Board of Public Instruction of Manatee County, Florida v. Harvest Petition for a Writ of Certiorari

    In The

(Enurt of tljo States
October Term, 1970

No.

THE BOARD OF PUBLIC INSTRUCTION OF 
MANATEE COUNTY, FLORIDA, et al..

Petitioners

versus

CAROLINE HARVEST, eta!..
Respondents,

PETITION FOR A WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

Kenneth w. Cleary
Dye, Dye, Smith, Cleary & Scott
P. O. Box 2480
Bradenton, Florida 33505
Counsel for the Petitioners



INDEX

Page
Opinions B elow ....................................................................  1

Jurisdiction .......................................................................... 2

Questions presented ............................................................ 2

Constitutional provisions and statutes involved.................  2

Statement ............................................................................  3

Reasons for granting writ ...................................................  8

Conclusion............................................................................  13

APPENDIX

Opinion of Circuit Court of A ppeals..................................  A 1

Opinion of District Court for Middle District
of Florida, Tampa Division.............................................  A5

AUTHORITIES
Cases:

Alexander v. Holmes County Board o f Education, 396 
U.S, 19 ......................... ' ............... ............................... 9

Bell v. School City o f Garv, 324 F. 2nd 209, Cert, denied
377 U.S. 924   11

Brown v. Board o f Education I, 347 U.S. 483 .................  9
Carter v. West Feliciana Parish School Board, No. 944,

Dec. 13, 1969 ...................................................................A1
Deal v. Cincinnati Board o f Education, 369 F. 2d 55, 

cert, denied 389 U.S. 847, 88 S. Ct. 39, 19 L. Ed
2d 1 1 4 ....................................................................10 & 11

Downs v. Board o f Education, 336 F. 2nd 988 Cert.
denied 380 U.S. 9 1 4 .........................................................11

Ellis v. Board of Public Instruction o f Orange County,
423 F. 2d 203  10

Graves v. Walton County Board o f Education, 403 F. 2d
1 8 4 ........................................................  10

Green v. County School Board o f New Kent County, 88 
S. Ct. 1689, 391 U.S. 430 ..................................... 9



11

Jackson v. Marvell School District, 416 F. 2d 380 . . . .  10
Northcross v. Board o f Education, No. 1136, 38 LW 4219 12 
Singleton v. Jackson Municipal Separate School District,

5th Cir., 1969,------F. 2 d ......... .....................................  3
Swann v. Charlotte-Mecklenburg Board o f Education,

369 F. 2d 29 .................................................................10
United States v. Jefferson County Board o f Education,

372 F. 2d 836, cert, denied sub nom. Caddo Parish 
School Board v. United States, 389 U.S. 840 .............. 10

Statutes:
42 U.S.C. § 2000 0 6  (a) ................................................  11



IN THE

g>ujirpm£ ( to r t of %  Staten
O c t o e e e  Teem, 1970

No.

BOARD OF PUBLIC INSTRUCTION 
OF MANATEE COUNTY, FLORIDA 

ETAL.. PETITIONERS,

versus

CAROLINE HARVEST, ETAL., 
RESPONDENTS

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

The Board of Public Instruction of Manatee County, Florida, 
and others, your petitioners, pray that a writ of certiorari issue 
to review the judgment of the United States Court of Appeals 
for the Fifth Circuit, entered into the case of Caroline Harvest, 
et al., v. Board o f Public Instruction, Manatee County, Florida, 
et al., v. Jerome Pratt, et al, on June 26, 1970.

OPINIONS BELOW

The opinion of the Court below (Appendix A, infra, pp. A 
1-A ) has not yet been reported. The opinion of the District 
Court below (Appendix B, infra, pp. A -A ) is unreported.



2

JURISDICTION

The opinion of the Court below was entered on June 26, 
1970 (Appendix). No petitions for rehearing were filed. The 
Clerk of the Fifth Circuit advises that no formal judgments as 
mandates are now entered in school cases, and that the opinion 
is issued as and for the mandate in all such cases.

QUESTIONS PRESENTED

DID THE CIRCUIT COURT ERR IN APPROVING THE
STANDARDS USED BY THE DISTRICT COURT IN
SELECTING A DESEGREGATION PLAN WHICH, IN
FACT, COMPELLED SUBSTANTIAL RACIAL BALANCE.

a) DOES THE CONSTITUTION REQUIRE SUBSTANTIAL 
RACIAL BALANCE IN THE SYSTEM?

b) MUST EACH SCHOOL IN THE SYSTEM BE 
INTEGRATED OR MAY THERE BE ALL BLACK OR 
ALL WHITE SCHOOLS?

c) IS POSSIBLE RESEGREGATION A LEGAL STANDARD 
TO BE CONSIDERED?

d) DOES THE U.S. CONSTITUTION AUTHORIZE A 
COURT TO ORDER A PLAN WHICH, OF NECESSITY, 
REQUIRES BUSSING FOR ITS IMPLEMENTATION?

CONSTITUTIONAL PROVISIONS 
AND STATUTES INVOLVED

U.S. Constitution, Amendment XIV, Section 1

“...No State shall make or enforce any law which shall 
abridge the privileges or immunities of citizens of the 
United States; nor shall any State deprive any person of 
life, liberty, or property, without due process of law; nor 
deny to any person within its jurisdiction the equal 
protection of the laws.”



3

42 U.S.C. Section 2000 C-6(a)

“ ...provided that nothing herein shall impower any official 
or court of the United States to issue any order seeking to 
achieve a racial balance in any school by requiring the 
transportation of pupils or students from one school to 
another or one school district to another in order to 
achieve such racial balance, or otherwise enlarge the

• existing power of the court to insure compliance with 
constitutional standards...”

STATEMENT OF THE CASE

A. Proceedings Below

This case had its inception on January 20, 1965, when a class 
action seeking desegregation of the Manatee County, Florida, 
School System, was filed. Petitioners initially adopted and the 
Court approved a Freedom of Choice Plan.

Thereafter, in response to Respondents’ Motion for Further 
Relief, Petitioners submitted a neighborhood attendance plan 
which with minor Court ordered modification, was approved by 
the Court on June 27, 1969.

Pursuant to 28 U.S.C. § 1291, Petitioners apppealed this 
Order to the United States Court of Appeals for the Fifth 
Circuit on July 25, 1969. The school system began operation 
for the 1969-1970 school year using the geographic attendance 
zones as proposed by Petitioners and modified by the District 
Court.

The cause became one of numerous schools desegregation 
cases that were reversed and remanded for compliance with the 
decision and opinion of the Fifth Circuit in Singleton v. Jackson
Municipal Separate School District, 5th Cir. 1969, ----- F
2d------which had been handed down on December 1, 1969.
The decision in the instant case, rendered on December 12, 
1969, was non-specific and substantially the same as opinions 
used in numerous other cases.

The District Court held a status hearing on December 22, 
1969, following which Petitioners contacted H.E.W. on 
December 23, 1969, as required by the appellate mandate.



4

On January 7, 1970, in response to Respondents’ Motion, the 
Court of Appeals recalled and amended its December 12 
mandate, directing Petitioners to take preliminary steps to 
prepare for complete student body desegregation by February 
1, 1970.

Petitioners received the H.E.W. drawn proposal, which 
embodied a recommended Plan C and two rejected alternatives, 
A and B. The H.E.W. plan, received by Petitioners on January 5, 
1970, was filed January 6, 1970. With leave of the Court, 
Petitioners filed two alternative plans, one of which was in 
actuality the H.E.W. recommended Plan C with a suggested 
alternative method of implementation. Hearing was set for 
January 26, 1970.

At the hearing Petitioners filed a Notification of Compliance 
which indicated that certain changes in Manatee County’s 
School System either had or would be made by February 1, 
1970. Petitioners also sought Court approval of the proposed 
school system with the changes reflected in the Notification of 
Compliance. The Court accepted the Notification, took note of 
the motion and indicated it would rule later.

The hearing involved argument, testimony and colloquy with 
the Court concerning the H.E.W. recommended Plan as well as 
the two H.E.W. rejected alternative plans, none of which were 
recommended by Defendants. Of the two previously filed 
alternative plans, the first put Petitioners of record as favoring a 
Freedom of Choice attendance plan and was quickly rejected by 
the Court. The second proposal, the modified implementation 
for H.E.W. Plan C was favored by Petitioners, only if the Court 
should see fit to approve the H.E.W. Plan C. The record reflects 
that the only plan strenuously advanced by Petitioners was that 
reflected in their Notification of Compliance.

The Court, entered its Order on January 29, 1970, rejecting 
the H.E.W. recommended Plan C, and hence the Petitioners 
proposed modified implementation thereof, and the H.E.W. 
discarded Plan A. The Court approved the second H.E.W. 
rejected alternative, Plan B, with an implementation date of 
April 6, 1970. The Court did not rule on Petitioners’ Motion for 
Approval of its system as set forth in the Notification of 
Compliance.



5

Petitioners filed a Motion for New Trial or rehearing on 
February 9, 1970 which motion was denied by Court Order of 
February 10, 1970. On February 24, 1970, Petitioners filed 
their notice of appeal.

The United States Court of Appeals for the Fifth Circuit 
rendered its decision and opinion affirming the District Court 
on June 26, 1970. The petition seeks review of that decision.

B. Facts

Manatee County, Florida, has a population of 96,000 as of 
April 1, 1970. The county comprises a single school district 
with twenty-nine (29) schools: three (3) high schools; four (4) 
middle schools; nineteen (19) elementary schools, a vocational 
center and two (2) schools for ungraded special education. The 
total school enrollment is approximately 17,800, of which 23.3 
percent are black and 76.7 percent are white. The county’s two 
major population centers, the cities of Bradenton and Palmetto, 
are located opposite each other on either side of the mile-wide 
Manatee River joined by two bridges. Major Negro residential 
areas are well defined and concentrated within Bradenton and 
Palmetto, lying at either end of the major bridge connecting the 
two communities.

Under the neighborhood plan reasserted by Petitioners in 
their Notification of Compliance, the three high schools were 
fully integrated as were three of the middle schools. Three 
elementary schools and one middle school, located within the 
black residential areas, would have had virtually all black 
student bodies. Faculties at all schools were desegregated, 
although not to the statistical extent subsequently required by 
Singleton, supra. These four facilities with all Negro student 
body composition were the only source of dispute over the 
plan. At this point over 53% of all black students in the county 
were in majority white schools. A liberal majority-to-minority 
transfer policy was in effect.

The H.E.W. devised Plans A, B, and C involved pairing or 
clustering with consequent departure from traditional K-6 
neighborhood elementary schools. Plan A involved a limited 
tight pairing while Plan B utilized county-wide clustering, 
grouping each of three predominently black elementary schools



6

with two or three of the most heavily majority white schools in 
the system, regardless of distances involved, which were up to 
12 miles or IV2 hours on a bus. Plan C, which was the plan 
recommended by H.E.W., involved pairing and clustering of 
intermediate proportions. All three plans would pair the black 
middle school with an integrated middle school.

A comparison of the three plans can be best presented by 
tabular representation of racial percentages in the elementary 
schools affected. As a preface, Petitioners would note that each 
school was K-6 under the neighborhood plan, with the 
exception of Bradenton, which was K-5. Percentages are 
without kindergartens, which were not affected.

TABLE 1

Plan A

Paired Schools Grades % White % Black

Blackburn K, 1-3 52.3 47.7
Tillman K, 4-6 34.4 65.6

Bradenton K, 1-3 39.6 60.4
Manatee K, 4-6 53.0 47.0

Memorial K, 1-3 33.5 66.5
Palmetto K, 4-6 54.0 46.0

TABLE 2 

Plan B

Clustered
Schools Grades % White % Black

Bayshore K, 1-4 69.4 30.6
Bradenton K, 5-6 82.2 17.8
Daughtrey K, 1-4 68.6 31.4
Samoset K, 1-4 68.2 31.8



7

Blackburn K, 1-4 62.0 38.0
Palmetto K, 1-4 66.9 33.1
Tillman K, 5-6 63.8 36.2

Memorial K, 5-6 75.6 24.4
Miller K, 1-4 73.2 26.8
Palma Sola K, 1-4 73.2 26.8
Prine K, 1-4

TABLE 3 

PlanC

71.2 28.8

Clustered and
Paired Schools Grades % White % Black
Ballard K, 1-4 54.3 45.7
Bradenton K, 5-6 61.1 38.9
Manatee K, 1-4 56.8 43.2

Blackburn K, 1-2 48.0 52.0
Tillman K, 3-4 51.1 48.9
Palmetto K, 1-4 54.6 45.4
Palm View K, 1-4 49.0 51.0
Memorial K, 5-6 50.7 49.3

TABLE 4

A Comparison of Percentages of Black Students 
At Affected Schools Under Plans A, B, and C

Plan

Range 
o f Black 

Percentages
Average 
% Black

Deviation from 
all county 

average o f 23.3%

A 46.0 -  66.5 55.5 32.2
B 17.8 -  38.0 29.6 6.3
C 38.9 -  52.0 46.8 23.5



8

C. Action of the Court Below

The United States Court of Appeal for the Fifth Circuit in its 
decision of June 26, 1970, affirmed the Order of the District 
Court of January 29, 1970, whereby the Court found H.E.W. 
Plans A and C would not establish unitary systems and 
approved Plan B, ordering its implementation. The Court of 
Appeals stated that the only question was

“...whether that court abused its discretion by adopting an 
unworkable plan or one based on an incorrect legal 
standard... Expressed . in other terms, the appellate 
question is: Did the District Court invoke a remedy so 
extreme as to constitute an abuse of its discretion? 
However put, the answer clearly is: No.”

D. Effect of the Decision Below

The effect of the brief opinion of the Circuit Court is to 
approve as correct the legal standards relied upon by the 
District Court in its order of January 29, 1970, whereby it 
declared H.E.W. Plans A and C would not produce unitary 
systems while Plan B would, and in which it failed to rule on 
Petitioners’ neighborhood plan as presented in its Notification 
of Compliance and Motion for Approval.

REASONS FOR GRANTING WRIT

The conversion of dual school systems maintained pursuant 
to state law to systems which are unitary under the 
requirements of the constitution has caused a proliferation of 
court cases, has become an issue in many political campaigns, 
has caused concern and confusion in the executive branch and 
has touched the lives of millions of Americans. Not all problems 
attendant thereto can be solved by the judiciary, but a 
definitive decision as to what is required to effect such a 
conversion can ease the tremendous burdens placed on the 
judiciary and the local school systems. This case provides a 
vehicle to decide an important question of federal law which 
has not been, but should and must be, settled by this Court.

Legal standards and guidelines to be used by the lower courts 
and school systems have not been issued by this Court. This 
leaves the lower courts free to adopt many, varied and



9

contradictory legal requirements. All of the standards which 
have been employed by lower courts cannot be legally correct 
as many are mutually exclusive, i.e. neighborhood schools 
vis-a-vis racially balanced schools. Many times the standards 
used are not articulated but are readily determinable by 
reference to the results produced. In the instant case the 
District Court did not set forth the standards used, but the 
standards can be ascertained by reference to the reasoning set 
forth in the order and the results achieved. The Circuit Court 
approved this application of legal standards which it had refuted 
in other cases and which have been rejected in other circuits. It 
the other cases are correct, then the Circuit Court in the instant 
case has sanctioned an extreme departure from the accepted 
and usual course of this type of proceedings. The standards used 
by the District Court are set forth as parts “a” through “d” of 
the question presented to this Court in this petition.

Six areas of consideration are set forth in Green v. County- 
School Board o f New Kent County, 391 U.S. 430. In this case 
only one area, student body composition, is in possible 
non-compliance. The order in this case, as shown in the 
statement of facts, requires substantial racial balance as to 
students before the system could be found to be unitary.

me ^uiibiutuuun icquires wnoliy non-raciai puouc scnooi 
systems. This Court has never ruled that a unitary school system 
is one in which substantial racial balance as to student body 
composition is required. There appears to be a subliminal theme 
in desegregation cases decided by this Court indicating that race 
must not be considered. This starts in Brown v. Board o f 
Education 1, 347 U.S. 483, and runs through Alexander v. 
Holmes County Board o f Education, 396 U.S. 19. This Court in 
Alexander held that a unitary system is one within which “no 
person is to be effectively excluded from any school because of 
race or color.” (emphasis added). There is no requirement that a 
person be included because of race or color, and, in fact, to so 
require would result in an exclusion from another school solely 
on the basis of race or color.

The necessity or non-necessity of racial balance is an 
important question of federal law which should be settled by 
this Court. It is a question in which there is a conflict among 
the decisions of the Courts of Appeal in the several circuits. The



10
Sixth Circuit in Deal v. Cincinnati Board o f Education, 369 F. 
2d. 55, cert, denied 389 U.S. 847, 88 S. Ct. 39, 19 L.Ed. 2d.
114 held that there is no constitutional duty on the part of a 
Board to bus Negro or white children out of their 
neighborhoods or to transfer classes for the sole purpose of 
alleviating racial imbalance. The Fourth Circuit in Swann v. 
Chariotte-Mecklenburg Board o f Education, 369 F. 2d. 29, 
holds that substantial racial balance is not necessary. Other 
cases in other circuits have made similar rulings. The Fifth 
Circuit is unsettled but in recent cases has become extremely 
color conscious and has demanded racial balance. See United 
States v. Jefferson County Board o f Education, 372 F. 2d. 836, 
cert, denied sub nom. Caddo Parish School Board v. United 
States, 389 U.S. 840.

This Court has been presented with a plethora of briefs 
addressed to the provisions of the Civil Rights Act of 1964 and 
Congressional intent in passage of that Act. The same is true of 
the position of the Executive Branch of the United States 
Government. It seems unnecessary to unduly extend this 
petition with repetition of those items.

Another question which arises, assuming this Court 
determines that substantial racial balance is required within a 
unitary system is whether or not each school within a system 
must have both black students and white students within its 
student body composition. It is obvious that the lower Court in 
this case ruled that there must be blacks and whites in every 
school whenever possible. The various Circuits are in conflict 
over this question. This problem appears in the Fifth Circuit 
case of Graves v. Walton County Board o f Education, 403 F. 
2d. 184, wherein the Court holds that if there are still all-Negro 
schools, the plan fails, as a matter of law, to meet constitutional 
standards established in the Green case. This theorem is carried 
forward in the Eighth Circuit in Jackson v. Marvell School 
District, 416 F. 2d. 380. The Fourth Circuit in Swann v. 
Charlotte-Mecklenburg Board o f Education, supra, holds that 
the presence of an all black school will not invalidate an 
otherwise unitary system. The same conclusion is reached in the 
Sixth Circuit in the Deal cases and has also been reached in the 
Fifth Circuit in Ellis v. Board o f Public Instruction o f Orange 
County, 423 F. 2d. 203. The contradictory positions reached in 
the Fifth Circuit may be attributed to the fact that different 
panels sat in these cases.



The District Court had five plans before it for consideration. 
Rejection of several plans was based upon the premise that the 
plans were an open invitation to resegregation. Will possible 
resegregation render a system non-unitary? This appears to be a 
question which has not been directly answered by any court. 
The courts have made rulings which can easily lead to the 
conclusion the resegregation is not a factor in consideration of 
whether or not a system is unitary.

Plans which meet the definition of a unitary system as set 
forth by this Court in Alexander could be presented and 
approved while containing the possibility of resegregation. A 
plan which is adopted and approved as unitary must be a 
constitutional plan. Assuming that the system is operated in 
strict compliance with the approved plan, any segregation which 
occurs in the future could not be the result of official action of 
the school board in maintaining a dual system but would be the 
result of other factors. That type of segregation has been 
categorized as de facto segregation. The logical conclusion of a 
consideration of possible resegregation is that the Constitution 
requires there be no de facto segregation in a unitary school 
system. To date the lower courts have, in many instances, 
refused to hold that such is required by the Constitution. See 
Downs v. Board o f Education, 336 F. 2d. 988, cert, denied 380 
U.S. 914; Bell v. School City o f Gary, 324 F. 2d. 209, cert, 
denied 377 U.S. 924; Deal v. Cincinnati Board o f Education, 
supra.

The District Court in this case ordered a plan that of 
necessity required extensive additional bussing for its 
implementation. Although the Court’s Order never directly 
mentioned transportation or bussing, the record will reflect that 
a substantial portion of the hearing was devoted to a discussion 
of bussing, its costs and feasibility.

Heretofore, most legal consideration of bussing has involved 
the effect of the so-called “anti-bussing amendment” to the 
Civil Rights Act of 1964, 42 U.S.C. § 2000 C -  6 (a). The 
question has been the enabling effect vis-a-vis the disabling 
effect of that legislation. The case at bar, however, presents to 
this Court the more fundamental constitutional question of 
whether Courts are authorized to direct school districts to bus 
in their efforts to fashion acceptable attendance plans, or



12

whether they are limited to desegregation plans that do not 
require additional transportation. That question has, to 
Petitioners’ knowledge, gone undecided.

The District Court said in this case that it can order bussing. 
Whether that is correct is a question of such urgency that this 
Court should move decisively to settle it once and for all. 
Whether termed forced bussing, cross bussing, bussing to 
achieve a racial balance or bussing to end state imposed 
segregation, bussing has become the central issue in many 
desegregation cases. As such the questions demand a definitive 
answer from this Court. No clarification of the practical 
problems of court-ordered desegregation can be complete unless 
bussing is included.

The Chief Justice in Northcross v. Board o f Education, No. 
1 136, 38 LW 4219, in his concurring opinion succinctly states 
the reasons for the granting of this petition when he stated:

“ ...From what is now before us in this case it is not clear 
what issues might be raised or developed on argument; as 
soon as possible, however, we ought to resolve some of the 
basic practical problems when they are appropriately 
presented including whether, as a constitutional matter, 
any particular racial balance must be achieved in the 
schools; to what extent school districts and zones may or 
must be altered as a constitutional matter; to what extent 
transportation may or must be provided to achieve the 
ends sought by prior holdings of the Court. Other related 
issues may emerge.”

The long standing vacancy therein mentioned has now been 
filled.



13

CONCLUSION

For the foregoing reasons this petition for a Writ of Certiorari 
should be granted; and we urge that this case be set for 
argument with or shortly after No. 281, Swann v. 
Charlotte-Mecklenburg Board o f Education. In the event that 
the Court should take such action, counsel for these Petitioners 
is prepared to proceed under an accelerated briefing schedule.

Kenneth W. Cleary of Dye, Dye, 
Smith. Cleary & Scott 
P. O. Box 2480 
Bradenton, Florida 33505 
Counsel for Petitioners



APPENDIX



A1

APPENDIX A

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 29425

CAROLINE HARVEST, ET AL,
Plaintiffs-A ppellees.

versus

BOARD OF PUBLIC INSTRUCTION 
MANATEE COUNTY, FLORIDA, ET AL, 

Defen dan ts-A ppellan ts-Cross A ppellees,

versus

JEROME PRATT, ET AL, 
Intervenors-A ppellees-Cross A ppellan ts.

Appeal from the United States District Court 
for the Middle District o f Florida

(June 26, 1970)

Before BROWN. Chief Judge, MORGAN and CLARK, 
Circuit Judges.

PER CURIAM: The issue on this appeal is not whether the 
district court selected the best possible plan for unitizing the 
Manatee County School System but rather whether that court 
abused its discretion by adopting an unworkable plan or one 
based on an incorrect legal standard. See Carter v. West 
Feliciana Parish School Board, 396 U.S. 290, 292, 90 S.Ct. 608,



A2

24 L.Ed. 2d 477, 479 (1970) (concurring opinion of Mr. Justice 
Harlan). Expressed in other terms the appellate question is: Did 
the district court invoke a remedy so extreme as to constitute 
an abuse of its discretion? However put, the answer clearly is: 
No.

The judgment of the district court is AFFIRMED without 
prejudice to further consideration by the district court of the 
present student assignment plan in light of the experience 
gained since its implementation.

CLARK, Circuit Judge, concurring:

I concur in the affirmance and remand of this cause but deem 
it necessary to briefly explain why.

I would expressly note that, in affirming, the trial court 
retained jurisdiction of this cause “for such further proceedings 
and orders as may be necessary in this cause” . Since this cause 
involves injunctive relief, it is always subject to change, as that 
court’s order so adjudicated. Modifications of or changes to the 
present injunctive mandate are most appropriately the business 
of that court in the first instance. The advent of the summer 
recess permits a time for consideration and study of any other 
feasible alternatives among old proposals or new suggestions 
which may now be advanced by the plaintiffs, HEW, the local 
school board or the State Board of Education.

All parties and persons interested and affected have now had 
a period of actual operating experience under the plan 
previously implemented. With recess time now available to 
study alternatives, this past experience plus any new ideas 
advanced, now may be considered. These could amend or 
entirely displace the present plan, which in some instances 
requires bussing of children of both races across several school 
districts predominently attended by members of the opposite 
race. Possibly pupil travel time could be reduced or eliminated 
and scarce dollars now spent for transportation could then be 
put to more educationally advantageous purposes under such an 
amended or modified concept.

There is yet another reason why 1 feel that this case should 
be expediently returned to the court below for further review.



A3

In this area of the law, different acceptable methods and 
procedures for achieving racially unitary school systems are 
constantly evolving. Such new developments which have 
recently occurred (and others yet unknown which could occur 
before this matter is redetermined by the district court) may be 
considered appropriate for application here. For example, 
Manatee County Schools appear to be closely similarly 
circumstanced, except for size, to the Charlotte-Mecklenburg 
district recently dealt with by the Fourth Circuit in its en banc 
opinion, Swann v. Charlotte-Mecklenburg Board o f Education,
----- F .2 d ------- (4th Cir. 1970) [Nos. 14,517 & 14,518, May
26, 19701 • The court there emphasized what the district court 
here has consistently recognized -  that racial balancing is not 
the sine qua non of a unitary system -  that educational 
reasonableness and realities must prevail over any artificial racial 
ratios. It could also be that the district court would want to 
approve several constitutionally acceptable plans as alternatives 
and leave the choices among them to the Manatee County 
School Board, as was suggested in a portion of this circuit’s 
decision in Mannings v. Board o f Public Instruction o f
Hillsborough County, Florida,----- F .2 d ------- (5th Cir. 1970)
[No. 28,643, May 11, 1970],

Whether any of these suggestions are practicable or possible 
and how any one or more of them may be effectuated should 
now rest with the district court, which, without a doubt, will 
use its very best lights to resolve these volatile and difficult 
issues in the best interests of all litigants and the multiplied ■ 
thousands of others equally affected.

Although I previously differed with our refusal to stay the 
time o f implementation of the pupil placement feature of the 
plan then adopted vis-a-vis the end of the 1 969-70 school term 
in Manatee County, 1 clearly recognized that the problems 
which I feared would develop had been the result of two 
factors: (1) a generously permissive order by the District Judge 
as to when pupil transfers were to take place, and (2) an 
inordinate delay in effecting such transfers by school officials. 
It was the latter not the former that truly created the real 
emergency for sound educational values due the children of all 
races in this district. No one showed this court that the time of 
implementation of pupil replacement had been planned or 
prepared for, nor was it coordinated with any particular



A4

educational interlude or period. It appeared to me that it had 
simply been postponed until it could no longer exist -  until the 
last possible moment when the very end of the school year was 
imminent. The proof made was to the effect that the whole of 
the school year would be put in jeopardy. Because the 
emergency was district-created not court-created, seemed then 
and seems now unimportant because the weltare of the children 
has to be the paramount consideration.

Because some chose to interpret my dissent differently, I feel 
constrained to take this opportunity to make it crystal clear 
that I never entertained the slightest feeling that the District 
Judge had not, could not, and would not put forth his best and 
most sincere efforts to maximize educational considerations 
while meeting the inexorable demands of the law requiring that 
this school system be restructured so as to abolish its former 
racial duality.



A5

APPENDIX B

IN THE
UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT 
TAMPA DIVISION

No. 65-12 Civ. T.

CAROLINE HARVEST, ET AL,
Plaintiffs

versus

BOARD OF PUBLIC INSTRUCTION 
OF MANATEE COUNTY, FLORIDA, ET AL,

Defendants

ORDER

This case was begun in 1965. An order of the Court on June 
27, 1969 rejected as inadequate a plan for desegregation 
submitted by defendants and ordered the submission of a new 
plan. Defendents appealed the order and plaintiffs 
cross-appealed, alleging that the Court’s order did not 
sufficiently dismantle the dual school system in Manatee 
County. On December 12, 1969 the Fifth Circuit reversed on 
the cross-appeal and remanded to this Court for compliance 
with the requirements of Singleton v. Jackson Mun. Sep. Sch. 
D ist,----- F .2d-------(No. 26285, Dec. 1, 1969).

On October 29, 1969 the Supreme Court declared the 
concept of deliberate speed defunct and announced that “the 
obligation of every school district is to terminate dual school 
systems at once and to operate now and hereafter only unitary 
schools.” Alexander v. Holmes County Bd. o f Education, 396 
U.S. 19, 24 L.Ed. 2d 19, 90 S.Ct. 29 (1969).

The Holmes case was implemented in the Fifth Circuit by 
Singleton v. Jackson Mun. Sep. Sch. Dist., supra. Singleton 
provided that desegregation and the establishment of a unitary



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system would come in two steps — faculty and activities by 
February 1, 1970, and students by September 1970, that is, the 
beginning of the 1970-1971 school year. Singleton ordered that 
its directives “be effectuated in these and all other school cases 
now being or which are to be considered in this or the district 
courts of this circuit.”

A hearing in this case was held pursuant to order on 
December 22, 1969, at which time the Court apprised the 
parties of the supervening provisions of Singleton.

On January 14, 1970 the Supreme Court reversed
Singleton insofar as it delayed student integration until 
September 19702 four justices held that desegregation as to 
students must occur by February 1, 1970; two others held that 
it must occur within eight weeks of a finding of the existence of 
a non-unitary system.

On January 26, 1970 a hearing in this case was held, at which 
time the Court and counsel discussed various plans for 
desegregation submitted by defendants. At the time of the 
hearing, the Court indicated that it would rule no later than 
January 29, 1970.

On January 28, 1969, the Court received a motion to 
intervene filed by Claude R. Kirk, Jr., Governor of the State of 
Florida. Under Rule 24, Federal Rules of Civil Procedure, third 
parties may intervene in an action either of right or by 
permission of court. The Governor has not sought to intervene 
of right, since no statute gives him the right, and since 
unquestionably his interest is adequately represented by 
existing parties. Permissive intervention is discretionary with the 
Court. Goodpaster v. Oklahoma Gas & Electric Co., 231 F.2d 
583 (9 Cir. 1963). Further more, “Intervention, whether of 
right or permissive, must be timely.” Becton v. Greene County 
Bd. o f Educ., 32 F.R.D. 220, 223 (E.D.N.C. 1963). Here the 
motion to intervene was not filed until five years after the 
action was commenced and only one day before the expected

1 Singleton et al v. Jackson Mun. Sep. Sch. Dist.-----
C t.------ , 24 L. Ed. 2d------ .
(No. 972 Jan. 14, 1970)

U .S.------ , 90S.



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ruling of the Court. Under these circumstances, the motion to 
intervene must be denied.

Before proceeding to the plans submitted by defendants, the 
Court will examine the present racial composition of Manatee 
County’s schools. The percentage of black teachers at the 
elementary level is 21.5%; at the middle school level, 21.3%; at 
the high school level, 8%. The percentage of black students 
throughout the system is 23.3%.

As to faculty, the system is not unitary. Teachers are not 
assigned so that the percentage of black teachers at each school 
is substantially the percentage of black teachers throughout the 
system at that level, as is required by Singleton. As to students, 
the system is unitary as to secondary schools, with the 
exception of Lincoln Middle School, which is all black. The 
elementary schools are segregated; it is the elementary schools 
which most fall short of the law of the land and which account 
overwhelmingly for Manatee’s status as a dual system. Three 
elementary schools (Bradenton, Memorial, and Tillman) are 
virtually all black. Ten elementary schools (Anna Maria, Duette, 
Myakka, Bayshore, Daughtrey, Ellenton, Miller, Palma Sola, 
Prine, Samoset) are virtually all white.

On January 6, 1970 the defendants submitted a plan to the 
Court (A Desegregation Plan for Manatee County Public 
Schools). The plan was prepared by the Florida School 
Desegregation Consulting Center, under a contract with the 
Department of Health, Education and Welfare (HEW), and 
consists of three alternative plans, Plan A, Plan B, and Plan C.

Plan A was not recommended by HEW or defendants. Under 
Plan A, as the result of pairing of certain schools, the percentage 
of black students at presently desegregated schools would rise 
unconscionably — at Manatee Elementary, for example, from 
20.2% to 47%; at Palmetto Elementary, from 15.7% to 46%. 
Other schools experience only inadequate desegregation — 
Tillman Elementary, for example, drops from 98.3% black to 
65.6%. A number of schools remain all white. The Court knows 
from experience, and defendants admit, that implementation of 
Plan A would result in resegregation. The Court joins all parties, 
therefore, in rejecting Plan A.



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Plan B effectively desegregates Manatee County schools and 
establishes a unitary system as to students. All but three 
elementaries, all of which are distantly located, are effectively 
integrated, and the nature of the desegregation is such that no 
resegregation will result. Plan B encompasses the pairing of the 
three all black elementary schools with other schools.

Plan C was recommended by HEW, but not by defendants. 
Plan C does not establish a unitary system as to students. Many 
schools are left all white. In others which are presently 
adequately desegregated, the racial composition is altered so as 
to invite resegregation — Ballard Elementary, for example, goes 
from 18.5% black to 36.1 %; Palm View Elementary from 21.1% 
to 49.6%; Palmetto Elementary from 15.7% to 45.1%. Black 
schools are not satisfactorily desegregated — Tillman, for 
example, goes from 98.3% black to 55.2%; Memorial from 
100% to 57.1%. The Court agrees with the defendants: Plan C is 
unsatisfactory because it invites resegregation and does not 
effectively disestablish the dual school system.

Under all three plans, all-black Lincoln Middle School is 
paired with Palmetto, so that the black composition at Lincoln 
is reduced from 100% to 53.4%.

On January 20, 1970 defendants filed two additional 
alternative plans. Alternative Plan No. 1 proposes, in one 
sentence, a freedom of choice plan. The Court finds such a plan 
unsatisfactory, both because such plans have traditionally failed 
to disestablish dual systems, Hall v. St. Helena Parish Sch. Bd., 
417 F.2d 801 (5 Cir. 1969); United States v. Choctaw County 
Bd. o f Educ., 417 F. 2d 838 (5 Cir. 1969), and because such 
methods shift the affirmative duty of abolishing the dual system 
from the shoulders of the school boards, where it belongs, to 
the students and their parents. United States v. Jefferson 
County Bd. o f Educ. 417 F.2d 834 (5 Cir. 1969); United States 
v. Bd. Educ. o f Bessemer, 396 F.2d 44 (5 Cir. 1968).

Alternative Plan No. 2 is a partial implementation of Plan C 
— students would spend half their day in their present school 
and half their day in the school they would be assigned to were 
plan C in effect. For the same reasons the Court rejected Plan C, 
the Court rejects Alternative Plan No. 2.



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On January 26, 1970, the date of the last hearing in this case, 
a petition for intervention was filed by numerous Manatee 
residents. At the hearing, the Court granted the motion to 
intervene and discussed with intervenors’ counsel the plan 
submitted by intervenors for the desegregation of Manatee’s 
schools. Intervenors’ plan is in essence a modified freedom of 
choice plan: any child may select any school to attend; school 
officials are to urge students to transfer and notify their parents 
of. this right; all students electing to transfer shall be provided 
transportation; faculties are to be integrated. The Court rejects 
intervenors’ plan for the same reasons it rejected Alternative 
Plan No. 1. The Court reiterates: freedom of choice is not an 
end or a constitutional principle; it is only a tool for achieving a 
unitary system. United States v. Jefferson County Bd. ofEduc., 
372 F. 2d 836 (5 Cir. 1966). This plan differs so little from the 
present policies of defendants that it offers practically no 
prospect of eradicating all vestiges of de jure segregation in 
Manatee County.

As to student desegregation, therefore, the Court rejects all 
plans except Plan B, which is the only plan proposing the 
establishment of a unitary school system. As to Lincoln Middle 
School, the pairing of it with Palmetto is the only way 
suggested by defendants for ending its all black status, and the 
Court accepts this proposal. As to faculty desegregation, only 
one plan has been advanced by the defendants and it apparently 
presupposes that the student makeup of the schools will 
continue as it is now. The defendants will therefore have to 
desegregate faculty in accordance with Singleton in light of the 
student population at the various schools under Plan B.

There remains to be considered only the time defendants 
must put Plan B and a concomitant faculty desegregation plan 
into effect. In establishing a timetable, several factors must be 
considered. First, there is the present school setup in Manatee 
County. The County is in the middle of the school year. The 
school system is truly dual, not unitary, and extensive 
reshuffling will be necessary to establish a unitary system. 
Second, there is the factor of the Fifth Circuit, which directly 
reversed this case, holding Manatee to have a unitary system, 
and ordered the Court to comply with Singleton. Also, the 
reversal mandate of December 12, 1969 in this case was 
amended by the Fifth Circuit on January 7, 1970, to order the



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defendants to prepare for total desegregation by February 1, 
1970, should the Supreme Court so decide. Third, there is the 
time factor; today is but a few days away from February 1st. 
Fourth, there are the holdings of the Supreme Court. In 
Holmes, the Court ordered desegregation immediately. In 
Carter, four justices decided on student desegregation by Feb.
1; two more justices held it must occur within eight weeks of a 
finding that a school system is dual.

The Court holds that the dual school system in Manatee 
County must be changed prior to the beginning of the 1970-71 
school year. In light of the above factors, the Court holds that 
defendants must have disestablished the present system and 
instituted Plan B for students and a plan for faculty in 
accordance with Singleton by no later than April 6, 1970. 
Wherefore, it is

ORDERED, ADJUDGED, AND DECREED:

1. The motion to intervene, filed by Claude R. Kirk, Jr., 
Governor of the State of Florida, is hereby denied.

2. Plan B, contained within the Desegregation Plan for the 
Manatee County Public Schools prepared by HEW and filed Jan. 
6, 1970 is hereby confirmed, approved, and ratified by the 
Court as the desegregation plan for Manatee County; all other 
plans are disapproved.

3. Defendants shall implement Plan B by no later than April 
6, 1970.

4. Defendants shall assign teachers in the Manatee County 
School system so that, no later than April 6, 1970, the faculty 
composition of each and every school contains a ratio of black 
teachers to white teachers substantially the same as the ratio of 
black to white teachers in the school system as a whole at that 
educational level.

5. Defendants, no later than April 6, 1970 shall pair Lincoln 
Middle School with Palmetto as proposed on Table 7 of the 
Desegregation Plan for the Manatee County Public Schools 
prepared by HEW and filed Jan. 6, 1970.

6. On or before May 1, 1970 defendants shall submit to the 
Court figures showing the faculty and student composition of 
every school within the Manatee County System.

7. Jurisdiction is retained for such further proceedings and 
orders as may be necessary in this cause.



DONE and ORDERED at Tampa, Florida, this 29th day of 
January, 1970.

S/BEN KRENTZMAN 
United States District Judge.