Norwood v. Harrison Brief of Appellees

This item is featured in:

“School Choice”: Reviving Segregationist Strategies and the Fight for Public Education

    In the Supreme Court of the United States
OCTOBER TERM, 1972

No. 72-77

DELORES NORWOOD, ET AL.,
Appellants,

vs.

D. L. HARRISON, SR., ET AL., 
Appellees.

On A ppeal from  the United' States D istrict1 C ourt 
for the N orthern D istrict of M ississippi

BRIEF OF APPELLEES

A. F. Su m m e r , Attorney General 
State of Mississippi 

W il l ia m  A. A llain ,
First Assistant Attorney General 
State of Mississippi 

H erer L adner, Jr ., Special Assist­
ant Attorney General 
State of Mississippi 

Post Office Box 220 
Jackson, Mississippi

E. L. M end en h all , In c ., 926 Cherry Street, Kansas City, Mo. 64106, 421-3030



TABLE OF CONTENTS

Question Presented ..............................   1
Statement of the Case ..........................................................  1
Summary of Argument ......................................................  3

Argument—
Textbook Aid to Individual Students Is Not Sig­

nificant Involvement with the Beliefs or Prac­
tices of Private Schools ....................... ..................  4

Loaned Textbooks to All Educable Children Is Not 
Significant State Aid to Racial Discrimination .... 9

Conclusion .............................................................................  16

Table of Authorities

Cases

Abingdon School District v. Schempp, 374 U.S. 203, 83 S.
Ct. 1560, 10 L.Ed.2d 844 (1963) ..................................  4

Anderson v. Martin, 375 U.S, 399, 84 S.Ct. 454, 11 L.
Ed.2d 430 (1964) ............. .................. ................................ 14

Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923,
20 L.Ed.2d 1060 (1968) .............................. ....... ......... 4,6,8

Burton v. Wilmington Parking Authority, 365 U.S. 715,
81 S.Ct. 856, 6 L.Ed.2d 45 (1961) ..................................  12

Chance V. Mississippi State Textbook Rating and Pur­
chasing Board, 190 Miss. 453, 200 So. 706 (1941) ..... 8

Cochran v. Louisiana State Board of Education, 281 U.S,
370, 50 S.Ct. 335, 74 L.Ed. 913 (1930) .......................... 7,16

Coffey v. State Educational Finance Commission, 296 
F. Supp. 1389 (S.D. Miss. 1969) .................................... 2,10



II

Evans v. Abney, 396 U.S. 435, 90 S.Ct. 628, 24 L.Ed.2d
634 (1970) ..........-..............................................................  13

Everson v. Board, of Education, 330 U.S. 1, 67 S.Ct. 504,
91 L.Ed. 711 (1947) ..................................................... ----- 4, 7

Follett v. Town of McCormick, 321 U.S. 573, 64 S.Ct.
717, 88 L.Ed. 938 (1944) ...........................................-...... 4

Green v. County School Board, 391 U.S. 430, 88 S.Ct.
1689, 20 L.Ed.2d 716 (1968) ............................................ 14

Griffin v. School Board of Prince Edward County, 377
U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964) .......  10

Griffin v. State Board of Education, 296 F. Supp. 1178
(E.D. Va. 1969) .................- ........................................... - 10

Haas v. Independent School Dist., 69 S.D. 303, 9 N.W.2d
707 (1943) ......................................................... - - ..........  8

Hall v. St. Helena Parish School Board, 197 F. Supp. 649
(D.C. E.D. La. 1961), affd. 368 U.S. 515 (1962) .......  10

Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.
Ed.2d 745 (1971) ..............................................................  6,7

Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed.
1042 (1922) ..........................................................-............  15

Moose Lodge No. 107 v. Irvis, .......  U.S. ------, 92 S.Ct.
....... , 32 L.Ed.2d 627 (1972) .............................................11-12

Norwood v. Harrison, 340 F. Supp. 1003 (S.D. Miss.
1972) ...................................................................................  11

Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1960, 29 L.
Ed.2d 438 (1971) ...................~~~............ -.......................  12

Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571,
69 L.Ed. 1070 (1925) .................................... -................. 9,15

Poindexter v. Louisiana Financial Assistance Commis­
sion, 275 F. Supp. 833 (E.D. La. 1967), affd. 389 U.S.
571 (1968)  .......................................   10

Reitman v. Mulkey, 387 U.S, 369, 87 S.Ct. 1627, 18 L.
Ed.2d 830 (1967) ............................................................12,13



Ill

Shelley v. Kraemer, -334 U.S. 1, 68 S.Ct. 836, 92 L.Ed.
1161 (1948) ........................ -.............. -............................12,13

Simkins v. Moses H. Cone Hospital, 4 Cir., 1963, 323 F.2d
959, cert, denied, 376 U.S. 938 (1963) ....................... -  5

Smith v. Donahue, 202 App. Div. 656, 195 N.Y.S. 715
(1922) .................................................................................  8

Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) .......  14

Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.
Ed.2d 790 (1971) .............................................................. 5

Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409,
25 L.Ed.2d 697 (1970) ....................................-.............. -  7

Wright v. City of Brighton, 441 F.2d 447 (5 Cir., 1971) .. 14
Wright v. City of Emporia, ...... U.S.......... , 92 S.Ct.

....... , 33 L.Ed.2d 51 ........................ -................................. 14

C onstitutional P rovisions

and S tatutes

Constitution of the United States—
First Amendment........ ......................................3, 4, 5, 6,16
Fourteenth Amendment .......... ........ 1, 3, 4, 6, 9,12,14, 16

Section 6656, Mississippi Code of 1942 ............................  1, 8
20 U.S.C. 711, 721.................................................................  5

O ther A uthorities

93 A.L.R.2d 986, 987 (1964) ..............................................  8
13 J. Pub. L. 76, 79 (1964) .................... ........................... 8
43 Miss. L.J. 737 (1972) .............................. -........ -..........  8



In the Supreme Court of the United States
OCTOBER TERM, 1972

No. 72-77

DELORES NORWOOD, ET AL., 
Appellants,

vs.

D. L. HARRISON, SR., ET AL., 
Appellees.

On  A ppeal from  the United States D istrict C ourt 
for the N orthern D istrict of M ississippi

BRIEF OF APPELLEES

QUESTION PRESENTED

Whether §6656, Miss. Code 1942, providing loans of 
state owned textbooks to all educable children violates the 
Equal Protection Clause of the Fourteenth Amendment.

STATEMENT OF THE CASE

Delores Norwood and other members of the appel­
lant’s class are black public; school students of the Tunica 
County, Mississippi School District. The appellees, D. L. 
Harrison, et al., are members of the Mississippi State Text­
book Purchasing Board. The appellants, in attendance at



2

the desegregated unitary Tunica County School System, 
brought suit to enjoin the defendants from providing or 
permitting the distribution or sale of state owned text­
books to private racially segregated schools and acade­
mies.

The impression created by appellant’s Statement of 
Facts as it involves Tunica and Holmes Counties, as well 
as cities like Canton, Jackson, and Indianola, is that there 
was a sub rosa transmutation of public to private schools. 
The use of target districts is not representative of the pace 
or scope of the development of private schools in Mis­
sissippi. Certainly, these extreme examples are not con­
sistent with the lower court’s finding that 90% of the 
educable children remain in public schools.

Two other points need to be made concerning the 
nature of the private schools in Mississippi. All of the 
depositions of superintendents of the private schools dis­
close an “ open enrollment” policy, the main criterion be­
ing ability to pay. Thus, the characterization of the 
schools as “private segregationist academies” [Brief of 
Appellants, p. 11] is not ideologically correct. The super­
intendents uniformly testified that their schools were 
formed to provide quality education. The textbook law, 
in their view, had nothing to do with the formation or 
continuation of these schools.

Second, the factual findings from. Coffey v. State Edu­
cational Finance Commission, 296 F’. Supp. 1389, 1392 
(S.D. Miss. 1969) that the new schools were opened on 
the “ thinnest financial basis” are stale findings of little 
use in resolving this present controversy. Many of the 
academies operate in new facilities; virtually none use 
former public school properties. Many of the schools were 
started after Coffey and its findings have little relevance 
to them.



3

SUMMARY OF ARGUMENT

State-furnished textbooks to all educable children in 
Mississippi serve a racially neutral and benevolent pur­
pose. The degree of aid, if any, which textbook program 
renders private education is insignificant. Books are 
loaned to students at a per capita annual expense of $6.00.

The First Amendment’s prohibition of “Establish­
ment” and the Fourteenth Amendment’s similar ban on 
discrimination are analogous limitations. State aid to pu­
pils in sectarian schools is constitutional where that aid 
is to the student and not to the school per se. By the 
same token, the State may grant benefits without regard 
to race by means of free textbooks without offense to the 
Fourteenth Amendment.

The Court below found that the provision for text­
books was not vital to the private schools and that public 
integrated education was secure. These findings are not 
clearly erroneous however the test is framed. For the 
existence of a constitutional violation, there must be a 
partnership between private discrimination and State ac­
tion that is “ symbiotic.” Here, private discrimination 
rests on private choice and not any perceptible moving 
hand of the State.



4

ARGUMENT

TEXTBOOK AID TO' INDIVIDUAL STUDENTS IS NOT 
SIGNIFICANT INVOLVEMENT WITH THE BELIEFS OS 

PRACTICES OF PRIVATE SCHOOLS

For the purpose of constitutional adjudication, the 
contours of forbidden action under the First Amendment’s 
establishment of religion clause should be analogous to 
but more stringent than standards applicable to forbid­
den state action under the Fourteenth Amendment. Just 
as a state may not foster an established religion, it may 
not support racial discrimination. This Court’s prece­
dents concerning state provision for assistance to pupils 
in sectarian schools require affirmance in this case. Board, 
of Education v. Allen, 392 U.S, 236, 88 S.Ct. 1923, 20 L.Ed.2d 
1060 (1968); Everson v. Board of Education, 330 U.S. 1, 
67 S.Ct. 504, 91 L.Ed. 711 (1947); Abingdon School Dis­
trict v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 
844 (1963).

Just as there is a line between state neutrality to 
religion and state support of it, there is a line drawing func­
tion in the Fourteenth Amendment cases between neu­
trality toward and support of discrimination. Whether 
government support is “ institutional” aid which violates 
the Establishment Clause is certainly not a sufficient Four­
teenth Amendment test for state action. However, identi­
fying “ institutional” support for religion or segregation 
certainly would point the Court toward further inquiry 
into the state’s involvement, with private discrimination.

The rights protected or secured from abridgment under the 
First Amendment are said to occupy a preferred position. Follett 
v. Town of McCormick, 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938 
(1944).



5

The appellant’s distinctions of equal protection and 
Establishment Clause standards prove too much. Appel­
lant perceives (Brief of Appellants, p. 32) that a construc­
tion grant to a religious hospital is not unconstitutional, 
where discrimination by such a hospital would be uncon­
stitutional. Considered as a hypothetical, appellant’s con­
clusion might not follow if a pure construction grant were 
involved with no other strings.

If the hypothetical is correct, we stress that “ insti­
tutional” aid is the quality that lends truth to it, not a 
greater constitutional mission to stamp out discrimina­
tion. Further, it is not so much the presence of state or 
federal money but the ambience of public control and 
supervision that follows it. Tilton v. Richardson, 403 U.S. 
672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971), the construc­
tion grant example, concerned a straight grant under the 
Higher Education Facilities Act of 1963, 20 U.S.C. 711, 
721, while Simkins v. Moses H. Cone Hospital, 4 Cir., 1963, 
323 F.2d 959, cert, denied, 376 U.S. 938 (1963), involved 
Hill-Burton funds. It was not the grant per se that 
caused the court to find state action in Simkins, but rather, 
the elaborate analysis of state regulation inherent in the 
program, exercise of a state function through the alloca­
tion of medical care, and the presence of public trustees 
on the boards of the hospitals.

Appellants also stress (Brief of Appellants, p. 33) that 
religious and secular aims of both the aid and recipient 
institution may be clearly delineated in First Amendment 
cases. They say education and segregation, on the other 
hand, are inextricably interwoven. This analysis assumes 
a compactness and neatness in the religious-secular pur­
pose distinction that does not exist. All state aid which 
fuels the secular purpose of an institution has some in­
cremental effect on the institution’s ability to further re­



6

ligious doctrine. There is simply no more furtherance of 
segregation with textbook aid than there is of a given 
religious doctrine in a parochial school receiving similar 
aid.

The state believes that this case is squarely governed 
by Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 
20 L.Ed.2d 1060 (1968). There, a New York statute re­
quiring school districts to purchase and lend textbooks to 
students enrolled in parochial as well as in public and 
private schools was under attack. This Court held the 
law was not in conflict with the First or Fourteenth 
Amendments to the Constitution of the United States. As 
the Court stated:

The express purpose of §701 was stated by the New 
York legislature to be furtherance of the educational 
opportunities available to the young. Appellants have 
shown us nothing about the necessary effects of the 
statute that is contrary to its stated purpose. The 
lav/ merely makes available to all children the bene­
fits of a general program to lend school books free of 
charge. Books are furnished at the request of the 
pupil and ownership remains, at least technically, in 
the state. Thus no funds or books are furnished to 
parochial schools and the financial benefit is to par­
ents and children, not to schools. Perhaps free books 
make it more likely that some children choose to 
attend a sectarian school, but that was true of the 
state-paid bus fares in Everson and does not alone 
demonstrate an unconstitutional degree of support for 
a religious institution. Id. at 1065, 66.

It is likewise certain from Lemon v. Kurtzman, 403 
U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), that 
state aid to religious institutions which offends the



7

First Amendment is direct institutional aid which re­
sults in an intertwined relationship between the gov­
ernment and the religious authority. Id. at 757, “Neu­
tral or nonideological services, facilities or materials” may 
be provided free of the Establishment Clause if they are 
given in common to all students. In striking down Penn­
sylvania’s aid to defray teachers’ salaries in church-re­
lated schools, the Kurtzman Court found that the aid ran 
afoul of the carefully preserved distinction that aid must 
flow to the student and not to the church-related school 
per se. Id. at 760. Nonstudent centered financial assist­
ance has likewise been upheld for churches but only in 
the context where the involvement of the state is not ex­
cessive and where there is no continuing call for state 
surveillance or entanglement. Walz v. Tax Commission, 
397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970). While 
the tax exemption was to benefit the institution directly, 
it was saved by virtue of its application to all denomina­
tions and by the harshness that might be worked by tax­
ing church property.

This Court has unerringly considered whether a given 
enactment has a “ secular legislative purpose and a pri­
mary effect that neither advances nor inhibits religion.” 
Everson, supra, at 838. The fact that aid may have as­
sisted a given religious institution did not, in the cited 
cases, deflect this Court from considering the recipient 
of the aid and not the institutional by-product of that as­
sistance. Specifically, the Allen Court reaffirmed Coch­
ran V. Louisiana State Board of Education, 281 U.S. 370, 
50 S.Ct. 335, 74 L.Ed. 913 (1930), holding that statewide 
provision for free textbooks to all students was permissi­
ble under the Fourteenth Amendment in that the state 
may further secular education through private schools as 
a proper public concern.



8

The theory that §6656 is a measure benefiting chil­
dren rather than schools has strong basis in fact. The 
measure was originally sustained as one to encourage “the 
promotion of intellectual and moral improvement” of the 
citizens of the state. Chance v. Mississippi State Textbook 
Rating and Purchasing Board, 190 Miss. 453, 200 So. 706 
(1941). Neutrality in matters of private benefit was clear 
enough:

It [the state] cannot control what one child may think, 
but it can and must do all it can to teach the child 
how to think. The state . . . should not . . . proscribe 
him from benefits common to all.” Id. at 710.

The accent of private benefit is consistently carried out 
by §6656 which provides for loans of the textbooks which 
the students are free to carry to their homes. In the ab­
sence of these benefits it is doubtful that the cost of books 
would be borne by the schools in the absence of this stat­
ute. Note, 43 Miss. L.J. 737 (1972).

Under this “ child benefit theory” the state may ex­
tend certain welfare aid to students attending church 
related schools in situations where general aid to the 
parochial schools themselves would be unconstitutional, 
13 J. Pub. L. 76, 79 (1964). The theory pales, however, 
before a finding that such aid accrues to the benefit of 
the schools themselves. Annot. 93 A.L.R.2d 986, 987 
(1964); Smith v. Donahue, 202 App. Div. 656, 195 N.Y.S. 
715 (1922); Haas v. Independent School Dist., 69 S.D. 303, 
9 N.W.2d 707 (1943). The doubt surrounding the validity 
of the theory was dispelled in Board of Education v. A l­
len, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968). The 
court revivified the child benefit theory by characterizing 
the legislation as benefiting the parent and child.



9

LOANED TEXTBOOKS TO ALL EBUCABLE CHILDREN 
IS NOT SIGNIFICANT STATE AID TO 

RACIAL DISCRIMINATION

This case once again calls for a formulation of the 
character and degree of state aid which must exist to 
render private action subject to the Fourteenth Amend­
ment. Various formulations in which private-choice-state 
aid equation have been framed—“significant aid,” “ sym­
biotic relationship” tend to obscure inquiry into the cause- 
effect relationship between the state action and private 
action. One may find private discrimination, look for 
some ingredient of state action and subjectively label the 
result encouragement. Or, one may identify the state 
action, look for its actual impact on private discrimina­
tion, and determine whether it is state action or private 
ordering that is actually producing the result.

This case also involves an accommodation between 
the place public education must enjoy—as an outgrowth 
of the “ affirmative duty” rationale— and the doctrine of 
private choice embodied in Pierce v. Society of Sisters, 
268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). Thus, 
the question is broader than the constitutionality of §6656. 
It is whether the State may function neutrally, treating 
both races alike, or whether it must adopt sanctions against 
private education in the realm of State provided services 
not significant enough to motivate private discrimination. 
What we mean here is that State services such as police 
and fire protection, public health protection, driver train­
ing, and practice teachers trained in public universities 
may in the aggregate be a greater financial aid to private 
schools than books, but they would certainly not be piv­
otal in imposing a choice to discriminate.



10

This court originally broached the issue of impermis­
sible state aid to education in Hall v. St. Helena Parish 
School Board, 197 F. Supp. 649 [D.C.E.D. La. 1961], affd. 
368 U.S. 515 (1962). There at issue was a tuition grant 
scheme with a transparent design of recasting public 
schools into “private” ones. There was no colorable con­
stitutional justification in Hall for the closing of the schools 
or the mystical substitution of “private” for “ public” 
character in the funding arrangement. Both Hall and 
Griffin v. School Board of Prince Edward County, 377 
U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964) invalidated 
a total partnership between State action and private seg­
regation, the one unavoidably leading to the other.

The tuition grant cases, Coffey v. State Educational 
Finance Commission, 296 F. Supp. 1389 (S.D. Miss. 1969); 
Poindexter v. Louisiana Financial Assistance Commission, 
275 F. Supp. 833 (E.D. La. 1967), affd. 389 U.S. 571 (1968); 
Griffin v. State Board of Education, 296 F. Supp. 1178 
(E.D. Va. 1969), all have in common the active fostering 
of alternatives to public education. Direct institutional 
aid variously adjudged to be “ critical” , “ substantial” , or 
“pivotal” to the new schools was, on the evidence, found 
to be underpinning an ever-growing network of private 
schools. Since these nominally private institutions were 
financed almost entirely from the public treasury the 
natural and reasonable effect of the tuition legislation was 
to underwrite and encourage private discrimination.

Illustrative of the approach to tuition grants is that 
of the Fifth Circuit. Treating Louisiana tuition grant 
statute Judge Wisdom articulated a two-pronged test:

“Any aid to public schools that is the product of the 
State’s affirmative, purposeful policy of fostering seg­
regated schools and has the effect of encouraging dis­
crimination is significant state involvement in private



11

discrimination (we distinguish therefore, state aid 
from tax benefits, free school books, and other prod­
ucts of the State’s traditional policy of benevolence 
toward charitable and educational institutions), Poin­
dexter v. Louisiana Financial Assistance Commission, 
275 F. Supp. 833.”

Both Judge Wisdom’s test and his disclaimer for school 
books are significant in that his rationale would void “any 
state aid” if the purpose and effect were suspect.

The three-judge court below applied these tests and 
sustained the act, Norwood v. Harrison, 340 F. Supp. 1003 
(S.D. Miss. 1972). It wrote that “the free textbook pro­
gram began without racial motivation. . .” and had been 
uniformly applied, Id. at 1013. It found that there had 
been no real encouragement of discrimination in that 90% 
of the state’s educable children remained in public schools. 
Finally, it discounted any notion that deprivation of the 
books would “ roll-back” private school enrollment, Id, at 
1013. On the issue of encouragement the court wrote:

Plaintiffs say that furnishing the free textbooks to 
pupils in private schools encourages attendance at 
such schools. This, of course, is conjectural, as there 
is no substantial proof on that score. It occurs to us, 
however, that if encouragement alone is a sufficient 
test and if impermissible encouragement necessarily 
follows from the issuance of the books and subsequent 
attendance at a particular school, then the books may 
not be issued to those attending private sectarian 
schools (something which the Supreme Court has thus 
far declined to invalidate) Id. at 1013.

Appellees stress both that “ encouragement” of dis­
crimination was not found here and in fact may no longer 
be constitutionally sufficient. The court seems in Moose



12

Lodge No. 107 v. Irvis, .......  U.S.......... , 92 S.Ct......... . 32
L.Ed.2d 627 (1972) to have moved back to the affirma­
tive enforcement of discrimination rationale of Shelley v. 
Kraetmer, 334 U.S, 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948) 
rather than the subjective notion of “ encouragement” of 
discrimination found in Reitman V. Mulkey, 387 U.S. 369, 
87 S.Ct. 1627, 18 L.Ed.2d 830 (1967). Indeed Moose Lodge 
avoids citing Reitman for any “encouragement” theory, 
preferring to stress the “ symbolic” or alter ego relation­
ship between state action and private conduct as an­
nounced in Burton v. Wilmington Parking Authority, 365 
U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). The relation­
ship necessary between states and private entities to in­
voke the Fourteenth Amendment is one in which the State 
has “ insinuated itself into a position of interdependence 
[with otherwise ‘private persons’ ] . . . that they must 
be recognized as a joint participant in the challenged ac­
tivity” . Id. at 52.

Burton’s reliance on significant multiple examples of 
state aid in the construction of the parking facility, on the 
one hand, and Moose Lodge’s insistence that there must 
be some demonstrable way in which state regulation or 
state benefits fosters racial discrimination, Id. at 637, 639, 
seems to confine the contours of the Fourteenth Amend­
ment to private action only if there is a significant inter­
facing effect between private acts and state action.

Other cases decided since Reitman emphasize that it 
turned very heavily on state court findings of encourage­
ment of discrimination. Palmer v. Thompson, 403 U.S. 
217, 91 S.Ct. 1960, 29 L.Ed.2d 438 (1971) is one:

In the first place there are no findings here about any 
state “ encouragement” of discrimination. We need 
not speculate upon such a possibility for there is no 
such finding here, and it does not appear from the



13

record that there was evidence to support such a find­
ing. Reitman v. MvXkey was based on a theory that 
the evidence was sufficient to show the State was 
abetting a refusal to rent apartments on racial grounds. 
Id. at 444.

Similarly, Reitman was distinguished in Evans v. Abney, 
396 U.S. 435, 90 S,Ct. 628, 24 L.Ed.2d 634 (1970) where 
the effect of a state court’s termination of a discrimina­
tory trust was in issue. A Reitman based argument was 
offered that Georgia’s trust statutes, permissive on racial 
discrimination, induced the testator to discriminate. It 
was rejected since there was no evidence of such a mo­
tive. Here appellants argue from the parallelism of pub­
lic to private changeovers in certain target districts. But 
what of the fact that 8,000 pupils in 41 schools spurn the 
publicly provided textbooks? Is not the fact that 25% 
of the private school pupils (consisting of 10% of the total 
of pupils) opt out of the program sufficient to support 
the lower court’s: holding of no encouragement. Certainly 
the fact is enough to show that textbooks are not the sine 
qua non of private education.

There is also a question of whether a neutral public 
policy on books works any injury on the plaintiffs. A 
state’s neutrality toward discrimination was even sanc­
tioned in dictum in Reitman v. Mulkey: “ a state is per­
mitted a neutral position with respect to private racial 
discrimination” . Id. at 834. A state’s abstention from action 
which would result in private discrimination was also 
sanctioned in Shelley v. Kraemer, 334 U.S. 1, 19, 68 S.Ct. 
836, 92 L.Ed. 1161, 1183.

Does the affirmative duty doctrine have any bearing 
on the constitutionality of §6656? Appellants say that the 
constitutionality of state policy in the context of the dual



14

system is measured by “ whether it hinders or furthers the 
process of school desegration.” Wright v. City of Emporia,

U.S. ....... , 92 S.Ct. ____ , 33 L.Ed.2d 51. Whether the
keystone is effective “ disestablishment,” Green v. County 
School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 
(1968) or “ unitary” , Swann v. Charlotte-Mecklenburg 
Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 
554, 571 (1971), we cannot assume from the decisions of 
this court that state action which bears any relationship 
whatever to the interaction between public and private 
education must be judged by that standard. Once the 
duties of Swann and Green are met in the sense that the 
public school system is composed of just schools—neither 
white nor black—the affirmative duties are discharged.2 
All a state must do is maintain a preferred competitive 
position for public education. It should be required to 
steer clear of institutional aid, but should not be required 
to take sanctions against private education. This court 
should reaffirm that there is still a constitutionally viable 
choice between public and private education. Only where 
the state by its hand points toward private discrimination 
should the Fourteenth Amendment come into play.

Neither can §6656 be said to be a law neutral on its 
face but having primary impact on the minority. Anderson 
v. Martin, 375 U.S. 399, 84 S.Ct. 454, 11 L.Ed.2d 430 (1964). 
In the context where all sorts of schools receive equal 
treatment, no right of the plaintiffs is being frustrated.

2. The affirmative duty extends to establishing a unitary 
system of public education, Green v. County School Board, supra, 
Swann, supra, but apparently does not extend to mandating cen­
tralized public education. In short, a state must undo all it has 
done to further a dual system in facilities, staff, etc., but must not 
attempt to coerce attendance in public schools. The distinction is 
not at variance with the school property cases, Wright v. City of 
Brighton, 441 F.2d 447, 5 Cir. (1971), et al., since they involve 
institutional aid which is a special burden on the racial minority. 
Here the textbook law is neutral in origin and impact.



15

It is private choice and not school books that is luring 
students from the public schools. Moreover, the plaintiff’s 
constitutional right is one of attendance at schools, not at­
tendance with pupils.

Assuming a constitutional right to opt out of the 
system, Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 
571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 
43 S.Ct. 625, 67 L.Ed. 1042 (1922), the statutory provision 
for books at every school, antedating the entire integra­
tion controversy, would seem to work no injury on students 
in one system by those in another. Appellants’ theory of 
“ frustration” is simply too broad and too selective to be 
viable. They exempt from the prohibition private schools 
antedating the so-called white flight, parochial schools 
said not to have provided a refuge to white students and 
certain “ other” schools (Brief of Appellants, p. 7). If in­
jury is wrought on the plaintiffs by erosion of white at­
tendance why does not the principle have broader reach?

Considerations of the possible relief in this case make 
clear the difficulty in ruling for the appellants. Deter­
minations would have to be made as to the quantity of in­
tegration necessary for a private school to avoid, a. ban 
on textbooks. Since attendance is totally voluntary in 
these schools, exclusion of black pupils cannot be assumed 
from attendance in numbers that would be clearly in­
sufficient in a public school. Moreover, stated “ open door” 
policies would have to be looked into. Even though 
Catholic schools are exempted from the requested relief, 
there is a grave question whether their black enrollment 
would be sufficient to come out from under the requested 
ban. Finally, should not each school have its day in court 
on its enrollment policies? These obstacles to consistent 
and efficacious relief strongly counsel in favor of affirming 
the judgment of the District Court.



16

CONCLUSION

State furnished textbooks avoid the Fourteenth 
Amendment’s proscriptions because they (1) are provided 
to children of all races, (2) serve a benevolent purpose and 
(3) provide a benefit to the child and not his chosen in­
stitution.

By analogy to the First Amendment Establishment 
Clause cases, textbook aid serves a secular function which 
the state may further. Based on the findings of fact that 
the aid does not encourage discrimination or significantly 
abet a private choice to discriminate, there is no Four­
teenth Amendment violation. The holding of Cochran v. 
Louisiana State Board of Education that textbook aid is a 
proper public concern remains good law.

Respectfully submitted,

A. F. Su m m e r , Attorney General 
State of Mississippi 

W il l ia m  A. A llain ,
First Assistant Attorney General 
State of Mississippi 

H eber L adner, Jr ., Special Assist­
ant Attorney General 
State of Mississippi 

Post Office Box 220 
Jackson, Mississippi