mr. Billingsley: We take exception. Your Honor.

A. I ran directly across the street through the crowd 
of people, and at this time we had pushed back the crowd 
of people to help an officer that was in the crowd at this 
time. When I got back across the street, which was 
approximately five or ten minutes later, to the crowd, 
the other officers had all arrived and the crowd was 
being pushed back and I didn’t know who was arrested 
or who was taken to jail.

Mr. Walker: That is all.

R. N. Higginbotham—for Plaintiff^Recross

Re-Cross Examination by Mr. Shores:

\ )

Q. Officer Higginbotham, at the time you described what 
else was going on, did you arrest this Defendant and 
place any other Defendants under arrest for parading 
without a permit!

A. I didn’t, no.
Q. Then this Defendant, as far as you could ascertain, 

and the parties you arrested, were not engaged in any­
thing but marching and parading without a permit?

A. That is rigT



31

Sarah W. Nauglier—for Plaintiff—Direct

Q. And that is wliat you arrested them for?
A. That is right.
Q. You didn’t see him throw any rocks?

Mr. Shores: That is all.
Mr. Walker: No further questions.

(Witness excused.)
The Court: Who do you have next? 
Mr. Walker: Sarah Naugher.

Sarah W. Naugher, called as a witness, being first 
duly sworn, was examined and testified as follows:

| fol. 31] Direct Examination by Mr. Walker:

Q. State your name, please.
A. Sarah W. Naugher.
Q. And occupation?
A. Clerk in the City Clerk’s office.
Q And how long have you been so employed?
A. Seventeen years.
Q. And, Airs. Naugher, what is this book that you hold 

in your hands?
A. Permit book.
Q. Does that book have any relation to permits for 

parades?
A. Yes, it does.
Q. What is the relation between that book and parade 

permits?
A. It contains the carbon copies of the parade permits. 
Q. And is part of your duty to keep that book?
A. Yes.



32

Q. Is tliat an official book of the City!
A. Yes, it is.
Q. Now, I will ask you if there was any parade permit 

for any Friday, issued for parades to be held on April 
12th?

A. No.

Mr. Billingsley: If Your Honor please, we would 
like to object to the question on the grounds that 
the testimony to be given by Mrs. Naugher is 
irrelevant and incompetent, and immaterial and it 
has not been established by the City of Birmingham 
that there was a parade on the date that you were 
talking about, and I don’t see where it has, this 
whole thing has any relevancy in this case.

The Court: Overruled.
Mr. Billingsley: We take exception.

Q. Was there any permit issued for any parade on 
April 12th?

A. No.
Q. Was there a permit issued for any procession on 

that day?
[fol. 32] A. No, sir.

Q. Does that book contain all of the permits that has 
been issued for parading during the past year?

A. Yes.

Mr. Walker: That is all.

Cross Examination by Mr. Shores:

Q, Mrs^Jaugher, does that book show the applications 
refused for j5enhiTsWcTparade?

A. No.

Sarah W. Naugher—for Plaintiff—Cross



33

Q. Only those issued!
A. Yes.
Q. Do you have a list of permits issued between Sep­

tember—what period does that book cover!
A. It covers from 1951 to 1963.
Q. And do you have the list of permits issued between 

January 1st, and June 1st!
A. Yes.
Q. Would you please list them for me!
A. The Mutual Aid Society of Groveland Baptist Church 

on March 3, 1963, Mount Pilgrim District Congress on 
April 11th, and the Central Park Baseball Association 
on April 15th.

Q. Now, Mrs. Naugher, does the permit indicate the 
route over which the parade is to take!

Sarah W. Naugher—for Plaintiff—Cross

A. Yes.
Q. And does it indicate the number of vehicles that 

are or that there will be vehicles!
A Nr,

Mr. Walker: We object to this, unless it is to be 
shown that the Defendant has the permit.

Mr. Billingsley: The crucial question is : What 
is a parade. That is the question we have got to 
determine, whether or not these persons were en­
gaged in a parade or a procession, and the only 
[fol. 33] way we can find out is by questioning the 
witnesses to determine whether or not it is a parade.

The Court: Just go along and ask the witness 
whatever you care to.



34

Sarah W. Naugher—for Plaintiff—Cross

Q. Does the permit show whether or not it was given 
to parade on the sidewalk or out in the street?

A. No.
Q. Mrs. Naugher, I believe you said you have been clerk 

for seventeen years.
A. Yes.
Q. You have seen a number of these parades, haven’t 

you?
A. Yes.
Q. Have you noticed a parade down the streets or on 

the sidewalk?
A. In the streets.
Q. All in the street?
A. Yes.
Q. And did you notice whether or not these parades 

would have bands or vehicles in the procession?
A. Yes.
Q. They would?
A. Yes.
Q. And does one get a permit to picket, or just to 

parade ?
A. No.
Q. Does one get a permit to._jiisl--waIk down the street?
A. No.
Q. Do you know whether or not at time when a group 

of Boy Scouts or Girl Scouts were going to load up on 
the bus, whether or not they would have to get a permit 
to get to the bus?

The Court: That would be a legal question and 
she wouldn’t be competent.

Mr. Billingsley: The vital question is whether 
or not—what she has in the book there.



I

Sarah W. Nauglier—fur Plaintiff—Cross

A. We have not issued any.
[fol. 34] Q. I believe the City Auditorium—

The Court: We will leave the arguments until 
we come to the arguments after all the evidence 
is in.

Q. Have you seen students attending the symphony, 
walking from the bus to the auditorium?

A. Yes.
Q. Does your book show whether or not they got a 

permit?
Mr. Walker: We object.
The Court: Sustained.
Mr. Billingsley: Exception.

Q. Do you know whether or not a permit was issued 
in the early part of September when a number of auto­
mobiles paraded up and down the street?

Mr. Walker: We object to anything that hap­
pened after the case.

The Court: Sustained.
Mr. Billingsley: Exception.
Mr. Walker: Judge Bailes, Mrs. Naugher is due 

in the council meeting. Would it be all right for 
her to leave?

Mi-. Shores: We have no objection.
The Court: She may. Who do you have next ?

(Witness excused.)
Mr. Walker: Officer Ratigan.



36

E dward Ratigan, called as a witness, being first duly 
sworn, was examined and testified as follows:
Direct Examination by Mr. Walker:

Q. State your name, please.
A. Officer Edward Ratigan.
Q. And your occupation?
A. I am a Police Officer foi1 the City of Birmingham. 
Q. How long have you been so employed?
A. Eighteen years.

[fol. 35] Q. Were you so employed on April 12th?
A. I was.
Q. What was your duty on that date?
A. I was stationed in front of the church in the 1400 

Block of 6th Avenue North to inform the radio on the 
activities going on at the church.

Q. What time did you get to the church?
A. I just don’t remember, I don’t recall at all.
Q. Were you there approximately at 2:00, or a little 

after?
A. I was.
Q. Now, what, if anything, did you observe at the 

church at that time? Just tell the jury what, if anything, 
you saw and heard.

Mr. Shores: Your Honor, we object to what he 
saw and observed at the church. This parade is 
supposed to be on the street or the sidewalk.

Mr. Walker: Your Honor, we don’t want the evi­
dence—it will show the parade.

Mr. Billingsley: We object to the use of the 
word parade.

Edward Ratigan—for Plaintiff—Direct



37

Edward Ratigan—for Plaintiff—Direct 

Mr. Shores: We except.

Q. Tell the jury, the gentlemen of the jury, and the 
Court what you saw on that occasion at the church, and 
thereafter.

A. Approximately around 2 :30 I observed Martin Luther 
King and A. B. Abernathy and Fred Shuttlesworth and 
a white man I don’t know, leaving the church at the 
1400 Block. They came out of the church and marched 
in two’s traveling east on 6th Avenue North in the 1400 
Block. They proceeded east down to, down 17th Street. 
They turned, they turned south on 17th Street to 5th 
Avenue and then turned east again on 5th Avenue and 
were stopped in the 1700 Block of 5th Avenue North. 
During this time they were marching two abreast and 
they were singing.

Q. And were they in formation1?
A. They were in a formation.

[fol. 36] Q. And did you see the Defendant in that group?
A. I observed the defendant from the 1400 Block of 

6th Avenue North to the corner of 6th Avenue and 17th 
Street. When I made the turn I lost the Defendant 
momentarily crossing in the 1700 Block and 6th Avenue. 
I picked the Defendant up again within the group in the 
1700 Block of 5th Avenue at the corner. He was in the 
group in the 1700 Block of 5tli Avenue, when T went up 
to make the arrest.

Q. You didn’t see him at the time the arrests were 
made ?

A. I did not see him at the time the arrests were made.
Q. Let me see, where is the church located?
A. The church is located on the North side of 6th 

Avenue within the 1400 block.



38

Q. On the north side of 6th Avenue within the 1400 
Block?

A. Yes.
Q. Officer Ratigan, would you come down and draw a 

diagram of the route—let’s pull this out here. Draw the 
route this procession or group of people took.

A. (Drawing on blackboard)
Q. Now, Officer Ratigan, where did you first observe 

the Defendant and the others that you named, King and 
Abernathy, and Shuttlesworth? Where were they when 
you first saw them?

A. The first time I saw them on this occasion was 
coming out of the church on the 1400 Block of 6th Avenue 
North.

Q. And which direction did they proceed?
A. They came out of the church, marched down the 

sidewalk, marched along—I was originally here (indi­
cating), cut accross and I followed them on this side of 
the street (indicating). I followed them down all the 
way down and they turned here (indicating).

Q. Which direction did they turn?
A. They turned south. It was approximately within 

this point here (indicating) I lost the Defendant. I came 
[fol. 37] across him here, and I picked him up, approxi­
mately, in here again.

Q. I see. What street did they turn south on? 17th 
Street is one block south of 6th Avenue North. What 
street would that be or what avenue?

A. That is 5tli Avenue North.
Q. Did you ever see the Defendant on 17th Street?
A. Oh, yes. I picked the Defendant somewhere along 

in the point here (indicating), and lost him again over 
here because of this group marching along in here, and

Edivard Ratigan—for Plaintiff—Direct



39

Edward Ratigan—for Plaintiff—Direct

they turned and went east in this group here, and I lost 
him here, (indicating), somewhere in here, almost to the 
corner.

Q. Describe the formation you observed this group of 
people to be in when they left the church, or as they walked 
along 6th Avenue North.

A. They were marching two abreast and they were 
,appijrxj_nmte]y forty unclies apart.

Q. Who was leading, or who was in front of the group, 
if you know?

A. There was Martin Luther King was one of the first 
ones, I don’t recall the other one. And directly behind 
one of the first was this white man, who was the second
one on the right hand side. If my memory serves me 
right, A. D. King was one of the second ones.  ̂Fred 
Shuttlesworth, when I first observed him, was _up near 
the front, jle  was not in~ any particular formation of 
two’s, v ile was alongside of them and as they proceeded 
downWthe avenue within the point here, (indicating), 
approximately in here (indicating), he appeared to be 
drawing back and giving encouragement.

Mr. Shores: We object to drawing back and 
giving encouragement.

The Court: Yes, I think what you heard him say, 
what happened, what you saw him do, would he 
permissible.

A. He was talking to the crowd, but 1 did not hear 
what the Defendant said.
[fol. 38] Q. How many blocks, all told, that you observed 
the Defendant with the group?

A. Taking into consideration the point that I lost him, 
I would say approximately three and a half blocks. That



40

half a block in here (indicating), and that would be one 
and two (indicating) and 1 lost him in here and picked 
him up again in here (indicating). That would be about 
three blocks, but I lost him entirely in here (indicating).

Q. What was the total distance you observed the group 
that included the Defendant?

A. I observed the group all along until they came into 
The 1700 Block, and they were stoppecTTh the 1700 Block 
of 5th Avenue.

Q. Now, just have a seat, Officer Ratigan.
A. (Witness resumes witness stand.)
Q. Officer, would you describe how the Defendant Fred 

Shuttlesworth was dressed on this occasion?
A. The Defendant was wearing a black shirt with blue- 

jean trousers.
Q. Would you describe how Martin Luther King was 

dressed on this occasion?

Mr. Shores: We object to how he was dressed. 
He is not on trial. It is irrelevant and incompetent.

Mr. Walker: This is to show that they were 
acting in unison.

The Court: Let him answer.

A. He was wearing a black shirt and bluejeans as 
trousers.

Q. And how was Abernathy dressed?
A. The same way.
Q. Did you observe other people on that occasion in 

similar dress?
A. I don’t recall. I don’t really recall.
Q. Let me ask you this, were these leaders of the 

group or the formation?
[fol. 39] A. They were.

Edward Ratigan—for Plaintiff—Direct



41

Q- And I will ask you if—what is the profession of 
the Defendant, if you know?

A. I just know what 1 read in the paper, he is sup­
posed to be a Reverend.

Q. And what is the profession, if you know, of Martin 
Luther King?

A. lie is supposed to be a preacher.
Q. And Abernathy?
A. 1 am not sure about Abernathy.

Mr. Walker: That is all.

Cross Examination by Mr. Shores:

Q. Officer Ratigan, I believe you said you observed 
this Defendant, along with others, from the time they 
left the church, to the time they were stopped by an 
officer, and were arrested, is that correct?

A. Right.
Q. And you described the formation as two abreast 

about forty inches apart, is that correct?
A. That is right.
Q. And that formation persisted from the time they 

were apprehended or stopped?
A. It did.
Q. And during this time were there other people on 

the side or behind, walking along the side of these people 
who were in formation?

A. There were.
Q. And I believe you also stated that this Defendant 

at no time was in line with a partner, marching two 
abreast, but lie was alongside the line of marchers; is 
that correct?

A. That is right.

Edward Ratigan— for Plaintiff—Cross



42

Q. And that was when he moved from your sight, is 
that correct?

A. It was twice.
[fol. 40] Q. Now, at any time did this formation group 
themselves into four’s and six’s?

A. No.
Q. At no time, from the time they began and from the 

time they were marching alongside in two’s, approxi­
mately forty inches apart?

A. That is right.
Q. Did you ever get close enough to this Defendant to 

hear what he said, as he was walking alongside the 
marchers?

A. No.
Q. You don’t know whether he was telling people keep 

quiet and be orderly or what?
A. I do not.
Q. You did see him speak, from time to time, as he 

walked along beside the line of marchers?
A. I did.
Q. And his position was no different from that of other 

persons that walked alongside of the marchers, is that 
correct? There were others avIio walked alongside the 
way he walked?

A. Not the way he walked, no.
Q jH e was not in line or in a definite place as the 

others you saw? He went from place to place, is that 
right? Is that rigid, in the line he went from place to 

jolace ?
''tVT'That is right, but the other people that were talking 
were away from the curb, were nearer to the houses or 
to the avenue, whereas the Defendant was to the curb 
side of the street.

Edward Ratigan— for Plaintiff—Cross



43

Q. I see, but lie was not in the lines of two’s?
A. He was not in the line of two’s.
Q. And at this time they didn’t have any brass band 

leading them?
A. No.
Q. And they were on the sidewalk, were they not?
A. They were.

[fol. 41] Q. Will you describe just what they were doing, 
as they marched along the sidewalk.

A. All I recall is that they were marching two abreast. 
_ I don’t even recall if they\vere singing.

Q. And they werg orderlv/as they were marching along? 
A. Yes. f  .. /

Mr. Shores: That is all.

Re-Direct Examination by Mr. Walker:

Q. Officer Ratigan, let me ask you one question. In 
your opinion, how many people were in the formation?

A. When I radioed to the Police Headquarters  ̂ I had 
pounted 52 people that had left the church in pairs of two? 

Q. And is that all?
A. That is all.
Q. Did you say 52 persons or 52 couples?

_A. 52TTOi-sonsr_This was in two’s and I counted about 23.
Q. WncTthis group that has been referred to, were they 

merely spectators?
A. You mean the ones that were marching?
Q. Were there any spectators?
A. There were spectators, oh, yes.

] Q. Were those spectators a part of this formation, at 
this time, when you observed them?

A7~No part of them.

Edward Ratigan—for Plaintiff—Redirect



44

Q. What was their relation as compared to the relation 
of this Defendant to the group that was marching? What 
was their difference?

A. There were spectators lined up along 6th Avenue 
up to along the point of the houses, and as this group 
would march—and the Defendant was to the curb side 
of the group—then as the group would pass them, the 
spectators would follow from the rear.

Q. Which sid(Twere the spectators on of the formation? 
[fol. 42] Were they on the side toward the buildings or 
toward the street?

A. They were toward the buildings.
Q. And which side was the Defendant on?
A. Toward the Street side.
Q. Was he with anybody besides himself?
A. Pie was just going down the line with the rest of 

them after he left the church, lie was one of the three 
then, and as they walked along he appeared to be talking' 
to them.

Edward Ratigan—for Plaintiff—Recross

Mr. Walker: That is all.

Re-Cross Examination by Mr. Shores:

Q. I believe you said you did follow the line of marchers 
until they were arrested?

A. That is right.
Q. Did you participate in the arrests?
A. I participated in the arrests.

3Vns tliis Defendant arrested there, at that time? 
A. He Avas_jnat—

, Q. TJ» wiic unt. arrested along with the others that 
-were?

A. He was not.



45

Mr. Shores: That is all.

(Witness excused.)
The Court: Who do you have next?
Mr. Walker: Officer Evers.

Berman Evers, Jr.—for Plaintiff—Direct

H erman E vers, Jr., called as a witness, being first duly 
sworn, was examined and testified as follows:
Direct Examination by Mr. Walker:

Q. State your name, please.
A. Herman Evers.
Q. And what is your occupation?

[fol. 43] A. City of Birmingham Police Department.
Q. How long have you been so employed?
A. Around ten years.
Q. Now, on April 12tli of this year, Officer Evers, what 

was your detail?
A. I was in the—I was detailed to the downtown area 

to work and watch for demonstrations that was to take 
place that afternoon.

Q. Let me ask you this: Where were you—first, is 
April 12th Good Friday?

A. Yes, sir.
Q. Would you tell the jury and the Court where-yo^ 

were at approximately 2:15 and 2:30 on^Jffood Friday,, 
of this year? ' /  --------- -—

A. I was assigned to watch a church in the 1400 Block 
of 6tli Avenue in the City of Birmingham.

Q. And would you—let me ask you this: On that occa­
sion did you see this Defendant?

A. Shuttlesworth?
Q. Yes.
A. Yes, sir.



46

Q. Do you know the Defendant in this case?
A. Yes, sir.
Q. And how long have you known him?
A. I have known him for about five or six years.
Q. How long did you know him when you saw him, 

and did you know him when you saw him on that occasion?
A. Yes, sir.
Q. How long have you known him by sight?
A. About five or six years.
Q. Now, where was the Defendant when you first saw 

him on Good Friday about 2:00 or after?
A. He and one other came up in a car. They got out 

of the car and walked into the church about 2 :05, or 
somewhere around in there.
[fol. 44] Q. When did you next see the Defendant?

A. When he came out of the church leading the demon­
stration, approximately 2 :30.

Q. How was the Defendant dressed on that occasion?
A. When I first saw him, when he got out of the car 

he was dressed in a suit. When he came back out he was 
dressed in bluejeans, pants and jacket, I believe.

Q. In other words, he was dressed differently when he 
came out of the church?

A. He was dressed differently, yes, sir.
Q. Did you observe a group of people coming out of the 

church at the same time the Defendant came out?
A. They followed him out, yes, sir.
Q. Who was leading the group of people?
A. Well, there was King and Abernathy and Shuttles- 

worth?
Q. Which King?
A. A. D. King, I believe.

Herman Evers, Jr.—for Plaintiff—Direct



47

Q. It was A. D. King that you saw? Now, tell the Court 
and the gentlemen of the jury how these people were 
dressed?

A. Best I can remember, they also were dressed in this 
bluejean attire.

Q. Now, describe the formation, if any, that the group 
was in.

A. It was a simulated formation. They came out and 
started walking east on Gth Avenue on the sidewalk in 
groups of two’s and pairs of two’s, in a group strung out.

Q. Now, did you see the Defendant on this occasion?
A. I did.
Q. And was the Defendant with the formation?
A. lie was in the front, yes.
Q. When was he in the front?
A. From the time he walked out of the church, until 

the last time I saw him. The last time I saw him was in 
the 600 Block of 17th Street. I believe it was there by 
the park.
[fol. 45] Q. Did you see him all the time?

A. On spot occasions as I was riding along with them.
Q. Now, how many, in your opinion, was in this forma­

tion; how many people?
A. We counted as they came out and it was approxi­

mately 52, when they came out of the church, at that 
time.

Q. Was there many spectators in the area, at that time?
A. Yes.
n Did the spectators joinjthe formation?

Berman Evers, Jr.—for Plaintiff-—Direct

the north side of the avenue and the spectators were

Q. Where did they joint it?
A. As they crossed it they were on—the church is on

. At a distance.



48

standing on the south side and thereabouts,__As they
crossed 15th Street that is where the spectators started 
coming in and joining them.

Q. Did they follow them, or did they actually join the 
group or formation?

A. They were following them.
,_Q. Iiow many was—of the spectators, were in the group 
following the procession?

A. In number?
Q. Do you have any opinion as to that?.
A . To me it looked like over-ar thousand.
Q. And they were—what were they doing?
A. They were following behind them singing, just loud 

comments and talking and all that, i just generally a dis­
orderly type crowdi ' T

Q. Officer Evers, let me ask one other question. How 
long was—what was the distance that this formation 
traveled, that you observed them? What distance did 
you observe them traveling?

A. From the church up to 17th Street. They made a 
right turn at 17th Street and then came to 5th Avenue, 
and that is where I arrested them, in the 1700 Block of 
5th Avenue, about the middle of the block.
[fol. 46] Q. Let me ask you this: Did this Defendant 
make the turn? Did you see him after the formation 
turned south on 17th Street?

A. The last time I saAV him was when the formation 
turned south on 17tli Street. As I passed them going up 
to 5th Avenue, after he was there at the Kelly Ingram 
park.

Q. Did he turn south or do you know?
A. Yes, sir, he was there at Kelly Ingram Park.

Herman Evers, Jr.—for Plaintiff—Direct



49

Q. Was Kelly Ingram Park on this diagram? Yon can 
come down.

A. (Witness goes to blackboard.)
Kelly Ingram Park would be in this area (indicating). 
Q. Where was the Defendant, approximately, the last 

time you saw him?
A. Approximately, in the middle of the block.

Mr. Walker: That is all.

Cross Examination by Mr. Shores:

Q. Officer Evers, I believe you said you observed the 
Defendant when he went into the church?

A. I did.
Q. He went in dressed in one attire and came out in 

another?
A. That is right.
Q. Did you see anybody else go in one way and come 

out dressed another?
A. Yes, sir.
Q. And you also saw him coming out leading this group 

of fifty something persons?
A. He and King and Abernathy.
Q. They were in two’s, is that correct?
A. Groups of two.
Q. Do you recall who his partner was, if he had a 

partner ?
A. He was in front talking to King and Abernathy.
Q. He was on both sides, first one side and then the 

other?
[fol. 471 A. Yes, sir. King was on one side and Aber­
nathy was on the other.

Herman Evers, Jr.—for Plaintiff—Cross



50 1

Q. And at all times lie was at the front’?
A. No.
Q. Will you describe his conduct at other times during 

the procession? \
A. Ilis conduct was in a frantic conduct, such as bound­

ing from the front to the rear and waving his arm~£d come 
on, telling them to come on. ^

Q. Did you hear him tell them to come on?
A. Yes, sir.
Q. Was he telling the marchers to come on?
A. Both. (
Q. And did you hear him saying anything else about 

keeping quiet and orderly?
A. No.
Q. All you heard him sav was to wave his arms and 

tell them to come on?
A. That is correct.
Q. How close were you at that time?
A. I was riding on the north side of the street. There 

were cars back there, and they were on the sidewalk.
That is how close they got.

Q. They were on the sidewalk, and you were out in 
the street riding your motor bike?

A. Motorcycle, yes.
Q. And what were these marchers doing as they left 

the church until the time they rvere stopped between 
17th and 18th Street on 5th Avenue?

A. Clapping their hands, and singing, and shouting <
and things like that.

Q. They were not just walking along?
A. Not just walking along the street, no.

Herman Evers, Jr.—for Plaintiff—Cross ,



51

Q. 1 see. And was Ratigan one of the Officers that 
[fol. 48] assisted in the arrest, Officer Ratigan?

A. Yes, sir.
Q. And did you see him during this time?
A. Yes, sir.
Q. And what was he doing during this time?
A. He was stationed in front of the church at the 

beginning.
Q. He was stationed in front of the church.
A. Yes, sir.
Q. And when he was stationed in front of the church, 

did he move along as they marched up the street?
A. Yes, sir.
Q. And if he stated that all they did was just walk along, 

he was wrong in stating that they didn’t do anything else?
A. That is his statement, not mine.
Q. He wouldn’t be telling the truth?

Mr. Wilkinson: We object, that would be im­
proper.

The Court: That would be argumentative.

Q. Did you stop them as they reached a point between 
17th Street and 6tli Avenue?

A. 1 did.
Q. What did you do when you stopped them, and what 

did you say, and what did you do?
A. I pulled my motorcycle along the sidewalk, and King 

and Abernathy dropped down on their knees. And some­
body asked them if they had a permit, and nobody an­
swered, and we put them in the wagon.

Q. Was the Defendant there at that time?
A. No.

Herman Evers, J r—for Plaintiff—Cross



52

Q. He was not there at that time?
A. No, sir.
Q. Do you know when he left this group?
A. Like I say, the last time I saw him was in the 600 

Block and 17th Street, and then he went on with the 
[fol. 49] group and we cut them off and let them up to 
5th Avenue, and then we put them in.

Q. Did you ever see him when he wasn’t on the side­
walk ?

A. No, other than crossing the street.

Mr. Shores: That is all.
Mr. Walker: No further questions.
The Court: That is all, you may step down.

Who do you have next?
(Witness excused.)
Mr. Walker: Marcus A. Jones, Sr.

Marcus A. Jones, Sr.—for Plaintiff—Direct

M arcus A. Jones, Sr., called as a witness, being first 
duly sworn, was examined and testified as follows:

Direct Examination by Mr. Walker:

Q. State your name, please.
A. Marcus A. Jones.
Q. And occupation?
A. Detective for the City of Birmingham.
Q. How long have you been employed by the City of 

Birmingham?
A. I have been with the City about 20 years, about 

10 years as a detective.



53

Q. What was your detail on April 12th, Good Friday 
of this year?

A. I was assigned to make pictures for the City of 
Birmingham.

Q. Now, were you assigned—where were you on Good 
Friday about 2:15 or 2:30?

A. I was in front of the church on 6th Avenue, between 
14th and 15th Street.

Q. Now, would you tell the gentlemen of the jury what 
you observed on that occasion, at that time?

A. Of course, I had been down there sometime before. 
There was a meeting going on in the church, and approxi­
mately at that time they began to come out the front, 
[fol. 50] They turned to their left, and behind them the 
marchers, and they marched to 17th Street, and there 
they turned across the street beside the park, turned 
to their right and went across the street on 5th Avenue, 
turned to their left and went on up and directly to in 
front of the Auto Rental business where they were stopped.

Q. And did you have an occasion to—did you see this 
Defendant at the time you observed people coming out 
of the church?

A. I did.
Q. Did they—of the people you observed, did they form 

any type of formation?
A. They pmiifl out of tin* church in a formation.
Q. Describe that formation, please.
A. It was about three or four wide, and, of course, 

jjhJi'Qiit—the front men turned to the left when they 
came out, and the others in the church turned out and 
followed the others, went on up the sidewalk.

TJi'Whnt wua youi "Ttetail at that Time?" S
A. T was making moving pictures at that time.

Marcus A. Jones, Sr.—for Plaintiff—Direct



54

Q. Did you make moving pictures of this Defendant, 
and the group as they came out of the church"?

A. 1 did, as they turned up the street.
Q. And did you observe this group as they proceeded 

east along 6th Avenue North?
A. Yes, sir.
Q. Did you—were they in formation?
A. Yes, sir, they were in formation.
Q. Did you take moving pictures of that?
A. Yes, sir.
Q. Did you take moving pictures continually from the 

time they left the church?
A. No, sir, I didn’t take them continually. That would 

be impossible.
Q. But you took moving pictures periodically?

[fol. 51] A. Yes, sir.
Q. Now, have you observed those moving pictures that 

you took on that occasion?
A. Yes, sir.
Q. Did they fairly represent to the—do they truly 

represent the facts that you have testified to here?
A. Yes, sir.

Mr. Walker: Your Honor, we would like to
show the movies to clarify the testimony that Mr. 
Jones has given, and if possible, 1 believe that 
it will be necessary to locate and to point on the 
film, rather than show some things that might be 
prejudicial to this Defendant, in that he might 
not have been in Birmingham when other parts 
of the film were taken, but we would like to show, 
if we could, the part of the film that Mr. Jones 
took on that occasion of that group of people

Marcus A. Jones, Sr.—for Plaintiff—Direct



55

coming out of tlie church where the gentlemen of 
the jury can better understand the testimony that 
Mr. Jones has given.

The Court: Any objections?
Mr. Shores: Your Honor, we would like to object 

on the grounds he stated his movie wasn’t con­
tinuous. From aught that appears, he might have 
just taken shots at certain points which would 
indicate some inconsistency with respect to the 
whole line of march and not the time he was out 
of the line. There has been testimony that he 
was in and out of the line, that he was at one part 
at one time, and another part at one time, and 
now if this lilm doesn’t show all of that, we would 
object to it.

Mr. Walker: Judge Bailes, that very point was 
raised in a case and I am sorry, I brought the 
wrong notebook, and I don’t have that citation, 
but I could readily obtain it but that very point 
has been raised and answered that it is not an 
excuse for admitting the film.

Mr. Shores: Your Honor, commonsense would 
appear in that a part of the testimony shows this 
man at one point and at one part of the line, and 
another part to the side of the line and another
[fol. 52] time in the back or the front. If he has
got a film that shows only the points where he 
was just walking alongside, which is to the benefit 
of the City, we certainly would say that would 
be prejudicial unless it shows the whole line of 
march from the time it left the church until it 
stopped. If we could view the film out of the
sight of the jury and see what it shows before

Marcus A. Jones, Sr.—for Plaintiff—Direct



56

they were permitted to see it, it is possible that 
we could agree to it.

The Court: Very well, take a little rest period 
and be at leisure until recalled.

(Whereupon, the jury was excused from the Court­
room at 10:20 A.M.; following which the following 
occurred:)

The Court: Is it agreeable for the counsel to 
go in where the machine is?

Mr. Walker: It would be all right.
Air. Shores: Yes, sir.
(Whereupon, a recess was taken at 10:20 for a 

viewing of the film; following which the jury en­
tered the box at 10:30; following which the fol­
lowing occurred:)

The Court: Counsel ready for the jury?
Mr. Shores: We are ready, Your Honor.
Air. Walker: Yes, sir.
The Court: Let the record show that the City 

offers to present certain motion picture scenes 
and the stipulation is agreed by counsel on both 

^aides. All right.
(Whereupon, a motion picture was shown; fol- 

|lowiiigX~wTnch the following occurred:)
Mr. Walker: Would you cut it off?

Q. Now, Detective Jones, does the pictures that you 
have just shown to the jury, does that truly represent 
what you observed on April 12th, Good Friday?

A. Yes, sir.

Marcus A. Jones, Sr.—for Plaintiff—Direct



57

Marcus A. Jones, Sr.—for Plaintiff—Cross 

Mr. Walker: That is all.

Cross Examination by Mr. Shores:

Q. Detective Jones, how long have you known Reverend 
[fol. 53] ShuttleSworth?

A. Six or seven years, I am not quite sure.
Q. And you know him on sight, do you not?
A. Yes, sir.
Q. And in making that film you were on the outside 

of the church when they came out?
A. Yes.
Q. And as they marched up the street, does the film 

show that they were marching in two’s?
_ A. The way I took it they were marching in three’s 
and four’s and sometimes more.

Q. How many came out of the church? In your best 
judgment, who participated in this so-called march or 
parade?

A. I couldn’t answer that question, because, in other 
words, as they came out and moved up the street, I moved 
up to a—in other words, when I left there they were still 
coming out of the church.

Q. And on each side, were there other groups coming 
out besides them?

A. As they marched up the street, as they came down 
the street, you had the people coming out of it, and as 
they came up the street there was certainly a lot of— 
a number of photographers following them and a lot of 
other people following them.

Q. Were you on the side of these people following 
them?

A. The Police tried to keep them in the middle of the 
street.



58

Q. Keep tlie people in the middle of the street!
A. That is right.
Q. The people were walking down the street!
A. Which group are you talking about!
Q. The group that came out of the church.
A. That is right.
Q. The group that was walking out of the sidewalk, 

I believe you didn’t follow them from the time they left 
the church until they were arrested!
[fol. 5-1] A. I ran after them.

Q. You viewed the film that you made, didn’t you!
A. That is right.
Q. How many times did you see Reverend Shuttlcs- 

worth!
A. I couldn’t be sure, I think four times.
Q. What position was he to the group of marchers 

as they walked along the sidewalk!
A. I believe, in the best of my judgment, at first he 

was to the front to the right.
Q. And what did he do at that time!
A. The next time!
Q. The first time, what did he do the first time when 

they came out of the church!
A. I don’t know, exactly.
Q. Did he head the line of marchers or did lie shake 

hands and then step aside!
A. That I don’t know.
Q. You didn’t notice that in the film!
A. I noticed him in the front on the film.
Q. Did you notice whether he remained out in front 

of the marchers after he came out of the church!
A. No.

Marcus A. Jones, Sr.—for Plaintiff—Cross



59

Q. The first—second time, where was he?
A. I believe the second time he was coming up from 

the line of marchers, coming up from the rear?
Q. Coming up from the rear?
A. Yes, sir.
Q. And he was not in front, he was coming up from 

the rear?
A. Yes.
Q. And what is the next time?
A. At that time he had reached the front.
Q. And at that time, was he talking to people?
A. I think he talked to people all the way up the line, 

[fol. 55] Q. All the way up the line?
A. Yes, sir.
Q. You didn’t hear what he was saying?
A. No.
Q. Did he talk any outside the line that you noticed?
A. I don’t know whether he did or not. I want to think 

that he said something to one of the photographers. To 
the best of my judgment, he did.

Q. What were these people in the line of marchers 
doing?

A. You mean besides marching?
Q. Yes.
A. Some of them were singing.
Q. Was that the marchers or the people following the 

marchers singing?
A. That I couldn’t answer, because I never was in the 

rear, I was always in the front.
Q. Were you present when the people who were walk­

ing along the street were stopped by the Officer between 
17th and 18th Street on 5th Avenue?

Marcus A. Jones, Sr.—for Plaintiff—Cross



60

A. At the time they were stopped, best of my judgment, 
I was to the side of them.

Q. How far were you from them?
A. Not over fifty feet, I know.
Q. Not over fifty feet? At that time did you see the 

Defendant?
A. No.
Q. I believe you made pictures of them being loaded 

into paddy wagons, didn’t you?
A. Some of them, not all of them.
Q. Some of them? Did you see the Defendant arrested 

at that time?
A. No.
Q. In your best judgment, was he arrested at that time?
A. I know he wasn’t arrested at that time._

[fol. 56] Q. You know he wasn’t arrested at that time?
A. Yes, sir.
Q. And did they arrest all other the people who were 

in the line of marchers at that time?
A. I wouldn’t think so. I wouldn’t know. I wouldn’t 

think they did.
Q. Did the Officers, when they stopped these people 

who were coming up the sidewalk in two’s did they block 
off the line of marchers from the rest of the people at 
the time they were making the arrest?

A. Arthur, I don’t understand what you mean.
Q. I mean as the marchers moved along 5th Avenue, 

between 17th and 18th Street, they were stopped about 
mid-way of the block. Now, in the rear was the crowd 
allowed to come on then, or did the Officers seal off 
17th Street and 5tli Avenue, have to seal it off?

A. They tried the best they could to seal it off, but 
it wasn’t completely.

Marcus A. Jones, Sr.—for Plaintiff—Cross



61

Q. How’s that1?
A. They weren’t sealed off completely.
Q. What happened to these people who were sealed 

off at that time?
A. Do you mean—
Q. That is the marchers?
A. Those that were stopped, what they could they got 

in a group and marched them on out and put them in 
the wagons.

Q. Marched the group and put them in the wagons, 
and this Defendant was not in that group?

A. lie was not in that group.
Q. Did you see people move out of the church prior to 

these so-called marchers coming out of the church?
A. I will answer you the best I can, knowing what 

your question was. I had been at the church some time, 
and I had definitely seen people go in and out, but not 
any group come out.
[fol. 57] Q. Did you take pictures of them too?

A. No.
Q. Had you made pictures previous to that of the 

people coming in and out of the church?
A. That particular day?
Q. Yes.
A. No.
Q. As a matter of fact, every time you saw somebody 

come out of the church you made pictures, did you not?
A. No.
Q. Did you make pictures of people at the time who 

were just walking up and down the street?
A. No.
Q. As a matter of fact, you walked along with one 

group that came through the park, and as they came

Marcus A. Jones, Sr.—for Plaintiff—Cross



62

through the park you were making your movies and they 
came and went down by the Arrow-Smith building.

A. I think you got your information from your partner.
Q. How’s that?
A. I think you got your information from your partner. 

That was another day.
Q. You made pictures—I saw it myself, that is a fact 

that you saw pictures that you made a picture of people 
walking through the park.

Mr. Walker: We object.
The Court: I didn’t understand the question.
Mr. Shores: We withdraw it, Your Honor. That 

is all.
The Witness: Could 1 get this movie projector 

out of your way?
The Court: Just as you like.
Mr. Shores: Your Honor, we would like to put 

in evidence the portion of the film depicting the 
time they came out of the church, and until the 
time they were arrested.

Mr. Walker: The question is how 1 would have 
offered it in evidence myself, Judge Bailes. There 
is no way of preserving it and to use at the 
[fol. 58] subsequent trial to go to the Court of 
Appeals.

Mr. Shores: We can make a print of that section.
The Witness: Arthur, that is all made of the 

reversible type film, and I don’t know if you could 
make a copy of it. It is all made of reversible 
and it is not made of the negative stock.

Mr. Shores: We would like to introduce it and 
he could take it to the Court of Appeals and show it.

Marcus A. Jones, Sr.—for Plaintiff—Cross



63

The Court: I don’t think I understand you.
Mr. Shores: What we would like to do is make 

this a part of the record, that part that is shown 
as to the various positions from the time he marked 
Good Friday, until the time they were arrested.

Mr. Walker: We submit that it is no more
capable of that being made a part of the record 
than the view of the scene where a murder is being 
committed.

The Court: The Court understood it that a cer­
tain section of time, which was given in preview 
to counsel, should be given to the jury; nothing 
more and nothing less than this, and the Court 
thinks that was the stipulation. The Court thinks 
that was the agreement and that it is covered in 
the agreement.

Mr. Shores: Your Honor, the only point is, if 
it is given, it is a part of the record. It is in 
evidence and the only way the Appellate Court 
would see whether that is relevant evidence would 
be if it is a part of the evidence.

The Court: The fact that you counsel agreed 
to not put it in would relieve that issue.

Mr. Shores: And the statute provides how it 
would be taken care of in the event there was 
a review.

The Court: It was not within the stipulation 
that the film and so forth, would be made to take, 
physically, the film shown, and make it a part of 
the record of rpyiYw fnr review ,
[fob 59] Mr. Billingsley: Your Honor, there is a 
method of taking blown up shots.

The Court: The motion is overruled.

Marcus A. Jones, Sr.—for Plaintiff—Cross



64

Colloquy

Mr. Billingsley: We take exception.

(Whereupon, said lilin was marked “Defen­
dant’s Exhibit 1 for Identification” , and the 
Court Reporter hereby certifies that the 
reproduction of such film is difficult or im­
practicable, which fact is hereby certified to 
the Clerk of the Court.)

Mr. Walker: That is all for the City.

C o m pla in a n t  R ests.

Mr. Billingsley: If Your Honor please, we would 
like to offer a motion in the absence of the jury.

The Court: Very well, it will be necessary for 
you, please, to retire to the jury room.

(Whereupon, jury retired to the jury room at 
10:45; following which the following occurred:)

Mr. Billingsley: If Your Honor please, we would 
like to offer a motion to exclude the testimony and 
for judgment for the Defendant on the following 
grounds: (1) That the City of Birmingham has
not made a case against this Defendant. (2) All' 
of the testimony and evidence given in this cause 
indicates that the Defendant, during the time and 
on the occasions in question, merely exercises rights 
and privileges given to him as a citizen of the 
State of Alabama and of the United States of 
America, and by the First and Fourteenth Amend­
ments to the Constitution of the United States of 
America. (3) There has been absolutely no evi­
dence introduced by the City of Birmingham, to 
support the complaint or warrant in this cause.



65

Colloquy

(4) All of the testimony and evidence offered by 
the City of Birmingham does not prove Defendant 
guilty of any criminal act or unlawful acts during 
the time in question.

As Your Honor noticed, the testimony in this 
case does not show that the Defendant was en­
gaged in any violation of the law, as far as parading 
[fol. 60] is concerned. It further appears that the 
only thing that anyone was doing, as shown by 
the film, they were walking the streets of the City 
of Birmingham, and if it is unlawful to walk the 
streets of the City of Birmingham in groups, then 
it is unlawful to walk, for two people to walk the 
sidewalk.

A parade is very obvious to the Court. It con­
sists of bands, of cars, and many other things, 
and generally, a parade takes place in the middle 
of the street.

Your Honor, has heard all the testimony presented 
by the City, and there is no need, under any cir­
cumstances, for the Defendant to take up the time 
of the Court in this matter, and we ask that the 
Court grant this motion and we also file this 
written motion for the record.

The Court: Let the motion be overruled.
Mr. Billingsley: We take exception.
Mr. Shores: Your Honor, before we begin putting 

on testimony, we would like to have two or three 
minutes recess to see what witness we are going 
to put on.

The Court: All right.



6 6

(Whereupon, proceedings were in recess from 
10:55 A.M. until 11:12 A.M.; following which the 
following occurred:)

The Court: Counsel ready?
Mr. Shores: We are ready, Your Honor. Ask 

Mrs. Craig to come in.

Evidence on Behalf of the Respondent

R osa L ee Craig , ca lled  as a w itn ess , b e in g  first du ly  
sw orn , w as exam ined  and testified  as f o l l o w s :

Direct Examination by Mr. Shores:

Q. State your name, please.
A. Mrs. Rosa Lee Craig.

[fol. 61] Q. Where do you live, Mrs. Craig?
A. 1820 Henrietta Drive.
Q. On or about April 12th, Good Friday, did you wit­

ness several persons walking from 6th Avenue and 13th 
Street to 5th Avenue and 17th and 18th Street?

A. Yes, I did.
Q. Where were you when these people first began 

this walking?
A. I left the church.
Q. You left the church? Were you in that group?
A. I was not.
Q. Did you notice them when they came out of the

Rosa Lee Craig—for Defendant—Direct

church ?
A. Yes.

iw were they grouped?



67

Q. Did you see Reverend Shuttlesworth at any time dur­
ing this, or at the beginning or during this march or walk-

Rosa Lee Craig—for Defendant—Direct

A. Yes, I saw him.
Q. When did you first see him on that occasion?
A. When he left the church.
Q. When he left the church. Was he in line with this 

group of people that left this church?
A. No, he wasn’t.
Q. What was his position? What position did he main­

tain to this group of people that marched from the church 
to 5th Avenue and 17th Street?

A. He was out with the rest of the crowd.
Q. Out with the rest of the crowd?
A. And walking.
Q. Did you observe him doing anything at any time as 

these people walked up the street?
A. He was telling thm-pcKiple to be quiet.
Q. He was telling me people to be quiet?

[fol. 62] Q. And be
A. Yes, sir.
Q. Did you wall 

the street?
A. Yes, I did. x
Q. What was this groupmf marchers doing?
A. They was walking along in two’s.
Q. Just walking up the street?
A. Yes, sir.
Q. Now, in your best judgment, how many were there 

that left this church and walked in  pa^rs up the street?
A. About 52.
Q. In your best judgment about 52,y6r more?
A. Yes, sir.

this group as they walked up



6 8

Q. Did you see the group when they were stopped?
A. Yes, I did.
Q. Was Reverend Shuttlesworth in the group at the 

time they were stopped? Did you see?
A. No, he wasn’t in the group.
Q. Did you see him arrested at that time?
A. No, I did not.
Q. When did you last see him?
A. When I saw him he was just walking along with the 

crowd.
—̂ Qr^Vas he is the crowd when they were stopped, as you 

recall?
A. No.
Q. He was not in the crowd when they were stopped?
A. No.

John D. Brown—for Defendant—Direct

Mr. Shores: I believe that is all. Answer Mr. 
Walker’s questions.

Mr. Walker: No questions.

(Witness excused.)

Mr. Shores: That is all, you may come down. 
Call Mr. John D. Brown.

[ fo l .  63] J o h n  D. B r o w n , ca lled  as a w itness, be in g  first 
du ly  sw orn , w as exam ined  and testified  as fo l lo w s :

Direct Examination by Mr. Shores:

Q. Speak out so we can hear you. What is your full 
name?

A. John David Brown.
Q. Where do you live, Mr. Brown?
A. 3836—11th Avenue North.



69

Q. On or about April 12th, Good Friday, were you in 
that group of persons who left the church and walked up 
6th Avenue to 17th Street and then finally to 5th Avenue, 
and were stopped by Officers?

A. Yes, I was.
Q. From what point did you leave, did you leave the 

church?
A. Yes.
Q. About how many of you were in this group that 

walked from the church to the point where you were 
arrested?

A. There were 52.
Q. Fifty-two?
A. Yes, sir.
Q. You were in the group when they left the church?
A. Yes.
Q. Will you describe the formation as they left this 

church? Were they in single file, in two’s, or three’s or 
four’s?

A. We were in two’s.
Q. You were in two’s?
A. Yes.
Q. Did you observe Reverend Shuttlesworth at any time 

from the beginning of the line of march or walking until 
the time you were stopped?

A. Yes, I did.
[fol. 64] Q. Where did you first see him?

A. First I saw him at the church, and later as we were 
walking, he was at the sidejtelling us to be orderly, in the 
front, and then he went to the back?

Q. In other words, he was not paired off with anybody, 
as you walked up the street?

A. No, he wasn’t.

John 1). Brown—for Defendant—Direct



70

John D. Brown—for Defendant—Cross 
Barbara Jean Breedlove—for Defendant—Direct

Q. Were you arrested that day?
A. Yes, I was.
Q. Was Reverend Sliuttlesworth arrested at the time 

you were arrested?
A. No, lie wasn’t.

Mr. Shores: That is all.

Cross Examination by Mr. Walker:

Q. Do you know where the Defendant was at the time 
the group was arrested?

A. He wasn’t up in the front, lie was in the back.

Mr. Walker: No further questions.

(Witness excused.)
Mr. Shores: That is all. Call Mrs. Barbara Jean 

Breedlove.

B arbara J ean  B reedlove, called as a witness, being first 
duly sworn, was examined and testified as follows:
Direct Examination by Mr. Shores:

Q. Speak up so that the jury and the lawyers can hear 
you. Would you state your full name?

A. Bobbie Jean Breedlove.
Q. Where do you live, Miss Breedlove?
A. 1(109 Fourth Alley South.
Q. Were you in the group that was arrested for walk­

ing up the street on Good Friday?
A. Yes, sir.

[fob 63] Q. And where did you start?
A. I started from the church; we left the church.



73

Q. About bow many were in your group?
A. About 52.
Q. And how were you—what sort of formation were 

you in?
A. We was in two’s.
Q. You were in two’s?
A. Yes, sir.
Q. And did you remain in two’s from the time that you 

left the church until the time you were stopped by the 
Officers?

A. Yes, we did.
Q. Did you see Reverend Shuttlesworth at that time?
A. I seen Reverend Shuttlesworth when I was coming 

out of the church and he was directing the crowd to keep 
orderly, and not have any violence, but he wasn’t in the 
march.

Q. He was not paired off in the march?
A. No, he wasn’t?
Q. At the time you were arrested, was he arrested at 

that time?
A. No, he wasn’t.

Mr. Shores: That is all.

Barbara Jean Breedlove—for Defendant—Cross

Cross Examination by Mr. Walker:

Q. Bobbie, actually, he was telling the marchers, wasn’t 
he, to be orderly, rather than the crowd?

A. He was telling everyone that was marching from 
the church; I guess he was telling all of the people not to 
have any disorderly conduct. To me, that is the way it 
seemed.

Q. Specifically, he was telling the 52 of you to be orderly?
A. Yes, sir.



72

Q. In fact, lie was between the sidewalk and the street, 
is that not correct?

A. Between—
Q. In other words, the 52 of you were walking down the 

sidewalk east?
[fob 6G] A. Yes, sir, we was.

Q. And he was between the sidewalk and the street, is 
that not correct?

A. Well, he was on the sideline. He wasn’t inarching, 
if that is what you are trying to find out.

Q. That is not my question. He was not next to the 
building side?

A. When I seen him he was coming out of the church. 
We was coming out of the church and marching, and he 
was to the side of us at the beginning, and he was telling 
us not to be disorderly and violent, and further on up I 
did not see Reverend Shuttlesworth.

Q. He was on your left side, is that not correct?
A. He was on the left side coming out of the church.
Q. Now, this group of spectators were lined on the right 

side, next to the building, is that not correct?
A. On the right side?
Q. Yes, on the right side next to the buildings?
A. I don’t remember that.
Q. Well, they weren’t out in the street were they?
A. They was people all the way around.

Mr. Walker: No further questions.

(Witness excused.)
Mr. Shores: That is all. Call Reverend Billups.

Barbara Jean Breedlove—for Defendant—Cross



73

R everend C harles B il l u ps , called as a witness, being 
first duly sworn, was examined and testified as follows:
Direct Examination by Mr. Shores:

Q. Reverend Billups, would you state your full name!
A. Charles Billups.
Q. And where do you live, Reverend Billups?
A. 3516—64th Place North.
Q. Were you present at the church, and did you observe 

[fol. 67] the persons walking from the church to the time 
they were arrested for marching or parading wtiliout a 
permit?

A. Yes.
Q. Did you see Reverend Shuttlesworth on that day?
A. Yes, sir, I did.
Q. Were you in the group of persons that were walking 

or marching?
A. No.
Q. When did you first observe the group of marchers? 
A. Well, I was inside the church.
Q. You were inside the church?
A. I walked out, I was right behind the group that was 

walking and I walked out behind the group.
Q. You walked out behind the marchers?
A. Yes, sir.
Q. Did you observe Reverend Shuttlesworth then, when 

he came out of the church?
A. Yes.
Q. What position, in respect to the group of people, was

he?
A. At first when he came out of the church he sliaked 

Reverend King’s hand and then next they marched on in 
front of him. He stood on the side telling people to be

Reverend Charles Billups—for Defendant—Direct



74

quiet, and we don’t want any violence, don’t keep up too 
much noise. He was moving his hands and then he started 
walking down beside of the ones that were walking down 
going east toward the City Hall.

Q. And how were they grouped, in one, or two’s, three’s, 
or four’s, or in what sort of formation were these people 
that were marching!

A. In two’s.
Q. In two’s!
A. Yes, sir.
Q. Did you watch them from the time that they left the 

church, until they were arrested!
A. I watched from the time when they started and until 

[fol. 68] 17th Ht4^eCaml we couldn’t go on any further 
because it was bJ^rdcedoIT^Her the marchers proceeded 
on down to tlie/Courthouse. \

Q. Did you notice whether o) not Reverend Shuttles- 
wortli ever got off the sidoTvalk to talk to anybody in the 
crowd!

A. He did. He talked to me for a while. He left the 
people who were walking and spoke to me.

Q. At any time was he a part of the marching groan?
. Tn other words, was he paired off at that time with anyone! 

-— iW-Hp. he wiiH-iiaL
Q. Did you see the persons when they were stopped 

between 17th and 18th Street and 5tli Avenue!
A. Yes, sir, I did.
Q. Did you see whether or not Reverend Sliuttlesworth 

was arrested at that time!
A. He was not arrested at that time.
Q. He was not arrested at that time!
A. No, sir.

Reverend Charles Billups—for Defendant—Direct



75

Q. Do you know whether or not that they arrested all 
the other people that were marching?

A. They did.

Mr. Shores: That is all.

Cross Examination by Mr. Walker:

Q. Reverend Billups, did you see Shuttlesworth at any 
time after the group turned south on 17th Street off of 
6th Avenue?

A. As they turned South off 6th?
Q. Yes.
A. Yes, sir, I did.
Q. Isn’t it a fact he ran through the park there?
A. No, he did not. At that time ho was by my side. At 

the time they turned, the marchers, and we were standing 
there together.

Q. Isn’t it a fact he didn’t leave the group until after 
[fol. 69] the arrests started?

A. He left before the arrests.
Q. Before the arrests?
A. That is right.
Q. Where was he before he left?
A. He was in the park. He was in the park and he left 

the group when they turned. He left back there where they 
sealed off, where they sealed off the block.

Q. He left the block when he saw the block was sealed 
off?

A. He left when he saw the block sealed off, that is 
when he left.

Q. All right. Who was the leader of this formation?
A. Who was the leader?

Reverend Charles Billwps—for Defendant—Cross



76

Reverend Fred L. Shuttlesivorth—Defendant—Direct 

Q. Who walked in front?
A. There was Reverend King and Reverend Abernathy. 
Q. And which Reverend King is that?
A. Reverend Martin Luther King.
Q. And how was he dressed?
A. He was dressed in, I would say, bluejeans and gray 

shirt.
Q. And how was the Reverend Abernathy dressed?
A. He was dressed the same.
Q. And what about Shuttlesworth?
A. He was dressed the same, had on bluejeans.
Q. How were you dressed?
A. I had on a dungaree coat and full outfit of dungaree 

and overall.

Mr. Walker: That is all.
Mr. Shores: That is all.
The Court: Who do yoii have next?

(Witness excused.)
Mr. Shores: Reverend Shuttlesworth.

Reverend Fred L. Shuttlesworth, called as a witness, 
being first duly sworn, was examined and testified as fol­
lows :
[fol. 70] Direct Examination by Mr. Shores:

Q. Reverend, for the record, will you state your name? 
A. Fred L. Shuttlesworth.
Q. Reverend Shuttlesworth, during April 12th, at which 

time a group of persons walked from 14th Street and 6th 
Avenue to approximately middleways of the block on



77

Reverend Fred L. Shuttlesworth—Defendant—Direct

5th Avenue between 17th and 18th Street; were you pres­
ent at any time during the time these people left until 
the time they were arrested?

A. I was present at different positions in the crowd, 
sometimes on the sidewalk—pardon my hoarseness.

Q. Will you describe your acts from the time this group 
left the church, until the time you left the group?

A. When Dr. King and Abernathy got to the front door, 
I shook hands with them and stepped aside, and they 
proceeded up the sidewalk, so to keep the people who 
were standing in the street and the sidewalk adjacent 
from gathering up with them. As such. I cautioned the 
crowd not to make any noise, and not to join them.

Q. And how were they grouped as they came out of the 
church?

A. By two’s.
Q. By two’s?
A. Yes, sir.
Q. And do you know the number of persons who took 

part in this walking up the street?
A. I didn’t count them. They were more than fifty, I 

would say.
Q. What was the conduct of these people walking up

the street?
two’s.

Q. At any time did you join the group and were you 
paired off with any other persons who were walking up 
the street?
[fol. 71] A. No, in fact, all of the marchers, I would say, 
got out before—you see, I stood back to keep the crowd 
from them, and Abernathy and Dr. King’s associate sug­
gested that I come to the front of the crowd and speak 
with him for a minute or two, so I spoke with him and



78

stepped back off and about that time the Officers threat­
ened to arrest anybody in the street where the 16th Street 
was, and so I stopped there and I cautioned the crowd 
to step back, and I was in the street at this time.

Q. And from time to time you moved away from the 
marchers ?

A. Most of the time 1 was away from the marchers.
Q. And do you remember counseling them to be orderly 

and not to resort to any violence?
A. Particularly the group in Kelly Ingram Park. The 

park had quite a few people in it, so I was off of the 
sidewalk in the park counseling as best I could.

Q. At what point did you leave the group?
1 never^wrus--wlth^tlie group, as such. 1 never did 

go any further from 17th Street, ancT I was off the side 
with Billups and one or two more of them.

Q. And, in other words, after the officers sealed off the 
people who were grouped together, you were not in the 
group and didn’t go any further, is that correct?

A. It wasn’t my intention to march or go any further.
Q. You mean you didn’t?
A. Try to go across the block, oh, no.
Q. You didn’t go on the 17th Street side?
A. I don’t recall going across.
Q. Were you arrested then, when the others were ar­

rested?
Mr. Walker: We object to that when he was 

arrested.
The Court: Well, let him say.

Reverend Fred L. Shuttlesworth—Defendant—Direct

Q. You were not arrested? 
A. No.



79

Q. You were not with them and you were not arrested 
at that time?
[fol. 72] A. No.

Q. When were you arrested and charged with parading 
without a permit?

A. I would imagine it was about an hour or two later, 
maybe an hour. It might have been between an hour and 
forty-two minutes later, I was at the motel and two de­
tectives came^up and T~ knew~~TKem7~and I came to the 
balcony, and they said to me we want to talk to you, 
and so I came down and they sajtR you were parading 
without a permit, we came to get you. So they arrested me.

Q. They~arrested you at thelnotel?
A. I had to go back in to get my coat, but they wanted 

me to go right then, but I wouldn’t go until I got my coat.
Q. You got your coat and you went on at that time?
A. Yes.
Q. And it was then you were charged with parading 

without a permit?
A. Yes, sir.

Mr. Shores: I believe that is all.

Cross Examination by Mr. Walker:

Q. Reverend Shuttlesworth, how were you dressed on 
that morning or afternoon when you first went into the 
church?

A. What I had on when I came out.
Q. You did not change clothes inside the church?
A. Certainly not.
Q. IIow were you dressed when you came out?
A. As the film shows, blue shirt, and bluejeans, I think 

they call them.

Reverend Fred L. Shuttlesworth—Defendant—Cross



80

Q. Was everybody in that group of 52 dressed that way?
A. They were not.
Q. Was Martin Luther King in that group?
A. WTas he?
Q. Yes.
A. He was.

[fol. 73] A. He was dressed with bluejeans and shirt.
Q. Was Reverend Abernathy dressed that way too?
A. He was.
Q. Was anyone else dressed that way?
A. You mean in the marchers?
Q. In the marchers.
A. I think that one time, Bernard Lee, one of Mr. King’s 

assistants, was. He was dressed in bluejeans. I was not 
paying particular attention, but most of the other people 
wore bluejeans.

Q. Was that supposed to symbolize anything? What 
was the meaning of those bluejeans.

Mr. Billingsley: We object to that. It is imma­
terial and irrelevant.

The Court: Overruled.
Mr. Billingsley: We except.

Q. WTiat was the meaning of the bluejeans. Did the 
leaders wear bluejeans?

A. No. As a matter of fact, I think that sometime be­
fore we had a period of mourning, and many people, 
from time to time, had on bluejeans over a period of a 
month oi' more. It just so happened that they had them 
on that day.

Q. Coincidence?
A. You might call it that, if you like.

Reverend Fred L. Shuttleswortli—Defendant—Cross



81

Reverend Fred- L. Shuttlesworth—Defendant—Redirect 

Mr. Walker: That is all.

Re-Direct Examination by Mr. Shores:

Q. In other words, you were not dressed for any parade, 
were you?

A. I had on bluejeans for other purposes.
Q. And there were several other persons who did not 

take part in that walking that day had on similar type 
dress?

A. Many people in the crowd had on bluejeans, as I 
think the film will show.

Mr. Shores: That is all.
Mr. Walker: No further questions.

[fol. 74] (Witness excused)
Mr. Shores: That is the Defendant’s case, Your 

Honor.
Mr. Walker: We have rested.
The Foregoing Was All the Evidence in the Case. 
Mr. Billingsley: Your Honor, at this time we 

would like to renew our motion to exclude the testi­
mony and for judgment.

The Court: The Court renews its ruling.
Mr. Billingsley: All right, we take exception. 
The Court: Counsel ready for the arguments? 
Mr. Walker: Yes, sir.
Mr. Shores: Yes, sir.
The Court: Gentlemen, that is all the evidence 

in the case and we will now have the arguments by 
the attorneys.

(Whereupon, Mr. Walker addressed the jury on 
behalf of the Complainant in opening argument,



82

following by Mr. Arthur Shores, who addressed 
the jury on behalf of the Respondent, followed by 
Mr. Walker, who closed the argument for the Conn 
plainant, there being no objection and exceptions 
reserved to the arguments, the following occurred:)

The Court: Gentlemen, unless there is an objec- 
tion on the part of counsel, it would be the Court’s 
pleasure to declare an earlier recess for lunch 
period and reserve the charge until thereafter. Is 
that agreeable to both parties?

Mr. Walker: Yes, sir.
Mr. Shores: Yes, sir.
The Court: And, of course, that presupposes that 

the jury separates and goes to lunch at its own 
pleasure.

Mr. Shores: That is right, Judge.
Mr. Walker: Yes, sir.
The Court: Very well, under the agreement of 

counsel, be back at 1 :30. Please remember what 
the law requires me to say about not mentioning 
the case to anybody, and T will see you at 1 :30 P.M.

[fob 75] (Whereupon, Court was in recess from 11:40 
A.M. until 1 :55 P.M.; following which the following oc­
curred :)

O ral C harge of t h e  C ourt

The Court: You have heard the testimony and the sum­
mation of counsel. It is the duty of the one sitting as 
umpire to give you, in charge, the salient points of law 
governing the case. They are simple and few.

First, the great basic bedrock rule is that any man 
charged with an offense can come into Court with pre-

Charge of the Court



83

sumption of innocence in his favor, which presumption of 
innocence goes with him until it is overcome by evidence.

The second one is that the burden of proof is always 
upon the prosecutor, never upon the Defendant.

The third ground rule is a little more difficult. It deals 
with the measure of proof there must be. The Supreme 
Court has addressed itself to that third ground, and 
the books are full of its observations on this third ground, 
and the best way the Supreme Court had been able to 
say it is this: You are talking about the measure of 
proof, how much proof there must be. Well, it starts 
out by saying the twelve men in the jury box are the 
twelve judges of the facts, and hearing the facts they 
shall evaluate the facts and then judge the facts. And 
to reach the measure of proof, if the jury, as judges of 
the facts, is convinced beyond a reasonable doubt and to 
a moral certainty that a defendant is guilty as charged, 
it is their duty to convict him. On the other hand, if the 
jury, sitting as the judges of the facts, they are not con­
vinced beyond a reasonable doubt and to a moral cer­
tainty that the defendant is guilty as charged, it is the 
jury’s duty to acquit him.

Those are the ground rules. Of course, there are some 
fringe rules. I don’t know whether to take up your time 
or not. Justice Oliver Wendell Holmes has said this: It 
is the duty—now, the State of Alabama has never said 
this, but the Supreme Court has said this-—It is the duty 
of a jury to observe the witness that takes the witness 
[fol. 76] stand, to observe the person, the glitter of his 
eye, the cut of his chin, the tone of his voice, his manner 
of walking to the stand and walking away, and his de­
meanor, and everything about him; and having considered 
everything about the man, or woman, that takes the wit-

Charge of the Court



84

ness stand, if a jury is convinced beyond a reasonable 
doubt and to a moral certainty that any witness has wil­
fully sworn falsely, then the jury may, at its discretion, 
disregard or leave out anything, and everything, such a 
witness has said; to reject that witness’s testimony en­
tirely.

Now, I have a request for a written charge and 1 be­
lieve there were no other written charges. Therefore, 
gentlemen, having heard the charge as contained in the 
complaint, you find the complaint and you will have it 
with you on your table, in your room, for deliberation 
about six lines, actually. The code of the City put the 
whole matter in this language—that I believe counsel read 
to you, a part of it at least—“It shall be unlawful to 
organize, or hold, or to assist in organizing or holding, 
or to take part or participate in any parade or procession 
or other public demonstration on the streets, or other 
public ways of the City, unless a permit therefor had 
been secured from the Commission,” the city government. 
And the rest of it is descriptive of asking for and securing 
or not, such a permit.

Then the City conies and says: Fred L. Shuttlesworth, 
within twelve months of the beginning of the prosecution 
and within the City of Birmingham, or the police juris­
diction thereof did take part, or participate, in a parade 
or a procession on the streets of the City without hav­
ing secured a permit, therefor, from the Commission, con­
trary to and in violation of Section 1159 of the general 
code of the City of Birmingham. And it all conies down 
to this: Did the Defendant take part in, or participate, 
in a parade or procession.
[fol. 77] And I come back to what I quoted you from 
the Supreme Courts’ definition of the third great basic

Charge of the Court



85

rule of this trial and that is: Sitting as the Judges of 
the facts, to be authorized to render a verdict of guilty, 
you must be convinced beyond a reasonable doubt, and 
to a moral certainty, that the Defendant is guilty as 
charged inside the four corners of that complaint.

If after having heard all the testimony, you, sitting as 
the Judges of the facts, are not convinced beyond a rea­
sonable doubt and to a moral certainty that that paper 
and complaint is true, it would be your duty to acquit him.

The penalty clauses, in the event of a finding of guilty, 
the Defendant’s punishment runs from—

Mr. Walker: One penny to one hundred dollars.
The Court: One penny to one hundred dollars.
Any corrections?
Mr. Walker: No, sir.
Mr. Shores: We have none.
The Court: Therefore, gentlemen, please take with you 

the complaint and these forms of verdict typed just to 
save you from the tedium of writing them. Please take 
them and retire to the juryroom and let your first pro­
cedure be to elect one of you as your foreman. Thank you 
and you may take the case.

Mr. Shores: Your Honor, we would like to note an 
exception to the requested charge by the Defendant.

The Court: If it is marked refused, you automatically 
have it and it will have to go in the record.

Mr. Shores: Thank you, Your Honor.

Charge of the Court

E nd of Proceedings



8 6

[fol. 80]
PROCEEDINGS IN THE COURT OF APPEALS OF 

ALABAMA, SIXTH DIVISION

In the Court of Appeals of Alabama 

No.................

Fred L. Shuttlesworth,

vs.

City of Birmingham,

Appellant,

Appellee.

Assignment of Errors

Now comes the Appellant, defendant in the cause below, 
and shows unto the Court that manifest error has been 
committed on the trial of this cause in the Court below, 
to the hurt and prejudice of this Appellant and as grounds 
of error, assigns the following, separately and severally:

1. The Court erred in overruling the defendant’s 
demurrers tiled in this cause (Tr. 3, 4, 5, 8 & T7), to which 
ruling the defendant duly excepted.

2. The Court erred in overruling the defendant’s Mo­
tion to Quash Venire (Tr. 4, 5, 8 & 17), to which ruling 
the defendant duly excepted.

3. The Court erred in overruling defendant’s Motion 
to Exclude the Testimony and for Judgment (Tr. 7, 8, 
58, 59 & 73).

4. The Court erred in overruling defendant’s Motion 
for New Trial (Tr. 8, 11 & 12).



87

a. The Court erred in fixing the defendant’s appeal 
bond in the sum of Twenty-five Hundred ($2500.00) Dol­
lars (Tr. 10).

0. The Court erred in refusing the defendant’s request 
Charge #1 , as follows:

“If you believe the evidence in this case, then, Gentle­
men of the Jury, you should find the defendant not guiltv” 
(Tr. 13).

Assignment of Errors

/ s /  A r t h u r  D. S hores 
/ s /  O rzell  B illin g sley , Jr. 

Attorneys for Appellant

I hereby certify that I have served a copy of the fore­
going assignment of Errors to the Honorable William 
C. Walker, Attorney for the City of Birmingham, by 
United States mail, postage prepaid, this 18th day of 
December, 1963.

/ s /  A r t h u r  D. S hores

Attorney for Appellant



8 8

[ fo l . 81]
Majority Opinion

T h e  S tate of A labam a— J udicial  D epartm en t  

T h e  A labam a  C ourt of A ppeals 

O ctober T erm , 1965-66

6 Div. 979

F red L. S h u t t le sw o r th ,

v.

C it y  of B ir m in g h a m .

A ppeal  from  J efferson  C ircu it  C ourt

Cates , J udge

This appeal was submitted February 27, 1964, and was 
originally assigned to J o h n s o n , J.

Shuttlesworth was convicted by a jury in a circuit 
court trial de novo. The City charged him with a breach 
[fol. 82] of its ordinance against parading without a 
permit. §1159, General City Code of 1944.1

1 “ It shall bo .unlawful to organize or hold, or to assist in or­
ganizing or holding. or to take part or participate in, any parade 
nr'nrooossion or other public demonstration on the streets or other 
piThlliV̂ wavs of the city, unless a permit therefor has been secured 
from the comnussian- 4

“ To secure such permit, written application shall be made to the 
commission, setting forth the"probable number of persons, vehicles 
and animals which willJbe engaged in such parade, procession or
"  i i  i  • 1 *"j j * j l   _________ ______ . . . l < D > l t  i n  I n  1 1 r\ l i n l J



89

Pursuant to verdict, the trial judge adjudicated him 
guilty, fined him $75.00 and costs, and also sentenced 
him to ninety days hard labor for the City.

There are three questions for decision: (1) whether
§1159, supra, denies, on its face, due process of law; 
(2) whether or not the ordinance as applied violates 
Yick Wo v. Hopkins, 118 IJ. S. 356; and (3) the suffi­
ciency of the evidence.

Majority Opinion

I .

Facts

About two o’clock, P. M., Good Friday, April 12, 1963, 
some fifty-two persons issued from a church on Sixth 
Avenue, North, in Birmingham. They went easterly on 
the sidewalk of Sixth Avenue crossing Fifteenth and 
Sixteenth Streets. At Seventeenth Street they turned 
south, then at Fifth Avenue east again.

The defendant was one of the first to emerge from the 
church. Various city policemen saw him thereafter, 
[fol. 83] sometimes walking along with and sometimes 
alongside the others, once bounding from front to rear.

The group went along sometimes two, sometimes three, 
sometimes four, and at one time a witness saw one rank 
of six abreast. This observed bunching up coincided 
with the promenaders being blocked by officers parking 
police cars athwart the crossing at Fifth Avenue and 
Eighteenth Street.

re(*uire thatjj  t 1tor such purposes any other 
public ways than those set out in said permit.

“ The two preceding paragraphs, however, shall not apply to 
funeral processions.”

[er,
fwfu' W e "

e refusedl 
streets or



90

There was no evidence that any of the group jay­
walked, or that they got into the vehicular roadway 
except at designated cross walks. Nor did they obstruct 
cars or pedestrians nor disobey any traffic lights, or 
officers directing traffic. The only tendency toward show­
ing disorderly conduct lay in evidence that some of the 
group sang and clapped hands.

The defense adduced no permit for a procession or 
parade nor was there evidence of anyone applying for 
a permit. Conversely, the City’s proof showed no permit 
of record for the day in question.

II.

Background

A procession lias been described as an assembly in 
motion. 72 C. J. S., p. 1204, states:

“ * * * a group, especially of persons or of vehicles 
containing persons, moving onward in an orderly, 
ceremonious, or solemn manner; an orderly file or 
formation, especially of marchers; a parade.”

The essence seems to lie in the group’s having ad hoc 
and pro tempore exclusive possession of all or part of 
a public way.

Early—probably when in the grip of his fondness for 
referring to the public as the “Mob”—Holmes, J., in 
Commonwealth v. Davis, 162 Mass. 510, 39 N. E. 113, 
spawned what Jjidg^Xfanwuy of the New York Cnnrt, 
of Appeals characterized as “ the plenary power [of public 
Hob 841 officers I over use of streets and parks.’  ̂ P. v. 
Klim, 300 N. Y. 273, 90 N. E. 2d 455, at 462. Cf Kunz 
v. New York, 340 U. S. 290.

Majority Opinion



91

However, though the Davis case was approved in the 
United States Supreme Court (167 U. S. 43), its as­
surance has been eroded by later First-Fourteenth Amend­
ment cases beginning with Hague v. Committee, 307 U. S. 
496.

Consequently in 1941, we find the court saying in 
Commonwealth v. Anderson, 308 Mass. 370, 32 N. E. 2d 
684 (hn. 2), concerning an ordinance of Boston as applied 
to a Jehovah’s Witness:

“ * * * there is no suggestion in the agreed facts that 
the defendant was obstructing traffic, causing danger, 
or annoying travellers in any way, or that the form 
of the placards or the writing upon them was in­
decent, libellous, likely to incite violence or otherwise 
objectionable. Nor do the terms of the ordinance 
itself limit its prohibition to instances where these 
or similar conditions exist. The particular case here 
presented is one of the unqualified interdiction of a 
wholly inoffensive display of placards on a public 
street unless the defendant should submit to the 
requirement that he first obtain a permit. Whatever 
result might be reached if the ordinance, by its word­
ing, affected only carefully defined instances of con­
duct actually inimical to the public interest, or if 
the proof had disclosed such conduct, we must at 
least conclude that under decisions by which we are 
bound the application of this ordinance to this defen­
dant in this instance violated his constitutional right 
to do what he did without a previous permit from 
anyone. * * * ”

And in the same volume on consolidated appeal, Com­
monwealth v. Pascone, 308 Mass. 591, 33 N. E. 2d 522,

Majority Opinion



92

we find the same rule again applied with a precise dis­
tinction of ratio decidendi in affirming the second case.

Moreover, in express terms the Massachusetts court, in 
1947, comes to grips with the Davis case, supra, Com­
monwealth v. Gilfedder, 321 Mass. 335, 73 N. E. 2d 241 
(hn. 3). The opinion confesses puzzlement at how the 
Supreme Court could speak as it did to its judgment in 
Hague and yet not have overruled Davis, supra. The 
[fol. 85] Gilfedder opinion by the distinguished Justice 
(and later Chief Justice) Qua is worthy of close study 
as a persuasive and considered precedent as to the use 
of parks by the public.

Hague was decided in 1939. The history of Mayor 
Hague’s resistance to union activity of virtually all sorts 
cannot be ignored. Nor can that factor be gainsaid in 
assessing the 5-2 division in the then membership of the 
court. The opening paragraph, 307 U. S., at 500, is :

“The judgment of the court in this case is that the 
decree is modified and as modified affirmed. M r. 
J ustice F ran k fu rter  and M r. J u stice  D ouglas took 
no part in the consideration or decision of the case. 
M r. J ustice R oberts has an opinion in which M r. 
J ustice  B lack  concurs, and M r. J ustice S tone an 
opinion in which M r. J ustice R eed concurs. The 
C h ie f  J ustice concurs in an opinion. M r. J ustice 
M cR eynolds and M r. J ustice B u tler  dissent for 
reasons stated in opinions by them respectively.”

Carefully analyzed it is obvious that only Mr. Justice 
Butler (in dissent) was expressly willing to stain by 
Davis v. Massachusetts, 167 U. S. 43.

Majority Opinion



93

Roberts, J.,3 said of Davis4 (515) :
“The ordinance there in question apparently had a 
different purpose from that of the one here chal­
lenged, for it was not directed solely at the exercise 
of the right of speech and assembly, but was ad­
dressed as well to other activities, not in the nature 
of civil rights, which doubtless might be regulated 
or prohibited as respects their enjoyment in parks. 
In the instant case the ordinance deals only with 
the exercise of the right of assembly for the purpose 
of communicating views entertained by speakers, and 
is not a general measure to promote the public con­
venience in the use of the streets or parks.”

[fol. 86] After pointing out that the Jersey City ordi­
nance explicitly required permits only for public parades 
or assemblies, he made this oft quoted statement:

“ * * * Wherever the title_of streets and parks may 
rest, they have immemorially been held in trust for 
the use of the public and, time out of mind, have 
been used for purposes of assembly, communicating 
thoughts between citizens, and discussing public ques­
tions. Such use of the streets and public places has, 
from ancient times, been a part of the privileges 
immunities, rights, and liberties of citizens. The 
privilege of a citizen of the United States to use

3 The writer suspects that Mr. Justice Roberts in H a g u e , was 
chary of “ re-examination of constitutional principles” and hence 
chose to follow the English practice of distinguishing a prior 
precedent into such narrow confines that its immurement is that 
of a tomb.

1 The Boston ordinance banned (without a permit from the 
Mayor) firing cannons, or firearms, hawking goods, setting up 
shows, etc., as well as public addresses.

Majority Opinion



94

the streets and parks for communication of views 
on national questions may be regulated in the in­
terest of all; it is not absolute, but relative, and must 
be exercised in subordination to the general comfort 
and convenience, and in consonance with peace and 
good order; but it must not, in the guise of regula­
tion, be abridged or denied.

“We think the court below was right in holding the 
ordinance quoted in Note 1 void upon its face. It 
does not make comfort or convenience in the use 
of streets or parks the standard of official action. 
It enables the Director of Safety to refuse a permit 
on his mere opinion that such refusal will prevent 
‘riots, disburbances or disorderly assemblage.’ It can 
thus, as the record discloses, be made the instrument 
of arbitrary suppression of free expression of views 
on national affairs, for the prohibition of all speaking 
will undoubedly ‘prevent’ such eventualities. But un­
controlled official suppression of the privilege cannot 
be made a substitute for the duty to maintain order 
in connection with the exercise of the right.”

At this point we pick up the decisions which follow in 
the train of the Hague case. The early ’40’s saw the 
emergence of the Jehovah’s Witnesses cases.6

In Lovell v. Griffin, 303 U. S. 444, the court had held 
void an ordinance prescribing a permit to distribute 
literature.

Then after Hague, in 1939, we find:

Schneider v. State, 308 U. S. 147 (1939);
Carlson v. California, 310 U. S. 106 (1940);

5 See Harper, J u stic e  R u tle d g e  a n d  th e B r ig h t  C o n ste lla tio n , 46, 
et seq.

Majority Opinion



95

Jamison v. Texas, 318 U. S. 413 (1943);
[fol. 87] Largent v. Texas, 318 U. S. 418 (1943);
Jones v. Opelika, 319 U. S. 103 (1943) ;
Murdock v. Pennsylvania, 319 U. S. 105 (1943) ;
Saia v. New York, 334 IT. S. 558 (1948);
Kunz v. New York, 340 U. S. 290 (1951);
Gelling v. Texas, 343 U. S. 960 (1952);
Fowler v. Rhode Island, 345 U. S. 67 (1953); 

and
Staub v. City of Baxley, 355 U. S. 313 (1958).

Against this array, however, stands Cox v. New Hamp­
shire, 312 IT. S. 569, which, unlike the multi-opinion Hague 
decision, came from an unanimous court speaking through 
Hughes, C. J. This opinion relied heavily on the State 
Supreme Court’s construction in the same case. State 
v. Cox, 91 N. H. 137, 16 A. 2d 508.

Here, for affirmance, the City of Birmingham claims 
that Cox is decisive. Concededly, there are many simi­
larities between § 1159 of the Birmingham Code of 1944 
and the New Hampshire statute there in question. .

Corresponding is the broad sweep of licensing: Thus 
from Cox, we find: “ # # # no parade or procession upon 
any public street or way * * " on less a sp e c ia l  license 
therefor * * And of like tenor, §1159 reads: “ * * * 
unlawful to orgmin^ * * .* any parade or procession 01- 
other public demonstration on the streets or other public 
.ways * * * unless P .permit * *

Administrative mechanics in each are similar. The New 
Hampshire Act made no exceptions other than to em­
power the city licensing committee or board to grant 
“ revocable blanket licenses” to fraternal and other like 
organizations, to theatres and undertakers.

Majority Opinion



96

Majority Opinion

However, tlie New Hampshire enactment applied not 
only to parades and processions but also to performances 
or exhibits comprising theatrical or dramatic representa­
tions as well as any open air public meeting upon any 
ground abutting on a street or public way.
[fol. 88] Moreover, the New Hampshire court, State v. 
Cox, made no reference to any prior judicial or admin­
istrative interpretation of the statute. Whereupon, the 
court proceeded to fill in by implication a variety of 
requirements: (1) reasonableness: (2) uniformity of treat-
ment of applications; and (3) freedom from improper or 
inappropriate considerations and from unfair discrimina-

lt was undoubtedly this gloss of “ a systematic consistent 
and just order of treatment” which facilitated affirmance 
in Cox v. New Hampshire, supra.

Since, however, the validity prima facie of § 1159 has 
not been before any appellate court6 we find it neces­
sary to examine the unfolding of cases since Cox. In
Primm v. City of Birmingham, -------  Ala. App. ----- , 177
So. 2d 326, we found insufficient evidence.

In passing, we note that in McMeans v. City of Fort 
Deposit (Cr. 11, 759-N, U. S. C., M. D., Alabama, Sep­
tember 30, 1965), [Frank, M.] Johnson, J., held an iden­
tical ordinance of the City of Fort Deposit to be uncon­
stitutional as applied to the facts.

Nevertheless there are at least two reasons which keep 
us from using the McMeans opinion as authoritative as 
to Shuttlesworth’s appeal.

0 A three-judge court presided over by Rives, J., in K in g  v. C ity  
o f  B irm in g h a m  (Civil Action 63-196, U. S. D. C., N. D., Alabama, 
August 12, 1963), dissolved itself without taking up the constitu­
tionality of § 1159.



97

First, the facts there recited disclose no parade or 
procession but rather only peaceful picketing within the 
protection of Thornhill v. Alabama, 310 U. S. 88. TIotel & 
Restaurant Emp. v. Greenwood, 249 Ala. 265, 30 So. 2d 
696 (hn. 21).
[fol. 89] Second, the opinion states that the City ap­
peared but did not seek a remand to its Recorder’s Court.

Third, we recognize that Judge [Frank M.] Johnson is 
under the review of, and to that extent is bound by, the 
decisions of the Fifth Circuit. Indeed, his opinion relies 
on Rachel v. Georgia, 342 F. 2d 336, and Peacock v. City of 
Greenwood, 347 F. 2d 679, to justify removal under 28 
U. S. C. 1443.

We understand that Rachel is to be taken up for argu­
ment and submission by the Supreme Court of the United 
States7 at the current 1965-66 Term, probably in contrast 
with the Third Circuit’s denial of removal in Anderson 
v. City of Chester, Pennsylvania, 34 L. W. ------.

III.
F irst  A m e n d m e n t  F reedoms

The last term of the Supreme Court effectively saw 
the Fourteenth Amendment incorporate—albeit hesistantly 
—the first eight amendments to the Federal Constitution 
as part of the due process laid upon the states. Cf. Black, 
J., dissenting in Adamson v. California, 332 U. S. 46, with 
the concurring opinions of Harlan and Goldberg, J. J., in 
Pointer v. Texas, 380 U. S. 400.

The Fii'st Amendment reads as follows:
“ Congress shall make no law respecting an establish­
ment of religion, or prohibiting the free exercise

7 Sub nom. G eorgia, v. R a ch el (No. 147, 1965-66 Term),
------ ■, 34 L. Week 3101.

Majority Opinion

U. S.



98

thereof; or abridging the freedom of speech, or of the 
press; or the right of the people fjeaceably to assemble, 
and to petition the government for a redress of 
grievances.”

[fol. 90] Cardozo, in The Paradoxes of Legal Science,
at pages 94-96, says:

“ ‘ ' * That ill deserves the name of confinement which
hedges us in only from bogs and precipices. So that 
however it may be mistaken, the end of law is not 
to abolish or restrain, but to preserve and enlarge 
freedom. For in all the states of created beings, 
capable of laws, where there is no law there is no 
freedom. For liberty is to be free from restraint 
and violence from others, which cannot be where 
there is no law; and is not, as we are told, “ liberty 
for every man to do what he lists.” For who could 
be free, when every other man’s humour might domi­
neer over him? But a liberty to dispose and order 
freely as he lists his person, actions, possessions, 
and his whole property within the allowance of those 
laws under which he is, and therein not to be sub­
ject to the arbitrary will of another, but freely follow 
his own.’ Modern research in social science has ampli­
fied the thought of Locke, but without changing its 
essentials. [Citing Treatises on Civil Government, 
book 2, sec. 57.]

“ ‘If liberty is a social conception,’ says Hobhouse, 
‘there can be no liberty without social restraint. For 
any one person, indeed, there might be a maximum 
of liberty if all social restraints were removed. Where 
physical strength alone prevails the strongest man 
has unlimited liberty to do what he likes with the

Majority Opinion



99

weaker; but clearly the greater the freedom of the 
strong man, the less the freedom of the weaker. 
What we mean by liberty as a social conception is 
a right to be shared by all members of society, and 
very little consideration suffices to show that, in the 
absence of restraints enforced on or accepted by all 
members of a society, the liberty of some must in­
volve the oppression of others. . . . Excess of liberty 
contradicts itself. In short there is no such thing; 
there is only liberty for one and restraint for an­
other.’ ”

And at pages 97-99 he continues:
“Bills of rights give assurance to the individual of 
the preservation of his liberty. They do not define 
the liberty they promise. * * * Liberty became iden­
tified with the reign of law. ‘Freedom of men under 
government,’ says Locke, ‘is to have a standing rule 
to live by, common to every one of that society and 
made by the legislative power erected in it.’ The 
individual may not be singled out from among his 
fellows, and made the victim of the shafts of malice. 
Those who are put over him ‘are to govern by promul­
gated established law, not to be varied in particular 
cases, but to have one rule for rich and poor, for 
the favorite at court and the countryman at plough.’
[fol. 91] “Up to this, there is no restraint upon the 
scope or force of law so long as it be law, i. e., so 
long as it be general or equal, a rule as contrasted 
with an ‘extemporary decree.’ Liberty means more 
than this, however, as a concept of social science. 
It has come to mean more, at least in our own sys­
tem, as a concept of constitutional law. The concept

Majority Opinion



100

in our constitutional development has undergone a 
steady and highly significant development. The in­
dividual may not only insist that the law which 
limits him in his activities shall impose like limits 
upon others in like circumstances. He will also be 
heard to say that there is a domain of free activity 
that may not be touched by government or law at 
all, whether the command be special against him or 
general against him and others. By express provi­
sion of the constitution, he is assured freedom of 
speech and freedom of conscience or religion. These 
latter immunities have thus the sanctions of a specific 
pledge, but they are merely phases of a larger im­
munity which finds expression in the comprehensive 
declaration that no one shall be deprived of liberty 
without due process of law. Such at least appears 
to be the more recent doctrine of the court that 
speaks the final word. Apart from any enumerated 
phase of liberty and beyond it, this declaration gives 
immunity against ‘the play and action of purely 
personal and arbitrary power.’ What is personal 
and arbitrary in mandate and restraint does not gain 
rationality and coherence because it takes the form 
of statute. The legislature does not speak with finality 
as to the measure of its own powers. The final word 
is for the courts.”

Holmes, J., dissenting in Abrams v. United States, 
250 It. S. 616, said:

“Persecution for the expression of opinions seems to 
me perfectly logical. If you have no doubt of your 
premises or your power and want a certain result 
with all your heart you naturally express your wishes

Majority Opinion



101

in law and sweep away all opposition. To allow 
opposition by speech seems to indicate that you 
think the speech impotent, as when a man says that 
he has squared the circle, or that you do not care 
whole-heartedly for the result, or that you doubt 
either your power or your premises. But when men 
have realized that time has upset many fighting 
faiths, they may come to believe even more than 
they believe the very foundations of their own con­
duct that the ultimate good desired is better reached 
by free trade in ideas—that the best test of truth 
is the power of the thought to get itself accepted 
in the competition of the market, and that truth 
is the only ground upon which their wishes safely 
can be carried out. That at any rate is the theory 
of our Constitution. It is an experiment, as all life 
is an experiment. Every year if not every day 
we have to wager our salvation upon some prophecy 
based upon imperfect knowledge. While that experi­
ment is part of our system I think that we should 
[fol. 92] be externally vigilant against attempts to 
check the expression of opinions that we loathe and 
believe to be fraught with death, unless they so 
imminently threaten immediate interference with the 
lawful and pressing purposes of the law that an im­
mediate check is required to save the country. * * * ”

From Poulos v. State of New Hampshire, 345 U. S. 395, 
per Reed, J., we quote:

“The principles of the First Amendmnt are not to 
be treated as a promise that everyone with opinions 
or beliefs to express may gather around him at any 
public place and at any time a group for discussion

Majority Opinion



102

or instruction. It is a nonsequitur to say that First 
Amendment rights may not be regulated because 
they hold a preferred position in the hierarchy of 
the constitutional guarantees of the incidents of free­
dom. This Court has never so held and indeed has 
definitely indicated the contrary. It has indicated 
approval of reasonable non-discriminatory regulation 
by governmental authority that preserves peace, or­
der and tranquillity without deprivation of the First 
Amendment guarantees of free speech, press and 
the exercise of religion. When considering specif­
ically the regulation of the use of public parks, this 
Court has taken the same position. See the quota­
tion from the Hague case below and Kunz v. People 
of State of New York, 340 U. S. 290, 293-294; Saia 
v. People of State of Now York, 334 U. S. 558, 5G2. 
In these cases, the ordinances were held invalid, not 
because they regulated the use of the parks for meet­
ing and instruction but because they left complete 
discretion to refuse the use in the hands of officials. 
‘The right to be heard is placed in the uncontrolled 
discretion of the Chief of Police.’ 334 U. S. at page 
560, * * * ’ [W ]e have consistently condemned li­
censing systems which vest in an administrative offi­
cials discretion to grant or withhold a permit upon 
broad criteria unrelated to proper regulation of public 
places. 340 IT. S. at page 294, * * *

“There is no basis for saying that freedom and order 
are not compatible. That would be a decision of 
desparation. Regulation and suppression are not the 
same, either in purpose or result, and courts of 
justice can tell the difference. * * * ”

Majority Opinion



103

In Herndon v. Lowry, 301 U. S. 242,8 and Freedman v. 
Maryland, 380 U. S. 51, the court refers in effect to the 
[fol. 93] preferred position of First Amendment rights 
of freedom of expression. Thomas v. Collins, 323 U. S. 
516. This priority is also used in Hague v. Committee, 
supra. Edwards v. South Carolina, 372 U. S. 229, and 
Cox v. Louisiana, 379 U. S. 536, are recent examples of 
this formulation.

In our constitutional law freedom of expression can 
rarely be fettered by a prior restraint on its exercise. 
Blackstone, Comm, iv., 151, et seq., aptly said:

“ * * * The liberty of the press is indeed essential 
to the nature of a free state; but this consists in 
laying no previous restraint upon publications, and 
not in freedom from censure for criminal matter when 
published. * * * ”

Moreover, abuse of free speech is tolerated more: the 
stifling is a worse mischief. Freedman v. Maryland, supra.

Whether we concede that the appellant did or did not 
participate in a “ procession” or “parade,” undisputedly 
he was arrested while walking on a sidewalk. Immediately 
beforehand he had participated, from aught that appears, 
in an orderly and presumably lawful assembly.

By merely forbidding citizens to go to (or from) the 
place of assembly, the right of peaceable assembly could

Majority Opinion

8 “ The power of a state to abridge freedom of speech and of 
assembly is the exception rather than the rule and the penalizing 
even of utterances of a defined character must find its justification 
in a reasonable apprehension of danger to organized government. 
The judgment of the Legislature is not unfettered. The limitation 
upon individual liberty must have appropriate relation to the 
safety of the state. * * * ”



104

easily be thwarted. Again we note Blackstone, Comm, 
i, 134:

“ * * * This personal liberty consists in the power 
of locomotion, of changing situation, or moving one’s 
person to whatsoever place one’s own inclination may 
direct, without imprisonment or restraint, unless by 
due course of law. * * * ”

Also, the constitutional protection from unreasonable 
seizures applies to a seizing of the person. Ex parte 
Burford, 3 Cranch 448 (1800).

Hence, we consider ourselves bound to examine § 1159, 
supra, giving preference (1) to the constitutional rights 
[fol. 94] of free expression (e. g., free speech, publica­
tion) and of free assembly; and (2) to the implicit right 
to use the sidewalks for walking.

It is the recognition and regulation of this latter right 
as being nonexclusive which causes difficulty in legis­
lating and in judicial review of the legislator’s choice. 
This enters into two enquiries: the exent of the power 
available to regulate and the mode of its exercise.

IV.

P olice P ower

Code 1940, T. 62, § 654, relating solely to Birmingham, 
provides:

654. The city shall have full, complete, unlimited, 
and continuous power and authority, from time to 
time, to adopt ordinances and regulations not in­
consistent with the laws of the state and the federal 
and state Constitutions to carry into effect or dis­

Majority Opinion



105

charge the powers and duties conferred by law upon 
the city, and to provide for the safety, preserve the 
health, promote the prosperity, improve the morals, 
orders, comfort, and convenience of the inhabitants 
of the city, and to prevent and punish injuries and 
offenses to the public therein, and to prevent con­
flict and ill feeling between the races in the city 
by making provisions for the use of separate blocks 
or parts of blocks for residences, places of abode, 
and places of assembly by the different races,9 and 
to prevent evasions and punish violations of the 
ordinances and resolutions of the city, and to compel 
obedience thereto by fine not exceeding one hundred 
dollars and by imprisonment or hard labor not ex­
ceeding six months, one or both, and by revocation 
of license granted by such municipality upon con­
viction in the recorder’s court for violation of any 
of said ordinances; provided, however, that this sec­
tion shall not be construed to authorize the forfeiture 
of franchises granted by state laws or city ordinances 
without appropriate legal proceedings; and to the 
[fol. 95] ends set out in this section the full, complete, 
and unlimited police powers possessed by the state 
of Alabama shall be had as though specifically and 
in detail set out in this section, in so far as it is 
possible for the legislature of Alabama under the 
Constitution of Alabama and of the United States 
to delegate such powers, it being expressly declared

J C i t y  o f  B ’ham . v. M o n k , 185 F. 2d 859 (B ’ham. zoning ordi­
nance) ; B u ch a n a n  v. W a r l e y , 245 U. S. 60 (1917) (Louisville, Ky., 
ordinance) ■ I la r m o n  v. T y le r , 273 U. S. 608 (1927) (New Orleans 
ordinance) ; C i t y  o f  R ic h m o n d  v. D e a n s , 281 U. S. 704 (1930) 
Richmond, Va., ordinance). See also R o b in so n  v. F lo r id a , 375 U S 
918.

Majority Opinion



106

that nothing contained herein shall be construed as 
a limitation of or restriction on the police powers 
granted to the city under general or special laws.”

The general municipal law, Code 1940, T. 37, § 455, 
reads:

“ § 455. Municipal corporations may, from time to time, 
adopt ordinances and resolutions not inconsistent with 
the laws of the state, to carry into effect or discharge 
the powers and duties conferred by this title, and 
provide for the safety, preserve the health, promote 
the prosperity, improve the morals, order, comfort, 
and convenience of the inhabitants of the munic­
ipality, and enforce obedience to such ordinances by 
fine not exceeding one hundred dollars, and by im­
prisonment or hard labor not exceeding six months, 
one or both.”

Police power, 16 Am. Jur. 2d, Constitutional Law, 
§ 262, is described (in part) thus:

“While it is generally recognized that it is very diffi­
cult and practically impossible to give an exact defi­
nition of the police power, many attempts have been 
made. There is no consensus in favor of any of them, 
but those definitions are of considerable value as 
indicating the breadth and scope of this power.

“ The expression ‘police power,’ although capable of 
use, and sometimes used, in a restricted sense, is 
frequently used very broadly to include all legis­
lation and almost every function of civil government. 
Thus, it has been stated that the police power in 
effect sums up the whole power of government, and

Majority Opinion



107

that all other powers are only incidental and an­
cillary to the execution of the police power; it is that 
full, final power involved in the administration of 
law as the means to the attainment of practical 
justice. And it has been said that the power is only 
another name for that authority which resides in 
every sovereignty to pass all laws for the internal 
regulation and government of the state, that it is the 
vast residual power of the state, and that it com­
prises that portion of the sovereignty of the state 
which is not surrendered by the terms of the Federal 
Constitution to the federal government.

“Blackstone defines police power as ‘the due regulation 
and domestic order of the kingdom, whereby the 
individuals of the state, like members of a well- 
governed family, are bound to conform their general 
behavior to the rules of propriety, good neighbor­
hood, and good manners, and to be decent, industrious, 
[fol. 96] and inoffensive in their respective stations. 
Many cases, employing the language of Chief Justice 
Shaw, define it as ‘the power vested in the legis­
lature by the Constitution to make, ordain, and estab­
lish all manner of wholesome and reasonable laws, 
statutes, and ordinances, either with penalties or 
without, not repugnant to the Constitution, as they 
shall judge to be for the good and welfare of the 
commonwealth, and of the subjects of the same.’ ”

Knight, J., in State v. Kartus, 230 Ala. 352, 162 So. 533, 
said:

“No one, at this time, we take it, would have the 
temerity to undertake to define the ‘police power’ 
of a state, or mark its limitations. * # * ”

Majority Opinion



108

In Hawkins v. City of Birmingham, 248 Ala. 692, 29 
So. 2d 281, Foster, J., said of T. 62, § 654, supra (at 
p. 696) : “This power is of course subject to be con­
trolled.” See also City of Birmingham v. Birmingham 
Business College, Inc., 256 Ala. 551, 56 So. 2d 111.

Concededly, if the Legislature confers the charter power, 
a city or town may ordain regulations for the use of its 
streets and sidewalks. This power cannot, however, ex­
tend beyond constitutional bounds.

We are presented witli two conflicting concepts. First, 
the use of public ways is subject primarily to going to 
and fro of the public generally, afoot on sidewalks, with 
the roadway mainly reserved for wheeled traffic.10

Secondly, free speech, the communication of ideas, and 
free assembly, locomotion, inhere in the use of public 
places.
[fol. 97] At the outset, we believe that the early case 
of Commonwealth v. Davis, supra, treating public prop­
erty as subject to power to be used exclusively in the 
will of public authorities as if they were private owners 
is no longer valid. Thomas v. Casey, 121 N. J. L. 185, 
1 A. 2d 866, rested on Davis. Hague v. Committee, supra, 
disapproved.

Police power11 has been held vital for society to hold 
together: the contrast often is given of anarchy, and

10 “ Any person engaged in a lawful pursuit has the right to pass 
on the public streets without interference, threats or intimidation.” 
R u sse ll v. In te rn a tio n a l U n io n , 258 Ala. 615, 64 So. 2d 384. Nor is 
a pedestrian vis a vis a street railway running at grade to be1 
deemed a trespasser. B ir m in g h a m , E n s le y ,  e tc ., R . R . C o . v. S ta g g , 
196 Aia. 612, 72 So. 164.

11 J a cob so n  v. M a ssa c h u se tts , 197 U. S. 11 (smallpox vaccina­
tion) ; L ieb erm a n  v. V a n  de C a rr , 199 II. S. 552 (milk delivery 
permit).

Majority Opinion



109

not the philosophic nirvana-like anarchy. Law and order 
for the protection of the weak from the strong is in 
contrast to the law of the jungle.

Emergencies, however, do not create powers: rather 
they furnish the occasion for the exercise of those con­
ferred. Constitutional law cannot raise itself by its own 
bootstraps. Homebuilding & Loan Assoc, v. Blaisdell, 290 
IT. S. 398.

We do not doubt that § 654 of T. 62 and § 455 of T. 37, 
supra, confer on the city the power to regulate the use 
of public streets and places in the interest of accommodat­
ing conflicting claims of vehicles and pedestrians. Yet, 
in so resolving traffic problems the State and Federal 
Constitutions impose a duty to recognize liberty within 
a concept of an ordered society.

Basically, we consider that a municipality or a state 
legislature can require that a permit he first obtained 
to use the vehicular portion of a street for a parade or 
procession. Moreover, if the movement overflows onto 
the pedestrian sidewalk the same ends for control would 
seem to obtain.
[fol. 98] As to a group walking on the sidewalk of a 
dedicated street, spaced apart, not blocking others from 
going to or fro, nor interfering with cross traffic- (either 
pedestrian or vehicular) and demeaning themselves in an 
orderly and peaceable jfashion, we consider there is such 
a fundamental right to so use the sidewalk that a permit 
would be the exception. Thus, the City in such a case 
would have the burden of proving (beyond a reasonable 
doubt) that (1) no permit was issued and that (2) an 
abridgement of the rights (either of expression or of 
locomotion) is warranted by overriding considerations.

Picketing, as currently regulated by spacing the picketers

Majority Opinion



110

(both as to fore and aft and abreast), keeping them cir­
culating and yielding the right of way to passers-by, 
affords a useful illustration.

’ Ordinarily, a court in reviewing legislation will look 
—at—the remedy with the favoring intendment that all 

rationally connected mischiefs passed through the col­
lective mind of the lawmakers) Thus thê  inhibition of 
conduct—though sometimes partly innocent—can find sup­
port in the state’s police power If aiinecl at a substantial 

, evil.
) Nevertheless, this balancing in First Amendment cases 

finds the scales weighted in the beginning in favor of 
the freedom which is sought to be restrained. As Rutledge, 
J., said in Thomas v. Collins, supra, at 529-530:

“ The case confronts us again with the duty our system 
places on this Court to say where the individual’s 
freedom ends and the State’s power begins. Choice 
on that border, now as always delicate, is perhaps 
more so where the usual presumption supporting 
legislation is balanced by the preferred place given 
in our scheme to the great, the indispensable demo­
cratic freedoms secured by the First Amendment. 
Cf. Schneider v. State, 308 IT. S. 147; Cantwell v. 
Connecticut, 310 IT. S. 296; Prince v. Massachusetts, 
[fol. 99] 321 IT. S. 158. That priority gives these 
liberties a sanctity and a sanction not permitting 
dubious intrusions. And it is the character of the 
right, not of the limitation, which determines what 
standard governs the choice. Compare United States 
v. Carotene Products Co., 304 IT. S. 144, 152-153.

“ For these reasons any attempt to restrict those liber­
ties must be justified by clear public interest, threat­

Majority Opinion



I ll

ened not doubtfully or remotely, but by clear and 
present danger. The rational connection between the 
remedy provided and the evil to be curbed, which 
in other contexts might support legislation against 
attack on due process grounds, will not suffice. These 
rights rest on firmer foundation. Accordingly, what­
ever occasion would restrain orderly discussion and 
persuasion, at appropriate time and place, must have 
clear support in public danger, actual or impending. 
Only the gravest abuses, endangering paramount in­
terests, give occasion for permissible limitation. It 
is therefore in our tradition to allow the widest room 
for discussion, the narrowest range for its restriction, 
particularly when this right is exercised in conjunc­
tion with peaceable assembly. It was not by accident 
or coincidence that the rights to freedom in speech 
and press were coupled in a single guaranty with 
the rights of the people peaceably to assemble and 
to petition for redress of grievances. All these,! 
though not identical, are inseparable. They are cog­
nate rights, cf. De Jonge v. Oregon, 299 U. S. 353, 
364, and therefore are united in the First Article’s 
assurance. * * # ”

_We conclude that the reference in § 1159 to the factors 
(“public welfare, peace, safety, health, decency, good or- 
d̂er, morals or convenience’ )̂ are but facets of the police 
power conferred on the City to enable it to establish and 
maintain itself as a viable entity. These elements are 
only the source to which the City may look in choosing 
the means toward a legitimate end. Police power is not 
an ever ready dues ex machina.

Majority Opinion



112

The enquiry next devolves on whether the City’s legis­
lative body has established an appropriate means to 
prevent abuses in the streets.
[fol. 100]

Majority Opinion

V.

D oes § 1159 I mpose A n I nvidious 
P rior R e s t r a in t?

This question we must answer in the affirmative.
In Saia v. New York, 334 U. S. 558, the court declared 

a sound truck permit ordinance void on its face.
Niemotko v. Maryland, 340 IT. S. 268:

“This Court has many times examined the licensing 
systems by which local bodies regulate the use of 
their parks and public places. * * # In those cases 
this Court condemned statutes and ordinances which 
required that permits be obtained from local offi­
cials as a prerequisite to the use of public places, 
on the grounds that a license requirement constituted 
a prior restraint on freedom of speech, press and 
religion, and, in the absence of narrowly drawn, rea­
sonable and definite standards for the officials to 
follow, must be invalid. * * * ” (Italics added.)

Kunz v. New York. 340 U. S. 290:

“ * * * We have here, then, an ordinance which gives 
an administrative official discretionary power to con­
trol in advance the right of citizens to speak on 
religious matters on the streets of New York. As 
such, the ordinance is clearly invalid as a prior 
restraint on the exercise of First Amendment rights.



113

“In considering the right of a municipality to control 
the use of public streets for the expression of reli­
gious views, we start with the words of Mr. Justice 
Roberts that ‘Wherever the title of streets and parks 
may rest, they have immemorially been held in trust 
for the use of the public and, time out of mind, have 
been used for purposes of assembly, communicating 
thoughts between citizens, and discussing public ques­
tions.’ Hague v. C. I. 0., 307 U. S. 496, 515 (1939). 
Although this Court has recognized that a statute 
may be enacted which prevents serious interference 
with normal usage of streets and parks, Cox v. New 
Hampshire, 312 U. S. 569 (1941), we have consistently 
condemned licensing systems which vest in an ad­
ministrative official discretion to grant or withhold 
a permit upon broad criteria unrelated to proper 
regulation of public places. * * * ”

American Civil Liberties Union v. Town of Cortlandt, 
109 N. Y. S. 2d 165:

“Although in most cases where legislative acts have 
been struck down, the discretion in administering the 
[101] licensing power has been placed in administra­
tive official, the rule is no different where the legis­
lative body reserves for itself the administration 
of the licensing power. In the case of Niemotko 
v. Maryland, 340 U. S. 268, * * * applications for a 
license were customarily made first to the Police 
Commissioner, and, if refused by him, application 
was then made to the City Council. Even that body 
was not permitted to have unlimited and uncircum­
scribed discretion. It is that type of discretion that

Majority Opinion



114

has been here vested and, of necessity, this Court 
must declare the ‘Permit Ordinance’ unconstitutional.”

Cox v. Louisiana, supra:

“ This Court has recognized that the lodging of such 
broad discretion in a public official allows him to 
determine which expressions of view will be per­
mitted and which will not. This thus sanctions a 
device for the suppression of the communication of 
ideas and permits the official to act as a censor. 
See Saia v. New York, supra, at 5G2. Also inherent 
in such a system allowing parades or meetings only 
with the prior permission of an official is the obvious 
danger to the right of a person or group not to be 
denied equal protection of the laws. See Niemotko 
v. Maryland, supra, at 272, 284; cf. Yick Wo v. Hop­
kins, 118 U. S. 356. It is clearly unconstitutional 
to enable a public official to determine which ex­
pressions of view will be permitted and which will 
not or to engage in invidious discrimination among 
persons or groups either by use of a statute pro­
viding a system of broad discretionary licensing power 
or, as in this case, the equivalent of such a system 
by selective enforcement of an extremely broad pro­
hibitory statute.

“It is, of course, undisputed that appropriate, limited 
discretion, under properly drawn statutes or ordi­
nances, concerning the time, place, duration, or man­
ner of use of the streets for public assemblies may 
be vested in administrative officials, provided that 
such limited discretion is ‘exercised with “uniformity 
of method of treatment upon the facts of each appli-

Majority Opinion



115

cation, free from improper or inappropriate con­
siderations and from unfair discrimination” . . . 
[and with] a “ systematic, consistent and just order 
ot treatment, with reference to the convenience of 
public use of the highways . . ’ Cox v. New Hamp­
shire, supra, at 576. See Poulos v. New Hampshire, 
supra.

“But here it is clear that the practice in Baton Rouge 
allowing unfettered discretion in local officials in 
the regulation of the use of the streets for peaceful 
parades and meetings is an unwarranted abridgment 
of appellant’s freedom of speech and assembly se­
cured to him by the First Amendment, as applied 
to the States by the Fourteenth Amendment. It 
[fol. 102] follows, therefore, that appellant’s convic­
tion for violating the statute as so applied and en­
forced must be reversed.”

The only administrative standards are those of the 
City’s basic power virtually in its entirety. The expres­
sions used are couched in the distributive. Hence, a single 
reference to the Commission’s opinion of the public wel­
fare, oi- of peace, or of safety, or of health, or of decency, 
or of good order, or of morals, or of convenience would 
suffice for a permit refusal.

“ * * * [The police power of a state] must be exercised 
for an end which is in fact public and the means 
adopted must be reasonably adapted to the accom­
plishment of that end and must not be arbitrary or 
oppressive.”—Treigle v. Acme Homestead Ass’n., 297 
U. S. 189.

Majority Opinion



1

116 1

Majority Opinion

VI
§ 1159 L acks  A scertainable  S tandards

If the cohesiveness of the fifty-two pedestrians in having 
a common starting point and apparent common destina­
tion were held to constitute a procession, nevertheless 
we should be constrained to hold the foregoing ordinance 
invalid for the lack of ascertainable constitutional stan­
dards in determining administratively when a permit shall 
be granted. Baines v. City of Danville, 337 F. 2d 579.

So far as we can find, § 1159 has been reviewed directly 
only once by appellate courts. In Primm v. City of 
B i r m i n g h a m ,  supra, we held the City had singled out
the defendant ^ t h o u t showing any nexus betwgen _ him ̂ . 
and any other p^es^nans^T'here/Johnson, J., said:

'7 ‘‘To hoUffiFLtlie acts of * * * Primm were violative 
of the above parading ordinance would, in effect, 
require a parading permit to be procured by every 
conventioneer wearing a large political button attempt­
ing to cross a street, or by every sporting enthusiast 
waving a pennant that denotes his loyalties while 
proceeding to the field of encounter. * * * ”

In Baines v. City of Danville, supra, approving refer­
ence is made to the Model Ordinance Regulating Parades 
drafted by the National Institute of Municipal Law 
Officers.
[fob 103] Hence, we have set out in parallel columns an 
analysis of the salient features of § 1159 and the N im lo  
Model:

\



117

Majority Opinion

B ir m in g h a m  1944 C ode,
§ 1159, 2d Par., supra.

I. Form of Application
A. Written

B. Information

1. No. of persons, 
vehicles and ani­
mals.

2. Purpose.
3. Route (or place 

of demonstra­
tion).

4. Time not re­
quired to be 
given.

N im lo  M odel

1. (§ 10-304)

A. On forms provided 
by Chief of Police

B. Information

“ (a) The name, ad­
dress and telephone 
number of the person 
seeking to conduct 
such parade;

“ (b) If the parade is 
proposed to be con­
ducted for, on behalf 
of, or by an organiza­
tion, the name, ad­
dress and telephone 
number of the head­
quarters of the or­
ganization, and of the 
authorized and respon­
sible heads of such or­
ganization ;
“ (c) The name, ad­
dress and telephone 
number of the person 
who will be the parade 
chairman and who will 
be responsible for its 
conduct;



118

“ (d) The date when 
the parade is to be 
conducted;
“ (e) The route to he 
traveled, the starting- 
point and the termina­
tion point;
“ (f) The approximate 
number of persons 
Avho, and animals and 
vehicles which, will 
constitute such pa­
rade ; the type of ani­
mals, and description 
of the vehicles;
“ (g) The hours when 
such parade will start 
and terminate;
“ (h) A statement as 
to whether the parade 
will occupy all or only 
a portion of the width 
of the streets proposed 
to be traversed;
“ (i) The location by 
streets of any assem­
bly areas for such pa­
rade ;

“ (j) The time at which 
units of the parade 
will begin to assemble

Majority Opinion



119

at any such assembly 
area or areas;
“ (k) The interval of 
space to be maintained 
between units of such 
parade;
“ (1) If the parade is 
designed to be held by, 
and on behalf of or 
for, any person other 
than the applicant, the 
applicant for such per­
mit shall file with the 
Chief of Police a com­
munication in writing 
from the person pro­
posing to hold the pa­
rade, authorizing the 
applicant to apply for 
the permit on his be­
half ;

r foi. 1 0 4 ]
“ (m) Any additional 
information which the 
Chief of Police shall 
find reasonably neces­
sary to a fair deter­
mination as to whether 
a permit should issue.
C. Late application:

---------  days before
proposed parade.

Majority Opinion

D. Fee: $



120

Majority Opinion

II. Exceptions
A. Funeral proces­

sions only excep­
tion.

111. Standards for Issuance
A. “ The commission 

shall grant * * * 
and prescribing the 
the streets12 * * * 
unless in its judg­
ment:” the permit 
should be refused 
because of any one 
or more of the fol­
lowing :

1. Public welfare;
2. [Public] 

peace;
3. [Public] 

safety;
4. [Public] 

health;

II. Exceptions (§ 10-303)
A. Funeral proces­

sions.
B. Students going to 

and from classes, 
etc.

C. A governmental 
agency acting with­
in scope.

III. Standards (§ 10-305)
“ S ection  10-305. Stan­
dards for Issuance. 
The Chief of Police 
shall issue a permit as 
provided for hereun­
der when, from a con­
sideration of the ap­
plication and from 
such other information 
as may otherwise be 
obtained, he finds that:

“ (1) The conduct of 
the parade will not 
substantially interrupt 
the safe and orderly 
movement of other 
traffic contiguous to its 
route;

12 § 10-308 of NIMLO Model empowers the Chief of Police to 
issue an alternate permit, i. e., for a different time or route from 
that proposed.



121

Majority Opinion

5. [Public] “ (2) The conduct of
decency; the parade will not re-

6. [Public] quire the diversion of
good order; so great a number of

7. [Public] police officers of the
morals; or City to properly police

8. [Public] the line of movement
convenience. and the areas contigu-

ous thereto as to pre­
vent normal police pro­
tection to the City;
“ (3) The conduct of 
such parade will not 
require the diversion 
of so great a number 
of ambulances as to 
prevent htrrmal am­
bulance service to por­
tions of the City other 
than that to be occu­
pied by the proposed 
line of march and 
areas contiguous there­
to ;

“ (4) The concentration 
of persons, animals 
and vehicles at assem­
bly points of the pa­
rade will not unduly in­
terfere with proper 
tire and police protec­
tion of, oFamBulanee



122

[fol. 105]

service to, areas con­
tiguous to such assem­
bly areas;

“ (5) the conduct of 
such parade will not 
interfere with the 
movement of firc-iigiit- 
ing equipment enrouTe  ̂
to a tire;
“ (6) The conduct of 
parade is not reason­
ably likely to cause in­
jury to jjersons or 
property, to provoke 
disorderly conduct or 
create a disturbance^

“ (7) The parade is 
scheduled to move 
from its point of origin 
to its point of termina­
tion expeditiously and 
without unreasonable 
delays enroute;
“ (8) The parade is not 
to be held for the sole 
purpose of advertising 
any product, goods or 
event, and is not de­
signed to be held pure­
ly for private profit.”

Majority Opinion



123

Majority Opinion

IV. Appeal Procedure:
{% 10-307
“ S ection  10-307. Ap­
peal Procedure. Any 
person aggrieved shall 
have the right to ap­
peal the denial of a 
parade permit to the 
City Council. The ap­
peal shall be taken
within ....... days after
notice. The City Coun­
cil shall act upon the
appeal within ...........
days after its receipt.”

A keystone illustration of the canon of strict (or at least 
literal) construction of a penal law is found in McBoyle 
v. United States, 283 U. S. 25, at 27. There the govern­
ment tried to apply the Dyer Act to punish theft of an 
airplane. Holmes, J., concluded:

“Although it is not likely that a criminal will carefully 
consider the text of the law before he murders or 
steals, it is reasonable that a fair warning should be 
given to the world in language that the common world 
will understand, of what the law intends to do if a 
certain line is passed. To make the warning fair, so 
far as possible the line should be clear. When a rule 
of conduct is laid down in words that evoke in the 
common mind only the picture of vehicles moving 
on land, the statute should not be extended to air­
craft, simply because it may seem to us that a simi­

IV. Appeal Procedure:

None, except to courts, 
presumably by way of 
mandamus with alter­
native prayer for cer­
tiorari.



Majority Opinion

lar policy applies, or upon the speculation that, if 
the legislature had thought of it, very likely broader 
words would have been used. United States v. Thind, 
261 U. S. 204, 209.”

[fol. 106] And from a Massachusetts case we quote:
“ # * * Prima facie, mere sauntering or loitering on a 

public way is lawful and the right of any man, woman, 
or child. This the Commonwealth concedes. Under 
the ordinance, such conduct continues conditionally 
lawful subject to a direction to move on by a police 
officer followed by unreasonable failure to comply and 
the expiration of seven minutes. Not all idling is pro­
hibited, but only that which is unreasonable. The 
vice of the ordinance lies in its failure to prescribe 
any standard capable of intelligent human evaluation 
to enable one chargeable with its violation to dis­
cover those conditions which convert conduct which 
is prima facie lawful into that which is criminal. A 
‘statute which either forbids or requires the doing of 
an act in terms so vague that men of common intelli­
gence must necessarily guess at its meaning and dif­
fer as to its application, violates the first essential 
of due process of law.’ Connally v. General Construc­
tion Co., 269 U. S. 385, 391 * * * ”—Commonwealth 
v. Carpenter, 325 Mass. 519, 91 N. E. 2d 666.

Connally v. General Const. Co., 269 U. S. 385, is prob­
ably the most frequently cited case in this area:

“ * * * The result is that the application of the law 
depends not upon a word of fixed meaning in itself, 
or one made definite by statutory or judicial defini­



125

tion, or by the context or other legitimate aid to its 
construction, but upon the probably varying impres­
sions of juries as to whether given areas are or are 
not to be included within particular localities. The 
constitutional guaranty of due process cannot be al­
lowed to rest upon a support so equivocal.”

In United States v. Cardiff, 344 U. S. 174, Douglas, J., 
said:

“All that the Department says may be true. But it does 
not enable us to make sense out of the statute. No­
where does the Act say that a factory manager must 
allow entry and inspection at a reasonable hour. Sec­
tion 704 makes entry and inspection conditioned on 
‘making request and obtaining permission’. It is that 
entry and inspection which §301 (f) backs with a 
sanction. It would seem therefore on the face of the 
statute that the Act prohibits the refusal to permit 
inspection only if permission lias been previously 
granted. Under that view the Act makes illegal the 
revocation of permission once given, not the failure 
to give permission. But that view would breed a host 
of problems. Would revocation of permission once 
given carry the criminal penalty no matter how long- 
ago it was granted and no matter if it had no rela­
tion to the inspection demanded? Or must the per- 
[fol. 107] mission granted and revoked relate to the 
demand for inspection on which the prosecution is 
based? Those uncertainties make that construction 
pregnant with danger for the regulated business. The 
alternative construction pressed on us is equally 
treacherous because it gives conflicting commands. It 
makes inspection dependent on consent and makes re-

Majority Opinion



126

fusal to allow inspection a crime. However we read 
§ 301 (f) we think it is not fair warning (cf. United 
States v. Weitzel, 246 U. S. 533, MeBoyle v. United 
States, 283 U. S. 25) to the factory manager that if 
he fails to give consent, he is a criminal. The vice 
of vagueness in criminal statutes is the treachery they 
conceal either in determining what persons are in­
cluded or what acts are prohibited. Words which are 
vague and fluid (cf. United States v. Cohen Grocery 
Co., 255 U. S. 81) may be as much of a trap for the 
innocent as the ancient laws of Caligula. We cannot 
sanction taking a man by the heels for refusing to 
grant the permission which this Act on its face ap­
parently gave him the right to withhold. That would 
be making an act criminal without fair and effective 
notice. Cf. Ilerndon v. Lowry, 301 U. S. 242.”

This general rule of strict construction of penal laws 
began early in our courts, both state and Federal. Thus, 
Washington, J., in United, States v. Sharp (1815), Pet.
C. C. 118, at 122, said:

“ # * * Laws which create crimes ought to be so ex­
plicit in themselves or by reference to some other 
standard, that all men subject to their penalties may 
know what acts it is their duty to avoid. * * * ”

See also United States v. Lacker, 134 U. S. 624; United 
States v. Brewer, 139 U. S. 278; cf. Nash v. United States, 
229 U. S. 373—“ restraint of trade” has an ascertainable 
common law meaning. Eubank v. Richmond, 226 U. S. 137; 
Panhandle Co. v. Highway Comm., 294 U. S. 613.

By 1914 we find the court subsuming the rule into its 
concept of due process and under the Fourteenth Amend­

Majority Opinion



127

ment rather than the Sixth. International Harvester Co. 
v. Kentucky, 234 U. S. 216, struck down a state anti-trust 
law which used “ real value.” Cf. Kentucky Constitution 
1891, § 198.
[fol. 108] In Winters v. New York, 333 U. S. 507, Reed, J., 
said:

“ * * * The standards of certainty in statutes punish­
ing for offenses is higher than in those depending pri­
marily upon civil sanction for enforcement. The crime 
‘must he defined with appropriate definiteness.’ Cant­
well v. Connecticut, 310 U. S. 296; Pierce v. United 
States, 314 U. S. 306, 311. * * *

* * * * *
“The impossibility of defining the precise line between 
permissible uncertainty in statutes caused by describ­
ing crimes by words well understood through long use 
in the criminal law—obscene, lewd lascivious, filthy, 
indecent or disgusting—and the unconstitutional vague­
ness that leaves a person uncertain as to the kind 
of prohibited conduct—massing stories to incite crime 
—has resulted in three arguments of this case in this 
Court. The legislative bodies in draftsmanship obvi­
ously have the same difficulty as do the judicial in 
interpretation. * * *

“ * * * But even considering the gloss put upon the 
literal meaning by the Court of Appeals’ restriction 
of the statute to collections of stores ‘so massed as to 
become vehicles for inciting violent and depraved 
crimes against the person * * * not necessarily * * * 
sexual passion,’ we find the specifications of publica­
tions, prohibited from distribution, too uncertain and 
indefinite to justify the conviction of this petitioner.

Majority Opinion



Majority Opinion

Even though all detective tales and treatises on crim­
inology are not forbidden, and though publications 
made up of criminal deeds not characterized by blood­
shed or lust are omitted from the interpretation of 
the Court of Appeals, we think fair use of collections 
of pictures and stories would be interdicted because 
of the utter impossibility of the actor or the trier 
to know where this new standard of guilt would draw 
the line between the allowable and the forbidden pub­
lications. No intent or purpose is required—no in­
decency or obscenity in any sense heretofore known 
to the law. ‘So massed as to incite to crime’ can be­
come meaningful only by concrete instances. This one 
example is not enough. The clause proposes to pun­
ish the printing and circulation of publications that 
courts or juries may think influence generally per­
sons to commit crime of violence against the person. 
No conspiracy to commit a crime is required. See 
Musser v. Utah, 333 U. S. 95. It is not an effective 
notice of new crime. The clause has no technical or 
common law meaning. Nor can light as to the mean­
ing be gained from the section as a whole or the 
Article of the Penal Law under which it appears. * * * 

* * * * *
[fob 109] “ * * * Where a statute is so vague as 
to make criminal an innocent act, a conviction under 
it cannot be sustained. Herndon v. Lowry, 301 U. S. 
242, 259.”

In the “ Miracle” censorship case, •Joseph Burstyn, Inc. 
v. Wilson, 343 U.S. 495, the word “sacrilegious” (con­
trasted with “ blashphemous” ) was held to be fatally vague. 
Clark, J., there said:



129

“ * * * That statute makes it unlawful ‘to exhibit, or 
to sell, lease or lend for exhibition at any place of 
amusement for pay or in connection with any business 
in the state of New York, any motion picture film or 
reel [with specified exceptions not relevant here], un­
less there is at the time in full force and effect a 
valid license or permit therefor of the education de­
partment . . . ’ The statute further provides:

“ ‘The director of the [motion picture] division [of the 
education department] or, when authorized by the 
regents, the officers of a local office or bureau shall 
cause to be promptly examined every motion picture 
film submitted to them as herein required, and un­
less such film or a part thereof is obscene, indecent, 
immoral, inhuman, sacrilegious, or is of such a char­
acter that its exhibition would tend to corrupt morals 
or incite to crime, shall issue a license therefor. * * * 

# # # # #
“ * * * Under such a standard the most careful and 

tolerant censor would find it virtually impossible to 
avoid favoring one religion over another, and he 
would be subject to an inevitable tendency to ban 
the expression of unpopular sentiments sacred to a 
religious minority. Application of the ‘sacrilegious’ 
test, in these or other respects, might raise substan­
tial questions under the First Amendment’s guaranty 
of separate church and state with freedom of wor­
ship for all. However, from the standpoint of free­
dom of speech and the press, it is enough to point out 
that the state has no legitimate interest in protecting 
any or all religions from views distasteful to them 
which is sufficient to justify prior restraints upon the

Majority Opinion



130

expression of those views. It is not the business of 
government in our nation to suppress real or imagined 
attacks upon a particular religious doctrine, whether 
they appear in publications, speeches, or motion pic­
tures.

“Since the term ‘sacrilegious’ is the sole standard un­
der attack here, it is not necessary for us to decide, 
for example, whether a state may censor motion pic­
tures under a clearly drawn statute designed and 
applied to prevent the showing of obscene films. That 
is a very different question from the one now before 
us. We hold only that under the First and Fourteenth 
Amendments a state may not ban a film on the basis 
of a censor’s conclusion that it is ‘sacrilegious.’ ”

[fol. 110] Reference may also be had to the following- 
articles: Amsterdam, The Void-for-Vagueness Doctrine, 
109 U. Pa. L. Rev. 67; Aigler, Legislation in Vague or 
General Terms, 21 Mich. L. Rev. 831; Freund, Use of 
Indefinite Terms in Statutes, 30 Yale L. J. 437; Hall, 
Strict or Liberal Construction of Penal Statutes, 48 H. L. 
Rev. 748; Hall and Seligman, Mistake of Law and Mens 
Rea, 8 U. Chi. L. Rev. 641; Note, Statutory Standards of 
Personal Conduct: Indefiniteness and Uncertainty as Vio­
lations of Due Process, 38 II. L. Rev. 963; Note, Indefi­
nite Criteria of Definiteness in Statutes, 45 H. L. Rev. 
160; Note, Void for Vagueness: An Escape from Statu­
tory Interpretation, 23 Ind. L. J. 272; Horack, Constitu­
tional Liberties and Statutory Construction, 29 Iowa L. 
Rev. 448; Quarles, Some Statutory Construction Prob­
lems and Approaches in Criminal Law, 3 Yand. L. Rev. 
531; Morris, Case Note, 26 Tex. L. Rev. 216 and Case 
Note, 33 Va. L. Rev. 203.

Majority Opinion



131

Nor is this principle a stranger to our jurisprudence. 
Carter, 243 Ala. 575, 11 So. 2d 764; Kahalley, 254 Ala. 
482, 48 So. 2d 794.

Mr. Justice Simpson well stated the rule in Bolin, 266 
Ala. 256, 96 So. 2d 582, where the court on certified ques­
tion held the stink bomb law void for vagueness. There 
we find:

“If the provision can be sustained as constitutional it 
must be under the police power of the state which 
authorizes the imposition of reasonable regulations in 
the interest of public health, public morals, public 
safety or the general welfare. Looking to one of the 
earliest authorities, Blackstone defines this power to 
be ‘the due regulation and domestic order of the king­
dom: whereby the individuals of the State, like mem­
bers of a well governed family, are bound to conform 
their general behavior to the rules of propriety, good 
neighborhood, and good manners; and to be decent, 
industrious and inoffensive in their respective sta­
tions.’ 4 Blackstone Commentaries 162.

“Mr. Justice Holmes, speaking for the Supreme Court 
of the United States in Noble State Bank v. Haskell, 
219 U. S. 104, 111, observed:
[fob 111] “ ‘It may be said in a general way that the 
police power extends to all the great public needs. 
Camfield v. United States, 167 U. S. 518, 17 S. Ct. 
864, 42 L. Ed. 260. It may be put forth in aid of 
what is sanctioned by usage, or held by the prevailing 
morality or strong and preponderant opinion to be 
greatly and immediately necessary to the public wel­
fare.’

Majority Opinion

# # # * #



Majority Opinion

“It is also settled law that ‘In enacting a criminal stat­
ute, there is an obligation on the State to so frame 
it that those who are to administer it and those to 
whom it is to be administered may know what stand­
ard of conduct is intended to be required and legis­
lation may run afoul of the due process clause be­
cause of a failure to set up any sufficient guidance 
to those who would be law-abiding, or to advise a 
defendant of the nature and cause of an accusation 
he is called on to answer, or to guide the courts in 
the law’s enforcement.’ Kahalley v. State, 254 Ala. 
482, 483, 48 So. 2d 794, 795; Seals v. State, 239 Ala. 
5, 194 So. 682; Standard Oil Co. v. State, 178 Ala. 
400, 59 So. 667; Carter v. State, 243 Ala. 575, 11 So. 
2d 764.

“And a person is not required to speculate as to the 
meaning of a statute at the peril of his freedom. 
Lanzetta v. State of New Jersey, 306 U. S. 451, 59
S. Ct. 618, 83 L. Ed. 888. The intent of the legislature 
must appear from the face of the statute. Standard 
Oil Co. v. State, supra.”

In the same year, 1957, in State v. Homan, 38 Ala. App. 
642, 92 So. 2d 51, where a trial court had held Code 1940, 
T. 41, § 221, subdiv. 3, unconstitutional, we reversed. The 
opinion compasses a number of Alabama cases both of im­
precise words and constitutional holdings:

“We are cited to the peeping tom case, Kahalley v. 
State, 254 Ala. 482, 48 So. 2d 794, 795. The gist of 
the offense there was for any male person to go ‘near 
and stare * * * into any room * * * not his own or 
under his control, which is occupied by any female



133

person * * * This case in turn is bottomed on the 
Fourteenth Amendment to the Federal Constitution 
via Winters v. People of State of New York, 333 U. S. 
507, 68 S. Ct. 665, 92 L. Ed. 840, and other cases 
therein cited.

“And from the Kahalley decision sprang Connor v. City 
of Birmingham, 36 Ala. App. 494, 60 So. 2d 474. The 
offense there was that no two persons of opposite sex 
(except man and wife and parent and minor child) 
shall occupy jointly and privately any room in any 
lodging house, hotel, etc.

[fol. 112] “These cases illustrate what, in the absence 
of concepts of due process, would nevertheless be 
obnoxious criminal legislation. Thus in Kahalley the 
fallacy is exposed by the question, ‘How far is near?’ 
In Connor the language, though unambiguous, is so 
broad and sweeping as to raise a presumption that 
the legislator would not have so intended unless 
he had added all inclusive words, and absent the all 
inclusive words the courts would not attempt to re- 
legislate, 36 Ala. App. at page 499, 60 So. 2d at page 
477.

“Subdivision 3 of Section 221 [T. 41], supra, is sever­
able * * * . # * * we are of the opinion that there is 
no denial of due process of law nor is the language 
of the subdivision so vague as to be meaningless. 
There are no imprecise words such as ‘profiteering’, 
‘necessity of life’, State v. Goldstein, 207 Ala. 569, 93 
So. 308, ‘profit, gain or advantage, unusual in the 
ordinary course of legitimate business’, State v. Skin­
ner, 20 Ala. App. 204, 101 So. 327, 329. or ‘near’ , 
Kahalley v. State, supra. See also Parisian Co. v.

Majority Opinion



134

Williams, 203 Ala. 378, at page 383, 83 So. 122 at 
page 127. * * * ”

Since the only stated standards for refusing a permit 
are those of welfare, peace, safety, health, decency, good 
order, morals or convenience, we—in addition to overbroad- 
ness—find these words, as related to a parade, procession 
or demonstration, either sufficiently lacking_m_ preciseness, 
or without a settled applicable common law meaning.

For example, in Hague v. Committee, supra, Roberts, .J., 
aptly pointed out that peace on the streets could easily 
be achieved by suppression.

In the context of long drawn out resort to congested 
courts for relief, these stated “ standards”—truly only 
sources of power, not means to an end— show § 1159 to 
be void on its face.

VII.

§ 1159 Is V oid as A pplied

Tick I To v. Hopkins, supra, held that, though a San 
Francisco ordinance aimed at fire hazards had a valid 
surface wording, yet its employment against only Chinese 
laundrymen was discriminatory.
[fol. 113] Here we have no direct evidence of any other 
persons being charged with a breach of § 1159 on the same 
occasion as that of instant concern. Nevertheless, the 
borderline case made here against Shuttlesworth, coupled 
with even less plausible presentations reviewed in Primm 
v. City of Birmingham, supra, and in two other cases de­
cided here on the authority of Primm, at the same time as 
Primm, constitute a pattern of enforcement.

In addition to facts listed in the quotation from Judge 
Johnson’s opinion in Primm (set out hereinabove), we

Majority Opinion



135

excerpt also from tlie evidence of one of the arresting 
officers :

“Q. ' * * Were you informed by anyone that no 
permits had been issued for any such demonstrations?

“A. Yes, sir. At roll call before we came to work 
they read out this ordinance number to us and said 
no one had received any permits to hold any kind of 
demonstrations downtown and they read out the ordi­
nance to us.”

And of similar import from Bentley v. City of Birming­
ham, 6 Div. 938, decided on authority of Primm, we extract:

“Q. Is it a fact, Officer, that the fact that some 
people might come down in the downtown area with 
signs was discussed that morning at Police Head­
quarters?

“A. It was.
“Q. And was the section which Ann Bentley is 

charged with discussed also at that time?
“A. Yes, it was.
“Q. Who did you discuss it with, Officer?
“A. I believe that the Sergeant read—or, either the 

Captain read out the ordinance and said it was a vio­
lation.

“Q. Could you tell us just what he said with refer­
ence to this ordinance?

“Mr. Walker: We object. Well, go ahead and an­
swer that.

“A. If I remember correctly, at roll call they read 
a lot of different things, read auto stolen reports, 
and read a lot of things that come in there, and if I 
remember correctly, I believe they read out the ordi-

Majority Opinion



136

nance and said carrying signs would be prohibited, 
[fob 114] “Q. Did they describe how big the sign
had to be?

“A. They did not.
“Q. Was there anything else said there that you 

remember?
“ A. Not that I recall.
“Q. Did they describe what type of conduct other 

than carrying signs would constitute an offense?
“A. I don’t recall any mention of conduct.

# # # # #
“Q. All that you know about it is that she had the 

sign on, she was not in the company of anybody, she 
was walking across the street, and in about six sec­
onds she was arrested?

“A. That is correct.
“ Q. She didn’t create any disturbance, or block the 

street, or anything else other than that, is that right?
“A. She did not.
“Q. Didn’t endanger anybody’s safety, so far as you 

know?
“A. She did not.”

Officer ..........  (on cross) :

“Q. Now, I believe you stated that you were at the 
roll call that morning when they gave you orders 
about making arrests for violation of 1159?

“A. They didn’t say make an arrest, they just told 
us what the ordinance number was in case someone 
was downtown with signs on.

“Q. Wearing signs?
“A. But, they didn’t actually say go out and get 

them.

Majority Opinion



137

“Q. Well, now, what were your specific orders with 
respect to people wearing signs downtown, if anything?

“A. 1 don’t recall any particular orders. They just 
notified us of what the situation—of what the City 
Code was pertaining to such an incident.

“Q. And your understanding was that you were to 
arrest anybody with a sign on?
[fob 115] “A. My understanding is to arrest anybody
violating the City Code to my knowledge.

“ Q. We are not asking about the other sections in 
the City Code, we are asking specifically about 1159. 
Did you have specific orders to arrest anybody who 
was wearing a sign?

“Mr. Walker: We object to that, Your Honor.
“Mr. Shores: Your Honor, we are trying to find out 

whether or not he was given instructions to cover 
that these individuals blocked the street, or whether 
the individuals were creating a disturbance with signs, 
or just what type of sign.

“Mr. Walker: Your Honor, we are not trying the 
defendant on what the officer thought, or what orders 
he was under. The only evidence that will be con­
sidered is the evidence admitted here in this court 
room, and whether the officer was under instructions, 
or acted even without any instructions, that can make 
no—have no bearing on the case, because it will be 
decided from the evidence that comes from the wit­
ness stand.

“ Mr. Shores: But, since he did say he did have 
some instruction, the law was read to him, we want 
to question him about those instructions. They are 
the ones who brought that out. We didn’t know about

Majority Opinion



138

Majority Opinion

they had a little meeting and discussed what they 
were to do, so that is what we are trying to find out, 
Your Honor.

“The Court: You may ask him.
“ Q. * * * were you given any instructions or any 

orders as to what type of signs a person must be 
wearing before you could make an arrest?

“A. No, I don’t recall any such orders.
“Q. They didn’t tell you how large the sign was to 

be, or how small?
“A. No, there was no mention as to size.
“Q. Well, specifically what was said at this roll call 

with respect to 1159?
“A. I don’t remember the exact conversation. All 1 

know they read out—they said Article 1159 will cover 
any demonstrations, or parades, or carrying signs 
downtown. They didn’t mention what kind of—what 
the signs were to say, or what size, or what color 
or anything of that nature.

“Q. In other words, they gave you instructions 
coupled with that reading as to what it would require 
to make the arrest? One of the requirements was 
that a person must have a sign on?

Tf^rrrei—rarThat’s rigEt~
“ Q. And that was all, and that is all you arrested 

them for, is that correcfT 
“A. That is correct.”

ypr a case to reach here after a city arrest, it must go 
through two tiers of judicial proceedings: first, a trial 
before the city recorder; and, second, on appeal from a 
conviction, a trial de novo in the circuit court.



139

Trial in the circuit court can only be had on the city 
attorney’s filing (unless waived) of a new complaint.

Accordingly, a case might come before the recorder 
without counsel for the city being aware of the prosecu­
tion in detail before trial. In the circuit court, the city’s 
attorney, under his client’s instruction, is an indispensable 
actor.

This pattern of enforcement exhibits a discrimination 
within the rule of Yick Wo v. Hopkins, supra.

IX.

There W as Insufficient Evidence to Sustain the Charge

In a city ordinance prosecution, the city must sustain 
its case by proof to the same degree required in case 
of an indictable offense, to convince the jury from the 
evidence beyond a reasonable doubt.

Here, we consider the proof weighed in this scale fails 
to show a procession which would require, under the~ 
terms of § 1159, the getting of a permit.

No evidence came in as to whether or not the pedes­
trians in question—fifty-two in number, about a football 
squad with attendants—acted as a cohesive unit as a 
military group would march.
[fol. 117] The City failed to show whether or not other 
pedestrians were run off the sidewalk, blocked either in 
access, process or transit. No evidence showed whether 
or not the group disobeyed traffic lights or officers di­
recting crossings. There was no evidence of jaywalking 
or wandering onto the roadway.

Were it not for the singing and clapping13 and some 
spurts of activity indicative of the appellant being a

Majority Opinion

13 S ta te  v. H u g h e s , 72 N. C. 25.



140

puisne leader under Dr. King, in conjunction with the 
broad definition of “ street” in the City Code as em­
bracing the public sidewalk alongside, we might not have 
gone to such lengths of demonstration.

The Georgia Court of Appeals, in Montgomery v. Mayor, 
etc., of Athens, 105 Ga. App. 57, 123 S. E. 2d 339, where 
a number of men (bearing signs with slogans with scrip­
tural citations) picketed the University of Georgia campus 
while the Attorney General of the United States spoke 
within, had this to say:

“ The undisputed facts in this case show that the peti­
tioners did not obstruct or interfere with either 
vehicular traffic or pedestrian traffic and were not 
engaged in any activity which would require a police 
escort to direct traffic in conjunction therewith. Not, 
only did they not unreasonably burden and interfere 
with the normal use of the streets by the public in 
the City of Athens but the undisputed facts show 
that their activity did not burden or interfere with 
the normal use of the streets in any manner whatso­
ever. We are therefore of the opinion that the ac­
tivity of the petitioners on this occasion did not 
constitute a parade as contemplated by the ordinance 
or by the usually accepted definition of a parade. * * * ”

Majority Opinion

Here, the trial court erred in overruling the appellant’s 
motion to exclude the evidence for want of a prima facie 
case.
[fol. 1181

X.
Limitation of Opinion

When this case arose, Cox v. Louisiana, supra, was not 
announced. Freedman v. Maryland, supra, was ivaiting



141

in the wings. The trial judge rested on a more vigorous 
Cox v. New Hampshire, supra.

We emphasize that we have only before us a walking 
on city sidewalks. In the use of the roadway probably 
less stringent standards of construction would prevail 
against the prosecutor.

Moreover, we do not doubt the potentiality of the City’s 
adopting an ordinance without suppressing free expres­
sion or locomotion. We quote from Cox v. Louisiana, 
supra, per Goldberg, J .:

“ * * * The rights of free speech and assembly, while 
fundamental in our democratic society, still do not 
mean that everyone with opinions or beliefs to ex­
press may address a group at any public place and 
at any time. The constitutional guarantee of liberty 
implies the existence of an organized society main­
taining public order, without which liberty itself would 
be lost in the excesses of anarchy. The control of 
travel on the streets is a clear example of govern­
mental responsibility to insure this necessary order. 
A restriction in that relation, designed to promote 
the public convenience in the interest of all, and not 
susceptible to abuses of discriminatory application, 
cannot be disregarded by the attempted exercise of 
some civil right which, in other circumstances, would 
be entitled to protection. One would not be justified 
in ignoring the familiar red light because this Avas 
thought to be a means of social protest. Nor could 
one, contrary to traffic regulations, insist upon a 
street meeting in the middle of Times Square at 
the rush hour as a form of freedom of speech or 
assembly. Governmental authorities have the duty 
and responsibility to keep their streets open and

Majority Opinion



142

available for movement. A group of demonstrators 
could not insist upon the right to cordon off a street, 
or entrance to a public or private building, and allow 
no one to pass who did not agree to listen to their 
exhortations. * * *

#  *  #

“We have no occasion in this case to consider th<} 
constitutionality of the uniform, consistent, and 
[fol. 119] nondiscriminatory application of a statute 
forbidding all access to streets and other public facil-> 
ities for parades and meetings. * * * ” (Italics 
added.)

Ordered liberty is the end for which we enforce laws, 
not the wish for self-immolation. On the bones of the 
martyrs to his tyranny man has never built a lasting 
system of Law.

Lord Acton in 1877 perceived the interplay between, 
rights and duties, between competing claims of rights— 
saying:

“ * * * At all times sincere friends of freedom have 
been rare, and its triumphs have been due to minor­
ities, that have prevailed by associating themselves 
with auxiliaries whose objects often differed from 
their own; and this association, which is always dan­
gerous, has been sometimes disastrous, by giving to 
opponents just grounds of opposition, and by kindling 
dispute over the spoils in the hour of success. No 
obstacle has been so constant, or so difficult to over­
come, as uncertainty and confusion touching the na­
ture of true liberty. If hostile interests have wrought 
much injury, false ideas have wrought still more; 
and its advance is recorded in the increase of knowl­

Majority Opinion



143

edge, as much as in the improvement of laws. The 
history of institutions is often a history of deception 
and illusions; for their virtue depends on the ideas 
that produce and on the spirit that preserves them, 
and the form may remain unaltered when the sub­
stance has passed away.” (Italics added.)

X.

Conclusion

The appellant had standing to question the ordinance. 
Staub v. Baxley, supra; Freedman v. Maryland, supra.

We consider that (1) §1159 of the 1944 General Code 
of the City of Birmingham, certainly as to the use of 
sidewalks by pedestrians, is void for vagueness because 
of overbroad, and consequently meaningless, standards for 
the issuance of permits for processions; (2) said §1159 
has been enforced in a pattern without regard to even 
the meaning here claimed for by the City to such an 
extent as to make it unconstitutional as applied to 
ffol. 120] pedestrians using the sidewalks; and (3) the 
City failed to make a case, under the purported meaning 
of § 1159, of there being a need for the appellant in this 

^ase to be covered by a permit to use the sidewalk in 
company with others.

Therefore, the judgment below is due to be reversed 
and the appellant is due to be discharged sine die.

Majority Opinion

Reversed and Rendered.



144

Dissenting Opinion

[fol. 121]
Johnson, J., (dissenting)

The complaint filed in the circuit court by the City’s 
attorney charges that appellant “ did take part or partic­
ipate in a parade or procession on the streets of the 
City without having secured a permit therefor from the 
commission, contrary to and in violation of Sec. 1159 
of the General City Code of Birmingham of 1944.”

The evidence, as introduced by the City, tended to 
show that during the afternoon of Friday, April 12, 1963, 
approximately 52 persons, most of whom were Negroes, 
departed from a church in the 1400 block of 6th Avenue 
North in Birmingham, grouped “ in formation” on the 
sidewalk in front of the church, and then walked “ in 
formation” along the sidewalks for several blocks. Their 
route followed east from the church along 6th Avenue 
North to 17th Street, then south along 17th Street one 
block to 5th Avenue North, and then east again along 
5th Avenue North towards 18th Street. They were stopped 
by a policeman in the middle of the block between 17th 
and 18th Streets. “ Spectators” lining the route fell in 
behind and followed jjthf group in formation as they 
passed by. This crowd of “ spectators”—consisting of 
several hundred persons—did not walk in formation and 
had no discernible organization. There were also a num­
ber of photographers present. The appellant, who is a 
preacher, left the church with the people who walked 
in formation. He was observed entering the church wear­
ing a business suit, and when he left the church he was 
wearing a black shirt and “bluejean” trousers. Rev. Mar­
tin Luther King and Rev. A. B. Abernathy led the group 
in formation. They were dressed in attire similar to that



Dissenting Opinion

worn by appellant. [jhie group in formation sang and 
clapped bands as they proceeded along the sidewalk, but 
were otherwise orderly. No permit was issued for a parade  ̂
or procession to be held on April 12, 1963. There is no 
evidence concerning whether anyone applied for such 
permit.
[fol. 122] Police Officer 11. N. Higginbotham, a witness 
for the City, was at 5tli Avenue North and 18th Street 
when he first observed the alleged parade or procession. 
He testified that the group in formation turned on to 
5th Avenue from 17th Street and proceeded east on the 
sidewalk on the north side of 5th Avenue, that tliis group 
was marching four to six abreast “all the way across 
the sidewalk” , and that he stopped them in the middle 
of the block between 17tli and 18th Streets. He stated 
that the crowd following the group in formation was in, 
the center of the street, and also that he observed appel­
lant in the group in formation, in the “ third or fourth; 
row back.”

Police Officer Edward Ratigan, a witness for the City  ̂
testified that he followed the alleged parade or proces­
sion from the church on 6th Avenue to where it was 
stopped on 5tli Avenue; that the group in formation 
consisted of 52 persons marching two abreast, approxi­
mately forty inches apart; and that this formation per­
sisted until the group was stopped. He further stated 
that appellant was at no time in line with a partner in 
the marching group but was walking along side the group 
talking to them, and giving them encouragement. Police 
Officer Herman Evers testified that appellant was “bound­
ing from the front to the rear” of the marching group 
“waving his arms to come on, telling them to come on.”



146

Appellant’s evidence consists of the testimony of five 
witnesses, including himself. His evidence tends to show 
that approximately 52 persons left the church on 6th 
Avenue North and walked two abreast on the sidewalks 
for several blocks; that appellant left the church with 
the group and walked a few blocks in the same direction; 
that he was not walking with a partner in this group but 
was walking at times beside the group, counseling them 
to be quiet and orderly; that he also tried to prevent 
[fol. 123] bystanders or spectators from joining the march­
ing group; and that he left the scene before any of the 
group in formation was arrested. Appellant referred to 
the group in formation as “marchers.”

Appellant contends that the court erred in overruling 
his motion to exclude the City’s evidence because (1) there 
is no evidence of a parade or procession, (2) assuming 
arguendo there was a parade or procession, it occurred 
on the sidewalk and not in the streets as alleged in the 
complaint, and (3) there is no evidence that appellant 
took part or participated in such parade or procession.

The statute does not attempt to define a parade or 
procession. Parade is defined in Webster’s New Interna­
tiona] Dictionary, Second Edition, as follows:

“Any march or procession; esp. a formal public 
procession; the movement of any body marshalled in 
something like military order; as, a parade of firemen; 
a circus parade.

Procession is defined in Webster’s New Interna­
tional Dictionary, Second Edition, as follows:

“A group, esp. of persons or of vehicles contain­
ing persons, moving onward in an orderly, cere­

Dissenting Opinion



147

monious, or solemn parade; as a religious proces­
sion ; to go in procession to the capitol; to form a 
procession.”

In Cox v. New Hampshire, 312 II. S. 589, 61 S. Ct. 762, 
85 L. Ed. 1049, the Supreme Court of the United States 
had before it the question of whether a group of fifteen to 
twenty members of a religious sect marching along the 
sidewalk in single file carrying placards constituted a 
“parade or procession” within the meaning of a New 
Hampshire Statute prohibiting a parade or procession 
without a license. The question was answered in the 
affirmative by a unanimous court. Chief Justice Hughes, 
speaking for the court, stated:

“There appears to be no ground for challenging 
the ruling of the state court that appellants were 
in fact engaged in a parade or procession upon the 
public streets. As the state court observed: ‘It was 
a march in formation, and its advertising and in- 
formatory purpose did not make it otherwise . . . 
It is immaterial that its tactics were few and simple. 
It is enough that it proceeded in an ordered and} 
close file as a collective body of persons on the city 
streets.” (Emphasis added)

Here, the City’s evidence establishes that a substantial 
number of persons, upon leaving the same church at 
the same time, gathered in formation in front of that 
[fol. 124] church and while maintaining formation marched 
on the sidewalks along the streets for several blocks, 
two to six abreast. They were singing and clapping their 
hands. The group was led and directed by ministers or 
preachers. The marchers attracted a crowd of spectators,

Dissenting Opinion



148

and some photographers. This evidence established, in 
my opinion, a common intent to march on the streets as 
an organized, collective body of persons. It was a move­
ment of a body of persons marshalled in something like 
military order. It was a “parade or procession” within 
the meaning of Section 1159, supra.

Appellant’s contention that the parade or procession 
did not occur in the street is without merit. A look at 
Section 2 of the General City Code of Birmingham of 
1944 discloses an intent to treaty sidewalks as part of the 
streets^ Section 2 reads in part:

“Sec. 2. Definitions and rules of construction.
“ In the construction of this code and of all or­

dinances, the following definitions and rules shall bo 
observed, unless the context clearly requires other­
wise.

# # *
“ Sidewalk: The term ‘sidewalk’ shall mean that 

portion of a street between the curb line and ad­
jacent property line.”

In common parlance, a “ sidewalk” is the part of a 
street assigned to the use of the pedestrians. Smith v. 
City of Birmingham, 42 Ala. App. 457, 168 So. 2d 35.

A  parade or procession may be held on the sidewalk 
as well as that part of the street set aside for vehicular 
traffic. See Cox v. New Hampshire, supra. Sec. 1159, 
supra, prohibits a parade or procession on any portion 
of the street, including the sidewalk.

The evidence clearly establishes that appellant took 
part or participated in the parade or procession. If 
we reject the testimony of Officer Higginbotham to the 
effect that appellant was in the group in formation, which

Dissenting Opinion



149

I do not, the testimony of other police officers to the effect 
[fol. 125] that appellant walked beside the marching group 
giving them instructions is sufficient to establish that he 
participated in the parade or procession. One who as­
sumes duties similar to a drill sergeant in a military 
parade, as did appellant, takes part or participates in a 
parade or procession.

Appellant contends that Section 1159 “vests in the com­
mission the power to restrain free expression without 
establishing reasonable standards for the use of such 
power,” and therefore violates the First Amendment to 
the United States Constitution, which is protected against 
state action by the Fourteenth Amendment.

Although the right to engage in a parade is one phase 
of the exercise of the fundamental right of free speech 
and assembly, such right is subject to reasonable and 
nondiscriminating regulation and limitation.

In Cox v. New Hampshire, supra, Chief Justice Hughes 
wrote:

“ Civil liberties, as guaranteed by the Constitution, 
imply the existence of an organized society maintain 
public order without which liberity itself would be 
lost in the excesses of unrestrained abuses. The au­
thority of a municipality to impose regulations in 
order to assure the safety and convenience of the 
people in the use of public highways has never been 
regarded as inconsistent with civil liberties but rather 
as one ot the means of safeguarding the good order 
upon which they ultimately depend. The control of 
travel on the streets of cities is the most familiar 
illustration of this recognition of social need. Where 
a restriction of the use of highways in that relation 
is designed to promote llie public convenience in the

Dissenting Opinion



150

interest of all, it cannot be disregarded by the at­
tempted exercise of some civil right which in other 
circumstances would be entitled to protection. * * * 
As regulation of the use of the streets for parades 
and processions is a traditional exercise of control 
by local government, the question in a particular case 
is whether that control is exerted so as not to deny 
or unwarrantedly abridge the right of assembly and 
the opportunities for the communication of thought 
and the discussion of public questions immemorially 
associated with resort to public places.”

[fol. 12C] In Runs v. New York, 340 U. S. 290, 71 S. Ct. 
312, 95 L. Ed. 28, Mr. Justice Jackson wrote that “cities 
throughout the country have adopted the permit require­
ment to control private activities on public streets and 
for other purposes.” Ordinances of this character have 
been in effect in most municipalities of Alabama for many 
years. The authority to enact such ordinances is given 
by Section 455, Title 37, and Section 654, Title 62, Code 
of Alabama 1940.

It is the duty of this Court not to strike down a city _ 
ordinance as unconstitutional if by a reasonable construc­
tion it can be given a field of operation within consti­
tutional limits. See City of Mobile v. Coffin, 28 Ala. App. 
243, 181 So. 795. Where an ordinance is susceptible of 
two constructions, one of which will defeat the ordinance 
and the other will support it, the latter construction will 
be adopted. Birmingham Ry., Light & Power Co. v. Kyser, 
203 Ala. 121, 82 So. 151. A municipal ordinance must 
be construed with a view towards the purpose for which 
it was adopted. City of Birmingham v. Mauzey, 214 Ala. 
476, 108 So. 382.

Dissenting Opinion



151

I think it is obvious that this ordinance—Section 1159— 
was not designed to suppress in any manner freedom of 
speech or assembly, but to reasonably regulate the use 
of the streets in the public interest. It does not seek 
to control what may be said on the streets, and is appli­
cable only to organized formations of persons, vehicles, 
etc., using the streets and not to individuals or groups 
not engaged in a parade or procession. The requirement 
that the applicant for a permit state the course to be 
travelled, the probable number of persons, vehicles and 
animals, and the purpose of the parade is for the purpose 
of assisting municipal authorities in deciding whether or 
not the issuance of a permit is consistent with traffic 
conditions. Thus, the required information is related to 
[fol. 127] the proper regulation of the use of the streets, 
and the fact that such information is required indicates 
that the power given the licensing authority was not to 
be exercised arbitrarily or for some purpose of its own. 
The requirement that the applicant state the purpose of 
the parade or procession does not indicate an intent to 
permit the Commission to act capriciously or arbitrarily. 
The purpose may have a bearing on precautions which 
should be taken by municipal authorities to protect parades 
or the general public.

Section 1159, supra, provides that the Commission shall 
issue a permit “unless in its judgment the public welfare,

I-Heace, safely,...liealth. decency, good order, morals or 
convenience Require that it be refused.” , I do not construe^ 
this as vesting in the Commission an unfettered discretion 
in granting or denying permits, but, in view of the purpose 
of the ordinance, one to be exercised in connection with 
the safety, comfort and convenience in the use of the 

^streets by the general public. The standard to be applied

Dissenting Opinion



Dissenting Opinion

is obvious from the purpose of the ordinance. It would 
bo of little oi' no value to state that the standard by 
which the Commission should be guided is safety, com­
fort and convenience of persons using the streets, and, 
due to varying traffic conditions and the complex prob­
lems presented in maintaining an orderly How of traffic 
over the streets, it would be practically impossible to 
formulate in an ordinance a uniform plan or system re­
lating to every conceivable parade or procession. The 
members of the Commission may not act as censors of 
what is to be said or displayed in any parade. If they 
should act arbitrarily, resort may be had to the courts. 
It is reasonable to assume from the facts in this case 
that the Commission would have granted appellant a 
permit to engage in the parade if such permit had been 
sought. A denial would have been warranted only if 
after a required investigation it was found that the con­
venience of the public in the use of the streets at the 
time and place set out in the application would be unduly 
[fol. 128] disturbed.

My conclusions are fully sustained by the decision in 
State v. Cox, 91 N. H. 137, 16 A. 2d 508. In that case 
the court was called upon to determine the constitu­
tionality of a state statute prohibiting a parade or pro­
cession on the streets without a permit from local author­
ities. The statute did not set out a standard for granting 
or refusing the permit. The court overruled the defen­
dant’s contention that the statute vested unfettered con­
trol in the licensing authorities. In answering this con­
tention, the court said:

“The act is implicit in its requirement that the 
licensing authority act reasonably in granting or deny-



153

ing licenses, and witli reference to the object of 
public order on the public ways. If it does not in 
express terms ‘make comfort or convenience in the 
use of streets * * * the standard of official action’ 
(Hague v. Committee Tor Industrial Organization, 307 
IT. S. 496, 516, 59 S. Ct. 954, 964, 83 L. Ed. 1423) 
the necessary inference is that it does, based upon 
the presumption in favor of the validity of legis­
lation as reinforced by the express provision of the 
act bestowing ‘delegated powers’ upon the authority, 
as a grant intended to be only of due legislative 
power which may properly be delegated. The dis­
cretion thus vested in the authority is limited in its 
exercise by the bounds of reason, in uniformity of 

.method of treatment upon the facts of each applica­
tion, free from improper or inappropriate considera­
tions and from unfair discrimination, systematic, 
consistent and just order of treatment, with refer­
ence to the convenience of public use of the highways 
is the statutory mandate. The licensing authority 
has no delegation of power in excess of that which 
the legislature granting the power has, and the legis­
lature attempted to delegate no power it did not 
possess.”

The United States Supreme Court, in a unanimous 
decision, held that the statute, as construed by the Su­
preme Court of New Hampshire, violated no federal 
constitutional rights of the defendants. Cox v. New Hamp­
shire, supra.

The construction adopted by the Supreme Court of 
New Hampshire is sound. I would place the same con­
struction upon the ordinance hero for review.

Dissenting Opinion



154

There is nothing in the record before us tending to 
show that the ordinance has been applied in other than 
a fair and non-discriminatory manner. I cannot agree that 
[fol. 129] this case, coupled with Primm v. City of Birming­
ham, ------ Ala. App. ------ , 177 So. 2d 236, and the two
cases decided on authority of Primm constitutes a pattern 
of enforcement. No violation of Yick Wo v. Hopkins, 118 
IT. S. 356, has been argued, nor does such violation appear 
from the record or extrinsically.

So evanescent are the issues in the majority opinion, 
I most respectfully dissent.

Dissenting Opinion



[fol. 130]

The State of Alabama—Judicial Department 

The A labama Court of Appeals 
October Term, 1965-66

6 Div. 979

Judgment

Fred L. Skuttlesworth 
v.

City of Birmingham

Appeal from Jefferson Circuit Court
October 3, 1963 Certificate Filed

December 26, 1963 Transcript F iled

February 27, 1964 Come the Parties by Attorneys, and
Submit This Cause on Briefs for 
Decision.

(J udgment)
November 2, 1965

Come the parties by attorneys, and the record and 
matters therein assigned for errors being submitted on 
brief and duly examined and understood by the Court, 
it is considered that in the record and proceedings of 
the Circuit Court, there is manifest error. It is therefore 
considered that the judgment of the Circuit Court be 
reversed and annulled, and judgment rendered, discharg­
ing appellant. (Johnson. J., dissents.)



157

[fol. 1]
PROCEEDINGS IN THE SUPREME COURT 

OF ALABAMA

In the

Supreme Court oe Alabama 

Sixth Division 
No. 291

City of Birmingham, a Municipal Corporation,

vs.
Petitioner,

Fred L. Shuttlesworth,
Respondent.

Petition for Certiorari to Court of Appeals

(Filed January 5, 1966)

To the Honorable Chief Justice and Associate Justices 
of the Supreme Court of Alabama:

Your petitioner, the City of Birmingham, a municipal 
corporation, hereby respectfully petitions this Honorable 
Court to review and determine the decision rendered by 
the Court of Appeals of Alabama on the 2nd day of 
November, 1965, in that certain appeal in that Court 
numbered and styled #979 Division 6, Fred L. Shuttles­
worth, Appellant v. City of Birmingham, Appellee, on 
appeal from the Circuit Court of the Tenth Judicial Cir­
cuit of Alabama.



158

[fol. 2] Petitioner avers that it has duly filed its appli­
cation for rehearing in said Court of Appeals in said 
cause within the time required by law and raising the 
points hereinafter set forth, and that said application 
for rehearing has been decided adversely to the movant 
by said Court of Appeals on the 21st day of December, 
1965.

Your petitioner respectfully shows unto the Court that 
this cause is a prosecution by the appellee against the 
appellant for the violation of Section 1159 of the General 
City Code of Birmingham, Alabama, of 1944 which reads 
as follows:

“It shall be unlawful to organize or hold or to 
assist in organizing or holding, or to take part or 
participate in any parade or procession or other 
public demonstration on the streets or other public 
ways of the city, unless a permit therefor has been 
secured from the commission.

To secure such permit, written application shall 
be made to the commission, setting forth the prob­
able number of persons, vehicles and animals, which 
will be engaged in such parade, procession or other 
public demonstration, the purpose for which it is to 
be held or had, and the streets or other public ways 
over, along or in which it is desired to have or hold 
such parade, procession or other public demonstra­
tion. The commission shall grant a written permit 
for such parade, procession or other public demon­
stration, prescribing the streets or other public ways 
which may be used therefor, unless in its judgment 
the public welfare, peace, safety, health, decency, good 
order, morals or convenience require that it be re-

Petition for Certiorari to Court of Appeals



159

fused. It shall be unlawful to use for such purposes 
any other streets or public ways than those set out 
in said permit.

The two preceding paragraphs, however, shall not 
apply to funeral processions.”

The Court submitted the case to the jury and the jury 
returned a verdict in favor of the appellee and judgment 
was entered accordingly; that the points of law involved 
which petitioner claims should be reviewed and revised 
by this Supreme Court are as follows:
[fol. 3] 1. Wherein, the Court of Appeals held that Sec­
tion 1159 of the General Code of Birmingham of 1944 
imposed an invidious prior restraint on a facet of free 
speech.

2. Wherein, the Court of Appeals held that Section 
1159 of the General Code of Birmingham of 1944 lacks 
ascertainable standards for the issuance of a parade 
permit.

3. Wherein, the Court of Appeals held that Section 
1159 of the General Code of Birmingham of 1944 has been 
applied in a pattern of discrimination within the rule of 
Yick Wo v. Hopkins, 118 US 356, 6 S. Ct. 1064, and there­
fore is void as applied.

4. Wherein, the Court of Appeals held that the evi­
dence (as set out in its opinion) was insufficient to sustain 
a conviction for the violation of Section 1159 of the Gen­
eral Code of Birmingham of 1944.

Petition for Certiorari to Court of Appeals



160

5. Wherein, the Court of Appeals held that appellant 
had standing to question the validity of Section 1159 of 
the General Code of Birmingham of 1944.

Wherefore, your petitioner most respectfully requests 
that a writ of certiorari be issued out of and under the 
seal of this Court, directed to the Court of Appeals of 
Alabama, commanding and requiring said court to certify 
and send to this Court on a day certain to be designated 
by this court, a full and complete transcript of the record 
and all proceedings of said Court of Appeals of Alabama, 
in the cause numbered and entitled aforesaid, to the end 
that this cause may be reviewed and determined by this 
Honorable Court as provided by law and the rules and 
practice of this Court, and that this Court thereupon 
proceed to review and correct the errors complained of, 
and to reverse the judgment of the Court of Appeals, or 
render such judgment as said Court should have rendered, 
[fol. 4] Petitioner requests that this Honorable Court 
suggest and require the Court of Appeals to stay or recall 
its certificate of judgment of reversal of said cause pend­
ing the determination of this petition and decision by this 
Honorable Court in said petition.

Submitted herewith is a brief and argument in support 
of this petition.

Respectfully submitted,

/ s /  William C. Walker
Attorney for Petitioner,
City of Birmingham

Petition for Certiorari to Court of Appeals



161

Petition for Certiorari to Court of Appeals 

Certificate

This is to certify that a copy of the foregoing Petition 
for Certiorari was served on Jack Greenberg, Norman C. 
Amaker and Frank H. Heffron, Attorneys for Appellant, 
by depositing same in the United States Mail, postage 
prepaid, addressed to them at 10 Columbus Circle, New 
York, New York, 10019; and a copy of same was served 
upon Arthur Shores and Orzell Billingsley, Jr., at their 
offices in the A. G. Gaston Building and at 1630 Fourth 
Avenue North, respectively, in the City of Birmingham, 
Alabama, this 4 day of January, 1966.

/ s /  W illiam C. W alker 
Attorney for Appellee,
City of Birmingham



162

[fol. 5]
Order Granting Writ

January 20, 1966
The State of Alabama—J udicial Department 

The Supreme Court of A labama 

October Term 1967-68
6th Div. 291

Ex parte: City of Birmingham
Petition for W rit of Certiorari to Court of Appeals 

(Re: Fred L. Shuttlesworth v. City of Birmingham)
Upon a preliminary examination of the Petition for 

Writ of Certiorari to the Court of Appeals, this Court 
concluding there is probability of merit in the Petition 
and that the Writ should issue,

Hereby Orders that the Writ issue, and the cause shall 
stand for resubmission on briefs or oral argument, if so 
desired, as provided by Revised Supreme Court Rule 89.



163

[fol. 6]

Filed
N o v e m b e r  9, 1967 

Supreme Court of Alabama 
J. O. Sentell 
Deputy Clerk

The State o f  Alabama—J u d i c i a l  Department 

The Supreme Court o f  A labama 

October Term 1967-68
6tli Div. 291

Ex parte City of Birmingham

Opinion

In re Fred L. Shuttlesworth
v.

City of Birmingham

Petition lor Certiorari to Court of Appeals 
Lawson, J ustice.

Fred L. Shuttlesworth was convicted in the Recorder’s 
Court ot the City of Birmingham of parading without a 
[fol. 7] permit in violation of § 1159 of the General City 
Code of Birmingham, hereinafter referred to as § 1159, 
which reads:

“It shall be unlawful to organize or hold, or to 
assist in organizing or holding, or to take part or 
pai ticipate in, any parade or procession or other



164

public demonstration on the streets or other public 
ways of the city, unless a permit therefor has been
secured from the commission.

“To secure such permit, written application shall 
be made to the commission, setting forth the probable 
number of persons, vehicles and animals which will 
be engaged in such parade, procession or other public 
demonstration, the purpose lor which it is to be held 
or had, and the streets or other public ways over, 
along or in which it is desired to have or hold such 
parade, procession or other public demonstration. The 
commission shall grant a written permit for such 
parade, procession or other public demonstration, 
prescribing the streets or other public ways which 
may be used therefor, unless in its judgment the 
public welfare, peace, safety, healthy decency, good 
order, morals or convenience require that it be re­
fused. It shall be unlawful to use for such purposes 
any other streets or public ways than those set out 
in said permit.
[fol. 8] “ The two preceding paragraphs, however, 
shall not apply to funeral processions.”

The word “commission” as used in § 1159 refers to 
the governing body of the City of Birmingham.

Following his conviction in the Recorder’s Court, 
Shuttleswortli appealed to the Circuit Court of Jefferson 
County, where there was a de novo trial before a jury. 
The jury found Shuttleswortli guilty and the trial court, 
after rendering a judgment in accordance with the ver­
dict of the jury, sentenced Shuttleswortli to pay a line of 
$75 and to perform ninety days hard labor for the City 
of Birmingham.

Opinion



Shuttlesworth then appealed to the Court of Appeals 
of Alabama which court, in a two-to-one decision, reversed 
the judgment of the Circuit Court of Jefferson County 
and rendered a judgment discharging Shuttlesworth “ sine 
die.” Judge Cates wrote the majority opinion, in which 
Presiding Judge Price concurred. Judge Johnson dis­
sented.—Shuttlesworth v. City of Birmingham, 43 Ala. 
App. 68, 180 So. 2d 314.

The City of Birmingham tiled petition in this court 
for a writ of certiorari to review and revise the opinion 
and judgment of the Court of Appeals. We granted the 
writ.

While we are not altogether certain as to the exact 
reasons why the majority of the Court of Appeals con­
cluded that Shuttlesworth’s conviction should be reversed 
and that he should be discharged sine die, we will treat 
[fol. 9] that opinion as holding that § 1159 is void on its 
face because of overbroad and consequently meaningless 
standards for the issuance of permits for parades or 
processions; that said section has been enforced by the 
City of Birmingham in such a way as to make it uncon­
stitutional under the holding of the Supreme Court of 
the United States in Yick Wo v. Hopkins, 118 U. S. 356, 
6 S. Ct. 1064, 30 L. Ed. 220; that the evidence adduced 
by the City of Birmingham in the trial in the circuit 
court was insufficient to present a jury question as to 
whether Shuttlesworth had, in fact, been engaged in a 
parade, procession or other public demonstration in the 
streets orother public ways of the City of Birmingham 
without first having obtained a permit as required by 
§ 1159.

In view ot the fact that there was a dissenting opinion, 
we have gone to the original record to determine the facts.

1 65

Opinion



166

The majority opinion of the Court of Appeals does 
not contain a complete statement of the facts. However, 
the dissenting opinion of Judge Johnson contains a rather 
lengthy recitation of the facts and our examination of the 
original record shows that the facts as stated in the dis­
senting opinion are fully supported by the record.

The dissenting opinion, unlike the majority opinion of 
the Court of Appeals, takes cognizance of the rule so 
often stated by the appellate courts of this state, to the 
[fol. 10] effect that it is the duty of courts not to strike 
down a city ordinance or a statute as unconstitutional, 
if by reasonable construction it can be given a field of 
operation within constitutional limits and that where a 
statute or ordinance is susceptible of two constructions, 
one of which will defeat the ordinance or statute and the 
other will uphold it, the latter construction will be adopted.

With that rule in mind, Judge Johnson proceeds to 
construe § 1159, saying:

“ I think it is obvious that this ordinance—Section 
1159—was not designed to suppress in any manner 
freedom of speech or assembly, but to reasonably 
regulate the use of the streets in the public interest. 
It does not seek to control what may be said on 
the streets, and is applicable only to organize [sic] 
formations of persons, vehicles, etc., using the streets 
and not to individuals or groups not engaged in 
a parade or procession. The requirement that the 
applicant for a permit state the course to be travelled, 
the probable number of persons, vehicles and animals, 
and the purpose of the parade is for the purpose 
of assisting municipal authorities in deciding whether 
or not the issuance of a permit is consistent with

Opinion



167

traffic conditions. Thus, the required information is 
[fol. 11] related to the proper regulation of the use 
of the streets, and the fact that such information 
is required indicates that the power given the li­
censing authority was not to be exercised arbitrarily 
or for some purpose of its own. The requirement 
that the applicant state the purpose of the parade 
or procession does not indicate an intent to permit 
the Commission to act capriciously or arbitrarily. 
The purpose may have a bearing on precautions 
which should be taken by municipal authorities to 
protect parades or the general public.

“ Section 1159, supra, provides that the Commission 
shall issue a permit ‘unless in its judgment the public 
welfare, peace, safety, health, decency, good order, 
morals or convenience require that it be refused.’ 
I do not construe this as vesting in the Commission 
an unfettered discretion in granting or denying per­
mits, but, in view of the purpose of the ordinance, 
one to be exercised in connection with the safety, 
comfort and convenience in the use of the streets 
by the general public. The standard to be applied 
is obvious from the purpose of the ordinance. It 
would be of little or no value to state that the 
[fol. 12] standard by which the Commission should be 
guided is safety, comfort and convenience of persons 
using the ^streets, and, due to varying traffic condi­
tions and the complex problems presented in main­
taining an orderly flow of traffic over the streets, if 
would be practically impossible to formulate in an 
ordinance a uniform plan or system relating to every 
conceivable parade or procession. The members of 
the Commission may not act as censors of what

Opinion



168

is to be said or displayed in any parade. If they 
should act arbitrarily, resort may be had to the 
courts. It is reasonable to assume from the facts in 
this case that the Commission would have granted 
appellant a permit to engage in the parade if such 
permit had been sought. A denial would have been 
warranted only if after a required investigation it 
was found that the convenience of the public in the 
use of the streets at the time and place set out in 
the application would be unduly disturbed.” (180 
So. 2d, 144)

We agree with and adopt the construction which Judge 
Johnson has placed on § 1159 and we agree with his 
observations to the effect that such construction finds 
[fol. 13] support in the case of State v. Cox, 91 N. H. 137, 
16 Atl. 2d 508, which case was affirmed, in a unanimous 
decision, by the United States Supremo Court.—Cox v. 
State of New Hampshire, 312 U. S. 569, 61 S. Ct. 762, 
85 L. Ed. 1049.

The New Hampshire Supreme Court, as is pointed out 
in Judge Johnson’s dissenting opinion, was called upon 
to determine the constitutionality of a state statute pro­
hibiting, among other things, a parade or procession on 
the streets without a permit from local authorities. The 
New Hampshire statute did not set out a standard for 
granting or refusing the permits The language of the 
New Hampshire court answering the assertion that the 
statute under consideration vested unwarranted control 
in the licensing authorities is quoted in Judge Johnson’s 
opinion and will not be repeated here.

In the New Hampshire case, the marchers were divided 
into four or five groups, each composed of about fifteen to

Opinion



169

twenty persons. Each group proceeded to a different part 
of the business district of the City of Manchester and 
then lined up in a single-iile formation and marched along 
sidewalks of the city in such a formation. The marchers 
carried banners and distributed leaflets announcing a meet­
ing to be held at a later time where a talk on government 
would be given to the public free of charge. The marchers 
had no permit. Despite that fact that the marchers were 
[fol. 14] carrying banners and distributing leaflets as 
well as marching, their conviction of parading without a 
permit was affirmed by the Supreme Court of New Hamp­
shire.—State v. Cox, supra.

In affirming the judgment of the Supreme Court of 
New Hampshire, the Supreme Court of the United States 
in Cox v. New Hampshire, supra, said in part as follows:

“The sole charge against appellants was that they 
were ‘taking part in a parade or procession’ on public 
streets without a permit as the statute required. They 
were not prosecuted for distributing leaflets, or for 
conveying information by placards or otherwise, or 
for issuing invitations to a public meeting, or for 
holding a public meeting, or for maintaining or ex­
pressing religious beliefs. Their right to do any one 
of these things apart from engaging in a ‘parade or 
procession’ upon a public street is not here involved 
and the question of the validity of an ordinance ad­
dressed to any other sort of conduct than that com­
plained of is not before us.

“ There appears to be no ground for challenging 
the ruling of the state court that appellants were 
[fol. 15] in fact engaged in a parade or procession 
upon the public streets. As the state court observed:

Opinion



170

‘It was a march in formation, and its advertising 
and informatory purpose did not make it otherwise.
. . . It is immaterial that its tactics were few and 
simple. It is enough that it proceeded in an ordered 
and close file as a collective body of persons on the 
city streets.’

*  #  #

“If a municipality has authority to control the 
use of its public streets for parades or processions, 
as it undoubtedly has, it cannot be denied authority 
to give consideration, without unfair discrimination, 
to time, place and manner in relation to the other 
proper uses of the streets. We find it impossible to 
say that the limited authority conferred by the li­
censing provisions of the statute in question as thus 
construed by the state court contravened any consti­
tutional right.” (312 U. S., 573-576)

We would like to point out that we do not construe 
§ 1159 as conferring upon the “commission” of the City 
[fol. 16] of Birmingham the right to refuse an application 
for a permit to carry on a parade, procession or other 
public demonstration solely on the ground that such ac­
tivities might tend to provoke disorderly conduct. v See 
Ejhvards v. South Carolina, 372 IT. S. 229, 83 S. Ct. 680, 
9 L. Ed. 2d 697.

We also hold that under § 1159 the Commission is 
without authority to act in an arbitrary manner or with 
unfettered discretion in regard to the issuance of permits. 
Its discretion must be exercised with uniformity of method 
of treatment upon the facts of each application, free from 
improper or inappropriate considerations and from un­
fair discrimination. A systematic, consistent and just

Opinion



171

order of treatment with reference to the convenience of 
public use of the streets and sidewalks must be followed. 
Applications for permits to parade must be granted if, 
after an investigation it is found that the convenience of 
the public in the use of the streets or sidewalks would 
not thereby be unduly disturbed.

Since the Court of Appeals of Alabama rendered its 
decision and judgment in the case here under review, 
the Supreme Court of the United States rendered a deci­
sion in a case wherein § 1159 was involved. See Wyatt 
Tee Walker v. City of Birmingham, decided by the Su­
preme Court of the United States on June 12, 1967, 388 
U. S. 307, 87 S. Ct. 1824, ------  L. Ed. 2d ------ . Applica­
tion for rehearing was denied on October 9, 1967. The 
[fol. 17] Walker case, supra, was in the Supreme Court 
of the United States on writ of certiorari to review the 
opinion and judgment of this court in the case of Walker 
et al. v. City of Birmingham, 279 Ala. 53, 181 So. 2d 493, 
wherein we affirmed the conviction of Walker and several 
others, including Shuttlesworth, of criminal contempt for 
violating a temporary injunction issued by the Circuit 
Court of Jefferson County, in Equity, which enjoined 
Walker, Shuttlesworth and others from engaging in, spon­
soring, inciting or encouraging mass street parades or 
mass processions or mass demonstrations without a per­
mit. The injunction enjoined the respondents from car­
rying on other activities which we do not think necessary 
to comment on here. In our case of Walker et al. v. City 
of Birmingham, 279 Ala. 53. 181 So. 2d 493, we did not 
expressly pass on the constitutionality of § 1159, although 
the petitioners, that is, Walker, Shuttlesworth and others, 
asserted that said § 1159 is void because it violates the 
First and Fourteenth Amendment to the Constitution of

Opinion



172

the United States. Based on that premise, the said jjeti- 
tioners also argued that the temporary injunction was 
void as a prior restraint on the constitutionally protected 
rights of freedom of speech and of assembly.

Our affirmance of the criminal contempt convictions 
was based on the principle “ that the circuit court had the 
duty and authority, in the first instance, to determine the 
[fol. 18] validity of the ordinance, and, until the decision 
of the circuit court is reversed for error by orderly re­
view, either by the circuit court or a higher court, the 
orders of the circuit court based on its decision are to 
be respected and disobedience of them is contempt of 
its lawful authority, to be punished. Howat v. State of 
Kansas, 258 U. S. 181, 42 S. Ct. 297, 66 L. Ed. 550.”

As we have heretofore indicated, the Supreme Court 
of the United States on June 12, 1967, affirmed our judg­
ment in Walker et al. v. City of Birmingham, 279 Ala. 
53, 181 So. 2d 483. The Supreme Court of the United 
States divided five to four. It appears from the Court’s 
opinion, written by Mr. Justice Stewart, and from the 
opinions of the dissenting Justices, that the petitioners in 
the Supreme Court of the United States again asserted 
that §1159 was void on its face. The dissenting Justices 
expressed the view that § 1159 is unconstitutional on its 
face.

However, the majority of the Court, as then consti­
tuted, did not hold that § 1159 is void on its face. The 
Court’s opinion contains the following language:

“The generality of the language contained in the 
Birmingham parade ordinance [§1159] upon which 
the injunction was based would unquestionably raise 
substantial constitutional issues concerning some of

Opinion



173

[fol. 19] its provisions. Schneider v. State, 308 U. S. 
147, 60 S. Ct. 146, 84 L. Ed. 155; Saia v. People of 
State of New York, 334 U. S. 558, 68 S. Ct. 1148„ 
92 L. Ed. 1574; Kunz v. People of State of New 
York, 34 U. S. 290, 71 S. Ct. 312, 95 L. Ed. 280. 
The petitioners, however, did not even attempt to 
apply to the Alabama courts for an authoritative 
construction of the ordinance. Had they done so, 
those courts might have given the licensing authority 
granted in the ordinance a narrow and precise scope, 
as did the New Hampshire Courts in Cox. v. New 
Hampshire [312 U. S. 579, 71 S. Ct. 762, 85 L. Ed. 
1049] and Poulos v. New Hampshire [345 U. S. 395, 
73 S. Ct. 760, 97 L. Ed. 1105], both supra. Cf. 
Shuttlesworth v. City of Birmingham, 382 U. S. 87, 
91, 86 S. Ct. 211, 213, 15 L. Ed. 2d 176; City of 
Darlington v. Stanley, 239 S. C. 139, 122 S. E. 2d 
207. Here, just as in Cox and Poulos, it could 
not be assumed that the ordinance was void on its 
face.”  (Emphasis supplied) (87 S. Ct., 1830)

The language which we have just italicized seems to us 
to be in direct conflict with the conclusion reached in the 
[fol. 20] majority opinion of the Court of Appeals of 
Alabama here under review.

We are of the opinion that the construction which 
Judge Johnson placed on § 1159 in his dissenting ox>inion, 
which we have in effect adopted, together with the con­
struction which we have placed on § 1159 in this opinion, 
requires a reversal of the judgment of the Court of 
Appeals here under review.—Cox v. New Hampshire, 312 
U. S. 569, 61 S. Ct. 762, 85 L. Ed. 1049; Walker et al.

Opinion



174

v. City of Birmingham, 388 U. S. 307, 87 S. Ct. 1824, 
------  L. Ed. 2d ------ .

We hold that § 1159 is not void on its face and that 
under the construction which we have placed on that 
section, it did not deprive Shuttlesworth of any right 
guaranteed to him under the First and Fourteenth Amend­
ments to the Constitution of the United States.

We are also in accord with the conclusion reached by 
Judge Johnson in his dissenting opinion to the effect 
that there is nothing in the record before us tending to 
show that § 1159 has been applied in other than a fair 
and non-discriminatory fashion. The record before us 
shows no violation of Yick Wo v. Hopkins, 118 U. S. 356, 
6 S. Ct. 1064, 30 L. Ed. 220.

The petitioners in the case of Wyatt Tee Walker et al. 
v. City of Birmingham, 388 U. S. 307, 87 S. Ct. 1824,
------ L. Ed. 2d —4—, decided by the Supreme Court of
[fol. 21] the United States on June 12, 1967, asserted 
that they were free to disobey the injunction because 
§ 1159, on which the injunction was based, had been ad­
ministered in an arbitrary and discriminatory fashion. 
In support of that contention those petitioners had sought 
to introduce evidence in the trial court to the effect that 
a few days before the injunction issued requests for per­
mits to picket had been made to a member of the City 
Commission and one request had been rudely refused 
and that this same official had later made it clear that he 
was without power to grant the permit alone, since the 
issuance of permits was the responsibility of the entire 
Commission. The Supreme Court of the United States, 
in answering that contention, said as follows: ^Assuming 
the truth of the proffered evidence, it does not follow 
that the parade ordinance is void on its face.”

Opinion



175

We see no occasion to deal at length with the holding 
or observation contained in the majority opinion of the 
Court of Appeals of Alabama to the effect that the evi­
dence was insufficient to show that Shuttlesworth had 
engaged in a parade on the “ streets or other public ways 
of the City of Birmingham without a permit.” The evi­
dence as delineated in the dissenting opinion of Judge 
Johnson, in our opinion, clearly shows that such a viola­
tion occurred.

We can see no merit in the position apparently taken 
in the majority opinion of the Court of Appeals of Alabama 
[fol. 22] to the effect that since the marchers paraded 
on the sidewalks of the City of Birmingham rather than 
in the streets, there had been no violation of said § 1159.

Section 2 of the General City Code of Birmingham of 
1944 reads in part:

“Sec. 2. Definitions and rules of construction.
“In the construction of this code and of all or­

dinances, the following definitions and rules shall be 
observed, unless the context clearly requires other­
wise.

*  #  #

“ Sidewalk: The term ‘sidewalk’ shall mean that 
portion of a street between the curb line and adjacent 
property line.”

It is appropriate to note that the statute under con­
sideration in the case of State v. Cox, 91 N. H. 137, 16 
Atl. 2d 508, prohibited a parade or procession on streets 
without a permit from local authorities. The parade or 
procession in which Cox was involved occurred on the 
sidewalks of the city of Manchester. Neither the Supreme

Opinion



176

Court of New Hampshire nor the Supreme Court of the 
United States took the position that the statute involved 
did not apply to sidewalks as well as to the portion 
of the street generally used by vehicular traffic. Cox’s 
[fol. 23] conviction of parading without a permit was up­
held by the courts.

We are aware ot the fact that ordinances somewhat 
similar to § 1159 have been declared unconstitutional in 
two recent federal cases. See Gayat v. Pierce (U. S. Court 
of Appeals, 5th Circuit), 372 P. 2d 658; Baker et al. v. 
Binder, decided in the United States District Court for 
the Western District of Kentucky at Louisville. That was 
a three-judge court, with one judge dissenting. No refer­
ence was made in the opinions delivered in those cases 
to Walker et al. v. City of Birmingham, 388 U. S. 307,
87 S. Ct. 1824, ------  L. Ed. 2d ------ . Perhaps we have
placed too much reliance on Walker et al. v. City of
Birmingham, 388 U. S. 307, 87 S. Ct. 1824, ------  L. Ed.

------> and on Cox v. Neiv Hampshire, 312 U. S. 569,
61 S. Ct. 762, 85 L. Ed. 1049. We may have misinterpreted 
the opinions in these cases. If so, we will no doubt be 
set straight.

In view of the foregoing, the judgment of the Court 
of Appeals is reversed and the cause is remanded to that 
court.

Reversed and Remanded.

Livingston, C. J., Goodwyn, Merrill, Coleman and 
Harwood, JJ., concur.

Opinion



177

Judgment

N ovember 9, 1967
T h e  S tate o f  A labam a— J udicial  D epartm en t  

T h e  S uprem e  C ourt of A labam a  
O ctober T erm 1967-68

6th Div. 291 
C /A  6th Div. 979

Ex parte: City of Birmingham, 
a Municipal Corporation

P etition  for W rit  of Certiorari to C ourt of A ppeals

(Re: Fred L. Shuttlesworth v. City of Birmingham)
W hereas , on January 20, 1966, the Writ of Certiorari 

to the Court of Appeals was granted, and said cause was 
set down for submission on briefs or oral argument; 
W h ereu po n ,

Comes the petitioner, by its attorney, and the Petition 
for Writ of Certiorari to the Court of Appeals being 
submitted on briefs and duly examined and understood 
by the Court, it is considered that in the record and 
proceedings of the Court of Appeals there is manifest 
error.

It i s  t h e r e f o r e  o r d e r e d  a n d  a d j u d g e d  that the judgment 
of the Court of Appeals be reversed and annulled and 
the cause remanded to said Court for further proceedings 
therein.

It i s  f u r t h e r  o r d e r e d  a n d  a d j u d g e d  that the costs in­
cident to this proceeding be taxed against the respondent, 
Fred L. Shuttlesworth, for which costs let execution issue.

[fol. 25]



178

Judgment

I, J. O. Sentell, Deputy Clerk of the Supreme Court 
of Alabama, do hereby certify that the foregoing is a 
full, true and correct copy of the instrument(s) herewith 
set out as same appears of record in said Court.
Witness my hand this 9 day of November, 1967.

/ s /  J. O. Sentell
Deputy Clerk Supreme Court of Alabama



179

In the

Supreme Court of Alabama 

Sixth Division 
No.................

[ fo l . 26 ]

Application for Stay

Fred L. Shuttlesworth,

vs.
Petitioner,

T he City of Birmingham,
A Municipal Corporation of the State of Alabama,

Respondent.

A pplication for Stay of Execution and Enforcement of 
J udgment and Sentence

By virtue of Section 2101(b) of Title 28, U.S.C.A. 
Petitioner, Fred I). Shuttlesworth, in the above styled 
cause, respectfully makes application to your Honor:
(a) To stay the execution and enforcement of the Judg­
ment of this Court for ninety (90) days from the ------
day of November, 1967, and (b) To recall from the Court 
of Appeals of Alabama, the certificate reversing and re­
manding the Judgment of that Court, to enable the peti­
tioner to apply for and obtain, if he can, a review of 
said cause by the Supreme Court of the United States.

Petitioner further prays that execution and enforce­
ment of said Judgment be stayed until the Supreme 
Court of the United States renders a final decision on 
the Petition for Certiorari, and if the same be granted,



180

until the Supreme Court of the United States shall render 
its final decision, affirming or reversing the aforesaid 
Judgment of the Supreme Court of Alabama.

In support of this application, petitioner shows unto 
Your Honors the following facts:

(1) Petitioner was tried and convicted of violation of 
Ordinance 1159 of the General City Code of Birmingham. 
Petitioner was sentenced to a term of ninety (90) days 
hard labor for the City of Birmingham, and a tine of 
Seventy-five ($75.00) Dollars.

[fol. 27] 2. Your petitioner appealed to the Court of
Appeals of Alabama, which Court reversed the Judgment 
of the Circuit Court of Jefferson County, and rendered 
a Judgment discharging petitioner.

3. The City of Birmingham filed a Petition in this 
Court for Writ of Certiorari, to review and revise the 
Opinion and Judgment of the Court of Appeals, which 
Writ was granted.

4. Petitioner, both in the pleadings filed below, and 
on the trial of this cause, and in the petition for Cer­
tiorari in this Court, have raised several important ques­
tions of federal constitutional law, arising under the First 
and Fourteenth Amendments to the United States Con­
stitution, but were decided adversely for petitioner.

5. That on final submission to this court the decision 
and judgment of the Court of Appeals of Alabama were 
reversed and rendered on November 9, 1967.

6. The Counsel for petitioner has informed him that 
several important questions of Federal Constitutional Law

Application for Stay



181

wore raised on his trial, and on application for Cer­
tiorari, to this Honorable Court, and petitioner has in­
structed counsel to seek a review of this cause by the 
United States Supreme Court. Counsel for petitioner 
is preparing an application for Writ of Certiorari to be 
Hied in the United States Supreme Court, in order that 
the said Court may review said questions of Federal 
(Constitutional Law, but that said petition and the record 
in this cause canot be prepared before this Honorable 
Court would otherwise issue its certificate of affirmance, 
and petitioner would be apprehended, fined and impri­
soned, and that petitioner should not be lined and im­
prisoned before the Supreme Court of the United States 
has an opportunity to act on his petition for Writ of 
Certiorari.

7. Truth of the matters set out above, and the good 
faith ot petitioner, in his avowal to seek review of this 
cause by the Supreme Court of the United States of 
America, is verified by the Affidavit of Counsel for peti­
tioner.

Arthur D. Shores
1527 Fifth Avenue, North 
Birmingham, Alabama

Orzell B illingsley, Jr.
1630 Fourth Avenue, North 
Birmingham, Alabama

[fol. 28]
Norman C. A maker
Jack Greenberg

10 Columbus Circle 
New York, New York

By /s /  Arthur D. Shores

Attorneys for Petitioner

Application for Stay



182

Application fur Stay

VERIFICATION

State of Alabama 
Jefferson County

Personally appeared before me the undersigned author­
ity for and in the said County and State, Arthur I). Shores, 
who is known to me, and who after being first duly sworn, 
says that he is counsel for the petitioner, in the above 
petition, and that the facts set forth therein are true to 
the best of his knowledge, information and belief, and 
that the above petition is tiled for the purposes set forth 
therein, and not for the purpose of delay or harassment.

/ s /  Arthur D. Shores

Sworn to and subscribed before me 
this 22nd day of November, 1967.

/ s /  Agnes N. Studemire

Notary Public



183

December 4, 1967
State of Alabama ...........................  Judicial Department

Supreme Court of A labama 
October Term 1967-68

6th Div. 291

Ex Parte: City of Birmingham, a Municipal Corporation

Petition for Writ of Certiorari to Court of Appeals 
(Re: Fred L. Shuttlesworth v. City of Birmingham)

Jefferson Circuit Court

The respondent, Fred L. Shuttlesworth, in the above 
styled cause, having made application for suspension of 
sentence and said application being duly examined and 
understood by the Court,

I t Is Hereby Ordered, Adjudged and Decreed that the 
Certificate of Reversal and Remandment to the Court of 
Appeals be recalled by the Clerk of the Supreme of 
Alabama.

I t I s F urther Ordered, A djudged and Decreed that the 
execution of the judgment of reversal is hereby stayed for 
ninety (90) days from the 4th day of December, 1967 to 
enable the respondent to apply for and obtain, if he can, 
a review of said cause by the Supreme Court of the United 
States.
[fol. 30] In the event the respondent does not apply to 
the Supreme Court of the United States for a Writ of 
Certiorari within ninety (90) days from the 4th day of 
December, 1967, the stay of execution of said judgment 
of reversal shall cease and terminate.

[fo l . 29 ]

Order Granting Stay



184

I t I s F urther Ordered, Adjudged and Decreed that the 
execution and enforcement of said judgment be further 
stayed in the event the respondent files a Petition for 
Certiorari in the Supreme Court of the United States to 
review said judgment of reversal and until the Supreme 
Court of the United States renders a final decision affirm­
ing or reversing the judgment of this Court.

I, J. O. Sentell, Deputy Clerk of the Supreme 
Court of Alabama, do hereby certify that the fore­
going is a full, true and correct copy of the instru­
ment (s) herewith set out as same appears of 
record in said Court.
Witness my hand this 4 day of Dec. 1967.

/ s /  J. 0. Sentell

Deputy Clerk Supreme Court of Alabama

Order Granting Stay



APPENDIX TO PETITION FOR WRIT OF CERTIORARI 
— OPINIONS OF THE COURTS BELOW

IN THE

(tort of %  lo tteb States
October Term, 1969 

No................

DEREK JEROME SINGLETON, et al., 

V .
P etition ers ,

JACKSON MUNICIPAL SEPARATE SCHOOL DISTRICT, et al.

CLARENCE ANTHONY, et al.,

V .

MARSHALL COUNTY BOARD OF EDUCATION.

P etition ers ,

LINDA STOUT, by her Father and Next Friend, BLEVIN STOUT, et al..

V .

JEFFERSON COUNTY BOARD OF EDUCATION, et al.

P e tition ers ,

DORIS ELAINE BROWN, et al.,

V .
P etition ers ,

THE BOARD OF EDUCATION OF THE CITY OF BESSEMER, et al.

BIRDIE MAE DAVIS, et al.,

V .
P etition ers ,

BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, et al. 

NEELY BENNETT, e t  al., and ALLENE PATRICIA ANN BENNETT, a minor,
b y  R. B. BENNETT, her Father a n d  Next Friend, 

V .
P etition ers ,

R. E. EVANS, et al. and BURKE COUNTY BOARD OF EDUCATION, et al.

SHIRLEY BIVINS, e t  al.,

V .
P etition ers ,

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

OSCAR C. THOMIE, Jr., et a l ,

V .

HOUSTON COUNTY BOARD OF EDUCATION.

P etition ers ,

JEAN CAROLYN YOUNGBLOOD, et al.,

V .
P etition ers ,

THE BOARD OF PUBLIC INSTRUCTION OF BAY COUNTY, FLA.

LAVON WRIGHT, e t  al.,

V.
P etition ers ,

THE BOARD OF PUBLIC INSTRUCTION OF ALACHUA COUNTY, FLORIDA, et al.



I N D E X
PAGE

Appendix 1—

Opinion Denying Preliminary Injunction (Filed 
May 10, 1968) ......................................................  la

Appendix 2—
Order (Filed July 6, 1968) .................................  8a

Findings of Fact and Conclusions of Law ......... 14a
Order (Filed July 22, 1969) .................................  35a

Appendix 3—

Opinion of the Court of Appeals for the Fifth 
Circuit (Dated June 26, 1969) ............ .............  43a

Appendix 4—
Order (Filed August 5, 1969) .............................. 52a

Opinion of the Court (Filed August 5, 1969) .... 54a

Appendix 5—
Memorandum Opinion of the Court (Filed Augijst 

5, 1969) .......................................................... .......  67a

Order (Filed August 5, 1969) ...............................  72a

Appendix 6—

Order (Filed August 1, 1969) ...............................  73a

Appendix 7—

Order (Filed June 20, 1969) .................................. 79a

Order (Filed August 22, 1969) .............................. 85a



11

PAGE
Appendix 8—

Order (Filed August 12, 1969) .............................. 88a

Appendix 9—

Order (Filed August 12, 1969) .............. ............... 98a

Appendix 10—

Order (Filed March 4, 1969) .................................. 105a

Order (Filed April 3, 1969) .................................. 108a

Appendix 11—

Order (Filed March 4, 1969) .................................  112a

Order (Filed April 3, 1969) .................................. 115a

Appendix 12—

Opinion in Court of Appeals dated December 1,
1969 ........................................................................................  117a

Appendix 13—

Judgment of Court of Appeals .............................  141a



APPENDIX 1

Opinion Denying Preliminary Injunction

(Filed May 10, 1968)

I n the

United States District Court 
For the Southern District of Mississippi

Derek Jerome Singleton, et al.,
Appellants,

versus

Jackson Municipal Separate School District, et al.,

Appellees.

On July 6, 1967, this Court entered an Order herein plac­
ing the Jackson Municipal Separate School District, Jack- 
son, Mississippi, under the desegregation of public schools 
provisions spelled out in the Jefferson decree, U.S. v. Jef­
ferson County Board of Education (1966), 372 F.2d 836, 
which Order contains provisions affecting new or expanded 
school construction.

The Board of Trustees of the Jackson municipal school 
district has current plans to add 22 classrooms and certain 
other facilities to four formerly Negro elementary schools. 
A motion filed March 18, 1968, allegedly on behalf of the 
Negro class of plaintiffs set forth in the original cause, asks 
for a preliminary and permanent injunction, to enjoin the 
Board from the proposed additions; to enjoin the Board 
to construct the additions at four formerly white schools 
instead; and to assign to those formerly white schools the 
overflow from the aforesaid formerly Negro schools.

A notice was filed on April 25, 1968 on the preliminary 
injunction to be heard on May 2, 1968. As bids on the in­



2a

tended construction are scheduled to be let on May 27 and 
June 3, 1968, the matter was given a priority hearing.

In the aforesaid Jefferson case, at page 889, the Fifth 
Circuit Court of Appeals offered the statement that new 
construction and improvements to the Negro school plant 
attract no white students and diminish Negro motivation to 
ask for transfer. This conclusion laid the foundation for 
the requirement of Paragraph VII of the Order herein, 
which provides:

“ The defendants, to the extent consistent with the proper 
operation of the school system as a whole, shall locate any 
new school and substantially expand any existing schools 
with the objective of eradicating the vestiges of the dual 
system.”

Plaintiffs contend that the proposed construction will 
have the sole purpose of perpetuating what are now de facto 
Negro schools in violation of Paragraph VII, and that un­
der the recent holding of the Fifth Circuit dated April 18, 
1968, in U.S.A. v. Board of Public Instruction of Polk 
County, Florida, No. 25768, not yet reported, the defen­
dants, before construction, are required to evaluate the 
factors relating to possible steps in eradicating the former 
dual system. Such an evaluation had not been made in that 
case by Polk County Board before choosing a location for 
a new school. The Court held that the Board must do so, 
and the ruling went no further.

Defendants maintain that such an evaluation has been 
made by the Jackson Board and that Paragraph VII must 
be read together with that portion of Paragraph VI of the 
order which provides, “ The physical facilities, equipment, 
course of instruction, and quality of instructional material 
shall be equal in all schools maintained by the district” , 
and that in careful consideration of the “ proper operation 
of the school system as a whole” , and mindful of the sig­

Opinion Denying Preliminary Injunction



3a

nificance of Paragraph VII, concluded that the proposed 
additions would best serve the immediate and future needs 
of the school children in the respective communities, and 
would not impede the break-up of the dual system, but to 
some extent would hasten its end by making available more 
class rooms to children of either race in expanding nearby 
areas.

Dr. Kirby Walker, Superintendent of Schools, was called 
as a witness by plaintiffs. His testimony, his deposition, that 
of Jesse L. Howell, director of personnel and pupil account­
ing, records, maps, and reports brought to the hearing by 
Dr. Walker, constituted the factual evidence. This evidence 
is undisputed and is related by the Court as its findings.

A printed booklet shows some fifty-six classroom build­
ings, exclusive of athletic stadiums, maintenance shops and 
warehouses, in the school system. Of these thirty-nine are 
elementary schools. For some twenty-years Jackson has 
experienced a growth in its school enrollment, requiring 
periodic construction programs financed by bond issues. Of 
the last bond issue in 1964 producing $5,800,000.00, aug­
mented by state funds, all has been used primarily in the 
construction of secondary schools, except a remaining tag 
end of approximately $750,000.00 earmarked for use in 
1968. After its use, no new buildings or other added con­
struction are contemplated until new studies are made of 
population growths, following the 1970 census, the determi­
nation of proposed extensions of the city geographical lim­
its, the use or changed uses of land adjacent to interstate 
highways now under construction in and around the city, 
zoning ordinances of the city and county, and the ultimate 
passage of new bond issues for such construction, all to be 
considered together with the provisions of Paragraph VII.

The use of the funds remaining from the 1964 bond issue 
was first considered in September 1967 by Mr. Walker and

Opinion Denying Preliminary Injunction



4 a

his staff of school principals, after the September enroll­
ment showed capacity or near capacity enrollment at sev­
eral elementary schools, including the four formerly Negro 
schools involved herein, Brown, Dawson, Morrison and 
Reynolds. Following a study of' population density reports, 
anticipated enrollments, and present facilities, this staff 
recommended to the Board of Trustees that classrooms and 
other facilities be added to these four schools and one other 
not involved herein. The plans were first submitted to the 
Board of Trustees in December 1967, some five months 
after the Order of July 6, 1967. Mr. Walker stated, and 
the Court so finds, that the Superintendent, staff and Board 
conducted their deliberations with Paragraph VII of the 
Order in mind, and consulted the Board’s attorneys in con­
nection with same. Estimates of costs and monthly progress 
reports have now been prepared, and an opportunity for 
bidding is to be made shortly. The names of the four for­
merly Negro schools, their current capacity, current enroll­
ment, number of rooms, and size of grounds are first listed 
below, with like information as to four formerly white 
schools listed last, which plaintiffs have brought into the 
controversy.

Opinion Denying Preliminary Injunction

Present
Current Current Number

School Capacity Enrollment of Rooms Acreage

Brown 910 904 26 2.1
Dawson 665 598 19 6.28
Morrison 645 649 20 5.8
Reynolds 1190 1172 34 12.
Bradley 455 340 13 8.
Galloway 635 372 17 2.
Poindexter 375 223 13 3.6
Watkins 640 281 22 17.



5a

Of the total enrollment in the elementary schools, 9,912 
students are in formerly Negro schools, and 11,491 students 
are in formerly white schools. Of the total classrooms in 
each of the above two groups, there is an average of 4 more 
students per class in formerly Negro schools than in for­
merly white schools, but the average for each is below the 
school system standards of 35 normal students per class 
room and 15 mentally handicapped or special students per 
classroom. The intended added classrooms are 6 each for 
Brown and Dawson, 6 rooms together with library and 
larger lunch room at Morrison, and 4 rooms with a library 
and auditorium at Reynolds. These additions will tend to 
equalize the number of students per classroom as between 
the two groups of schools, and to add to the formerly Negro 
schools other facilities, such as libraries, which they are 
now without. Additional acreage is also to be acquired at 
the four formerly Negro schools. No additional classrooms 
or facilities or acreage are scheduled for any of the four 
formerly white schools; nor until this action was filed had 
any been requested. As stated in the forepart of this opin­
ion, plaintiffs say no added construction should be had at 
any of the formerly Negro schools and that Negro students 
should be assigned to the formerly white schools where 
classrooms should be added to take care of the overflow from 
the formerly Negro schools, this despite the fact that under 
the present freedom of choice enrollment, no additional 
space is needed at the formerly white schools.

If the intention of plaintiffs is to compel pupil assign­
ment to the four previously white schools, the Board is pre­
cluded from so doing under freedom of choice. Nor does 
the Board furnish transportation to students living within 
the city limits, nor is it required to under the Civil Rights 
Act of 1964 (Title IV, Section 407 (a) (2)) and as held by 
U.S. v. Jefferson, 372 F.2d at Page 880.

Opinion Denying Preliminary Injunction



Ga

A comparison of Brown, Dawson, Morrison and Reyn­
olds, the former Negro schools, to the nearest formerly 
white schools, Bradley, Galloway, Poindexter, and Watkins, 
was shown. Brown is more than a mile from Galloway. 
Dawson is a little less than a mile from Bradley. Morrison 
is a mile from Watkins, and Reynolds is a mile from Poin­
dexter. To compel elementary age students to assume these 
additional distances, either by walking or other transporta­
tion, when additions at the schools nearest them are avail­
able, is neither reasonable nor practical. Plaintiffs add that 
buses furnished by the School Board to some students who 
live outside the city limits and who attend Dawson, pass 
right by Watkins. The answer to this is that during any 
appropriate choice period they could elect or could have 
elected to attend Watkins.

The Board showed that it gave consideration to at least 
two other practical factors; one, that population densities 
as compiled by the Board, particularly as to Reynolds, are 
growing in the area of the schools to be added to, and de­
creasing in the neighborhoods of the formerly white schools. 
The other was that the formerly white schools, being of 
much older construction than the formerly Negro schools, 
are structurally less suited to additions. As to Watkins, it 
is more than forty years old, and is on Sixteenth Section 
lands, the lease to which expires in five years. Poindexter 
is thirty-four years old. Bradley is twenty-three years old, 
and was first built by a county school board and has been 
enlarged once by the Jackson Board. None of these schools 
was originally built with the possibility of additions in 
mind. The cost of doing so would far outweigh the cost of 
the proposed additions.

Mr. Walker states that the Board does not maintain that 
additions to the formerly Negro schools will eliminate the

Opinion Denying Preliminary Injunction



7a

dual system, but that such construction will facilitate inte­
gration by making more classrooms available where they 
are now needed for white or Negro children. This is the 
practical problem faced by the Board in the utilization of 
its remaining funds and its proposed solution is “ consistent 
with the proper operation of the school system as a whole.” 
The Court agrees. See Griggs v. Cook, 272 F. Supp. 163. 

The motion for a preliminary injunction is denied.

s/ Dan M. R ussell , Jr. 
United States District Judge

Opinion Denying Preliminary Injunction

Dated: May 9, 1968



8a

APPENDIX 2 

Order

(Piled July 6, 1968)

I n t h e

U nited  S tates D istrict  C ourt 

F or th e  N o rth ern  D istrict  of M ississippi 

W estern  D ivision  

C ivil  A ction  N o. WC 6819

C larence  A n t h o n y , et a l .,
Plaintiffs,

v.

M arsh all  C o u n ty  B oard of E d u catio n , et  a l .,

Defendants.

This cause having come on to be heard upon the com­
plaint and motion for a preliminary injunction filed by 
plaintiffs and also upon the separate answers and other 
pleadings filed by both sets of defendants, and evidence 
having been presented to the court in support of the mo­
tion for preliminary injunction, and the court having con­
cluded that said motion should be in part denied and in 
part sustained in accordance with findings of fact and con­
clusions of law made by the court at the conclusion of this 
hearing, and in accordance therewith, it is :

O rdered :

As to H olly S prings M u n ic ipa l  S eparate S chool D is­
trict  :

(1) Except as hereinafter decreed, the plan of desegre­
gation adopted by defendants representing Holly Springs



9a

Order

Municipal Separate School District, a copy thereof attached 
as Exhibit “B” to the separate answer of said School Dis­
trict and its representatives, including amendments to H 8 
(subject to modification by this order) of such plan, is 
hereby approved until the further order of this court, and 
all injunctive relief seeking the adoption of a contrary plan 
or plans for pupil school attendance is denied.

(2) To eliminate unconstitutionality in the present op­
eration of the public schools within the Holly Springs Mu­
nicipal Separate School District, defendants, Holly Springs 
Municipal Board of Education, organized and existing 
under the laws of the State of Mississippi, Robert P. 
Crutcher, Dr. E. B. Warren, E. E. Greene, Dr. A. D. 
Jones, and Leslie Tomlinson, members of the Holly Springs 
Municipal Board of Education; and Joe F. Williams, Su­
perintendent of the Holly Springs Municipal Public Schools, 
are hereby preliminarily enjoined from maintaining, and 
continuing to maintain, in the public schools within said 
School District segregation by race of school faculties and 
public transportation by race of school children, and said 
defendants are ordered to submit to this court not later 
than the 12th day of August, 1968, a plan or plans supple­
mentary to their adopted plan of desegregation, Exhibit 
“B” to their answer as amended, whereby the following 
assignments, programs and arrangements will be instituted 
and placed into effect for the 1968-69 school year, effective 
upon the opening of school for such year, to-wit:

(a) The assignment of not less than 4 teachers of the 
negro race to Holly Highschool, of not less than 4 teachers 
of the negro race to Sally Cochran Elementary School, of 
not less than 4 teachers of the white race to Sims High-



10a

Order

school, and not less than 4 teachers of the white race to 
Frazier Elementary School. Defendants shall direct said 
teacher assignments or re-assignments regardless of any 
contrary term in teacher contracts; they shall be lawfully 
protected in the making of any re-assignments under the 
terms of this oi’der and any such assigned, or re-assigned, 
teacher shall be lawfully obligated to comply with the 
directions of defendants. Defendants shall set forth in 
its plan of faculty desegregation the name, race and teach­
ing station of each faculty member assigned in accordance 
with the terms of this order;

(b) The development of a school bus transportation plan 
based upon territorial zones or other natural grouping of 
pupil residence, which shall be without regard to race or 
the school selected by any particular child, to the end that 
all children living on designated bus routes, established 
according to pupil residence, shall be transported in a 
bus to either the Holly Highschool-Cochran Elementary 
School location or to Sims Highschool-Frazier Elementary 
School location. Insofar as practicable, overlapping routes 
shall be eliminated, and all children of whatever race shall 
be treated substantially alike as to seating capacity, bus 
scheduling, length of route, riding time, etc., dependent 
upon physical factors governing each particular bus route. 
Said defendants shall include in their transportation plan 
the name, race, and residence of each student proposed to 
be transported on each school bus, the name of the school 
to which such student will be transported, the designation 
and length of the route, the number and capacity of each 
bus, and other pertinent data to aid this court in deter­
mining that compliance has been made with this paragraph 
of its order.



11a

Order

As to M arsh a ll  C o u n ty  S chool D is t r ic t :

(1) Except as hereinafter decreed, the plan of desegre­
gation adopted by defendants representing Marshall County 
School District, a copy thereof attached as Exhibit “B” to 
the separate answer of said School District and its repre­
sentatives, including amendments to If 8 (subject to modi­
fication by this order) of such {dan, is hereby approved 
until the further order of this court, and all injunctive re­
lief seeking the adoption of a contrary plan or plans for 
pupil school attendance is denied.

(2) To eliminate unconstitutionality in the present op­
eration of the public schools within the Marshall County 
School District, defendants, Marshall County Board of 
Education, organized and existing under the laws of the 
State of Mississippi; William R. Hurst, Sidney Person, 
Mrs. Corrine Waldrip, Frank Davis, and Rev. Frank Wil­
son, members of the Marshall County Public Schools ; Stan­
ley V. Mullikin, Superintendent of the Marshall County 
Public Schools, are hereby preliminarily enjoined from 
maintaining, and continuing to maintain, in the public 
schools within said School District segregation by race of 
school faculties and public transportation by race of school 
children, and said defendants are ordered to submit to 
this court not later than the 12th day of August, 1968, 
a plan or plans supplementary to the adopted plan of 
desegregation, Exhibit “B” to their answer as amended, 
whereby the following assignments, programs and arrange­
ments will be instituted and placed into effect for the
1968-69 school year, effective upon the opening of school 
for such year, to-wit:

(a) The assignment of not less than 3 teachers of the 
negro race to Byhalia Attendance Center, at least one of



12a

Order

whom must be assigned to teach in grades 9 to 12; of not 
less than 3 teachers of the negro race to Potts Camp At­
tendance Center, at least one of whom shall be assigned 
to teach in grades 9 to 12; of not less than 2 teachers of 
the negro race to Slayden Attendance Center; of not less 
than 4 teachers of the white race to Henry Attendance 
Center, at least one of whom shall be assigned to teach in 
grades 9 to 12; of not less than 3 teachers of the white 
race to Sand Flat Attendance Center, at least one of whom 
shall be assigned to teach in grades 9 to 12; and at least 
one teacher of the white race to Mary Reed Attendance 
Center. Defendants shall direct said teacher assignments 
or re-assignments regardless of any contrary term in 
teacher contracts; they shall be lawfully protected in the 
making of any re-assignments under the terms of this 
order and any such assigned, or re-assigned, teacher shall 
be lawfully obligated to comply with the directions of de­
fendants. Defendants shall set forth in its plan of faculty 
desegregation the name, race and teaching station of each 
faculty member assigned in accordance Avith the terms of 
this order;

(b) The development of a school bus transportation plan 
based upon territorial zones or other natural grouping of 
pupil residence, which shall be without regard to race or 
the school selected by any particular child, to the end that 
all children living on designated bus routes, established 
according to pupil residence, shall be transported in a bus 
to the most conveniently located school or schools, as each 
child residing in a particular area may elect to attend. 
Insofar as practicable, overlapping routes shall be elimi­
nated, and all children of whatever race shall be treated 
substantially alike as to seating capacity, bus scheduling, 
length of route, riding time, etc., dependant upon the phys-



13a

Order

ical factors governing each particular bus route. Said 
defendants shall include in their transportation plan the 
name, race, and residence of each student proposed to be 
transported on each school bus, the name of the school to 
which such student will he transported, the dsignatioen 
and length of the route, the number and capacity of each 
bus, and other pertinent data to aid this court in determin­
ing that compliance has been made with this paragraph 
of its order.

This court shall take up and consider the sufficiency of 
the school faculty assignments and school bus transporta­
tion plans tiled by each defendant on the 16th day of August, 
1968, at 9 o’clock A.M. at Oxford, Mississippi.

The United States Marshal is hereby directed to serve 
certified copies of this order on each of the defendants 
named herein and to make return of service as herein 
ordered on the original hereof.

This, the 6th day of July, 1968.

W il l ia m  C. K eady

Chief Judge
United States District Court



14a

(Filed July 6, 1968)

P R O C E E D I N G S

By th e  C ourt :

At this time the court makes its findings of facts and 
conclusions of law on the application of the plaintiffs for 
a preliminary injunction. I will treat on my finding of 
facts first the Holly Springs Municipal Separate School 
District and then the Marshall County School District, and 
the conclusions of law will be equally applicable to both 
districts.

The Holly Springs Municipal Separate School District 
consists of the municipality of Holly Springs and a large 
rural contiguous area comprising approximately 180 square 
miles. It had a total enrollment, during the year just 
closed, in its public schools of 2,473, of whom 1,868 were 
Negro and 875 were white students. Thus according to 
race there are more than two Negro children for each 
white child attending these public schools.

The Holly Springs public schools consist of two previ­
ously all-white and two all-Negro schools. The Sims High 
School, attended all by Negroes, has grades 7-12 and has 
a student body of 750. The Frazier Elmentary School, an 
all-Negro school, has an enrollment of 1079, with grades 
1-6. Both of these schools are located on the same site.

The Holly High School has a student body of 425 in 
grades 7-12, of which 8 are Negroes. The Sally Cochran 
Elementary School has a student body of 471, with grades 
1-6, of which 13 are Negro students. The Holly High and 
Sally Cochran schools are located on the same site. The 
two school attendance centers are located within one mile 
of each other.

Findings of Facts and Conclusions of Law



15a

Prior to September, 1965 these schools were completely 
segregated according to race. For the school year 1965 
66 a freedom of choice plan was first adopted, and it had
W e lfa T T n  °fi ^  Dcpartment »t  Health, E d u c a tio n  and

.  , oo c I  y e a r  Ule p Isn  ™  fa  o p e ra tio n  a p p r o r i-  
m a te ly  20 stu d en ts o f  the N e g r o  race a tten d ed  the fo r m e r ly

a ll-w h ite  sc h oo ls , b u t no w hite s tu d e n ts  a tten d ed  the p r e v i-

r  7 ?  ;  T , SCh° ° 1S' ™ S remained for the second
1 %  6« or PT  8 ° Perati0" ' Du™ « the lost concluded,
I  ! \ 211Negr° Stlldents attended the previously all-

white schools in Holly Springs in the proportions I have 
already stated. To this date no white students have at-
tended either the Sims High School or the Frasier Ele. 
mentary School.

Li May, 1967 the Department of Health, Education and

slm m t t ; V r : tanCe t0 the HolIy SPrings Municipal epaiate School District due to an alleged lack of compli­
ance with HEW guidelines. The school board or district 
did not contest this action, nor was any appeal taken from 
tnat rulmg.

The crux of the matter at that time appeared to depend 
on w ether there would be some measure of faculty de-
T T  T  and’ alth° Ugh tGacher Surve^  were made by school authorities looking to that end and talks were had
w^h representatives from the Department of Justice, noth­
ing resulted. In only two instances has faculty desegrega­
tion occurred in the Holly Springs public schools. One was 
the case of a librarian of the Negro race employed as a 
Parttime librarian at the Cochran Elementary School The 
other case was a white teacher of Spanish who taught 
c asses at both Sims High School and Holly High School 

Still operating under a freedom of choice plan, the school 
district m May, 1968 sent out freedom of choice forms to

Findings o f Fools and Conclusions of Law



16a

all of the students, on which replies have been received 
from approximately 2,500 pupils, leaving roughly 300 out­
standing responses yet to he heard from.

On the basis of these known replies 60 Negro students 
have signified their intention for the year 1968-69 to attend 
the previously all-white Holly High School and Cochran 
Elementary School. To date no white students have sig­
nified their intention to go to all-Negro attended schools.

The evidence shows that the school hoard and its super­
intendent have met and have given careful consideration 
to their obligations and duties, and their position m this 
court is that no plan of school attendance can feasibly work 
in this district other than one based on freedom of choice. 
It appears that they have considered alternative plans, 
for the zoning of attendance areas and also for paiiing
of certain schools according to grades.

The evidence shows that, as their studies indicate, be­
cause of the high degree of residential mixing that prevails 
throughout the Holly Springs District and considering the 
capacity of the schools involved at the two attendance cen­
ters under consideration and the natural territoi ial bound­
aries that will have to be logically followed to produce 
either a zoning plan or a pairing plan, there would under 
either method at once result a heavy preponderance of 
Negro pupils to white pupils in practically every school in 
the district.

The court refers as evidentiary basis to Defendants’ Ex­
hibit No. 7, prepared by the school superintendent, showing 
that the only practical and logical division or zone line for 
the two attendance centers within Holly Springs would he 
one which would follow Highway 7 on the north and south 
of the city and Memphis Street from north to south to 
the intersection of Van Dorn, westward to Craft Street,

Findings of Facts and Conclusions of Law



17a

and Craft Street south until it becomes Highway 7. This 
major thoroughfare taken as a division line is shown in 
red on the map introduced by the school superintendent.

West of that line under a zoning concept would lie the 
Sims-Frazier school complex with a capacity of 1,680 stu­
dents. East of that line would lie the Holly-Sally Cochran 
school complex with a school capacity of 1,107.

By using that line, which appears to this court to be 
necessarily controlled by the school capacity of the two 
complexes, or by the use of any other line which would 
have any logical relevance, it results from examination 
of Defendants’ Exhibit No. 7 that for those children going 
to the zone west of the line indicated there would be an 
extremely heavy preponderance of Negro students, better 
than three to one, almost three and a half to one. By the 
same token there would result for the attendance in the 
Holly-Sally Cochran School lying east of that line a ma­
jority, although not as preponderant but nevertheless a 
majority, of Negro students to white students. The ratio 
would be 1.3 Negro to one white student.

If pairing of schools as to certain grades were resorted 
to, the evidence also shows, from the same exhibit, that 
there would result from the use of school buildings in a 
sensible fashion in so far as education is concerned, that 
is, from the standpoint of the composition and number 
of grades and utilization of school plants, a preponderant 
majority of Negro students over white students in every 
school.

Of course these results stem from the basic fact, which 
remains unchanged, that in this district there are more 
than two Negro children for each white child of school age. 
So it stands to reason that in the use of any formula based 
either on zoning or pairing there will result a differential

Findings of Facts and Conclusions of Law



18a

not materially varying in degree because, as it appears 
from this undisputed evidence, these children live indis­
criminately throughout the county and they are fairly well 
distributed as to ages, in so far as concerns the balance 
between the two races. This appears from the uncontra­
dicted evidence in this case. There is no assault made by 
the plaintiffs upon those hard, realistic, practical facts.

Now, in approaching the question the court finds that 
there are various matters that need to be assessed and 
considered regarding the feasibility of either of these plans 
as a satisfactory alternate to the freedom of choice plan. 
The superintendent was particularly articulate, in the opin­
ion of this court, in that his experience had validated 
studies that for whatever may be the cause there is a 
substantially different achievement rate between white and 
Negro children. It is a difference which seems to widen 
as the child attains greater age.

In any event, it is clear from this evidence that an edu­
cational program of any type has to be geared to the 
average student group, and in considering a plan for Holly 
Springs based either upon the attendance zoning or pair­
ing, the educational effort, or the thrust of the curriculum, 
would have to be directed to the average group. Under 
either plan this would be necessarily lower than under a 
freedom of choice plan. It would constitute a real and 
serious injury to the educational function of the Holly 
Springs schools if their educational curriculum has to be 
drastically lowered.

This court finds from the undisputed facts that such 
would be the case under either an attendance zoning or 
pairing of schools plan.

Also it is relevant to consider, and the court finds, that 
on a basis of any available zoning or pairing plan in the

Findings of Facts and Conclusions of Law



19a

Holly Springs District, considering the necessary results 
of the school population, the percentage of Negro students 
to those of the white race would clearly pass and exceed 
all tolerance standards known to the educational field, 
which are sometimes referred to in this evidence as trigger 
points.

When these tolerance standards are passed, this court 
is convinced there will result a loss in great numbers 
of white students from heavily integrated schools. This is 
a basic fact, one which this court does not have the time 
nor the wisdom to analyze, but its reality can not be 
ignored. Whites, regardless of what section of the country 
in which they live, and particularly in Holly Springs, flee 
and will flee from a public school operated under condi­
tions found intolerable because of a disproportionately 
high racial stratum. Without elaborating the point, sub­
stantial and uncontradicted evidence exists that white 
students will not long remain in a school system in all 
schools of which Negro pupils heavily predominate.

This court finds that to force such results at this par­
ticular juncture in the history of the school district either 
through zoning or pairing will produce, not integrated 
schools but all-Negro schools. The beneficial effects deemed 
to flow from a biracial public school system would thus 
be denied school children of both races.

These considerations have been regarded by the school 
district, and which this court accepts, as valid, highly 
persuasive factors overriding all other considei'ations, in 
concluding that freedom of choice, where it is honestly 
administered and carried out, is the most feasible method 
for this district to achieve the end result of keeping within 
a unitary school system the maximum number of educable 
children of both races. Strengthening this conclusion is

Findings of Facts and Conclusions of Laiv



20a

the added fact, as developed from this evidence, and which 
this court finds to be valid, that should an immediate zon­
ing and pairing in the Holly Springs schools bo instituted, 
with the likely and anticipated loss in great numbers of 
white children from those schools, there would be a 
genuine loss of community support for the public school 
operation.

This court finds from this evidence and judicially knows 
that local community support is vital for the morale, the 
dignity and worth of a public school system. Where there 
is no pride or backing on the part of the community in 
its public schools, there result inevitably inferior, neglected 
schools. Conversely, where the community’s interest is 
strongly maintained in its local schools, such schools 
are motivated and are able to do a better and more effi­
cient job of public education.

Intelligent planning must be directed toward strengthen­
ing the public schools in these days of ever increasing 
responsibility thrown upon the average citizen of what­
ever race to make democratic processes more effective, and 
to that end there is no group that has a higher or greater 
stake than the white community for the successful opera­
tion of its public school system.

I find as a fact from this evidence, which is largely un­
contradicted on this phase of the case, that the student 
freedom of choice plan is a plan which, when weighed with 
its alternatives, which I have discussed, promises the 
most meaningful progress toward achieving desegrega­
tion. That is not to deny the obvious fact that there would 
be an immediate and substantial statistical integration 
under either a zoning or a pairing plan, but mere statistics 
would be of little value in the face of wholesale withdrawal 
by white students from such heavily mixing as this court 
finds will take place here.

Findings of Facts and Conclusions of Law



21a

Therefore, the school board at Holly Springs has met 
the heavy burden resting upon it, whatever its record for 
past performance might be, so as to at this time justify 
a valid preference for a freedom of choice plan. At this 
particular juncture that plan will do more, in the opinion 
of this court, from the standpoint of feasibility to ac­
commodate all interests and to consolidate public support 
importantly needed for the continuance of these schools 
as they face future desegregation likely to occur at a 
strikingly increasing rate under the freedom of choice 
plan.

No one can adequately foresee those changes in im­
portant social attitudes on the part of pupils, parents and 
the public flowing from adjustments which relate to an 
effective and working freedom of choice plan, but it can not 
be overlooked that the rights of Negro children to enjoy 
an improved education in a unitary, nondiscriminatory sys­
tem of schools are bound up in this change of attitude on 
the part of the white community.

In conclusion on this aspect of the findings, the school 
board at Holly Springs must recognize that freedom of 
choice is not, and can not be, an end of itself but is a 
transitional method yet needed in order for this district 
to be able to carry the burdens inherent here in success­
fully converting to a biracial, unitary school system. So 
much for the freedom of choice plan in the Holly Springs 
schools.

I now find facts as to the two other important aspects 
of the operation of this school system, first the faculty 
and next the bus transportation.

At a time when the board of trustees was having dis­
cussion with representatives of the Department of Jus­
tice about some measure of faculty desegregation a teacher

Findings of Facts and Conclusions of Law



22a

survey was conducted during the summer of 1967, as I 
recall, more than a year ago, at which time the teachers 
of the Holly Springs schools were asked whether for the 
good of the district they would he willing to teach in a 
school other than the one that they were presently as­
signed to. A substantial number, or approximately 40% 
of those professional people, said that for the good of the 
district they would teach at a different school.

Except for the one instance of the part time librarian 
at Sally Cochran and also except for the divided efforts of 
the white Spanish teacher there has been no faculty de­
segregation.

Better than 60% of these schools’ funds for the payment 
of teachers’ salaries comes from the State of Mississippi. 
The balance is raised by local taxation. These defendants 
are agents of the State in the selection of teachers and as­
signment of teachers and they are under a constitutional 
duty to desegregate the faculty in these schools operated 
under the freedom of choice plan. The court finds that 
there is a factual basis for discrimination having been 
practiced in the selection of the faculty of the Holly Springs 
schools which has been unconstitutional.

In these schools there is a full time instructional staff of 
104 people. They have, except for the two instances I have 
noted, been distributed to schools where the predominant 
race was the race of the teacher. The court finds from the 
facts in this case that these defendants can achieve a greater 
measure of faculty desegregation and that this can be done 
with the teachers that they have under contract for the year 
beginning in September.

The court further finds that efforts can he made, in the 
event those arrangements are not altogether and 100% 
possible, to recruit teachers at this time to meet this affirma­
tive obligation for faculty desegregation.

Findings of Facts and Conclusions of Law



23a

I next go to the question of bus transportation. Until 
recently a considerable number of students, called “county 
students”—about 228 in number—have been transported 
from the area of Marshall County School District into the 
Holly Springs Separate Municipal School District. That 
aspect of the case need not concern us because the evidence 
shows here that the Marshall County Board of Education 
has, for reasons of economy and cost, terminated that ar­
rangement, so that the bussing of 228 children from the out­
side county district into the municipal school district need 
not concern us at this time.

However, Holly Springs does transport a substantial 
number of school children. As 1 have indicated earlier, it 
has a large territorial expanse. In many ways it is as much 
a rural district as it is a city district. It transports 281 
children into the Holly High-Sally Cochran complex and 
1,175 into the Sims-Frazier School complex.

This district has 18 busses. The evidence shows that 
these bus routes, as heretofore composed and constructed, 
all tied into a particular school and with the consequence 
that there is considerable overlappng of routes. The trans­
portation map of Holly Springs in evidence shows the ex­
tent of this overlapping. All of the official information 
from the superintendent’s office indicates that there are two 
bus routes, one designated as Negro bus routes and the 
other designated as white bus routes. These routes are 
shown on Plaintiffs’ Exhibit 1, the so-called Negro city bus 
routes being indicated in black and the so-called white city 
but routes being indicated in red. It is apparent from this 
evidence that they have existed a long time and that they 
were developed for a truly dual, segregated school system.

100% of the money to defray the cost of that public trans­
portation comes from the State of Mississippi, and these

Findings of Facts and Conclusions of Law



24a

defendants in every sense of the word are acting as agents 
of the State in administering school transportation funds 
and the transportation equipment.

The evidence shows that to the extent there are children 
of the Negro race attending either Sally Cochran or Holly 
High they ride, I believe, two busses that take them and 
presumably white children to those two schools. This evi­
dence shows that that is the only variation from racial pat­
terns in the school bus transportation plan. Again we have 
residential mixing of the children throughout the district, 
and those who are legally entitled to a free bus ride—under 
Mississippi law they must be children living outside the 
city limits and residing a mile or more from the nearest 
school—should freely ride. There is no reason not to freely 
allow them to.

The court finds from the facts in this case that these bus 
transportation routes preexisted the freedom of choice plan 
and there has been no affirmative effort by these defendants 
to implement them in the light of the requirements of con­
trolling federal cases. The court finds that there is an un­
constitutional arrangement of school busses according to 
race.

I next pass to findings of fact with respect to the Marshall 
County School District. In the interests of brevity the basic 
facts in this county school district mirror to some extent my 
fact findings for the Holly Springs schools. There are some 
differences which will be noted as I now proceed to take up 
this countvwide school district. It is a district that includes 
all of Marshall County except for the land territory included 
within the Holly Springs District. It has a current year’s 
school population of 4,799 pupils, of whom 3,606 are Negro 
and 1,193 are white.

There are some all-white schools in this district. For ex­
ample, there is Potts Camp Attendance Center, grades 1-12,

Findings of Facts and Conclusions of Law



25a

with 421 students, Slayden Attendance Center, grades 1-12, 
with 322 students. There are some all-Negro schools. For 
example, Henry Attendance Center, grades 1-12, with 1,685 
students, Sand Flat Attendance Center, grades 1-12, with 
1,111 students, Mary Reed Attendance Center, grades 1-8, 
with 263 students, and Galena Attendance Center, grades 
1-8, with 525 students.

The only school or attendance center in this county school 
district with any biracial composition is the Byhalia At­
tendance Center, grades 1-12, with 22 Negro students there 
out of a total of 472 enrolled pupils.

This district also adopted a freedom of choice plan in 
August, 1965 at about the same time Holly Springs adopted 
its. The plans were substantially the same in their general 
undertaking. The first year of the plan’s operation six 
students of the Negro race attended the former all-white 
school at Byhalia, the second year 14, and the third year, 
the year just closed, 22 Negro students attended the Byhalia 
School. At no time have white students attended any of the 
all-Negro schools.

Still operating on the freedom of choice plan, this district 
as late as May, 1968, as I recall, sent out questionnaires to 
the parents requesting an election or choice of schools to 
attend for the session beginning in September, 1968. An ex­
cellent response has already been received to these question­
naires. On the basis of the known replies it is anticipated 
that 64 Negro students will signify their intention to attend 
previously all-white schools. There is reason to believe 
that that number will increase when all of the replies have 
been received.

In the interest of its obligations the board of trustees 
of this district and its superintendent have met and have 
considered their obligations and duties to adopt a consti­

Findings of Facts and Conclusions of Law



26a

tutional plan for school attendance in those schools that 
are widely scattered throughout the county. The maps in 
evidence show that the Henry High Attendance Center 
and Byhalia are about a mile apart physically, the Slay- 
don and Sand Flat Attendance Centers are about three 
miles apart, and the Potts Camp and Mary Reed Attend­
ance Centers down in the southeast part of the county are 
about a mile apart, and the Galena School is off by itself 
in the southwest part, roughly speaking, of the county; but 
they are widely scattered so as to serve children that come 
from a large land mass both north and south of the Holly 
Springs Separate School District, and also somewhat to 
the west of it.

The evidence shows that if a zoning plan were adopted 
in this district based on school classroom capacity and on 
logical school division lines marked by highways or other 
natural divisions separating elements of population from 
one part of the county to the other, that the results in so 
far as the composition of each one of these schools would 
he even more strikingly deleterious, shall we say, than 
would be true with respect to the Holly Springs municipal 
schools.

Referring to Defendants’ Exhibit 12, put in by the su­
perintendent Mullikin, and to the map in evidence and 
to the evidence, which is uncontradicted, that this is a fair 
and logical arrangement according to zones, this court 
finds fliat there would exist at the Slayden Attendance 
Center a majority of three to one Negro pupils to white, 
at the Sand Flat Center the same majority, three to one, 
at Galena a majority of ten to one, Negro over white, at 
Mary Reed a majority of three to one, Negro over white, 
at Henry a majority of four to one, Negro over white, at 
Byhalia a majority of two to one, Negro over white.

Findings of Facts and Conclusions of Law



27a

Only in the Potts Camp area would there be a variation, 
for there zoning would produce a majority of whites, one 
white to every statistical one-lialf Negro student.

Defendants’ Exhibit No. 13 would illustrate virtually 
the same or not radically different results if a pairing plan 
were used. Here again these results are to be naturally 
expected when one takes into account the overall nearly 
three to one ratio in Marshall County rural areas of Negro 
to white.

The evidence with respect to this school district, although 
not as well articulated as in the case of Holly Springs, 
nevertheless points the way to the same factual conclu­
sions : that at this time there is only one feasible, workable 
method for operating the public schools in the Marshall 
County School District. That plan should be pursued, it 
must be pursued, for the benefit of both the Negro and the 
white pupils. I f that plan is rejected in favor of a plan 
requiring immediate zoning or pairing there will result 
first the definite educational injury to the system that I 
mentioned earlier, caused by the lowering of curriculum 
standards to meet the average of the students in each 
class. Since we are here dealing with schools, that con­
sideration is of utmost importance to this court. Likewise 
we have applicable to this district the well known fact that 
here, even more than in Holly Springs, the known tolera­
tion points in racial mixing of classes will be vastly ex­
ceeded. Here, even more than in Holly Springs, there 
will result mass departure of white pupils from these pub­
lic schools.

These are attitudes which can not be changed overnight, 
and while these attitudes may not be inflexible or neces­
sarily permanent in the minds of large segments of white 
people, they do exist at this time so as to cause this court

Findings of Facts and Conclusions of Law



28a

to conclude that in Marshall County immediate pairing or 
immediate zoning would result in all-Negro student bodies.

The considerations of a factual nature I touched upon 
with respect to Holly Springs apply here in so far as the 
freedom of choice plan is concerned, and I find from these 
facts that the freedom of choice plan, as presently insti­
tuted, is the only feasible plan. I find that when I assess 
and evaluate alternative plans, the institution of any such 
in this district at this time will be injurious to the rights of 
the school children of both races, particularly will it delay 
the day when the school children of the Negro race will 
achieve those salutary benefits deemed to flow from a truly 
biracial and unitary school system.

I also conclude from the evidence here, largely uncon­
tradicted, that there would be a loss of confidence on the 
part of the public in the Marshall County public schools, 
with a weakening of public support and a loss of pride in 
those schools; that this would come at a time when to this 
county it is most important that there be an increased 
faith in the public school system as an instrument for 
understanding and working out problems that press upon 
people, of whatever race, in democratic processes.

It is reasonable to believe, and I so find from this evi­
dence, that the further operation of the freedom of choice 
plan in these schools will promote at a strikingly increas­
ing rate desegregation of a biracial nature that can be 
tolerated and that will result to the best interest of these 
schools and the children who attend them.

I next pass to faculty assignments. The evidence here 
is uncontradicted that there has been no faculty desegre­
gation in any of these schools. Approximately 60 to 70 
per cent of the operational budget of these schools which 
pays the teachers’ salaries comes from the State of Missis­

Findings of Facts and Conclusions of Law



29a

sippi. The remainder of that money is derived from local 
taxation for the public funds. These defendants, in the 
operation of these schools, are representatives of the 
State and they are subject to constitutional duties.

In this county school system there are 155 full time 
teachers paid with public funds. Because of the composi­
tion of the student body we find that there are about two 
and a half colored teachers to every one white teacher, 
there being 100 Negro teachers and 45 white teachers in 
this system.

It was put to this district over a year ago that there was 
an obligation to have a measure of faculty desegregation. 
At that time the superintendent of these county schools 
conducted a questionnaire or survey among his teachers 
to determine whether they would consider teaching in a 
school which is predominately of a race other than their 
own. There were a number of replies to this questionnaire. 
45 teachers answered yes, 74 teachers answered no. The 
affirmative answer was 37.88.

I do not know from the record how many of those 
answering yes were of the white or the Negro race. Pre­
sumably the greater part of those answering yes were of 
the Negro race and not of the white race. This court 
finds that there is evidence in this record to believe that 
white teachers who are professional people are willing 
to teach in schools other than of their own race and that 
those teachers can be found in Marshall County, Missis­
sippi.

From these facts there is no conclusion this court can 
reach other than that there is a practice of unconstitu­
tional segregation with respect to teachers.

I now pass to Marshall County school bus transporta­
tion. School bus transportation is big business for this

Findings of Facts and Conclusions of Law



30a

district. Each school day this district transports 4,506 
children to these schools. Of that number 983 are white 
students, 3,523 are Negro students.

The district owns 68 busses to transport these children 
and is about to acquire 15 new busses.

Bus plans for the transportation of the school children 
in this district have existed for some years. It is reason­
able to conclude, and this court finds, that they pre­
dated the freedom of choice plan, which was adopted in 
August, 1965, that the only variation in that school bus 
plan has been to utilize four busses to take to the Byhalia 
school some 22 children of the Negro race. Those children 
who have elected to go to that school ride in company with 
white children. As regards the remainder of the school 
children of this county, they are transported according to 
race and according to the school that they attend.

There is a very great overlapping of these bus routes, 
as plaintiffs’ exhibit would show, and from the informa­
tion that is filed in the superintendent’s office and sub­
mitted to the State there are separate bus routes for these 
county busses. Green is the color for the routes that indi­
cate the busses moving to the all-Negro schools, carrying 
Negro passengers only. Yellow is the color indicating 
the bus routes moving to the white county schools, carry­
ing all-white except 22 Negro students attending Byhalia.

It is not necessary for this court to go into the de­
ficiencies that may or may not exist in the equipment and 
quality and riding time of the busses provided under this 
dual plan. Sufficient is it to say that from this evidence 
there is only one conclusion that can be honestly drawn 
and that is that there exists a public transportation sys­
tem provided for school children by the State of Missis­
sippi which is based upon segregation and an uneonstitu-

Findings of Facts and Conclusions of Law



31a

tional application of those funds and that equipment to 
the transportation of school children here.

That concludes my findings of fact. If I have been 
verbose it is only because of my feeling of the importance 
of this case to the people of this county, as well as my 
obligation to find these facts in this case.

Following a recess that I will now declare I shall give 
my separate conclusions of law and announce my decision.

The court is now in recess until 11:25.

B y t h e  C ourt C r ie r :

The court is now in recess until 11:25.
(At 11:05, a.m., a recess was taken until 11:25, a.m.)

By th e  C o u r t :

Conclusions of law which will he common to both of 
these districts may be stated as follows: the basic legal 
issue is the constitutionality of the freedom of choice plan.

That plan has been specifically approved by the Fifth 
Circuit Court of Appeals, the court under which I operate, 
in the case of The United States vs. Jefferson County Board 
of Education, decided in an en banc opinion March 9, 1967, 
and incorporating substantially the same provisions as 
these plans of both of these defendants now before the 
court.

On May 27, 1968 in the United States Supreme Court in 
the case of Green vs. County School Board, there arose a 
very serious critical examination of the feasibility of the 
freedom of choice plan and it was rejected for New Kent 
County, Virginia. It is my obligation to pay heed to what 
was said by the Supreme Court of the United States in the 
Green case, and to carefully assess and weigh the feasi­
bility of other alternative plans against the freedom of

Findings of Facts and Conclusions of Law



32a

choice plan for the reason that the high court observed the 
rate of desegregation was apparently too slow under the 
freedom of choice plan and it imposed the burden of af­
firmative action upon parents and pupils more than upon 
the school board, where the obligation should rest.

In these cases I have as best I can assessed the alterna­
tives to the freedom of choice plan and I have to the best 
of my ability tried to weigh and evaluate the evidence 
from the standpoint of which would be more feasible in 
promoting meaningful desegregation as applied to the 
terms of the Green decision.

The Green decision did not rule out freedom of choice 
as unconstitutional but left to the trial court the obliga­
tion and duty, as well as privilege, of looking at the evi­
dence in a particular local school district and concluding 
what the constitutional arrangements ought to be.

Under that authority I find, as a conclusion of law, that 
the freedom of choice plans for the attendance of children 
in those two school districts as presently adopted are legal, 
are constitutional, and that there is no cause for injunc­
tive relief to adopt a contrary plan or plans based upon 
zoning or pairing.

However, in so concluding I am fully aware of the fact 
that under the Green case there is thrust upon the District 
Courts an even greater duty of giving a more critical 
consideration to the progress of any school district in 
eliminating its previously state-imposed segregated sys­
tem of education. On all of the facts in this case I hold that, 
under the command of the Green case, the most feasible 
method of bringing meaningful desegregation to the school 
districts now before the court will be under the freedom 
of choice plan, which is to be honestly and faithfully admin­
istered and carried out.

Findings of Facts and Conclusions of Law



33a

My second conclusion of law relates to faculty desegrega­
tion, which exists only in very small degree in the Holly 
Springs Municipal School District and not at all with 
the Marshall County School District. In this respect the 
desegregation plans under which these defendants have 
operated since August, 1965 have specifically called for the 
elimination of faculty segregation but there has not been 
performance to match those words. There has been oppor­
tunity, but which went without taking. I conclude that 
these school boards, these defendants here, are both under 
the affirmative duty at this time to take action to desegre­
gate the faculties of these schools subject to our jurisdic­
tion, and as my yardstick and guideline for that require­
ment I feel obliged to follow the principles and reasoning 
laid down by the Fifth Circuit Court of Appeals on June 
3, 1968 in the case of The United States v. Board of Edu­
cation of the City of Bessemer.

In that case the school district had long been in litiga­
tion of this type and had falteringly achieved only a 
modicum of faculty desegregation. The Fifth Circuit Court 
in very clear language ruled that it is a major error of 
the law for school boards to be governed in their racial 
assignments by the desires or wishes of the teachers but 
that the obligation rests upon school boards and those in 
charge of schools to employ and to direct the assignment 
of teachers who are paid out of public funds.

Under the rule of that case and according to the dic­
tates of my own conscience I find that there is a failure 
to constitutionally desegregate these two school faculties 
and that both of these districts must without delay insti­
tute a plan looking o a program of faculty desegregation. 
In the order that I shall read following my conclusions of 
law the details is of that plan and that faculty desegrega­
tion will be spelled out.

Findings of Facts and Conclusions of Law



34a

The third and last conclusion of law relates to school 
bus transportation. On the uncontradicted facts in this 
record this court can conclude only that there has been 
a departure from constitutional standards, or a failure to 
adhere to constitutional standards, in the transportation 
of school children and that these districts have failed to 
eliminate from their system segregation in bus transporta­
tion to public schools, which is nothing more or less than 
free transportation provided by a beneficent State for the 
school children within a particular school district.

By saying free does not mean that it is not paid for by 
someone. Of course it is, by the taxpayers of the State 
as a whole.

My conclusion, therefore, of law is that these districts 
must come forward with a plan of transportation no longer 
based on race, no longer based even on a particular school, 
but based upon residential patterns and upon concepts of 
modern transportation, with the aim that all children will 
be treated substantially alike, regardless of their race, and 
with the aim of eradicating unconstitutional defects in 
these systems.

Freedom of choice has no legitimate place in the trans­
portation plan of students. The requirements have long 
been established by law that public money must be spent in 
a nondiscriminatory fashion. There is no court that may 
hold to the contrary, and I can not conclude from these 
facts anything except that there exists upon these defend­
ants, as I have said, a positive and affirmative duty at 
this time to initiate a new method of school transportation, 
the details of which shall be spelled out in my order.

Findings of Facts and Conclusions of Law

# #



35a

Order

(Filed July 22, 1969)

In accordance with findings of fact delivered from the 
bench at hearings conducted on June 30, 1969, and July 
17, 1969, conclusions of law more fully set forth by this 
court in United States of America v. Sunflower County 
School District, No. GO 6637-K, by opinion released June 
24, 1969; it is

O rdered

That the defendant, Holly Springs Municipal Separate 
School District, its agents, officers, employees, successors 
and all those in active concert and participation with them, 
be and they are hereby permanently enjoined from dis­
criminating on the basis of race or color in the operation 
of the school system of the Holly Springs Municipal Sepa­
rate School District. As hereinafter set out, they shall take 
affirmative action to disestablish all school segregation and 
to eliminate the effects of the dual school system.

I .

S tu den t  D esegregation

(1) F o r  the sch oo l y e a r  1969-70, the school children of 
the district shall be assigned to attendance centers as 
follows:

(a) Grades 1 through 4 shall be assigned to attendance 
centers on the basis of standardized tests given to the 
students of such grades prior to the beginning of the
1969-70 school year by an outside disinterested testing 
agency. Students entering the first four grades shall he 
uniformly given the California Test of Basic Skills or a 
comparable recognized achievement test. All tests shall



36a

Order

be scored by a disinterested agency and the results made 
known to the school district prior to the commencement 
of said school year. The 81 highest scoring students in 
each of said grades shall be required during the 1969-70 
school year to attend Sallie Cochran Elementary School, 
and the remaining students in each of said grades shall be 
required to attend Frazier Elementary School in Holly 
Springs, Mississippi. Each student shall be required to 
attend the attendance center to which his score assigns 
him; provided, however, that in case of overcrowding, 
school officials of the district may assign children to at­
tend another school. During the month of April or May 
of each school year hereafter beginning with April or 
May 1970, the same or similar tests shall be given to each 
student desiring to enroll in any one of the said four 
grades during the next ensuing school year, and said tests 
shall be scored and students assigned to schools as here­
inabove provided.

(b) Students enrolled in grades 5 through 10 shall be 
assigned to district schools in accordance with freedom of 
choice of the individual student. Students in grades 11 
and 12 shall also be assigned in accordance with freedom 
of choice, provided, however, that the school district shall 
first satisfy the positive desegregation requirements of 
these two grades as next provided in (c).

(c) For the school year 1969-70 only, 20% of the en­
rollment in grades 11 and 12 of the formerly all-white high 
school located at Holly Springs shall be Negro students 
assigned by the school district on the basis of proximity 
of residence, freedom of choice or other method as it may 
select.



37a

Order

(2) F o r  the sch oo l y e a r  1970-71, the school children of 
the district shall be assigned to attendance centers as 
follows:

(a) Grades 1 through 4 shall be assigned in accordance 
with ( l)(a ) above.

(b) Grades 5, 6, 7 and 8 shall be assigned to attendance 
centers on the basis of test scores on a uniformly standard­
ized achievement test as provided in ( l) (a )  above, except 
that said tests shall be administered in April or May of 
each school year begnining with April or May 1970, and 
also except that the 81 highest scoring students for grades 
7 and 8 shall be assigned to Holly High School and the 
remaining students in each of said grades shall be assigned 
to Sims High School.

(c) Students enrolled in grades 9 to 12 shall be assigned 
to attendance centers according to student’s freedom of 
choice, provided, however, that the school district shall 
first satisfy positive desegregation requirements of these 
grades as next provided in (d).

(d) For the school year 1970-71 only, 20% of the en­
rollment in grades 9 to 12 of the formerly all-white high 
school located at Holly Springs shall be Negro students 
assigned by the school district on the basis of proximity 
of residence, freedom of choice or other method as it may 
select.

(3) F o r  the sch oo l y e a r  1971-72  and thereafter, the 
school children of the district shall be assigned to attend­
ance centers as follows:

(a) Grades 1 through 8 shall be assigned in accordance 
with ( l) (a )  and (2)(b) above.



38a

Order

(b) Grades 9 through 12 shall be assigned to attendance 
centers uniformly on a nationally recognized standard 
achievement test, with the 81 highest scoring students 
assigned to Holly High School, and the remaining students 
assigned to Sims High School.

(4) Notwithstanding the foregoing paragraphs ( l)(a ), 
(2)(b) and (3)(b), in event the number of students com­
posing the higher scoring group shall, at the commence­
ment of any school year, fail to utilize the maximum recom­
mended capacity of available classroom space, the district 
shall assign to that school such greater number of next 
highest scoring students as may be needed to fully utilize 
said capacity.

(5) New students entering any grade of the district’s 
schools shall be given the tests for that grade and assigned 
to schools according to their scores.

(6) Request for transfer by a student to attend school 
in another attendance center of the district will be subjejct 
to review by defendants and may be granted, but only if 
the granting thereof will either 1) relieve a crowded school 
condition; 2) assist a physically handicapped child; or 3) 
promote desegregation. Moreover, defendants shall, on 
request, permit any student to transfer from a school where 
students of his race are a majority to any other school 
within the system where students of his race are a minority, 
and they may assign students on such basis; provided, 
however, that such request for transfer may be denied in 
the event the transfer would be to an already overcrowded 
grade or center.



39a

Order

II.
Faculty and Staff Desegregation

Within the full extent of the district’s ability so to do, 
including the availability of qualified personnel, not less 
than one of every six classroom teachers of a different 
race shall he employed and assigned to each of the schools 
or attendance centers for the 1969-70 school year; and for 
the 1970-71 school year and thereafter there shall be full 
faculty and staff desegregation, to such an extent that the 
faculty at each school is not identifiable to the race of the 
majority of the students at any such school.

III.
Transportation

The district shall provide a unitary plan for the trans­
portation of school children based upon territorial zones 
or other natural grouping of pupil residence, irrespective 
of race, and seeking to eliminate insofar as practicable 
overlapping or duplicating routes. All children of what­
ever race shall be treated substantially alike as to seating 
capacity, bus schedules, length of route, riding time, etc., 
depending upon the physical factors governing each par­
ticular bus route.

IV.
Services, Facilities, A ctivities and Programs

No student shall be segregated or discriminated against 
on account of race or color in any grade, service, facility, 
activity, or program (including transportation, athletics, 
or other extracurricular activity) that may be conducted or 
sponsored by the school in which the student is enrolled.



40a

Order

V.
New Construction

The defendants, to the extent consistent with the proper 
operation of the school system as a whole, shall locate any 
new school and substantially expand any existing schools 
with the objective of eradicating the vestiges of the dual 
school system.

VI.
Protection of Persons Exercising 

R ights Under This Decree

Within their authority, school officials are responsible 
for the protection of persons exercising rights under, or 
otherwise affected by, this order. They shall, without de­
lay, take appropriate action with regard to any student, 
teacher or staff member who interferes with the successful 
operation of the provisions of this order. Such interfer­
ence shall include harassment, intimidation, threats, hos­
tile words or acts, and similar behavior. If officials of the 
school system are not able to provide sufficient protection, 
they shall seek whatever assistance is necessary from other 
appropriate officials. Moreover, school officials may apply 
to this court for protective orders against any person or 
persons interfering with the execution of the terms of 
this order.

VII.
Reports to the Court

(a) On or before October 15, 1969, and annually there­
after, unless otherwise ordered by the court, the defend­
ants shall submit the following reports to the court:



I 41a

Order

1. The name, race and teaching station of each member 
of the faculty and staff of each attendance center of 
the district; and

2. The number of children, by race, in attendance in 
each attendance center of the district, by grades. 
Said report shall disclose the range of test scores 
for the children of each grade assigned to different 
buildings, and indicating by number and by race 
the children so assigned by test scores.

(b) On or before October 15, 1969, and quarterly there­
after until otherwise ordered by the court, the defendants 
shall submit the following reports to the court:

1. The name, race and age of each student who has been 
granted a transfer on account of crowded school 
situation or to aid a physically handicapped child, 
giving the name of the school from which the student 
transferred, the school to which the transfer was 
made, and the grade involved.

2. The name, race and age of each student granted a 
transfer in order to promote desegregation, the grade 
involved, the name of the school from which the 
transfer was granted, and the school to which the 
transfer was made.

(c) That defendants when filing reports pursuant to 
the provisions of this order shall serve duplicate copies 
upon opposing counsel.

It is further Ordered

(1) Jurisdiction of this cause shall be, and the same 
hereby is, retained for all purposes, and especially for the



42a

Order

purpose of entering any and all further orders which may 
become necessary for the purpose of enforcing or modify­
ing this order, either or both.

(2) The Clerk of this court shall be, and he hereby is, 
directed to mail certified copies of this order by certified 
mail to all counsel of record and to note such mailings on 
the docket.

This, 22nd day of July, 1969.

W illiam C. R eady 
Chief Judge

United States District Court



43a

APPENDIX 3

Opinion o f  the Court o f  Appeals fo r  the Fifth Circuit
(Dated June 26, 1969)

IN THE

United States Court of Appeals

FOR THE FIFTH CIRCUIT

N o . 2 7 4 4 4

UNITED STATES OF AMERICA,
Plaintif f-Intervenor-Appellant,

versus

JEFFERSON COUNTY BOARD OF EDUCATION, ET AL,
Defendants-Appellees.

N o . 2 7 4 4 5

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

versus

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

Defendants-Appellees.

Appeals from the United States District Court for the 
Northern District of Alabama

(June 26, 1969)



44a

Before BELL and GOLDBERG, Circuit Judges and 
ATKINS, District Judge.

BELL, Circuit Judge: These appeals contest the or­
der of the district court denying further relief in the 
Bessemer and Jefferson County Board of Education 
school desegregation cases from the standpoint of re­
quiring student assignments on a basis other than free­
dom of choice. The appeals also complain of the denial 
of relief with respect to school construction programs. 
In the case of Bessemer, plaintiffs sought to enjoin 
the construction of specific schools. We reverse and 
remand for further proceedings.

These school boards were involved in the appeals 
which resulted in the promulgation of the model de­
cree in United States v. Jefferson County Board of 
Education, 5 Cir., 1966, 372 F.2d 836, aff’d on rehearing 
en banc, 380 F.2d 385, cert, den., 389 U.S. 840. The 
model decree was entered in these cases on April 17, 
1967. The motions for further relief sought to have 
this decree modified with respect to the assignment 
of students.'

Opinion of the Court of Appeals for the Fifth Circuit

’These school systems were first before this court in United States 
v. Jefferson County Board of Education, 5 Cir., 1965, 349 F.2d 
1021; and United States v. City of Bessemer Board of Educa­
tion, 5 Cir., 1965, 349 F.2d 10201. They were recently here on 
a modification of the Jefferson decree with respect to faculty 
assignments. United States v. Board of Education of the City of 
Bessemer, 5 Cir., 1968, 396 F.2d 44. That same question is again 
pending in this court. No. 26,582, United States, et al v. Board 
of Education of the City of Bessemer; No. 26,583, United States, 
et al v. Board of Education of the City of Birmingham; No. 
26,583, United States et al v. Jefferson County Board of Edu­
cation, argued and submitted November 21, 1968.



45a

The Jefferson model decree was promulgated to car­
ry out the mandate of Brown v. Board of Education. 
349 U.S. 294 (1955) which was to effectuate a tran 
sition from dual school systems to unitary racially non 
discriminatory systems. The model decree has resulted 
in 3.45 per cent of the Negro students in the Bessemei 
system attending school with white students for th< 
year 1968-69. There are eleven schools in Bessemer: 
one all white, four all Negro, and six desegregated 
The school population of the Bessemer system for the 
year 1968-69 was 8,615; 5,360 Negroes and 3,255 whites

In the Jefferson County system, 3.43 per cent of the 
Negro students attended previously all white schools 
in the year 1968-69. The school population was 65,659; 
47,830 whites and 17,829 Negroes. There were 105 
schools; 48 remained all white, 28 all Negro, and 29 
were desegregated.

In no school in either system has a white student 
chosen to attend a Negro school. There has been somi 
assignment of both white and Negro teachers in each 
system to teach in schools where their race is in th< 
minority but not to a marked degree.

The Supreme Court handed down additional defini 
tive decisions in the school law area in 1968. Greer 
v. County School Board of New Kent County, Virainia 
391 U.S. 430 (1968); Raney v. Board of Education oj 
Gould, Arkansas, 391 U.S. 443 (1968); Monroe v. Board 
of Commissioners of the City of Jackson, Tennessee 
391 U.S. 450 (1968). These cases emphasize the constitu 
tional obligation of school boards to disestablish the

Opinion of the Court of Appeals for the Fifth Circuit



46a

dual school system by converting immediately to uni­
fied systems in which racial discrimination has been 
completely eliminated. “The transition to a unitary, 
nonracial system of public education was and is the 
ultimate end to be brought about . . 391 U.S. at
p. 436. It was again stated that the burden was on 
school boards to com e forward with plans to this end. 
In Green it was made plain that the use of freedom 
of choice would only be acceptable where . . it offers 
real promise of aiding a desegregation program to 
effectuate conversion of a state-imposed dual system 
to a unitary, nonracial system. . .” . 391 U.S. at 440-441. 
The court went on to hold that “ . . . if there are reason­
ably available other ways, such for illustration as zon­
ing, promising speedier and more effective conversion 
to a unitary, nonracial school system, ‘freedom of 
choice’ must be held unacceptable.” 391 U.S. at 441.

This court has subsequently reviewed freedom of 
choice plans in use in several school systems. The 
tes has been in terms of the effectiveness to dises­
tablish the dual system. In Adams v. Mathews, 5 Cir.. 
1968, 403 F.2d 181, 188, we said:

“ If in a school district there are still all- 
Negro schools or only a small fraction of Ne­
groes enrolled in white schools or no substan­
tial integration of faculties and school activi­
ties then, as a matter of law, the existing plan 
fails to meet constitutional standards as estab­
lished in Green.”

Opinion of the Court of Appeals for the Fifth Circuit

See also Davis v. Board of School Commissioners of



47a

Mobile County, 5 Cir., 1969,____ F .2d_____ , [Nos. 26,886,
27,491, 27,260, slip opinion dated June 3, 1969]; Hall
v. United States, 5 Cir., 1969,____ F.2d__ _ ,  [Nos. 26,450,
and 27,303, slip opinion dated May 28, 1969]; Anthony 
v. Marshall County Board of Education, 5 Cir., 1969
____ F .2d_____  [No. 26,432, slip opinion dated April 15,
1969]; United States v. Indianola Municipal Separate
School District, 5 Cir., 1969,____ F .2d_____ , [No. 25,655,
slip opinion dated April 11, 1969]; Henry v. Clarksdale
Municipal Separate School District, 5 Cir., 1969, ____
F.2d ____ , [No. 23,255, slip opinion dated March 6, 1969];
United States v. Greenwood Municipal Separate School 
District, 5 Cir., 1969, 406 F.2d 1086; Graves v. Walton 
County Board of Education, 5 Cir. 1968, 403 F.2d 189; 
Board of Public Instruction of Duval County v. Brax­
ton, 5 Cir., 1968, 402 F.2d 900.

It is clear that the freedom of choice has not dis­
established the dual school systems in Bessemer or 
Jefferson County. The district court was of the view 
that it would in time but this probability will not meet 
the test of Green if there are other methods available 
which will disestablish the dual system now. For aught 
that appears, attendance zones would now accomplish 
the objective insofar as student assignment is con­
cerned. The district court is directed on remand to 
consider zone assignments in each system.

The school construction program must also be con­
sidered by the district court to the end of insuring 
that the program will be used to disestablish the dual 
system. The Bessemer school construction of which 
plaintiffs complain is well under way. The schools can

Opinion of the Court of Appeals for the Fifth Circuit



48a

be desegregated in a meaningful manner on a zone 
assignment basis and thus any discrimination flow­
ing from  site location can be dissipated.

The sum of these cases is that they must be con­
sidered anew by the district court. In keeping with the 
teaching of Green, the time is now at hand to dises­
tablish the dual school systems in Jefferson County and 
Bessemer. This will mean substantial changes in stu­
dent and faculty assignment, in school bus routes, in 
school and extracurricular activities including athletic 
programs. Disestablishment, in the main, will come 
from local effort and through the cooperation of those 
having a direct interest in the education process.

The passage of time has made the task of disestab­
lishment more complex. In Brown v. Board of Educa­
tion, 347 U.S. 483, 495, (1954), the question of imple­
menting the decision was posed in terms of immediate 
implementation or a deliberate speed concept. Fn. 13. 
Immediate implementation was couched in terms of 
admitting Negro children forthwith to schools of their 
choice within the limits set by normal geographic 
school districting. This postulate was the subject mat­
ter of the second Brown decision where instead the 
deliberate speed concept was promulgated. 349 U.S 
£94, 298-99 (1955). This simple rem edy of im m e­
diate student admission, thought to be too drastic then, 
appears by hindsight and today’s standards, to be sim­
ple indeed.

From the standpoint of local cooperation, neithei 
of the school boards here have Negro members. This

Opinion of the Court of Appeals for the Fifth Circuit



49a

means that help from  such sources will not be available 
to assist in disestablishing the dual systems. The plain­
tiffs in each case are, however, represented by Negro 
lawyers who reside in the Birmingham area and are 
familiar with the school systems and the neighborhood 
patterns. The school boards and their attorneys can 
receive valuable assistance from these lawyers in for­
mulating disestablishment plans. It became clear on 
oral argument in this court that the development of 
such a plan in each system can be readily accomplished 
by local effort2 and this will be particularly true under 
the leadership of the district court.

The district court, in addition to this type of assis­
tance, will also have available the resources of the 
Office of Education of the United States Department 
of Health, Education, and Welfare under the terms 
of the following order which is similar to the order 
issued on June 3, 1968 in Davis v. Board of School 
Commissioners of Mobile County supra. The order is 
also similar to the order issued in Wittenberg v. Green­
ville County School District, CA No. 4396, D.C.S.C. dat­
ed March 1, 1969, and, on remand in the Louisiana 
cases considered in Hall v. United States, supra. More­
over, it appeared from oral argument that assistance 
in formulating disestablishment plans may be avail­
able from the University of Alabama.

The order of the district court in each case is reversed 
and the cases are remanded to the district court with 
the following direction:

Opinion of the Court of Appeals for the Fifth Circuit

zThere was testimony that white students would not attend formerly 
Negro schools. This is not a legal argument. Cf. Cooper v. Aaron, 
358 U.S. 1 (1958).



50a

1. The cases shall receive the highest priority.

2. The district court shall forthwith request the Of­
fice of Education of the United States Department of 
Health, Education and Welfare to collaborate with the 
defendant school boards in the preparation of plans 
to disestablish the dual school systems in question. 
The disestablishment plans shall be directed to student 
and faculty assignment, school bus routes if transpor­
tation is provided, all facilities, all athletic and other 
school activities, and all school location and construc­
tion activities. The district court shall further require 
the school boards to make available to the Office of 
Education or its designees all requested information 
relating to the operation of the school systems.

3. The required disestablishment plans for the re­
spective systems shall be effective for the beginning 
of the 1969-70 school term and shall be completed and 
approved by the district court no later than August 
5, 1969.

4. The district court shall enter findings of fact and 
conclusions of law regarding the efficacy of any plan 
which is approved to immediately disestablish the dual 
school system in question. Jurisdiction should be re­
tained, however, under the teaching of Green, 391 U.S. 
at 439 and Raney, 391 U.S. at 449, until it is clear 
that disestablishment has been achieved. 5

5. A copy of such findings, conclusions, and orders 
as are entered, together with copies of disestablish­
ment plans, shall be lodged with the clerk of this court.

Opinion of the Court of Appeals for the Fifth Circuit



51a

Because of the urgency of formulating and approv­
ing plans to be effective for the 1969-70 school term 
it is ordered as follows: The mandate of this court 
shall issue immediately and will not be stayed pending 
petitions for rehearing or certiorari. This court will 
not extend the time for filing petitions for rehearing 
or briefs in support of or in opposition thereto. Any 
appeals from orders or decrees of the district court 
on remand shall be expedited. The record on any appeal 
shall be lodged with this court and appellants’ brief 
filed, all within ten days of the date of the order or 
decree of the district court from which the appeal is 
taken. Appellee’s brief shall be due ten days thereafter. 
The court will determine the time and place for oral 
argument if allowed. No consideration will be given 
to the fact of interrupting the school year in the event 
further relief is indicated.

REVERSED AND REMANDED WITH DIRECTIONS.

Opinion of the Court of Appeals for the Fifth Circuit

Adm. Office, U.S. Courts—Scofields’ Quality Printers, Inc., N. O., La.



52a

APPENDIX 4 

Order

(Filed August 5, 1969)

I n the

United States District Court 

For the Northern District of Alabama 

Southern Division 

Civil Action No. 65-396

Linda Stout, by her father and next friend, Blevin Stout,

Plaintiff,
United States of A merica,

Plaintiff -Intervenor, 
v.

Jefferson County Board of Education, et al.,

Defendants.

On the basis of the findings of fact and conclusions of 
law set out in separate opinion of the court, in this cause 
this day entered and filed,

It is, therefore, Ordered, Adjudged and Decreed by the 
court as follows:

(1) That the plan for integration of the Jefferson County 
School System filed by the Jefferson County Board of Ed­
ucation in this cause on August 1, 1969, be and the same 
hereby is approved.



53a

Order

(2) That the objections to the plan filed on behalf of the 
plaintiffs be and the same hereby are overruled and denied.

(3) The motion of the Jefferson County Board of Educa­
tion to dismiss this cause is treated and considered as a 
petition for summary judgment and the court hereby finds 
and declares that the plan filed by the Jefferson County 
Board of Education does immediately disestablish the dual 
system and does immediately establish a unitary system in 
Jefferson County. Jurisdiction is retained in this case for 
the limited and restricted purpose of supervising the ad­
ministration of the plan of the County Board as filed and 
herein and hereby approved.

(4) That the petitions for intervention filed in this cause 
on behalf of David Borello, et al., be and the same hereby 
are denied.

(5) Prior orders entered in this cause to the extent con­
sistent with the new plan filed by the County Board and 
herein approved are to remain in effect. The County School 
Board hereby is required to report to this court, with copy 
to the parties, any changes in zone boundaries made pursu­
ant to Chapter TV, Part D (p. 19), of the County School 
Board plan.

D one and Ordered this 5th day of August, 1969.

/ s /  C. H. Allgood 
United States District Judge



(Filed August 5, 1969)

This cause comes on to be heard on the reports filed by 
the Jefferson County Board of Education (County Board) 
and the Office of Education of the United States Department 
of Health, Education and Welfare (HEW ), to disestablish 
the dual school system in Jefferson County, Alabama, to 
formulate and present a plan for the establishment of a 
unitary school system including students, facuties, trans­
portation, all facilities, athletics and other school activities 
and school location and construction. In addition to its re­
port, the County Board has filed a motion to dismiss the 
subject action, setting out that the zoning attendance plan 
proposed in its report effectively establishes a unitary 
school system in Jefferson County that complies with every 
judicial and constitutional requirement and to eliminate 
all vestiges of the dual system. The reports were prepared 
and filed under order of this court and entered on June 27, 
1969, by Chief Judge Seybourn H. Lynne acting pursuant 
to mandate of the United States Court of Appeals for the 
Fifth Circuit issued in this case on June 26, 1969, which 
said order directed:

“1. That the defendants be and they are hereby re­
quired to prepare plans to disestablish the dual school 
systems presently being maintained in Jefferson 
County, Alabama, and forthwith to request the Office of 
Education of the United States Department of Health, 
Education and Welfare to collaborate with them in the 
preparation thereof.

“2. That such plans shall be directed to (a) student 
and faculty assignment, (b) school bus routes, (c) all 
facilities, (d) all athletic and other school activities, 
and (e) all school location and construction activities.

54 a

Opinion of the Court



“3. That defendants be and they are hereby re­
quired to make available to the Office of Education, or 
its designees, all requested information relating to the 
operation of such school system.

“4. That the disestablishment plans required hereby 
shall be effective for the beginning of the 1969-1970 
school term and shall be completed and filed in the of­
fice of the Clerk of this court on August 1, 1969, and 
shall be submitted for the approval of the court at 
10:00 a.m., on August 4, 1969. All interested parties 
shall be afforded an opportunity to be heard on such 
date, and only on such date, with respect to objections 
or exceptions to such plans.”

The plans of the County Board and HEW were timely 
filed in this court on August 1, 1969, and were set for hear­
ing as directed and ordered on August 4, 1969. The order 
of the Fifth Circuit further directed that the plans for dis­
establishment of the dual system and creation of the uni­
tary system “ shall be considered and approved by the Dis­
trict Court no later than August 5, 1969.”

All parties appeared in court on August 4, 1969, through 
their respective attorneys of record.

The plaintiffs filed objections to the integration plan sub­
mitted by the County Board which were heard together with 
the reports and plans filed by the County Board and HEW. 
Petitions for intervention were filed in this cause on behalf 
of David Borello, etc., et al., by Ralph E. Coleman, Esq.; an 
oral petition for intervention was recorded and urged on 
behalf of parents residing in Pleasant Grove by John 
Schmarkey, Esq. The petitions for intervention having 
been considered and understood by the court, same were 
denied.

55a

Opinion of the Court



56a

Opinion of the Court 

Background op the Case

This case commenced by a complaint filed on behalf of 
the individual plaintiffs in this court on June 4, 1965. With­
in less than a month, a plan for desegregation was filed by 
the County Board which, in the opinion of this court, com­
plied with the law as then construed by the District Court 
and by the Fifth Circuit Court of Appeals. Following hear­
ing, the plan, as filed, with modifications, was approved by 
the District Court. The Justice Department appealed to 
the Fifth Circuit Court of Appeals. On August 17, 1965, 
the Fifth Circuit remanded the case to the District Court in 
United States v. Jefferson County Board of Education, 349 
F.2d 1021:

“For further consideration in light of Singleton v. 
Jackson Municipal Separate School District, et al, 5 
Cir. 348 F.2d 729, decided by this court on June 22, 1965, 
and Price v. Denison Independent School District 
Board of Education, et al, 5 Cir., 348 F.2d 1010, decided 
by this court on July 2, 1965.”

Within ten days the County Board filed its amended plan 
to conform to the decision of the Fifth Circuit. The plan 
was approved by this court and the Government appealed. 
This appeal led to the uniform “Model Decree” and the de­
cision of the Fifth Circuit in United, States v. Jefferson 
County Board of Education, 372 F.2d 836, affirmed on re­
hearing en banc (3/29/67), 380 F.2d 385. Following and 
pursuant to that decision, the District Court entered “the 
model decree” set out by the Fifth Circuit on April 17, 1967.

The plaintiff and the Justice Department then filed a mo­
tion seeking a modification of the Jefferson decree with re­
spect to faculty assignments. On June 3, 1968, in United 
States v. Board of Education of the City of Bessemer, 396



57a

F.2d 44 (which was consolidated with the Jefferson case), 
the Fifth Circuit reversed the order of the District Court 
and directed accelerated faculty integration. The action 
taken by the County Board with respect to this order was 
submitted to the Fifth Circuit in United States v. Jefferson 
County Board of Education, Fifth Circuit, No. 26584.1 The 
Fifth Circuit remanded that case to this court for action 
in connection with the subject proceeding. The United 
States, intervenor, filed a motion seeking to require the 
County Board to file another plan for the desegregation of 
schools in the County System based on geographical zoning. 
This court sustained “ Freedom-of-Choice” in Jefferson 
County and its administration by the County Board, hut, 
following appeal, the Fifth Circuit reversed on June 26, 
1969. The District Court issued the subject order pursuant 
to that mandate of the Fifth Circuit.

The testimony of record in these proceedings admittedly 
shows that not a single complaint was communicated to the 
County Board by any citizen of Jefferson County—white 
or Negro—regarding the “Freedom of Choice” plan or its 
administration by the County Board. Following hearing 
on the “Freedom-of-Choice” plan and its administration in 
the County System, Chief Judge Seybourn H. Lynne, in his 
memorandum opinion of March 7, 1969, specifically noted 
that:

“ There is not a whisper of evidence that any pupil of 
either race has been harrassed, intimidated or influ­
enced in any manner in the exercise of his choice of a 
school . . . ”

Opinion of the Court

1 Consolidated with No. 26582, U n ite d  S ta te s  v. B o a r d  o f  E d u ­
ca tion  o f  th e C i t y  o f  B e ss e m e r , and No. 26583, U n ite d  S ta te s  v. 
B o a r d  o f  E d u c a tio n  o f  th e C i t y  o f  B irm in g h a m .



58a

Tn addition, the County Board continuously has taken speci­
fied accelerated and meaningful steps toward the integra­
tion of its school system and has achieved remarkable re­
sults in the face of many difficulties.

It is further noted that every plan filed by the County 
Board generally satisfied the standards or guidelines es­
tablished by HEW and the Fifth Circuit at the time the 
plans were filed in the District Court, but as noted by the 
Fifth Circuit in United States v. Board of Education of the 
City of Bessemer, 396 F.2d 44, 49:

“And the moving finger having writ was soon writing 
everywhere.”

The result Avas that while the plans were substantially in 
keeping with the appellate decision at the time they were 
filed in the District Court, the position of the appellate 
court was being modified pending the appeal, and when 
the appeals reached the Fifth Circuit remandment fol­
lowed Avitli additional corrections.

The Jefferson County School Board has had a very 
short time in which to perform a herculean task. They 
have met their responsibilities and submitted a plan which 
this court finds in full compliance Avitli the mandate of 
the Fifth Circuit.

It is recognized that under the circumstances some 
minor adjustments may have to be made. Some changes 
in the plan not affecting its basic purpose and intent may 
be required. These matters can be worked out and agreed 
upon by the School Board and HEW, without further 
burden to this court and to the Court of Appeals. This 
plan ends the dual system of schools in Jefferson County. 
In this court’s opinion, it meets the requirements set out

Opinion of the Court



59a

in the mandate of the Fifth Circuit. It should end litiga­
tion.

It is my thought that further litigation in this case for 
any reason other than that reserved by the court would 
serve no good purpose.

Objections were filed on behalf of the United States 
Department of Justice requesting and suggesting that the 
court’s order include a provision retaining in effect pro­
visions of earlier orders not inconsistent with the new 
plan and requiring periodic reports. The court has care­
fully considered these objections and has incorporated 
herein substantial and material portions of the Depart­
ment’s suggestions.

The court has carefully studied the reports and plans 
for integration filed by the County Board and HEW, has 
heard evidence with respect to the plans and the argu­
ments of counsel and makes the following findings of fact, 
conclusions of law and order herein.

F indings of Fact

(1) The plans submitted by the County Board and HEW 
follow identical geographical zones. As directed by the 
Fifth Circuit, the County Board made available to HEW 
all requested information, including the subject plan filed 
by the County Board which HEW has approved, in sub­
stance.

(2) The plan of the County Board effectively eliminates 
all vestiges of the dual school system in Jefferson County 
and creates a unitary system that complies with all judicial 
and constitutional requirements.

Opinion of the Court



60a

(3) In considering and fixing school attendance zones, 
the County Board correctly used and applied the following 
pertinent factors:

(a) Capacity of the schools.

(b) Geographical and natural boundaries.
(c) Condition of facilities.

(d) Residence of students.

(e) Boundary lines of other school systems.

(f) Accessibility.
(g) Separate cities.

(h) Accreditation.

(i) Permanency of descriptions.

All of these factors were applied by the County Board 
without discrimination to disestablish the dual and create 
an effective unitary school system.

(4) That approval and execution of the plan effectively 
establishes a unitary system of schools in Jefferson County 
is evidenced by the following statistical result. The Fifth 
Circuit having previously noted in Bessemer:

Opinion of the Court

“As figures speak and when they do courts listen.”

Students Attending and Projected in the 
Jefferson County School System 1968-1972

Year White % Negro % Total
1968-69 48,032 73.% 17,765 27.% 65,797
1969-70 50,223 73.9% 17,731 26.1% 67,954
1970-71 50,452 74.4% 17,393 25.6% 67,845
1971-72 50,469 74.8% 17,001 25.2% 67,470



61a

In the 1967-68 school year, 350 Negro students attended 
predominantly white schools in the County System. In 
1968-69, 615 Negro students, or 3.43%, attended County 
Schools in integrated situations. The County Board plan 
(if it can be accomplished) results in the following amazing 
figures.

In 1969-70, 13,174 of 17,731 Negro students, or 74.29%, 
will attend County Schools in integrated situations.

In 1970-71, 14,812 of 17,393, or 85.16%, of the Negro 
students will attend County Schools in integrated 
situations.
In 1971-72, all—100%—of the Negro students will be 
attending schools in integrated situations.

(5) Under the proposed plan, the faculty of the County 
System will be completely integrated. During the 1967-68 
school year, only ten teachers in the County System taught 
in integrated situations in six schools. In the period of 
less than two months following the decision of the Fifth 
Circuit on June 3, 1968, in Bessemer, this number had 
been increased by the County Board to 133 teachers in 
92 schools, of which 93 teachers were assigned to teach 
in 66 schools attended predominantly by white students 
and 40 white teachers were assigned to teach in 26 schools 
attended predominantly by Negro students. Ninety-two of 
the 105 schools in the County System then had integrated 
facilities. The remaining thirteen schools each had six 
teachers or less and were small schools located in remote 
rural sections of the county. The composition of the 
faculty, by race, in the County System, for each of the 
years 1968-1972, as projected, under the County Board 
plan, would be as follows:

Opinion of the Court



62a

Faculty Teaching and Projected in the Jefferson County 
School System 19G8-72

Opinion of the Court

Year White % Negro % Total
1968-69 1,789 72.1% 692 27.9% 2,481
1969-70 1,762 72.5% 668 27.5% 2,430
1970-71 1,780 71.9% 697 28.1% 2,477
1971-72 1,842 72.5% 700 27.5% 2,542

Approval and execution of the County Board plan would 
result in the following number and percentage of integra­
tion among the faculty of the County System:

Year Integrated %
Non-

integrated % Total
1969-70 2,403 99.0% 27 1.0% 2,430
1970-71 2,464 99.5% 13 .5% 2,477
1971-72 2,533 99.6% 9 .4% 2,542

(6) Under the County Board plan, eighteen schools in 
the county would be closed to accomplish integration, be­
ing specifically Mt. Olive Junior High, Roebuck Plaza Ele­
mentary, Mineral Springs Elementary, Alden Elementary, 
Docena North, Mulga North, Leeds Primary, Westfield 
High, Pleasant Grove Elementary, Overton, Wilkes, Rob- 
ertstown, Zinnerman, Johns, Hooper City, Pipe Shop, Red 
Ore and Raimund Elementary. The present market 
value of these schools is $1,260,101.70. Their replacement 
cost is reliably estimated to be $4,090,000.00. To complete 
the construction that will be reasonably necessary to fully 
implement the County Board plan will result in construc­
tion costs of $13,856,000. The County Board does not have 
the funds with which to accomplish this tremendous and 
required construction program.



63a

The County Board has adopted and followed a “pay as 
you go” program and constructs additional facilities where 
students are in attendance. Its proposed construction plans 
are directed toward the implementation of the integration 
plan filed with this court.

(7) The plaintiffs introduced no evidence in support of 
their objections. The County Board introduced testimony 
specifically relating to and answering each objection. The 
court finds that the objections are without merit and likely 
were prompted, to a substantial extent, by a misunderstand­
ing on the part of plaintiffs of the integration plan filed by 
the County Board. The evidence of record establishes that 
students will not be bussed out of their zones passed schools 
consisting largely of members of the opposite race. Fur­
ther, the evidence establishes that the County Board has no 
new construction plans except those related to the plan as 
filed. There is no evidence to sustain plaintiffs’ objection 
and statement that Negro students would be bussed by white 
schools in order to attend Negro high schools. To the con­
trary, the evidence is and the court finds that there are no 
white schools or Negro schools upon execution of the plan, 
but only schools. The dual system and all vestiges thereof 
has been effectively eliminated and a unitary system has 
been created in the County School System. The testimony 
clearly shows and the court finds that Negro principals are 
being retained in a number of the county schools, being 
those at Brighton, Moton, Raimund, Wenonah and Rose- 
dale. The court finds that the plaintiffs’ objections are with­
out merit and there is no evidence in the record to sustain 
same.

It is obvious that objections filed are not supported by the 
facts in this case. This is due to the apparent lack of fa­
miliarity with the proposed plan. The court is well aware

Opinion of the Court



64a

of the fact that the time schedule in this case does not allow 
sufficient time to study and analyze the plan. However, the 
record does show that Attorney Clemon and his associates 
were consulted from time to time during the preparation 
of this plan and that he and his associates did approve of 
the plan, in substance.

(8) The court finds, as suggested by the United States 
Department of Justice, that provisions of earlier orders in 
this cause not inconsistent with the new plan be continued 
and that the County Board be required to report to the court 
and to the parties “ any changes in zone boundaries made 
pursuant to Chapter IV, Part D (p. 19) of the County 
School Board plan.”

Since the court will retain jurisdiction to supervise the 
effect and administration of the plan, it deems presently 
unnecessary any orders relating to construction of facilities 
since admittedly all construction is related directly to the 
plan and no new construction presently is proposed by the 
County Board except that specifically set out in and made 
an integral part of the proposed plan.

From the foregoing findings of fact, the court now makes 
the following:

Opinion of the Court

Conclusions of Law

(1) That the integration plan filed by the County Board 
complies with all judicial and constitutional requirements 
for the abolition of all vestiges of the dual school system and 
the establishment of an effective unitary school system in 
Jefferson County, including, but not limited to, student and 
faculty assignment, transportation, all facilities, all ath­
letics and other school activities, and all school location and 
construction activities.



65a

(2) The plan of the County Board should be and hereby 
is approved as filed.

It should be noted that the plan of the County Board has 
met with the approval of HEW. In addition, the plan has 
the approval of Dr. Bascomb Woodward, Director, Bureau 
of School Services, of the University of Alabama, who was 
requested by HEW to carefully analyze the plan. Dr. 
Woodward expressed the opinion that the plan completely 
disestablishes all vestiges of the dual system and creates 
an effective unitary system of schools in Jefferson County.

Contemporaneously with its plan, the County Board 
filed a motion to dismiss this proceeding alleging (correctly) 
that the plan complied with every judicial and constitutional 
requirement to accomplish a unitary school system for 
Jefferson County. It is the opinion of this court that “all 
litigation must sometime come to an end,” but in the subject 
case, the Fifth Circuit noted that:

“ The district court shall enter findings of fact and con­
clusions of law regarding the efficacy of any plan which 
is approved to immediately disestablish the dual school 
system in question. Jurisdiction should be retained, 
however, under the teaching of Green, 391 U.S. at 439 
and Raney 391 U.S. at 449, until it is clear that dis­
establishment has been achieved.”

The court is treating the motion of the County Board to 
dismiss as a petition for a summary judgment that the 
County Board plan complies with all judicial and constitu­
tional requirements and the court hereby finds and declares 
that the attendance zone plan filed by the County Board 
does immediately disestablish the dual school system and 
does immediately establish a unitary system in Jefferson 
County.

Opinion of the Court



66a

The court retains jurisdiction of this case for the limited 
and restricted purpose of supervising the administration of 
the plan of the County Board as filed and herein and hereby 
approved.

An express order of this court will be entered accordingly.

This 5th day of August, 1969.

Opinion of the Court

/ s /  C. H. Allgood 
United States District Judge



67a

APPENDIX 5

Memorandum Opinion o f  the Court

(Filed August 5, 1969)

In the

United States District Court 
F or the Northern District op A labama 

Southern Division 

Civil A ction No. 65-366

Doris Elaine Brown, et al.,
Plaintiffs,

United States op A merica,

Plaintiff-Intervenor,
v.

Board op Education op the City of Bessemer, et al.,

Defendants.

On April 17, 1967, in this case this court entered the 
precise mandated decree issuing from the opinion of the 
Court of Appeals for the Fifth Circuit in United States v. 
Jefferson County Board of Education, 372 F. 2d 836, 
adopted on rehearing en banc, 380 F. 2d 385. Motions were 
filed on behalf of the plaintiff and the plaintiff-intervenor 
for an order requiring the defendants to adopt and imple­
ment a plan of pupil assignment based on criteria other 
than “Freedom of Choice” , and after appeal, in case 
No. 27444 on June 26, 1969, the Court of Appeals for the



68a

Fifth Circuit promulgated another decree wherein it found 
that the “Freedom of Choice” had not disestablished the 
dual school system in Bessemer.

The order of the Court of Appeals directed this court 
to require the School Board to file a plan to disestablish 
the dual system and to request the office of the United 
States Department of Health, Education and Welfare to 
collaborate with the defendant School Board in the prepara­
tion of such plans. Precise dates for the filing of such 
a plan were set out.

An order of this court was issued on the 27th day of 
June, 1969, in compliance with the mandate of the appel­
late court. The Department of Health, Education and 
Welfare filed a plan on Friday, August 1, 1969. This plan 
only contemplated the initial step and in such plan stated:

“ The demographic and geographic complexities of 
Bessemer require a much greater detailed examination 
than is normally required in desegregation plan 
development. The present size, location, and organiza­
tion of the schools require an intensive facilities and 
site survey in greater depth than is normally required. 
The lack of public and school-supported transporta­
tion necessitates a more in depth, time distance route 
survey. More collaboration and interaction is needed 
between the HEW team and local officials in order to 
develop a terminal plan that may require a complete 
reorganization of the entire school system.”

The court was informed that this change necessitated 
the Bessemer Board deadline for filing its plan to he ex­
tended to Monday, August 4, 1969, and an order was 
entered to this effect.

In chambers, the Departmnet of Health, Education and 
Welfare and the Justice Department agreed that the

Memorandum Opinion of the Court



69a

Bessemer plan was acceptable as a temporary measure 
and in open court the attorneys for the United States sub­
sequently confirmed this agreement. The Bessemer Plan 
only varied in relatively small details from the HEW plan.

The current regulations of the Department of Health, 
Education and Welfare on school integration do not re­
quire total integration for the 1969-1970 school year where 
either the entire school system is more than 50 percent 
Negro or where a construction project is in construction 
which would affect the school integration plan. The Besse­
mer School System meets both of these tests. In addition 
to the percentage, it has under construction a large school 
which is planned to house grades 7 through 12, the enroll­
ment capacity of about 1,300 students.

The plans show that there are 5,200 colored students and 
2,951 white students in the Bessemer School System. Of 
the white students, 587 attend Greenwood Elementary 
School, which is located four to five miles from the nearest 
other city school. This school is also attended by students 
from Jefferson County under a special agreement with 
the County Board of Education. There are no colored 
students in the area, within the city limits. Any colored 
students who would attend this school would, of necessity, 
be zoned in under the county zoning plan. The results 
then show that in the heart city, those capable of being 
in school, in integrated schools, would only be 2,364 white 
students. The percentage of these whites and colored in 
this area is 32 percent white and 68 percent colored.

Excluding the Greenwood Elementary School, the City 
of Bessemer at present operates four all Negro schools 
and six schools attended by children of both races which 
in the past have been all white. All faculties in the system, 
at all schools, were integrated during the past year.

Memorandum Opinion of the Court



70a

Under tlie Bessemer plan all of the formerly white 
schools within the City of Bessemer will be integrated with 
the exception of Greenwood. All other schools will be 
integrated from 15 to 38 percent of capacity and a total of 
35 percent of the students attending these schools will be 
Negro during the coming school year. The faculties and 
staffs of all schools will he desegregated and in no case will 
the racial composition of the staff or faculty indicate that 
a school is intended for Negro or white students.

On this date, August 5, 1969, counsel for the individual 
plaintiffs filed “Objections to the Temporary Plan Offered 
by the City of Bessemer.” No evidence was introduced at 
the hearing in support of these objections and counsel for 
the individual plaintiffs agreed that additional time would 
be required to develop a terminal plan for the Bessemer 
School System.

Memorandum Opinion of the Court

F in d in g s  of F act

(1) The interim plan submitted by the Bessemer School 
Board meets the requirements of the Fifth Circuit mandate 
to the extent reasonably possible at this time, and the 
court agrees with the observation of the Justice Depart­
ment, HEW and the Bessemer School Board that additional 
time, collaboration and interaction is needed between the 
parties to develop a terminal plan that may require the 
complete reorganization of the entire school system.

(2) The interim plan of the Bessemer School Board, as 
agreed by HEW and the Justice Department, is acceptable 
as a temporary measure and further time will be required 
to effect a plan that will create a completely unitary system 
in Bessemer. The court, at the suggestion of the parties, 
finds that such a plan might reasonably be formulated and 
filed by November 15, 1969.



71a

C onclusions  of L aw

(1) That the interim plan as submitted by the Bessemer 
Board of Education is the best and most effective plan that 
could reasonably be formulated within the time allowed 
and, to that extent, complies with the mandate issued pur­
suant to the decision of the Fifth Circuit Court of Appeals 
entered in this cause of June 26, 1969.

(2) Action on the objections filed by and on behalf of 
the individual plaintiffs should be stayed pending the final 
report from the Bessemer School Board.

(3) All parties having agreed that additional time is 
required for the Bessemer Board “to develop a terminal 
plan” , this court should give effect thereto in the absence 
of some compelling reason to the contrary which does not 
exist.

An express order of this court will be entered accordingly.

This 5th day of August, 1969.

/ s /  C. H. A llgood 
United States District Judge



72a

Order

(Filed August 5, 1969)

On the basis of the findings of fact and conclusions of 
law set out in a separate memorandum opinion of the 
court, in this cause this day entered and filed,

It is, therefore, O rdered, A djudged and D ecreed by the 
court as follows:

(1) That the interim plan for the integration of the 
Bessemer School System filed by the Bessemer Board of 
Education on August 4,1969, be and the same hereby is 
approved.

(2) That action on the objections to the plan filed on 
behalf of the individual plaintiffs on August 5, 1969, be 
and the same hereby is stayed and will be considered at 
the time the terminal plan of the Bessemer Board is filed 
and presented to the court.

(3) That the Bessemer School Board be and it hereby 
is given until November 15, 1969, to prepare and file with 
this court a terminal plan to eliminate all vestiges of the 
dual system and to effectively establish a unitary plan for 
the operation of the Bessemer School System.

(4) The Bessemer Board of Education shall continue 
to collaborate with the Office of Education of the United 
States Department of Health, Education and Welfare in 
the preparation of a final plan to disestablish the dual 
school system, and that such plan shall be filed by November 
15, 1969.

(5) Jurisdiction is retained until it is clear that the dis­
establishment of the dual system has been achieved.

D one and O rdered this 5th day of August, 1969.

/ s /  C. H. A llgood 
United States District Judge



73a

APPENDIX 6 

Order

(Filed August 1, 1969)

I n th e

U n ited  S tates D istrict  C ourt 

F or t h e  S o u th ern  D istrict  of A labam a  

S o u th ern  D ivision  

C iv il  A ction  N o. 3003-63

B irdie M ae D avis, et  a l ., 

and
Plaintiff,

U n ited  S tates of A m erica , 
by B am sey  Cl a r k , Attorney General, etc.,

Plaintiff -Intervenor, 
v.

B oard of S chool C om m issioners of 
M obile C o u n t y , et  a l .,

Defendants,
and

T w ila  F razier , et  a l .,
Intervenors.

It is difficult for one unschooled in the field of education 
to implement a plan to operate the Mobile County Public 
School System in any fashion, but I am confronted with 
doing just that in what I hope will be a practical and 
workable way within the law.



74a

Order

The Supreme Court and the Court of Appeal have inter­
preted the law. We may agree with their interpretation or 
not, but we must follow it.

In approaching this task, which is without doubt the most 
difficult as well as important that I have ever encountered, 
I have called upon any and every source at my command 
for assistance.

The Department of Health, Education and Welfare, with 
inadequate time, lias tiled a plan with which I can agree 
in part and disagree in part. It contains some provisions 
which I think are both impractical and educationally un­
sound. HEW readily acknowledges that this plan is not 
perfect and invites the School Board to suggest improve­
ments. The School Board has filed absolutely no plan for 
the assistance of the court. The professional staff of the 
Mobile Public School System did, as authorized by the 
School Board, work with HEW in attempting to formulate 
such a plan, but their efforts did not meet with the ap­
proval of the School Board. The court has the benefit of 
such work, but wishes to make it clear that such was never 
approved by the School Board, though the end results in 
many areas were substantially in accord with HEW.

With eight years of litigation, entailing countless days 
and weeks of hearings in court, it has been clearly estab­
lished that the Mobile County School System must forth­
with be operated in accordance with the law of the land. 
What this school system needs is to educate children legally, 
and not to engage in protracted litigation. After all, the 
children are the ones in whom we should be most inter­
ested. With this in mind, I get to the business at hand.

The plan filed by HEW calls for its implementation by 
the beginning of the 1969-70 school term of all rural schools 
and all metropolitan areas west of Interstate Highway 65.



75a

Order

It clearly states that its plan for all metropolitan areas 
east of 1-65 cannot possibly be implemented before the
1970-71 school term. In this, the court is in complete agree­
ment.

As to the rural schools and all metropolitan areas west 
of 1-65, the Court O rders, A djudges and D ecrees the fol­
lowing plan under which the Mobile County School System 
will operate, beginning with the school term of 1969-70:

I .

Attendance area zones for all rural schools of the Sys­
tem, elementary, junior high and high schools, are directed 
in accordance with maps hereto attached, marked Exhibits 
1, 2 and 3.

II.
Attendance area zones for the metropolitan schools lo­

cated west of 1-65, elementary, junior high and high schools, 
are directed in accordance with maps hereto attached, 
marked Exhibits 4, 5 and 6.

III.
Attendance area zones for the metropolitan elementary 

and junior high schools located east of Interstate Highway 
65 shall be the identical zones as those utilized for the past 
school year, 1968-69.

IV.
The metropolitan senior high schools located east of In­

terstate Highway 65, including the Toulminville High 
School, shall operate under the freedom of choice desegre­
gation plan and each student shall attend the school which 
was selected during the recent choice period of May, 1969;



76a

Order

however, every senior high school student living west of 
Interstate Highway 65 must attend the senior high school 
serving his attendance area, notwithstanding the student’s 
choice to attend a high school located east of Interstate 
Highway 65.

V.
The court is not satisfied with the Plan set out by HEW 

for the metropolitan schools lying east of 1-65 for imple­
mentation for the 1970-71 school term. The court knows 
that further study will result in a far better and more 
practical, as well as legal, plan.

VI.
The School Board is hereby ordered to file with the court, 

not later than December 1, 1969, a suggested desegregation 
plan for all of the metropolitan schools located east of 
1-65. This plan shall be formulated by the School Board 
in consideration of the mandate of the Fifth Circuit Court 
of Appeals of June 3, 1969 and after further study and col­
laboration with HEW officials. The School Board is hereby 
ordered to file a detailed progress report to the court on 
October 10, 1969 and November 20, 1969 outlining the steps 
taken in formulating the plan.

The court fervently hopes that the decree herein entered 
and the plan of December 1, 1969 will end further litigation 
for the public school system of Mobile County.

VII.
F acu lty

For the 1969-70 school term and subsequent years, the 
faculty of each school, including the principals, teachers, 
tearcher’s aides, and other staff members who work directly



77a

Order

with the children, shall have a racial composition not iden­
tifiable as a school for negro or white students.

For the upcoming year, the School Board shall assign, 
as far as is educationally feasible, the staff described above 
so that the racial composition of each school’s faculty shall 
reflect substantially, the racial composition of the teachers 
in the entire school system.

Staff members who work directly with children, and pro­
fessional staff who work on the administrative level, shall 
be hired, assigned, promoted, paid, demoted, dismissed and 
otherwise treated without regard to race, color, or national 
origin, except to the extent necessary to erase segregation.

If there is to be a reduction in the number of principals, 
teachers, teacher-aides or other professional staff employed 
by the school district, which will result in a dismissal or 
demotion of any such staff members, the staff member to be 
dismissed or demoted must be selected on the basis of 
objective and reasonable non-discriminatory standards from 
among all the staff of the school district. In additions, if 
there is any such dismissal or demotion, no staff vacancy 
may be filled through recruitment of a person of a race, 
color, or national origin different from that of the indi­
vidual dismissed or demoted, until each displaced member 
who is qualified has had an opportunity to fill the vacancy 
and has failed to accept an offer to do so.

“Demotion” as used above includes any reassignment (1) 
under which the staff member receives less pay or has less 
responsibility than under the assignment he held previ- 
ouly, (2) which requires a lesser degree of skill than did 
the assignment he held previously, or (3) under which the 
staff member is asked to teach a subject or grade other 
than one for which he is certified or for which he has had 
substantial experience within a reasonably current period.



78a

Order

In general and depending upon the subject matter involved, 
five years is such a reasonable period.

VIII.

The Toulminville School for the year 1969-70 is to be 
operated in the same grade level as it was last year.

IX.
The five per cent transfer provision for children of minor­

ity groups set out in the court’s plan of last year is com­
pletely deleted.

X.

P u blic  N otice

The School Board shall publish or cause to have pub­
lished in the local newspaper, the complete text of this 
decree and the maps, identified as Exhibits 1, 2, 3, 4, 5, 
and 6, to this court’s decree. The decree and maps shall 
he published once a day for three consecutive days, alter­
nating the morning and evening editions of the newspaper. 
In addition, the School Board shall post or cause to be 
posted in a conspicuous place in each school in the System, 
and at the offices of the School Board, copies of the map 
outlining the particular school’s area attendance zone. This 
notice provision also applies to those elementary and junior 
high schools, east of 1-65, which shall operate under last 
year’s attendance area zones.

Dated: August 1, 1969.

/ s /  D a n ie l  H . T hom as



79a

APPENDIX 7 

Order

(Filed June 20, 1969)

In t h e

U n ited  S tates D istrict  C ourt 

F or t h e  S ou th ern  D istrict  of G eorgia 

A ugusta D ivision

C iv il  A ction N o. 1369 
N eely  B e n n e t t , et  a l .,

vs.
Plaintiffs,

R . E . E van s , et al .,
Defendants.

C ivil  A ction  No. 1443

A llene  P atricia  A n n  B e n n e tt , a minor by R. B. Bennett, 
her father and next friend, et al.,

Plaintiffs,
vs.

B u rk e  C o u n t y  B oard of E d u catio n , et al .,

Defendants.

These two cases were consolidated by me for hearing 
under an order entered on May 8, 1969. In the first action 
(No. 1369) petitioners attacked the constitutionality of the 
Georgia statutes governing election of school board mem­
bers by grand juries. Plaintiffs also sought ancillary dam-



80a

Order

ages. The complaint did not expressly seek desegregation 
of the dual system of white and black schools. Petitioners 
did allege, however, that they and other Negroes are de­
nied the full and equal benefit of public education in Burke 
County, free of discrimination or segregation because of 
their race or color.

A Three-Judge Court which was convened in No. 1369 
dissolved itself and left future questions to a single district 
judge. The constitutional issue in a similar case is now 
before the Supreme Court of the United States.

The other case (No. 1443) which is brought by some of 
the same plaintiffs attacks the “freedom of choice plan” in 
existence in Burke County and seeks injunctive relief from 
the operation of a compulsory bi-racial school system. An 
evidentiary hearing was held in this case, involving the 
desegregation issue only, at Augusta on June 17th.

I announced my views at the completion of the evidence 
and now formalize them by Findings of Fact and Conclu­
sions of Law. I also expressed my intentions as to an 
interlocutory order. The order which appears at the end 
of the Findings of Fact and Conclusions of Law utilizes 
the provisions of Title 42, §2000c-2, United States Code, 
providing for expert technical assistance by the Office of 
Education in the preparation, adoption and implementa­
tion of plans for desegregation of public schools.

F in d in g s  of F act

1. Burke County, Georgia, at the last census had a popu­
lation of 20,596 inhabitants of whom 13,699 were Negroes 
and 6,927 were whites.

2. During the 1968-69 school year the total school popu­
lation was 5,433 of whom 1,586 were white students and



81a

Order

3,847 black. Negroes comprise 70.1% of the school enroll­
ment.

3. There are eleven schools in the public school system. 
Of these seven are Negro and four are white. The Burke 
County system is organized, and always has been, as a dual 
one based upon race. Since the school year 1965-66 a free- 
doom of choice plan has been in existence. Prior to that 
time only colored students to seven schools.

4. Under the freedom of choice plan no white student 
attended during the past year any Negro School. No Ne­
groes attended two of the four white schools. Out of a 
total enrollment of 782 pupils there were 27 colored stu­
dents at Waynesboro Elementary. Three Negroes attend 
Waynesboro High School which has a total enrollment of 
380.

5. The percentage of Negro students in other than en­
tirely black schools is approximately 0.7% of the total 
colored pupil population.

6. During the 1968-69 school year the number and race 
of the students enrolled at the eleven schools was as
follows:

Pupils Pupils
School Grades White Black

Cousins (Sardis) ............. .... 1-8 0 366
Girard (Girard) ................ .... 1-8 0 336
S. R. Dinkins (Midville) ....... 1-8 0 359
Palmer (Keysville) .......... .... 1-8 0 214
Gough (Gough) ................. .... 1-7 0 349



82a

Order

School Grades
Pupils
White

Pubils
Black

Blakeney Elementary .......
(Waynesboro)

...  1-7 0 1126

Blakeney High ..................
(Waynesboro)

...  8-12 0 915

Waynesboro Elementary .....  1-8 755 27
Waynesboro H igh .............. ...  9-12 377 3
Sardis-Girard-Alexander .. 
(Sardis)

...  1-12 357 0

Midville Elementary .............. 1-7 49 0

7. The total number of faculty members in the Burke 
County school system is 212 of whom 139 are Negro. No 
white teachers teach in black schools. No black teachers 
teach in white schools.

8. The school bus system is maintained on a segregated, 
duplicative and overlapping basis.

9. In 1966 H.E.W. cut off Federal assistance funds to the 
Burke County system, which aid amounted at that time to 
$209,340.58 annually.

10. Six of the seven Negro schools have lost accredita­
tion because, or mainly because, of over-crowded conditions.

C onclusions  of L aw

1. The defendants have discriminated against Negro stu­
dents on account of their race in violation of the Four­
teenth Amendment in the operation of the Burke County 
system by maintaining a dual school system based on race.



83a

Order

2. Until the freedom of choice plan not a single white 
child, and this is the invariable pattern, has chosen to 
attend the traditionally Negro schools. More than 99% of 
the colored children continue to attend all-Negro schools. 
This is constitutionally unacceptable. Green v. County 
School Board of New Kent County, 391 U.S. 430 (1968); 
Raney v. Board of Education of the Gould School, 391 U.S. 
443 (1968); United States v. Indianola Municipal Separate 
School District, et al, (5th Cir., April 11, 1969); United 
States v. Greenwood Municipal Separate School District, 
et al., (5th Cir., February 4, 1969); Adams et al. and United 
States v. Mathews et al., (5th Cir.), 403 F.2d 181.

3. The existing freedom of choice approach offers no 
hope of achieving at any time in the near future the degree 
of integration necessary to satisfy the demands of the 
Fourteenth Amendment as interpreted in these and other 
decisions.

4. “ It is an affirmative duty of each school board in this 
circuit to abolish the vestiges of state-compelled segre­
gation and to establish a unitary system which achieves 
substantial desegregation . . .  At the very least this 
means that this school board has an obligation to see 
that schools in this district remain no longer all-Negro 
schools or all-white schools enrolling only an infini­
tesimal fraction of Negro students.”

United States v. Indianola Municipal Separate School 
District, supra.

O R D E R

It is ordered that the Board of Education of Burke 
County shall promptly submit to the Office of Education,



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Order

H.E.W., the existing methods of operation of the System 
and shall seek to develop by July 30, 1969, in collaboration 
and co-operation with the experts in the Office a workable 
and acceptable plan of desegregation and operation of the 
schools consonant with the practical and administrative 
problems faced by the Board. If such a plan can be agreed 
upon by July 30th, this Court will approve same unless 
the Plaintiffs at a hearing makes a satisfactory showing 
that the plan does not meet constitutional standards. If 
no plan is developed within the period referred to, the 
Office of Education is respectfully requested to submit to 
the Court as soon as practicable their recommendations 
for a workable plan. Absent a showing by the parties at 
a hearing, this Court will, after due consideration of any 
plan so submitted by the Office of Education, enter a de­
cree. Such a hearing will be held at Savannah on August 
8, 1969 at 10:00 o’clock a.m.

The Court expresses the earnest hope that an acceptable 
plan will evolve—one which, while satisfying judicial inter­
pretations of the Fourteenth Amendment, will not produce, 
through overnight revolution, complete disruption and an 
end product of a second or third rate education for the 
children of Burke County.

This June 20th, 1969.

A lexander  A . L aw rence  
Chief Judge, United States District Court 

Southern District of Georgia



85a

Order

(Filed August 22, 1969)

There came on to be heard on August 15, 1969 the matter 
of approval of the interim plan of desegregation of schools 
in the public school system of Burke County, Georgia de­
veloped by the Burke County Board of Education in col­
laboration with the Office of Education of the Department 
of Health, Education and Welfare and submitted pursuant 
to the order passed herein on June 20, 1969 to be effective 
for the 1969-70 school year; and it appearing that the 
proposed plan is acceptable to and has the approval of 
the Office of Education of the Department of Health, Edu­
cation and Welfare as applicable to that particular school 
year; and after hearing from counsel for plaintiffs and 
defendants, no satisfactory showing having been made why 
such plan should not be approved;

I t is ordered that said interim plan be and the same is 
hereby approved to be effective for the school year 1969-70 
with the Board of Education of Burke County to take the 
necessary steps to implement the same in all respects, which 
plan is substantially as follows:

Student Desegregation

1. All predominantly white schools will be brought up to 
capacity with Negro students so as to result in a minimum 
of 68 Negro students assigned to and enrolled in Waynes­
boro High School, a minimum of 167 Negro students as­
signed to and enrolled in Sardis-Girard-Alexander Elemen­
tary and High School, a minimum of 89 Negro students 
assigned to and enrolled in Waynesboro Elementary School 
and a minimum of 35 Negro students assigned to and en­
rolled in Midville Elementary School.



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Order

2. Vocational Department at Blakeney High School to 
serve the entire County with the schedule to be worked 
out by the Burke County Board of Education.

Desegregation of Faculty and other Staff

3. Full desegregation of faculty and other staff in the 
grades affected by the assignments of students as above, 
including district-wide desegregation of faculty and other 
staff in each school to at least 7 white and 14 Negro of 
the recommendation contained in Part 1 of Section III as 
set forth on page 4 of the document transmitted to the 
Court by the United States Office of Education, H.E.W., 
under date of August 11, 1969.

It is further ordered that the Board of Education of 
Burke County proceed promptly to consult and collaborate 
with the Office of Education of the Department of Health, 
Education and Welfare toward the development of a work­
able and acceptable plan of desegregation and operation of 
the schools in said County for the 1970-71 school year 
consonant with the practicable and administrative prob­
lems involved, and satisfying the constitutional require­
ments of the Fourteenth Amendment as judicially inter­
preted, and to submit such plan to the Court for consider­
ation and approval as soon as the same shall have been 
developed and agreed upon. Should no such plan be agreed 
upon and submitted by the Burke County Board of Educa­
tion as herein provided within a reasonable time hereafter, 
the Court shall thereupon require the Office of Education of 
the Department of Health, Education and Welfare to pre­
pare and submit to the Court its plan and recommendation 
following which the Court shall take appropriate action for 
the adoption and approval of a plan to be effective for the



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Order

1970-71 school year which shall be acceptable to the Court 
as meeting constitutional standards.

The Court retains jurisdiction for the passage of such 
further orders as may be appropriate with respect to any 
relief to which any party may hereafter be entitled in the 
premises.

This day of August, 1969.

/ s /  A lexander  A . L aw ren ce

Chief Judge, United States District Court 
Southern District of Georgia



88a

APPENDIX 8  

Order

(Filed August 12, 1969)

I n  t h e  U nited  S tates D istrict  C ourt 

F or t h e  M iddle D istrict  op G eorgia 

M acon  D ivision  

C iv il  A ction  N o. 1926

S h ir l e y  B iv in s , et al.,

v.
Plaintiffs,

B ibb C o u n ty  B oard of E ducation  and  
O rph an ag e  for B ibb C o u n t y , et a l .,

Defendants.

B ootle, District Judge:

The schools in the Bibb County system began their de­
segregation program on a graduated basis, certain grades 
by certain years, under order of this court dated April 24, 
1964. Later by order dated June 29, 1967 a Jefferson-type 
decree was entered requiring compulsory freedom of choice 
by all students and desegregation of all grades commencing 
with 1967-68.

On June 28, 1968, plaintiffs, encouraged by and citing, 
Green v. School Board of Neiv Kent County, 391 U. S. 430, 
20 L. ed. 716 decided May 27, 1968, tiled their Motion for 
further relief. An evidentiary hearing was held on August 
19, 1968. Then on September 16, 1968 this court issued an 
interim order reciting that



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Order

(1) of the total of 58 schools 34 had been desegregated 
as to students, and 55 as to faculty;
(2) 20% of the Negro students were attending formerly 
all-white schools;
(3) freedom of choice was complete and unfettered;
(4) no student choosing to attend a school where his 
race was in the minority was being denied his right 
to do so;

(5) 62% of all students were then attending bi-racial 
schools;

(6) that four formerly all-white schools had virtually 
reached the overall county wide ratio of 60% to 40% 
Negro;
(7) that one formerly all-white school had obtained 
the ratio of 53% Negro and 47% white;
(8) that ten other formerly all-white schools then 
ranged in Negro student attendance from 9% to 26% ;

(9) that out of a total faculty of 1614, 139 were then 
teaching in schools of predominantly the opposite race,

and ordering the defendants to reassess the situation and 
submit by November 28,1968 a plan showing what they pro­
posed to do in light of then current court decisions.

Accordingly, on November 29, 1968 defendants replied 
that unquestionably in their judgment the freedom of choice 
plan is the only one by which a “unitary, non-racial system” 
for Bibb County can be obtained on a permanent basis, that 
in order to attain such a system so far as students are con­
cerned, such a system as to faculty must first be attained, 
that great progress was being made in all respects and



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Order

particularly with reference to obtaining faculty cross-overs, 
that these faculty cross-overs were being obtained even on 
a voluntary basis, that the cross-overs of 139 mentioned in 
the interim order had already (by November 29, 1968) in­
creased to 181 (with 307 seen possible by June 1, 1969). 
The plan accompanying this response proposed and strongly 
advocated the continuance of the freedom of choice plan 
and recited:

“ The freedom of choice for students has progressed 
very satisfactorily, except for the failure of white stu­
dents to choose all-Negro schools for attendance.

“The prospects are bright for continued integration 
of Negro students into formerly all-white schools; and, 
if some satisfactory method can be attained to expe­
dite integration of the faculties in the Negro schools, 
integration of students in these schools will improve.”

Forwarded to the court with this response and proposed 
plan were certain brochures, some of them containing pho­
tographs, which defendants’ stall had been keeping concern­
ing integrated activities at these schools including

“1) Workshop and seminar for desegregation;
“2) Sports;

“ 3) Steering Committee for Curriculum Development;
“4) ‘Inkwell,’ weekly newspaper of A. L. Miller Senior 
High School, Friday, October 4, 1968;

“5) ‘The Lasseter Lantern,’ weekly newspaper of Las- 
seter High School, Friday, October 25, 1968;

“6) Loose-leaf notebook with pictures of various inte­
grated classrooms from various schools, showing stu­
dents at work;



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Order

“7) Loose-leaf notebook showing ‘some of the integrated 
activities of Bibb County Schools, as reflected in news 
releases, etc.’ ;

“8) Loose-leaf notebook with pictures showing further 
integration in various schools, etc. of the system;

“9) Loose-leaf notebook disclosing additional pictures 
of classrooms and activities in the schools.”

Plaintiff filed no objections to the proposed plan of 
November 29, 1968 except such as are contained in their 
“ Motion for Further Relief” filed June 4, 1969. This latest 
motion for further relief makes no contention that freedom 
of choice is not really free, admits that over 20% of the 
Negro students in the County are attending formerly all- 
white schools, complains that actually too many Negro stu­
dents have chosen to attend four of the formerly all-white 
schools and lists the following figures:

“ 1968 Choice Period
School Race Total

(1) Alexander II White 341
Negro 266

(2) J. W. Burke White 489
Negro 254

(3) Clisby White 384
Negro 197

(4) Winship White 254
Negro 284



92a

“ 1969 C hoice  P eriod 
S chool

(1) Alexander II

(2) J. W. Burke

(3) Clisby

(4) Winship

Order

R ace T otal

White 268
Negro 357
White 315
Negro 333

White 295
Negro 263
White 196
Negro 342.”

So it is that the gravamen of plaintiffs’ complaint, if not 
their sole complaint (other than not enough faculty inte­
gration) is the fact that thus far no white students have 
chosen to attend any of the 20 formerly all-Negro schools. 
They thus argue that freedom of choice is not working, or 
is not working fast enough, to suit them and they pray for 
attendance zoning plus consolidation of grades or schools 
or both.

Defendants’ response to this June 4, 1969 Motion for 
Further Relief filed June 17, 1969, alleged, inter alia, that:

1. Twenty-seven per cent of the Negro students are now 
attending previously all-white schools and that by Septem­
ber 1, 1969 this will be increased to at least 30%;

2. The 139 faculty cross-overs above mentioned had 
increased to 184 (118 Negroes and 66 whites) with an esti­
mate of at least 239 by September 1, 1969;

3. Plans have been completed for the operation begin­
ning 1969-70 of a driver education center at a formerly 
all-Negro High School for 600 students completely inte-



93a

Order

grated, and that plans were underway for a complete 
duplication of this program at another of the formerly all- 
Negro High Schools also beginning 1969-70.

4. There was a steady improvement in the quality of 
education in the formerly all-Negro schools;

5. That included in the general presentments of the Bibb 
County Grand Jury for the October and December Terms, 
1968 was the following:

“The Bibb County Board of Education is to be com­
mended for the programs and over-all performance of 
all phases of the system along with the good race 
relations that exist in the schools.

“We find that the present plan of freedom of choice 
for students is working well and it is hoped that the 
courts will see fit to let this plan prevail. Progress has 
also been made in the integration of teachers and will 
continue under the present program.”

An amended response filed July 7, 1969 alleged, inter 
alia, (1) that the faculty cross-over figure had already 
reached 231 and revised the estimate for September 1, 1969 
from 239 to 278; (2) that a Summer School program was 
then being conducted involving an enrollment of 5,373 
students, 673 whites and 4,700 Negroes; that of these, 82 
white and 623 Negro students were in the Head Start 
Program conducted at seven centers, one at a formerly all- 
Negro school and six at formerly all-white schools; that all 
seven would have been at formerly all-Negro schools except 
that the United States required that these six be at for­
merly all-white schools; that of this Summer enrollment 
500 white and 1,500 Negro students were involved in a



94a

Order

library program conducted at nine centers, 8 formerly all- 
Negro and 1 formerly all-white, with some white students 
participating at each of the eight formerly all-Negro 
centers; of the remaining students participating in this 
program 21 whites attended Hamilton, formerly all-Negro, 
8 whites attended Maude Pye, formerly all-Negro, 1 white 
attended Hartley formerly all-Negro, and 8 whites attended 
Ballard Hudson Jr., formerly all-Negro, and at Winship 
School there were 41 white and 59 Negro students.

An evidentiary hearing was held on July 7 and July 8, 
1969. At this hearing there was admitted into evidence 
over the objections of plaintiffs all of the brochures and 
photographs above mentioned. The evidence adduced amply 
proved and established all of the factual allegations con­
tained in the above mentioned pleadings of the defendants 
and I find the facts to be as so alleged and as above recited.

At the conclusion of that hearing this court requested 
the defendants to study the Green case carefully and to 
submit proposed amendments to their present freedom of 
choice plan setting forth what additional steps they can 
take and are willing to take (meaning without impairing 
the educational efficiency of the schools, of course) in order 
to disestablish the racial identifiability of these 20 formerly 
all-Negro schools.

Accordingly, on July 18, 1969, defendants filed their 
“Proposed Amendments to Present Freedom of Choice 
Plan” consisting of eight typewritten pages. The plaintiffs 
have filed their written objections to these proposed amend­
ments and all these matters have been carefully considered.

The proposed amendments speak for themselves. A  very 
brief discussion will suffice.

Paragraph 1 will effectually prevent resegregation of 
any school by permitting defendants to limit the right of a



95a

Order

child to transfer to any school where his or her race in 
that school exceeds the percentage that the child’s race 
occupies county-wide.

Paragraph 2 sets forth fifteen additional steps defendants 
propose to take to eliminate completely and permanently 
any racial identification that may still persist with respect 
to any of the schools in the system, as follows:

(a) driver education courses in 2 formerly all-Negro 
High Schools and a formerly all-Negro Junior High 
School;

(b) a Pre-Vocational Laboratory-Oriented Program in 
formerly all-Negro Elementary schools;
(c) special reading clinics in formerly all-Negro ele­
mentary schools;
(d) continuance of “ Summer School Learning Adven­
tures 1969” almost exclusively in all-Negro schools;
(e) Confining the regular Summer School program of 
1970, and thereafter if feasible, to formerly all-Negro 
schools;

(f) prompt study of feasibility and desirability of 
closing certain of the formerly all-Negro schools ;

(g) issuing certificates and diplomas by the System 
without identifying the name of any particular school;
(h) rotating seminars for gifted students throughout 
the system with emphasis on holding same at formerly 
all-Negro schools;

(i) encouraging joint school activities involving stu­
dents from both formerly all-Negro and all-white 
schools, such meetings to be scheduled wherever fea­
sible at formerly all-Negro schools;



96a

Order

(j) studying the feasibility of constructing an Instruc­
tional Materials Center for joint use by teachers and 
students of both races;
(k) doing away with the unintentional and (until 
recently) unnoticed survival of the ancient practice 
of listing white and Negro schools separately in the 
System’s Yearbook;
(l) holding in-service meetings of teachers primarily 
at formerly all-Negro schools;
(m) complete integration of transportation facilities 
including assignment of some Negro bus drivers to 
busses primarily having white students;
(n) soliciting public cooperation in supporting the plan 
as amended;
(o) periodic review of these measures and careful 
attention and study of other action that might be under­
taken in the future.

Paragraph 3 proposes in view of recent appellate deci­
sions binding upon this court, including United States v.
Baldwin County Board, of Education, 5 Cir. 1969, ------  F.
2d — —, [No. 27281, July 9, 1969], immediate faculty in­
tegration to the extent that the race of at least 1 of every 
5 faculty members in a school must be different from the 
race of the majority of the faculty members of that school.

This court hereby approves the proposed amendments 
and hereby makes said proposed amendments a part of 
said plan.

This court finds that the defendants are acting in good 
faith in the premises and that the plan as hereby amended 
has “ real prospects for dismantling the (former) state- 
imposed dual system ‘at the earliest practicbale date’ ” .



97a

Order

Green v. School Board of New Kent County, 391 U. S. 430, 
20 L. Ed. 2d 716 (1968), and that it will do so “ in any way 
that will improve rather than disrupt the education of the 
children concerned.” H.E.W.’s Statement of Policy, July 
4, 1969.

This court further finds as facts and concludes as matters 
of law: (a) that this plan as hereby amended will be 
effective “ to effectuate a transition to a racially nondis- 
criminatory school system.” Broivn 11, 349 U.S. at 301; 
Green v. School Board of New Kent County, 391 U. S. 430, 
28 L. Ed. 2d 716 (1968). This assumes, of course, as this 
court has a right to assume and expect, full and complete 
compliance with said plan as amended; (b) said plan is 
adequate “ to convert [the former dual system] to a unitary 
system in which racial discrimination a [would] will be 
eliminated root and branch” ; Green, supra; (c) the plan as 
amended “promises realistically to work now” , Adams, et
al. v. Matthews, et al, 5 Cir. 1969,------F. 2d------- [No. 26501,
August 26,1968], (d) inasmuch as the defendants are acting 
in good faith and the plan has real prospects for disman­
tling the former state-imposed dual system at the earliest 
practicable date “ it provide(s) effective relief.” Green v. 
School Board of New Kent County, supra.

For this court’s appraisal and appreciation of freedom 
of choice as being entirely lawful and the best and fairest 
method yet suggested for accomplishing desegregation, see 
memorandum opinion in the case of Hilson, et al v. Ousts, 
et al, in Civil Action No. 2449, Macon Division, August 8 
1969.

This memorandum is intended to suffice as findings of a 
fact and conclusions of law.

So Ordered, this 12th day of August, 1969.

/ s /  W . A. B ootle

United States District Judge



98a

APPENDIX 9 

Order

(Filed August 12, 1969)

In the

UNITED STATES DISTRICT COURT 
For the Middle District of Georgia 

Macon Division 

Civil A ction N o. 2077

Oscar C. Thomie, Jr., et al.,
Plaintiffs,

v.

Houston County Board of Education,

Defendant.

Bootle, District Judge:

The schools of this system are operating under a freedom 
of choice plan approved by this court originally on May 20, 
1965. That plan was on a graduated basis, desegregating 
certain classes by certain years. The plan was accelerated 
by a further decree of April 24, 1967. Later and on Sep­
tember 7, 1967 “as of” June 22, 1967, a full Jefferson-type 
decree was entered desegregating all grades commencing 
1967-68 and requiring all students both white and Negro 
to exercise free choice annually. Then on June 28, 1968, 
inspired by and relying upon, Green v. School Board of 
New Kent County, 391 U. S. 430, 20 L. Ed. 716, decided 
May 27, 1968, plaintiffs filed their Motion for Further 
Relief complaining that during the March, 1968 choice



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Order

period only 17.9% of the 3,210 Negro students had chosen 
to attend previously all-white schools and that no white 
students had chosen to attend previously all-Negro schools. 
They seek some form of forcible assignment of students as 
by zoning, or pairing “designed to effect racially balanced 
schools.”

Defendants’ response to the Motion alleged that the 
March, 1968, choice percentage was approximately 19% 
rather than 17.9%, as alleged; that freedom of choice had 
not failed, and that in any event defendants would be un­
able to perform and comply with a decree such as plain­
tiffs sought.

On August 19, 1968 an evidentiary hearing was held.
On September 30, 1968, an interim order was issued 

correctly reciting that considerable progress had been made 
under the Jefferson decree; that of the total of 23 schools, 
16, had been desegregated as to students and 20 as to 
faculty; that 18.8% of the Negro students were attending 
formerly all-white schools, counting 53 Negro students re­
questing and approved for enrollment in previously all- 
white schools but who as of September 6, 1968 had not 
enrolled in any school in the system and whom the school 
authorities were attempting to locate (if these 53 are not 
counted the correct percentage would be 17.2); freedom of 
choice is really free and unfettered; 77.7 % of all students 
were attending bi-racial schools; total enrollment was 
15,512, 12,217 (78%) white and 3,295 (22%) Negro; in 
one formerly all-white school Watson Elementary 23.3% 
enrollment was Negro, and that as to faculty 25 persons 
out of a total of 668 had crossed-over, exclusive of 8 white 
persons working systemwide in all schools. Said order 
invited the defendants to reassess the situation and submit 
an amended plan.



100a

Order

The defendants’ response, filed November 27, 1968, sub­
mitted that freedom of choice was working satisfactorily 
and that the suggested alternative methods were not rea­
sonably available, and were not feasible. It submitted fur­
ther that the condition of having only Negro students in a 
few schools would “ resolve itself as students transfer, Ne­
gro faculty transfer out and white faculty transfer in.”

A second interim order dated June 18, 1969 requested 
up-to-date information and defendants responded on June 
25, 1969, inter alia, that whereas there were 33 faculty 
cross-overs in 1968-69 they planned 43 for 1969-70, 33 Ne­
gro and 10 white.

On June 25, 1969 plaintiffs filed their second Motion for 
Further Relief seeking zoning and consolidation of grades 
or schools or both. A  second evidentiary hearing was held 
on July 8, 1969, at the conclusion of which the court 
ordered the defendants to file proposed amendments to 
their freedom of choice plan setting forth all steps they 
thought they could safely take toward disestablishing the 
racial identifiability of all the schools in this system in­
cluding a fair and somewhat liberal transfer of faculty 
members, meaning of course without impairing the educa­
tional efficiency of the schools. The plaintiffs were also 
invited to file a proposed plan. And the Department of 
Health, Education and Welfare was invited to confer with 
defendants and file a proposed plan except that if all three 
could agree, only one plan would be necessary, or if any 
two and only two could agree on a plan, then only two 
plans would be necessary. H.E.W. filed a proposed plan 
and so did the defendants. The plaintiffs did not. The 
defendants have filed many detailed specific objections to 
the H.E.W. plan which was based on zoning, pairing and 
consolidation, alleging that it is unworkable and would dis­
rupt the system bringing chaos and confusion.



101a

Order

The case is now ready for a final order insofar as an 
order in a school case is ever final.

This memorandum is intended to suffice as findings of 
fact and conclusions of law.

I find the facts to he as recited in the pleadings of the 
defendants and as stated and summarized above. I find 
additonally that the faculty ratio is approximately 20% 
Negro and 80% white, with substantial vacancies now 
existing, approximately the same as the student enrollment 
recited above as 22% Negro and 78% white. Defendants 
have many and difficult problems in faculty recruitment. 
An unusually large percentage of faculty comes from out­
side the County. In a good faith effort to achieve faculty 
desegregation in the fall of 1968, 9 additional Negro teach­
ers were assigned to teach in white schools but resigned.

This brings us now to a brief discussion of the defen­
dants’ proposed amendments. They cover six typewritten 
pages and speak for themselves.

Paragraph 1 deals with the faculty and this court is 
convinced that the defendants have conscientiously, with 
respect to faculty integration as well as with respect to all 
other matters dealt with in said proposed amendments, 
fairly gauged their own ability with respect to going as 
far as they safely can in an effort to disestablish the racial 
identifiability of all schools in the system without impair­
ing the educational efficiency of the system. In substance, 
they propose to achieve a ratio of five Negro teachers to 
one white teacher in all of the formerly all-Negro schools 
in the system, transferring to the formerly all-white schools 
all Negro teachers displaced by the white teachers. All 
staff meetings and all faculty meetings will be integrated 
as will all teacher in-service meetings.

Paragraph 2 deals with students and points out that 
at the end of the free choice period recently held 21.1% of



102a

Order

the Negro students have chosen to attend formerly all- 
white schools. This figure will jump to 28% this fall when 
grades 9—12 in the Pearl Stephens High School, formerly 
all-Negro, is phased out causing some 204 Negro students 
to be moved into two formerly all-white schools. Addition­
ally, Elberta School, presently attended only by Negro stu­
dents, will be discontinued thereby giving its 176 Negro 
students the further opportunity to choose formerly all- 
white schools if they so desire. Additionally, consideration 
is being given to the feasibility of phasing out the seventh 
and eighth grades in Pearl Stephens School, formerly all 
Negro, thus necessitating the choice of some other school 
by those students. School bus transportation is to be 
completely nonsegregated. Resegregation is to be avoided 
by the Board’s being authorized to restrict pupil transfers 
and the exercise of freedom of choice to a reasonable ap­
proximation of the race ratio existing in the school popu­
lation.

Paragraph 3 lists eight additional steps to be taken by 
the'defendants, namely: (a) the initiation of a minimum 
of 15 interchanges of classes per school term for seventh 
and eighth grade students in industrial arts, home econom­
ics, and academic activities between Rumble and Tabor 
Junior High Schools, formerly all-white, and Pearl Ste­
phens School, formerly all-Negro; (b) the initiation of a 
minimum of 15 such exchanges per school term in classes 
in vocational and academic activities in the Perry area in 
predominantly Negro and predominantly white schools; (c) 
the initiation of an exchange of students at the elementary 
level from formerly all-white schools to formerly all-Negro 
schools, and vice versa, it being contemplated that all 
classes in the formerly all-Negro schools will have this 
experience during the school year and that necessarily a



103a

Order

comparable number of classes from the formerly all-white 
schools will make the exchange over into the formerly all- 
Negro schools; (d) the initiation, if defendants’ application 
for funds therefor is granted, of a comprehensive driver 
training program to be held daily on a fully integrated 
basis; (e) joint meetings once each quarter on a rotation 
basis between the schools of student councils, newspaper 
staffs, annual staffs, and class officers in the seventh through 
twelfth grades; (f) converting Elberta School, formerly 
all-Negro, into an Adult Basic Educational Learning Cen­
ter fully integrated; (g) the holding of the Summer School 
program exclusively at formerly all-Negro schools at the 
elementary level; and (h) a feasibility study looking to­
ward closing certain other formerly all-Negro schools and 
finding further activities to eradicate racially identifiable 
schools.

Defendants represent to the court that these proposed 
amendments are wise and prudent at this time and that 
their implementation will not cause a deterioration in the 
quality of education provided to the students in the system. 
They represent to the court further that in their opinion 
nothing further can be accomplished at this time without 
placing in jeopardy the quality of education provided for 
the children of the County.

This court hereby approves the proposed amendments 
and hereby makes said proposed amendments a part of 
said plan.

This court finds that the defendants are acting in good 
faith in the premises and that the plan as hereby amended 
has “ real prospects for dismantling the (former) state im­
posed dual system ‘at the earliest practicable date.’ ” 
Green v. School Board of New Kent County, 391. U.S. 430, 
20 L. Ed. 2d 716 (1968), and that it will do so “ in a way



104a

Order

that will improve rather disrupt the education of the chil­
dren concerned.” H.E.W.’s Statement of Policy, July 4, 
1969.

This court further finds as facts and concludes as matters 
of law: (a) that this plan as hereby amended will be effec­
tive “ to effectuate a transition to a racially nondiscrimina- 
tory school system.” Brown II, 349 U.S. at 301; Green v. 
School Bonrcl of New Kent County, 391 U.S. 430, 20 L. Ed. 
2d 716 (1968). This assumes, of course, as this court has 
a right to assume and expect, full and complete compli­
ance with said plan as amended; (b) said plan is adequate 
“ to convert [the former dual system] to a unitary system 
in which racial discrimination [would] will be eliminated 
root and branch” ; Green, supra; (c) the plan as amended 
“ promises realistically to work now,” Adams v. Mathews, 
403 F. 2d 181 (5th Cir. 1968), (d) inasmuch as the defen­
dants are acting in good faith and the plan has real 
prospects for dismantling the former state-imposed dual 
system at the earliest practicable date “ it provide(s) effec­
tive relief.” Green v. School Board of New Kent County, 
supra.

For this court’s appraisal and appreciation of freedom 
of choice as being entirely lawful and the best and fairest 
method yet suggested for accomplishing desegregation, see 
memorandum opinion in the case of Hilson, et al. v. Ousts, 
et al., Civil Action No. 2449, Macon Division, August 8, 
1969.

So O rdered, this 12 day of August, 1969.

W. A. B ootle

United States District Judge



105a

APPENDIX 10 

Order
(Filed March 4, 1969)

I n  t h e  U n ited  S tates D istrict  C ourt 

F or t h e  N o rthern  D istrict  o p  F lorida 

M arian n a  D ivision  

M a rian n a  C iv il  A ction  N o . 572

J ean  C arolyn  Y oungblood, et a l .,

U nited  S tates of A m erica ,

Plaintiffs,

vs.
Plaintiff -Intervenor,

T h e  B oard of P ublic  I n stru ction  of 
B ay  C o u n ty , F lorida, et a l .,

Defendants.

The Court has concluded that there was no need what­
soever for an evidentiary hearing for consideration of 
defendants’ proposed plan for school year 1969-70. Every 
conceivable scrap of factual data about the operation of the 
schools under the defendants’ jurisdiction has been placed 
upon the record, including a detailed so-called “ dot map” 
showing the residences of school children and the location 
of the schools. In addition, the record is replete with statis­
tics which show precisely the racial composition of each 
school with respect to pupils, teachers and administrative 
personnel. There are simply no more relevant facts to be 
obtained. Every request for information and data by either



106a

Order

party has been buttressed by an order of the Court and has 
been complied with.

At hearing on this motion, counsel suggested that evi­
dence might be presented by experts to advise the Court 
what, in their opinion, would be the best solution to the 
various problems. By denying this motion for evidentiary 
hearing, counsel is not precluded from tiling with the Court 
any suggestions supported by scholars or experts in any 
field and the same will be fully considered. This may be 
made part of counsel’s brief if it is so desired.

In the final analysis, however, the posture of this litiga­
tion for this year simply calls for a judicial decision which 
must be made by the Court upon the facts now thoroughly 
and fully developed.

Moreover, there is a time factor involved here. This 
school system is operating under a Jefferson-type decree 
which went into effect September 1967. Further protracted 
delays could only lead to the waste of public funds for 
educational purposes in the necessary planning for the open­
ing of the schools in September 1969, together with attend­
ant utter confusion for thousands of school children, fac­
ulty, and those charged with the administration of the 
public schools. Realizing this, this Court in January 1969 
directed that all basic data needed by either party be made 
part of the record as soon as practicable. A schedule was 
established looking first to a hearing on April 10. Upon 
reconsideration, the Court determined that this schedule 
was too slow and was accelerated to the point that all the 
factual data was required to be filed much earlier. Under 
the direction of the Court the defendants filed their plan 
under the accelerated schedule. Counsel for plaintiffs have 
made oral motion for an opportunity to tile further brief 
or comment with respect to the proposed plan heard and



107a

Order

considered on March 3, 1969 and this is granted under a 
schedule whereby all briefs, by both plaintiffs and defen­
dants, will he filed by March 14, 1969.

D one and  O rdered in Chambers at Tallahassee this 4th 
day of March 1969.

G. H arrold C arsw ell  
Chief Judge



108a

Order

(Filed April 3, 1969)

All facts were fully developed upon this record showing 
the composition of the various schools under the jurisdic­
tion ot this defendant Board of Public Instruction by race 
with respect to both students and teachers. The plaintiffs 
and plaintiff-intervenor both moved for the defendant to 
tile a “dot map” showing the location of children by race 
within the system and the location of the various school 
buildings to which they were to be assigned. Numerous 
hearings have been held with counsel present and all of the 
various proposals have been considered, including plan sub­
mitted by the defendant Board and filed herein on Feb­
ruary 20, 1969, together with objections to such plan by 
plaintiffs and plaintiff-intervenor.

The record shows that the Jefferson type decree under 
which this school system has operated since April 19, 1967 
has resulted in substantial desegregation throughout the 
county. It is clear, however, that 4 of the 26 schools under 
the jurisdiction of this Board, 3 of them being elementary, 
are attended by Negroes only, i.e., Shaw, Patterson, Harris, 
and Rosenwald Junior High School. (There are some white 
kindergarten students presently enrolled at Patterson Ele­
mentary School.)

The Board has proposed basically that steps be taken 
to bring about the racial integration of these particular 
schools. The Court concludes that the only alternative 
which has been suggested that is likely to eliminate segre­
gation in these particular areas would require either 
jerrymandered districts or extensive bussing, neither of 
which are practicable or commensurate with the conduct of 
educational purposes for small children. Moreover, the 
Court concludes that there would actually be substantially



109a

Order

less integration in the system as a whole if the rigid 
requirements proposed by plaintiff-intervenor and plain­
tiffs were put into effect with no relevant benefit to pupils 
or teachers alike.

It is, therefore, upon consideration, hereby
O rdered :

1. Insofar as it is not inconsistent with the specific 
requirements of this order the decree of this Court dated 
April 10, 1967 and filed April 19, 1967, remains in full 
force and effect.

2. The defendant Board of Public Instruction of Bay 
County, Florida, and the defendant Superintendent of Pub­
lic Instruction of Bay County, Florida, be and they are 
hereby directed as follows :

(1) That special attention shall be given to the four 
schools found to be all or predominantly Negro, namely 
Patterson Elementary School, Shaw Elementary School, 
Harris Elementary School, and Rosenwald Junior High 
School, in an effort to attract white students under freedom 
of choice to choose one of said schools, including but not 
limiting its action as follows:

(a) Upon application the Board shall allow any Negro 
student in these four schools to transfer to any other school 
in the county during the school year 1969-70 or subsequent 
years conditioned only on space being available in the school 
requested or unless strong and compelling reasons appear 
to deny said request.
(b) Upon application the Board shall allow at any time 
during the 1969-70 school year or subsequent school years 
the transfer into any of these four schools by any white



110a

Order

student conditioned only on space being available or unless 
strong and compelling reasons appear to deny said request.

(c) The Board shall establish such programs in these 
four schools to make them more attractive for students of 
all races. These programs shall include hut not he limited 
to remedial reading programs, the use of para-professional 
assistants to teachers in each of the four schools, up-grading 
of the library facilities, including films and laboratory 
equipment.

(d) The Board is directed to make substantial increase 
in the desegregation of the faculty in each of the above 
four schools. The Board shall attempt to procure said 
desegregation voluntarily hut should that fail involuntary 
assignments shall he made. The Board shall have a mini­
mum of one-third and no more than one-half of the faculty 
in each of the said four schools of a different race than 
predominates in the school body in each of the said four 
schools.

(e) The Board shall schedule athletic events between all 
athletic teams represented by the above-named predomi­
nantly Negro schools and all predominantly white schools 
throughout the county 1969 and subsequent years.

3. For long range planning the Board is directed that 
new school sites shall he selected in geographic locations 
where the likelihood of racial integration would be the 
normal result in the neighborhood surrounding the site.

4. No substantial additions may be made to the physical 
plants of Shaw Elementary School, Harris Elementary 
School, Patterson Elementary School, and Rosenwald Ju­
nior High School while the same are all Negro or nearly 
all Negro in the composition of their respective student



111a

Order

bodies. The Board shall, however, keep these physical 
plants in repair and minor renovations are not prohibited 
to existing facilities where needed for a proper educational 
program in said schools.

5. The Board is directed to work toward the establish­
ment of school zones in the county so as to accomplish a 
student body composition of approximately 20% Negroes 
in all of the schools of Bay County, with the exception of 
rural outlying communities where there are either no Ne­
groes or very few Negroes, or no whites or very few whites, 
in residence there.

6. The choice period as set forth by the decree of this 
Court filed April 19, 1967 is hereby amended to provide 
that freedom of choice period shall begin on April 14, 1969 
and end on May 16, 1969.

7. The defendant Board is hereby authorized to reassign 
any and all students who have previously chosen to attend 
a school where their race is in a minority to the same school, 
or where appropriate by grade advancement or for other 
compelling reasons, to another school where their race is 
in a minority. The only exception to this shall be for good 
and compelling reasons.

8. This order is effective as of this date for the opera­
tion of the school year 1969-70.

9. The Court retains jurisdiction of this cause for the 
entry of such further orders as may be advisable.

D one and  O rdered in Chambers at Tallahassee this 3rd 
day of April 1969.

G. H arrold C arsw ell  
Chief Judge



112a

APPENDIX I I  

Order
(Filed March 4, 1969)

I n t h e  U n ited  S tates D istrict  C ourt 

F or t h e  N o rth ern  D istrict  of F lorida 

G ainesville  D ivision  

G ainesville  C iv il  A ction  N o. 367

L avon W r ig h t , a minor, by R everend  T. A. W r ig h t , 
her father and next friend, et al.,

Plaintiffs,
vs.

B oard op P u blic  I n stru ction  op A l a c h u a  C o u n t y , 
F lorida, as p u b lic  b o d y  co r p o ra te , et al.,

Defendants.

The Court has concluded that there was no need what­
soever for an evidentiary hearing for consideration of de­
fendants’ proposed plan for school year 1969-70. Every 
conceivable scrap of factual data about the operation of 
the schools under the defendants’ jurisdiction has been 
placed upon the record, including a detailed so-called “dot 
map” showing the residences of school children and the 
location of the schools. In addition, the record is replete 
with statistics which show precisely the racial composition 
of each school with respect to pupils, teachers and admin­
istrative personnel. There are simply no more relevant 
facts to be obtained. Every request for information and



113a

Order

data by either party has been buttressed by an order of 
the Court and has been complied with.

At hearing on this motion, counsel suggested that evi­
dence might be presented by experts to advise the Court 
what, in their opinion, would be the best solution to the 
various problems. By denying this motion for evidentiary 
hearing, counsel is not precluded from filing with the Court 
any suggestions supported by scholars or experts in any 
field and the same will be fully considered. This may be 
made part of counsel’s brief if it is so desired.

In the final analysis, however, the posture of this litiga­
tion for this year simply calls for a judicial decision which 
must be made by the Court upon the facts now thoroughly 
and fully developed.

Moreover, there is a time factor involved here. This 
school system is operating under a Jefferson-type decree 
which went into effect September 1967. Further protracted 
delays could only lead to the waste of public funds for 
educational purposes in the necessary planning for the 
opening of the schools in September 1969, together with 
attendant utter confusion for thousands of school children, 
faculty, and those charged with the administration of the 
public schools. Realizing this, this Court in January 1969 
directed that all basic data needed by either party be made 
part of the record as soon as practicable. A  schedule was 
established looking first to a hearing on April 10. Upon 
reconsideration, the Court determined that this schedule 
was too slow and was accelerated to the point that all the 
factual data was required to be filed much earlier. Under 
the direction of the Court the defendants filed their plan 
under the accelerated schedule. Counsel for plaintiffs have 
made oral motion for an opportunity to file further brief



114a

Order

or comment with respect to the proposed plan heard and 
considered this date and this is granted under a schedule 
whereby all briefs, by both plaintiffs and defendants, will 
be filed by March 18, 1969.

Done and Ordered in Chambers at Tallahassee this 4th 
day of March 1969.

/ s /  0 .  H arrold C arswell 
Chief Judge



115a

Order
(Filed April 3, 1969)

After full development of all pertinent facts concerning 
the operation of the public schools under the jurisdiction 
of the defendant Board of Public Instruction of Alachua 
County, Florida, and after several hearings with counsel 
for all the parties being present and heard, the Court finds 
that the factual data on this record fully supports the 
Court’s conclusion that the plan for the operation of the 
public school system of Alachua County under the juris­
diction of this defendant as filed with this Court on Feb­
ruary 28, 1969, should be approved.

The Court finds that the freedom of choice plan under 
which this system has operated since September 1967 has 
worked effectively in all but a very few instances. It is 
apparent that the freedom of choice plan has not worked 
effectively, or rather not at all, in three elementary schools,
i.e., Duval, Williams, and A. Quinn Jones. The Court con­
clude that the establishment of arbitrary zone lines at this 
point, however, would definitely result in substantially less 
integration in the system then is now the case and even 
more importantly, this Board, through its plan filed Feb­
ruary 28, 1969, has effectively come forward with concrete 
proposals which will eliminate the last vestiges of segrega­
tion throughout the entire system. The Court notes with 
particular emphasis that the county system is being divided 
into four broad zones and that as soon as buildings are 
completed, all now funded and some under construction, 
the plan will be fully effective and operative, and no later 
than 1971.

Due to the fortuitous geographical distribution of the 
races in Alachua County, Florida, and the foresight of the 
Board in good faith compliance with the Constitutional 
mandate upon it segregation will be eliminated if this plan 
is carried out. There simply will be no black or white 
schools within the ambit of the Board’s jurisdiction, just



116a

Order

schools. While percentages of racial population of the 
schools, either students or faculty, is not arbitrarily re­
quired, it is clear that the school children and teachers 
will bear a fair and reasonable relationship to the popula­
tion as a whole of the entire county in each school building. 
It is difficult to conceive of a plan which would more nearly 
meet Constitutional requirements in this regard. There is 
no basis whatsoever for suspecting that the Board will not 
fully comply with the provisions of the plan here approved. 
On the contrary the Court specifically finds that this Board 
has operated in all good faith in an effort to meet fully 
the requirements of the law. It is, therefore, upon considera­
tion, hereby

O rdered :

1. The plan proposed for the operation of the schools 
under the jurisdiction of the defendant, the Board of Public 
Instruction of Alachua County, Florida, be and it is hereby 
approved and adopted by this Court and by this reference 
made a part of this order.

3. Insofar as it is not inconsistent with the specific re­
quirements of this order the Decree of this Court dated 
and filed A p r il  25, 1967  remains in full force and effect.

4. The Court retains jurisdiction of this cause for the 
entry of such further orders as may be necessary or 
advisable.

D one and O rdered in Chambers at Tallahassee this 3rd 
day of April 1969.

/ s /  C. H arrold C arsw ell  
Chief Judge



117a

APPENDIX 12

Opinion in Court of Appeals Dated December 1, 1969

IN THE

United States Court of Appeals
FOR THE FIFTH CIRCUIT

N o . 2 6 2 8 5

DEREK JEROME SINGLETON, ET AL,
Appellants,

versus

JACKSON MUNICIPAL SEPARATE 
SCHOOL DISTRICT, ET AL,

Appellees.

Appeal from  the United States District Court 
for the Southern District of Mississippi

N o . 2 8 2 6  1

CLARENCE ANTHONY, ET AL,
Appellants,

versus

MARSHALL COUNTY BOARD OF EDUCATION,
Appellee.

Appeal from  the United States District Court 
for the Northern District of Mississippi



118a

Opinion in Court of Appeals Dated December 1 , 1969

N o . 2 8 0 4 5

UNITED STATES OF AMERICA,

versus
Appellant,

CHARLES F. MATHEWS, ET AL,
Appellees.

Appeal from  the United States District Court 
for the Eastern District of Texas

N o . 2 8 3 5 0

LINDA STOUT, by her father and next friend 
BLEVIN STOUT, ET AL,

Plaintiffs-Appellants, 
UNITED STATES OF AMERICA,

Plaintiff-Intervenor,
versus

JEFFERSON COUNTY BOARD OF EDUCATION, ET AL,
Defendants-Appellees,

DORIS ELAINE BROWN, ET AL,
Plaintiffs-Appellants, 

UNITED STATES OF AMERICA,
Plaintiff-Intervenor,

versus

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

Defendants-Appellees.



119a

Opinion in Court of Appeals Dated December 1 , 1969

Appeal from  the United States District Court 
for the Northern District of Alabama

N o . 2 8 3 4 9

BIRDIE MAE DAVIS, ET AL,
Plaintiffs-Appellants, 

UNITED STATES OF AMERICA,
Plaintiff-Intervenor,

versus

BOARD OF SCHOOL COMMISSIONERS OF 
MOBILE COUNTY, ET AL,

Defendants-Appellees, 
TWILA FRAZIER, ET AL,

Defendants-Intervenor-Appellees.

Appeal from  the United States District Court 
for the Southern District of Alabama

N o . 2 8 3 4 0

ROBERT CARTER, ET AL,
Plaintiff s-Appellants,

versus

WEST FELICIANA PARISH SCHOOL BOARD, ET AL,
Defendants-Appellees,

SHARON LYNNE GEORGE, ET AL,
Plaintiff s-Appellants,

versus

C. WALTER DAVIS, PRESIDENT, EAST FELICIANA 
PARISH SCHOOL BOARD, ET AL,

Defendants-Appellees.



120a

Opinion in Court of Appeals Dated December 1, 1969

Appeal from  the United States District Court 
for the Eastern District of Louisiana

N o . 2 8 3 4 2

IRMA J. SMITH, ET AL,
Plaintiffs-Appellants,

versus

CONCORDIA PARISH SCHOOL BOARD, ET AL,
Defendants-Appellees.

Appeal from  the United States District Court 
for the W estern District of Louisiana

N o . 2 8 3 6 1

HEMON HARRIS, ET AL, 
Plaintiffs-Appellants-Cross Appellees,

versus

ST. JOHN THE BAPTIST PARISH SCHOOL BOARD,
ET AL,

Defendants-Appellees-Cross Appellants.

Appeal from  the United States District Court 
for the Eastern District of Louisiana



121a

Opinion in Court of Appeals Dated December 1 , 1969

N o . 2 8 4 0 9

NEELY BENNETT, ET AL,
Appellants,

versus

R. E. EVANS, ET AL,
Appellees,

ALLENE PATRICIA ANN BENNETT, a minor, by 
R. B. BENNETT, her father and next friend,

versus
Appellants,

BURKE COUNTY BOARD OF EDUCATION, ET AL,
Appellees.

Appeal from  the United States District Court 
for the Southern District of Georgia

N o . 2 8 4 0 7

SHIRLEY BIVINS, ET AL,
Plaintiffs-Appellants,

versus

BIBB COUNTY BOARD OF EDUCATION AND 
ORPHANAGE FOR BIBB COUNTY, ET AL,

Defendants-Appellees.

Appeal from  the United States District Court 
for the Middle District of Georgia



122a

Opinion in Court of Appeals Dated December 1, 1969

N o . 2 8 4 0 8

OSCAR C. THOMIE, JR., ET AL,
Plaintiffs-Appellants,

versus

HOUSTON COUNTY BOARD OF EDUCATION,
Defendants-Appellees.

Appeal from the United States District Court 
for the Middle District of Georgia

N o . 2 7 8 6 3

JEAN CAROLYN YOUNGBLOOD, ET AL,
Plaintiffs-Appellants, 

UNITED STATES OF AMERICA,
Plaintiff-Intervenor,

versus

THE BOARD OF PUBLIC INSTRUCTION 
OF BAY COUNTY, FLORIDA, ET AL,

Defendants-Appellees.

Appeal from  the United States District Court 
for the Northern District of Florida



123a

Opinion in Court of Appeals Dated December 1, 1969

N o . 2 . 7 9 8 3

LA VON WRIGHT, ET AL,
Plaintiffs-Appellants,

versus

THE BOARD OF PUBLIC INSTRUCTION OF 
ALACHUA COUNTY, FLORIDA, ET AL,

Defendants-Appellees.

Appeal from the United States District Court 
for the Northern District of Florida

(Decem ber 1,1969)

Before BROWN, Chief Judge, WISDOM, GEWIN, BELL, 
THORNBERRY, COLEMAN, GOLDBERG, AINS­
WORTH, GODBOLD, DYER, SIMPSON, MORGAN, 
CARSWELL, and CLARK, Circuit Judges, EN BANC.*

PER CURIAM: These appeals, all involving school
desegregation orders, are consolidated for opinion pur­
poses. They involve, in the main, common questions of 
law and fact. They were heard en banc on successive 
days.

•Judge Wisdom did not participate in Nos. 26285, 28261, 28045, 
28350, 28349 and 28361. Judge Ainsworth did not participate in 
No. 28342. Judge Carswell did not participate in Nos. 27863 and 
27983. Judge Clark did not participate in No. 26285.



124a

Following our determination to consider these cases 
en banc, the Supreme Court handed down its decision 
in Alexander v. Holmes County Board of Education, 
1969,____ U.S______, 90 S.Ct_____ , 24 L.Ed.2d 19. That de­
cision supervened all existing authority to the contrary. 
It sent the doctrine of deliberate speed to its final rest­
ing place. 24 L.Ed.2d at p. 21.

The rule of the case is to be found in the direction to 
this court to issue its order “ effective immediately de­
claring that each of the school districts . . . may no 
longer operate a dual school system based on race or 
color, and directing that they begin immediately to 
operate as unitary school systems within which no per­
son is to be effectively excluded from any school be­
cause of race or color.” We effectuated this rule and 
order in United States v. Hinds County School Board,
5 Cir., 1969,____ F.2d____ , [Nos. 28,030 and 28,042, slip
opinion dated Nov. 7, 1969], It must likewise be effectu­
ated in these and all other school cases now being or 
which are to be considered in this or the district courts 
of this circuit.

The tenor of the decision in Alexander v. Holmes 
County is to shift the burden from  the standpoint of 
time for converting to unitary school systems. The 
shift is from a status of litigation to one of unitary oper­
ation pending litigation. The new modus operandi is to 
require immediate operation as unitary systems. Sug­
gested modifications to unitary plans are not to delay 
implementation. Hearings on requested changes in uni­
tary operating plans may be in order but no delay in 
conversion may ensue because of the need for modifi­
cation or hearing.

Opinion in Court of Appeals Dated December 1, 1969



126a

plishment of the immediacy requirement laid down in 
Alexander v. Holmes County.

Despite the absence of plans, it will be possible to 
merge faculties and staff, transportation, services, ath­
letics and other extra-curricular activities during the 
present school term. It will be difficult to arrange the 
merger of student bodies into unitary systems prior to 
the fall 1970 term in the absence of merger plans. The 
court has concluded that two-step plans are to be im­
plemented. One step must be accomplished not later 
than February 1, 1970 and it will include all steps neces­
sary to conversion to a unitary system save the mer­
ger of student bodies into unitary systems. The student 
body merger will constitute the second step and must 
be accomplished not later than the beginning of the 
fall term 1970.' The district courts, in the respective 
cases here, are directed to so order and to give first 
priority to effectuating this requirement.

To this end, the district courts are directed to re­
quire the respective school districts, appellees herein, 
to request the Office of Education (HEW) to prepare

'Many faculty and staff members will be transferred under step one. 
It will be necessary for final grades to be entered and for other 
records to be completed, prior to the transfers, by the trans­
ferring faculty members and administrators foT the partial 
school year involved. The interim period prior to February 1, 
1970 is allowed for this purpose.

The interim period prior to the start of the fall 1970 school 
term is allowed for arranging the student transfers. Many stu­
dents must transfer. Buildings will be put to new use. In some 
instances it may be necessary to transfer equipment, supplies 
or libraries. School bus routes must be reconstituted. The period 
allowed is at least adequate for the orderly accomplishment 
of the task.

Opinion in Court of Appeals Dated December 1, 1969



125a

In Alexander v. Holmes County, the court had unitary 
plans available for each of the school districts. In ad­
dition, this court, on remand, gave each district a limi­
ted time within which to offer its own plan. It was ap­
parent there, as it is here, that converting to a unitary 
system involved basically the merger of faculty and 
staff, students, transportation, services, athletic and 
other extra-curricular school activities. We required 
that the conversion to unitary systems in those districts 
take place not later than December 31, 1969. It was the 
earliest feasible date in the view of the court. United 
States v. Hinds County, supra. In three of the systems 
there (Hinds County, Holmes County and Meridian), 
because of particular logistical difficulties, the Office of 
Education (HEW) had recommended two step plans. 
The result was, and the court ordered, that the first 
step be implemented not later than December 31, 1969 
and the other beginning with the fall 1970 school term.

I

Because of Alexander v. Holmes County, each of the 
cases here, as will be later discussed, must be con­
sidered anew, either in whole or in part, by the district 
courts. It happens that there are extant unitary plans 
for some of the school districts here, either Office of 
Education or school board originated. Some are operat­
ing under freedom of choice plans. In no one of the dis­
tricts has a plan been submitted in light of the prece­
dent of Alexander v. Holmes County. That case resolves 
all questions except as to mechanics. The school dis­
tricts here may no longer operate dual systems and 
must begin immediately to operate as unitary systems. 
The focus of the mechanics question is on the accom -

Opinion in Court of Appeals Dated December 1 , 1969



127a

plans for the merger of the student bodies into unitary 
systems. These plans shall be filed with the district 
courts not later than January 6, 1970 together with such 
additional plan or modification of the Office of Educa­
tion plan as the school district may wish to offer. The 
district court shall enter its final order not later than 
February 1, 1970 requiring and setting out the details 
of a plan designed to accomplish a unitary system of 
pupil attendance with the start of the fall 1970 school 
term. Such order may include a plan designed by the 
district court in the absence of the submission of an 
otherwise satisfactory plan. A copy of such plan as is 
approved shall be filed by the clerk of the district court 
with the clerk of this court.2

The following provisions are being required as step 
one in the conversion process. The district courts are 
directed to make them a part of the orders to be entered 
and to also give first priority to implementation.

The respective school districts, appellees 
herein, must take the following action not later 
than February 1, 1970:

Opinion in Court of Appeals Dated December 1 , 1969

aIn formulating plans, nothing herein is intended to prevent the 
respective school districts or the district court from seeking the 
counsel and assistance of state departments of education, uni­
versity schools of education or of others having expertise in the 
field of education.

It is also to be noted that many problems of a local nature 
are likely to arise in converting to and maintaining unitary 
systems. These problems may best be resolved on the community 
level. The district courts should suggest the advisability of bi- 
racial advisory committees to school boards in those districts 
having no Negro school board members.



128a

DESEGREGATION OF FACULTY AND 
OTHER STAFF

The School Board shall announce and imple­
ment the following policies:

1. Effective not later than February 1, 1970, 
the principals, teachers, teacher-aides and 
other staff who work directly with children at 
a school shall be so assigned that in no case 
will the racial composition of a staff indicate 
that a school is intended for Negro students or 
white students. For the remainder of the 1969-70 
school year the district shall assign the staff 
described above so that the ratio of Negro to 
white teachers in each school, and the ratio of 
other staff in each, are substantially the same 
as each such ratio is to the teachers and other 
staff, respectively, in the entire school system.

The school district shall, to the extent neces­
sary to carry out this desegregation plan, direct 
members of its staff as a condition of continued 
employment to accept new assignments.

2. Staff members who work directly with chil­
dren, and professional staff who work on the ad­
ministrative level will be hired, assigned, pro­
moted, paid, demoted, dismissed, and other­
wise treated without regard to race, color, or 
national origin.

3. If there is to be a reduction in the number 
of principals, teachers, teacher-aides, or other

Opinion in Court of Appeals Dated December 1 , 1969



129a

Opinion in Court of Appeals Dated December 1 , 1969

professional staff employed by the school dis­
trict which will result in a dismissal or demo­
tion of any such staff members, the staff m em­
ber to be dismissed or demoted must be se­
lected on the basis of objective and reasonable 
non-discriminatory standards from among all 
the staff of the school district. In addition if 
there is any such dismissal or demotion, no 
staff vacancy may be filled through recruit­
ment of a person of a race, color, or national 
origin different from that of the individual dis­
missed or demoted, until each displaced staff 
member who is qualified has had an oppor­
tunity to fill the vacancy and has failed to ac­
cept an offer to do so.

Prior to such a reduction, the school board 
will develop or require the development of non- 
racial objective criteria to be used in selecting 
the staff member who is to be dismissed or de­
moted. These criteria shall be available for 
public inspection and shall be retained by the 
school district. The school district also shall 
record and preserve the evaluation of staff 
members under the criteria. Such evaluation 
shall be made available upon request to the 
dismissed or demoted employee.

“Demotion” as used above includes any re­
assignment (1) under which the staff member 
receives less pay or has less responsibility than 
under the assignment he held previously, (2) 
which requires a lesser degree of skill than did 
the assignment he held previously, or (3) under



130a

which the staff member is asked to teach a 
subject or grade other than one for which he is 
certified or for which he has had substantial 
experience within a reasonably current period. 
In general and depending upon the subject 
matter involved, five years is such a reason­
able period.

MAJORITY TO MINORITY 
TRANSFER POLICY

The school district shall permit a student at­
tending a school in which his race is in the m a­
jority to choose to attend another school, where 
space is available, and where his race is in the 
minority.

Opinion in Court of Appeals Dated December 1, 1969

TRANSPORTATION

The transportation system, in those school 
districts having transportation systems, shall 
be completely re-examined regularly by the 
superintendent, his staff, and the school board. 
Bus routes and the assignment of students to 
buses will be designed to insure the transporta­
tion of all eligible pupils on a non-segregated 
and otherwise non-discriminatory basis.

SCHOOL CONSTRUCTION AND 
SITE SELECTION

All school construction, school consolidation, 
and site selection (including the location of any 
temporary classrooms) in the system shall be



131a

done in a manner which will prevent the re­
currence of the dual school structure once this 
desegregation plan is implemented.

ATTENDANCE OUTSIDE SYSTEM 
OF RESIDENCE

If the school district grants transfers to stu­
dents living in the district for their attendance 
at public schools outside the district, or if it 
permits transfers into the district of students 
who live outside the district, it shall do so on a 
non-discriminatory basis, except that it shall 
not consent to transfers where the cumulative 
effect will reduce desegregation in either dis­
trict or reinforce the dual school system.

See United States v. Hinds County, supra, decided No­
vember 6, 1969. The orders there embrace these same 
requirements.

Opinion in Court of Appeals Dated December 1 , 1969

II

In addition to the foregoing requirements of general 
applicability, the order of the court which is peculiar 
to each of the specific cases being considered is as fol­
lows:

NO. 26285 — JACKSON, MISSISSIPPI

This is a freedom of choice system. The issue pre­
sented has to do with school building construction. We 
enjoined the proposed construction pending appeal.



132a

A federal appellate court is bound to consider any 
change, either in fact or in law, which has supervened 
since the judgment was entered. Bell v. State of Mary­
land, 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822 (1964). We 
therefore reverse and remand for compliance with the 
requirements of Alexander v. Holmes County and the 
other provisions and conditions of this order. Our order 
enjoining the proposed construction pending appeal is 
continued in effect until such time as the district court 
has approved a plan for conversion to a unitary school 
system.

NO. 28261 — MARSHALL COUNTY AND HOLLY 
SPRINGS, MISSISSIPPI

This suit seeks to desegregate two school districts, 
Marshall County and Holly Springs, Mississippi. The 
district court approved plans which would assign stu­
dents to schools on the basis of achievement test scores. 
We pretermit a discussion of the validity per se of a 
plan based on testing except to hold that testing cannot 
be employed in any event until unitary school systems 
have been established.

We reverse and remand for compliance with the re­
quirements of Alexander v. Holmes County and the 
other provisions and conditions of this order.

NO. 28045 — UNITED STATES V. MATTHEWS 
(LONGVIEW, TEXAS)

This system is operating under a plan approved by 
the district court which appears to be realistic and 
workable except that it is to be implemented over a 
period of five years. This is inadequate.

Opinion in Court of Appeals Dated December 1, 1969



133a

We reverse and remand for compliance with the re­
quirements of Alexander v. Holmes County and the 
other provisions and conditions of this order.

NO. 28350 — JEFFERSON COUNTY AND 
BESSEMER, ALABAMA

These consolidated cases involve the school boards 
of Jefferson County and the City of Bessemer, Alabama. 
Prior plans for desegregation of the two systems were 
disapproved by this court on June 26, 1969, United States 
of America v. Jefferson County Board of Education,
et a l.,____ F .2d____  (5th Cir. 1969) [No. 27444, June 26,
1969], at which time we reversed and remanded the 
case with specific directions. The record does not re­
flect any substantial change in the two systems since 
this earlier opinion, and it is therefore unnecessary to 
restate the facts. The plans approved by the district 
court and now under review in this court do not comply 
with the standards required in Alexander v. Holmes 
County.

We reverse and remand for compliance with the re­
quirements of Alexander v. Holmes County and the 
other provisions and conditions of this order.

NO. 28349 — MOBILE COUNTY, ALABAMA

On June 3, 1969, we held that the attendance zone and 
freedom of choice method of student assignment used 
by the Mobile School Commissioners was constitution­
ally unacceptable. Pursuant to our mandate the dis­
trict court requested the Office of Education (HEW) 
to collaborate with the board in the preparation of a

Opinion in Court of Appeals Dated December 1, 1969



134a

plan to fully desegregate all public schools in Mobile 
County. Having failed to reach agreement with the 
board, the Office of Education filed its plan which the 
district court on August 1, 1969, adopted with slight 
modification (but which did not reduce the amount of 
desegregation which will result). The court’s order 
directs the board for the 1969 - 1970 school year to close 
two rural schools, establish attendance zones for the 25 
other rural schools, make assignments based on those 
zones, restructure the Hillsdale School, assign all stu­
dents in the western portion of the metropolitan area 
according to geographic attendance zones designed to 
desegregate all the schools in that part of the system, 
and reassign approximately 1,000 teachers and staff. 
Thus the district court’s order of August 1, now before 
us on appeal by the plaintiffs, will fully desegregate all 
of Mobile County schools except the schools in the 
eastern portion of metropolitan Mobile where it was 
proposed by the plan to transport students to the 
western part of the city. The district court was not sat­
isfied with this latter provision and required the board 
after further study and collaboration with HEW of­
ficials, to submit by December 1, 1969, a plan for the 
desegregation of the schools in the eastern part of the 
metropolitan area.

The school board urges reversal of the district court’s 
order dealing with the grade organization of the Hills­
dale School and the faculty provisions.

We affirm the order of the district court with direc­
tions to desegregate the eastern part of the metropoli­
tan area of the Mobile County School System and to 
otherwise create a unitary system in compliance with

Opinion in Court of Appeals Dated December 1, 1969



135a

the requirements of Holmes County and in accordance 
with the other provisions and conditions of this order.

NO. 28340 — EAST AND WEST FELICIANA  
PARISHES, LOUISIANA

East Feliciana is operating under a plan which closed 
one rural Negro elementary school and zoned the four 
remaining rural elementary schools. All elementary 
students not encompassed in the rural zones, and all 
high school students, continue to have free choice. Ma­
jority to minority transfer is allowed on a space-avail­
able basis prior to beginning of the school year.

The plan has not produced a unitary system. We re­
verse and remand for compliance with the require­
ments of Alexander v. Holmes County and the other 
provisions and conditions of this order.

West Feliciana is operating under a plan approved 
for 1969-70 which zones the two rural elementary 
schools. These schools enroll approximately 15 per cent 
of the students of the district. The plan retains “ open 
enrollment” (a euphemism for free choice) for the 
other schools. The plan asserts that race should not be 
a criterion for employment or assignment of person­
nel. However, the board promises to seek voluntary 
transfers and if substantial compliance cannot be ob­
tained by this method it proposes to adopt other means 
to accomplish substantial results.

This plan has not produced a unitary system. We re­
verse and remand for compliance with the require­

Opinion in Court of Appeals Dated December 1 , 1969



136a

ments of Alexander v. Holmes County and the other 
provisions and conditions of this order.

NO. 28342 — CONCORDIA PARISH, LOUISIANA

The plan in effect for desegregating this school dis­
trict has not produced a unitary system. It involves 
zoning, pairing, freedom of choice and some separation 
by sex. We pretermit the question posed as to sex 
separation since it may not arise under such plan as 
m ay be approved for a unitary system.

This plan has not produced a unitary system. We re­
verse and remand for compliance with the require­
ments of Alexander v. Holmes County and the other 
provisions and conditions of this order.

NO. 28361 — ST. JOHN THE BAPTIST 
PARISH, LOUISIANA

This school district has been operating under a free­
dom of choice plan. The parish is divided into two sec­
tions by the Mississippi River and no bridge is located 
in the parish. The schools are situated near the east 
and west banks of the river.

A realistic start has been made in converting the 
east bank schools to a unitary system. It, however, is 
less than adequate. As to the west bank schools, the 
present enrollment is 1626 Negro and 156 whites. The 
whites, under freedom  of choice, all attend the same 
school, one of five schools on the west bank. The 156 
whites are in a school with 406 Negroes. We affirm as to

Opinion in Court of Appeals Dated December 1, 1969



137a

this part of the plan. We do not believe it necessary to 
divide this small number of whites, already in a do- 
segregated minority position, amongst the five schools.

We reverse and remand for com pliance with the 
requirements of Alexander v. Holmes County and the 
other provisions and conditions o f this order.

NO. 28409 — BURKE COUNTY, GEORGIA

The interim plan in operation here, developed by 
the Office of Education (HEW), has not produced a uni­
tary system. The district court ordered preparation of 
a final plan for use in 1970-71. This delay is no longer 
permissible.

We reverse and remand for compliance with the re­
quirements of Alexander v. Holmes County and the oth­
er provisions and conditions of this order.

NO. 28407 — BIBB COUNTY, GEORGIA

This is a freedom of choice system on which a special 
course transfer provision has been superimposed. 
Special courses offered in all-Negro schools are being 
attended by whites in substantial numbers. This has 
resulted in some attendance on a part time basis by 
whites in every all-Negro school. Some three hundred 
whites are on the waiting list for one of the special 
courses, remedial reading. The racial cross-over by 
faculty in the system is 27 per cent.

Opinion in Court of Appeals Bated December 1 , 1969



138a

The order appealed from  continues the existing plan 
with certain modifications. It continues and expands 
the elective course programs in all-Negro schools in 
an effort to encourage voluntary integration. The plan 
calls for a limitation of freedom of choice with respect 
to four schools about to becom e resegregated. Under 
the present plan the school board is empowered to limit 
Negro enrollment to 40 per cent at these schools to 
avoid resegregation. Earlier a panel of this court af­
firm ed the district court’s denial of an injunction a- 
gainst the quota provision of this plan pending hearing 
en banc. The prayer for injunction against continuation 
of the quota provision is now denied and the provision 
m ay be retained by the district court pending further 
consideration as a part of carrying out the require­
ments of this order.

It is sufficient to say that the district court here has 
employed bold and imaginative innovations in its plan 
which have already resulted in substantial desegrega­
tion which approaches a unitary system. We reverse 
and remand for compliance with the requirements of 
Alexander v. Holmes County and the other provisions 
and conditions of this order.

NO. 28408 — HOUSTON COUNTY, GEORGIA

This system is operating under a freedom  of choice 
plan. Appellants seek zoning and pairing. There is also 
an issue as to restricting transfers by Negroes to for­
merly all-white schools. Cf. No. 28407 — Bibb County, 
supra. In addition, appellants object to the conversion 
of an all-Negro school into an integrated adult educa­

Opinion in Court of Appeals Bated December 1, 1969



139a

tion center. As in the Bibb County case, these are all 
questions for consideration on remand within the scope 
of such unitary plan as may be approved.

We reverse and remand for com pliance with the re­
quirements of Alexander v. Holmes County and the 
other provisions and conditions of this order.

NO. 27863 — BAY COUNTY, FLORIDA

This system is operating on a freedom of choice plan. 
The plan has produced impressive results but they fall 
short of establishing a unitary school system.

We reverse and remand for com pliance with the re­
quirements of Alexander v. Holmes County and the 
other provisions and conditions of this order.

NO. 27983 — ALACHUA COUNTY, FLORIDA

This is another Florida school district where im ­
pressive progress has been made under a freedom of 
choice plan. The plan has been implemented by zoning 
in the elementary schools in Gainesville (the principal 
city in the system) for the current school year. The 
results to date and the building plan in progress should 
facilitate the conversion to a unitary system.

We reverse and remand for compliance with the re­
quirements of Alexander v. Holmes County and the 
other provisions and conditions of this order.

Opinion in Court of Appeals Dated December 1 , 1969



140a

III

In the event of an appeal or appeals to this court 
from  an order entered as aforesaid in the district 
courts, such appeal shall be on the original record and 
the parties are encouraged to appeal on an agreed 
statement as is provided for in Rule 10fd), Federal 
Rules of Appellate Procedure (FR A P). Pursuant to 
Rule 2, FRAP, the provisions of Rule 4(a) as to the time 
for filing notice of appeal are suspended and it is 
ordered that any notice of appeal be filed within fifteen 
days of the date of entry of the order appealed from  
and notices of cross-appeal within five days thereafter. 
The provisions o f Rule 11 are suspended and it is order­
ed that the record be transmitted to this court within 
fifteen days after filing of the notice of appeal. The 
provisions of Rule 31 are suspended to the extent that 
the brief of the appellant shall be filed within fifteen 
days after the date on which the record is filed and the 
brief of the appellee shall be filed within ten days after 
the date on which the brief of appellant is filed. No 
reply brief shall be filed except upon order of the court. 
The times set herein may be enlarged by the court up­
on good cause shown.

The mandate in each of the within matters shall 
issue forthwith. No stay will be granted pending peti­
tion for rehearing or application for certiorari.

REVERSED as to all save Mobile and St. John The 
Baptist Parish; AFFIRM ED as to Mobile w’ith direc­
tion; AFFIRM ED in part and REVERSED in part as to 
St. John The Baptist Parish; REMANDED to the dis­
trict courts for further proceedings consistent herewith.
Adm. Office, U.S. Courts— Scofields’ Quality Printers, Inc., N. O., La.

Opinion in Court of Appeals Dated December 1 , 1969



141a

APPENDIX 13

Judgment of the Court of Appeals

I n the

U nited States Court of A ppeals 

F or the F ifth Circuit 

October T erm, 1969 
No. 28407

D.C. Docket No. CA 1926

Shirley B ivins, et al .,

Plaintiff s-Appellants,
versus

B ibb County B oard of E ducation and Orphanage 
F or B ibb County, et al.,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
*

FOR THE MIDDLE DISTRICT OF GEORGIA

Before Brown, Chief Judge, W isdom, Gew in , B ell, T horn- 
berry, Coleman, Goldberg, A insworth, Godbold, 
Dyer, Simpson, M organ, Carswell, and Clark, 
Circuit Judges, E n B anc.*

* Judge Wisdom did not participate in Nos. 26285, 28261, 28045, 
28350, 28349 and 28361. Judge Ainsworth did not participate in 
Nos. 28342. Judge Carswell did not participate in Nos. 27863 and 
27983. Judge Clark did not participate in No. 26285.



142a

This cause came on to be heard en banc on the transcript 
of the record from the United States District Court for the 
Middle District of Georgia, and was argued by counsel;

On Consideration W hereof, It is now here ordered and 
adjudged by this Court that the judgment appealed from 
in this cause be, and the same is hereby reversed and that 
this cause be, and the same is hereby remanded to the said 
District Court for compliance with the requirements of 
Alexander v. Holmes County Board of Education, 1969,
------U .S .------- , 90 S.Ct.------ , 24 L.Ed.2d 19, and the other
provisions and conditions of the order of this Court this 
day entered.

It is further ordered that appellees, School Board, pay 
the costs on appeal in this Court.

Judgment of the Court of Appeals

December 1, 1969

Issued as Mandate: December 1, 1969

N O TE: Judgments identical to the above were entered in the fol­
lowing cases: B e n n e t t  v. E v a n s  (and B e n n e t t  v. B u r k e  
C o u n ty  B o a r d  o f  E d u c a tio n )  (S.D. G a .); T h on tie  v. H o u s ­
to n  C o u n ty  B o a r d  o f  E d u c a tio n  (M.D. G a .); Y o u n g b lo o d  
v. T h e  B o a r d  o f  P u b lic  In s tr u c tio n  o f  B a y  C o u n ty , F la . 
(N.D. Fla) ; A n t h o n y  v. M a rsh a ll C o u n t y  B o a r d  o f  E d u ­
ca tion  (N.D. M iss.); W r ig h t  v. B o a r d  o f  P u b lic  I n s tr u c ­
tio n  o f  A la c h u a  C o u n ty , F la . (N.D. F la .) ; S to u t  v. J e ffe r ­
so n  C o u n ty  B o a r d  o f  E d u c a tio n  and B r o w n  v. B o a r d  o f  
E d u c a tio n  o f  th e  C i t y  o f  B e s s e m e r  (N.D. Ala.).



143a

1st the

United States Court of A ppeals 

F or the Fifth Circuit 

October Term, 1969 

No. 28349

D.C. Docket No. CA 3003-63

Judgment of the Court of Appeals

Birdie Mae Davis, et al.,
Plaintiffs-Appellants,

United States of A merica,

Plaintiff-Intervenor,
versus

Board of School Commissioners of Mobile County, et al.,
Defendants-Appellees,

and

Twila Frazier, et al.,

Defendants-Intervenors-Appellees.

appeal from the united states district court
FOR THE SOUTHERN DISTRICT OF ALABAMA



144a

Before Brown, Chief Judge, W isdom, Gew in , B ell, T horn- 
berry, Coleman, Goldberg. A insworth, Godbold, 
Dyer, Simpson, M organ, Carswell, and Clark, 
Circuit Judges, E n B anc.*

This cause came on to be heard en banc on the transcript 
of the record from the United States District Court for the 
Southern District of Alabama, and was argued by counsel;

On Consideration W hereof, It is now here ordered and 
adjudged by this Court that the order of the District Court 
appealed from in this cause be, and the same is hereby 
affirmed with directions to desegregate the eastern part of 
the metropolitan area of the Mobile County School System 
and to otherwise create a unitary system in compliance with 
the requirements of Holmes County and in accordance with 
other provisions and conditions of the order of the Court 
this day rendered.

It is further ordered that appellee, School Board, pay 
the costs on appeal in this Court.

Judgment of the Court of Appeals

December 1, 1969

Issued as Mandate: December 1, 1969

* Judge Wisdom did not participate in Nos. 26285, 28261, 28045, 
28350, 28349 and 28361. Judge Ainsworth did not participate in 
Nos. 28342. Judge Carswell did not participate in Nos. 27863 and 
27983. Judge Clark did not participate in No. 26285.