Carr v. Montgomery County Board of Education Petition fro a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit

    §>ttpnmtp tour! of tip Stairs
October Term, 1975 

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

Abe am Cake, J k ., et al., 

and

P enelope A n n e  J e n k in s , et al.,
Petitioners,

vs.

M ontgomery C o u n ty  B oard of E ducation , et al.

I n the

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

FOR THE FIFTH CIRCUIT

J ack  G reenberg 
J am es  M. N abrit , III 
D rew  S. D ays , III 
C harles S te p h e n  R alston  
M elvyn  L eve n th a l

10 Columbus Circle 
New York, New York 10019

S olomon  S . S eay , Jr.
F eed T. G ray

Gray, Seay and Langford 
352 Dexter Avenue 
Montgomery, Alabama 36104

H oward A . M andell
212 Washington Building 
P.O. Box 1904
Montgomery, Alabama 36103 

Attorneys for Petitioners



I N D E X

Opinions Below ......................     1

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

Questions Presented .......................  2

Constitutional Provisions Involved...............................  3

Statement of the Case ............ .......................................  3
History of The Litigation ... ...................................  3
The Montgomery County System .........................  5
1974 Desegregation Proposals.................................  7

The District Court Opinion .....................................  10

The Court of Appeals Opinion .................. ...........  11

Reasons for Granting the Writ—

A. The Decisions of the Courts Below Approving
a Desegregation Plan Which Leaves Significant 
Numbers of Black Children In One-Race 
Schools Conflict with Controlling Decisions of 
This Court ..................................   12

B. The Decisions of the Courts Below Approving
An Ineffective Desegregation Plan Which Un­
equally Burdens Black Children In Order to 
Reduce The Likelihood of White Flight Conflict 
With Controlling Decisions of This Court .......  21

PAGE

C onclusion 23



11

T able oe Cases

Brown v. Board of Education (Brown 11), 394 U.S.
294 (1955) .......... .................... ......................... -............. 21

Carr v. Montgomery County Board of Education, 232
F.Supp. 705 (M.D. Ala. 1964) ......... .......... .........4,14,15

Carr v. Montgomery County Board of Education, 253
F.Supp. 306 (M.D. Ala. 1966) ................ ....................  4

Carr v. Montgomery County Board of Education, 289 
F.Supp. 647 (M.D. 1968), aff’d, 400 F.2d 1 (5th Cir. 
1968), rehearing denied, 402 F.2d 782, aff’d sub nom. 
United States v. Montgomery County Board of
Education, 395 U.S. 225 (1969) .................... 4, 6,15,16,18

Carr v. Montgomery County Board of Education, 429
F.2d 382 (5th Cir. 1970) ............ .......................... ..4, 6,17

Cooper v. Aaron, 358 U.S. 1 (1958) ......... ......... :....... . 21

Davis v. School Commissioners of Mobile County, 402 
U.S. 33 (1971) ................. ....................... 3,12,13,14,20,21

Ellis v. Board of Public Instruction of Orange County,
423 F.2d 203 (5th Cir. 1970) ..... ............................... 10,13

Ellis v. Board of Public Instruction of Orange County,
465 F.2d 878 (5th Cir. 1972), cert, denied, 410 U.S.
966 (1973) .............................................. ...................... . 13

Green v. County School Board of New Kent County,
391 U.S. 430 (1968) .............................. .....................  13n

Keyes v. School District No. 1, 413 U.S. 189 (1973) ....19, 20

Monroe v. Board of Commissioners, 391 U.S. 450 
(1968)

PAGE

.3, 21



Ill

PAGE

Swann v. Charlotte-Mecklenburg Board of Education,
402 TJ.S. 1 (1971) .........................................3, 4, 8n, 12,13,

14,18,19, 20

United States v. Jefferson County Board of Education,
380 F.2d 385 (5th Cir. 1967) en banc, cert, denied,
389 U.S. 840 (1967) ........................................... -.......  6



In the

§>upr£nt£ (Enurt of tlxo Mutt??* Platts
October Term, 1975 

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

A ream  Carr , J r ., et al.,

and

P enelope A n n e  J e n k in s , et al.,

vs.
Petitioners,

M ontgomery C o u n ty  B oard of E ducation , et al.

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

FOR THE FIFTH CIRCUIT

Petitioners pray that a writ of certiorari issue to review 
the judgments of the United States Court of Appeals for 
the Fifth Circuit entered in the above-entitled cause on 
April 11, 1975, and June 27, 1975.

Opinions Below

The District Court opinion of May 22, 1974 is reported 
at 377 F.Supp. 1123 (M.D. Ala. 1974) and is printed in 
the appendix hereto,1 App. la ; the Court of Appeals opin­
ion of April 11, 1975 affirming the District Court is re­
ported at 511 F.2d 1374 (5th Cir. 1975) and is printed in

1 The appendix to this petition is being printed separately pur­
suant to Rule 23.1 (i) of this Court.



2

the appendix hereto, App. 44a; the Court of Appeals 
opinion of June 27, 1975 denying rehearing and rehear­
ing en banc is reported at 511 F.2d 1390 (5th Cir. 1975) 
and is printed in the appendix hereto, App. 78a.

Jurisdiction

The judgment of the Court of Appeals was entered on 
April 11, 1975 (App. 44a). On June 27, 1975, the Court 
of Appeals denied application by petitioners herein for re­
hearing en banc (App. 78a). The jurisdiction of this Court 
is invoked under 28 U.S.C. Section 1254(1).

Questions Presented

On May 22, 1974, the District Court approved the im­
plementation of a desegregation plan for Montgomery 
County, Alabama schools submitted to it by the Mont­
gomery County Board of Education. The plan retains 
eleven virtually all-black elementary schools, enrolling ap­
proximately 57% of the system’s black elementary school 
population, and leaves approximately 40% of the County’s 
black junior high school students in virtually all-black 
facilities. It employs no conventional desegregation mea­
sures such as pairing or clustering whatsoever, relying in­
stead upon neighborhood zoning and the assignment of 
black students previously enrolled in five virtually all-black 
elementary schools, closed under the plan, to predomi­
nantly white schools. No white children, only blacks, are 
transported under the plan for purposes of desegregation. 
Alternative plans submitted by petitioners which achieved 
greater desegregation than the Board’s plan through re­
liance upon pairing and clustering were rejected by the 
district court based, in part, on its determination that 
white children would withdraw from the system if as­



3

signed to traditionally black schools. The district court 
was affirmed by the Court of Appeals for the Fifth Circuit 
on April 11, 1975. The questions presented here to this 
Court are as follows:

1. Do the decisions of the courts below conflict with 
this Court’s decisions in Swann v. Charlotte-Meck- 
lenburg Board of Education, 402 U.S. 1 (1971) and 
Davis v. School Commissioners of Mobile County, 
402 U.S. 33 (1971) requiring that such techniques 
as pairing and clustering of non-contiguous school 
zones and other measures be resorted to where 
their utilization achieves the greatest possible de­
gree of actual desegregation;

2. Do the decisions of the courts below conflict with 
this Court’s decision in Monroe v. Board of Com­
missioners, 391 U.S. 450 (1968) holding that ap­
prehensions that white students might flee the sys­
tem cannot justify the acceptance of a less than 
effective desegregation plan.

Constitutional Provisions Involved

This case involves the Equal Protection Clause of the 
Fourteenth Amendment to the Constitution of the United 
States.

Statement of the Case 

History of The Litigation

This school desegregation action was commenced on May 
11, 1964 on behalf of the class of black children eligible to 
attend the public schools of Montgomery, Alabama.5 On

. 2 The, history of petitioners’ = efforts, to achieve. a unitary system 
in Montgomery County, Alabama between the date suit was com-



4

August 18,1972 petitioners filed a motion for further relief 
seeking greater desegregation, pursuant to this Court’s 
decision in Swann, supra, in light of an enrollment report 
submitted by the Board to the district court which reflected 
the continued existence of numerous one-race schools with­
in the Montgomery County system. On August 29, 1973, 
pursuant to the joint motion of petitioners and the Board, 
the district court entered an order approving the closing 
of a virtually all-black elementary school and assigning 
of its students to a predominantly white facility and the 
transferring of certain white students from a predom­
inantly white junior high to a predominantly black facility 
and establishing a schedule for the submission of further 
suggestions for eliminating “ such one-race schools as may 
be required by Swann v. Charlotte-Mecklenburg Board of 
Education, [citation in original omitted] . .

On September 7, 1973, a motion to intervene was filed 
by the American Friends Service Committee and thirty- 
four Montgomery students. Intervention was eventually 
granted as to the individual applicants, Jenkins et al (peti­
tioners herein) by order of February 15, 1974.

Pursuant to the district court’s orders of August 29, 
1973 the Board submitted a desegregation proposal on 
January 15, 1974. This submission was initially modified 
on March 29, 1975. The proposed plan of petitioners Carr, 
et al., herein (“plaintiffs” in the trial court) was filed on

meneed in May, 1964 and June, 1970 is amply chronicled in re­
ported opinions by the district court, Court of Appeal's for the 
Fifth Circuit and by this Court. Carr v. Montgomery County 
Bd, of Education, 232 F.Supp. 705 (M.D. Ala. 1964): 253 F.Supp. 
306 (1966); 289 F.Supp. 647 (1968), aff’d, 400 F.2d 1 (5th Cir. 
1968), aff’d, sub nom. United States v. Montgomery County Board 
of Education, 395 U.S. 225 (1969); and 429 F.2d 382 (5th Cir. 
1970). The United States was formally designated amicus curiae 
by the district court in July, 1964 and has played an active role 
in proceedings since that date.



5

February 16, 1974. Alternative plans were submitted by 
petitioners Jenkins, et al. herein (“plaintiffs-intervenors 
in the trial court) on April 1, 1974. After discovery depo­
sitions and evidentiary hearings conducted during April,
1974, the Board submitted further modifications of its pro­
posed plan on May 8, 1974.

On May 22, 1974, the district court issued its opinion 
and judgment approving the Board’s plan in its entirety 
for implementation commencing with the 1974-75 academic 
year. Carr v. Montgomery County Board of Education, 
377 F.Supp. 1123 (M.D. Ala. 1974), App. la. On April 11,
1975, the Court of Appeals for the Fifth Circuit affirmed, 
per curiam, the district court’s approval of the Board’s 
plan “for the reasons set forth in its opinion” ; one mem­
ber of the panel, Judge Goldberg, dissented. Carr v. 
Montgomery County Board of Education, 511 F.2d 1374 
(5th Cir. 1975), App. 44a. Rehearing and rehearing en 
banc were denied by the Court of Appeals on June 27, 
1975, Judge Goldberg, joined by Circuit Judges Brown, 
Wisdom and Thornberry, dissenting. 511 F.2d 1390 (5th 
Cir. 1975), App. 78a.

The Montgomery County System

Montgomery is a consolidated city-county school system 
which in 1973-74 operated some 53 schools, including special 
facilities, enrolling approximately 36,016 students of which 
17,042 (47%) were black and 18,974 (53%) were white. 
Thirty-six elementary schools enrolled 18,449 students 
(9,279 or 50% black); thirteen junior highs enrolled 9,644 
students (4,390 or 45% black); and five high schools en­
rolled 7,923 students (3,373 or 43% black). Seven of these 
facilities were located in the County outside Montgomery 
City. The Board’s Fall, 1973 report shows that the system 
had a variety of grade structures among its various build­
ings offering a regular instructional program:



6

30 Elementary schools serving grades 1-6

6 Elementary-Junior High Schools serving grades 1-9
7 Junior High Schools serving grades 7-9 

4 Senior High Schools serving grades 10-12 
1 Senior High School serving grades 7-12

The Montgomery County schools operated pursuant to 
a freedom of choice desegregation plan, in conformity with 
the requirements of United States v. Jefferson County 
Board of Education, 380 F.2d 385 (5th Cir. 1967) en banc, 
cert, denied, 389 U.S. 840 (1967), during the academic years 
1967-68, 1968-69 and 1969-70. In August, 1969 the district 
court observed that three years of free choice had failed 
to eradicate the duality of the Montgomery County school 
system and that other means would have to be found to 
achieve further desegregation. Of some 68 schools oper­
ated at all grade levels at that time, four enrolled only 
white students and 26 had all-black enrollments. The 
district court’s order of February 24, 1968 pointed out that, 
out of a school population of approximately 15,000 blacks 
and 52,000 whites, only 550 blacks and no whites were 
attending schools enrolling children predominantly of the 
opposite race under freedom of choice. 289 F.Supp. 647, 
649-50.

In 1970, the district court approved a Board desegrega­
tion proposal which, as modified in minor detail in 1972 
and 1973, assigned students to schools in basically two 
ways: within the city limits of Montgomery, a geographic 
zone was established for each school, and students residing 
within that zone attended the school, except for majority- 
to-minority transferees. (See, 429 F.2d 382, at 386); out­
side Montgomery City, students fell within loosely defined 
“periphery” zones, except for students in extreme southern 
Montgomery County. Almost all students in “periphery”



7

zones were transported to school by bus, and most were 
assigned to schools in the city. In no instance was pairing 
and clustering, of either contiguous or non-contiguous 
schools of opposite racial composition, resorted to under 
the approved Board plan.

In 1973-74, these assignment techniques resulted in 
the continued maintenance of many raeially-identifiable 
schools. Fifteen of thirty-six elementary schools were 87% 
or more black; seven of thirteen junior high schools were 
85% or more black; and two senior high schools were more 
than 85% black.

1974 Desegregation Proposals

The district court had three desegregation proposals be­
fore it, one prepared by the Board, one submitted by peti­
tioners Carr, et al. (referred to as “plaintiffs’ plan” in 
the opinions below) and one, containing several variations, 
offered by petitioners Jenkins, et al. (referred to as “plain- 
tiffs-intervenors” plan).

The Board’s plan relied upon satellite zoning of black 
students primarily, reassignment of “periphery” pupils, 
rezoning, and black school closings, but eschewed any re­
ciprocal transportation of white students to black schools, 
pairing or clustering. It projected that almost 60% of 
Montgomery County’s elementary students would remain 
in eleven disproportionately and indentifiably black facil­
ities and that two junior high schools over 70% black 
would be retained. More specifically, the Board plan pro­
posed closing five previously virtually all-black elementary 
schools and assigning some of the students from those 
schools to predominantly white schools and reassigning 
approximately 400 black students at another virtually all­
black school to predominantly white schools. No white 
elementary school students were to be reassigned to a



8

school that would remain predominantly black. Conse­
quently, 55% of the black elementary school population 
was to be enrolled in facilities 87% or more black; 44% 
of them was scheduled to attend elementary school 93% 
or more black.

The plan of Petitioners Carr, et ai. (“plaintiffs” ) was 
prepared by Dr. Gordon Foster, Director of the Florida 
School Desegregation Center. Dr. Foster’s plan was based 
upon the flexible guideline that racially unidentifiable 
schools in Montgomery should not, in general, vary more 
than 15% above or below the system-wide population, al­
though he made “no attempt to press the schools within 
that mold.” 3 His plan dealt only with Montgomery City 
schools. Dr. Foster prepared a plan based upon the board’s 
1973-74 zones which fully desegregated all city schools 
through the use, at the elementary level, of pairing and 
clustering, with some modification of the zones, primarily 
through reassignment of “periphery” students. Dr. Foster 
proposed desegregation of all secondary schools within the 
city using the same basic techniques as the school board: 
closing one black junior high, rezoning, and reassigning 
transported students from the periphery area. Under his 
plan, elementary schools would have had a 1-3 or 4-6 
structure; capacities did require deviation, however, in two 
pairings, where the division of grades was 1-2, 3-6 and 1-4, 
5-6, respectively. Dr. Foster’s plan would have also re­
quired an increase in the number of pupils being trans­
ported in this system, although the times and distances of 
travel would have been no greater than those for many

3 In so doing, Dr. Foster acted in the spirit of this Court’s hold­
ing in Swann, swpra, at 25, that “Awareness of the raeial com­
position of the whole school system is likely to be a useful start­
ing point in shaping a remedy to correct past constitutional vio­
lations.”



9

students bused in the south county, in “periphery” areas 
or to be reassigned across the city under the Board’s plan.

The plan of petitioners Jenkins, et al., (“plaintiffs- 
intervenors” ) was devised by Dr. Larry Winecoff, former 
Director of the South Carolina School Desegregation Cen­
ter. Dr. Winecoff first sought to achieve the maximum 
desegregation feasible through alteration of attendance 
zones in a contiguous fashion, within the sehool board’s 
walking-distance regulations (a 2% mile radius from any 
school). He also made use of the existing “periphery” 
transportation zones. This contiguous rezoning took the 
form of “strip zones” across the city from east to west, 
or northwest to southeast. In order to achieve any sub­
stantial desegregation at the elementary level with this 
technique, Dr. Winecoff restructured elementary schools 
into primary (1-3) and intermediate (4-6) school centers.

He further determined, however, that even with this 
grade restructuring and alteration of zone lines, 14 ele­
mentary schools would remain racially identifiable. He 
therefore, pursued means of increasing the degree of de­
segregation at the elementary level, selecting the method 
of creating satellite, cross-busing sub-zones between cer­
tain of the grade 1-3 zones he had drawn. Winecoff’s “Plan 
A” , therefore, consisted of the following components: new 
zone lines and proposals for some cross-transportation, 
using satellite zones, at grades 1-3; new zone lines at grades 
4-6; new zone lines at grades 7-9; and new zone lines for 
the senior high schools, grades 10-12.

Like Dr. Foster’s plan, Plan A required transportation 
of additional students by the Montgomery County system. 
But, the distances to be travelled under Dr. Winecoff’s plan 
were well related to those traversed by “periphery area” 
buses carrying Montgomery County students under the 
Board’s 1970 desegregation plan.



10

The District Court Opinion

The district court’s May 22, 1974 approval of the Board 
desegregation plan for implementation at the commence­
ment of the 1974-75 academic year, App. la., was avowedly 
premised upon its view that such an arrangement satisfied 
the tests for the establishment of a unitary system arti­
culated by the Court of Appeals for the Fifth Circuit in 
Ellis v. Board of Public Instruction of Orange County, 423 
F,2d 203 (5th Cir. 1970), App. 25a. There, the Court of 
Appeals held that a neighborhood assignment plan, under 
which an elementary school student normally attended the 
school nearest his home, could pass constitutional muster 
if it observed a strict proximity rule (ignoring man-made 
or natural boundaries) and was effective to establish a 
unitary system. Ellis, supra at 207-208. While acknowledg­
ing that the Board’s plan did not comply strictly with Ellis’ 
requirements, the district court observed that the “prin­
ciple” of that decision was respected, and that, where a 
school district’s desegregation process remained under 
“judicial scrutiny” , such deviations could not be regarded 
as constitutionally fatal, App. 28-29a. The schools left 
to serve virtually all-black enrollments under the Board’s 
plan were, according to the district court, “ the result of 
residential patterns and not of the school board’s action— 
either past or present” , App. 18a. It remarked approv­
ingly that most of the black children assigned to racially 
identifiable elementary schools could look forward to at­
tending substantially desegregated junior and senior high 
school facilities, App. 18a. In defending its preference 
for the Board’s plan over those submitted by petitioners, 
the district court asserted that the latter plans proposed the 
establishment of fixed racial quotas for the student popu­
lation in each school, an approach contrary to prevailing 
doctrines, as it understood them, and reliance upon satel­



11

lite zoning’, clustering and pairing techniques that would 
have a disruptive influence upon the system, infra, p. 16a. 
In any event, such approaches would, in the court’s view, re­
quire cross-city busing which would increase the time and 
distances students would have to travel and still not “ac­
complish any effective or realistically stable desegrega­
tion” , App. 18a. The district court continued in effect 
existing majority-to-minority provisions and appointed a 
biracial committee to assist the Board in achieving further 
desegregation, infra, pp. 33, 35-37a.

The Court o f Appeals Opinion

In a per curiam opinion of April 11, 1975, the Court of 
Appeals for the Fifth Circuit affirmed the district court 
judgment in its entirety, App. 44a. Pointing to “reasons 
set forth” in the lower court’s opinion as justifying its 
action, the Court of Appeals concluded its terse opinion 
by remarking that it had taken note of the “history of this 
litigation” and that the system had been and would con­
tinue to be under close judicial scrutiny insofar as desegre­
gation was concerned, App. 44a. In the lengthy and schol­
arly dissent, App. 46a, one member of the panel, Judge 
Goldberg, set forth an analysis of how the district court’s 
opinion diverged significantly from school desegregation 
principles established by this Court and his own Circuit, 
concluding that “the district court erred in adopting the 
School Board plan, because that plan falls short of the con­
stitutional mark, and because there is no indication of the 
unworkability of a constitutional remedy.” App. 47a.



12

Reasons for Granting the Writ

A. The Decisions of the Courts Below Approving a Deseg­
regation Plan Which Leaves Significant Numbers of Black 
Children In One-Race Schools Conflict with Controlling 
Decisions of This Court.

In Swann v. Charlotte-MecTclenburg Board of Education, 
402 U.S. 1 (1971) and Davis v. Board of School Commis­
sioners of Mobile County, 402 U.S. 33 (1971), this Court 
made clear that, in school systems previously segregated 
by race pursuant to state law, the continued existence of 
one-race schools should be regarded as a vestige of this 
prior unconstitutional discrimination, not the consequence 
of adventitious demographic change. Any attempts to dis­
mantle such dual systems, these decisions teach, may not 
rely upon approaches, including so-called neighborhood 
assignment plans, that would perpetuate the effects of past 
segregative practices. Instead, where necessary “to achieve 
the greatest possible degree of actual desegregation,”  such 
districts should resort to a variety of school assignment 
practices such as reasonable pairing, clustering and 
transportation.

The district court in this litigation, effectively dis­
regarded these now-familiar doctrines by ordering the 
implementation of a “neighborhood assignment plan” for 
the Montgomery County, Alabama school system which 
projected the assignment of almost 60% of the system’s 
black elementary students to eleven schools more than 
80% black. Pairing, clustering and additional transporta­
tion of students were found by the district court to be 
“impracticable” and unnecessary since the remaining 
virtually all-black schools were the result of residential 
patterns completely unaffected by Board conduct, past or



13

present.4 This was so, held the district court, despite the 
judicial record it established as to the existence of a 
totally segregated system in Montgomery in 1964 and of 
overt segregative acts by the Board as late as 1968. Peti­
tioners respectfully submit that if a district court, with 
appellate court approval, can condone the continued isola­
tion of large numbers of black children in segregated 
schools in a system which has had such a recent history 
of discriminatory practices as does Montgomery County, 
Alabama on the ground that the result is dictated by 
residential patterns, this Court’s decisions offer little 
realistic promise of achieving equal education. The district 
court by adopting the Ellis v. Board of Public Instruction 
of Orange County, 423 F.2d 203 (5th Cir. 1970) neighbor­
hood assignment plan as the standard against which the 
Board’s proposal should be measured, in effect revived an 
approach to desegregation explicitly rejected in Swann 
and Davis. The Court of Appeals, by affirming the lower 
court and refusing en banc rehearing, has left standing a 
decision that conflicts with many of its own decisions subse­
quent to Swann, including a subsequent order requiring 
desegregation beyond that achieved through neighborhood 
assignments in the very case upon which the district court 
placed such great reliance. See Ellis v. Board of Public 
Instruction of Orange County, 465 F.2d 878 (5th Cir. 1972),

4 The district court’s approach’ violates not only Swann and 
Davis, but Green v. County School Board of New Kent County, 
391 TJ.S. 430 (1968) which dictated that only plans promising 
“realistically to work” , and “realistically to work now” , should be 
approved and that a school board would have a heavy burden to 
justify “ its preference for an apparently less effective method” 
at 4399, in the face of more promising alternatives. Here the 
Board did not offer, nor did the district court require, any ex­
planation, other than generalized objections to pairing and cluster­
ing, for its limited proposal. See Judge Goldberg’s remarks in this 
regard, App. 63a-65a.



14

cert, denied, 410 U.S. 966 (1973). In so doing, the Court of 
Appeals, after years of faithful adherence to the principles 
of Swann, has decided to encourage trial courts in its 
circuit to evaluate desegregation plans according to 
standards it followed prior to Swann and Davis.

No more effective indictment can be found of the district 
court’s determination that the eleven remaining virtually 
all-black schools were the consequence of residential pat­
terns, we submit, than the record made by that very court 
since this school desegregation case was filed in May, 1964. 
It duly catalogues the variety and persistence of Board 
actions to create, maintain and perpetuate the racially dual 
system in Montgomery County, Alabama.

In its July 31, 1964 order, the district court found that:
1. through policy, custom and practice, the Montgom­

ery County Board of Education, operated a dual 
system based upon race and color. 232 F.Supp. 
705, at 707;

2. teachers were assigned according to race. Id., at 
707;

3. there were schools designated for and solely at­
tended by white students that were in closer prox­
imity to the homes of black students than were 
the schools designated for the black students. 
Id., at 707;

4. students using the transportation facilities— school 
buses—were segregated according to race and 
transportation was furnished by the defendants for 
blacks only to schools attended solely by black stu­
dents and for white students only to schools at­
tended solely by white students. Id., at 707;



15

5. the “feeder system” had been set up, was based, and 
was presently operating on distinctions of race and 
color. Id., at 707;

6. strong considerations of race had figured in the 
disbursement of school funds for maintenance, 
operation and construction in the Montgomery 
County school system. Id., at 708;

7. the Montgomery County Board of Education had 
made and was presently making assignments and 
transfers of students on the basis of race notwith­
standing the provisions of the Alabama Placement 
Law. Id., at 709.

As the district court remarked in a later opinion with re­
spect to the status of desegregation in Montgomery County 
prior to 1964:

From 1954—when the Supreme Court of the United 
States put the Montgomery County School Board and 
other school boards throughout this country on notice 
that they could not continue under the law to operate a 
dual school based on color—until this Court found it 
necessary to enter an order on July 13, 1964, requiring 
commencement of the desegregation of public schools 
in Montgomery County, Alabama, the Montgomery 
County, Board of Education had taken no steps and 
had made no plans whatsoever to comply with the law 
of this land in the area of school desegregation. 289 
F.Supp. 647, at 657.

In its order of February 24, 1968, the district court 
found that:

1. the defendants through their agents—the principals 
and coaching staffs—had adopted a policy of 
scheduling interscholastic athletic contests for its



16

traditionally white schools only with other tradi­
tionally white schools, and for its traditionally 
black schools, only with other traditionally black 
schools and that this manner of operating the 
athletic program had and continued to have the 
effect of influencing the choice of students within 
the system. 289 F.Supp. 647, at 651;

2. the defendants had continued to construct new 
schools and expand some existing schools [and 
that] the construction of new schools with proposed 
limited capacities geared to the estimated white 
community needs and located in predominantly 
white neighborhoods and the expansion of the 
existing schools located in predominantly black 
neighborhoods had violated both the spirit and the 
letter of the desegregation plan for the Montgomery 
County School System. Id., at 651;

3. the defendants had failed to eliminate the bus 
routes where there existed overlapping and duplica­
tion based upon race. Id., at 651;

4. the defendants could not justify nor excuse any fur­
ther delay [in the area of desegregation of facili­
ties and staffs] upon the ground that some of the 
teachers were reluctant to teach in the schools pre­
dominantly of the opposite race. Id., at 653; and

5. unless the “ freedom of choice” plan were more effec­
tively and less dilatorily used by the defendants 
in this case, the court would have no alternative 
except to order some other plan used. Id., at 653.

And, by August, 1969, the district court had concluded that 
the freedom-of-choice plan in effect since 1967, had not 
been successful in disestablishing the dual system, and



17

offered no realistic promise of being effective in the reason­
ably near future. 429 F.2d 382, 384 (5th Cir. 1970).

Contrary to the district court’s contentions, most of the 
eleven virtually all-black elementary facilities left under 
the plan it approved for the 1974-75 academic year per­
petuate the discriminatory practices previously designed to 
maintain a raeially-dual system. As the following chart 
demonstrates, eight of eleven schools were all-black in 
1967-68 (when the court found the Board actively engaged 
in segregation), remained all-black or virtually all-black 
through 1968-69, (when the court found that freedom- 
of-choice was a failure) up to 1973-74 (during the opera­
tion of the Board’s desegregation proposal initiated in 
1970) and were projected to remain all-black by the Board 
under its plan for 1974-75:

Black Enrollment Ratios
School Name 1967-68 1968-69 1973-74 1974-75

(Projection 
in Board’s 

plan)
Booker T. Washington 100 100 98 98
Carver 100 100 99 99
Daisy Lawrence 100 100 98 98
Dunbar 100 100 87 87
Fews 100 100 99 99
Hayneville Road 100 100 96 95
Loveless 100 100 100 99
Paterson 100 100 94 94s

5 Appendix A  to Judge Goldberg’s dis'sent, App.. 76a estab-
lishes that the Board’s prediction's of black enrollments for these 
schools were generally accurate except in the case of three schools 
where actual black enrollments for fall 1974 exceeded projections: 
Dunbar (91% black); Fews (100% black) and Havneville Road 
(97% black); and his Appendix B points out that two junior high 
schools scheduled to enroll significant numbers of whites were ac­
tually substantially black for 1974-75: Badwin Jr. (73% black 
projection; 85% black enrollment) and Bellingrath (62% black 
projection; 81% black enrollment).



18

Thus, these schools were established before any desegre­
gation, they have always been black schools, and will con­
tinue to be unless an effective plan is implemented. More­
over, it is interesting to note that Carver High School 
(located on the same site as Carver Elementary) and 
Hayneville Eoad Elementary were cited by the district 
court in its February 24, 1968 opinion as examples of 
facilities that had been expanded by the Board to perpetu­
ate segregation. 289 F.Supp. 647, 651.

This Court observed in Swann, that school board policies 
with respect to expansion, construction, closing and loca­
tion of school facilities may promote segregated residential 
patterns:

People gravitate toward school facilities, just as 
schools are located in response to the needs of people. 
The location of schools may thus influence the patterns 
of residential development of a metropolitan area and 
have important impact on composition of inner-city 
neighborhoods.

In the past, choices in this respect have been used as 
a potent weapon for creating or maintaining a state- 
segregated school system. In addition to the classic 
pattern of building schools specifically intended for 
Negro or white students, school authorities have some­
times, since Brown, closed schools which appeared 
likely to become racially mixed through changes in 
neighborhood residential patterns. This was some­
times accompanied by building new schools in the 
areas of white suburban expansion farthest from 
Negro population centers in order to maintain the 
separation of the races with a minimum departure 
from the formal principles of ‘neighborhood zoning.’ 
Such a policy does more than simply influence the



19

short-run composition of the student body of a new 
school. It may well promote segregated residential 
patterns which, when combined with “neighborhood 
zoning,” further lock the school system into the mold 
of separation of the races. Upon a proper showing a 
district court may consider this in fashioning a 
remedy. 402 U.S. 1, at 20-21.

More recently, this Court in Keyes v. School District No. 1, 
413 U.S. 189 (1973), pointed out similarly that:

the use of mobile classrooms, the drafting of transfer 
policies, the transportation of students, and the 
assignment of facility and staff on racially identifiable 
bases, have the clear effect of earmarking schools 
according to their racial composition, and this, in turn, 
together with the elements of student assignment and 
school construction, may have a profound reciprocal 
effect on the racial composition of residential neigh­
borhoods within a metropolitan area, thereby causing 
further facial concentration within the schools. Id, 
at 202.

These characterizations aptly describe the extent to which 
Board policies created and maintained one-race schools in 
Montgomery County, Alabama. Swann, supra, clearly 
dictates that one-race schools created by Board action must 
be desegregated:

. . .  In a system with a history of segregation the need 
for remedial criteria of sufficient specificity to assure 
a school authority’s compliance with its constitutional 
duty warrants a presumption against schools that are 
substantially disproportionate in their racial composi­
tion. Where the school authority’s proposed plan for 
conversion from a dual to a unitary system contem­



20

plates the continued existence of some schools that 
are all or predominantly of one race, they have the 
burden of showing that such school assignments are 
genuinely non-discriminatory. The court should 
scrutinize such schools, and the burden upon the school 
authorities will be to satisfy the court that their racial 
composition is not the result of present or past dis­
criminatory action on their part. 402 U.S. 1, at 26.

Pairings and groupings of non-contiguous zones may be 
resorted to even where “administratively awkward, incon­
venient and even bizarre” during the interim period de­
signed to eliminate the dual system, in view of the fact 
that assigning children to schools nearest their homes 
may not serve to dismantle a system deliberately con­
structed to enforce racial segregation. 402 U.S. 1, 28.

The district court, heedless of this Court’s conclusion in 
Swann and Keyes that such .schools must be regarded as 
perpetuations of school board segregative policies and, 
hence, disestablished, held that eleven virtually all-black 
schools need not be desegregated since they arose as a 
result of residential patterns. It based its conclusion not 
upon any evidence but rather as implicitly true because 
“the population of Montgomery is so arranged that whites 
largely live on the east side of the city and blacks on the 
west” App. 16a. Certainly, if the district court’s con­
clusion that Montgomery County, Alabama one-race schools 
are the products of .segregated residential patterns which 
its Board had no hand in creating, then any other school 
system previously segregated by law should have no diffi­
culty satisfying the same standard. It is squarely contrary 
to this Court’s decision in Davis, supra, where the existence 
of residential segregation in Mobile was rejected as a justi­
fication for the school board’s failure to desegregate its



21

all-black schools. 402 U.S. 33, 36. Nothing could more 
effectively assure success to those boards which have been 
fighting since 1954 to avoid implementing Brown, supra 
than leaving the district court ruling undisturbed.

B. The Decisions of the Courts Below Approving An Ineffec­
tive Desegregation Plan Which Unequally Burdens Black 
Children In Order to Reduce The Likelihood of White 
Flight Conflict With Controlling Decisions of This Court.

This Court’s decisions in Brown II, 349 U.S. 294, 300 
(1955), Cooper v. Aaron, 358 U.S. 1 (1958) and Monroe v. 
Board of Commissioners, 391 U.S. 450, 459 (1968) establish 
that no more basic error can be committed in efforts to 
achieve desegregation than to yield to community opposi­
tion. In Monroe, this Court stated:

Respondent’s argument in this Court reveals its pur­
pose. We are frankly told in the Brief that without 
the transfer option it is apprehended that white stu­
dents will flee the school system altogether. But it 
should go without saying that the vitality of these 
constitutional principles cannot be allowed to yield 
simply because of disagreement with them. Brown II, 
at 300, 99 L.Ed. at 1106. 391 U.S. 450, at 459.

Here, the district court violated this principle.
To the extent that the approved plan achieves any mean­

ingful desegregation, it does so in a fashion that unduly 
burdens black children and their parents. Under the 
Board’s proposal, five previously all-black schools are 
the only facilities closed; only black children are assigned 
to elementary schools enrolling predominantly students of 
the opposite race; and only blacks are transported for 
desegregation. The Board’s plan imposed this unequal 
burden upon blacks and the district court approved such



22

provisions to reduce the level of white opposition to deseg­
regation and discourage “white flight.” Hence, the district 
court concluded that satellite zoning and cross-city busing 
of white students to desegregate further the remaining 
virtually all-black schools would not accomplish “stable 
desegregation” and should, therefore, be dismissed as 
viable alternative techniques to neighborhood zoning. App. 
18a. In so doing, that court improperly rejected consti- 
tutionally-acceptable and effective techniques for achieving 
meaningful desegregation simply because of apprehension 
that white citizens of Montgomery County, Alabama would 
find them intolerable.6

6 As Judge Goldberg indicates in his dissent, in this regard:
the district court was persuaded by the school Board’s at­
tempt to demonstrate that busing of white children into black 
neighborhoods to attend traditionally black schools would in 
many cases be met with withdrawal of white students from 
those schools Infra, p. 64a.



23

CONCLUSION

For the foregoing reasons, it is respectfully submitted 
that this Court should issue a writ of certiorari to the 
United States Court of Appeals for the Fifth Circuit.

Respectfully submitted,

J ack  G reenberg 
J am es M . N abrit , III 
D rew  S. D ays , III 
C harles S teph en  R alston  
M elvyn  L even th al

10 Columbus Circle 
New York, New York 10019

S olomon  S. S eay , J r .
F red T. G ray

Gray, Seay and Langford 
352 Dexter Avenue 
Montgomery, Alabama 36104

H oward A. M andell
212 Washington Building 
P.O. Box 1904
Montgomery, Alabama 36103 

Attorneys for Petitioners



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