Petition for Rehearing In Banc aby the Court of Appeals for the Fifth Circuit

    IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

NO. 25,030 

  

BEATRICE ALEXANDER, et als Plaintiffs-Appellants 

VV. 

HOLMES COUNTY BOARD OF EDUCATION, et als Defendants-Appellees 

  

(Including Consolidated Cases) 

  

PETITION FOR REHEARING IN BANC BY THE 

COURT OP APPEALS POR THE FIFTH CIRCUIT 

  

Judge A. F. Summer 
Attorney General of Mississippi 
New Capitol Building 
Jackson, Mississippi 39205 

John C. Satterfield 
Satterfield, Shell, Williams and Buford 

Post Office Box 466 
Yazoo City, Mississippi 39194 

Special Counsel for the Defendants- 
Appellees, other than the United 
States of America, in behalf of 
all other attorneys of record in 
each of the Consolidated Cases. 

   



  

IN THE UNITED STATES COURT OF APPEALS 

POR THE PIFTH CIRCUIT 

  

  

NO. 28030 

JOAN ANDERSON, et al Plaintiffs-Appellants 

UNITED STATES OF AMERICA Plaintiff-Intervenor-Appellant 

57, (Civil Action No. 3700(J)) 

THE CANTON MUNICIPAL, SCHOOL 

DISTRICT, et al, and THE MADISON 

  

  

  

  

COUNTY - SCHOO, DISTRICT, et. al Defendants-Appellees 

BEATRICE ALEXANDER, et al Plaintiffs-Appellants 

Vv, {Civil Action No. 3779{(J)) 

HOLMES COUNTY BOARD OF 

EDUCATION, et al Defendants-Appellees 

ROY LEE HARRIS, et al Plaintiffs-Appellants 

17. {Civil Action No. 1209(W)) 

THE YAZOO COUNTY BOARD OF 

EDUCATION, et al Defendants-Appellees 

JOHN BARNHARDT, et al Plaintiffs-Appellants 

Vv. {Civil Action No. 1300(T)) 

MERIDIAN SEPARATE SCHOOL 

DISTRICT, et al Defendants-Appellees 

CHARLES KILLINGSWORTH, et al Plaintiffs-Appellants 

v7. {Civil Action No. 1302{(F)) 

THE ENTERPRISE CONSOLIDATED SCHOOL 

DISTRICT and QUITMAN CONSOLIDATED 

SCHOOL. DISTRICT Defendants-Appellees 

  

  

  
   



  

DIAN HUDSON, et al Plaintiffs-Appellants 

UNITED STATES OF AMERICA Plaintiff-Intervenor-Appellant 

Vv. {Civil Action No. 3382(J)) 

LEAKE COUNTY SCHOOL BOARD, et al 

  

JEREMIAH BLACKWELL, JR., et al Plaintiffs-Appellants 

Ve (Civil Action No. 1096{(W)) 

ISSAQUENA COUNTY BOARD OF 

EDUCATION, et al Defendants-Appellees 

  

PETITION POR REHEARING IN BANC BY THE 

COURT OF APPEALS FOR THE PIPTH CIRCUIT 
  

I. 

PRELIMINARY STATEMENT 
  

Thizg petition for rehearing in banc is filed by all school 

boards and related defendants in the cases captioned above, con- 

golidated in this Court under Docket No. 28030. The discussion 

herein also applies to the suits against the Wilkinson County 

Poard of Fducation and the North Pike Consolidated School Distr- 

ict. These two districts are included in the cases consolidated 

as Docket No. 28042 and in the petition for rehearing filed therein. 

To avoid prolixity and possible confusion of issues, there is 

hereby adopted as a part hereof all matters set forth in the peti- 

tion for rehearing in consolidated Docket No. 28042, to the extent 

that the same are applicable here. 

All of the above cases and the suits against the Wilkinson 

County Board of Education and the North Pike Consolidated School 

District were included in the petition for writ of certiorari filed 

in the Supreme Court of the United States by private plaintiffs 

-] = 

  

  

  

 



  

and private intervenors. The other sixteen cases consolidated as 

Docket No. 28042 were not respondents to such petition and hence 

were not parties to the Per Curiam opinion of the Supreme Court 

of the United States rendered on October 29, 1969. 

11. 

A GRAVE AND FATAL MISUNDERSTANDING 
  

Being completely frank with this Court, when the announce- 

ment was made from the bench at the pre-order conference on Nov- 

ember 5 that the order had already been written putting into effect 

all of each HEW plan (with a few minor exceptions stated) and that 

the hearing would be limited to questions concerning details, the 

attorneys present were so stunned they were in a state of mental 

shock and literally speechless. 

The order entered here has dealt a crippling blow to public 

education in the United States. It is resulting in an untold waste 

of human resources. Chaos and confusion exist in the education of 

thousands of children. All this is the result of haste. Not haste 

of the courts, nor haste of the United States of America, nor haste 

of the Attorney General of the United States, nor haste of the Sec- 

retary Of Health, Education and Welfare, nor haste of the public 

officials of this state. 1It is the result of haste of the attorneys 

for the private plaintiffs in these particular cases. 

This haste has brought about an understandable misunderstanding 
  

between the different levels of our federal judicial system. 
  

Knowing the desire of both this Court and the Supreme Court of 

the United States to preserve public education, it is inescapable to 

us that this Court felt it was mandatory for it to. act as it did in 

these cases. This is borne out by the following extracts from the 

initial statement of Judge Bell at the pre-order conference (page 

i 

  
  

   



  

references are to transcript of the proceedings): 

(p.2) Ladies and gentlemen, we have called this pre- 
order conference today for the purpose of making some 
announcements and also to exchange views. After we make 
some statements, we want everyone to feel free to ask 
questions. We don't intend to have any legal arguments, 
as such, but we do think it would be well for anyone that 
has questions, that you feel free to make such inquiries 
as you may have.... 

  

  

  

  

(p.3) We have also studied the Supreme Court decision in 

these cases and we are of the view that action is required, 

and immediate action.... 

(P.5) We have prepared a draft order, it is not a final 
Order. We hope to put the Order out tomorrow. We did not 
want to put an order out until we had this conference and 
we want to tell you generally what is in the order now so 
that you will be advised as to what questions you may wish 
to pose. 

(p.6) Now, we are going on then, and we say to effectuate 
the conversion of these school systems to unitary school 
systems within the context of the Supreme Court order the 
following things have to be done, and then generally we are 
putting into effect in every case, except the ones I will 
tell you about, the recommended plan of the Office of Educa- 
tion, HEW. And that is a permanent plan and not the interim 
plan. 

We cannot believe that this Court, which is familiar with the 

  

  

  

  

  

  

devastating effect of requiring every step of the HEW plans to be 

put into effect immediately, would have done so had it not felt it 

was acting as specifically directed by the Supreme Court of the 

United States. 

We strongly urge that the Court reconsider its construction 

of the duty imposed upon it by the Supreme Court of the United 

States in its Per Curiam opinion of October 29. The discretion 

vested in this Court is stated as follows: 

2. The Court of Appeals may ln its discretion direct the 
schools here involved to accept all or any part of the 
August 11, 1969, recommendations of the Department of 
Health, Education and Welfare, with any modifications 
which that court deems proper.... 

  

  

  

—3 

  

   



  

The clause which delineates the bounds of this broad discre- 

tion is as follows: 

...insofar as those recommendations insure a totally unitary 
school system for all eligible pupils without regard to race 
Or. Color. 

  

  

In the prior paragraph the Supreme Court directed this Court 

to issue its decree and order, effective immediately, declaring 

that these school districts: 

(a) ...no longer operate a dual school system based on race 
or color, and 
  

  

(b) ...begin immediately to operate as unitary school systems 
within which no person is to be effectively excluded from any 
school because of race or color. 

    

  

  

The Supreme Court did not, in this particular order, define a 

"dual school system based on race or color". 1t did define a unji- 
  

tary school system as being one "within which no person is to be 
    

effectively excluded from any school because of race or color". 
  

It is crystal clear that this Court of Appeals has the auth- 

ority to require the schools to accept any part of the August 11, 
  

1969, recommendations of HEW. It is also crystal clear that any 

part put into effect may be "with any modifications which the Court 
  

may deem proper". 
  

We feel it is inescapable that the Supreme Court would not 

have referred to "any part" nor authorized "any modifications which 
    

the Court may deem proper" If it had been intended to prohibit this 
  

Court from using a part of a HEW plan. This would include the use 

of alternate steps, although they may have been called "interim 

steps". Semantics may result in the destruction of the school dis- 

tricts where the HEW plans use the word "interim" instead of "alter 

nate". Apparently the term "interim" carried a connotation of 

delay. In. fact, . a terminal plan: may go into effect immediately, at 

d= 

   



  

once, today, whether it includes one or two or more steps. 

The plans for Hinds County, the Meridian Municipal Separate 

School District, and the Holmes County School District contained 

steps which this Court properly permitted to be followed.” In its 

order of November 7 this Court very properly permitted the interim 

plan to be utilized as a step or alternate in Quitman Consolidated 

School District, and approved other modifications of HEW plans. 

In its Per Curiam opinion the Supreme Court referred to 

Griffin L/ and Green 2/, The Court said in Griffin, "the time for 

mere 'deliberate speed' has run out". The Court stated in Green, 

"the burden on the school board today is to come forward with a 

plan that promises realistically to work and promises realistically 
    

to work now"... Purthermore, as was said in Carr 3/, an effort 

should be made by the school authorities and the courts to "expe- 

dite the process of moving as rapidly as practical toward the goal 
  

of a wholly unitary system of schools, not divided by race as to 

either students or faculty". 

In fact the problem here had its genesis in the interpreta- 

tion placed upon words that a plan "promises" to work "now". The 
  

construction of Green inherent in the November 7th order necessa- 

rily interprets the word "now" to mean either something accomplished 
  

in the past and existing today or something to be accomplished today 
  

by the stroke of a pen or by the entry of an order. This construc- 
  

tion is wholly inconsistent with the word "promises". 

It is contradictory to Green, which was recognized and rein- 

forced in Carr. .In Carr the Court said that, "as.stated in Green.v,. 

County School Board, supra, 391. U.S. at 439": 
  

It is incumbent upon the school board to establish that lts 
proposed plan promises meaningful and immediate progress to- 
ward disestablishing state-imposed segregation. It 1s incum- 
  

   



  

bent upon the district court to weigh that claim in light Of 
the facts at hand and in light of any alternatives which may 
be shown as feasible and more promising in their effectiveness. 
  

ok Bp 

THE HEW PLANS, INCLUDING ALTERNATE OR "INTERIM" STEPS 
IN STUDENT AND FACULTY INTEGRATION, PUT INTO IMMEDIATE 
EFFECT UNITARY RACIALLY NONDISCRIMINATORY SCHOOL SYSTEMS 
  

The Per Curiam opinion was rendered and is necessarily con- 

strued in the context of Green, Raney4/ , Monroe 2/ and Carr. These 
  

cases clearly and unmistakably describe the unitary racially non- 
  

discriminatory school system which meets all constitutional 
  

guarantees. Notes containing case references appear on last page hereof. 

  

  

In Green such system is described as: "A racially nondiscrimi- 

natory. school system" -- "a unitary, nonracial system of public 

education" -- "a unitary system in which racial digcrimination 
  

would be eliminated root and branch." 
  

In Raney such system is described as: "A unitary, nonracial 
  

school system". 

  

  

In Monroe such school system is described as: "A racially 

nondiscriminatory system" -- "a unitary system in which racial 

discrimination would be eliminated root and branch" -- "a system 
  

without a 'white' school and a 'Negro' school, just schools". 

In Carr such school system is described as: "A system of pub- 

lic education free of racial discrimination” -- "a completely uni- 
  

fied unitary nondiscriminatory school system" -- "a racially non- 
  

  

discriminatory school system". 
  

The Supreme Court affirmatively declined to hold in Green that 

the Fourteenth Amendment requires "compulsory integration", saying: 

The Board attempts to cast the issue in its broadest form 
by arguing that its "freedom-of-choice" plan may be faulted 
only by reading the Fourteenth Amendment as universally re- 
  

ly 

   



  

  quiring "compulsory integration’, -a reading if insists the 
| wording of the Amendment will not support. But that argument 

dgnores the thrust of Brown 11. ‘In the light of the command 
| of that case, what is involved here is the question whether 
| the Board has achieved the "racially nondiscriminatory 

school system" Brown II held must be effectuated in order to 
remedy the established unconstitutional deficiencies of its 
segregated system. 

  

  

  

  

  

  

  

  

It is only by a consideration of the many complex factors en- 

tering into the educational process and particularly into the de- 

segregation of formerly de jure and formerly de facto segregated 

schools that the courts are able to chart the course which is in 

the best interest of the students and of our public schools. This 

was the objective stated by Mr. Justice Black in Carr. 

In Green the Supreme Court found that the school system of 

New Kent County was a dual school system and described such system 

as follows: 

.... Racial identification of the system's schools was com- 
plete, extending not just. to the composition of student 
bodies at the two schools but to every facet of school oper- 
ations -- faculty, staff, transportation, extracurricular 
activities and facilities. 

  

  

  

  

In Green, Raney and Monroe there was considered many of the 
  

factors which, when taken as a whole and in combination, should 
  

be utilized in determining the application of the following test: 

Where the Court finds the board to be acting in good faith 
and the proposed plan to have real prospects of dismantling 
the state-imposed dual system 'at the earliest practicable 
date' then the plan may be said to provide effective relief.... 
Moreover, whatever plan is adopted will require evaluation in 

practice.... 

  

The elements elucidated in these cases included: 

l. Every facet of school operations; 

2. Faculty, staff and student body; 

3. Transportation and construction of new buildings; 

4. Extracurricular activities and facilities; 

5. Majority to minority transfer; 

<7=    



  

6. Method of exercising the freedom of choice; 

7. Assignment of students who did not exercise the freedom 
Of choice; 

8. Whether or not the "public school facilities for Negro 
pupils (were) inferior to those provided for white 
pupils”: 

  
9. Operation of the freedom of choice plan "in a constitu- 

tionally permissible fashion"; 

10. "All aspects of school life including faculties and 
gtaffa’; 

11. Whether "the board had indeed administered the plan in 
a discriminatory fashion; 

12. The comparative treatment of students attempting "to 
transfer from their all-Negro zone schools to schools 
where white students were in the majority"; 

13. The comparative treatment of "white students seeking 
transfers from Negro schools to white schools"; 

14. Whether "the transfer (provision) lends itself to per- 
petuation of segregation". 

Within the broad statements of Green fall the following addi- 

tional phases of a school system: 

15. Athletic activities within the schools; 

16. Parent-teacher associations; 

17. Faculty and staff meetings within schools and of 
faculties and staffs of the various schools at the 
elementary, junior high school and high school levels; 

18. School-sponsored visitation of student body officers 
and student committees; 

19. In-service training of teachers and staff to assist 
in the desegregation process; 

20. Participation by students in various types of student 
organizations. 

The unitary nondiscriminatory school system required in the 

Per Curiam opinion has been described by the Court of Appeals of 

the Sixth Circuit in Goss 5/ (which was decided in the light of 

Green, Raney and Monroe) as follows: 
  

og    



  
  

In Green the Court said school boards must adopt plans which 
"promise realistically to convert promptly to a system with- 
out. a 'white' school and a 'Negro' school, but just schools.” 
301 U.S. at 442, 88 S.Ct. at 1696, The Court further said 
that it would be their duty "to convert to a unitary system 
in which racial discrimination would be eliminated root and 
branch.” 391 U.8. at 437-438, 88 S.Ct. at 1694, We are not 
sure that we clearly understand the precise intendment of 
the phrase "a unitary system in which racial discrimination 
would be eliminated," but express our belief that Knoxville 
has a unitary system designed to eliminate racial discrimi- 
nation. 

  

  

  

  

This opinion found that the Knoxville school system contained 

five all-Negro schools and 29 schools in which the teaching staffs 

were composed exclusively either of members of the Negro race or 

members of the white race. Knoxville, Tennessee, previously had 

schools segregated under state law. Nevertheless, the Court con- 

cluded that this system met the requirements of a unitary, non- 

discriminatory school system as laid down in Green, Monroe and 
  

Raney. 

In its Per Curiam order of October 29 in these cases the 

Supreme Court defined the term "unitary school system" in the man- 

date that this Court enter an order as to these nine school dis- 

tvricts: 

... directing that they begin immediately to operate as 
unitary school systems within which no person is to be 
effectively excluded from any school because of race or 
color. 

  

  

This. definition is in accord with the holding. of the Sixth 

Circuit in Goss... IL is. also in. accord with the holding of this 

Court in Broussard v. Houston Independent School District, May 30, 
  

1968, 395 80.2d.817, Petition for. Rehearing in banc (in the.light 

of Green, Monroe and Raney) denied October 2, 1968, 403 F.2d 34. 
  

That case involved the same constitutional principles which are 

applicable here. The issue was that of school construction which 

=O  



  

would perpetuate the Houston freedom of choice plan. The affir- 

mance of the lower court was based upon the following principle 

announced by the Court: 

Indeed, under the Houston plan, as described by the school 

authorities, it would appear that an "integrated, unitary 
school system" is provided, where every school is open to 
every child. It affords "educational opportunities on 
equal terms to all". That is the obligation of the Board. 
{Note 15) United States v. Jefferson County Bd. of Bd4., 
supra, 380 7.24 p. 390, en banc consideration. 

  

  

  

As noted above, petition for rehearing in banc in the light 

  

of Green, Raney and Monroe (which had been handed down two days 

before Broussard) was denied by the full Court on October 2, 1968. 
  

Of course, the above twenty numbered subparagraphs are some- 

what repetitious, being taken from the above three decisions. 

Nevertheless, it is clear that when the HEW plans filed August 11, 

1969, are put into effect as terminal plans, including the alter- 

nate or interim steps in student and faculty integration, these 

school systems will be operated as unitary school systems, unless 

the Court holds that every single element mentioned in Green, 

Raney and Monroe is a separate sine qua non of a unitary school 

system. 

In order to meet the general requirements of the Supreme 

Court it is not necessary either (a) that the faculties be inte- 

grated so that all systems "are going to have a ratio of almost 

equal to that in the faculty population of the system" (finding 

of Judge Bell, Tr. 9), or (b) that there be accomplished the com- 

pulsory integration of all schools to the extent envisioned in 

the over-all or final step of the HEW plans. 

We respectfully submit that even if this extreme interpreta- 

tion were correct, such alternate or interim steps are permitted. 

=16~    



  

There is little difference between the word "immediately" used in 

the Per Curiam order of October 29 and the word "now" used in 

Green. As was said by Judge Bell at the pre-order hearing (Tr.p.6): 

Now, that is the language of the Supreme Court decision. It 
is a little different from some of the language used in the 
old Supreme Court decisions but probably means the same thing. 

Certainly the present decision, which involved only a proce- 

dural point, must be construed in the context of Green, Monroe,   

Raney and Carxr. 

1V. 

ELIMINATION OF THE VESTIGES OF A DUAL SCHOOL SYSTEM AND 
OPERATION OF A UNITARY SCHOOL SYSTEM DO NOT REQUIRE COM- 
PULSORY STUDENT INTEGRATION OF EVERY SCHOOL NOR COMPUL- 
SORY INTEGRATION OF ALL FACULTIES TO "A RATIO OF ALMOST 
EQUAL TO THAT IN THE FACULTY POPULATION OF THE SYSTEM" 
  

As we have set forth above, the Supreme Court of the United 

States clearly used the words "all or any part of the August 11, 
  

1969" HEW plans and "modifications" thereof because each plan con- 

tains steps in both student and faculty integration. This neces- 

sarily was done either (a) because the Supreme Court had had no 

opportunity to study the twelve plans before it, or (b) because 

the Supreme Court felt that a full and detailed study by this 

Court would reveal that these plans exceeded the constitutional 

requirements. 

Neither the presence of schools attended exclusively or pre- 

dominantly by Negroes nor the presence of faculties composed of 

teachers of one race constitute vestiges of the dual system. After 

the decisions in Green, Monroe, Raney and Hall Z/. the Court of 
  

Appeals of the Sixth Circuit squarely faced this issue in Goss. 

In holding that the operation of the Knoxville, Tennessee, school 

system complied with all constitutional requirements, the Court 

~1lle=    



  
  

said: 

Preliminarily answering question I, it will be sufficient 
to say that the fact that there are in Knoxville some 
schools which are attended exclusively or predominantly by 
Negroes does not by itself establish that the defendant 
Board of Education is violating the constitutional rights 
of the school children of Knoxville. Deal v. Cincinnati 
Bd, of "'Bducation, 369 PI.24 55 (6th Cir. 1966), cert. denied, 
380 (1.8. 847, B88 S.Ct. 39, 19 L..BPd.24 114 (1967); Marp Vv. 
BA: of Education, 373 F.2d 75, 78 (6th Cir ,.-1966), cert. 
denied, 389 U.S. B47, 88 S.Ct. 39, 19 L..EA.24 114 (1967). 
Neither does the fact that the faculties of some of the 
schools are exclusively Negro prove, by itself, violation 

of Brown. 

  

  

  

  

The presence of schools with student bodies consisting of stu- 

dents of only one race is not a vestige of a dual system of schools. 

The existence of schools with faculties composed of members of only 

one race is not a vestige of a dual system of schools. The pres- 

ence of these factors alone does not destroy the unitary non- 

discriminatory character of a school system. These elements are 

a natural result of human conduct and of the educational process 

when it is maintained without regard to race and without discrimi- 

- nation. 

The opinion of the Court of Appeals of the Sixth Circuit in 

Goss is supported by the following compilations assembled from 

the statistical information filed with the Department of Health, 

Education and Welfare, which show the racial composition of 

schools in the one hundred largest school districts in this nation 

as of October 15, 1968... They were filéd by school districts under 

the requirements of Title VI of the Civil Rights Act of 1964 and 

are upon Civil Rights Porms OS/CR 102-1 and OS/CR 101, Most of 

these districts have never had a dual system of schools. 

Assuming that a school with less than one percent of the minor- 

ity race is an all-white or all-Negro school, of the 12,497 schools 

10  



  
  

in the one hundred largest school districts in the United States 

6,137 schools are either all-white or all-Negro. Thus, more than 
  

forty-eight percent of the schools in these districts are either 
  

all-white or all-Negro. If is also found that in such districts 
  

having as much as twenty percent or more Negro student enrollment, 

only one district does not have within it all-Negro schools. This 

is the Rochester, New York, Monroe County School District. In all the 

consolidated cases at bar only one of the thirty districts has less 

than twenty percent Negro student enrollment. Such student bodies 

and faculties cannot be a "vestige of the dual system of schools". 

They result from the natural process of education in a unitary, 

non-racial school system: 

Racial Composition 

  

  
    

of Schools 
Total Student All-Negro 
Schools Body of Student Faculty of 

District in Dist. One Race Body One Race 

Chicago Public Schools, 
Chicago, 111. 610 392 208 236 

Indianapolis Public Schs., 
Indiana 11° 52 17 1 

Des Moines Community 
Schs., , Iowa 81 36 pe 52 

Boston School Dept., 
Massachusetts 196 56 11 108 

Detroit Public Schools, 
Michigan 302 98 67 10 

Special Sch, Dist, No. 1, 
Minneapolis, Minn. 98 42 — 52 

St. Touis City sch. Dist., ; : 
Missouri 164 114 83 81 

Kansas City School Dist., 
Missouri 99 43 19 14 

-13=  



  
  

(Continued) 

District 
  

Newark Public Schools 

Newark, N.J. 

Oklahoma City Public Sch. 
Dist., 1-89, Okla, 

Dallas Indep. Sch. Dist., 
Texas 

Los Angeles School Dist., 
California 

Sch. Dist. No. 1, City 
&.Co..0f Denver, Colo. 

District. of Columbia 

Public Schools 

Gary Community Schools, 
Gary, Ind. 

Cleveland, Ohio, 
Cuyahoga Co. 

New York City Public Schs. 
New York, N.Y. 

Houston Indep. Schools, 
Houston, Texas 

School Dist. of 

Philadelphia, Pa. 

Racial Composition 

  

    

of Schools 
Total Student All-Negro 
Schools Body of Student Faculty of 
in Dist, One Race Body One Race 

80 27 27 3 

115 71 15 5 

173 117 26 149 

591 359 65 229 

116 54 3 32 

118 114 114 26 

45 25 21 6 

180 115 57 38 

B53 158 113 221 

225 139 61 9 

278 87 63 3 

Broussard approved the Houston Independent School District as 
  

being in compliance with constitutional requirements under a free- 

dom of choice plan. According to its official report as of October 

15, 1968, there then remained sixty-one all-Negro schools, seventy- 

eight all-white schools, and there were nine schools with faculties 

composed of members of one race. 

-14~  



  

¥. 

THE PARTIES HAVE NOT BEEN ACCORDED DUE PROCESS OF LAW 
  

We have generally adopted as a part of this petition for re- 

hearing all matters set forth in the petition for rehearing Filed in 

the other nineteen cases consolidated under Docket Number 28042. We 

particularly adopt that portion thereof pointing out in detail how 

the litigants have not been accorded due process of law. As detailed 

therein, the Supreme Court of the United States considered on the Writ 

of Certiorari only the order dated August 28. No issue was joined 

concerning the plans filed on August 11 by the Department of Health, 

Education and Welfare. They were neither before the Court nor con- 

sidered by the Court. Hence such hearing does not affect in any manner 

the total lack of due process of law in these cases. 

CONCLUSION 
  

We submit, with deference, that a rehearing should be granted 

at which the Court would permit all litigants to be heard. 1n the 

alternative, we strongly urge this Court to alleviate the condition 

which is now destroying our system of public schools in this state. 

The chaos and confusion is beyond description. Every public school 

system here involved will suffer major and irreparable injury. There 

is no way to determine the number which may be destroyed. 

If the steps proposed by HEW as alternate or "interim" steps 

were embodied in the terminal plan and permitted to be utilized as 

proposed, we believe that most of these systems could be salvaged and 

much of the injury and damage prevented. This would, of course, be a 

major step by this Court. Yet we believe the public interest warrants 

such action. 

-15-~    



  

Respectfully submitted, 

  

[2 Eo Sunaas 
  

JUDGE A. F. SUMMER 
Attorney General of 
Mississippi 
New Capitol Building 
Jackson, Mississippi 39205 

  

  

JOHN C. SATTERFIELD 

Post Office Box 466 
Yazoo City, Mississippi 39194 

Special Counsel for the Re- 
spondents, other than the 
United States of America, 
associated with other attor- 
neys of record in each of the 
Consolidated Cases. 

IN BEHALF OF ALL ATTORNEYS OF 

RECORD IN THE ABOVE STYLED CAUSES. 

NOTES CONTAINING CASE REFERENCES 
  

Griffin v. School Board, 

Green v. County School Board, 

Carr v. Montgomery Cty., 

Raney v. Gould, 391 U.S. 443, 

377 U.S. 213, 12 1.Fd.24 256 

391 U.S. 430 

23 L..24.24 263, 3921 U.S. 443 

20 1T..Pd.2d 727 

Monroe v. City of Jackson, Tenn., 391 U.S. 450, 20 L.Fd.24 733 

Goss v. Bd, of Ed. 

Hall v. St. Helena Parish, 

of ‘Knoxville, Tenn., 406 r.24 1183 

287 P.24 376 

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that copies of the foregoing Petition for 

Rehearing were served on the Plaintiff-Appellants and Intervenors 

on this 20th day of November, 1969, by mailing copies of same, 

postage prepaid, to their counsel of record at the last known   
address as follows: 

Melvyn R. Leventhal 
Reuben V. Anderson 

Fred L. Banks, Jr. 

| John A. Nichols 
538-1/2 North Farish Street 
Jackson, Mississippi 39202 

Jack Greenberg 
| James M. Nabrit, I11 
| Norman C. Amaker 

Norman J. Chachkin 

10 Columbus Circle, Suite 2030 
New York, New York 10019 

Jeris Leonard 
Assistant Attorney General 
Department of Justice 
Washington, D. C. 20530   

David L. Norman 
Deputy Assistant Attorney General 
Department of Justice 
Washington, D. C. 20530 

Robert E. Hauberg 
United States Attorney 
Post Office Building 
Jackson, Mississippi 39205 

This the 20th day of November, 1969. 

  

  

Of Counsel