United States v. Jefferson County Board of Education Opinion (Corrected Copy)
Public Court Documents
December 29, 1966
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Brief Collection, LDF Court Filings. United States v. Jefferson County Board of Education Opinion (Corrected Copy), 1966. f8961f88-c79a-ee11-be37-000d3a574715. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/1dee2d1a-1d69-453c-9bcf-ca3018741fa6/united-states-v-jefferson-county-board-of-education-opinion-corrected-copy. Accessed November 23, 2025.
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IN THE
United States Court of Appeals
FOR THE FIFTH CIRCUIT
N o . 2 3 3 4 5
UNITED STATES OF AMERICA and LINDA STOUT,
by her father and next friend, BLEVIN STOUT,
Appellants,
versus
JEFFERSON COUNTY BOARD OF EDUCATION,
ET AL,
Appellees.
N o . 2 3 3 3 1
UNITED STATES OF AMERICA,
Appellant,
versus
THE BOARD OF EDUCATION OF THE CITY OF
FAIRFIELD, ET AL,
Appellees.
2 U. S., et al. v. Jeff. County Bd. of Educ., et al.
N o . 2 3 3 3 5
UNITED STATES OF AMERICA,
Appellant,
versus
THE BOARD OF EDUCATION OF THE CITY OF
BESSEMER, ET AL,
Appellees.
Appeals from the United States District Court for the
Northern District of Alabama.
N o . 2 3 2 7 4
UNITED STATES OF AMERICA,
Appellant^
versus
CADDO PARISH SCHOOL BOARD, ET AL,
Appellees.
N o . 2 3 3 6 5
UNITED STATES OF AMERICA,
Appellant,
versus
THE BOSSIER PARISH SCHOOL BOARD, ET AL,
Appellees.
17. S., et al . V. Jeff. County Bd. of Educ., et al.
N o . 2 3 1 7 3
MARGARET M. JOHNSON, ET AL,
Appellants,
versus
JACKSON PARISH SCHOOL BOARD, ET AL,
Appellees,
N o . 2 3 19 2
YVORNIA DECAROL BANKS, ET AL,
Appellants,
versus
CLAIBORNE PARISH SCHOOL BOARD, ET AL,
Appellees.
Appeals from the United States Distriet Court for the
Western Distriet of Louisiana.
(D ecem ber 29, 1966.)
Before WISDOM and THORNBERRY, C ircuit Judges,
and COX,* D istric t Judge.
WISDOM, C ircuit Judge: Once again the Court is
called upon to review school desegregation plans to
determ ine w hether the plans m eet constitutional
s tandards. The distinctive fea tu re of these cases, con
solidated on appeal, is that they requ ire us to reex
am ine school desegregation standards in the light of
* William Harold Cox, U. S. District Judge for the Southern Dis
trict of Mississippi, sitting by designation.
4 U. S., et al. v. Jeff. County Bd. of Educ., et al.
the Civil R ights A ct of 1964 and the G uidelines of the
U nited States Office of E ducation , D epartm en t of
H ealth , Education, and W elfare (HEW ).
W hen the U nited S tates Suprem e Court in 1954
decided Brown v. Board of Education^ the m em
bers of the H igh School C lass of 1966 had not en tered
the firs t g rade. Brown I held th a t sep a ra te schools
for N egro children w ere “ inheren tly unequal” .̂ N e
gro children, sa id the Court, have the “ personal and
p re sen t” righ t to equal educational opportunities
w ith white children in a rac ia lly nondiscrim inatory
public school system . F o r all but a handful of Negro
m em bers of the High School Class of ’66 th is righ t
has been “ of such stuff as d ream s a re m ade on” ,!*
“ The Brown case is m isread and m isapp lied when
it is construed sim ply to confer upon N egro pupils
the rig h t to be considered for adm ission to a white
̂ Brown v. Board of Education, 1954, 347 U. S. 483, 74 S.Ct.
686, 98 L. Ed. 873 {Brown I). See Brown v. Board of Education,
1955, 349 U.S. 294, 75 S.Ct. 293, 99 L.Ed.'1083 {Brown II).
2 347 U. S. at 495.
3 Shakespeare, The Temptest IV, The cases consolidated for ap
peal involve Alabama and Louisiana public schools. In Alabama,
as of December 1965, there were 1250 Negro pupils, out of a state
wide total of 295,848, actually enrolled in schools with 559,123
white students,, 0.43% of the eligible Negro enrollment. In Louisi
ana there were 2187 Negro children, out of a total of 318,651, en
rolled in school with 483,941 white children, 0.69% of the total
eligible. Southern Education Reporting Service, Statistical Sum
mary of Segregation-Desegregation in the Southern and Border
Area from 1954 to the present, 15th Rev. p. 2, Dec. 1965. See Ap
pendix B, Rate of Change and Status of Desegregation. In each of
the seven cases before this Court, no start was made toward de
segregation of the schools until 1965, eleven years after Brown.
In all these cases, the start was a consequence of a court order
obtained only after vigorous opposition by school officials.
U. S ; et al. V. Jejf. County Bd. of Educ., et al.
school” .̂ The U nited S ta tes Constitution, as construed
in Brown, req u ires public school system s to in teg ra te
students, faculties, facilities, and activities.® If Brown
* Braxton v. Board of Public Instruction of Duval County,
S.D.Fla. 1962, 7 Race Rel. L. Rep. 675, aff’d, 5 Cir.
1964, 326 F.2d 616, cert, den’d 377 U. S. 924 (1964).
Senator Humphrey cited this case in explaining Section 604 of
The Civil Rights Act of 1964. See Section IV D of this opinion.
" The mystique that has developed over the supposed difference
between “desegregation” and “integration” originated in Briggs
V . Elliott, E.D.S.C. 1955, 132 F.Supp. 776: “The Constitution . . .
does not require integration. It merely forbids segregation”. 132
F.Supp. at 777. This dictum is a product of the narrow view
that Fourteenth Amendment rights are only individual rights;
that therefore Negro school children individually must exhaust
their administrative remedies and will not be allowed to bring class
action suits to desegregate a school system. See Section IIIA of
this opinion.
The Supreme Court did not use either “desegrega
tion” or “integration” in Brown. But the Court did
quote with approval a statement of the district court
in which “integrated” was used as we use it here. For ten
years after Brown the Court carefully refrained from using “in
tegration” or “integrated”. Then in 1964 in Griffin v. County
School Board of Prince Edward County, 375 U.S. 391, 84 S.Ct.
400, 11 L.Ed.2d 409, the Court noted that “the Board of Super
visors decided not to levy taxes or appropriate funds for integrated
public schools”, i.e. schools under a desegregation order. There
is not one Supreme Court decision which can be fairly construed
to show that the Court distinguished “desegregation” from “in
tegration”, in terms or by even the most gossamer implication.
Counsel for the Alabama defendants assert that “desegrega
tion” and “integration” are terms of art. They struggle valiantly
to define these words:
By “desegregation” we mean the duty imposed by Brown
upon schools which previously compelled segregation to take
affirmative steps to eliminate such compulsory segregation
so as to allow the admission of students to schools on a non-
racial admission basis. By “integration” we mean the actual
placing of or attendance by Negro students in schools with
whites.
They can do so only by narrowing the definitions to the point of
inadequacy. Manifestly, the duty to desegregate schools extends
beyond the mere “admission” of Negro students on a non-racial
basis. As for “integration”, manifestly a desegregation plan must
include some arrangement for the attendance of Negroes in
formerly white schools.
In this opinion we use the words “integration” and “desegre
gation” interchangeably. That is the way they are used in the
vernacular. That is the way they are defined in Webster’s Third
New International Dictionary: “ ‘integrate’ to ‘desegregate’ ”.
6 17. S., et al. v. Jeff. County Bd. of Educ., et al.
I left any doubt as to the a ffirm ative dutj? ̂ of s ta tes
to fu rn ish a fully in teg ra ted education to N egroes as
The Civil Rights Commission follows this usage; for example,
“The Office of Education . . . standards . . . should . . .
ensure that free choice plans are adequate to disestablish dual,
racially segregated school systems . . . to achieve substantial
integration in such systems.” U. S. Comm. Survey of School
Desegregation 1965-66, p. 54.
The Eighth Circuit used “integration” interchangeably with
“desegregation” in Smith v. Board of Education of Morrilton, 8
Cir. 1966, 365 F.2d 7J0. So did the Third Circuit in Evans v.
Ennis, 3 Cir. 1960, 281 F.2d 385. See also Brown v. County
School Board of Frederick County, Va., W.D.Va. 1965, 245 F.
Supp. 549. The courts in Dowell v. School Board of Oklahoma City
Public Schools, W.D.Okla. 1965, 244 F. Supp. 971 and Dove v.
Parham, 8 Cir. 1960, 282 F.2d 256 (and the Civil Rights Commis
sion), speak of a school board’s duty to “disestablish segrega
tion”. This term accurately “implies that existing racial imbalance
is a consequence of past segregation policies, and, because of
this, school boards have an affirmative duty to remedy racial
imbalance”. Note, Discrimination in. the Hiring and Assignment of
Teachers in Public School Systems, 64 Mich. L. Rev. 692, 698 n.44
(1966). (Emphasis added.)
We use the terms “integration” and “desegregation” of
formerly segregated public schools to mean the conversion of a
de jure segregated dual system to a unitary, nonracial (nondis-
criminatory) system—lock, stock, and barrel: students, faculty,
staff, facilities, programs, and activities. The proper govern
mental objective of the conversion is to offer educational op
portunities on equal terms to all.
As we see it, the law imposes an absolute duty to desegre
gate, that is, disestablish segregation. And an absolute duty to
integrate, in the sense that a disproportionate concentration of
Negroes in certain schools cannot be ignored; racial mixing of
students is a high priority educational goal. The law does not
require a maximum of racial mixing' or striking a racial balance
accurately reflecting the racial composition of the community
or the school population. It does not require that each and evep^
child shall attend a racially balanced school. This, we take it,
is the sense in which the Civil Rights Commission used the
phrase “substantial-integration”. i.. j
As long as school boards understand the objective of de
segregation and the necessity for complete disestablishment of
segregation by converting the dual system to a nonracial unitary
svstem, the nomenclature is unimportant. The criterion for deter
mining the validity of a provision in a desegregation plan_ is
whether it is reasonably related to the objective. We emphasize,
therefore the governmental objective and the specifics of the
conversion process, rather than the imagery evoked by the
pejorative “integration”. Decision-making in this important area
of the law cannot be made to .turn upon a quibble devised over
U. S., et al. V. Jeff. County Bd. of Educ., et al. 7
a class, Brown II reso lved th a t doubt. A s ta te w ith a
dual a ttendance system , one for w hites and one for
N egroes, m ust “ effectuate a transition to a [single]
rac ia lly nondiscrim inatory sy stem .” ® The two Brown
decisions estab lished equalization of educational op
portunities as a h igh p rio rity goal for all of the s ta tes
and com pelled seven teen s ta tes , w hich by law had
segregated public schools, to take affirm ative action
to reorganize their schools into a un itary , nonracial
system .
The only school desegregation plan that m eets con
stitutional standards is one that works. By helping
public schools to m eet th a t test, by assisting the
courts in the ir independent evaluation of school de
segregation plans, and by acce lerating the p rogress
bu t sim plifying the process of desegregation the.
HEW G uidelines offer new hope to N egro school
children long denied the ir constitu tional rights. A
national effort, bringing together Congress, the
executive, and the jud ic ia ry m ay be able to m ake
m eaningful the rig h t of Negro ch ildren to equal
educational opportunities. The courts acting alone
have failed.
We hold, again , in determ ining w hether school de
segregation plans m eet the standards of Brown and
ten years ago by a court that misread Brown, misapplied the class
action doctrine in the school desegregation cases, and did not fore
see the development of the law of equal opportunities.
® Brown v. Board of Education, 1955, 349 U.S. 294, 301.
8 U. S., et al. v. Jeff. County Bd. of Educ., et al.
other decisions of the Suprem e C o u r t , th a t courts in
th is c ircu it should give “ g rea t w eight” to HEW
Guidelines.® Such deference is consistent w ith the
exercise of trad itio n a l jud ic ia l pow ers and functions.
HEW G uidelines a re based on decisions cf th is and
o ther courts, a re fo rm u la ted to s tay w ithin the scope
of the Civil R ights Act of 1964, a re p rep a red in detail
by experts in education and school adm in istra tion ,
and a re in tended by Congress and the executive to
be p a r t of a coordinated national p ro g ram . The
G uidelines p resen t the best system availab le for uni
fo rm application, and the East aid to the courts in
evaluating the valid ity of a school desegregation plan
and the progress m ade under th a t plan.
HEW regulations provide th a t schools applying for
financial assistance m ust com ply w jfh ce rta in re
qu irem ents. However, the req u irem en ts for elem en
ta ry or secondary schools “ shall be deem ed to be
satisfied if such school or school sy stem is sub jec t to
a final o rder of a court of the U nited S ta tes for the
desegregation of such school or school system . .
This regu la tion causes our decisions to have a tw o
fold im p ac t on school desegregation . Our decisions
determ ine not only (1) the s tandards schools m ust
com ply w ith under Brown but also (2) the s tan d ard s
these schools m ust com ply w ith to qualify for fed era l
financial assistance. Schools automatically qual-
’’ Especially Cooper v. Aaron, 1958, 358 U.S. 1, 78 S.Ct. 1399,
3 LEd.2d 3; Bradley v. School Board of the City of Richmond,
1965, 382 U.S. 103, 86 S.Ct. 224, 15 L.Ed.2d 187; Rogers v. Paul,
1965, 382 U.S. 198, 86 S.Ct. 358, 15 L.Ed.2d 265.
8 Singleton v. Jackson Municipal Separate School District, 5
Cir. 1965, 348 F.2d 729 (Singleton /) .
9 45 C.P.R. 180.4(c) (1964).
17, S., et al. V. Jeff. County Bd. of Educ., et al. 9
ify for fed e ra l aid w henever a final court o rd er
desegregating the school has been en tered in the liti
gation and the school au thorities ag ree to com ply
w ith the order. Because of the second consequence of
our decisions and because of our duty to cooperate
w ith Congress and w ith the executive in enforcing
Congressional objectives, strong policy considerations
support our holding th a t the s tandards of court-
superv ised desegregation should not be lower than
the s tandards of H EW -supervised desegregation . The
Guidelines, of course, cannot bind the courts; we a re
not abdicating any jud ic ia l responsib ilities.“ But we
hold th a t H EW ’s s tan d ard s a re substan tia lly the sam e
as th is C ourt’s s tandards. They a re req u ired by the
Constitution and, as we construe them , a re w ithin
the scope of the Civil R ights A ct of 1964. In evaluating
desegregation plans, d is tric t courts should m ake
few exceptions to the Guidelines and should c a re
fully ta ilo r those so as not to defeat the policies of
HEW or the holding of th is Court.
Case by case over the last tw elve years, courts
have increased the ir understand ing of the desegre
gation p rocess.“ Less and less have courts accepted
the question-begging distinction betw een “ deseg rega
tion” and “ in teg ra tio n ” as a san c tu ary for school
boards fleeing from th e ir constitutional duty to estab-
In Singleton I, to avoid any such inference, we said: “The
judiciary has of course functions and duties distinct from those
of the executive department . . . Absent legal questions, the
United States Office of Education is better qualified. . . . ” 348
F. 2d at 731.
“The rule has become: the later the start, the shorter the
time allowed for transition.” Lockett v. Board of Education of
Muscogee County, 5 Cir. 1965, 342 F.2d 225, 228.
10 U. S., et al. V. Jeff. County Bd. of Educ., et al.
lish an in teg ra ted , non-racial school system d^ W ith
the benefit of th is experience, the Court has re
studied the School Segregation Cases. We have re
exam ined the n a tu re of the N egro’s rig h t to equal
educational opportunities and the ex tent of the cor
re la tive affirm ative duty of the s ta te to fu rn ish equal
educational opportunities. We have taken a close look
at the background and objectives of the Civil R ights
A ct of 1964.18
^ ^ jJ?
We approach decision-m aking here w ith hum ility.
M any in telligent m en of good will who have dedicated
th e ir lives to public education a re deeply concerned
for fear th a t a doctrinaire approach to desegregat
ing schools m ay lower educational standards or even
destroy public schools in som e a reas . These educa
to rs and school adm in istra to rs, especially in com m u
nities where to tal segregation has been the w ay of
life from crad le to coffin, m ay fail to understand all
of th,3 legal im plications of Brown, but they un
d erstand the g rim rea lities of the problem s th a t com
plicate th e ir task.
The Court is aw are of the g rav ity of th e ir problem s.
(1) Some determ ined opponents of desegregation
would scuttle public education ra th e r th an send th e ir
children to schools w ith N egro children. These m en
■- See Section III A and footnote 5.
The Court asked counsel in these consolidated cases and in
five other cases for briefs on the following questions:
(a) To what extent, consistent with judicial preroga
tives and obligations,- statutory and constitutional, is it per
missible and desirable for a federal court (trial or appellate)
to give weight to or to rely on H.E.W. guidelines and policies
in cases before the court?
(b) If permissible and desirable, what practical_ means
and methods do you suggest that federal courts (trial and
appellate) should follow in making H.E.W. guidelines and
policies judicially effective?
17. S., et al. V. Jeff. County Bd. of Educ., et al. 11
flee to the suburbs, reinforcing u rb an neighborhood
school p a tte rn s. (2) P riv a te schools, a ided by s ta te
g ran ts , have m ushroom ed in som e s ta tes in th is c ir
c u i t . T h e flight of w hite children to these new
Schools and to estab lished p riv a te and paroch ial
schools prom otes resegregation . (3) M any white
teach ers p re fe r not to teach in Negro schools. They
a re tem p ted to seek em ploym ent a t white schools or
to re tire . (4) M any Negro children, for various re a
sons, p re fe r to finish school w here they s ta rted . (5)
The gap betw een white and Negro scholastic achieve
m ents causes all so rts of difficulties. There is no con
solation in the fac t th a t the gap depends on the socio
econom ic sta tu s of N egroes a t leas t as m uch as it de
pends on in ferio r N egro schools.
No court can have a confident solution for a legal
problem so closely interw oven w ith political, social,
and m o ra l th read s as the problem of establishing
fair, w orkable s tandards for undoing de ju re school
segregation in the South. The Civil R ights Act of
1964 and the HEW Guidelines a re belated but invalu
able helps in arriv ing a t a neutral, principled deci
le Alabama provides tuition grants of $185 a year and Louisiana
$360 a year to students attending private schools. “Only Florida
and- Texas report no obvious cases of private schools formed to
avoid desegregation in public schools.” Up to the school year
1965-66, Louisiana had “some 11,000 pupils already receiving
state, tuition grants to attend private schools.” This number will
be significantly increased as a result of new private schools in
Plaquemines Parish. Leeson, Private Schools Continue to In
crease in the South, Southern Education Report, November 1966,
p. 23. In Louisiana, students attending parochial schools do not
receive tuition grants.
12 U. S., et al. v. Jeff. County Bd. of Educ., et al.
Sion consisten t w ith the dim ensions of the problem ,
trad itiona l jud ic ia l functions, and the U nited S tates
Constitution. We g rasp the nettle.
I.
“ No arm y is s tronger th an an idea whose tim e
h as com e.” ®̂ Ten y ears a fte r Brown, cam e the Civil
R ights Act of 1964.“ C ongress decided th a t the tim e
had com e for a sweeping civil righ ts advance, in
cluding national legislation to speed up d eseg rega
tion of public schools and to put tee th into enforce
m en t of desegregation .” T itles IV and VI together
In a press meeting May 19, 1964, to discuss the Civil Rights
bill. Senator Everett Dirksen so paraphrased, “On resiste a
I’invasion des armees; on ne resiste pas a I’invasion des idees.”
Victor Hugo, Histoire d’un crime: Conclusion: La Chute, Ch. 10
(1877). Senator Dirksen then said, “Let editors rave at will and
let states fulminate at will, but the time has come, and it can’t
be stopped.” Cong. Quarterly Service, Revolution in Civil Rights
63 (1965).
i« H. R. 7152, Pub. L. 88-352, 78 Stat. 243; approved July 2,
1964.
“[I]n the last decade it has become increasingly clear that
progress has been too slow and that national legislation is re
quired to meet a national need which becomes ever more obvious.
That need is evidenced, on the one hand, by a growing impatience
by the victims of discrimination with its continuance and, on the
other hand, by a growing recognition on the part of all of our
people of the incompatibility of such discrimination with our
ideals and the principles to which this country is dedicated. A
number of provisions of the Constitution of the United States
clearly supply the means ‘to secure these rights,’ and H. R. 7152,
as amended, resting upon this authority, is designed as a step
toward eradicating significant areas of discrimination on a na
tionwide basis. It is general in application and national in scope.”
House Judiciary Committee Report No. 914, to Accompany H. R.
7152. 2 U.S. Code Congressional and Administrative News,
88th Cong. 2nd Sess. 1964, 2933. “The transition from all-
Negro to integrated schools is at best a difficult problem of ad
justment for teachers and students alike. . . . We have tried to
point out that the progress in school desegregation so well com
menced in the period 1954-57 has been grinding to a halt. The
trend observed in 1957-59 toward desegregation by court order
U. S., et al. V. Jeff. County Bd. of Educ., et al. 13
constitu te the congressional a lte rn ativ e to court-su
perv ised desegregation . These sections of the law
mobilize in aid of desegregation the U nited States
Office of Education and the Nation’s purse.
A. Title IV authorizes the Office of E ducation to
give techn ical and financial assis tance to local school
system s in the process of desegregation.^® Title VI
requ ires all fed era l agencies adm in istering any grant-
in-aid p ro g ram to see to it that there is no rac ia l dis
crim ination by any school or other recipient of fed
eral financial aid.^® School boards cannot, however,
hy giving up fed era l aid, avoid the policy th a t p ro
duced this limitation on federal aid to schools: Title
IV authorizes the A ttorney G eneral to sue, in the
nam e of the U nited S tates, to desegregate a public
rathrr than hy voluntary action has continued. It is not healthy
nor right in this country to require the local residents of a com
munity to carry the sole burden and face alone the hazards of
commencing costly litigation to compel school desegregation. After
all, it is the responsibility of the Federal Government to protect
constitutional rights. . . . ” Additional Views on H. R. 7152 of
Hon. William M. McCulloch, Hon. John'V. Lindsay, Hon. William
T. Cahill, Hon. Garner E. Shriver, Hon. Clark MacGregor, Hon.
Charles McC. Mathias, Hon. James E. Bromwell.” Ibid., 2487.
18 78 Stat. 246-99, 42 U.S.C. § 2000c (1964).
19 78 Stat. 252-53, 42 U.S.C. § 2000d (1964). Section 601
states: “No person in the United States shall, on the ground of
race, color, or national origin, be excluded from participation in,
be denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial assistance.”
Section 602 states: “Each Federal department and agency which
is empowered to extend Federal financial assistance to any program
or activity . . . is authorized and directed to effectuate the pro
visions of Section 601 with respect to such program or activity
by issuing rules, regulations, or orders of general applicability
which shall be consistent with achievement of the objectives of
the statute authorizing the financial assistance in connection
with which the action is taken. . . . ”
14 U. S., et al. v. Jeff. County Bd. of Educ., et al.
school or school system.^® More clearly and effec
tively th an e ither of the o ther two coordinate b ranches
of G overnm ent, Congress speaks as the Voice of the
N ation. The national policy is plain: form erly de jure
segregated public school system s based on dual at
tendance zones m ust shift to unitary, nonracial sys
tem s—with or without federal funds.
The Chief Executive acted prom ptly to c a rry into
effect the Chief L eg isla tu re’s m andate. P res id en t
Lyndon B. Johnson signed the bill into law Ju ly 2,
19'64, only a few hours a fte r C ongress had finally
approved it. In the signing cerem ony b ro ad cas t to the
N ation, the P resid en t said : “ We believe all m en are
en titled to the blessings of liberty , yet m illions are
being deprived of those blessings—not because of
the ir own fa ilu res, but because of the color of the ir
skins. . . . [It] cannot c o n t i n u e . A t the request
of P res id en t Johnson, Vice P resid en t H ubert H. H um
phrey subm itted .a rep o rt to the P resid en t “ On the
Coordination of Civil R ights A ctivities in the F ed e ra l
G overnm ent” recom m ending the creation of a Coun
cil on E qual O pportunity. The rep o rt concludes that
“ the very b read th of the F ed era l G overnm ent’s ef
fort, involving a m ultip licity of p ro g ram s” necessary
to c a rry out the 1964 Act had c rea ted a “ problem
of coordination .” The P resid en t approved the recom
m endation th a t instead of creating a new agency
20 78 Stat. 246-49, 42 U.S.C. § 2000c (1964). In addition, Title
IX authorizes the Attorney General to intervene in private suits
where persons have alleged denial of equal protection of the laws
under the 14th Amendment where he certifies that the case is of
“general public importance.” 78 Stat. 266, Title IX § 902, 42 U.S.C.
§ 2000 h-2 (1964).
21 N.Y. Times, July 3, 1964, p. 1.
17. S., et al. V. Jeff. County Bd. of Educ., et al. 15
there be a general coordination of e f f o r t . L a t e r ,
the P resid en t noted th a t the federal d ep artm en ts and
agencies had “ adopted uniform and consistent reg u la
tions im plem enting Title VI . . . [in] a coordinated
p ro g ram of en fo rcem ent.” He d irected the A ttorney
G eneral to “ coord inate” the various federal p ro
g ram s in the adoption of “ consistent and uniform
policies, p rac tices and procedures w ith respect to the
enforcem ent of Title VI. . .
In A pril 1965 Congress for the firs t tim e in its h is
tory adopted a law providing general federal aid
—a billion dollars a y ea r—for elem entary and
secondary schools.-^ It is a fa ir assum ption th a t
Congress would not have tak en th is step had Title VI
not estab lished the principle th a t schools receiving
fed era l assis tance m ust m eet uniform national
s tan d ard s for desegregation.^®
To m ake Title VI effective, the D epartm en t of
Health, E ducation , and W elfare (HEW) adopted the
regulation, “ N on-discrim ination in F edera lly assisted
P ro g ra m s.” *® This regulation d irects the C om m is
sioner of Education to approve applications for fi-
Executive Order 11197, Feb. 9, 1965, 30 F.R. 1721.
Executive Order No. 11247, Sept. 28, 1965, 30 F. R. 12327.
The Elementary and Secondary Education Act of 1965, 79
Stat. 27.
23 “The Elementary and Secondary Education Act of 1965
greatly increased the amount of federal money available for public
schools, and did so in accordance with a formula that pumps the
lion’s share of the money to low-income areas such as the Deep
South. Consequently, Title VI of the Civil Rights Act of 1964
has become the main instrument for accelerating and completing
the desegregation of Southern public schools.” The New Republic,
April 9, 1966 (Professor Alexander M. Bickel).
2« 45 C.F.R. Part 80, Dec. 4, 1964, 64 F. R. 12539.
16 U. S., et al. v. Jeff. County Bd. of Educ., et al.
nancia l assis tance to public schools only if the school
or school system agrees to com ply w ith a court o rder,
if any, outstanding against it, or subm its a deseg re
gation plan satisfacto ry to the Commissioner.^’̂
To m ake the regulation effective, by assisting the
Office of E ducation in determ ining w hether a "school
qualifies for fed era l financial aid and by inform ing
school boards of HEW requ irem en ts, HEW form u
lated certa in standards or guidelines. In A pril 1965,
nearly a y ear after the Act w as signed, HEW pub
lished its f irs t Guidelines, “ G eneral S ta tem en t of
Policies under Title VI of the Civil R ights Act of
1964 R especting D esegregation of E lem en ta ry and
Secondary Schools.” -® These Guidelines fixed the
fa ll of 1967 as the ta rg e t date for to ta l desegregation
of all g rades. In M arch 1966 HEW issued “Revised
Guidelines” to co rrec t m ost of the m a jo r flaw s re
vealed in the firs t y ea r of operation under Title VI.
B. The HEW G uidelines ra ise the question: To
w hat ex ten t should a court, in determ ining w hether
to approve a school desegregation plan, give w eight
to the HEW G uidelines? We adhere to the answ er
2'̂ “Every application for Federal financial assistance to carry
out a program to which this part applies . . . shall, as a condi
tion to its approval . . contain or be accompanied by an as
surance that the program will be conducted or the facility operated
in compliance with all requirements imposed by or pursuant to
this part. . . . ” 45 C.F.R. § 80.4 (a) (1964).
U. S. Department of Health, Education and Welfare, Office
of Education, General Statement of Policies under Title VI of the
Civil Rights Act of 1964 Respecting Desegregation of Elementary
and Secondary Schools, April, 1965. It is quoted in full in Price
V. Denison Independent School District, 5 Cir. 1965, 348 F.2d at
1010 .
29 Revised Statement of Policies for School Desegregation Plans
Under Title VI of the Civil Rights Act of 1964. March, 1966.
U. S., et al. V. Jeff. County Bd. of Educ., et al. 17
this Court gave in four ea rlie r cases. The HEW
Guidelines a re “ m in im um s tan d a rd s” , representing
for the m ost p a r t s tan d ard s the Suprem e Court and
th is Court estab lished before the Guidelines were
promulgated.^^ Again we hold, “we attach g rea t
w eight” to the Guidelines. Singleton v. Jackson Munic
ipal Separate School District, 5' Cir. 1965, 348 F.2d
729 (Singleton I). “We put these s tan d ard s to work.
. . . [P lans] should be m odeled a fte r the Com
m issioner of E duca tion ’s requ irem en ts. . , . [E xcep
tions to the guidelines should be] confined to those
ra re cases p resen ting justic iab le, not operational,
questions. . . . The applicable s tan d a rd is essentially
the HEW fo rm u lae .” Price v. Denison Independent
School District, 5 Cir. 1965, 348 F .2d 1010. “We consid
e r it to be in the best in te rest of all concerned th a t
School B oards m eet the m inim um stan d ard s of the
Office of Education . . . . In certain school districts
and in certa in respects, HEW stan d ard s m ay be too
low to m eet the requ irem en ts estab lished by the
Suprem e Court and by this Court . . . . [But we also]
consider it im portan t to m ake c lear th a t . . . we do
not abd ica te our jud ic ia l responsibility for de term in
ing w hether a school desegregation p lan violates fed
era lly g u aran teed rig h ts .” Singleton v. Jackson Mu
nicipal Separate School District, 5 Cir. 1966, 355 F.2d
815 (Singleton II). In Davis v. Board of School Com
missioners of Mobile County, 5 Cir. 1966, 364 F.2d 896,
the m ost recen t school case before th is Court, we ap-
In Davis v. Board of School Commissioners of Mobile County,
5 Cir. 1966, 364 F.2d 896, Judge Tuttle, for the Court, noted that
“for more than a year, it has been apparent to all concerned
that the requirements of Singleton and Denison were the minimum
standards to apply.”
18 U. S., et al. v. Jeff. County Bd. of Educ., et al.
proved Singleton I and II and Price v. Denison and
o rdered certa in changes in the school p lan in con
fo rm ity w ith the HEW G uidelines.
Courts in o ther c ircu its a re in substantial agree
m en t w ith this Court. In K em p v. Beasley, 8 Cir.
1965, 352 F . 2d 14, 18-19, the Court said : “ The Court
ag rees th a t these [HEW] s tan d ard s m ust be
'heavily relied upon . . . . [T]he courts should en
deavor to m odel th e ir s tan d ard s a fte r those prom ul-
g a ted by the executive. They a re not bound, how ever,
and w hen c ircum stances d icta te , the courts m ay re
quire som ething m ore, less or d ifferen t from the
H.E.W . guidelines.” (E m phasis added.) C oncurring,
Judge L arson observed: “However, th a t ‘som ething
d ifferen t’ should ra re ly , if ever be less th a n w hat is
contem plated by the H.E.W . s tan d a rd s .” 352 F .2d a t
23. Sm ith v. Board of Education of Morrilton, 8 Cir.
1966, 365 F.2d 770 rea ffirm s th a t the G uidelines “ a re
en titled to serious jud ic ia l deference” .
A lthough the Court of Appeals for the F o u rth C ir
cuit has not y e t considered the effect of the HEW
standards, d is tric t courts in th a t c ircu it have relied
on the guidelines. See Kier v. County School Board
of Augusta County, W .D.Va. 1966, 249 F. Supp. 239;
W right v. County School Board of Greenville County,
E.D .V a. 1966, 252 F. Supp. 378; Miller v. Clarendon
County School District No. 2, D.S.C., Civil Action No.
8752, A pril 21, 1966. In Miller, one of the m ost recen t
of these cases, the court said:
The orderly p rogress of desegregation is
best served if school system s desegregating
U. S., et al. V. Jeff. County Bd. of Educ., e t.a l. 19
under court o rder are requ ired to m eet the
m inim um stan d ard s prom ulgated for system s
th a t desegregate voluntarily . W ithout d irec t
ing absolute adherence to the “ Revised S tand
a rd s” guidelines at this jun c tu re , th is court
will w elcom e their inclusion in any new,
am ended, or substitu te p lan which m ay be
adopted and subm itted .
In this circuit, the school problem arises from
state action. This Court has not had to deal w ith
nonracially m otivated de facto segregation, that is,
rac ia l im balance resulting fortuitously in a school
system based on a single neighborhood school se rv
ing all white and N egro children in a certa in a ttend
ance area or neighborhood. F o r this circu it, the
HEW G uidelines offer, for the firs t tim e, the p ros
pect th a t the transition from a de ju re seg regated
dual system to a u n ita ry in teg ra ted system m ay be
carried out effectively, prom ptly, and in an orderly
m anner. See A ppendix B, R ate of Change and S tatus
of Desegregation.
II.
We read Title VI as a congressional m andate for
change—change in pace and m ethod of enforcing de
segregation. The 1964 Act does not disavow court-
supervised desegregation. On the con trary , Congress
recognized th a t to the courts belongs the la s t word
in any case or c o n t r o v e r s y .B u t Congress w as dis-
31 Title IV, § 407, 42 U.S.C. § 2000 (c) authorizing the Attorney-
General to bring suit, on receipt of a written complaint, would
seem to imply this conclusion. Section 409 preserves the right of
individual citizens “to sue for or obtain relief” against discrimina
tion in public education. HEW Regulations prowde: “In any
case in which a final order of a court of the United States for
20 U. S., et al. v. Jeff. County Bd. of Educ., et al.
satisfied w ith the slow prog ress inheren t in the jud i
cial adversary process.®^ Congress therefore fash
ioned a new m ethod of enforcem ent to be adm in
is te red not on a case by case basis as in the courts
but, generally , by fed era l agencies operating on a
na tional scale and having a special com petence in
th e ir respective fields. C ongress looked to these agen
cies to shoulder the additional enforcem ent burdens
resu lting from the shift to high g ear in school deseg
regation.
A. Congress was well aw are th a t it w as tim e for
a change. In the decade following Brown, court-super
v ised desegregation m ade qualita tive p rogress:
Responsible Southern leaders accep ted desegregation
as a settled constitu tional principle.®® Q uantitively,
the desegregation of such school or school system is entered
after submission of such a plan, such a plan shall be revised to
conform to such final order, including any future modification of
such order.” 45 C.F.R. § 80.4(c) (1964).
32 See footnote 17.
33 “The Federal courts have been responsible for great qualita
tive advances in civil rights; the lack has been in quantitative im
plementation—in enabling the individual to avail himself of these
great decisions.” Bernhard and Natalie, Between Rights and
Remedies, 53 Georgetown L. Jour. 915, 916 (1965). “[ l i t is the
consensus of the judges on the firing line, so to speak, that one
phase in the administration of the law—the establishment phase,
characterized by permissive tokenism, by a sort of minimal
judicial holding of the line while the political process did, as it
must, the main job of establishing—this phase has been closed
out.” Bickel, The Decade of School Desegregation, 64 Colum.
L. Rev. 193, 209 (1964). The changes of the past decade have dis
appointed the most optimistic hopes, but they have been dramat
ically sweeping nonetheless. Gellhorn, A Decade of Desegregation—
Retrospect and Prospect, 9 Utah L. Rev. 3 (1964). “What makes
one uneasy, of course is the truly awesome magnitude of what
has yet to be done.” Marshall, The Courts, in Center for the Study
of Democratic Institutions, The Maze of Modem Government 36
(1964), quoted in Poliak, Ten Years After the Decision, 24 Fed.
Bar Jour. 123 (1964). On the first decade of desegregation, see
generally, Sarratt, The Ordeal of Desegregation (1966); Legal
Aspects of the Civil Rights Movement (D. B. King ed. 1965).
17. S., et al. V. Jeff. County Bd. of Educ., et al. 21
the resu lts w ere m eagre. The s ta tistics speak elo
quently. See Appendix B, R ate of Change and S tatus
of Desegregation. In 1965 the public school d is tric ts
in the consolidated cases now before this C ourt had
a school population of 155,782 school children, 59,361
of whom w ere Negro. Y et under the existing court-
approved desegregation plans, only 110 Negro chil
dren in these d istric ts , .019 p er cent of the school
population, a ttend fo rm er “ w hite” schools.®^ In 1965
there w as no faculty desegregation in any of these
school d is tric ts ; indeed, none of the 30,500 Negro
teachers in A labam a, Louisiana, and M ississippi
served w ith any of the 65,400 white teach ers in those
states.®® In the 1963-64 school year, the eleven s ta tes
of the C onfederacy had 1.17 per cent of th e ir N egro
students in schools w ith white students.®® In 1964-65,
undoubtedly because of the effect of the 1964 Act,
Total
Enrollment
Negroes Admitted
To Formerly
White Schools
Bessemer, Ala.
Fairfield, Ala.
Jefferson County, Ala.
Caddo Parish, La.
Bossier Parish, La.
Jackson Parish, La.
Claiborne Parish, La.
W N
2,920 5,284 13
1,779 2,159 31
45,000 18,000 24
30,680 24,467 1
11,100 4,400 31
2,548 1,609 5
X XX.X. 2,394 3,442 5
(Affidavit of St. John Barrett, Attorney, Department of Justice,
attached to Motion to Consolidate and Expedite Appeals.)
U. S. Dept, of Health, Education and Welfare, Office of
Education Release, Table 3, September 27, 1965. In the 11 states
of the Confederacy there are 1800 Negro teachers, 1.8 per cent
of all the Negro teachers in Southern schools, assigned to schopls
with biracial faculties. By contrast, in the border states (Dela
ware, Kentucky, Maryland, Missouri, Oklahoma and West Vir
ginia). 51 per cent of the Negro teachers now teach white students.
Xl3id36 Southern Education Reporting Service, Statistical Sunimary,
Dec. 1965, cited in U.S. Comm, on Civil Rights,
Desegregation in the Southern and Border States 1965-66, p. l.
22 U. S., et al. v. Jefj. County Bd. oj Educ., et al.
the percen tage doubled, reach ing 2.25. F o r the 1965-66
school y ear, this tim e because of HEW Guidelines,
the percen tage reached 6.01 per cent. In 1965-66 the
en tire region encom passing the Southern and border
states h ad 10.9 per cent of th e ir N egro children in
school w ith w hite ch ildren; 1,555 b irac ial school dis
tric ts out of 3,031 in the Southern and border states
w ere still fully seg regated ; 3,101,043 N egro children
in the region a ttended all-N egro schools. D espite the
im petus of the 1964 Act, the s ta tes of A labam a, Loui
siana, and M ississippi, still had less th an one p er cent
of th e ir N egro enro llm ent attend ing schools with
white students.®^
The dead hand of the old p ast and the closed f is t of
the recen t past account for som e of the slow prog
ress. There a re o ther reasons—as obvious to Con
gress as to courts. (1) Local loyalties com pelled
school officials and elected officials to m ake a public
record of the ir unw illingness to act. But even school
au thorities willing to ac t have m oved slowly be
cause of un certa in ty as to the scope of th e ir duty to
ac t affirm atively . This is a ttrib u tab le to (a) a m is
placed re liance on the Briggs d ictum th a t the Consti-
tuition “does not require integration”,®* (b) a misun
derstanding of the Brown II m andate , desegregate
with “due deliberate speed”,®* and (c) a mistaken no-
3̂ Ibid.; see footnote 3; Appendix B, Rate of Change and Status
of Desegregation.
38 See Section III A of this opinion.
39 In Davis v. Board of School Commissioners of Mobile County,
5 Cir. 1966, 364 F.2d 896, 898, Judge Tuttle, for the Court, said:
“This is the fourth appearance of this case before this court. This
present appeal, coming as it does from an order the trial
court entered nearly eighteen months ago, on March 31, 1965,
points up, among other things, the utter impracticability of a
U. S., et al. V. Jeff. County Bd. of Educ., et al. 23
tion th a t tra n s fe rs under the P upil P lacem en t Law s
satisfy desegregation requirements.^® (2) Case by
case developm ent of the law is a poor sort of m edium
for reasonably p rom pt and uniform desegregation.
There a re n a tu ra l lim its to effective legal action.
Courts cannot give advisory opinions, and the d isci
plined exercise of the jud icia l function p roperly m akes
courts re lu c tan t to m ove fo rw ard in an a rea of the
continued exercise by the courts of the responsibility for super
vising the manner in which segregated school systems break out
of the policy of complete segregation into gradual steps of com
pliance and towards complete compliance with the constitutional
requirements of Brown v. Board of Education, 347 U.S. 483. One
of the reasons for the impracticability of this method of oversee
ing the transitional stages of operations of the school boards
involved is that, under the Supreme Court’s ‘deliberate speed’
provisions, it has been the duty of the appellate courts to interpret
and reinterpret this language as time has grown apace, it now
being the twelfth school year since the Supreme Court’s decision.”
40 “The pupil assignment acts have been the principal obstacle
to desegregation in the South.” U. S. Comm, on Civil Rights,
Civil Rights U.S.A.—^Public Schools, Southern States 15, 1962.
See Note, The Federal Courts and Integration of Southern
Schools: Troubled Status of the Pupil Placement Acts, 62 Colum.
L. Rev. 1448, 1471-73 (1962); Bush v. Orleans Parish School
Board, 5 Cir. 1962, 308 F.2d 491. Such laws allow care
fully screened Negro children, on their application, to transfer
to white schools from the segregated schools to which the Negroes
were initially unconstitutionally assigned. Often, even after six
to eight years of no desegregation, these transfers were limited
to a grade a year. When this law first came before us we held
it to be unconstitutional. Bush v. Orleans Parish School Board,
E. D.La. 1956, 138 F. Supp. 337, af f d 242 F.2d 156, cert, den’d 354
U.S. 921 (1957). Later, in a narrowly focused opinion, we held
that the Alabama version was constitutional on its face. Shut-
tlesworth v. Birmingham Board of Education, N.D.Ala. 1958, 162
F. Supp. 372, aff’d per curiam, 358 .U.S. 101 (1958). As
long ago as 1959 and 1960 this Court disapproved of such acts as a
reasonable start toward full compliance. Gibson v. Board of
Public Instruction of Dade County, 272 F.2d 763; Mannings v.
Board of Public Instruction of Hillsborough County, 277 F.2d 370.
See also Bush v. Orleans Parish School Board, 5 Cir. 1961, 308
F.2d 491; Evers v. Jackson Municipal Separate School District, 5
Cir. 1964, 328 F.2d 408. *‘[T]he entire public knows that in fact
[the Louisiana law] . . . is being used to maintain segregation.
. . . It is not a plan for desegregation at all.” Bush v. Orleans
Parish School Board, 308 F. 2d at 499-500.
24 17. S., et al. v. Jeff, County Bd. of Educ., et al.
law bordering the p e rip h ery of the jud ic ia l domain.
(3) The con tem pt pow er is ill-suited to serve as the
chief m eans of enforcing desegregation . Judges nat
u ra lly shrink fro m using it ag a in s t citizens willing
to accep t the thank less, painful responsib ility of se rv
ing on a school board.'*^ (4) School desegregation
p lans a re often woefully inadequate ; they ra re ly p ro
vide n ecessa ry detailed instructions and specific an
swers to administrative problems.^^ And most judges
do not have sufficient com petence—they a re not
educato rs or school ad m in is tra to rs—to know the rig h t
questions, m uch less the rig h t answ ers. (5) B ut one
reason m ore th an any o ther has held back deseg re
gation of public schools on a large scale. This has
been the lack, until 1964, of effective congressional
Bush V. Orleans Parish School Board is an example.
The board was plagued by bundles of Louisiana statutes
aimed at defeating desegregation. There were five extra
sessions of the Louisiana legislature in 1960. After the School
Board had for three years failed to comply with an order to sub
mit a plan, the district judge wrote one himself. The trial judge
simply said: “All children [entering New Orleans public schools
. . . may attend either the formerly all white public schools
nearest their homes, or the formerly all Negro public schools
nearest their homes, at their option. B. Children may be trans
ferred from one school to another, provided such transfers are
not based on race”. 204 F.Supp. 568; 571-72.
For example, the order of the able district judge in Bush.
See footnote 41. Judge Bohanon underscored this point in
Dowell V. School Board of Oklahoma City Public Schools, W.D.Okla.
1965, 244 F. Supp. 971, 976: “The plan submitted to this Court
. . . is not a plan, but a statement of policy. School desegrega
tion is a difficult and complicated matter, and, a s . the record
shows, cannot be accomplished by a statement of policy. U De
segregation of public schools in a system as large as Oklahoma
City requires a definite and positive plan providing definable
and ascertainable goals to be achieved within a definite time
according to a prepared procedure and with responsibilities clearly
designated.”
U. S., et al. V. Jeff. County Bd. of Educ., et al. 25
statu to ry recognition of school desegregation as the
law of the land.'^®
“Considerable p rog ress has been m ade . . . N ever
theless, in the la s t decade it has becom e increasingly
clear th a t p rogress has been too slow and that nation
al legislation is requ ired to m eet a national need
which becomes ever more obvious.” *̂ Title VI of the
Civil R ights Act of 1964, therefore, w as not only ap
propriate and proper legislation under the T hirteenth
and F ourteen th A m endm ents; it w as n ecessary to
The Civil Rights Act of 1964 had its direct genesis in Presi
dent Kennedy’s message to Congress of June 19, 1963, urging
passage of an omnibus civil rights law. He noted: “In the con
tinued absence of congressional action, too many state and local
officials as well as businessmen will remain unwilling to accord
these rights to all citizens. Some local courts and local mer
chants may well claim to be uncertain of the law, while those
merchants who do recognize the justice of the Negro’s request
(and I believe these constitute the great majority of merchants.
North and South)'will be fearful of being the first to move, in
the face of official customer, employee, or competitive pressures.
Negroes, consequently, can be expected to continue increasingly
to seek the vindication of these rights, through organized direct
action, with all its potentially explosive consequences, such as we
have seen in Birmingham, in Philadelphia, in Jackson, in Boston,
in Cambridge, Md., and in many other parts of the country. H In
short, the result of continued Federal legislative inaction will be
continued, if not increased, racial strife—causing the leadership
on both sides to pass from the hands of reasonable and responsible
men to the purveyors of hate and violence, endangering domestic
tranquillity, retarding our nation’s economic and social progress
and weakening the respect with which the rest of the world re
gards us. No American, I feel sure, would prefer this course of
tension, disorder, and division—and the great majority of our
citizens simply cannot accept it.’’ H.Doc. 124, 88th Cong. 1st
Sess. June 20, 1963, Rep. Emanuel Celler, Chairman of the House
Judiciary Committee, introduced H.R. 7152 embodying the Presi
dent’s proposals. The same day Senator Mike Mansfield intro
duced a similar bill, S. 1731. H.R. 7152-S.1731, as amended, be
came the Civil Rights Act of 1964.
H. Rep. No. 914, 88th Cong., 1st Sess.
26 U. S., et al. v. Jeff. County Bd. of Educ., e t al.
rescue school desegregation from the bog in which
it had been trapped for ten years.*®
The Civil R ights Com m ission, doubtless be tte r able
th an any other au thority to un d ers tan d the signifi
cance of the Civil R ights Act of 1964, had th is to say
about Title VI:
“ This s ta tu te hera lded a new era in school
desegregation . . . M ost significantly . . .
F edera l pow er was to be b rought to b ear in
a m an n er w hich prom ised speed ier and m ore
su b stan tia l desegregation than had been
achieved through the vo lun tary efforts of
school boards and d istric t-by-d istric t litig a
tion. . . . D uring fiscal y e a r 1964, $176,546,992
w as d istribu ted to S tate and local school
agencies in the 17 Southern and border States.
The passage of the E lem en ta ry and Second
a ry E ducation A ct of 1965 added an addition
al appropria tion of $589,946,135 for allocation
to the 17 Southern and border S ta tes for fiscal
y e a r 1966. W ith funds of such m agnitude at
s take, m ost school system s would be placed
a t a serious d isadvan tage by te rm ina tion of
Federal assistance.”*®
“It was the Congressional purpose, in Title VI of the Civil
Rights Act of 1964, to remove school desegregation efforts from
the courts, where they had been bogged down for more than a
decade. Unless the power of the Federal purse is more effectively
utilized, resistance to national policy will continue and, in fact,
will he reinforced.” Report of the White House Conference “To
Fulfill These Rights”, June 1-2, 1966, p. 63.
Rep. U. S. Comm, on Civil Rights, Survey of School De
segregation in the Southern and Border States—1965-66, p. 2.
U. S., et al. V. Jeff. County Bd. of Educ., e t al. 27
B. The congressional m andate , as em bodied in
the Act and as ca rried out in the HEW G uidelines,
does not conflict w ith the p roper exercise of the jud i
cial function or w ith the doctrine of separation of
powers. It does how ever profoundly affect construc
tive use of the jud ic ia l function w ithin the lawful
scope of sound jud ic ia l discretion. W hen C ongress
declares national policy, the duty the two other coor
dinate branches owe to the N ation requ ires that,
within the law , the jud ic ia ry and the executive re
spect and c a rry out th a t policy. H ere the Chief E x
ecutive acted p rom ptly to bring about uniform s tan d
ards for desegregation . The jud icia l b ran ch too
should cooperate w ith Congress and the executive
in m aking adm in istra tive agencies effective in stru
m ents for supervising and enforcing desegregation
of public schools. Ju stice H arlan F. Stone expressed
this well;
“ L egisla tu res c rea te adm in istra tive agencies
w ith the desire and expectation th a t they will
perfo rm efficiently the tasks com m itted to
them . That, a t least, is one of the contem
p la ted social advan tages to be w eighed in
resolving doubtful construction. Its a im is so
obvious as to- m ake unavoidable the conclu
sion th a t the function w hich courts a re called
upon to perform , in carry ing into operation
such adm in istra tive schem es, is constructive,
not destructive, to m ake adm in istra tive agen
cies, w henever reasonab ly possible, effective
28 U. S., et al. v. Jeff. County Bd. of Educ., et al.
in s trum en ts for law enforcem ent, and not to
destroy them .” ’̂'
In an analogous situation involving enforcem ent of
the F a ir Labor S tandards Act, the Suprem e Court
has said, “ Good adm in istra tion of the Act and good
jud icia l adm in is tra tio n alike requ ire th a t the stand
a rd s of public enforcem ent and those for d e term in
ing p riv a te righ ts shall be a t v a rian ce only w here
justified by very good reaso n s .” Skidm ore v. Swift
& Co., 1944, 323 U. S. 134, 65 S.Ct. 161, 89 L .E d. 124.
In an appeal from, the d is tric t co u rt’s denial of an
injunction to enforce labor s tan d ard s under the A ct
th is Court has pointed out:
“ . . . this proceeding is only superficially r e
la ted to a su it in equity for an injunction to
p ro tect in te rests jeopardized in a p rivate con
troversy . The public in te re s t is jeopardized
here. The in junctive p rocesses a re a m eans
of effecting general com pliance w ith national
Stone, The Common Law in the United States, 50 Harv. L.
Rev. 1, 18 (1936). In a similar vein, writing for the Court,
Justice Stone has said: “ . . . in construing a statute setting
up an administrative agency and providing for judicial review of
its action, court and agency are not to be regarded as wholly in
dependent and unrelated instrumentalities of justice, each acting
in the performance of its prescribed statutory duty without re
gard to the appropriate function of the other in securing the
plainly indicated objects of the statute. Court and agency are
the means adopted to attain the prescribed end, and so far as
their duties are defined by the words of the statute, those words
should be construed so as to attain that end through co-ordinated
action. Neither body should repeat in this day the mistake made
by the courts of law when equity was struggling for recognition
as an ameliorating system of justice; neither can rightly be re
garded by the other as an alien intruder, to be tolerated if must
be, but never to be encouraged or aided by the other in the at
tainment of the common aim.” United States v. Morgan, 1939,
307 U. S. 183, 191, 59 S. Ct. 795, 799, 83 L.Ed. 1211.
U. S., et al. V. Jejf. County Bd. of Educ., et al. 29
policy as expressed by Congress, a public
policy judges too m ust c a rry out—actu a ted by
the sp irit of the law and not begrudgingly as
if it w ere a newly im posed fia t of a p resid i
um . . . . Im plicit in the defendan ts’ non-com
pliance, as we read the briefs' and the record,
is a certa in underlying, not unna tu ra l, Acton-
ian d istaste for national legislation affecting
local activities. B ut the F a ir Labor S tandards
Law has been on the books for tw enty-three
years. The A ct estab lishes a policy for all of
the country, and for the courts as well as for
the agency requ ired to adm in ister the law.
M itchell V. Pidcock, 5 Cir. 1962, 299 F.2d 281,
287, 288.
C. We m ust therefore cooperate w ith Congress
and the Executive in enforcing Title VI. The problem
is: A re the HEW G uidelines w ithin the scope of
the congressional and executive policies em bodied
in the Civil R ights Act of 1964. We hold th a t they are.
The G uidelines do not p u rp o rt to be a ru le or reg u
lation or order. They constitute a s ta tem en t of policy
under section 80.4(c) of the HEW R egulations is
sued a fte r the P resid en t approved the regulations
D ecem ber 3, 1964. HEW is under no statu tory com
pulsion to issue such sta tem en ts . I t is, how ever, of
m anifest advan tage to school boards throughout the
country and to the general public to know the c rite ria
the C om m issioner uses in determ ining w hether a
30 17. S., et al. v. Jeff. County Bd. of Educ., et al.
school m eets the req u irem en ts for eligibility to re
ceive financial assistance .
The G uidelines have the vices of all ad m in is tra
tive policies estab lished un ila te ra lly w ithout a h e a r
ing. B ecause of these vices the courts, as the school
boards point out, have set lim its on adm in istra tive
regulations, ru lings, policies, and p rac tices: an
agency construction of a s ta tu te cannot m ake the
law ; it m ust conform to the law and be reasonable.
To some extent the adm in istra tive w eight of the dec
la ra tions depends on the p lace of such declarations
in the h ie ra rch y of agency pronouncem ents extending
from regu lations down to general counsel m em o ran
da and inter-office decisions. See M anhattan General
Electric Company v. Commissioner, 1936, 297 U. S.
129, 56 S.Ct. 397, 80 L .Ed. 528; United States v. Ben
nett, 5 Cir. 1951, 186 F.2d 407; United States v. Mis
sissippi Chemical Corporation, 5 Cir. 1964, 326 F.
2d 569; Chattanooga Auto Club v. Commissioner, 6
Cir. 1950, 182 F.2d 551.
These and sim ila r decisions a re not inconsistent
w ith the co u rts’ giving g re a t w eight to the HEW ’s
policy s ta tem en ts on enforcem ent of Title VI. In
Skidmore v. Sw ift & Co., 323 U.S. 134, an action was
com m enced in a fed era l d is tric t court by em ployees
of Swift & Co. to recover w ages a t the overtim e ra te s
p rescrib ed by the F a ir Labor S tandards Act (52 Stat.
1060, et seq.) for certa in serv ices which they had
perform ed. At issue w as w hether these serv ices con
stitu ted “ em ploym ent” w ithin the m eaning of sec-
U. S., et al. V. Jefj. County Bd. of Educ., et al. 31
tion 7 (a) of th a t act. The d is tric t court and th is
Court, on appeal, decided th is issue ag a in st the
plaintiffs. The Suprem e Court reversed . A fter ac
knowledging (323 U.S. a t 137) th a t the s ta tu te had
g ran ted no ru le-m aking pow er to the W age and H our
A dm in istra to r w ith resp ec t to the issue a t hand
( “ [ijn stead , it put th is responsibility on the
courts”), the Court referred to an “Interpretative
B ulletin” issued by the A dm in istra to r containing his
in terp re ta tion of the s ta tu to ry ph rase in question. The
Suprem e Court said:
“ We consider th a t the rulings, in terp re ta tions
and opinions of the A dm in istra to r under th is
Act, while not controlling upon the courts by
reason of th e ir authority , do constitute a body
of experience and inform ed judgm en t to
w hich courts and litigan ts m ay properly re
so rt for guidance. The w eight of such a judg
m en t in a p a rtic u la r case will depend upon
the thoroughness evident in its consideration,
the valid ity of its reasoning, its consistency
w ith ea rlie r and la ter pronouncem ents, and
all those fac to rs which give it pow er to p e r
suade, if lacking power to control.” ®̂
The Supreme Court also stated in Skidmore, 323 U. S. at 139-
40: “The rulings of this Administrator are not reached as a re
sult of hearing adversary proceedings in which he finds facts
from evidence and reaches conclusions of law from findings of
fact. They are not, of course, conclusive, even in the cases with
which they directly deal, much less in those to which they apply
only by analogy. They do not constitute an interpretation of the
Act or a standard for judging factual situations which binds a
district court’s processes, as an authoritative pronoimcement of
a higher court might do. But the Administrator’s policies are
made in pursuance of official duty, based upon more specialized
32 U. S., et al. v. Jejf. County Bd. of Educ., et al.
The Suprem e Court found th a t the low er courts had
misunderstood their function vis-a-vis the In te rp reta
tive Bulletin and remanded the case. See also,
United States v. Am erican Trucking Association,
1940, 310 U. S. 543, 549; Goldberg v. Servas, 1 Cir.
1961, 294 F.2d 841, 847.
The national im portance of the HEW G uidelines,
the evident thoroughness w ith which these s tan d ard s
were p rep a red and fo rm ulated by educational au tho r
ities, the s im ila rity of the HEW stan d a rd s to the
s tandards th is Court and the Suprem e Court have
established, and the m anifest effort of the Office of
E ducation to be faithfu l to the congressional objec
tives of the 1964 Civil R ights Act entitle the HEW
G uidelines to g re a te r w eight by the courts th an run-
of-the-mine policy statem ents low in the h ie ra rchy
of adm in istra tive declarations.
Courts therefo re should cooperate v/ith the congres
sional-executive policy in favor of desegregation and
against aiding segregated schools.
D. B ecause our approval of a p lan establishes
eligibility for federal aid, our s tan d a rd s should not
be low er than those of HEW. Unless jud ic ia l stand-
experience and broader investigations and information than is
likely to come to a judge in a particular case. They do deter
mine the policy which will guide applications for enforcement by
injunction on behalf of the Government. Good administration of
the Act and good judicial administration alike require that the
standards of public enforcement and those for determining private
rights shall be at variance only where justified by very good
reasons.” (Emphasis added.)
17. S., et al. V. Jeff. County Bd. of Educ., et al. 33
ards a re substantia lly in accord w ith the Guidelines,
school boards previously resistan t to desegregation
will re so rt to the courts to avoid com plying w ith the
m inim um stan d ard s HEW prom ulgates for schools
tha t desegregate voluntarily . As we said in Singleton
I:
“ If in som e d istric t courts jud ic ia l guides for
approval of a school desegregation p lan a re
m ore accep tab le to the com m unity or sub
stantially less burdensom e than H.E.W .
guides, school boards m ay tu rn to the federal
courts as a m eans of c ircum venting the
H.E.W . requ irem en ts for financial aid. In
stead of a uniform policy re la tive ly easy to
adm in ister, both the courts and the Office of
E ducation would have to struggle w ith indi
vidual school system s on ad hoc basis. If
judicial s tan d ard s a re low er, re ca lc itran t
school boards in effect will receive a p re
m ium for recalc itran ce; the m ore the in tran
sigence, the b igger the bonus.” 348 F.2d a t
731.
In Kem p v. Beasley, 8 Cir. 1965, 352 F.2d 14, the
Court concluded:
“ [HEW] s tan d ard s m ust be heavily relied
upon. . . . Therefore, to the end of p rom ot
ing a degree of uniform ity and discouraging
re lu c tan t school boards from reap ing a bene
fit from the ir re luctance the courts should
endeavor to m odel th e ir s tan d ard s a fte r those
34 U. S., et al. v. Jeff. County Bd. of Educ., et al.
prom ulgated by the executive.’
19.
352 F.2d a t 18,
C oncurring, Judge Larson, speaking from his expe
rience as a d is tric t judge, pointed out th a t school
boards w hich do not a c t vo luntarily re ta rd the deseg
regation process to the d isadvan tage of the individ
ual’s constitu tional righ ts: “ Ju d ic ia l c rite ria ” ,
therefo re , “ should ‘p robably be m ore s trin g en t” than
HEW G uidelines:
“A school board which fails to a c t voluntarily
forces Negro students to solicit a id from the
courts. This not only shifts the burden of in i
tia tin g desegregation , but inevitab ly m eans
delay in tak ing the f irs t step. As Judge Gib
son observes, we a re not here concerned w ith
regu lating the flow of F ed e ra l funds. Our task
is to safeguard basic constitu tional rights.
Thus, our s tan d ard s should be directed to
w ard full, com plete, and final realization of
those r ig h ts .” 352 F.2d a t 23.
The announcem ent in HEW regulations tha t the
Com m issioner would accep t a final school desegrega
tion o rder as proof of the school’s eligibility for
fed era l aid p rom pted a num ber of schools to seek
refuge in the fed e ra l courts. M any of these had not
moved an inch toward desegregation.^® In Louisiana
The following statement appeared in the Shreveport 'Journal
for July 1, 1965: “The local school boards prefer a court order
over the voluntary plan because HEW regidations governing the
voluntary plans or compliance agreements demand complete
desegregation of the entire system, including students, faculty,
staff, lunch workers, bus drivers, and administrators, whereas
the court-ordered plans can be more or less negotiated with the
judge.” This was not news to the Court.
U. S., et al. V. Jeff. County Bd. of Educ., et al. 35
alone tw enty school boards obtained quick decrees
providing for desegregation according to p lans g re a t
ly at variance with the Guidelines.®®
We shall not p e rm it the courts to be used to destroy
or dilute the effectiveness of the congressional policy
expressed in Title VI. There is no bonus for foot-
dragging.
E. The experience th is Court has had in the la st
ten y ears argues strongly for uniform stan d ard s in
court-supervised desegregation.
The firs t school case to reach this Court a fte r
Brown v. Board of Education was Brown v. Rippey,
5 Cir. 1956, 237 F.2d 796. Since then we have review ed
41 other school cases, many more than once.® ̂ The
We may also expect a number of school desegregation. suits
to be filed in Alabama. The legislature has enacted a statute de
claring the Guidelines null and void in Alabama and prohibiting
school officials signing any agreement to comply. The bill pro
vides that any agreement or assurance of compliance with the
guidelines already in effect “is null and void and shall have no
binding effect.” H.B. 446, approved September 2, 1966.
The brief of the United States gives the following figures:
“1. Case Load
Number of
Cases
Number of
Orders Entered
District
Court
128
513
Court of
Appeals
42
76
Supreme
Court
10
2. Frequency of Appeals
to this Court
Number of Cases With One or More Appeals 42
Number of Cases With Two or More Appeals 21
Number of Cases With Three or More Appeals 8
Number of Cases With Four or More Appeals 4
Number of Cases With Five or More Appeals 2
In Bush V. Orleans Parish School Board the complaint was
filed September 5, 1952. Bush’s peregrinations through the
courts are reported as follows: 138 F.Supp. 336 (3-
judge 1956) motion for leave to file petition for man
damus denied, 351 U. S. 948 (1956); 138 F. Supp. 337
36 U. S., et al. v. Jeff. County Bd. of Educ.j et al.
d is tric t courts in th is c ircu it have considered 128
school cases in the sam e period. R eview ing these
cases im poses a taxing, tim e-consum ing burden on
the courts not reflected in s ta tistics . An analysis of
the cases shows a wide lack of uniform ity in areas
w here th e re is no good reason for varia tio n s in the
schedule and m anner of desegregation.®^ In some
cases there has been a substan tia l tim e-lag betw een
th is C ourt’s opinions and the ir application by the dis
trict courts.®* In certain cases—which we consider un
necessary to cite—there has even been a m an ifest
v a riance betw een th is C ourt’s decision and a la te r
d is tric t court decision. A num ber of d is tric t courts
still m istaken ly assum e th a t tran sfe rs under Pupil
P lacem en t Laws—superim posed on unconstitu tional
in itia l assignm ent—satisfy the req u irem en ts of a de
segregation plan. The lack of c lear and uniform
s tan d a rd s to govern school boards has tended to put
a prem ium on delaying actions. In sum , the lack of
uniform standards has re ta rd ed the developnaent of
(1956) , aff’d 242 F.2d 156 (1957), cert, den’d, 354 U.S. 921
(1957) ; 252 F.2d 253, cert, den’d 356 U.S. 960 (1958); 163 F.
Supp. 701 (1958), aff’d, 268 F.2d 78 (1959); 187 F. Supp. 42 (3-
judge 1960), motion to stay den’d, 364 U.S. 803 (1960), aff’d
365 U.S. 569 (1961); 188 F. Supp. 916 (3-judge 1960), motion
for stay denied, 364 U.S. 500 (1960), aff’d, 365 U.S. 569 (1961);
190 F. Supp. 861 (3-judge 1960), aff’d 366 U.S. 212 (1961); 191
F. Supp. 871 (3-judge 1961), aff’d 367 U.S. 908 (1961); 194 F.
Supp. 182 (3-judge 1961), aff’d, 367 U.S. 907 (1961), 368 U.S. 11
(1961); 204 F. Supp. 568 (1962); 205 F. Supp. 893 (1962), aff’d
in part and rev’d in part, 308 F.2d 491 (1962); 230 F. Supp. 509
(1963).
5- Of the 99 court-approved freedom of choice plans .in this
circuit, 44 do not desegregate all grades by 1967; 78 fail to pro
vide specific, non-racial criteria for denying choices; 79 fail to
provide any start toward faculty desegregation; only 22 provide
for transfers to teke courses not otherwise available; only 4 in
clude the 8ingl§tcm transfer rule.
See footnote 39.
V. S., et al. V. J^ff. County Bd. of EdUc., et al. 37
local responsibility for the adrh in istre tion 6f Schools
w ithout reg a rd to race or color. W hat w as tru e of an
earlie r A thens and an ea rlie r Rom e is tru e today: In
Georgia, for exam ple, there should not be one law
for Athens and another law for Rom e.
Before HEW published its Guidelines, this Court
had a lread y estab lished guidelines for school deseg
regation: to encourage uniform ity at the d is tric t
court level and to conserve judicia l effort at both
the d is tric t court and appellate levels. We did so by
m aking detailed suggestions to the d is tric t courts.
Lockett V. Board of Education of Muscogee County,
5 Cir. 1964, 342 F.2d 225; Bivens v. Board of Educa
tion for Bihh County, 5 Cir. 1965, 242 F.2d 229; A rm
strong V. Board of Education of B irm ingham , 5 Cir.
1964, 333 F.2d 47; Davis v. Board of School Com mis
sioners of Mobile County, 5 Cir. 1964, 333 F.2d 53;
Stell V. Savannah-Chatham County Board of Educa
tion, 5 Cir. 1964, 333 F.2d 55; Gaines v. Dougherty
County Board of Education, 5 Cir. 1964, 334 F.2d 983.
In other a re a s of the law involving rec u rre n t p rob
lem s of regional or national in terest, th is Court
has also found guidelines advantageous. In United
States V. Ward, 5 Cir. 1965, 347 F.2d 795, and United
States V. Palm er, 5 Cir. 1966, 356 F.2d 951, suits to
enjoin re g is tra rs of voters fro m discrim inating
against N egroes, we a ttached identical proposed
decrees for the guidance of district courts.® ̂ See also
In Ward the Court said: “[Glood administration suggests
that the proposed decree be indicated by an Appendix, not be
cause of any apprehenmoh that the conscientious District Judge
would hot faithfully impose every condition so obviously im
plied, but rather because of factors bearing upon administration
38 U. S., et al. v. Jeff. County Bd. of Educ., et al.
Scott V. Walker, 5 Cir. 1966, 358 F.2d 561, one of a
series of cases on the exclusion of N egroes from
ju ries.
F . We sum m arize the C ourt’s policy as one of
encouraging the m axim um legally perm issib le cor
re la tion betw een judicial s tan d a rd s for school deseg
rega tion and HEW G uidelines. This policy m ay be ap
plied w ithout fed era l co u rts’ abdicating the ir p roper
jud ic ia l function. The policy com plies w ith the Su
p rem e C ourt’s increasing em phasis on m ore speed
and less deliberation in school desegregation.®® It is
consistent w ith the ju d ic ia ry ’s duty to the N ation to
cooperate w ith the two other coordinate b ranches of
governm ent in carry ing out the national policy ex
p ressed in the Civil R ights A ct of 1964
III.
The defendants contend that the G uidelines requ ire
integration, not ju s t desegregation; th a t school boards
have no affirm ative duty to in teg ra te . They say th a t
itself. It is not possible, or even desirable, of course to achieve
absolute uniformity. But in this ever growing class of cases which
have their genesis in unconstitutional lack of uniformity as be
tween races, courts within this single circuit should achieve a rela
tive uniformity without further delay.” 349 P.2d at 805.
“There has been entirely too much deliberation and not enough
speed in enforcing the constitutional rights which we held in
Brown v. Board of Education had been denied Prince Edward
County Negro children.” Griffin v. County School Board of
Prince Edward County, 1964, 377 U.S. 218, 229, 84 S.Ct. 1226,
12 L.Ed.2d 256, 264. See also Rogers v. Paul and Bradley v.
School Board of the City of Richmond, 1965, 382 U.S. 103, 86
S.Ct. 224, 15 L.Ed.2d 187. “Brown never contemplated that the
concept of ‘deliberate speed’ would countenance indefinite delay
in elimination of racial barriers in schools. . . . ” (Goldberg, J.)
Watson V. City of Memphis, 1963, 373 U.S. 526, 530, 83 S.Ct.
1314, 1317, 10 L.Ed.2d 529, 534.
U. S., et al. V. Jeff. County Bd. of Educ., et al. 39
in this re sp ec t the G uidelines are con trary to the p ro
visions of the Civil R ights A ct of 1964 and to constitu
tional in ten t expressed in the Act. This argum ent
rests on nothing that the United States Supreme
Court held or said in Brown or in any other case.
I t re s ts on two glosses on Brown: the opinions in
Briggs v. Elliott, E.D .S.C. 1955, 132 F . Supp. 776 and
Bell V. School City of Gary, N.D. Ind. 1963, 213 F.
Supp. 819, aff’d, 7 Cir. 1963, 324 F.2d 209. Briggs,
decided only six w eeks a fte r Brown II, is one of the
earliest cases in th is field of law. The portion of the
opinion m ost quoted is pure dictum . Briggs did not
p a rap h rase the law as the Suprem e Court s ta ted it
in Brown or as the law m ust be s ta ted today in the
light of Aaron v. Cooper, Rogers v. Paul and Bradley
V. School Board. These and other- decisions com pel
s ta tes in th is c ircu it to take a ffirm ative action to r e
organize th e ir school system s by in teg ra ting the stu
dents, facu lties, facilities, and activities. As for Bell,
it is inapplicable to cases in th is circuit, a ll of which
involve fo rm erly de ju re seg rega ted schools. Al
though the leg islative h isto ry of the s ta tu te shows
tha t the floor m an ag ers for the Act and other m em
bers of the Senate and House cited and quoted these
two opinions they did so w ithin the context of the
problem of de facto segregation. A study of the
Guidelines shows th a t the HEW standards a re w ithin
the rationale of Brown and the congressional objec
tives of the Act.
A. Briggs, an action to desegregate the public
schools in C larendon County, South C arolina, w as one
40 17. S., et al. v. Jeff. County Bd. of Educ., et al.
of th e school cases consolidated w ith Brown v.
B odtd of Education of Topeka, Kansas. On rem and ,
a d istinguished court (P a rk e r and Dobie, C ircuit
Judges, and T im m erm an , D istric t Judge) fe lt th a t it
w as im p o rtan t to “ point out ex ac tly w hat th e Su
prem e Court has decided and w hat it has not de
c ided .” The C ourt sa id ;
“ I t has no t decided th a t the fed e ra l courts
a re to take over o r reg u la te the public
schools of the s ta tes . I t h as not decided th a t
th e s ta tes m u st m ix persons of different
ra c es in the schools or m u st req u ire th em to
a tten d schools or m u st deprive th em of the
r ig h t of choosing the schools they attend .
W hat it has decided, and a ll th a t it h a s de
cided, is th a t a state m ay not deny to any
person on account of race the rig h t to a ttend
any school th a t it m ain ta ins. . . . The Con
stitution, in other words, does not require
integration. It m erely forbids segregation.”
132 F . Supp. a t 777.
Ten y ears la te r C larendon County schools w ere still
to ta lly segregated.®®
This Court and other courts, gratu itously for the
m ost p a rt, have often p a ra p h rase d or quoted w ith
approval the Briggs dictum.®^ It is not surprising,
See Branson v. Board of Trustees of School District No. 1, 4
Cir. 1962, 311 F.2d 107; Southern Education Reporting Service,
Statistical Summary, Nov. 1964, p. 46.
S’' The Fifth Circuit cases are: Borders v. Rippy, 1957, 247
F.2d 268, 271; Boson v. Rippy, 1960, 285 F.2d 43, 48; Lockett v.
Board of Education of Muscogee County, 5 Cir. 1965, 342 F.2d 225;
Avery v. Wichita Falls Independent School District, 1956, 241 F.2d
230, 233; Stell v. Savannah-Chatham County Board of Education,
1964, 333 F.2d 55, 59; Evers v. Jackson, 1964, 328 F.2d 408; cf.
U. S., et al. V. Jejf. County Bd. of Educ., et al. 41
therefore, th a t Briggs p rom pted P upil P lacem en t
Laws, the m ost effective technique for perpetuating
school segregation . And it is not surprising th a t
school officials—the Briggs d ictum dinned into the ir
ears for a decade—have not now faced up to facu lty
integration. However, as th is C ourt’s experience in
handling school cases increased , the Court becam e
aw are of the fru stra tin g effects of Briggs. In Single-
ton I we re fe rre d to the d ic tum as “ inconsistent with
Brown [II] and the la te r developm ent of decisional
and sta tu to ry law in the a re a of civil r ig h ts .” 348 F.
2d a t 730 n.5. In Singleton II we called it an “ over
sim plified” construction of Brown I. We added: “ The
Constitution forbids unconstitu tional s ta te action in
the form of seg rega ted .facilities, including seg re
gated public schools. School au thorities, therefore ,
are under the constitutional com pulsion of furnishing
a single, in teg ra ted school sy stem .” 355 F.2d a t 369.
Cohen v. Public Housing Administration, 1958, 257 F.2d 73 (public
housing); City of Montgomery v. Gilmore, 1960, 277 P.2d 364
(public parks). For a list of cases in other circuits see foot
notes 10 and 11 in Blocker v. Board of Education of
Manhasset, E.D.N.Y. 1964, 226 F. Supp. 208, 220. In Blocker Judge
Zavitt notes that “the construction draws continuing sustenance
through a process in which each case relies upon a preceding one;
it would appear that the ultimate and solitary source is this
dictum in Briggs v. Elliott.” 226 F. Supp. at 220.
In Borders v. Rippy, 5 Cir. 1957, 247 F.2d 268, the Court
reversed the judgment of the district court dismissing the com
plaint and directed the entry of a judgment enjoining the defend
ants “from requiring segregation of the races in any school under
their supervision”. On remand, the district court entered an order
enjoining the defendants “from requiring or permitting segrega
tion of the races in any school under their supervision”. On the
second appeal, in Rippy v. Borders, 5 Cir. 1957, 250 F.2d 690, 692,
the Court again reversed the district court, stating: “We have
emphasized the words ‘or permitting segregation of the races’
in the district court’s order because that expression might in
dicate a serious misconception of the applicable law and of the
mandate of this Court. Our mandate (footnote 1, supra) had
been carefully limited so as to direct the entry of a judgment
restraining and enjoining the defendants ‘from requiring segrega-
42 U. S., et al. v. Jeff. County Bd. of Educ., et al.
O ther fed era l courts have d isapproved of the Briggs
dictum.®^
tion of the races in any school under their supervision’ (emphasis
supplied). Likewise in our opinion, we had pointed out that is
only racially discriminatory segregation in the public schools which
is forbidden by the Constitution.”
In Kemp v. Beasley the Eighth Circuit remarked, “The dictum
in Briggs has not been followed or adopted by this Circuit and is
logically inconsistent with Brown.” Blocker v. Board of Education
of Manhasset, E.D.N.Y. 1964, 226 F.Supp. 208, makes a frontal
attack on Briggs. In that case, which concerned segregation
characterized as de jure, Judge Zavitt observed that even where
the Briggs dictum has seemingly been adopted, “it appears to be
in a state of diminishing force, if not outright erosion”, citing
Dillard v. School Board of the City of Charlottesville,
4 Cir. 1962, 308 F.2d 920, cert, denied, 374 U.S. 827
(1963), and McCoy v. Greensboro City Board of Education, 4
Cir. 1960, 283 F.2d 667. The Third Circuit, reversing a
district court’s approval of a year-by-year plan, ignored Briggs:
“if the plan as approved by the court below be not drastically
modified, a large number of the Negro children of Delaware will
be deprived of education in integrated schools, despite the fact
that the Supreme Court has unqualifiedly declared integration to
he their constitutional right.” (Emphasis added.) Evans v.
Ennis, 3 Cir. 1960, 281 F.2d 385, 389, cert, den’d 364 U.S. 933. In
Evans v. Ennis, only three school districts were involved. Never
theless, the court required the district judge to order the State
Board of Education and the State Superintendent of Delaware to
prepare “a plan which will provide for the integration of all grades
of the public school .system of Delaware.” “Eventually”, Judge
Biggs said, “a wholly integrated school system will be effected for
Delaware: ‘wholly integrated’ in the sense that all school children,
whether white or Negro, . . . will attend schools without regard
to race or color.” Sometimes a court’s action in regard to the
school board’s affirmative duty has spoken louder than Briggs’s
words. In Evans v. Buchanan, D.C. Del. 1962, 207 F. Supp. 820,
although the court cited Briggs and stated that the Fourteenth
Amendment “does not contemplate compelling action; rather it is a
prohibition preventing the States from applying their laws un
equally”, the court did compel the school boards to act. The
Court found that the Negro school children who wished to attend
integrated schools were attending an all-Negro school, with an
all-Negro faculty, surrounded by white attendance area. On those
bare facts, the Court found: “The . . . Board as promulgator of the
plan and the State Board of Education as the party having the
ultimate responsibility for administering a nondiscriminatory sys
tem of public education should have the initial burden of coming
forward since a presumption of unconstitutionality arises under
this set of facts.” 207 F. Supp. at 825. (Emphasis
added.) The facts were “highly probative” of intentional
U. S.y et al. V. Jeff. County Bd. of Educ., et al. 43
The Briggs d ictum m ay be explained as a face t of
the F o u rth C ircu it’s now abandoned view th a t F o u r
teenth A m endm ent righ ts a re exclusively individual
rights and in school cases are to be asserted individu
ally a fte r eacii p lain tiff has exhausted s ta te adm in is
trative remedies.®*’ The Court disallowed class suits
because N egro students who had not asked fo r tra n s
fers to w hite schools had not individually exhausted
their rem edies and w ere therefore not sim ilarly s it
uated w ith the plaintiffs. Thus in Carson v. Warlick,
4 Cir. 1956, 238 F.2d 724, Judge John P a rk e r , for
the Court, stated:
“ There is no question as to the rig h t of these
[Negro] school children. . . . They a re to
be adm itted , how ever, as individuals, not as
a class or group; and it is as individuals th a t
th e ir righ ts under the C onstitution a re a s
serted . . . . [The] school board m ust pass
upon individual applications m ade individu
ally to the board. . . . ” 238 F.2d a t 729.
In Covington v. Edwards, 4 Cir. 1959, 264 F.2d 780,
783, the court com m ented th a t “ the County board has
taken no steps to put an end to the p lanned segre-
racial discrimination and the evidence of intent rested
largely with the Board. The Board came forward and showed that
its plan was based on such neutral factors as the safety of the
children, facilities, location, and access roads. The court, however,
held that the Board did not rebut the presumption by showing
that the plan could be justified as rational and nondiscriminatory.
The obviously sophisticated trial judge observed, “In effect,
counsel is asking the States to intentionally gerrymander dis
tricts which may be rational when viewed by acceptable, non-
discriminatory criteria”. Id. at 824.
®® See U. S. Comm, on Civil Rights, Civil Rights U.S.A.—Public
Schools, Southern States (1962), p. 7.
44 17. S., et al. i). Jeff. County Bd. of Educ., et al.
gation” , but still held for the board for fa ilu re of
the p lain tiffs to exhaust th e ir rem ed ies and for filing
the suit as a class action. In a la te r opinion in th is
case, sub.nom . Jef fers v. Whitley, 309 F.2d 621, the
Court found th a t the plain tiffs had failed to estab lish
that they w ere “ denied any constitutional fig h t be
cause of their race or color” . The court observed,
“ It can fa irly be said th a t w hat the children
and th e ir p a ren ts a re still seeking is only a
desegregation of the Conwell County School
System ra th e r than a pro tection of th e ir own
righ ts. . . . ”
The F ourth C ircuit abandoned th is view in Green
V. School Board of the City of Roanoke, 4 Cir. 1962,
304 F.2d 118, holding th a t since ad m in is tra tiv e re m e
dies need not be exhausted, a class suit is proper.
“ [It] would be a lm ost a cruel joke to say th a t
adm in is tra tiv e rem ed ies m ust be exhausted w hen it
is known th a t such exhaustion of rem ed ies will not
te rm in a te the p a tte rn of a rac ia l a ss ig n m en t.” Jack-
son V. School Board of City of Lynchburg, W.D.
Va. 1962, 201 F. Supp. 620. McNeese v. Board of Edu
cation for School D istrict 187, 1963, 373 U. S. 668, 83
S.Ct. 1433, 10 L .Ed.2d 622, put beyond debate the need
to exhaust rem ed ies and the righ t of N egro students
to file a class action. See also Arm strong v. Board of
Education of the City of Birm ingham , 5 Cir. 1963, 323
F.2d 333, cert, denied sub.nom. Gibson v. Harris, 376
U.S. 905 (1964).
17. S., et al. V. Jejj. County Bd. of Educ., et al. 45
In the §ense that an individual pupil’s rig h t upder
the equal pro tection clause is a “ personal and p re s
ep t” rig h t not to be d iscrim inated against by being
segregated,®" the dictum is a cliche. The Fourteenth
A piendm ent provides, “nor shall any s ta te . . . deny
to any person within its ju risd iction the equal p ro
tection of the law s” . The dictumi m ay also be defen
sible, if the Briggs court used the te rm “ in teg ra tion”
to m ean an absolute com m and a t all costs th a t each
and every N egro child a ttend a rac ia lly balanced
school.® ̂ But w hat is wrong about the dictum is more
im portan t th an w hat is righ t about it. W hat is wrong
about Briggs is th a t it d ra ins out of Brown th a t deci-
For example: . the essence of the constitutional right is
that it is a personal one. . . . It is the individual who is
entitled to the equal protection of the laws, and if he is denied
by a common carrier, acting in the matter under the authority of
a state law, a facility or convenience in the course of his journey
which under substantially the same circumstances is furnished to
another traveler, he may properly complain that his constitu
tional privilege has been invaded”. McCabe v. Atchison, T. & S.F.
Ry., 1914, 235 U. S. 151, 161-62, 35 S.Ct. 69, 59 L.Ed. 169.' The
legislative history of the 14th Amendment provides no informa
tion on this point. See Frank and Munro, ̂ The Original Under
standing of Equal Protection of the Laws, 50 Colum. L. Rev. 131
(1950); Biekel, The Original Understanding and the Segregation
Decision, 69 Harv. L. Rev. 1 (1955). But ‘‘the personal nature of
the right to be free from discrimination was declared in order to
make the existence of such right independent of the number of
other members of the same racial group who were victimized by
the discrimination. . . . ” Hartman, The Right to Equal Educa
tional Opportunities as a Personal and Present Right, 9 Wayne
L. Rev. 424, 427 (1963).
What is meant by the statement of “no duty to integrate” is
that a school board “does not have to completely alter bound
aries and to insure that every school district is mixed, even
though some students will have a great distance to travel . . .
[E]ven though the state is not required to integrate fully every
school and child, this does not mean that the state may not have
certain responsibilities to children of a minority race while educat
ing them, the failure to perform which may be imconstitutional”.
Sedler, School Segregation in the North and West: Legal Aspects,
7 St. Louis U.L.J. 228, 251 (1963). See also the discussion of
Barksdale v. Springfield School Comm., at 65-67, infra.
46 U. S., et al. v. Jeff. County Bd. of Educ., et al.
Sion’s significance as a c lass action to secure equal
educational opportunities for N egroes by com pelling
the states to reorganize their public school systems.®^
All four of the orig inal School Segregation cases
w ere class actions and described as such in the
opinions. 347 U. S. a t 455.
We do not m inim ize the im portance of the F o u r
teen th A m endm ent righ ts of an individual, bu t there
Rule 23a, Fed. R. Civ. P., before the recent amendments, was
unclear as to whether a favorable decree applies to members of
the class who do not join in the suit. Compare 3 Moore, Federal
Practice 3434 (2d Ed.) with Chafee, Some Problems in Equity
199-295 (1950). “In dealing with [segregation] cases, courts have
largely disregarded Moore’s classifications, and have indicated
that an injunction would run to the benefit of absentees.” De
velopments in the Law—Multiparty Litigation in the Federal
Courts, 71 Harv. L. Rev. 874, 935 (1958). Citing Brown II, 349
U. S. at 300-301 dictum; Brown I, 347 U. S. at 495 (dictum);
Orleans Parish School Board v. Bush, 5 Cir. 1957, 242 F.2d 156,
165-66 (dictum); Browder v. Gayle, M.D. Ala. 1956, 142 F. Supp.
707, 711, 714, aff’d per curiam, 352 U. S. 903 (1956); Frasier
V. Board of Trustees of University of North Carolina, M.D.N.C.
1955, 134 F. Supp. 589, aff’d per curiam, 350 U. S. 979 (1956).
“Violations of the Fourteenth Amendment are of course vio
lations of individual or personal rights, but where they are com
mitted . . . generally because of race, they are no less entitled to
be made the subject of class actions and class adjudica
tions under Rule 23. . . . than are other several rights.”
Kansas City v. Williams, 8 Cir. 1953, 205 F.2d 47,
52, cert, denied 346 U. S. 826 (1953). See also Holmes
V. City of Atlanta, N. D. Ga. 1954, 124 F. Supp. 290,
aff’d 223 F.2d 93, judgment vacated and remanded for a broader
decree in conformity with Mayor and City of Baltimore v. Daw
son, 350 U. S. 977 (1955); Jeffers v. Whitley, 4 Cir. 1962, 309
F.2d 621; Brunson v. Board of Trustees of School District No. 1,
4 Cir. 1962, 311 F.2d 107, cert, denied 373 U. S. 933 (1963).
See Comment, The Class Action Device in Antisegregation
Cases, 20 U. Chi. L. Rev. 577 (1953). See also Comment,
Multiparty Litigation in the Federal Courts, 71 Harv.
L. Rev. 874, 935; McKay, “With All Deliberate Speed”—A Study
of School Desegregation, 31 N.Y.U.L. Rev. 991, 1084-86 (1956);
Class Actions—A Study of Group Interest Litigation, 1 Race Rel.
Rep. 991 (1956); Meador, The Constitution and the Assignment of
Pupils to Public Schools, 45 Va. L. Rev. 517, 523 (1959).
U. S., et al. V. Jejf. County Bd. of Educ., et al. 47
was m ore a t issue in Brown th an the con troversy be
tw een certa in schools and certa in children. Briggs
overlooks the fac t th a t N egroes collectively a re
harm ed w hen the sta te , by law or custom , opera tes
seg regated schools or a school system w ith uncor
rec ted effects of segregation.
D enial of access to the dom inant culture, lack of
opportunity in any m eaningful w ay to p a rtic ip a te in
political and other public activ ities, the stigm a of
apartheid condem ned in the T h irteen th A m endm ent
are concom itants of the dual educational system . The
unm alleable fac t transcending in im portance the
harm to individual Negro children is that the sepa
ra te school system w as an in teg ra l e lem ent in the
Southern S tate’s general p rog ram to restrict, N egroes
as a class from p artic ipa tion in the life of the com
m unity, the a ffa irs of the S tate, and the m ainstream
of American life; Negroes must keep the ir place.®®
“ [SJegregation is a group phenomenon. Although
the effects of d iscrim ination a re fe lt by each m em
ber of the group, any d iscrim inatory p rac tice is
directed against the group as a unit and against in
dividuals only as the ir connection w ith the group in-
In United States v. Louisiana, E.D. La. 1963, 225 F. Supp.
353, aff’d 380 U.S. 145, the court traced the history of voting
in Louisiana to show that the black codes, the grandfather
clause, the white primary, literacy-tests, and other devices were
all members of a seemingly endless series designed to bar access
of Negroes to the dominant culture and to political power. The
same situation exists with regard to denial of equal educational
opportunities. So-called freedom of choice plans, as thus far
utilized, follow pupil placement laws, which followed the
“separate-but-equal” dodge in the educational series of devices
to limit access of Negroes to the polity.
48 U. S., et al. v. Jeff. County Bd. of Educ., et clI.
volves the antigroup sanction. . . . [As] a group-
w rong . . . the m ode of red ress m u st be group-wide
to be adequate.”®* Adequate redress therefore calls
for m uch m ore th an allowing a few N egro children
to attend fo rm erly w hite schools; it calls for liquida
tion of the s ta te ’s system, of de ju re school seg reg a
tion and the organized undoing of the effects of p ast
segregation. “ Beyond [a child’s] personal righ t
[under the F o u rteen th A m endm ent] how ever, or
p erhaps as an aspec t of it, the low er fed e ra l courts
seem to be recognizing a righ t in N egro school chil
dren, enforceable a t leas t by a class action, to have
the school system administered free of an enforced
policy of segregation irrespective of w hether any
colored pupil has been denied adm ission to any
particular school on the ground of his race.”®®
It is undoubtedly true th a t the in tangible inade
quacies of a segregated education h a rm the individ
ual, bu t the S uprem e Court treated these inade
quacies as inheren t a ttr ib u te s which preva il un iver
sally.®® For example, the Court said;
w Note, 20 U. Chi. L. Rev. 577 (1953).
Meador, The Constitution and the Assignment of Pupils to
Public Schools, 45 Va. L. Rev. 517, 523 (1959).
In Brown the unanimous court, through Chief Justice Warren,
cited the Slaughter House Cases, 1872, 83 U.S. (16 Wall.) 36, 71
in which the Court stated: . . one pervading purpose found
in [all of these amendments!, lying at the foundation of each,
and without which none of them would have been even suggested;
we mean the freedom of the slave race, the security and firm
establishment of that freedom, and the protection of the newly-
made freeman and citizen from the oppressions of those who had
formerly exercised unlimited dominion over him. It is true that
only the Fifteenth Amendment, in terms, mentions the negro by
speaking of his color and his slavery. But it is just as true that
each of the other articles was addressed to the grievances of that
race, and designed to remedy them as the fifteenth.” The Court
also quoted the following passage from Strauder v. West Vir-
U. S., et al. V. Jeff. County Bd. of Educ., et al. 49
[Education] is the very foundation of good
citizenship. Today it is a p rinc ipal in strum ent
in awakening the child to cultural values,, in
p rep arin g h im for la te r professional tra in ing ,
and in helping him to adjust norm ally to his
environment. In these days, it is doubtful
th a t any child m ay reasonab ly be expected
to succeed if he is denied the opportunity of
an education. Such an opportunity w here the
s ta te has undertaken to provide it, is a righ t
w hich m ust be m ade availab le to all on equal
te rm s 347 U.S. a t 493. (E m phasis added.)
Again, in -a c ritica l passage;
To sep a ra te [children] from others of sim
ilar age and qualifications solely because of
th e ir race generates a feeling, of in feriority
as to th e ir sta tu s in the com m unity th a t m ay
affect their h earts and m ind in a wUy un
likely ever to be undone, 347 U.S.. a t 494.
With this p red ica te it is not surprising th a t Brown
II, a y ear a fte r Brown I w as decided, going beyond
recognition of the “personal” righ t in the individual
plaintiffs, fashioned a rem edy appropria te for the
class. The Court im posed on the s ta tes the duty of
furnishing an in tegrated school system , th a t is, the
ginia, 1879, 100 U.S. 303, 307: “The words of the amendment
• . . contain a necessary implication of a positive immunity, or
right, most valuable to the colored race—the right to exemption
from unfriendly legislation against them distinctively as colored;
exemption from legal discriminations, implying inferiority in civil
society, lessening the security of their enjoyment of the rights
which others enjoy, and discriminations which are steps toward
reducing them to the condition of a subject race.”
50 U. S., et al. v. Jeff. County Bd. of Educ., et al.
duty of “ effectuat[ing] a transition to a racially
nondiscriminatory school system.”̂ '̂ (Emphasis
added.) In addition, Brown II subordinated the
“present” rig h t in the individual plain tiffs to the
rig h t of N egroes as a class to a un itary , nonracial
system—some time in the future.®*
The cen tral vice in a fo rm erly de ju re segregated
public school system is ap artheid by dual zoning: in
the p a s t by law , the use of one set of a ttendance
zones for w hite children and ano ther for N egro chil
dren, and the com pulsory in itial assignm ent of a Ne
gro to the N egro school in his zone. D ual zoning per-
67 “[T]he courts will require that the defendants make a prompt
and reasonable start toward full compliance with our May 17,
1954, ruling. Once such a start has been made, the courts may
find that additional time is necessary to carry out the ruling in
an effective manner. . . . To that end the courts may consider
problems related to administration, arising from the physical
condition of the school plant, the school transportation system,
personnel, revision of school districts and attendance areas into
compact units to achieve a system of determining admission to the
public schools on a nonracial basis, and revision of local laws
and regulations which may be necessary in solving the foregoing
problems.” Brown v. Board of Education, 349 U.S. 294, 300-01.
(Emphasis added.)
6® “K it is the Negro population as a minority group which
is entitled to attend public facilities, then the objective of any
corrective plan would be to bring about complete integration
of all Negro children in public education.” Hartman, The Right
to Equal Educational Opportunities as a Personal and Present
Right, 9 Wayne L. Rev. 424, 441 (1963). Cf. Greenberg, Race
Relations and Group Interests in the Law, 13 Rutgers L. Rev.
503, 506 (1959). There would be no necessary conflict between
the individual’s “personal and present” right and the class right
if the Brown, Cooper v. Aaron, Bradley, and Rogers v. Paul
decisions were read as recognizing the immediate right of any
Negro plaintiff to transfer to a white school, over and above
the state’s duty to reorganize its school system. Thus in Watson
V. City of Memphis, 1963, 373 U.S. 526, 533, 83 S.Ct. 1314,
10 L.Ed.2d 529, the Supreme Court stated that the rights asserted
in that case “are, like all such rights, present rights . . . war
rants for the here and now and, unless there is an overwhelming
ly compelling reason they are to be promptly fulfilled.”
V. S., et at V. Jeff. County Bd. of Educ., et al. 51
sists in the dontinuing operation Of NOgfO Schools
identified as Negro, h isto rically and because the fac
ulty and students a re N egroes. A cceptance of an in
dividual’s application for tran sfe r, the tefo re , m ay sa t
isfy th a t p a rtic u la r individual; it will not sa tisfy the
class. The class is all Negro children in a school dis
trict attending , by definition, inherently unequal
schools and w earing the badge of slavery separa tion
displays. R elief to the class requ ires school boards
to desegregate the school from which a tran sfe ree
comes as well as the school to w hich he goes. I t
requires conversion of the dual zones into a single
system. F acu lties, facilities, and activ ities as well
as student bodies m ust be in tegrated . No m a t
ter what view is taken of the ra tionale in B t o w t i
I, Brown II envisaged the rem edy following
the wrong, the s ta te ’s correcting its d iscrim ina
tion against N egroes as a class, through sepa
rate schools, by in itiating and operating a uni
tary in teg ra ted school system . The g radual tra n s i
tion the Suprem e Court authorized was to allow the
states tim e to solve the adm in istra tive problem s in
herent in th a t change-over; No delay would have been
necessary if the right at issue in Brown had been
only the right of individual Negro plaintiffs to ad
mission to a white school. Moreover, the delay of
one year in deciding Brown II and the gradual
remedy Brown II fashioned can be justified only on
the ground that the “personal and present” right of
the individual plaintiffs m ust yield to the overrid
ing right of Negroes as a class to a completely in
tegrated public education.
52 17. S., et al. v. Jeff. County Bd. of Educ., et al.
A lthough psychological h a rm and lack of education
a l opportunities to N egroes m ay exist w hether
caused by de facto or de ju re segregation, a s ta te
policy of ap arth e id ag g rav a te s the h a rm . Thus,
Chief Ju stice W arren quoted, w ith approval the finding
of the d is tric t court in the Kansas case: “ The im pact
[of the de trim en ta l effect of segregation upon N e
gro children] is g rea te r when it has the sanction of
the law ; for the policy of sep ara tin g the ra c e is usual-
ly in te rp re ted as denoting the inferio rity of the Negro
group. A sense of inferio rity affects the m otivation
of a child to learn . Segregation w ith the sanction of
law , therefore , has a tendency to [retard] the edu
cational and m ental developm ent of N egro children
and to deprive them of som e of the benefits they
would receive in a racial[ly] integrated school sys
te m .” (E m phasis added.) Brown I, 347 U S . a t 494.
The S tate, therefo re , should be under a duty to take
w hatever corrective action is n ecessa ry to undo the
harm it created and fostered.*® “State authorities
®® “Indeed, the requirement of affirmative action lies at the
very heart of Brown; seventeen states had to abandon racial
criteria and affirmatively reorganize school attendance plans.”
Fiss, Racial Imbalance in the Public Schools: The Constitutional
Concepts, 78 Harv. L.Rev. 564, 612 (1965). See also Gillmor and
Gosule, Duty to Integrate Public Schools ?. Some Judicial Responses
and a Statute, 46 Bost. U. L. Rev. 45, 62-3 (1966). “State support
of segregated schools through any arrangement, management,
funds, or property cannot be squared with the equal protection
clause.” Cooper v. Aaron, 1958, 358 U.S. 1, 19, 78 S.Ct. 1401,
3 L.Ed.2d 5. “ . . . Most of the major decisions of the Warren
Court under the equal protection clause impose affirmative obli
gations upon the states. Earlier cases sustaining a constitutional
claim were typically mandates directing the government to refrain
from a particular form of regulation. Now the emphasis is "upon
measures the states must adopt in carrying on their activities
and steps they must take [even] to offset disabilities not of their
creation”. Cox, Foreword: Constitutional Adjudication and the
Promotion of Human Rights, 80 Harv. L. Rev. 91, 93 (1966).
U. S., et al. V. Jejj. County Bd. of Educ., et al. 53
were thus duty bound to devote every effort tow ard
initiating desegregation and bringing about the elim i
nation of ra c ia l d iscrim ination in the public school
system .” (E m phasis added.) Cooper v. Aaron, -358
U.S. a t 7. Some m ay doubt w hether to lerance of de
facto segregation is an unsubtle fo rm of s ta te action.
There can be no doubt as to the n a tu re and effect
of segregation th a t cam e into being and p ers ists be
cause of s ta te action as p a r t of the longstanding pat
tern to narrow the access of N egroes to political
power and to the life of the com m unity.
In a school system the persons capable of giving
class re lief a re of course its ad m in is tra to rs . I t is
they who a re under the affirm ative duty to take cor
rective action tow ard the goal of one in teg ra ted sys
tem. As Judges Sobeloff and Bell said in Bradley v.
School Board of the City of Richmond, 4 Cir. 1965,
345 F.2d 310, 322;
“ . . . the initiative in achieving desegrega
tion of the public schools m ust come from the
school authorities. . . . A ffirm ative action
means more than telling those who have long
been deprived of freedom of educational op
portunity. ‘You now have a choice.’ . . . I t
is now 1965 and high tim e for the court to in
sist th a t good fa ith com pliance requ ires ad
m in is tra to rs of schools to proceed actively
with their non transferab le duty to undo the
segregation w hich both by action and inac
tion has been persisten tly perpetuated. (E m
phasis added.)
54 U. et al. V. J^ff. County Bd. of Bduc-, et al.
In l^Qrtficross v. Board of EduoQtion of the City of
Memphis, 5 Cir. 1062, 302 F.24 818, the defend
an ts assa rted , as the defendants a sse rt here,
th a t continued segregation is “ volun tary on the
p a r t of N egro pupils and p a ren ts because they
do not avail them selves of the tran sfe r prov isions.”
The C ourt held : “ The P upil A ssignm ent Law . .
will not serve as a p lan to convert a b irac ia l system
into a non rac ia l system . . . N egro children cannot
be req u ired to apply for th a t to w hich they are en
titled as a m a tte r of right. . . . The burden rests
with the school authorities to initiate desegregation
. . . [The Board] should subm it some realistic
plan for the organization of their schools on a non-
racial basis” . (E m phasis added.) In Dowell v. School
Bogrd of Oklahoma City Public Schools, W. D. Okla.
1965, 244 F. Supp. 971, 975, 978-79, the School
B oard in O klahom a City had “ superim posed”
a geographic zone plan on “ a lread y existing
residen tia l seg regation in itia ted by law .” The
court held; A school board m ust “ adopt policies
th a t would increase the percen tage of pupils who a re
obtaining a deseg regated education. . . .[The] fa il
u re to adopt an affirm ative policy is itself a policy,
adherence to which, a t leas t in th is case, has slowed
up . . . the desegregation process. . . . [W jhere the
cessation of assignm ent and transfer policies based
solely on race is insufficient to bring about more
than token change in the segregated system , the
Board m ust devise affirm ative action reasonably
purposed to effectuate the desegregation goal. This
conclusion m akes no new law .”
U. S., et al. V. Jejf. County Bd. of Educ., et al. 55
The position we take in these consolidated cases is
that the only adequate redress for a previously overt
system-wide policy of segregation directed against
Negroes as a collective entity is a system -wide pol
icy of integration. In Singleton I the Court touched
on the s ta te ’s duty to in teg ra te ;
“ In re tro spect, the second Brow n opinion
clearly im poses on public school au thorities
the duty to provide an in teg ra ted school sys
tem . Judge P a rk e r ’s well-known dictum
should be laid to rest. I t is inconsisten t w ith
Brown and the la ter developm ent of deci
sional and statu to ry law in the a re a of civil
rig h ts .” 348 F.2d a t 730 n.5.
Three y ears before Singleton I this Court analyzed
the problem in Potts v. Flax, 5 Cir. 1963, 313 F.2d
284. In th a t case the Court re jec ted a school board ’s
contention th a t a suit b rought by two Negro p a ren ts
was not a class action even though the record con
tained testim ony that one paren t w as bringing the
action only for his own children and not for o ther N e
gro children. The B oard contended th a t a cou rt order
was not needed because it w as willing to adm it any
Negro child to a w hite school on dem and of any N e
gro child. Judge Brown, speaking for the Court, said:
“ P roperly construed the purpose of the suit
was not to achieve specific assignm ent of spe
cific children to any specific g rade or school.
The peculiar righ ts of specific individuals
w ere not in controversy. I t w as d irec ted a t
the system -wide policy of ra c ia l segrega-
56 U. S., et al. v. Jeff. County Bd. of Educ., et al.
tion. I t sought ob literation of th a t policy of
system-wide racial discrimination. . .
E ven before Potts v. Flax, in Bush v. Orleans Parish
School Board, 5 Cir. 1962, 308 F.2d 492, 499, the Court
sa id :
“ In th is aspect of [initial] pupil assignm ent
[to seg regated schools] the fac ts p resen t
a c lear case w here th e re is not only dep riv a
tion of the righ ts of the individuals directly
concerned bu t deprivation of the righ ts of
N egro school children as a class. As a class,
and irrespective of any individual’s rig h t to
be ad m itted on a non-racial basis to a p a r
ticu la r school, N egro children in the public
schools have a constitu tional rig h t to have
the public school system adm in istered free
from an adm in is tra tiv e policy of seg rega
tion.’”^̂
0̂ The Court also said: “There is at least considerable doubt
that relief confined to individual specified Negro children either
could be granted or, if granted, could be so limited in its opera
tive effect. By the nature of the controversy, the attack is on
the unconstitutional practice of racial discrimination. Once that
is found to exist, the Court must order that it be discontinued.
Such a decree, of course, might name the successful plaintiff as
the party not to be discriminated against. But that decree may
not—either expressly or impliedly—affirmatively authorize con
tinued discrimination by reason of race against others. Cf. Shel
ley V. Kramer, 1948, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161.
Moreover, to require a school system to admit the specific suc
cessful plaintiff Negro child while others, having no such pro
tection, were required to attend schools in a. racially segregated
system, would be for the court to contribute actively to the
class discrimination proscribed by Bush v. Orleans Parish School
Board, 5 Cir. 1962, 308 F.2d 491, 499, on rehearing 308 F.2d 503;
see also Ross v. Dyer, 5 Cir. 1962, 312 F.2d 191.” Potts v. Flax,
313 F.2d at 289.
The Court also said: “Geographical districts based on race
are a parish-wide system of unconstitutional classification. Of
course, it is undoubtedy true that Brown v. Board of Education
U. S., et al. V. Jeff. County Bd. of Educ., et al. 57
See also Ross v. Dyer, 5 Cir. 1963, 312 F .2d 191, 194-95;
Augustus V. Board of Public Instruction of Escam bia
County, 5 Cir. 1963, 306 F.2d 862, 869; Holland v.
Board of Public Instruction of Palm Beach County,
5 Cir. 1958, 258 F.2d 730; Orleans Parish School Board
V. Bush, 5 Cir. 1957, 242 F.2d 156.
Brown w as an inevitable, p red ic tab le extension of
Sweat V. Painter, 1950, 339 U.S. 629, 70 S.Ct. 848, 94
L.Ed. 1114, and M cLaurin v. Oklahoma State Regents,
1950, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149.^ ̂ Those
cases involved separa te but equal or iden tical g rad
uate facilities. F acto rs “ incapab le of objective m eas
u rem ent” b u t c rucial to a good g raduate education
were not availab le to seg rega ted N egroes. These w ere
the intangible fac to rs that p reven ted the N egro g ra d
uate students from having norm al contacts and a s
sociation w tith w hite students. A partheid m ade the
two groups unequal. In Brown I these sam e intangi-
dealt with only an individual child’s right to be admitted to a
particular school on a non-racial basis. And it is also true, as
the second Brown opinion pointed out, that courts must bear in
mind the ‘personal interest’ of the plaintiffs. In this sense, the
Brown cases held that the law requires non-discrimination as to
the individual, not integration. But when a statute has a state
wide discriminatory effect or v;hen a School Board maintains a
parish-wide discriminatory policy or system, the discrimination is
against Negroes as a class. Here, for example, it is the Orleans
Parish dual system of segregated school districts, affecting all
school children in the Parish by race, that, first, was a _ dis
criminatory classification and, second, established the predicate
making it possible for the Pupil Placement Act to fulfill its be-
hind-the-face function of preserving segregation.” Bush v. Or
leans Parish School Board, 308 P.2d at 499.
See, for example, Ransmier, The Fourteenth Amendment and
the ‘‘Separate but Equal” Doctrine, 50 Mich. L. Rev. 203, 238-40
(1951); Roche, Education, Segregation and the Supreme Court—
A Political Analysis, 99 U. Pa. L. Rev. 949 (1951); Taylor, The
Demise of Race Restrictions in Graduate Education, 1 Duke B.
Jour. 135 (1951); Note, 26 St. John’s L. Rev. 123 (1951).
58 17. S., et al. V. Jeff. County Bd. of Educ., et al.
bles w ere found “ to apply w ith added force to chil
d ren in grade and high schools” ; educational oppor
tun ity in public schools m ust be m ade availab le to all
on equal te rm s.
The Brown I finding th a t seg rega ted schooling
causes psychological h a rm and denies equal educa
tional opportunities should not be construed as the
sole basis for the decision.'^® So construed, the way
would be open for proponents of the status quo to a t
tem p t to show, on the fac ts , th a t in teg ra tion m ay be
ha rm fu l or the lesser of two evils. Indeed tha t n a r
row view of Brown I has led severa l d is tric t courts
Professor Edmund Cahn characterized as a “myth” the notion
that the Brown decision was “sociological” rather than “legal”.
Cahn, Jurisprudence, 31 N.Y.U. L. Rev. 182 (1956); Cahn, Juris
prudence, 30 N.Y.U. L. Rev. 150 (1955). “I would not have the
constitutional rights of Negroes—or of other Americans—rest on
any such flimsy foundation as some of the scientific demonstra
tions in these records. . . . Heretofore, no government official
has contended that he could deny equal protection with impunity
unless the complaining parties offered competent proof that they
would sustain or had sustained some permanent (psychological or
other kind of) damage. The right to equal protection has not
been subjected to any such proviso.” Cahn, Jurisprudence, 30
N.Y.U. L. Rev. 150, 157, 158, 168 (1955). Professor Black has
said: “The charge that it is ‘sociological’ is either a truism
or a canard—a truism if it means that the Court, precisely like
the Plessy court, and like innumerable other courts facing in
numerable other issues of law, had to resolve and did resolve
a question about social fact; a canard if it means that anything
like principal reliance was placed on the formally ‘scientific’
authorities, which are relegated to a footnote and treated as
merely corroboratory of common sense.” Black, The Lawfulness
of the Segregation Decision, 69 Yale L.J. 421, 430 n.25 (1960).
Acceptance of these views is not inconsistent with the con
tinued vitality of the psychological findings in Brown I. Indeed,
several studies have reinforced those findings. The most recent is
the United States Office of Education’s “Equality of Educational
Opportunity”, the two-year study authorized by section 402 of
the Civil Rights Act of 1964 to investigate “the lack of availability
of equal educational opportunities for individuals by reason of
race, color, religion, or national origin in public educational
institutions . . . . ” 42 U.S.C. § 2000c—1.
U. S., et al. V. Jejf. County Bd. of Educ., et al. 59
into orror.'^* We think tha t the judgment “mu?t h^ve
rested on the view th a t rac ia l segregation is, in p rin
ciple, a denial of equality to the m inority agajn st
whom it is directed.” ®̂ The relief Brown II requires
rests on recognition of the princip le th a t s ta te-im
posed separa tion by race is an invidious c lassifica
tion and for th a t reason alone is unconstitutional^®
Classifications based upon race a re especially sus
pect, since they are “odius to a free people” In short,
compulsory separa tion , apartheid, is per se d iscrim
inatory ag a in st N egroes.
A num ber of post-Broian per cu riam decisions not
involving education m ake it c lear th a t the broad
dimensions of the rationale are not c ircum scribed
by the necessity of showing harm ful inequality to the
See Stell v. Savannah-Chatham County Board of Education,
S.D.Ga. 1963, 220 F. Supp. 667, rev’d 333 F.2d 55; 255 P.Supp. 84
(1965) , appeal pending; 225 F.Supp. 88 (1966), appeal pending.
See also Jackson Municipal Separate School District v. Evers, 5
Cir. 1966, 357 F.2d 653.
Wechsler, Toward Neutral Principles of Constitutional Law,
73 Harv. L. Rev. 1, 33 (1959). Professor Wechsler concluded:
“For me, assuming equal facilities, the question posed by state-
enforced segregation is not one of discrimination at all. Its
human and constitutional dimensions lie entirely elsewhere, in
the denial by the state of freedom to associate . . . ” The article
started a vigorous debate. See authorities collected in Emmerson
and Huber, Political and Civil Rights 1625-1629 (1967). See also
Kaplan, Equality in an Unequal World, 61 NW U.L. Rev. 363
(1966) .
For discussion of the inherently—arbitrary—classification
principle against the principle of equality of educational op
portunity, see Fiss, Racial Imbalance in the Public Schools: The
Constitutional Concept, 78 Harv. L. Rev. 564, 590-98 (1965).
See Poliak, Racial Discrimination and Judicial Integrity: A
Reply to Professor Wechsler, 108 U. Pa. L. Rev. 1 (1959); Kaplan,
Segregation Litigation and the Schools—Part I, The New Rochelle
Experience 58 NW U. L. Rev. 1, 21 (1964).
Korematsu v. United States, 1944, 323 U. S. 214, 216, 65 S. Ct.
193, 89 L. Bd. 194.
60 17. S., et al. v. Jeff. County Bd. of Educ., et al.
individual. In these cases N egroes w ere sep ara ted
from w hites but w ere afforded equal or iden tical fa
cilities. Relying on Brown, the Court o rdered in teg ra
tion of the facility or activity.^® See also Anderson v.
Martin, 1964, 375 U.S. 399, 402, 84 S.Ct. 454, 11 L.Ed.2d
430, 433, holding th a t com pulsory designation of a can
d id a te ’s ra c e on the ballot is unlawful. The designation
p laced “ the pow er of the S tate behind a ra c ia l classi
fication th a t induces rac ia l p re jud ice a t the polls.”
Bolling v. Sharpe, 1954, 347 U.S. 497, 74 S.Ct. 693, 98
L. Ed. 884, provides fu rth e r evidence of the b read th
of the rig h t recognized in Brown. T here, because the
case concerned the D is tric t of Colum bia, the Court
had to rely on the due process clause of the Fifth
A m endm ent instead of the equal p ro tection clause
of the F o u rteen th A m endm ent. Going beyond any
question of psychological h a rm or of the denial of
equal educational opportunities to the individual, the
Court concluded th a t ra c ia l classifications in public
education a re so unreasonab le and a rb itra ry as to
violate due process:’̂®
E.g., Schiro v. Bynum, 375 U.S. 395 (1964) (municipal audi
toriums); Johnson v. Virginia, 373 U.S. 61 (1963) (court-rooms);
State Athletic Comm’n v. Dorsey, 395 U.S. 533 (1959) (athletic
contests); New Orleans City Park Improvement Ass’n v. De-
tiege, 358 U.S. 54 (1958) (public parks and golf courses); Gayle
V. Browder, 352 U.S. 903 (intrastate busses); Holmes v. City
of Atlanta, 350 U.S. 879 (1955) (municipal golf courses);
Mayor of Baltimore v. Dawson, 350 U.S. 877 (1955) (public
beaches and bathhouses). Muir v. Louisville Park Theatrical
Ass’n, 347 U.S. 971 (1954) (municipal amphitheater).
For lower court decisions to the same effect, see cases collected
in Emmerson and Huber, Political and Civil Rights in the United
States 1678 (1967).
See Cahn, Jurisprudence, 30 N.Y.U.L. Rev. 150, 155 (1955).
Cf. Antieau, Equal Protection Outside the Clause, 40 Cal. L. Rev.
362, 364 (1954); Poliak, Racial Discrimination and Judicial In
tegrity, 108 U. Pa. L. Rev. 1, 27-28 (1959).
U. S., et al. V. Jeff. County Bd. of Educ., et al. 61
“ L iberty under law extends to the full range
of conduct which the individual is free to p u r
sue, and it cannot be re s tric ted except for a
p roper governm ental objective. Segregation
in public education is not reasonably related
to any proper governm ental objective, and
thus it im poses on Negro children . . . a bu r
den th a t constitu tes an a rb itra ry deprivation
of th e ir lib e rty .” 347 U. S. a t 498. (E m phasis
added.)
As in the ju ry exclusion cases, w hen the c lassifica
tion is not “ reasonab ly re la ted to any proper govern
mental ob jective” equal protection and due process
merge.
If Brown has only the narrow m eaning Briggs
gives it, the system of state-sanctioned segregated
schools will continue indefinitely with o n ly -a little
token desegregation . W hite school boards, alm ost
universal in th is circuit, will be able to continue
to say th a t the ir constitutional duty -ends w hen they
provide re lief to the p a rticu la r Negro children who,
as individuals, claim their personal righ t to be ad
mitted to white schools. If the Briggs thinking should
prevail, the dual system will, for all p rac tica l p u r
poses', be m ain tained: white school officials in m ost
key positions a t the s ta te and county levels; Negro
faculties in N egro schools, w hite faculties in white
schools; no w hite children or only a few w hite chil
dren of way-out p a ren ts in Negro schools; a few Ne
groes in som e w hite schools; at best, tokenism in ce r
tain school d istricts.
62 U. S., et Cd. V. J&ff. County Bd. of Edu6., et dL
Brown’s b road m eaning, its im p o rtan t me&ning,
is its rev ita lization of the national constitu tional fight
the T hirteenth , F ourteen th , and F ifteen th A m end
m ents c rea ted in favor of N egroes. This is the right
of N egroes to national citizenship, their rig h t as a
class to sh are the privileges and im m unities only
w hite citizens had enjoyed as a class. Brown erased
Dred Scott, used the F ourteen th A m endm ent to
b rea th e life into the T hirteenth , and w rote the D ecla
ra tio n of Independence into the Constitution. Freed-
m en a re free m en. They a re c rea ted as equal as
a re all o ther A m erican citizens and w ith the sam e
unalienable righ ts to life, liberty , and the p u rsu it of
happiness. No longer “ beings of an inferior ra c e ”—
the Dred Scott a rtic le of fa ith—N egroes too a re part
of “ the people of the U nited S ta te s” .
A p rim ary responsibility of federa l courts is to pro
tec t nationally created constitu tional righ ts. A duty
of the States is to give effect to such righ ts—here, by
providing equal educational opportunities free of any
com pulsion th a t N egroes w ear a badge of slavery.
The S tates owe this duty to Negroes, not ju s t because
every citizen is entitled to be free from, a rb itra ry
d iscrim ination as a heritage of the com m on law or be
cause every citizen m ay look to his s ta te for equal
protection of the righ ts a s ta te g ran ts its citizens. As
Ju stice H arlan clearly saw in the Civil Rights Cases
(1883), 109 U. S. 3, 3 S.Ct. 18, 27 L .Ed. 835, the War
tim e Am endm ents created an affirm ative duty thut
the States eradicate all relics, “badges and indicia of
slavery” lest Negroes as a race sink hack into “sec
ond-class” citizenship.
U. S., et al. V. Jejf. County Bd. of Educ., et al. 63
B. The factual situation dealt w ith in Bell v. School
City of Gary, N. D. Ind. 1963, 213 F. Supp. 819, a f f d
7 Cir. 1963, 324 F.2d 209, cert, den’d 377 U. S. 924 (1964)
is not the situation the Suprem e Court had before it
in Brown or th a t we deal w ith in this circuit. Brown
dealt w ith state-im posed segregation based on dual
attendance zones. Bell involved nonracially m otivated
de facto seg regation in a school system based on the
neighborhood single zone system . In Bell the p la in
tiffs alleged th a t the G ary School B oard had delib
erately g e rry m an d ered school attendance zones to
achieve a seg rega ted school system in violation of
its “ duty to provide and m ain tain a racially in te
grated sy stem ” . On the showing th a t the students
were assigned and boundary lines d raw n based upon
reasonable nonracial c rite ria , the court held th a t the
school board did not deliberately seg rega te the
races; the racial balance was a ttribu tab le to geo
graphic and housing patterns. The court analyzed
the problem in te rm s of s ta te action ra th e r than in
term s of the N egroes’ righ t to equal educational op
portunities. Finding no sta te action the court con
cluded th a t Brown did not apply. In effect, the court
held th a t de facto seg regated neighborhood schools
must be accepted. At any ra te , the court said,
“ states do not have an affirm ative duty to provide
an in teg ra ted education” . The Seventh C ircuit af
firmed,
We m ust assum e th a t Congress w as well aware
of the fact th a t Bell w as concerned w ith de facto seg
regated neighborhood schools—only. N otw ithstand
ing the broad language of the opinion re la ting to the
64 17. S., et al. v. Jeff. County Bd. of Educ., et al.
lack of a duty to in teg ra te , language la te r frequently
quoted by Senator H um phrey and o thers in the de
ba tes on the Civil R ights Act of 1964, C ongress went
only so fa r as to prohibit c ross-d istric t bussing and
cross-d istric t assignm ent of students.
The fac ts, as found by the Court in Bell, favored
the G ary School Board. O ther courts, on very sim i
la r fac ts, have decided that th e re a re alternatives
to acceptance of the status quo.®<* A commentator on
the sub ject has fa irly sum m ed up the cases: “ Using
Brown as a governing principle, ra c ia l im balance
caused by rac ia lly m otivated conduct is c learly in
valid. W hen rac ia l im balance resu lts fortuitously,
there is a split of authority.”®̂
80 “The central constitutional fact is the inadequacy of segre
gated education. . . . The educational system that is thus com
pulsory and public afforded must deal with the inadequacy arising
from adventitious segregation; it cannot accept and indurate seg
regation on the ground that it is not coerced or planned but
accepted.” Branche v. Board of Education, 204 F.Supp. at 153.
See Wright, Public School Desegregation: Legal Remedies for De
Facto Segregation, 40 N.Y.U.L. Rev. 285, 301 (1965); Fiss, 78
Harv. L. Rev. 564, 609 (1965) (a relative approach); Sedler,
School Segregation in the North and West: Legal Aspects, 7 St.
Louis L. Rev. 228, 233-239, 275 (1963); Maslow, De Facto Public
School Segregation, 6 Vill. L. Rev. 353 (1961).
King, Racial Imbalance in the Public Schools, 18 Vand. L.
Rev. 1290, 1337 (1965). Webb v. Board of Education of Chi
cago, N.D.Ill. 1963, 223 F.Supp. 466; Deal v. Cincinnati Board of
Education, S.D.Ohio 1965, 244 F.Supp. 572; Lynch v. Kenston
School District, N.D.Ohio 1964, 229 F.Supp. 740; Downs v. Board
of Education, 10 Cir. 1965, 336 F.2d 988, cert, denied
380 U.S. 914, 85 S.Ct. 898, 13 L.Ed. 2d 800; and
Sealy v. Department of Public Instruction of Pennsylvania,
3 Cir. 1958, 252 F.2d 898, are more or less in agree
ment with Bell. These cases usually rely on the school
board’s good faith, lack of racial motivation, and the propriety of
considering transportation, geography, safety, access roads, and
other neutral criteria as rational bases for school districting.
Taking the contrary position are: Booker v. Board of Education
of Plainfield, 1965, 45 N.J. 161, 212 A.2d 1; Branche v. Hempstead,
E.D.N.Y. 1962, 204 F.Supp. 150; Blocker v. Board of Education
of Manhasset, E.D.N.Y. 1964, 226 F. Supp. 208, 229 F.Supp. 709;
Barksdale v. Springfield School Committee, D.Mass. 1965, 237
U. S., et al. V. Jeff. County Bd. of Educ., et al. 65
Barksdale v. Springfield School Com mittee, D.
Mass. 1965, 237 F. Supp. 543, sim ilar on the fac ts to
Bell, holds squarely co n tra ry to Bell:
“ The defendants argue, nevertheless, th a t
there is no constitutional m andate to rem edy'
racial im balance. Bell v. School City of Gary,
324 F .2d 209 (7th Cir. 1963). But th a t
is not the question. The question is whether
there is a constitutional duty to provide
equal educational opportunities for all chil
dren within the system . While Brown an
sw ered th a t question affirm atively in the con
tex t of coerced segregation, the constitutional
fact—the inadequacy of seg regated educa
tion—is the sam e in this case, and I so find.
. . . This is not to im ply that the neighbor
hood school policy per se is unconstitution
al, but that it m ust be abandoned or modi
fied when it results in segregation in fact.
P.Supp. 543, vacated for other reasons 1 Cir. 1965, 348 F.2d 261;
Jackson v. Pasadena City School District, 1962, 59 Cal. 2d 876, 31
Cal. Kept. 606, 382 P.2d 878. School authorities may act to
offset racial imbalance: See Addabbo v. Donovan, 256 N.Y.S. 2d
178, aff’d 261 N.Y.S.2d 68, 209 N.E.2d 112 (1965), cert, den’d 382
U.S. 905 (1965). See also Balaban v. Rubin, 248 N.Y.S.2d 574, aff’d
250 N.Y.2d 281, 199 N.E.2d 375 (1964), cert, den’d 379 U.S. 881
(1964) (Board may “take into consideration the ethnic composi
tion of the children” before drawing the attendance lines for a
new school); Olson v. Board of Education, E.D.N.Y. 1966, 250 P.
Supp. 1000 (the Princeton plan—see note 124, infra);
Offerman v. Nitkowski, W.D. N.Y. 1965, 248 F.Supp.
129; Guida v. Board of Education of New Haven, 26
Conn. Supp. 121, 213 A.2d 843 (1965); Strippoli v.
Bichal, 250 N.Y.S.2d 969, aff’d N.Y.S.2d 84, 209 N.E.2d 123
(1965) (bussing); Morean v. Board of Education, 42 N.J. 237, 200
A.2d 97 (1965); Vetere v. Allen, 258 N.Y. 77, 206 N.E. 2d 174
(1965) (redistricting of attendance zone approved because “racial
balance is essential to a sound education”) ; Van Blerkom v. Dono
van, 1965, 15 N.Y.2d 399, 259 N.Y.S.2d 825, 207 N.E.2d 503.
66 U. S., et al. v. Jeff. County Bd. of Educ., et al.
. . . I cannot accep t the view in Bell th a t
only fo rced segregation is incom patib le w ith
the requ irem en ts of the F o u rteen th A m end
m ent, nor do I find m eaningful the sta te
m ent that ‘[t]he Constitution . . . does not
require integration. It m erely forbids dis
crimination.’ 324 F.2d at 213. . . . ^ This court
recognizes and re ite ra te s th a t the problem
of rac ia l concentration is an educational, as
well a s constitutional, p roblem and, th e re
fore, o rders the defendants to p re sen t a p lan
no la te r than A pril 30, 1965, to eliminate to
the fu llest extent possible rac ia l concen tra
tion in its e lem en tary and jun ior high schools
w ithin the fram ew ork of effective education
al procedures, as guaran teed by the equal
protection clause of the F o u rteen th A m end
m en t to the C onstitution of the U nited
S ta tes .” (E m phasis added.)
“ In short, Barksdale [does not analyze Brown] in
te rm s of p rop rie ty of school board action, bu t pro
ceeds in te rm s of a rig h t on the p a r t of N egro students
to an equal educational opportunity , w hich in light
of the ruling in Brown th a t separa te schools a re in
heren tly unequal, m ust perforce be a rig h t to an in
tegrated educational setting.”®̂ On appeal, the First
C ircuit accep ted the d is tric t co u rt’s findings of fact
b u t vaca ted the o rder w ith directions to dism iss With
out p re jud ice because the school board, on its own
82 Gillmor and Gosule, Duty to Integrate Public Schools? Some
Judicial Responses and a Statute, 46 Best. U. L. Rev. 45 57
(1966).
17. S., et al. V. Jeff. County Bd. of Educ., et al. 67
initiative, had tak en action iden tical w ith the court-
ordered action. 348 F.2d 261. The Court noted a dif
ference betw een “ the seem ing abso lu tism ” of the
opinion and the less sweeping order “ to elim inate
[segregation] to the fullest ex ten t possible . . . w ith
in the fram ew ork of effective educational proce
dures”.®® Taking both opinions together, they recog
nize th a t “ the s ta te would not be p e rm itted to ignore
the problem of de facto segregation. The holding in
Brown, unexplained by its underlying reasoning, re
quires no m ore than the decision in Bell, but when
illum inated by the reasoning, it p e rm its the resu lt
in Barksdale and may require that result.”®* At the
very least, as the Barksdale court saw it, there is a
duty to in teg ra te in the sense th a t in tegra tion is an
educational goal to be given a high, high prio rity
among the various considerations involved in the
proper adm in istra tion of a system beset w i th . de
facto seg regated schools.
The First Circuit construed the court’s order. as not calling
for “an absolute right in the plaintiffs to have what the court
found to be ‘tantamount to segregation’ removed at all costs.”
At the same time, the Court said: “Rather we take it to deter
mine that . . . racial imbalance disadvantages Negro students
and impairs their educational opportunities as compared with
other races to such a degree that they have a right to insist that
the defendants consider their special problems along with all other
relevant factors when making relevant decisions.” Springfield
School Committee v. Barksdale, 1965, 348 F.2d 261, 264.
Gillmor and Gosule supra note 82, at 64. Compare the state
ment of policy in the Massachusetts statute. An Act Providing for
the Elimination of Racial Imbalance in the Public Schools (Mass.
Acts. 1965, ch. 651):
It is hereby declared to be the policy of the commonwealth
to encourage all school committees to adopt as educational
objectives the promotion of racial balance and the correction
of existing racial imbalance in the public schools. The pre
vention or elimination of racial imbalance shall be an ob
jective in all decisions involving the drawing or altering
of school attendance lines and the selection of new school sites.
The statute was enacted a month after Barksdale was decided.
68 U. S., et al. v. Jeff. County Bd. of Educ., et al.
Although Brown points tow ard the existence of a
duty to integrate de facto segregated schools,®® the hold
ing in Brown, unlike the holding in Bell but like the
holdings in this c ircu it, occurred w ithin the context
of state-coerced segregation. The sim ila rity of pseudo
de facto segregation in the South to ac tu a l de facto
segregation in the N orth is m ore ap p aren t than real.
H ere school boards, utilizing the dual zoning system ,
assigned Negro teach ers to N egro schools and se
lected Negro neighborhoods as suitable a reas in which
to locate Negro schools. Of course the concentration
of N egroes increased in the neighborhood of the
school. Cause and effect cam e together. In this cir
cuit, therefo re , the location of N egro schools with
N egro facu lties in Negro neighborhoods and white
schools in white neighborhoods cannot be described
as an unfortunate fo rtu ity : It cam e into existence as
s ta te action and continues to ex ist as rac ia l gerry
mandering, made possible by the dual system.*® Segre
gation resu lting from racially m otivated gerrym an-
“Some of the Supreme Court’s language in Brown can apply
to this type of segregation as well as to that before the Court,
since this type of imbalance may also ‘generate a feeling of
inferiority as to [the Negro children’s] status in the community
that may affect their hearts and minds in a way unlikely ever
to be undone.’ Thus, if one believes that the basis of the
Brown decision was the Court’s finding that separate schools
were unconstitutional simply because they bred a feeling of in
feriority in the Negro, one must also believe that the neighbor
hood school must also be unconstitutional if it breeds the same
feeling of inferiority.” Kaplan, Segregation Litigation and the
Schools—Part 1, The New Rochelle Experience 58 NW U. L. Rev.
1, 21 (1964). “Necessarily implied in [Brown’s] . . . proscription
of segregated education was the positive duty of eliminating it.”
Taylor v. Board of Education of the City of New Rochelle,
S.D.N.Y. 1961, 191 F. Supp. 181, 193, aff’d 294 F.2d 36, cert, denied
368 U.S. 940.
See Clemons v. Board of Education of Hillsboro, 6 Cir.
1956, 228 F.2d 853, cert, den’d 350 U.S. 1000 (1956). Cf. G o m il l io n
V . Lightfoot, 1960, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110.
U. S., et al. V. Jeff. County Bd. of Educ., et al. 69
dering is properly ch arac te rized as “ de ju re ” seg re
gation. See Taylor v. Board of Education of the City
of New Rochelle, S.D.N.Y. 1961, 191 F. Supp. 181.'^
The courts have had the pow er to deal w ith th is situ
ation since Brown I. In Holland v. Board of Public In
struction of Palm Beach County, 5 Cir. 1958, 258 F.2d 730,
although there was. no evidence of gerrymandering as
such, the court found th a t the board “ m ain ta ined and
enforced” a com pletely seg rega ted system by using
the neighborhood plan to take advan tage of rac ia l
residential p a tte rn s. See also Evans v. Buchanan,
D.Del. 1962, 207 F. Supp. 820, w here, in spite of a gen
uflexion in the direction of Briggs, the Court found
that there was gerrym andering of school d istric ts
superimposed on a gve-Brown policy of segregation.
C. The defendants e rr in their contention that the
HEW and the courts cannot take race into considera
tion in establishing standards for desegregation
“The Constitution is not this color-blind.”®*
The Constitution is both color blind arid color con
scious. To avoid conflict w ith the equal protection
Modified plan approved, 195 F.Supp. 231, aff’d 2 Cir. 1961,
294 P.2d 36, cert, den’d 368 U.S.-940 (1961). See Kaplan, Segre
gation Litigation and the Schools—Part 1; The New Rochelle
Experience, 58 NW.U. L. Rev. 1 (1964). Jackson v.
School Board of the City of Lynchburg, W.D. Va. 1962,
203 PSupp 701; Dowell v. School Board of Oklahoma City
Public Schools, W.D. Okla. 1965, 244 F.Supp. 971; and Swann
V. Charlotte-Mecklenburg Board of Education, W.D.N.C. 1965, 243
F.Supp. 667, followed Taijlor on the unconstitutionality of racial
gerrymandering. See also Jackson v. Pasadena City Schom Dis-
trict, 1963, 59 Cal.2d 876, 382 P.2d 878; Clemons v Board of Edu
cation of Hillsboro, 6 Cir. 1956, 228 853, cert, den d
350 U.S. 106 (1956); Fuller v. Volk, 3 Cir. 1965, 351 H2d 323.
®® Taylor v. Board of Education of the City of New Rochelle,
S.D.N.Y. 1961, 191 F.Supp. 181, 196, af f d 294 F.2d 36 (Kauf
man, J.).
70 U. S., et al. v. Jeff. County Bd. of Educ., &t al.
clause, a classification th a t denies a benefit, causes
h a rm , or im poses a burden m ust not be based on race .
In th a t sense, the C onstitution is color blind. B ut the
C onstitution is color conscious to p rev en t d iscrim
ination being perpetuated and to undo the effects of
p a s t d iscrim ination. The crite rion is the re levancy
of color to a leg itim ate governm ental purpose. For
exam ple, ju ry venires m ust rep resen t a cross-section
of the com m unity. Strauder v. W est Virginia, 1880,
100 U.S. 303, 25 L .Ed. 664. The ju ry com m issioners
therefo re m u st have a “ conscious aw areness of race
in extinguishing rac ia l d iscrim ination in ju ry se rv
ice” . Brooks V . Beta, 5 Cir. 1966,, 366 F.2d 1. S im ilar
ly, in voter reg istration cases we have used the
“ freezing p rincip le” to justify enjoining the use of
a constitutional statu te w here, in effect, the sta tu te
would perpetuate p ast ra c ia l d iscrim ination against
N egroes. United States v. Louisiana, E .D . La. 1963,
225 F.Supp. 353, a ff’d 1965, 380 U.S. 145, 85 S.Ct. 817,
13 L .E d .2d 817. “ [I]t is un realistic to suppose tha t
the evils of decades of flag ran t race discrim ination
can be overcom e by purging reg is tra tio n rolls of white
voters. . . . [UJnless there is som e appropria te way
to equalize the p resen t w ith the past, the injunctive
prohibitions even in the m ost stringen t, em phatic,
m andatory te rm s prohibiting d iscrim ination in the
future, continues for m any y ears a s tru c tu re com
m itting effectual political power to the a lread y reg is
te red w hites while excluding N egroes from this vital
activ ity of citizenship .” United States v. Ward, 5 Cir.
1965, 349 F.2d 795, 802. “ An appropria te rem edy . . .
should undo the resu lts of past d iscrim ination as well
17. S., et al. V. Jeff. County Bd. of Educ., et al. 71
as p rev en t fu tu re inequality of tre a tm e n t.” United
States V. Duke, 5 Cir. 1964, 332 F.2d 759, 768. If the
Constitution w ere absolutely color-blind, considera
tion of race in the census and in adoption proceedings
would be unconstitutional.
H ere race is relevant,®® because the governmental
purpose is to offer N egroes equal educational oppor
tunities. The m eans to that end, such as d isestab
lishing segregation am ong students, d istributing
the b e tte r teach ers equitably, equalizing facilities,
selecting ap p rop ria te locations for schools, and avoid
ing reseg reg a tio n m ust necessarily be based on race.
School officials have to know the racial composition
of the ir school populations and the ra c ia l d is trib u
tion w ithin the school d istrict. The Courts and HEW
cannot m easure officials’ good fa ith or p rog ress w ith
out taking race into account. “ W hen rac ia l im balance
infects a public school system , there is sim ply no way
to allev iate it w ithout consideration of race. . . .
There is no constitu tional rig h t to have an inequality
89 “The justification for the school board’s incorporation of
racial distinctions in its correctional scheme is that race is a
relevant characteristic, given the school hoard’s purpose, which is
to avoid psychological injury to the Negro child, break down
social barriers, and mitigate the academic inadequacy of the im
balanced schools. Of course, it might be argued that many of the
evils the school board attempts to eliminate when it takes correc
tional steps are not attributable to the race of the individuals
within the imbalanced school, but instead are attributable to their
social class. Yet, certain of these evils are uniquely related to the
fact that the imbalance is a racial one; namely, those attributable
to the personal impact of the imbalance on the Negro. Moreover,
most Negroes in the ghetto, and hence attending an imbalanced
school, are members of the lowest economic class, and thus the
board’s remedial measures will tend to cure the social imbalance
as well.” Fiss, Racial Imbalance in the Public Schools: The
Constitutional Concepts, 78 Harv. L. Rev. 564, 577-78 (1965).
72 U. S., et al. v. Jeff. County Bd. of Educ., et al.
perpetuated.”®" Judge Sobeloffs answer in Wanner v.
County School Board of Arlington County, 4 Cir. 1966,
357 F .2d 452, 454-55, is our answ er in th is case:
“ If a school b o ard is constitu tionally fo r
bidden to institu te a sy stem of rac ia l seg re
gation by the use of artificia l boundary lines,
it is likew ise forbidden to p e rp e tu a te a system
th a t has been so institu ted . I t would be stu lti
fying to hold th a t a board m ay not m ove to
undo a rran g em en ts artificia lly contrived to
effect or m ain ta in segregation , on the ground
th a t th is in terference w ith the s ta tu s quo
would involve ‘consideration of race .’ W hen
school au thorities, recognizing the h istoric
fa c t th a t existing conditions a re b ased on a
design to seg rega te the races , a c t to undo
these illegal conditions—especially condi
tions th a t have been jud ic ia lly condem ned—
th e ir effort is not to be fru stra ted on the
ground th a t race is not a perm issib le con
sideration. This is not the ‘consideration of
race ’ w hich the Constitution discountenances.
. . . T here is no legally p ro tec ted vested in
te re s t in segregation . If there w ere, then
Brown v. B oard of E ducation and the num er
ous decisions based on th a t case would be
pointless. Courts will not say in one b rea th
th a t public school system s m ay not p ractice
segregation , and in the next th a t they m ay
do nothing to elim inate i t .”
90 Wright, Public School Desegregation: Legal Remedies for De
Facto Segregation, 16 West. Res. L. Rev. 478, 489 (1965).
U. S., et al. V. Jeff. County Bd. of Educ., et al. 73
D. U nder Briggs’s blessing, school boards th rough
out this c ircu it firs t declined to tak e any a ffirm ative
action th a t m igh t be considered a move tow ard in
tegration. Later, they em braced the Pupil P lacem ent
Laws as likely to lead to no m ore th an a little token
desegregation. Now they tu rn to freedom of choice
plans supervised by the d is tric t courts. As the de
fendants construe and adm in ister these p lans, w ith
out the aid of HEW stan d ard s th e re is little pros
pect of the plans’ ever undoing past discrimination
or of com ing close to the goal of equal educational
opportunities. M oreover, freedom of choice, as now
adm instered, necessarily prom otes resegregation.
The only relief approaching adequacy is the conver
sion of the still-functioning dual system to a un itary ,
non-racial system —lock, stock, and barre l.
If this process be “ in tegration” according- to the
1955 Briggs court, so be it. In 1966 th is rem edy is the
relief com m anded by Brown, the Constitution, the
Past, the P resen t, and the wavy fofe-im age of the
Future.
IV.
We tu rn now to the specific provisions of the Civil
Rights' Act on which the defendants rely to show tha t
HEW violates the Congressional intent. These p ro
visions a re the am endm ents to Title IV and VI added
in the Senate. The legislative h istory of these am end-
74 U. S., et al. v. Jeff. County Bd. of Educ., et al.
m ents is sparse and less au thorita tive th an usual be
cause of the lack of com m ittee repo rts on the
am ended version of the bill.
A. Section 401(b) defines desegregation :
“ ‘D esegregation’ m eans the assignm ent
of students tO' public schools and w ithin such
schools w ithout reg a rd to th e ir race , color,
religion, or national origin, bu t ‘deseg rega
tion ’ shall not m ean the assignm ent of stu
dents to public schools in o rder to overcom e
rac ia l im b a lan ce .”
The a ffirm ative portion of this definition, down to
the “ b u t” clause, describes the assignm ent provi
sion necessary in a p lan for conversion of a de jure
dual system to a un itary , in teg ra ted system . The
negative portion, starting w ith “ b u t” , excludes as
signm ent to overcom e rac ial im balance, th a t is, acts
to overcom e de facto segregation . As used in the
Act, therefore , “ desegregation” re fe rs only to the
d isestab lishm ent of segregation in de ju re segre
gated schools. E ven if a b roader m eaning should be
given to “ assignm ent . . . to overcom e rac ial im
b a lan ce” , Section 401 would not m ean th a t such as
signm ents a re unlawful:
“ The in ten t of the s ta tu te is th a t no funds and
no techn ica l assis tance will be given by the
U nited S tates C om m issioner of E ducation
w ith respec t to p lans for the assignm ent of
students to public schools in o rder to over-
U. S., et al. V. Jeff. County Bd. of Educ., et al. 75
come rac ia l im balance. The s ta tu te m ay not
be in te rp re ted to m ean th a t such assignm ent
is illegal or th a t reasonab le in teg ra tion ef
forts are arbitrary or unlawful.”®̂
The prohibition against assignm ent of studen ts to
overcome racial im balance w as added as an am end
m ent during the debates in the House to achieve the
same resu lt as the anti-bussing provision in section
407. Some of the difficulty in understanding the Act
and its leg islative h istory a rises from the s ta tu te ’s
use of the undefined te rm “ racial im balance” . I t is
clear how ever from the hearings and debates that
Congress equated the te rm , as do the com m entato rs,
with “ de facto segregation” th a t is, non-raciaUy
m otivated segregation in a school system based on
a single neighborhood school for all children in a de
finable area.®2 Thus, Congressman William Cramer
Addabbo v. Donovan, 22 App. Div.2d 383, 256 N.Y.S.2d 178,
184, (2d Dept. 1965), aff’d, 16 N.Y.2d 619, 261 N.Y.S.2d 68, 209
N.B.2d 112 (1965), cert, denied, 382 U.S. 905 (1965).
82 For example, “Racial imbalance” and “de facto segregation’
are “used synonymously . . . [to] refer to a situation where a
school is predominantly composed of Negro students not as a
result of state action but rather as the end product of segregated
housing and adherence to the neighborhood school plan. Gillmor
and Gosule, 46 Boston U. L. Rev. 45, 46 (1966). The term de
facto segregation” has become accepted as denoting non-racially
motivated separation of the races as opposed to de jure se^e-
gation” denoting deliberate separation of the races by law. Since
segregation is unconstitutional, each is a contradiction iii terms.
One student of the problem has pointed out, “The term de facto
segregation makes the racially imbalanced school appear . . .
[to be] the Northern counterpart of segregated education under
Jim Crow laws . . . . As such the term distorts reality and
paralyzes thought. [Racial] imbalance is frequently labeled de
facto’ segregation to suggest that the requisite governmental
involvement cannot be found.” Fiss, Racial Imbalance
Schools: The Constitutional Concepts, 78 Harv. L. Rev. 564, 566, 584
(1965). Another has said, “As a more accurate term, racial im-
76 U. S., et al. v. Jeff. County Bd. of Educ., et al.
who' offered the am endm ent, w as concerned that the
bill as originally proposed m igh t authorize the gov
ernm ent to requ ire bussing to overcom e de facto seg
regation. In explaining the am endm ent, he said:
“ In the hearings before the com m ittee I
raised questions on ‘rac ia l im b a lan ce’ and
in the sub-com m ittee we had lengthy d iscus
sions in reference to having these w ords
stricken in the title , as it then consisted, and
to s trike out the words ‘racial im balance’ p ro
posed by the administration, f The purpose is to
prevent any semblance of congressional ac
ceptance or approval of the concept of ‘de
facto’ segregation or to include in the defini
tion of ‘desegregation’ any balancing of school
attendance by moving students across school
district lines to level off percentages where
one race outweighs another.”
The neighborhood school system is rooted deeply
in American culture.®^ W hether its continued use is
balance will be used to denote fortuitous racial separation in the
public schools”. King, Racial Imbalance in the Public Schools:
Constitutional Dimensions and Judicial Response, 18 Vand. L.
Rev. 1290, 1291 (1965).
“De facto segregation has become the short way of describing
the existing situation in northern cities. . . . a school system
which is marked by a very high proportion of Negroes in some
of its schools, and few or none in others, but in which this
separation has taken place without the compulsion of a state law
or officially announced policy requiring that Negro and white
children be placed in separate schools.” Hyman and Newhouse,
Desegregation of the Schools: The Present Legal Situation, 14
Buff. L. Rev. 208, 221 (1964). See also Carter, De Facto Segre
gation, 16 West. Res. L. Rev. 502, 503 (1965).
9® The rationale of the neighborhood school system is that the
school serves as the educational, recreational, and cultural center
of the community. See Hansen, The Role of Educators, 34 Notre
Dame L. Rev. 652, 654 (1959). Proponents of the view that
neighborhood schools may become so racially imbalanced as to
U. S., et al. V. Jeff. County Bd. of Educ., et al. 77
constitutional w hen it leads to grossly im balanced
schools is a question som e day to be answ ered by the
Supreme Court, but th a t question is not p re sen t in any
of the cases before this Court. As noted in the previous
section of this opinion, we have m any instances of a
heavy concentration of Negroes or w hites in certa in
areas, but alw ays th a t type of im balance has been
superim posed on to ta l school separa tion . And alw ays
the separation originally w as rac ia lly m otivated and
sanctioned by law in a system based on two schools
within a neighborhood or overlapping neighborhoods,
each school serving a different race . The situations
have som e sim ilarity bu t they have d ifferent origins,
create d ifferent problem s, and requ ire different cor
rective action.®*
In the 1964 Act (and again in 1966 during consider
ation of am endm ents to the E lem en tary and Secon
dary E ducation Act of 1965) Congress, w ithin the con-
require affirmative corrective action point out: “The modern-day
neighborhood school cannot he equated with the common school
of yesteryear—the latter constitutes America’s ideal of a demo
cratic institution—a single structure serving a heterogeneous
community in which children of varied racial, cultural, religious,
and socio-economic backgrounds were taught together—the pro
verbial melting pot. Because of rigid racial and socio-economic
stratification, ethnic and class similarity has become the most
salient present-day neighborhood characteristic, particularly in ur
ban areas. The neighborhood school, which encompasses a homo
geneous racial and socio-economic grouping, as is true today, is the
very antithesis of the common school heritage.” Carter, De Facto
School Segregation: An Examination of the Legal and Constitu
tional Questions Presented, 16 West. Res. L. Rev. 502, 507 (1965).
See also Sedler, School Segregation in the North and West: Legal
Aspects, 7 St. Louis U. L. J. 228, 252-56 (1963).
For some idea of the number and complexity of the adminis
trative problems school officials face in dealing with de facto
segregation, see Kaplan, Segregation Litigation and the Schools—
Part II: The General Northern Problem, 58 NW. U. L. Rev. 157,
182-186 (1963). Professor Kaplan quotes at length excerpts from
the testimony in Bell.
78 U. S., et al. v . Je/f. County Bd. of Educ., et al.
tex t of debates on aid to de facto seg rega ted schools
declined to decide ju s t w hat should be done about
imbalanced neighborhood schools.®̂ ®- The legislative
solution, if there is one to this problem , will require
a carefu lly conceived and thoroughly debated com
p rehensive statu te. In the 1964 Act Congress simply
d irec ted th a t the fed era l assis tance provided in Title
IV, §403-5 was not to be used for developing plans to
assign pupils to overcome racial imbalance.®® Simi
larly , C ongress w ithheld authorizing the Attorney
G eneral, in school desegregation actions, to ask for
a court o rder calling for bussing pupils from one
school to another to “achieve a racial balance”.®®
The question of providing special, ear-marked federal funds
for school districts that were trying to correct imbalanced neigh
borhood schools came up again in connection with the 1966
amendments to the Elementary and Secondary Education Act of
1965. The House committee recommended special priority for ap
plications under Title III of the Act from local school districts
which sought help with problems of overcrowding, obsolescence,
or racial imbalance. The House withdrew priority for dealing
with problems of racial imbalance and added an amendment to
Section 604 of the Act to the effect that nothing in the Act
be construed to “require the assignment or transportation
of students or teachers in order to overcome racial imbalance.”
The Senate went along with both actions. The debate makes
clear that Congress was once again talking about racial imbalance
in the context of de facto, not de jure, school segregation. See
particularly Congressional Record, October 6, 1966, pp. 24538-9;
24541-3. See also 1966 U.S. Code Congressional and Administra
tive News, No. 11, pp. 5089-90, for language in House committee
report recommending the priority position of applications to deal
with racial imbalance.
Congressman Cramer’s amendment.
This restriction appears in §407 of the Act. In its contpt
it seems clearly to restrict the Attorney General to requesting
only such relief as is constitutionally compelled. In other words,
the Act is not to be construed as authorizing a statutory duty
to reduce imbalance by bussing. Certainly the language of §407
does not call for a construction that prohibits a court order direct
ing that school boards abandon racially discriminatory practices
which violate the Constitution. Nor does it suggest that the
Attorney General is precluded from requesting court orders to
end racial imbalance resulting from unconstitutional practices.
17. S., et al. V. Jeff. County Bd. of Educ., et al. 79
B. Section 407(a)(2) of Title IV authorizing the
Attorney G eneral to file suit to desegregate, contains
the “ anti-bussing” proviso;
. nothing h ere in shall em pow er any of
ficial or court of the U nited States to issue any
order seeking to achieve a racial balance
in any school by requ iring the tran spo rta tion
of pupils or students from one school to an
other or one school d is tric t to ano ther in o r
der to achieve such rac ia l com pliance w ith
constitutional s tan d ard s .”
F irst, i t should be noted th a t the prohibition ap
plies only to tran spo rta tion ; and only to tra n sp o rta
tion across school lines to achieve rac ia l balance.
The furnishing of tran sp o rta tio n as p art of a free
dom of choice plan is not prohibited. Second, the
equitable pow ers of the courts exist independently of
the Civil R ights Adt of 1964. I t is not contended in the
instant cases th a t the A ct conferred new au thority
on the courts. And this Court has Jiot looked to the
Act as a g ran t of new judicia l authority .
Section 407(a)(2) m igh t be read as applying only
to orders issued in suits filed by the A ttorney G eneral
under T itle IV. However, Senator, now Vice P resid en t
Humphrey, F loor M anager in the Senate, said it w as
his understanding th a t the provision applied to the
entire bill. In p a rticu la r, he said th a t it applies to
any refusal or te rm ina tion of federa l assistance un
der Title VI since the procedure for doing so requ ires
an order approved by the P residen t. Senator H um
phrey explained:
80 U. S., et al. v. Jeff. County Bd. of Educ., et al.
“ This addition seeks sim ply to preclude an
inference that the title confers new authority
to deal with ‘racial im balance’ in schools,
and should serve to soothe fea rs th a t T itle TV
m ight be read to em pow er the F ed e ra l Gov
ernm en t to o rder the bussing of children
around a city in o rder to achieve a certa in r a
cial balance or mix in schools. Furthermore,
a new section 410 would explicitly declare th a t
‘nothing in th is title shall p rohib it c lassifica
tion and assignm ent for reasons o ther th an
race , color, religion, or na tional orig in .’
T[ Thus, classification along bona fide neighbor
hood school lines, or for any other legitimate
reason w hich local school boards m ight see
fit to adopt, would not be affected by Title
IV, so long as such classification w as bona
fide. F u rth e rm o re , th is am endm ent m akes
c lear th a t the only F ed e ra l in terven tion in
local schools will be for the purpose of p re
venting denial of equal protection of the
law s.” (E m phasis added.)
Senator H um phrey spoke several tim es in the lan
guage of Briggs but his refe rences to Bell indicate
th a t the restric tions in the Act w ere pointed a t the
G ary, In d ian a de facto type of segregation. Senator
B yrd (W est V irginia) asked Senator H um phrey would
he give assu ran ce “ th a t under Title VI school children
m ay not be bussed from one end of the com m unity to
ano ther end of the com m unity a t ta x p a y e rs ’ expense
to relieve so-called rac ia l im balance in the schools” .
Senator H um phrey rep lied :
U. S., et al. V. Jeff. County Bd. of Educ., et al. 81
“ I do . . . T hat language is to be found in
Title IV. The provision [§407(a)(2)] m e re
ly quotes the substance of a recen t court de
cision which I have w ith m e, and w hich I
desire to include in the R ecord today, the
so-called G ary c ase .”
Senator H um phrey explained:
“ Judge R eam er’s opinion in the Gary case is
significant in th is connection. In discussing
th is case, as we did m any tim es, it w as de
cided to w rite the thrust of the court’s opin
ion into the proposed su b stitu te .” (E m p h a
sis added.)
The th ru s t of the Gary case (Bell) was th a t if school
districts w ere draw n w ithout reg a rd to race , but
ra ther on the basis of such fac to rs as density of pop
ulation, trav e l d istances, safety of the children, costs
of operating the' school system , and convenience to
parents and children, those d istric ts a re valid even
if there is a racial im balance caused by d iscrim ina
tory p rac tices in housing. Thus, continuing his ex
planation, Senator H um phrey said:
“ The bill does not a ttem p t to in teg ra te the
schools, but it does a ttem p t to elim inate seg
regation in the schools. The natu ra l factors,
such as density of population, and the dis
tance th a t students would have to trav e l a re
considered leg itim ate m eans to determ ine the
validity of a school d istrict, if the school dis
tricts are not gerrymandered, and in effect
82 U. S., et al. v. Jeff. County Bd. of Educ., et al.
deliberately segregated. The fac t th a t th e re is
a rac ia l im ibalance per se is not som ething
which is unconstitutional. T hat is why we
have a ttem p ted to clarify it w ith the lan
guage of Section 4.” (E m phasis added.)
C. Section 601 sta tes the general purpose of Tith
VI of the A ct:
“ No person in th e United S ta tes shall, on the
ground of race , color, or national origin, be
excluded from p artic ipa tion in, he denied the
benefits of, or be subjected to d iscrim ination
under any p ro g ram or activ ity receiving
F ed e ra l financial assistance .” (E m phasis
added.)
This is a c lea r congressional s ta tem en t tha t racial
d iscrim ination ag a in st the beneficiaries of fed era l as
sistance is unlawful. C hildren attending schools which
receive federal assis tance a re of course am ong the
beneficiaries. In the House, C ongressm an Celler ex
plained:
“ The legality is based on the genera l power
of Congress to apply reasonab le conditions. . .
Ifin general, it seems ra ther anomalous that
the F ed e ra l G overnm ent should aid and abet
d iscrim ination on the basis of race, color or
national origin by granting m oney and other
kinds of financial aid. I t seem s ra th e r shock
ing, m oreover, that while we have on the one
hand the 14th am endm ent, which is supposed
to do aw ay with d iscrim ination since it pro-
U. S., et al. V. Jeff. County Bd. of Educ., et ai. 83
vides for equal pro tection of the laws, on the
other hand, we have the F edera l G overnm ent
aiding and abetting those who p e rs is t in
practicing rac ia l d iscrim ination .”
In the Senate, Senator Jav its , an ass is tan t floor-
manager, expressed concern as to the c larity of the
statem ent of policy:
“ I ask the Senator w hether we now have a
clear understand ing th a t if title VI shall be
enacted as it is now proposed, the express
and c lear policy of Congress against aiding
d iscrim ination will prevail . . . ”
Senator H um phrey answ ered:
‘‘Some F ed e ra l agencies ap p ear to have been
re luc tan t to ac t in this a rea . Title VI will re
quire them to act. Its en ac tm en t will thus
serve to insure uniform ity and perm anence
to the nondiscrim ination policy.”
D. Section 604 of the Act, 42 U.S.C. § 2000d—3 is
the section the defendants principally rely upon and
the section most misunderstood.®^ It provides:
‘‘Nothing contained in this title shall be con
strued to authorize action under this title by
any d ep artm en t or agency with respect to
any em ploym ent practice of any employer
em ploym ent agency, or labor organization ex-
See Hearings Before the Committee on Rules, House of Repre-
sentotives, 89 Cong. 2nd Sess., on H. Rep., 826, Sept. 29-30, 1966,
24-26, 37-40.
84 U. S., et al. v. Jeff. County Bd. of Educ., et al.
cept w here a p rim ary objective of the F ed
e ra l financial ass is tan ce is to provide em
p loym ent.” (E m phasis added.)
The defendants contend that th is section bars any ac
tion requ iring desegregation of faculties and school
personnel.
Section 604 w as not a p a r t of the original House
bill. Senator H um phrey, while introducing the Act
explained: “ [The] Com m issioner m igh t also be
justified in requ iring elim ination of rac ia l d iscrim ina
tion in em ploym ent or assignm ent of teach ers , at
leas t w here such d iscrim ination affected the educa
tional opportunities of students. See Braxton v. Board
of Public Instruction of Duval County, 5 Cir. 1964, 326
F.2d 616.” 110 Cong.Rec. p. 6345. T hat w as in M arch
1964. In June 1964, in explaining the am endm ents,
Senator H um phrey said, “ This provision is in line
w ith the provisions of section 602®® and serves to spell
out m ore p recisely the declared scope of coverage
of the title .” In the sam e speech he s ta ted (110 C.R.
12714): “We have m ade no changes of substance in
Title V I.” This explanation plainly indicates th a t the
am endm en t w as not intended as a s ta tu to ry bar to
facu lty in tegration in schools receiv ing fed era l aid.
H ow ever, in the in te rv a l betw een these two expla
nations the A ttorney G eneral, in response to a letter
from Senator Cooper, s ta ted th a t Section 602 would
not apply to federally aided em ployers who discrim
inated in em ploym ent p rac tices: “ Title VI is limited
. . . to d iscrim ination against the beneficiaries of
®* See footnote 19.
U. S., et al. V. Jeff. County Bd. of Educ., et al. 85
federal assistance p rogram s. . . . W here, how ever,
employees a re the in tended beneficiaries of a p ro
gram, Title VI would apply”.®® He gave as an ex
ample acce lerated public w orks p rogram s. I t was
after the receip t of the A ttorney G eneral’s le tte r
that the am ended Senate bill w as passed. The school
boards argue therefore that Section 604 w as enacted,
because of the A ttorney G enera l’s in te rp re ta tion , to
exclude in terference w ith em ploym ent p ractices of
schools.
In its b roadest application this argum ent would a l
low rac ia l d iscrim ination in the hiring, d ischarge, and
assignment of teachers. In its narrow est application
this argum en t would allow discrim ination in hiring
and d ischarging but no t-in assigning teachers, an in
explicable anomaly.^®® There is no m erit to this ar
gument. Section 604 and the A ttorney G enera l’s le t
ter are not inconsistent, since under Section 601 it is
the school children, not the teach ers (em ployees),
who are the p rim ary beneficiaries of federa l a ss is t
ance to public schools. F acu lty in tegration is essen
tial to student desegregation. To the extent th a t
teacher d iscrim ination jeopardizes the success of de
segregation, it is unlaw ful wholly aside from its ef
fect upon individual teachers.
After Section 601 w as proposed, additional c larify
ing language w as suggested to m ake it c lear th a t
discrimination in certa in em ployer-em ployee relation
ships, not affecting the intended beneficiaries of the
program, would be excluded from the reach of the
BNA Operations Manual, The Civil Rights Act of 1964, p. 359.
® See Note, Desegregation of Public School Activities, 51 Iowa
O' Rev. 681, 690-96 (1966).
86 U. S., et al. v. Jeff. County Bd. of Educ., et al.
sta tu te . See H earings, H.R. Comm, on R ules, H. R.
7152, 88th Cong., 2d Sess. (1964), pp. 94. 226; 110
C.R. 6544-46 (Senator H um phrey). F o r exam ple, there
w as a serious question as to w hether the bill would
forbid a fa rm e r who w as receiving benefits under
the A gricultural A djustm ent Act from discrim inat
ing upon the basis of race in the seleption of his em
ployees. H earings, H.R. Comm, on Rules, H. R.
7152, 88 Cong., 2d Sess., 1964, p. 94, 110 C.R. 6545
(Senator H um phrey). The addition of Section 604 to
the bill a s originally proposed clearly excluded the
application of the Act to this type of situation. Con
gress did not, of course, intend to provide a forum
for the relief of individual teach ers who m ight be
d iscrim inatorily discharged; Congress w as interested
in a general req u irem en t essen tial to success of the
program as a whole.̂ *̂ ^
Collaterally to their a rgum en t on Section 604, the
defendants cite Section 701(b) of Title VII, covering
E qual E m ploym ent O pportunities, w hich specifically
excepts a “ s ta te or political subdivision thereof” . This
section has no application to schools. Section 701(b),
defines “ em ployer” as “ a person engaged in an in
dustry affecting com m erce who has twenty-five or
m ore em ployees. . . . ”
101 Senator Humphrey explained: The “elimination of racial dis
crimination in employment or assignment of teachers . . . does
not mean that Title VI would authorize a federal official to pre
scribe [particular] pupil assignments, or to select a [particular]
faculty as opponents of the bill have suggested. The only au
thority conferred would be authority to adopt, with the approval
of the President, a general requirement that the local school au
thority refrain from racial discrimination in treatment of pupils
and teachers . . . ” 110 Cong. Rec. 6545.
17. S., et al. V. Jejj. County Bd. of Educ., et al. 87
Section 604 w as never intended as a lim itation on
desegregation of schools. If the defendan ts’ view of
Section 604 w ere co rrec t the purposes of the sta tu te
would be fru stra ted , for one of the keys to desegre
gation is in tegration of faculty . As long as a school
has a Negro faculty it will always have a Negro
student body. As the D istric t Court for the W estern
D istrict of V irginia put it in Brown v. County School
Board of Frederick County, 1965, 245 F. Supp. 549,
560:
“ [T]he presence of all N egro teach ers in a
school a ttended solely by Negro pupils in the
p ast denotes th a t school a ‘colored school’ ju s t
as certain ly as if the words w ere prin ted
across its en trance in six-inch le tte rs .”
As fa r as possible fed era l courts m ust c a rry out
congressional policy. But we m ust not overlook the
fact th a t ‘‘we deal here w ith constitutional righ ts and
not with those established by s ta tu te”.̂ ®̂ The right of
Negro students to be free from rac ia l discrim ination
in the form of a seg rega ted faculty is p a rt of their
broader righ t to equal educational opportunities. The
“m andate of Brown . . . forbids the [d iscrim ina
tory] consideration of race in facu lty selection just
as it forbids it in pupil p lacem en t.” Chambers v.
Hendersonville City Board of Education, 4 Cir. 1966,
364 F.2d 189.
In Brown II the Suprem e Court specifically re fe rred
to the reallocation of staff as one of the reasons p e r
mitting desegregation “ with all deliberate speed” .
Smith V. Board of Education of Morrilton, 8 Cir. 1966, 365
P.2d 770, 784.
88 U. S., et al. v. Jeff. County Bd. of Educ., et al.
“ In determ ining the additional tim e necessa ry . . .
courts m ay consider problem s re la ted to adm inistra
tion, arising from . . . personnel. . . (Em phasis
added.) 349 U.S. a t 301. F o r ten y ears, how ever, this
Court and other circuit courts^® ̂ had approved district
co u rts’ postponing hearings on facu lty desegregation.
Bradley v. School Board of the City of Richmond,
1965, 382 U. S. 103, ,86 S.Ct. 224, 15 L .Ed.2d 187 put an
end to this p rac tice . In Bradley the Supreme
Court held th a t faculty segregation had a direct
im pact on desegregation plans. The court sum m ari
ly rem anded the case to the d is tric t court holding that
it w as im proper for th a t court to approve a desegre
gation p lan without considering, a t a full evidentiary
hearing , the im pact of facu lty allocation on a racial
basis. The Court said, “ [There is] no m erit to
the suggestion th a t re la tion betw een facu lty alloca
tion on an alleged rac ia l basis and the adequacy
of the desegregation plans a re en tire ly speculative.”
M oreover, “ D elays in desegregation of school
system s a re no longer to le rab le .” 382 U.S. at
105. In Rogers v. Paul, 1965, 382 U.S. 198, 200, 86 S.Ct.
358, 15 L .Ed.2d 265, the Suprem e Court held th a t Ne
gro students in g rades not yet deseg regated w ere en
titled to an im m edia te tra n s fe r to a w hite high school.
They “plain ly had stand ing” to sue on two theories:
(1) “ th a t racial allocation of faculty denies them
equality of educational opportunity without regard to
segregation of pupils, and (2) th a t it ren d ers ‘inade
quate an otherw ise constitutional pupil desegregation
103 por example, Lockett v. Board of Education of Muscogee
County, 5 Cir. 1965, 345 P.2d 225, 229; Calhoun v. Latimer, 5 Ch'
1963, 321 F.2d 302, 307; Bradley v. School Board of the City of
Richmond, 4 Cir. 1965, 345 F.2d ‘310, 320.
17. S., et al. V. Jeff. County Bd. of Educ., et al. 89
plan soon to be applied to th e ir g rad es .” In Singleton
II this Court, rely ing on Bradley, held th a t it w as “ es
sential” for the Jackson schools to m ake an “ade
quate s ta r t tow ard elim ination of race as a basis for
the em ploym ent and allocation of teachers , adm inis
trators and other personnel.” 355 F.2d a t 870.
In a recen t decision of the E igh th Circuit, Clark v.
Board of Education of Little Rock School District,
No. 18,368, D ecem ber 15, 1966, the Court requ ired a
“positive p ro g ram aim ed a t ending in the n ear fu tu re
the segregation of the teaching and operating staff”.
The Court stated: “We agree th a t facu lty seg reg a
tion encourages pupil segregation and is d e trim en ta l
to achieving a constitutionally requ ired non-racially
operated school system . It is c lear th a t the Board
may not continue to operate a seg regated teaching
staff. . . . I t is also c lear th a t the tim e for - delay is
past. The desegregation of the teaching staff should
have begun m any y ears ago. At th is point the Board
is going to have to take acce lera ted and positive ac
tion to end d iscrim inato ry p rac tices in staff assign
ment and rec ru itm en t.”
In Braxton v. Board of Public Instruction of Duval
County, 1964, 326 F.2d 616, 620, cert, denied 377 U. S.
924, the case cited by Senator H um phrey, this Court
affirmed an order of the d istric t court prohibiting as
signment of “ teach ers and other personnel . . . on a
racially seg regated b asis .” In Sm ith v. Board of E du
cation of Morrilton, 8 Cir. 1966, 365 F.2d 770, 778, the
Court said;
90 U. S,, et al. v. Jejf. County Bd. of Educ,, et al.
“ It is our firm conclusion th a t the reach of the
Brown decisions, although they specifically
concerned only pupil discrim ination, clearly
extends to the proscrip tion of the em ploym ent
and assignm ent of public school teach e rs on a
rac ia l basis. Cf. U nited Public W orkers v.
M itchell, 330 U. S. 75, 100 (1947); W iem an v.
U pdegraff, 344 U. S. 183, 191-192 (1952). See
Colorado Anti-Discrimination Comm’n v.
Continental A ir Lines, Inc., 372 U. S. 714, 721
(1963). This is p a rticu la rly evident fro m the
Suprem e C ourt’s positive indications th a t non-
d iscrim inato ry allocation of facu lty is indis
pensable to the valid ity of a desegregation
plan. B radley v. School B oard of the City of
R ichm ond, su p ra ; R ogers v. P au l, supra.
This court has a lready said, ‘Such d iscrim ina
tion [failure to in teg ra te the teach ing staff]
is proscribed by Brown and also the Civil
R ights Act of 1964 and tLe regulations prom ul
gated th e reu n d er’. K em p v. Beasley, supra, p,
22 of 352 F .2d .’’
In Wheeler v. Durham City Board of Education, 4
Cir. 1966, 363 F.2d 738, 740 the Court stated : “We read
[Bradley] as au thority for the proposition tha t re
m oval of race considerations from faculty selection
and allocation is, as a m a tte r of law, an inseparable
and indispensable com m and within the abolition of
pupil segregation in public schools as pronounced in
Brown v. Board of Education, 347 U.S. 483. Hence no
proof of the relationship of faculty allocation and
pupil assignm ent w as requ ired here. The only factual
U. S., et al. V. Jeff. County Bd. of Educ., et al. 91
issue is w hether race w as a fac to r en tering into the
employment and p lacem ent of te ac h e rs .” In Wright
V. County School Board of Greensville County, E.D.
Va. 1966, 252 F. Supp. 378, 384, holding th a t a faculty
desegregation provision approved by the Com m is
sioner of E ducation w as not sufficient, the court said:
“The p rim ary responsibility for the selection
of m eans to achieve em ploym ent and assign
m ent of staff on a nonracial basis res ts w ith
the school board. . . . Several principles m ust
be observed by the board. Token assignm ents
will not suffice. The elim ination of a rac ia l
basis for the em ploym ent and assignm ent of
staff m ust be achieved a t the earliest p ra c ti
cable date. The plan m ust contain well defined
procedures which will be put into effect on
definite dates. The board will be allowed
ninety days to subm it am endm ents to its plan
dealing w ith staff em ploym ent and assign
m ent p rac tice s .”
In Kier v. County School Board of Augusta County,
W.D. Va. 1966, 249 F. Supp. 239, 247, the court held
that free choice plans requ ire faculty in tegration:
‘‘F reedom of choice, in other words, does not
m ean a choice betw een a c learly delineated
‘Negro school’ (having an all-Negro faculty
and staff) and a ‘w hite school’ (w ith all-white
faculty and staff). School au thorities who
have heretofore opera ted dual school system s
for N egroes and w hites m ust assum e the duty
of elim inating the effects of dualism before a
92 U. S., et al. v. Jejj. County Bd. of Educ., et al.
freedom of choice p lan can be superim posed
upon the pre-existing situation and approved
as a final p lan of desegregation. It is not
enough to open the previously all-white
schools to Negro students who desire to go
th e re while all-Negro schools continue to be
m ain ta ined as such. . . . The duty res ts with
the School B oard to overcom e the d iscrim ina
tion of the past, and the long-established image
of the ‘Negro school’ can be overcom e under
freedom of choice only by the p resence of an
in tegrated facu lty .”
See also Dowell v. School Board of Oklahoma City
Public Schools, W.D. Okla. 1965, 244 F .Supp. 971, 977,
and Franklin v. County School Board of Giles County,
4 Cir. 1966, 360 F.2d 325.
We cannot im pute to Congress an intention to re
pudiate Senator H um phrey’s explanation of Section
604 and to change the substance of Title VI, tearing
the v ita ls from the s ta tu to ry objective. In tegration of
facu lty is indispensable to the success of deseg
regation plan. Nor can we im pute to Congress the
intention to license, unconstitutionally, discrimination
in the em ploym ent and assignm ent of teachers, a
conspicuous badge of de jure segregated schools.'"^
Chambers v. Hendersonville City Board of Education, 4
Cir. 1966, 364 F.2d 189, 192, involved the problem of surplus Negro
teachers who lost their jobs when an all Negro school was
abolished. The School Board treated them as new applicants.
The court held that this was discriminatory. Speaking for the
majority, Judge Bell said: “First, the mandate of Brown v.
Board of Education, 347 U.S. 483 (1954), forbids the considera
tion of race in faculty selection just as it forbids it in pupil place
ment. See Wheeler v. Durham City Board of Education, 346 F.2d
768, 773 (4 Cir. 1965). Thus the reduction in the number of
U. S., et a l . V. Jeff. County Bd. of Educ., et a l . 93
E. As we construe the Act and its legislative his
tory, especially the sponsors’ re liance on Bell, Con
gress, because of its hands-off a ttitude on bona fide
neighborhood school system s, qualified its b road pol
icy of nondiscrim ination by precluding HEW ’s re
quiring the bussing of children across d is tric t lines or
requiring com pulsory p lacem ent of children in schools
to strike a balance w hen the im balance resu lts from
de facto, th a t is, non-racially m otivated segregation.
As C ongressm an C ram er said, “ De facto segregation
is racial im b a lan ce” . But there is nothing in the lan
guage of the Act or in the legislative history that
equates corrective acts to desegregate or to integrate
a dual school system initially based on de jure segre
gation with acts to bring about a racial balance in a
system based on bona fide neighborhood schools.
Congress recognized th a t HEW ’s requ irem en ts for
qualifying for financial assistance a re one thing and
the courts’ constitutional and judicial responsibili
ties are som ething else again. The Act sta tes, th e re
fore, th a t it did not en large the cou rts’ existing pow
ers to ensure com pliance with constitutional stand
ards. But neither did it reduce the courts’ power.
V.
The HEW Guidelines agree w ith decisions of this
circuit and of the sim ilarly situated Fourth and
Negro pupils did not justify a corresponding reduction in the
number of Negro teachers. Franklin v. County Board of Giles
County, 360 P.2d 325 (4 Cir. 1966). Second, the Negro school
teachers were public employees who could not be discriminated
against on account of their race with respect to their retention
in the system. Johnson v. Branch, 364 F.2d 177, (4 Cir. 1966)
94 U. S., et al. v. Jeff. County Bd. of Educ., et al.
E ighth C ircuits. And they stay within the Congres
sional mandate. There is no cross-d istrict or cross
town bussing requ irem ent. T here is no provision re
quiring school au thorities to p lace white children in
N egro schools or N egro children in white schools for
the purpose of strik ing a rac ia l balance in a school or
school d is tric t p roportionate to the rac ia l population
of the community or school district.^”® The provision re
fe rring to percen tages is a general ru le of thum b or
objective adm in istra tive guide for m easuring prog
ress in desegregation ra th e r than a firm require
ment tha t must be met.^”® See footnotes 105 and 106.
105 The present Commissioner of Education, Harold Howe II, in
a congressional hearing declared:
“The guidelines do not mention and do not require
‘racial balance’ or the correction of racial ‘imbalance.’ Nor
have we in the administration of our obligations under Title
VI sought to establish ‘racial balance.’ They deal only with
desegregation plans designed to eliminate the dual school
systems for whites and Negroes, systems being operated
in violation of the 1954 Supreme Court ruling. . . . Racial
imbalance certainly means the notion of trying to establish
some proportion of youngsters that must be in each and every
school. We are not about such an enterprise. We are try
ing to give the effect of free choices to enter into, or to allow
free choices in having pupils enter into whatever school they
may wish to attend. I do not believe that free choice plans
were ever intended by the courts or by us to be an arrange
ment whereby the dual school system could continue with
out support of law. But rather an arrangement by which
over a period of time we would gradually have one school
system rather than two separate school systems. I do not
see that we are engaged in any way in establishing procedures
for balance.” Hearings before the Committee on Rules,
House of Representatives, 89th Cong. 2nd Sess., on H. Res.
26, Sept. 29-30, 1966, p. 32-34.
See also footnote 106.
1®® In a letter addressed to Members o f Congress and G overn ors,
dated April 9, 1966, and given wide publicity in the press, John
W. Gardner, Secretary of Health, Education and Welfare ex
plained the purpose of the percentages:
“The second area of concern involves the percentages men
tioned in the guidelines. Some have contended that this por
tion of the guidelines imposes a formula of ‘racial balance.’
U. S., et al. V. Jeff. County Bd. of Educ., et al. 95
Good fa ith in com pliance should be m easured by per
formance, not prom ises.
In review ing the effectiveness of an approved plan
it seems reasonab le to use some sort of ya rd stick or
objective percen tage guide. The percen tage requ ire
ments in the G uidelines a re m odest, suggesting only
that system s using free choice p lans for at leas t two
years should expect 15 to 18 per cent of the pupil popu
lation to have selected desegregated schools. This
Court has frequen tly relied on percen tages in ju ry ex-
This contention misconceives the purpose of the percentages.
The prevailing method of desegregation is what is called
the ‘free choice’ plan. Under such a plan, students select
their schools instead of being assigned to them on a geo
graphic basis. Courts have expressly conditioned their ap
proval of such plans on affirmative action by school boards
to insure that ‘free choice’ actually exists. It is our re
sponsibility to review such plans to insure that the choice
is, in fact, free and to indicate to school districts what pro
cedures should be used to assure true freedom of choice.
In seeking appropriate criteria to guide us in rfeview of
free choice plans, we have adopted the objective criteria ap
plied by the courts in similar situations. One such criterion is
the distribution of students by race in the various schools of a
system after the students have made their choices. If sub
stantial numbers of Negro children choose and go to pre
viously all-white schools, the choice system is clearly operat
ing freely. If few or none choose to do so in a community
where there has been a pattern of segregation, then it is ap
propriate that the free choice plan be reviewed and other
factors considered to determine whether the system is
operating freely.
With more than 2000 separate districts to consider, such
percentages are thus an administrative guide which helps
us to determine those districts requiring further review.
Such review in turn will determine whether or not the free
dom of choice plan is in fact working fairly." New York
Times, April 12, 1966, page 1.
Printed in Hearings before the Committee on Rules, House of
Representatives, 89 Cong. 2nd Sess., on H. Res. 826, Sept. 29-30,
1966, p. 31. Commissioner Howe reaffirmed Secretary Gardner’s
policies as stated in the letter. See Hearings on H. Res. 826,
p. 30-33.
96 U. S., et al. v. Jeff. County Bd. of Educ., et al.
elusion cases. W here the percen tage of N egroes on the
ju ry and ju ry venires is d isproportionately low com
p a red w ith the N egro population of a county, a p rim e
facie case is m ade for de liberate d iscrim ination
against Negroes.^®^ Percentages have been used in other
civil rights cases.̂ ®® A similar inference may be drawn
in school desegregation cases, when the num ber of
N egroes attending school w ith w hite children is m an
ifestly out of line w ith the ra tio of N egro school chil
dren to white school children in public schools. Com
m on sense suggests th a t a gross d iscrepancy between
the ra tio of N egroes to white children in a school and
the HEW percen tage guides ra ises an inference tha t
the school p lan is not working as it should in pro
viding a un itary , in teg ra ted system . Thus Evans v.
Buchanan, D.C. Del. 1962, 207 F. Supp. 820̂ ®® held that
th is n a tu ra l inference coupled w ith the b o ard ’s pos
sessing the probative fac ts th a t m ight rebu t the in
ference c rea ted a presum ption th a t the proposed de
segregation plan was unconstitutional.
107 “Very decided variations in proportions of Negroes and whites
on jury lists from racial proportions in the population, which
variations are not explained and are long continued, furnish evi
dence of systematic exclusion of Negroes from jury service.”
United States ex rel. Seals v. Wiman, 5 Cir. 1962, 304 F.2d 53, 67.
10® In United States v. Ward, supra at 803, the Court compared
the number of Negroes registered with the number of Negroes
eligible to vote. A similar practice is used in proving systematic
exclusion of Negroes from juries. Cassell v. Texas, 1950, 339
U.S. 282; Avery v. Georgia, 1953, 345 U.S. 559; Smith v. Texas,
1940, 311 U.S. 128. In each instance, percentage tests have been
used not as an effort to effect racial balance, but as a means
of determining whether a challenged procedure is operating in a
way that violates constitutional rights. See Finkelstein, The Ap
plication of Statistical Decision Theory to the Jury Discrimination
Cases, 80 Harv. L. Rev. 338 (1966).
11® See footnote 58.
U. S., et al. V. Jeff. County Bd. of Educ., et al. 97
The G uidelines w ere adopted for the en tire country.
However, they have been fo rm ulated in a context
sym pathetic with local problem s. Sections 403-405 of
the 1964 Civil R ights Act provide tha t, upon request,
the Com m issioner of E ducation m ay render technical
assistance to public school system s engaged in de
segregation. The C om m issioner m ay also establish
tra in ing institu tes to counsel school personnel having
educational problem s occasioned by desegregation;
and the C om m issioner m ay m ake g ran ts to school
boards to defray the costs of providing in-service
tra in ing on desegregation. In short, the Com m issioner
m ay assis t those school boards who allege th a t they
will have difficulty com plying w ith the guidelines.
When desegregation plans do. not m eet m inim um
standards, the school au thorities should ask HEW for
assistance. And d istric t courts should invite HEW to
assist by giving advice on ra ising the levels of the
plans and by helping to coordinate a school’s prom ises
with the school’s perform ance. In view of the com
petent assistance HEW m ay furnish schools, there is
a heavy burden on proponents of the a rgum ent th a t
their schools cannot m eet HEW standards.
VI.
School au thorities in this circuit, with few ex
ceptions, have turned to the “freedom of choice”
method for desegregating public schools. The m ethod
has serious shortcom ings. Indeed, the “ slow pace of
integration in the Southern and border S tates is in
large m easure a ttribu tab le to the m anner in which
98 U. S., et al. v. Jeff. County Bd. of Educ., et al.
free choice plans . . . have operated.” !̂® W hen such
p lans leave school officials with a b road a re a of un
controlled discretion, th is m ethod of desegregation is
b e tte r su ited than any other to p reserve the essen
tia ls of the dual school system while giving paper
com pliance w ith the duty to desegregate.
A free choice p lan does not abandon geographical
c rite ria , but requ ires ho rigid adherence to attendance
zones. T heoretically every child m ay choose his
school, but its effectiveness depends on the avail
ability of open places in balanced schools. M oreover,
unless th e re is som e provision to p reven t w hite chil
d ren tran sfe rrin g out of an im balanced school this
p lan will promote resegregation.^ti
11® Rep. U. S. Comm, on Civil Rights, Survey of School Desegre
gation in the Southern and Border States—1965-66, p. 51. “Free
dom of choice plans accepted by the Office of Education have
not disestablished the dual and racially segregated school systems
involved, for the following reasons: a. Negro and white schools
have tended to retain their racial identity; b. White students
rarely elect to attend Negro schools; c. Some Negro students
are reluctant to sever normal school ties, made stronger by the
racial identification of their schools; d. Many Negro children
and parents in Southern States, having lived for decades in posi
tions of subservience, are reluctant to assert their fights; e. Negro
children and parents in Southern States frequently will not choose
a formerly all-white school because they fear retaliation and
hostility from the white community; f. In some school districts
in the South, school officials have failed to prevent or punish
harassment by white children of Negro children who have elected
to attend white schools; g. In some areas in the South where
Negroes have elected to attend formerly all-white schools, the
Negro community has been subjected to retaliatory violence, evic
tions, loss of jobs, and other forms of intimidation.” Ibid-.
Ill See Goss v. Board of Education, 1963, 373 U.S. 683, 83 S.Ct
1405, 10 L.Ed.2d 632; Dillard v. School Board of the City of
Charlottesville, 4 Cir. 1962, 308 F.2d 920, cert, den’d 374 U.S.
827 (1963); Jackson v. School Board of the City of Lynchburg,
4 Cir. 1963, 321 F.2d 230. For discussion of limitations to
a free choice plan, see Fiss, Racial Imbalance in the Public
Schools, 78 Harv. L. Rev. 563, 572 (1965).
17. S., et al. V. Jeff. County Bd. of Educ., et al. 99
“ U nder freedom of choice p lans, schools tend to re
tain th e ir racial identification.”^^ Such plans require
affirm ative action by p aren ts and pupils to d isestab
lish the existing system of public schools. In th is c ir
cuit white students ra re ly choose to a ttend schools
identified as N egro schools. Negro students who
choose white schools are , as we know from m any
cases,.only N egroes of exceptional initia tive and fo rti
tude. New construction and im provem ents to the Ne
gro school p lan t a ttra c t no white students and dim in
ish Negro m otivation to ask for tran sfe r. N everthe
less, the E ighth C ircuit has approved freedom of
choice plans “ as a perm issib le m ethod a t this s tag e” ,
although recognizing th a t such a p lan “ is still only in
the experim en tal stage and it has not yet been dem
onstra ted th a t such a m ethod will fully im plem ent the
decision of Brown, and subsequent cases and the legis
lative declaration of §2000(d) of the Civil R ights Act
of 1964.”“ ® We have said; “At this stage in the history
of desegregation in the deep South a ‘freedom of
choice p lan ’ is an acceptable m ethod for a school
board to use in fulfilling its duty to in teg ra te the
school system . In the long run, it is hard ly possible
that schools will be adm inistered on any such hap
hazard b a s is” . Singleton II, 355 F.2d a t 71. HEW
Rep. U. S. Comm, on Civ. Rights, Survey of Desegregation in
the Southern and Border States, 1965-66. p. 33. The Commission
also notes that racial identification of schools as Negro schools is
strengthened by: (1) normal school ties; (2) the interest Negro
administrators and teachers have in maintaining the dual system
(from May 1965 to September 1965, 668 Negro teachers became
surplus because of desegregation); (3) some Negro educators are
opposed to desegregation, because past economic and cultural
deprivation makes Negroes ill prepared to compete with white
children in schools.
Kemp V. Beasley, 8 Cir. 1965, 352 P.2d 14, 21.
IQO U. S., et dl. V. Jeff, County Bd. of Educ., et al.
recognizes freedom of choice as a perm issib le m eans
of desegregation. See R evised G uidelines, S ubpart B,
181.11, and all of S ubpart D.
Courts should closely scrutin ize all such plans.
F reedom of choice plans “ m ay . . . be invalid be
cause the ‘freedom of choice’ is illusory. The plan
m ust be te sted not only by its provisions, but by the
m an n er in -which it opera tes to provide opportunities
for a deseg regated education .” Wright v. County
School Board of Greenville County, E.D .V a. 1966, 252
F.Supp. 378, 383. In th a t case the court w as concerned
th a t “ operation under the p lan m ay show th a t the
tran sp o rta tio n policy or the capac ity of the schools
severe ly lim its freedom of choice, although provisions
concerning these phases a re valid on th e ir fa c e ” . In
Lockett V . Board of Education of Muskogee County,
Ga., 5 Cir. 1965, 342 F.2d 225, we w ere concerned that
“p roper notice” be given so th a t “N egro students are
afforded a reasonab le and conscious opportunity to
^Pply foi" adm ission to any school which they are
otherw ise eligible to a ttend without reg a rd to ra c e ” .
Also, as Judge Bell, for the Court, pointed out, “a
n ecessa ry p a rt of the p lan is a provision th a t the dual
or b irac ia l school a ttendance system . . . be abol
ished .” See also Dowell v. School Board of Oklahoma
City Public Schools, W.D.Okla. 1965, 244 F. Supp. 971;
Bell V . School Board of City of Staunton, W.D.Va.
1966, 249 F.Supp. 249; Kier v. County School Board of
Augusta County, W.D. Va. 1966, 249 F.Supp. 239.
There is m uch th a t school au thorities should do to
m eet th e ir responsibilities:
17. S., et al. V. Jeff. County Bd. of Educ., et al. 101
“ [Brown] called for responsible public of
ficials to reap p ra ise th e ir thinking and poli
cies, and to m ake every effort to afford Ne
groes the m ore m eaningful equality g u aran
teed them by the Constitution. The Brown de
cision, in short, w as a lesson in dem ocracy ,
d irected to the public a t la rge and m ore
p a rticu la rly to those responsible for the opera
tion of the schools. It im posed a legal and
m oral obligation upon officials who had c re a t
ed or m ain ta ined segrega ted schools to undo
the damage which they had fostered.” Taylor
V. Board of Education of the City of New Ro
chelle, S.D .N .Y . 1961, 191 F. Supp. 181, 187,
a ff’d 294 F.2d 36, cert, den’d 368 U.S. 940
(1961).
School officials should consult with Negro and white
school au thorities before plans a re put in fina l.fo rm .
They should see th a t notices of plans and procedures
are c lear and tim ely. They should avoid the d iscrim
inatory use of te sts and the use of b irth and health
certificates to m ake tran sfe rs difficult. They should
elim inate inconvenient or burdensom e arran g em en ts
for tran sfe r, such as requiring the personal ap p ea r
ance of paren ts, notarized form s, signatures of both
parents, or m aking form s available at inconvenient
times to working people. They should employ
forms which do not designate the nam e of a Negro
school as the choice or contain a “ w aiver” of the
“righ t” to a ttend white schools. C ertainly school of
ficials should not discourage Negro children from en-
102 U. S., et al. v. Jeff. County Bd. of Educ., et al.
rolling in white schools, d irectly or indirectly , as for
exam ple, by advising them th a t they would not be
p e rm itted to engage or would not w ant to engage in
school activ ities, a th le tics, the band, clubs, school
p lays. If tran sp o rta tio n is provided for white children,
the schedules should be re-routed to provide for Ne
gro children. O vercrow ding should not be used as an
excuse to avoid tran sfe rs of N egro children. In
Bradley v. School Board of the City of Richmond, 4
Cir. 1965, 345 F.2d 310, 323, Judges Sobeloff and Bell,
concurring, said:
“A plan of desegregation is m ore than a
m a tte r of words. The a ttitude and purpose of
public officials, school ad m in is tra to rs and fac
ulties a re an in teg ra l p a rt of any plan and
determ ine its effectiveness m ore than the
words em ployed. If these public agents tra n s
la te th e ir duty into a ffirm ative and sym pa
thetic action the p lan will work; if th e ir sp irit
is obstructive, or a t best negative, little prog
ress will be m ade, no m a tte r w hat form of
words m ay be u sed .”
Freedom of choice m eans the m ax im um am ount of
freedom and c learly understood choice in a bona fide
u n ita ry system w here schools a re not white schools
or Negro schools—just schools.
We tu rn now to a discussion of the specific ele
ments of a freedom of choice plan that make it more
than a m ere word of prom ise to the ear.
U. S., et al. V. Jejj. County Bd. of Educ., et. al. 103
A. Speed of Desegregation. The announced speed
of desegregation no longer seem s to be a c ritica l is
sue. The school boards generally concede th a t by the
school y ear 1967-68 all g rades should be desegregated .
B. Mandatory Annual Free Choice. U nderlying and
tending to counteract the effectiveness of all the free
dom of choice p lans before the Court is the in itia l un
constitutional assignm ent of all students by race.
When the freedom of choice p lan is “ p erm issive” or
“vo lun tary” the effect is to superim pose the sam e old
tran sfe r p lan on rac ia l assignm ents and dual zones.
We hold th a t any freedom of choice p lan is inadequate
if based upon a p re lim inary system of assignm ent by
race or dual geographic zones. See Singleton II and
Lockett V. Board of Education of Muscogee County,
Ga., 5 Cir. 1965, 342 F.2d 225, resta ting the req u ire
m ent of Stell V. Savanndh-Chatham County Board of
Education, 5 Cir. 1964, 333 F.2d 55 and Gaines v.
Dougherty County Board of Education, 5 Cir. 1964,
334 F.2d 983. I t is essen tial th a t dual or b irac ia l school
a ttendance system s be abolished contem poraneously
w ith the application of a plan to the respective g rades
reached by it.
In p lace of perm issive freedom of choice there m ust
be a m andato ry annual free choice of schools by all
students, both w hite and Negro. “ If a child or his
paren t is to be given a m eaningful choice, th is choice
m ust be afforded annually .” Kem p v. Beasley, 8 Cir.
1965, 352 F.2d 14, 22. The initial choice of assignm ent,
within space lim itations, should be m ade by a p aren t
or by a child over fifteen without reg a rd to race. This
104 U. S., et al. v. Jeff. County Bd. of Educ., et al.
m an dato ry free choice system would govern even the
in itia l assignm ent of students to the firs t g rade and to
k indergarten . At the m inim um , a freedom of choice
p lan should provide tha t: (1) all students in desegre
ga ted g rades shall have an opportunity to exercise a
choice of schools. Bradley v. School Board of the City
of Richmond, 4 Cir. 1965, 345 F.2d 310, v aca ted and re
m anded, 1965, 382 U.S. 103; (2) w here the num ber of
app lican ts applying to a school exceeds available
space, p re fe rences will be de term ined by a uniform
non-racial s tandard , Stell v. Savannah-Chatham Coun
ty Board of Education, 5 Cir. 1964, 333 F.2d 55, 65; and
(3) w hen a student fails to exercise his choice, he will
be assigned to a school under a uniform non-racial
s tandard , K em p v. Beasley, 8 Cir. 1965, 352 F.2d 14,
22.
C. Notice. The notice provisions of the HEW
Guidelines a re reasonab le and should be followed.
W here public notice by publication in a new spaper
will a ssu re adequate notice, individual notice will not
be necessary . Indiv idual notice should be requ ired if
notice by publication is likely to be inadequate.
D. Transfers for Students in Non-desegregated
Grades and with Special Needs. In Singleton II we
held th a t children in still-segregated g rades in Negro
schools “have an absolute righ t, as individuals, to
tra n s fe r to schools from which they w ere excluded
because of th e ir race,”“ ‘‘ 355 F.2d at 869. See also
This ■was not new. In 1957 a district court in Maryland held
that stair step plans do not justify excluding a qualified indi
vidual, notwithstanding a more gradual schedule applicable to the
U. S., et al. V. Jeff. County Bd. of Educ., et al. 105
Rogers v. Paul, 1965, 382 U. S. 198, 15 L .Ed.2d 265. A
tran sfe r provision should be included in the plan. The
righ t to tra n s fe r under a s ta te Pupil P lacem en t Law
should be reg a rd ed as an additional righ t th a t takes
into consideration c rite ria irre lev an t to the absolute
right re fe rred to in Rogers v. Paul.
E. Services, Facilities, Activities, and Programs.
In Singleton II we held th a t there should be no seg re
gation or d iscrim ination in services, facilities, ac
tivities, and p rog ram s th a t m ay be conducted or
sponsored by, or affiliated with, the school in which a
student is enrolled. We have in m ind school a th letics
and in ter-scholastic associations of course, but also
paren ts-teachers associations. In order to elim inate
any u ncerta in ty on th is point, we hold th a t the p lan
should contain a s ta tem en t th a t there will be no such
segregation or discrim ination.
F. School Equalization. In recen t years, as we are
all well aw are. Southern s ta tes have exerted g rea t ef
fort to im prove Negro school plants. There a re how
ever m any old and inferior schools read ily identifiable
as N egro schools; there a re also m any superior w hite
schools, in te rm s of the quality of instruction. A free
dom of choice p lan will be ineffective if the students
cannot choose am ong schools th a t a re substantia lly
equal. A school plan therefore should provide for
school population generally. Moore v. Board of Education of
Harford County, D.Md. 1957, 146 F. Supp. 91 and 152 F.Supp. 114,
aff’d sub.nom. Slade v. Board of Education, 4 Cir. 1958, 252 P.2d
191, cert, den’d 357 U.S. 906 (1958). This Court approved such
an order in Augustus v. Board of Education, 5 Cir. 1962, 306
F.2d 863.
106 U. S., et al. v. Jeff. County Bd. of Educ., et al.
closing inferior schools and should also include a pro
vision for rem ed ia l p ro g ram s to overcom e p ast in
adequacies of all-Negro schools. This will, of course,
requ ire the local school au thorities and the tr ia l courts
to exam ine carefu lly local situations and perhaps
seek advice from qualified, unbiased au thorities in the
field.
G. Scheduled Compliance Reports. Scheduled com
pliance repo rts to the court on the p rogress of free
dom of choice p lans a re a necessity and of benefit to
all the parties. These should be req u ired following the
choice period and again a fte r the opening of school.
None of the school boards expressly objected to this
provision, or one sim ila r to it, and it does not appear
onerous.
H. Desegregation of Faculty and Staff. The most
difficult problem in the desegregation process is the
in tegra tion Of faculties. See Section TV D of this
opinion. A recen t survey shows th a t until the 1966-67
session not a single Negro teach e r in A labam a,
Louisiana, or M ississippi has been assigned to a
school where there are white teachers/^® As evidenced
in num erous records, this long continued policy has
resu lted in inferior Negro teach ing and in inferior
education of N egroes as a class. E veryone agrees, on
principle, th a t the selection and assignm ent of teach
ers on m erit should not be sacrificed ju s t for the sake
of in teg ra ting faculties; teach ing is an a rt. Y et until
115 See footnote 35. However, the press has carried accounts
that progress is being made toward “desegregation of teachers,
administrators and other personnel” for 1967-68 in Jackson, Mis
sissippi. See Jackson Clarion Ledger, July 30, 1966, page 1.
17. S., et al. V. Jeff. County Bd. of Educ., et al. 107
school au thorities recognize and c a rry out th e ir a f
firm ative duty to in teg ra te faculties as well as facil
ities, there is not the slightest possibility of th e ir ever
establishing an operative non-discrim inatory school
system.^^® The transfer of a few Negro children to a
white school does not do aw ay w ith the dual system^.
A N egro facu lty m akes a N egro school; the Negro
school continues to offer inferior educational oppor
tunities; and the school system continues its psy
chological h a rm to N egroes as a class by not putting
them on an equal level with white children as a class.^^ ̂
To p reven t such h a rm or to undo the harm , or to p re
vent resegregation , the school au thorities, even in the
adm in istra tion of an otherw ise ra tional, nondiscrim -
inatory policy, should take corrective action involving
rac ia l c rite ria . As we pointed out (see Section III C),
in fashioning an appropria te rem edy tending to undo
past d iscrim ination this Court has often taken race in
to account.
In the past year, d is tric t courts have strugg led w ith
the problem of fram ing effective o rders for the de
segregation of faculty. (1) Some courts have focused
upon the specific resu lts to be reached by reassign-
“Faculty desegregation is a necessary precondition of an ac
ceptable free choice plan. A free choice plan cannot disestablish
the dual school system where faculties remain segregated on the
basis of the race of the teachers or the pupils. In such cir
cumstances a school inevitably will remain identified as “white”
and “Negro” depending on the color of the teachers.” Rep., U.S.
Comm, on Civil Rights, Survey of Desegregation in the Southern
and Border States—1965-66, p. 57.
Ill Faculties should be desegregated so that “both white and
Negro students would feel that their color was represented upon
an equal level and that their people were sharing the responsibility
of high-level teaching”. Dowell v. School Board of Oklahoma City
Public Schools, W.D. Okla. 1965, 219 F. Supp. 427.
108 U. S., et al. v. Jeff. County Bd. of Educ., et al.
m ent of teach e rs previously assigned solely upon the
basis of th e ir race. Dowell v. School Board of Okla
homa City Public Schools, W .D.Okla. 1965, 244 F.
Supp. 971, Kier v. County School Board of Augusta
County, W.D.Va. 1966, 249 F. Supp. 239.“ » The orders
en tered in these cases requ ire the defendant school
boards to assign any newly employed teachers and re
assign already-employed faculty so that the proportion
of each race assigned to teach in each school will be
the sam e as the proportion of teach e rs of th a t race in
the to ta l teach ing staff in the system , or a t least,
of the p a rticu la r school level in which they a re em
ployed. (2) O ther courts have not been specific as to
the num ber of teach e rs of each race th a t should be as
signed to each school in order to rem ove the effects of
p ast d iscrim inato ry assignm ents. These courts have
focused upon the m echanics to be followed in rem ov
ing the effect of p ast d iscrim ination ra th e r than upon
the resu lt as such. Thus, in Beckett v. School Board of
the City of Norfolk, Civil Action No. 2214 (E.D.Va.,
1966); Gilliam v. School Board of the City of Hope-
well, Civil Action No. 3554 (E .D .V a. 1966); and Brad
ley V. School Board of the City of Richmond, Civil
Action No. 3353 (E .D .Va. 1966), the courts approved
consent decrees setting forth in detail the considera
tions th a t would control the school ad m in is tra to rs in
filling facu lty vacancies and in tran sfe rrin g already-
ns In Kier the Court said that duty to desegregrate faculty
must be “immediately and squarely met” ; there can be no free
dom of choice for faculties and administrative staffs by the 1966-
67 school year. Insofar as possible, “the percentage of Negro
teachers in each school of the system should approximate the
percentage of Negro teachers in the entire system for the 1965-
66 season”. 249 F. Supp. at 22.
17. S., et dl. V. Jef-f. County Bd. of Educ., et al. 109
em ployed facu lty m em bers in order to fac ilita te fac
ulty in tegration . (3) In a th ird group of cases, the dis
tric t court, while em phasizing the necessity of a ffirm
ative steps to undo the effects of p ast ra c ia l assign
m ents of facu lty and while requ iring som e tangible
results, has not been specific regard ing the m echanics
or the specific resu lts to be achieved. See Harris v.
Bullock County Board of Education, M.D Ala. 1966,
253 F. Supp. 276; United States v. Lowndes Board of
Education, Civil Action No. 2328-N (M.D.Ala. 1966);
Carr v. M ontgomery County Board of Education,
M.D.Ala. 1966, 253 F. Supp. 306.
We agree w ith the E ighth C ircuit’s s ta tem en t: “ The
lack of a definite p rog ram will only resu lt in fu rth er
delay of long overdue action. We are not content a t
this la te date to approve a desegregation plan that
contains only a s ta tem en t of general good intention.
We deem a positive com m itm ent to a reasonable
p rogram aim ed at ending segregation of the teaching
staff to be necessary for the final approval of a con
stitutionally adequate desegregation p lan .” Clark v.
Board of Education of the Little Rock School Dis
trict, No. 18,368, D ecem ber 15, 1966 (unreported).
In th a t case the Court did not im pose “ a set tim e
with fixed m ath em atica l req u irem en ts” . How ever the
Court was firm in its position: “ F irst, as the Board
has already positively pledged, fu tu re icmployment,
assignm ent, transfer, and discharge of teachers m ust
be free from rac ia l consideration. Two, should the
desegregation process cause the closing of schools
employing individuals predom inately of one race, the
110 U. S., et a l . V. Jeff. County Bd. of Educ:, et a l .
displaced p,3rsonnel should, a t the very m inim um , be
absorbed into vacancies appearing in the system .
Sm ith V. Board o f Education of Morrilton, supra.
Third, w henever possible, requests of individual staff
m em bers to tran sfe r into m inority situations should
be honored by the Board. F inally , we believe the
B oard should m ake all additional positive com m it
m ents n ecessary to bring about som e m easune of
rac ia l balance in the staffs of the individual schools in
the very n ear fu tu re. The age old distinction of ‘white
schools’ and ‘Negro schools’ m ust be erased . The
continuation of such distinctions only perpetrates in
equality of educational opportunity and places in jeop
ardy the effective future operation of the entire
‘freedom of choice’ type p lan .”
In Singleton I we ag reed w ith the original HEW
G uidelines in requiring that an “ adequate s ta r t” to
w ard faculty desegregation should be m ade in 1966-67.
The req u irem en t th a t all g rades be desegregated in
1967-68 increases the need for substantial progress be
yond an “ adequate s ta r t” . It is essen tial that school
officials (1) cease p rac tic ing rac ia l d iscrim ination in
the hiring and assignmi.ent of new facu lty m em bers
and (2) take a ffirm ative p ro g ram m atic steps to cor
rec t existing effects of p ast rac ia l assignm ent. If
these two requ irem en ts a re p rescribed , the district
court should be able to add specifics to m eet the par
ticu la r situation the case p resents. The goal should be
an equitable distribution of the be tte r teachers."®
’1* Rev. Theodore M. Hesburgh, President of Notre Dame and a
member of the Civil Rights Commission, makes these suggestions:
“A realistic and quite possible approach to this is, I think,
through the immediate improvement of all teachers of each race,
U. S., et al. V. Jeff. County Bd. of Educ., et al. I l l
We an tic ipate th a t when d istric t courts and th is Court
have gained m ore experience w ith facu lty in tegration ,
the Court will be able to set forth s tan d ard s m ore
specifically than they are set forth in the decrees in
the instan t cases.
VII.
We a tta ch a decree to be en tered by the d istric t
courts in these cases consolidated on appeal. See Ap
pendix A.
We have carefu lly exam ined each of the records in
these cases. In each instance the record supports the
decree. However, the provisions of the decree a re
intended, as fa r as possible, to apply uniform ly
throughout th is circuit in cases involving plans based
on free choice of schools. School boards, p riva te
plaintiffs, arid the , United S tates m ay, of course,
cOme into court to prove th a t exceptional circurri-
beginning with those who most need assistance in being better
qualified as teachers, f At this precise time of transition, why not
institute along with the whole process of desegregation in the
South a positive program of upgrading all teachers in the present
systems? In fact, the best teachers of either race, worthy of their
profession, should be put in the schools needing the most help to
improve. One might even think of rotating teachers within the
schools of a given district. There is already the existing pattern
of academic year and summer institutes for just this purpose
of improving teachers. . . . IT If this positive action could be
moved along quickly, with good will from all concerned, school
administrators, parents, and students, then we could eliminate the
present cat-and-mouse game which is going on between the Fed
eral Office of Education and the local Southern school districts.
In fact, I have a feeling that the South could solve its problem
long before the North, which has an educational desegregation
problem which may be less amenable to solution because of en
trenched patterns of housing segregation.” Rep., U. S. Comm, on
Civil Rights, Survey of Desegregation in the Southern and Border
States—1965-66, p. 64.
112 U. S., et al. v. Jeff. County Bd. of Educ., et al.
stances com pel m odification of the decree. F o r ex
am ple, school system s in a re a s which let school out
during p lanting and harvesting seasons m ay find that
the period for exercise of choice of schools, M arch
1-31, should be changed to a different m onth.
As Brown d ic ta tes, the decree p laces responsibility
on the school au thorities to take affirm ative action
to bring about a un itary , non-racial system . As the
Constitution dicta tes, the proof of the pudding is in
the eating: the proof of a school bo ard ’s compliance
w ith constitutional s tan d ard s is the resu lt—the per
form ance. H as the operation of the p rom ised plan
actually e lim inated seg regated and token-defeegre-
gated schools and achieved substan tia l integration?
The substantive requ irem en ts of the decree derive
from the F ourteen th A m endm ent as in te rp re ted by
decisions of the Suprem e Court and of th is Court, in
m any instances before the HEW G uidelines were
published. F o r adm in istra tive details, we have looked
to the Office of Education. F o r exam ple, those fam il
ia r with the HEW G uidelines will note th a t the decree
follows the G uidelines exactly as to the form letters
which go to p a ren ts announcing the need to exercise
a choice of schools, and the form s for exercising
th a t choice a re the sam e. Indeed a close p a ra lle l will
be noted betw een m uch in P a r ts II th rough V of the
decree and the Guideline provisions.
The g rea t bulk of the school d is tric ts in th is circuit
have applied for federal financial assis tance and
U, iS.̂ et al. V. Jeff. County Bd. of Educ., et al. 113
therefore operate under volun tary desegregation
plans.^^° Approval of these plans by the Office of Ed
ucation qualifies the schools for fed era l aid. In this
opinion we have held th a t the HEW G uidelines now
in effect a re constitutional and a re within the s ta tu
tory au thority c rea ted in the Civil R ights A ct of 1964.
Schools therefore , in com pliance w ith the Guidelines
can in general be regarded as d ischarging constitu
tional obligations.
Some schools have m ade no move to desegregate
or have had plans re jec ted as unsatisfac to ry by dis
tric t courts or the HEW. We expect the provisions of
the decree to be applied in proceedings involving such
schools. O ther schools have earlie r court-approved
plans w hich fall short of the te rm s of the decree. On
motion by proper parties to re-open these cases, we
expect these p lans to be m odified to conform w ith
our decree. In some cases the p a rtie s m ay challenge
various aspects of H EW -approved plans. Our approv
al of the existing Guidelines and the deference owed
to any fu tu re Guidelines is not intended to deny a day
in court to any person asserting individual righ ts or
120 “Although only 164 (3.4 percent) of the 4,941 school dis
tricts in the South have qualified by the court order route, these
districts include most of the major cities of the South and, ac
cordingly, a large share of the population. Court orders are a
significant method of qualification particularly in Louisiana,
where official resistance to compliance with Title VI has been
most widespread. In Louisiana, 32 court orders have been ac
cepted, affecting 86.5 percent of the school districts judged quali
fied.” 1966—U. S. Comm, on Civ. Rights, Survey of School De
segregation in the Southern and Border States 46. See also Table
3 in Appendix B.
1 1 4 U. S., et al. v. Jeff. County Bd. of Educ., et (d.
to any school board contesting HEW action.^^^ In any
school desegregation case the issue concerns the con
stitu tional righ ts of N egroes, individually and as a
class, and the constitutional righ ts of the S ta te— n̂ot
the issue w hether fed era l financial assis tance should
be w ithheld under Title VI of the Civil R ights Act of
1964.
W hen school system s a re under court-ordered de
segregation , the courts a re responsible for determ in
ing the sufficiency of the sy stem ’s com pliance with
the decree. The cou rts’ task , therefore , is a continu
ing process, especially in m a jo r a re a s read ily suscep
tib le of observation and m easu rem en t, such as facul
ty in teg ra tion and student desegregation. (1) As to
faculty , we have found th a t school au thorities have
an a ffirm ative duty to b reak up the h isto rica l pattern
of seg rega ted faculties, the ha ll-m ark of the dual
systemi. To aid the courts in its task , the decree re
quires the school au thorities to rep o rt to the d istrict
courts the p rogress m ade tow ard facu lty integration.
The school au thorities b ear the burden of justifying
an apparent lack of progress.^^ (2) As to students, the
121 For an HEW approved desegregation plan held insufficient to
protect constitutional rights of Negro students see Brown v. Board
of Education of DeWitt School District, E.D. Arki 1966, F.Supp.
See also Thompson v. County School Board of Hanover
County, E.D.Va. 1966, 252 F. Supp. 546; Turner v. County School
Board of Goochland County, E.D.Va. 1966, 252 F. Supp. 578.
122 “Innumerable cases have clearly established the principle
that under circumstances such as this where a history of racial
discrimination exists, the burden of proof has been thrown upon
the party having the power to produce the facts. . . . ” Chambers
V . Hendersonville City Board of Education, 4 Cir. 1966, 364
F.2d 189, 192. In Brown II, permitting desegregation with ‘'de
liberate speed” the Supreme Court put the “burden . . . upon
the defendants to establish that [additional] time is necessary
to carry out the ruling in an effective manner”. 349 U.S. at 302.
U. S., et al. V. Jeff, County Bd. of Educ., et al. 115
decree requ ires school au thorities to m ake repo rts to
the court showing by race , by school, by grade, the
choices m ade in each “ choice period” . A sim ila r re
port is requ ired a fte r schools open to show w hat ac tu
ally happened when schools opened.
W hat the decree contem plates, then, is continuing
judicial evaluation of com pliance by m easuring the
perform ance—not m erely the prom ised perform ance
—of school boards in carry ing out th e ir constitutional
obligation “ to d isestablish dual, rac ia lly segregated
school system s and to achieve substan tia l in tegration
within such systems.”^̂® District courts may call upon
HEW for assistance in determ ining w hether a school
board ’s perform ance m easu res up to its obligation
to desegregate. If school officials in any d istric t
should find th a t the ir d istric t still has seg regated
faculties and schools or only token integration, th e ir
affirm ative duty to take corrective action - requ ires
them to try an a lternative to a freedom of choice
plan, such as a geographic attendance plan, a com
bination of the two, the Princeton plan,^®‘‘ or some other
acceptable substitute, perhaps aided by an education
al park . F reedom of choice is not a key th a t opens
all doors to equal educational opportunities.
Given the knowledge of the educators and adm in is
tra to rs in the Office of Education and th e ir day to
U. S. Comm, on Civil Rights, Survey of School Desegregation
in the Southern and Border States 1965-66, p. 54.
124 rjijjg Princeton plan involves establishing attendance zones
including more than one school and assigning students by grade
rather than by residence location. Thus all of the zone’s students
in grades 1 through 3 would attend school A, while all students
in grades 4 through 6 would attend school B. For a discussion of
the plan see Fiss, Racial Imbalance in the Public Schools: The
Constitutional Concepts, 78 Harv. L. Rev. 564, 573 (1965).
116 U. S., et al. V. Jeff. County Bd. of Educ., et al.
day experience w ith thousands of school system s,
judges and school officials can ill afford to tu rn their
backs on the proffer of advice from HEW. Or from
any responsible governm ent agency or independent
group com petent to w ork tow ard solution of the com
plex problem of de ju re d iscrim ination bequeathed
th is generation by ten preceding generations.
Now afte r tw elve y ears of snail’s pace progress
tow ard school desegregation, courts a re entering a
new era. The question to be resolved in each case is:
How fa r have fo rm erly de ju re seg rega ted schools
p rogressed in perform ing th e ir a ffirm ative constitu
tional duty to fu rn ish equal educational opportunities
to all public school children? The clock has ticked
the la s t tick for tokenism and delay in the nam e of
“ deliberate speed” .
In the suit against the Caddo P a rish School Board
Ju ly 19, 1965, the United S tates m oved to intervene
under §902 of the Civil R ights A ct of 1964 (42 U.S.C.
§2000h-2). The m otion w as filed twelve days after
the B oard subm itted its p lan in com pliance w ith the
d is tric t co u rt’s decree of June 14, 1965, but two days
before the original p laintiffs filed the ir objections
and before the court issued its o rder approving the
plan. The d istric t court denied the m otion on the
ground that it cam e too late. In these circum stances
we consider th a t the m otion w as tim ely filed and
should have been granted .
U. S., et al. V. Jeff. County Bd. of Educ., et al. 117
This Court denied the m otion of certa in appellan ts
to consolidate their cases, but allowed consolidation
of briefs and, in effect, trea ted the cases as consoli
dated for purposes of appeal. The Court, how ever, in
each case has sep ara te ly considered the p a rticu la r
contentions of all the parties in the light of the
record.
The Court R EV ER SES the judgm ents below and
REMANDS each case to the d is tric t court for fu rth er
proceedings in accordance w ith this opinion.
COX, D istric t Judge: I reserve the righ t to dissent in
whole or in part a t a la te r date.
118 V. S., et al. v. Jeff. County Bd. of Educ., et a t
A PPEN D IX A:
PROPOSED D EC R EE
It is O RD ERED , ADJUDGED and D EC R EED that
the defendants, their agents, officers, em ployees and
successors and all those in active concert and p a rtic
ipation w ith them , be and they are perm anently en
joined from d iscrim inating on the basis of race or
color in the operation of the school system.
As set out m ore particu larly in the body of the
decree, they shall take a ffirm ative action to d isestab
lish all school segregation and to elim inate the ef
fects of past rac ia l d iscrim ination in the operation of
the school system :
SPEED OF DESEGREGATION
Com m encing w ith the 1967-68 school year, in ac
cordance w ith this decree, all g rades, including kin
d e rg a rten g rades, shall be desegregated and pupils
assigned to schools in these g rades w ithout reg ard to
race or color.
II.
EXERCISE OF CHOICE
The following provisions shall apply to all grades:
(a) Who May Exercise Choice. A choice of schools
m ay be exercised by a p a ren t or other adult person
17. S., et al. V. Jeff. County Bd. of Educ., et al. 119
serving as the s tuden t’s paren t. A studen t m ay exer
cise his own choice if he (1) is exercising a choice
for the ninth or a h igher g rade, or (2) has reached
the age of fifteen a t the tim e of the exercise of
choice. Such a choice by a student is controlling un
less a d ifferent choice is exercised for him by his
p a ren t or o ther adult person serv ing as his p a ren t
during the choice period or a t such la te r tim e as the
student exercises a choice. E ach re ference in th is de
cree to a s tuden t’s exercising a choice m eans the ex
ercise of the choice, as appropria te , by a p a ren t or
such other adult, or by the student him self.
(b) Annual Exercise of Choice. All students, both
white and N egro, shall be requ ired to exercise a free
choice of schools annually.
(c) Choice Period. The period for exercising
choice shall com m ence M ay 1, 1967 and end June 1,
1967, and in subsequent y ears shall com m ence M arch
1 and end M arch 31 preceding the school y ea r for
which the choice is to be exercised. No studen t or
prospective student who exercises his choice within
the choice period shall be given any p reference be
cause of the tim e within the period when such choice
was exercised.
(d) Mandatory Exercise of Choice. A fa ilu re to
exercise a choice w ithin the choice period shall not
preclude any student from exercising a choice a t any
tim e before he com m ences school for the y ear w ith
respect to which the choice applies, but such choice
m ay be subordinated to the choices of students who
120 17. S., et al. v. Jeff. County Bd. of Educ., et al.
exercised choice before the expiration of the choice
period. Any student who has not exercised his choice
of school w ithin a w eek a fte r school opens shall be
assigned to the school n e a re s t his hom e w here space
is available under s tan d ard s for determ ining avail
able space w hich shall be applied uniform ly through
out the system .
(e) Public Notice. ^On or w ithin a w eek before
the date the choice period opens, the defendants shall
a rran g e for the conspicuous publication of a notice
describ ing the provisions of th is decree in the news
p ap er m ost generally c ircu lated in the community.
The tex t of the notice shall be substan tia lly sim ilar
to the tex t of the exp lanato ry le tte r sen t hom e to
paren ts. (See p a ra g rap h 11(e).) Pub lication as a legal
notice will not be sufficient. Copies of th is notice
m ust also be given a t th a t tim e to all radio and tele
vision stations serv ing the com m unity. Copies of this
decree shall be posted in each school in the school
system and a t the office of the Superin tendent of
Education.
(e) Mailing of Explanatory Letters and Choice
Forms. On the firs t day of the choice period there
shall be d istribu ted by first-c lass m ail an explanatory
le tte r and a choice form to the p a ren t (or o ther adult
person acting as paren t, if known to the defendants)
of each student, together w ith a re tu rn envelope ad
d ressed to the Superintendent. Should the defend
an ts satisfac to rily dem onstrate to the court that
they a re unable to com ply w ith the requirem ent
U. S., et al. V. Jeff. Comity Bd. of Educ., et at. 121
of d istributing the exp lanatory le tte r and choice form
by first-c lass m ail, they shall propose an a lte rnative
m ethod which will m axim ize individual notice, i.e.,
personal notice to parents by delivery to the pupil
with adequate p rocedures to insure the delivery of
the notice. The tex t for the exp lanatory le tte r and
choice form shall essentially conform to the sam ple
le tte r and choice form appended to this decree.
(g) E xtra Copies of the Explanatory Letter and
Choice Form. E x tra copies of the exp lanatory le tte r
and choice form shall be freely availab le to paren ts,
students, prospective students, and the general public
at each school in the system and a t the office of the
Superintendent of Education during the tim es of the
year when such schools are usually open.
(h) Content of Choice Form. E ach choice form
shall set forth the nam e and location of the g rades
offered a t each school and m ay requ ire of the person
exercising the choice the nam e, address, age of stu
dent, school and grade cu rren tly or m ost recen tly a t
tended by the student, the school chosen, the signa
ture of one p aren t or other adult person serving as
parent, or w here appropria te the signature of the
student, and the identity of the person signing. No
statem ent of reasons for a p a rticu la r choice, or any
other inform ation, or any w itness or other au then tica
tion, m ay be requ ired or requested , w ithout approval
of the court.
(i) Return of Choice Form. At the option of the
person com pleting the choice form , the choice m ay
122 U. S., et al. v. Jeff. County Bd. of Edue., et al.
be re tu rned by m ail, in person, or by m essenger to
any school in the school system or to the office of
the Superintendent.
(j) Choices not on Official Form. The exercise of
choice m ay also be m ade by the subm ission in like
m an n er of any other w riting which contains inform a
tion sufficient to identify the student and indicates
th a t he has m ade a choice of school.
(k) Choice Form s Binding. When a choice form
has once been subm itted and the choice period has
expired, the choice is binding for the en tire school
y e a r and m ay not be changed except in cases of
p a ren ts m aking different choices from th e ir children
under the conditions set forth in p a ra g rap h II (a) of
th is decree and in exceptional cases w here, absent
the consideration of race, a change is educationally
called for or w here com pelling hardsh ip is shown by
the student.
(1) Preference in Assignm ent. In assigning stu
dents to schools, no p references shall be given to
any student for prior attendance at a school and, ex
cept w ith the approval of court in extraordinary cir
cum stances, no choice shall be denied for any reason
other th an overcrow ding. In case of overcrow ding at
any school, p reference shall be given on the basis of
the proxim ity of the school to the hom es of the stu
dents choosing it, w ithout reg a rd to race or color.
S tan d ard s for determ ining overcrow ding shall be ap
plied uniform ly throughout the system .
U. S., et al. V. Jeff. County Bd. of Educ., et al. 123
(m ) Second Choice where First Choice is Denied.
Any student whose choice is denied m ust be p rom pt
ly notified in w riting and given his choice of any
school in the school system serving his g rade level
w here space is available. The student shall have
seven days from the receip t of notice of a denial of
firs t choice in which to exercise a second choice.
(n) Transportation. W here tran sp o rta tio n is gen
erally provided, buses m ust be routed to the m ax i
m um extent feasible in light of the geographic dis
tribution of students, so as to serve each student
choosing any school in the system . E v ery student
choosing e ither the fo rm erly white or the fo rm erly
Negro school n eares t his residence m ust be tra n s
ported to the school to which he is assigned under
these provisions, w hether or not it is his f irs t choice,
if th a t school is sufficiently d istan t from his hom e
to m ake him eligible for tran sp o rta tio n under gen
erally applicable transpo rta tion rules.
(o) Officials not to Influence Choice. At no tim e
shall any official, teacher, or em ployee of the school
system influence any paren t, or other adult person
serving as a paren t, or any student, in the exercise
of a choice or favor or penalize any person because
of a choice m ade. If the defendant school board em
ploys professional guidance counselors, such persons
shall base the ir guidance and counselling on the in
dividual s tuden t’s p a rticu la r personal, academ ic, and
vocational needs. Such guidance and counselling by
teachers as well as professional guidance counsellors
124 U. S., et al. v. Jeff. County Bd. of Educ., et al.
shall be availab le to all students w ithout reg a rd to
race or color.
(p) Protection of Persons Exercising Choice.
W ithin the ir au thority school officials a re responsible
for the protection of persons exercising righ ts under
or otherw ise affected by th is decree. They shall,
w ithout delay, take app rop ria te action w ith regard
to any student or staff m em h er who in te rfe res with
the successful operation of the plan. Such in te rfe r
ence shall include h a rassm en t, intim idation, th rea ts ,
hostile words or acts, and s im ila r behavior. The
school board shall not publish, allow, or cause to be
published, the nam es or addresses of pupils exercis
ing righ ts or otherw ise affected by th is decree. If
officials of the school system a re not able to provide
sufficient protection, they shall seek w hatever assist
ance is necessa ry from other app rop ria te officials.
III.
PRO SPECTIV E STUDENTS
Each prospective new studen t shall be requ ired to
exercise a choice of schools before or a t the tim e of
enrollm ent. All such students known to defendants
shall be furnished a copy of the p rescribed le tte r to
p a ren ts, and choice form , by m ail or in person, on
the date the choice period opens or as soon th e reafte r
as the school system learns th a t he plans to enroll.
W here there is no p re-reg istra tion p rocedure for new
ly entering students, copies of the choice fo rm s shall
be available a t the Office of the Superin tendent and
a t each school during the tim e the school is usually
open.
U. S., et al. v. Jeff. County Bd. of Educ., et al. 125
IV.
TRANSFERS
(a) Transfers for Students. Any student shall
have the righ t a t the beginning of a new term.,
to tra n s fe r to any school from which he was
excluded or would otherw ise be excluded on account
of his race or color.
(b) Transfers for Special Needs. Any student
who requ ires a course of study not offered a t the
school to which he has been assigned m ay be p e rm it
ted, upon his w ritten application, a t the beginning of
any school te rm or sem ester, to tran sfe r to another
school which offers courses for his special needs.
(c) Transfers to Special Classes or Schools. If
the defendants operate and m ain ta in special classes
or schools for physically handicapped, m entally re
tarded , or gifted children, the defendants m ay assign
children to such schools or c lasses on a basis re la ted
to the function of the special class or school th a t is
other than freedom of choice. In no event shall such
assignm ents be m ade on the basis of race or color or
in a m anner which tends to perpe tuate a dual school
system based on race or color.
126 17. S., et al. v. Jeff. County Bd. of Educ., et al.
V.
SERVICES, FACILITIES, ACTIVITIES AND PRO
GRAMS
No student shall be seg regated or d iscrim inated
against on account of race or color in any service,
facility , activity, or p rog ram (including tran sp o rta
tion, a th letics, or o ther ex tracu rricu la r activ ity ) that
m ay be conducted or sponsored by or affiliated with
the school in which he is enrolled. A studen t a ttend
ing school for the firs t tim e on a desegregated basis
m ay not be sub ject to any disqualification or w aiting
period for partic ipation in activ ities and program s,
including ath letics, which m ight otherw ise apply be
cause he is a tran sfe r or newly assigned studen t ex
cept th a t such transferees shall be sub ject to long
standing, non-racially based rules of city, county, or
s ta te ath letic associations dealing w ith the eligibility
of transfer students for a th letic contests. All school
use or school-sponsored use of athletic fields, m eet
ing room s, and all other school re la ted services,
facilities, activities, and p rog ram s such as Com
m encem ent exercises and paren t-teacher m eetings
which a re open to persons other than enrolled stu
dents, shall be open to all persons w ithout reg a rd to
race or color. All special educational p ro g ram s con
ducted by the defendants shall be conducted without
reg a rd to race or color.
U . S., et al. V. Jeff. County Bd. of Educ., et al. 127
VI.
SCHOOL EQUALIZATION
(a) Inferior Schools. In schools heretofore m ain
ta ined for N egro students, the defendants shall take
p rom pt steps necessa ry to provide physical facili
ties, equipm ent, courses of instruction, and in s tru c
tional m a te ria ls of quality equal to th a t provided in
schools previously m ain ta ined for w hite students.
Conditions of overcrow ding, as de term ined by pupil-
teach e r ra tios and pupil-classroom ra tios shall, to the
ex ten t feasible, be d istribu ted evenly betw een schools
fo rm erly m ain ta ined for Negro students and those
fo rm erly m ain ta ined for white students. If for any
reason it is not feasible to im prove sufficiently any
school fo rm erly m ain tained for N egro students, w here
such im provem ent would otherw ise be requ ired by
th is subparagraph ,, such school shall be closed as
soon as possible, and students enrolled in the school
shall be reassigned on the basis of freedom of choice.
By October of each year, defendants shall rep o rt to
the C lerk of the Court pupil-teacher ratios, pupil-class
room ratios, and per-pupil expenditures both as to
operating and cap ita l im provem ent costs, and shall
outline the steps to be taken and the tim e w ithin which
they shall accom plish the equalization of such schools.
(b) Rem edial Programs. The defendants shall p ro
vide rem ed ial education p rog rain s which perm it stu
dents attending or who have previously a ttended all-
N egro schools to overcom e p ast inadequacies in th e ir
education.
128 U. S., et al. v. Jeff. County Bd. of Educ., et al.
VII.
NEW CONSTRUCTION
The defendants, to the extent consistent w ith the
p roper operation of the school system as a whole,
shall locate any new school and substan tia lly expand
any existing schools w ith the objective of erad icating
the vestiges of the dual system and of elim inating the
effects of segregation.
VIII.
FACULTY AND STAFF
(a) Faculty Em ploym ent. R ace or color shall not
be a fac to r in the hiring, assignm ent, reassignm ent,
prom otion, dem otion, or d ism issal of teach e rs and
other professional staff m em bers, including student
teachers , except th a t race m ay be taken into ac
count for the purpose of counteracting or correcting
the effect of the seg rega ted assignm ent of teachers
in the dual system . T eachers, p rincipals, and staff
m em bers shall be assigned to schools so th a t the
facu lty and staff is not com posed exclusively of
m em bers of one race. W herever possible, teachers
shall be assigned so th a t m ore than one teach e r of
the m inority race (white or N egro) shall be on a de
segregated faculty . D efendants shall take positive
and a ffirm ative steps to accom plish the desegregation
of the ir school faculties and to achieve substan tia l de
segregation of faculties in as m any of the schools as
possible for the 1967-68 school year notw ithstanding
U . S., et al. V. Jeff. County Bd. of Educ., et al. 129
th a t teach e r con trac ts for the 1966-67 or 1967-68 school
y ears m ay have a lread y been signed and approved.
The tenure of teach e rs in the system shall not be used
as an excuse for fa ilu re to com ply w ith th is provision.
The defendants shall estab lish as an objective th a t
the p a tte rn of teach e r assignm ent to any p a rticu la r
school not be identifiable as ta ilo red for a heavy con
cen tration of e ither Negro or w hite pupils in the
school.
(b) Dismissals. T eachers and o ther professional
staff m e m b e rs 'm a y not be d iscrim inato rily assigned,
d ism issed, dem oted, or passed over for retention,
prom otion, or reh iring , on the ground of race or color.
In any instance w here one or m ore teach e rs or other
professional staff m em bers a re to be d isplaced as a
resu lt of desegregation, no staff vacancy in the school
system shall be filled through rec ru itm en t from out
side the system unless no such displaced staff m em
ber is qualified to fill the vacancy. If, as a result of de
segregation, there is to be a reduction in the to ta l
professional staff of the school system , the qualifica
tions of all staff m em bers in the system shall be eval
uated in selecting the staff m em ber to be re leased
w ithout consideration of race or color. A rep o rt con
ta in ing any such proposed dism issals, and the re a
sons therefor, shall be filed w ith the C lerk of the
Court, serv ing copies upon opposing counsel, w ithin
five (5) days a fte r such dism issal, demotion, etc., as
proposed.
(c) Past Assignm ents. The defendants shall take
steps to assign and reassign teachers and other pro-
130 U. S., et al. v. Jeff. County Bd. of Educ., et al.
fessional staff m em bers to e lim inate p ast d iscrim i
n a to ry pa tterns.
IX.
REPORTS TO THE COURT
(1) Report on Choice Period. The defendants
shall serve upon the opposing p artie s and file w ith the
C lerk of the Court on or before A pril 15, 1967, and on
or before June 15, 1967, and in each subsequent year
on or before June 1, a rep o rt tabu la ting by race the
num ber of choice applications and tran sfe r applica
tions received for enrollm ent in each g rade in each
school in the system , and the num ber of choices and"
tra n s fe rs g ran ted and the num ber of denials in each
g rade of »each school. The rep o rt shall also s ta te any
reasons relied upon in denying choice and shall tab
u late , by school and by race of student, the num ber
of choices and transfers denied for each such reason.
In addition, the rep o rt shall show the percentage
of pupils actually tra n s fe rre d or assigned from seg
reg a ted g rades or to schools a ttended predom inantly
by pupils of a race other than the race of the appli
cant, for a ttendance during the 1966-67 school year,
w ith com parab le d a ta for the 1965-66 school year.
Such additional inform ation shall be included in the
rep o rt served upon opposing counsel and filed with
the C lerk of the Court.
(2) Report A fter School Opening. The defend
ants shall, in addition to repo rts elsew here described,
U. Si, et al. V. Jeff. County Bd. of Educ>, et al. 131
serve upon opposing counsel and file w ith the C lerk
of the Court w ithin 15 days a fte r the opening of
schools for the fall sem ester of each year, a repo rt
setting fo rth the following inform ation:
(i) The name, address, grade, school of
choice and school of p resen t a ttendance of
each student who has w ithdraw n or requested
w ithdraw al of his choice of school or who has
tran sfe rred a fte r the s ta r t of the school year,
together with a description of any action taken
by the defendants on his request and the re a
sons therefor.
(ii) The num ber of faculty vacancies, by
school, th a t have occurred or been filled by the
defendants since the order of this Court or the
la te s t report subm itted pursuan t to this sub-
paragraph . This repo rt shall s ta te the race of
the teacher em ployed to fill each such vacan
cy and indicate w hether such teacher is newly
employed or was transferred from within
the system . The tabulation of the num ber of
tran sfe rs w ithin the system shall indicate the
schools from which and to which the tran sfe rs
w ere made. The repo rt shall also set forth the
num ber of faculty m em bers of each race as
signed to each school for the cu rren t year.
(iii) The num ber of students by race, in
each grade of each school.
132 V. et al; v: Jeff .County Bd. of Educ., et al.
E X P L A N A T O R Y L E T T E R
(School System Name and Office A ddress)
(D ate Sent)
D ear P a re n t:
All g rades in our school system will be desegre
gated next year. Any studen t who will be entering
one of these g rades next year m ay choose to attend
any school in our system , regardless of w hether th a t
school w as fo rm erly all-white o r all-Negro. I t does
not m a tte r w hich school your child is attending this
year. You and your child m ay select any school you
wish.
E v ery student, w hite and Negro, m ust m ake a
choice of schools. If a child is entering the ninth or
h igher grade, or if the child is fifteen y ears old or old
er, he m ay m ake the choice him self. O therw ise a p a r
en t or o ther adu lt serving as pansn t m ust sign the
choice form . A child enrolling in the school system for
the f irs t tim e m ust m ake a choice of schools before or
a t the tim e of his enrollm ent.
The form on which the choice should be m ade is at
tached to this le tte r. It should be com pleted and re
tu rn ed by June 1, 1967. You m ay m ail it in the en
closed envelope, or deliver it by m essenger or by
hand to any school p rincipal or to the Office of the
Superin tendent a t any tim e betw een M ay 1 and June
1. No one m ay requ ire you to re tu rn your choic»3
form before June 1 and no preference is given for
re tu rn ing the choice form early.
U. S., et al. V . Jeff. County Bd. of Educ.s e t cd- 133
No principal, teach er or o ther school official is p e r
m itted to influence anyone in m aking a choice or to
requ ire early re tu rn of the choice form . No one is p e r
m itted to favor or penalize any studen t or o ther per
son because of a choice m ade. A choice once m ade
cannot be changed except for serious hardship .
No child will be denied his choice unless for reasons
of overcrow ding a t the school chosen, in which case
children living n eares t the school will have p re fe r
ence.
T ransportation will be provided, if reasonab ly pos
sible, no m a tte r what school is chosen. [D elete if the
school system does not provide transporta tion .]
Your School B oard and the school staff will do
everything we can to see to it that the righ ts of all
students a re protected and th a t desegregation of our
schools is carried out successfully.
Sincerely yours,
Superintendent.
CHOICE FORM
This form is provided for you to choose a school for
your child to attend next year. You have 30 days to
m ake your choice. It does not m a tte r which school
your child attended last year, and does not m atte r
w hether the school you choose was fo rm erly a white
or Negro school. This form m ust be m ailed or brought
134 U. S;, et aL v. Jeff, County Bd. of Educ., et aL
to the principal of any school in the system or to the
office of the Superin tendent, [address], by June
1, 1967. A choice is requ ired for each child.
N am e of child
(M iddle)(L ast) (F irs t)
Address ........................................................................
N am e of P a re n t or other
adult serving as p a r e n t ..........................................
If child is en tering firs t grade, date of b irth ;
(M onth) (D ay) (Y ear)
G rade child is entering .............................................
School a ttended last y ea r ...........................................
Choose one of the following schools by m ark ing an X
beside the nam e.
N am e of School G rade Location
Signature
D ate
To be filled in by Superin tendent;
School Assigned . ..
1 In subsequent years the dates in both the explanatory letter
and the choice form should be changed to conform to the choice
period.
17. S., et al. V. Jejj. County Bd. of Educ., e t al. 135
APPENDIX B.
Rate of Change and Status of
Desegregation
(Leeson, Faster Pace, Scarcer Records,
Southern Education Report 28-32 (Jan.-Feb.
1966), quoted in E m m erson and H uber, Politi
cal and Civil R ights in the United S tates, 695-
99 (1967))
. Both the 11-state Southern a rea and the border
area, the la tte r consisting of six states and the D is
tr ic t of Columbia, experienced a sh arp er increase in
the percen tage of Negroes in desegregated schools for
1965-66 th an in previous years. But only the Southern
states showed a changed attitude tow ard reporting
records by race ; in only th ree Southern s ta tes could
nearly com plete sta tistics be obtained d is tric t by dis
tric t. As in other years, th ree of the border s ta tes plus
the D istric t of Colum bia continued to keep records by
race, and th ree s ta tes did not.
C orrespondents for Southern E ducation R eporting
Service . . . found th a t 15.89 per cent of the N egroes
enrolled in the public schools of the region attended
classes w ith w hites, m ostly in form erly all-white
schools but som etim es also in fo rm erly all-Negro
schools. This num bered 567,789 N egro students out of
the reg ion’s Negro enrollm ent of 3,572,810.
In the firs t 10 years a fte r the Suprem e Court de
cisions on segregated schools, in 1954 and 1955, the
136 U, S., et al. v. Jeff. County Bd. of Educ., et al.
Southern and border region increased the num ber of
N egroes in schools w ith whites a t an av erag e of about
one p e r cent a y ear. A lthough the im petus of the Su
p rem e C ourt’s ru lings and the possibility of d irect in
volvem ent in legal action w ere fac to rs , m ost d istric ts
desegregating th rough last y ea r acted “ voluntarily”
and only about 10 p e r cent req u ired a specific court
o rder. By the end of the 1964-65 school y ear, the region
h ad enrolled 10.9 p e r cent of its N egro students in
b irac ia l classroom s.
The 1964 Civil R ights A ct b rought p ressu re on every
d is tric t in the nation bu t the com pliance effort ad m it
tedly w as concen tra ted on the South. . . . Beginning
in the spring of 1965 and continuing even th rough the
f irs t m onths of the 1965-66 school-y^ear, HEW ’s Office
of Education nego tia ted w ith officials in each d istric t
to obtain com pliance by the school officials e ither
signing a s ta tem en t, subm itting a court-ordered de
segregation p lan or adopting a vo lun tary plan.
W ith the new school year, the region had increased
the num ber of N egroes in desegregated schools by five
percen tage points to reach 15.9 per cent, while in the
previous two school years the ra te of increase in this
figure had only been betw een one and two percen t
age points. F o r 1964-65, the region had 10.9 per cent of
the N egro enrollm ent in desegregated schools, an in
crease of 1.7 percen tage points over 1963-64, and for
th a t year the 9.2 p e r cent figure w as an increase of
1.2 percen tage points over 1962-63. (See Table I .) . . .
U. S., et al. V. Jeff. County Bd. of Educ., et al. 137
TABLE I
The Rate of Change
Percentage of Negroes in Schools with Whites
School Year
1959-60*
South
.160
%
Change Border
45.4
%
Change Region
6.4
%
Change
1960-61 .162 .002 49.0 3.6 7.0 .6
1961-62 .241 .079 52.5 3.5 7.6 .6
1962-63 .453 .212 51.8 0.7 8.0 .4
1963-64 1.17 .717 54.8 3.0 9.2 1.2
1964-65 2.25 1.08 58.3 3.5 10.9 1.7
1965-66 6.01 3.76 68.9 10.6 15.9 5.0
* First school year in which SERS began recording number of
Negroes in schools with whites.
Up through the 1962-63 school year, the 11 Southern
s ta tes together had few er than one per cent of the ir
N egro students in schools w ith whites. In 1963-64, the
figure passed the one per cent m a rk and it a lm ost
doubled for 1964-65 to becom e 2.25 per cent of the
N egroes in b irac ia l schools, an increase of m ore than
one percen tage point. F o r the 1965-66 school year, the
percen tage m ore than doubled and reached 6.01 per
cent.^
1 Other estimates are summarized in Report of the United
States Commission on Civil Rights, Survey of School Desegrega
tion in the Southern and Border States 1965-1966, 27-28 (Feb.
“ . . . The Office of Education based on a sampling of 590
districts through a telephone survey conducted in cooperation with
State departments of education, estimates that 216,000, or 7.5
percent, of the Negro students in the 11 Deep South States are
enrolled in school this year with white pupils. [Office of Educa
tion, telephone survey. Table I, Sept. 27, 1965.] Civil rights
organizations, relying upon figures obtained from, a variety of
sources, including field workers, advance a lower figure. The
Southern Regional Council’s estimate is 151,416 Negro pupus.
or 5.23 percent of the total. [Southern Regional Council, School
138 U. S., et al. v. Jeff. County Bd. of Educ., et al.
The six border s ta tes and the D istric t of Columbia
desegregated a t a fa s te r ra te than did the South, and
by the 1961-62 school y ear th a t a re a had m ore than
half of its Negro enro llm ent attend ing desegregated
schools. The annual change in the num ber of N egroes
in desegregated border schools av erag ed about th ree
p er cent a year, and by 1964-65, the border a re a had
desegregated 58.3 per cent of its N egro enrollm ent.
In the cu rren t school year, the border a re a has 68.9
per cent of its Negro students attend ing the sam e
schools w ith w hites, a jum p of over 10 percen tage
points from the previous y e a r’s figure.
This y ear, as in previous y ears, a d isparity exists
betw een w hat m ight be called “ techn ica l” desegrega
tion and “ a c tu a l” desegregation. L ast y ear, for ex
am ple, 56 per cent of the reg ion’s N egro students
w ere enrolled in d is tric ts having desegregation pol
icies, but about 11 per cent of the to ta l N egro en
ro llm ent attended desegregated schools. This year,
the region has 97 per cent of its d is tric ts in official
com pliance with federa l desegregation regulations,
and 93 per cent of the reg ion’s com bined N egro and
white enrollm ent com es from these d istric ts. How
ever, the actual a ttendance of N egroes in deseg regat
ed schools am ounts to alm ost 16 per cent. The differ
ence in these figures w as accentuated th is y e a r by the
fac t that alm ost 2,000 school d is tric ts having e ither all-
Desegregation: Old Problems Under a New Law’ 9, Sept. 1965.]
The American Friends Service Committee and NAACP Legal De
fense and Educational Fund agree that the actual figure is less
than 6 percent [American Friends Service Committee and NAACP
Legal Defense and Educational Fund, ‘Report on the Implementa
tion of Title VI of the Civil Rights Act of 1964 in Regard to
School Desegregation’ 4, Nov. 15, 1965].”
U. S., et al. V. Jeff. County Bd. of Educ., et al. 139
white or all-N egro enrollm ents a re included in the “ in
com pliance” statistics. . . .
Among the Southern sta tes, Texas leads in the num
ber and percen tage of N egroes in schools w ith whites
—an estim ated 60,000 N egroes or 17 per cent of the
s ta te ’s Negro enrollm ent. Tennessee ranks second in
the a re a w ith 16 per cent and V irginia th ird with" 11
per cent. Three s ta tes—A labam a, Louisiana, and Mis
sissippi—continue to have less than one p e r cent of
th e ir Negro enrollm ent a ttending schools w ith whites.
The other Southern s ta tes—^Arkansas, F lo rida, G eor
gia, N orth C arolina-and South Carolina—v ary betw een
1 and 10 per cent of the ir N egro students in b irac ia l
classfoom s.
All but one of the border s ta tes have m ore than
half of th e ir Negro enrollm ents in desegregated
schools. O klahom a has 38 per cent of its N egroes in
b irac ia l schools, M aryland has 56 per cent, and D ela
w are, the D istric t of Columbia, K entucky, . . .
M issouri and W est V irginia have desegregated m ore
th an three-fourths of the ir Negro student popula
tion. . . .
The desegregation sta tistic showing the sh arp est in
crease this y ear w as the num ber of d istric ts w ith de
segregation policies. The region now has 4,804 public
school d istric ts th a t have received approval from the
U. S. Office of Education for th e ir desegregation pro
posals. When the la st school y ear ended, SERS re
ported th a t 1,476 d istric ts had desegregated in p ra c
tice or in policy.
140 U. S., et al. v. Jeff. County Bd. of Educ., et al.
TABLE III
Status of D esegregation
(17 Southern and Border States and D.C.)
School Districts
Alabama
Total
118
With
Negroes
and
Whites
119
In
Compli
ance''
105
Not In
Compli
ance^
14
Enrollment
White Negro
559,123** 295,848**
Negroes
in Schools
with Whites
No. %ft
1,250* .43
Arkansas 410 217 400 10 337,652** 111,952** 4,900* 4.38
Florida 67 67 67 0 1,056,805* 256,063* 25,000* 9.76
Georgia 196 180 192 5 784,917* 355,950* 9,465* 2.66
Louisiana 67 67 33 34 483,941 318,651 2,187 .69
M ississippi 149 149 118 31 309,413 296,834 1,750* .59
N orth C arolina 170 170 165 4 828,638** 349,282** 18,000* 5.15
South Carolina 108 108 86 21 374,007 263,983 3,864 1.46
T ennessee 152 129 149 2 714,241* 176,541* 28,801 16.31
Texas 1,325 850 1,303 7 2,136,150* 349,192* 60,000* 17.18
V irginia 130 127 124 12 757,037** 239,729** 27,550* 11.49
SOUTH 2,892 2,183 2,742 140 8,341.924 3,014,025 182,767 6.01
D elaw are 58 47 59 0 86,041 20,485 17,069 83.32
D ist. of Columbia 1 1 1 0 15,173 128,843 109,270 84.81
K entucky 200 167 204 0 713,451** 59,835** 46,891 78.37
M aryland 24 23 24 0 583,796 178,851 99,442 55.60
Missouri 1,096 212* 675 0 843,167 105,171 79,000* 75.12
Oklahoma 1,046 323 1,044 4 564,250* 45,750* 17,500* 38.25
W est V irginia 55 44 55 0 425,087* 19,850* 15,850* 79.85
BORDER 2,480 817 2,062 4 3,230,965 558,785 385,022 68.90
REGION 5,372 3,000 4,804 144 11,572,889 3,572,810 567,789 15.89
* Estimated.
** 1964-65 .
t The sum of adding the districts “In Compliance” and “Not in Compliance” will not always equal the
total number of districts because the Office of Education reports a different number of districts from that
of some of the state departments of education.
tt The number of Negroes in schools with whites, compared to the total Negro enrollment.
U. S., et al. V. jQff. County Bd.. of Educ., et al. 141
COX, D istric t Judge, d issenting:
The m ajo rity opinion herein im pels m y dissent,
w ith deference, to its general them e, th a t p receden t
requ ired the public schools to m ix the races ra th e r
than desegregate such schools by rem oving all effects
of s ta te action which m ay have heretofore com
pelled segregation, so as to pe rm it these schools to
be operated upon a p roper free choice plan. This
C ouit has heretofore firm ly and soundly (as decision
and not gratu itously) com m itted itself to the views
expressed by the distinguished ju rists in Briggs v.
Elliott, 132 F. Supp. 776. The m ajority now seeks
to criticize the Briggs case and d isparage it as
dictum , although this Court in severa l reported de
cisions has em braced and adopted Briggs w ith
extensive quotations from it as the decisional law
of this C ircuit. Surely, only two of the judges of this
Court m ay not now single-handedly reverse those de
cisions and change such law of this Circuit.
These school cases all stem from the decision of
the Suprem e Court of the United S tates in the fam il
ia r Brown cases.^ Nothing was said in those cases or
has since been said by the Suprem e Court to justify
or support the ex trem ely h arsh p lan of enforced in
teg ra tion devised by the m ajo rity decision. Signifi-
1 Brown I Brown v. Board of Education of Topeha, 347
US 483, 74 S.Ct. 686, 98 L.Ed. 873.
Brown II Brown v. Board of Education of Topeka, Kansas,
349 US 294, 75 S.Ct. 753, 99 L.Ed. 1083.
On December 6, 1965 in Patricia Rogers, et al v. Edgar F.
Paul, et al, 382 US 198, 86 S.Ct. 358, the Court decried delays
in desegregation of public schools and called for an acceleration
of the process, but neither said nor intimidated the existence of
any power or the justification for any authority to forcefully mix
or integrate these schools.
142 U. S., et al. v. Jeff. County Bd. of Educ., et al.
cantly, th e re is nothing in the Civil R ights A ct of 1964
to suggest the p roprie ty of th is Court adopting and
following any guidelines of the Health, Education
and W elfare C om m issioner in these school desegre
gation cases in such respect. T he policy s ta tem en t of
Congress as contained in the ac t itself expressly dis
claim s any intention or purpose to do th a t w hich these
guidelines, and the m ajo rity opinion approving them ,
do in com plete d isregard thereof.
No inform ed person a t th is late date would now a r
gue w ith the soundness of the philosophy of the Brown
decision. T hat case sim ply declared the constitution
al rig h t of negro children to a ttend public schools of
the ir own free choice w ithout any kind of re s tra in t
by state action. T hat Court has m ade it clear th a t the
tim e for “ deliberate” speed in desegregating these
public schools has now expired , but the m a jo rity opin
ion herein is the firs t to say th a t the Brown case, to
gether w ith the Civil R ights Act of 1964, m akes it nec
essa ry th a t these public schools m ust now in teg ra te
and m ix these schools and their facilities, “ lock,
stock and b a rre l.” That view com es as a s trange con
struction of the F ou rteen th A m endm ent righ ts of col
ored children. The passage of tim e since the rendi
tion of the Brown case ; and of n a tu ra l d isparities
which a re found in so m any school plans before the
Court; and the difficult problem s posed before the
Court by such plans certain ly can provide no legal
justification or basis for this ex trem e view and harsh
and m ailed fist decision a t th is tim e. These questions
involving principles of com m on sense and law are
U. S., et al. V. Jejf. County Bd. of Educ., et at. 143
readily resolved by a court of equity w ithout being
p roperly accused of giving an advisory opinion. The
decision in such case is not overtaxing on a court of
equity and its a rticu la ted conclusions can be im ple
m ented by an enforceable decree even a t the expen
ditu re of some well spent tim e, patience and energy
of the Court. If a Court is to w rite a decree, it should
be the decree of th a t Court and not the by-product of
som e adm in istra tive agency without knowledge or
sworn obligation to resolve sacred constitutional
righ ts and principles. U nila terally p rep ared guide
lines allegedly devised by the Com m issioner m ay
or not accord with his own views, but such an
anom alously p rep ared docum ent could not justify
this Court in adopting it “ lock, stock and b a rre l” un
der any p re tex t and even with repeated disavow als
of such intention or purpose.
The Constitution of the United S tates is not the dead
hand of the past strangling the liberties of a free peo
ple; it is a living docum ent designed for all tim e to
perpetuate liberty , freedom and justice for every per-
son, young or old, who is born under or who comes
w ithin its protecting shield. As was said m any years
ago, “ in m oving w ater there is life, in still w aters
there is stagnation and d ea th .” The Constitution was
fram ed not for one era, but for all tim e. But when the
Courts transform viability into elasticity , constitu
tional righ ts a re illusory. The rope of liberty m ay be
tw isted and becom e a garro te which strangles those
who seek its protection. If the m ajority opinion in
these cases is perm itted to stand, it will, in the nam e
144 U. S., et al. v. Jeff. County Bd. of Educ., et al.
of p ro tecting civil righ ts of som e, destroy civil rights
and constitutional liberties of all our citizens, their
children and the ir ch ild ren’s children.
The Suprem e Court, in Brown II, said th a t “ school
au thorities have the p rim ary responsibility for elu
cidating, assessing and solving these problem s;
courts will have to consider w hether the action of
school au thorities constitu tes good fa ith im plem enta
tion of the governing constitutional p rinc ip les.” It
thereupon becam e the duty of the Court, acting as a
Court of Equity , under such principles to see that pub
lic schools, still operating under the dual system by
sta te action, w ere desegregated (not in teg ra ted ) in
accordance w ith the vested constitu tional righ t of col
o red children. Jud ic ia l haste and im patience cannot
justify this Court in equating in tegration w ith deseg
regation. No Court up to this tim e has been h eard to
say th a t th is Court now has the pow er and the au thori
ty to force in tegration of both races upon these public
schools w ithout reg a rd to any equitable considera
tions, or the will or w ish of e ither race. The decisions
of this Court deserve and m ust have stab ility and in
tegrity . I t was the 19G5 guidelines of HEW th a t were
approved by this Court in Derek Jerom e Singleton v.
Jackson Municipal Separate School District, 255 F.2d
865. Judge W isdom w rote for the Court and Judge
T hornberry concurred in th a t case on Jan u a ry 26,
1966; and there w as not a w ord in th a t case to the ef
fect that this Court then thought th a t any decision or
s ta tu te or guidelines under any s ta tu te requ ired or
justified forced integration. A lm ost before th a t slip
U. S., et al. V. Jeff. County Bd. of Educ., et al. 145
opinion reached the bound volume, th is Court has now
w ritten on D ecem ber 29, 1966, a vastly different opin
ion w ith no change in tervening in the law.
The la s t reported school case from this C ircuit, de
cided August 16, 1966 by Judge Tuttle and Judge
T hornberry in Birdie Mae Davis, et al v. Board of
School Commissioners of Mobile County, et al, 364
F.2d 896, this Court still w rote of accelerating a plan
of desegregation. As if to foreshadow the point of
Judge W isdom ’s “ n e ttle” in the m ajo rity opinion in
th is case. Judge Tuttle w rote in his Note 1 an expla
nation of his changing requ irem en ts in these school
cases for the delayed enjoym ent of constitutional
righ ts by accelerating desegregation. D avis said that
negro children, as individuals, had the righ t to tran s
fer to schools from which they w ere excluded be
cause of their race, and said th a t this had been the
law since the Brown decision; bu t that m isunder
standing of th a t’principle was perhaps due to the pop
u la rity “ of an oversim plified dictum th a t the Consti
tu tion does not requ ire integratioru, B riggs v. E lliott,
132 F . Supp. 776, 777.” That is the firs t and only ex
pressed critic ism of Briggs found am ong the decisions
of th is C ircuit, but the Court did not com m ent upon
the viability and soundness of the m any decisions of
this C ircuit which w holeheartedly em braced and re
peated ly reaffirm ed the so-called dicta in Briggs.
Dayis dealt with an u rban a rea in Mobile, A labam a,
while these cases deal w ith sm all com m unities or
ru ra l schools but th a t could have no possible bearing
on desegregation versus or as distinguished from im
m ediate forced in tegration or m ixing of these schools.
146 17. S., et c l , V. Jeff. County Bd. of Educ., et c l .
In Alfred Avery, Jr., a Minor by his Mother and
N ext Friend, Mrs. A lfred Avery, et al v. Wichita In
dependent School District, et al, 241 F.2d 230 (1957),
this Court said:
“ The Constitution as construed in the School Seg
regation Cases, Brown v. B oard of Education, 347 U.S.
483, 74 S.Ct. 686, 98 L .Ed. 873; Id ., 349 U.S. 294, 75 S.Ct.
753, 99 L .Ed. 1083, and Bolling v. Sharpe, 347 U.S. 497,
74 S.Ct. 693, 98 L .Ed. 884, forbids any s ta te action re
quiring segregation of children in public schools sole
ly on account of race; it does not, however, requ ire ac
tua l in tegration of 'the races. As was well said in
B riggs V . Elliott, D .C.E.D.S.C., 132 F . Supp. 776, 777:
“ * * * if is im portan t th a t we point out exactly w hat
the Suprem e Court has decided and w hat it has not
decided in this case. It has not decided th a t the fed
e ra l courts are to take over or regulate the public
schools of the states. It has not decided th a t the states
m ust m ix persons of different races in the schools or
m ust requ ire them to a ttend schools or m ust deprive
them of the righ t of choosing the schools they attend.
W hat it has decided, and all th a t it has decided, is
that a state m ay not deny to any person on account of
race the righ t to a ttend any school th a t it m ain tains.
This, under the decision of the Suprem e Court, the
s ta te m ay not do directly or ind irectly ; but if the
schools which it m ain ta ins a re open to children of all
races, no violation of the Constitution is involved even
though the children of different races voluntarily at
tend different schools, as they attend different
U. S., et al. V. Jeff. County Bd. of Educ., et al. 147
churches. Nothing in the Constitution or in the deci
sion of the Suprem e Court takes aw ay from the peo
ple freedom to choose the schools they attend. The
Constitution, in other words, does not requ ire inte
gration. It m erely forbids d iscrim ination. It does not
forbid such segregation as occurs as the result of vol
u n tary action. I t m erely forbids the use of govern
m en ta l power to enforce segregation. The F ourteen th
Am endm ent is a lim itation upon the exercise of pow
er by the sta te or sta te agencies, not a lim itation upon
the freedom of individuals.”
Again, this Court in Hilda Ruth Borders, a Minor,
et al V. Dr. Edwin L. Rippy, et al, 247 F.2d 268 (1957)
said : “ The equal protection and due process clauses
of the F ourteen th A m endm ent do not affirm atively
com m and integration, but they do forbid any state
action requiring segregation on account of th e ir race
or color of children in the public schools. A very v.
W ichita F alls Independent School D istrict, 5 Cir.,
1957, 241 F.2d 230, 233. Pupils m ay, of course, be sep
a ra ted according to their degree of advancem ent or
re ta rda tion , their ability to learn, on account of th e ir
health, or for any other legitim ate reason, but each
child is entitled to be treated as an individual w ithout
reg a rd to his race or color.”
In a public housing case, participated in by Judge
Wisdom, Queen Cohen v. Public Housing Adm inistra
tion, 257 F.2d 73, it is said : “ N either the F ifth nor the
F ourteen th A m endm ent operates positively to com
m and in tegration of the races, but only negatively
to forbid governm entally enforced segregation .”
148 U. S., et al. v. Jeff. County Bd. of Educ., et al.
This Court in Sandra Craig Boson, et al v. Dr. Ed
win L. Rippy, et al, 285 F.2d 43, said; “ Indeed, this
Court has adopted the reasoning in B riggs v. E lliott,
DC.E.D.S.C. 1955, 132 F. Supp. 776, relied on by the
Sixth C ircuit, and has fu rth er said ; ‘The equal p ro tec
tion and due process clauses of the fourteenth am end
m ent do not affirm atively com m and in tegration , but
they do forbid any state action requiring segregation
on account of th e ir race or color of children in the
public schools. A very v. W ichita F alls Independent
School D istric t, 5 Cir., 1957, 241 F.2d 230, 233. Pupils
m ay, of course, be sep ara ted according to their de
gree of advancem ent or re ta rd a tio n , the ir ability to
learn , on account of their health , or for any other le
g itim ate reason, but each child is entitled to be
treated as an individual, w ithout reg a rd to his race
or color.’ B orders v. R ippy, 5 Cir., 1957,-247 F.2d 268,
271.
“ N evertheless, w ith deference to the views of the
Sixth Circuit, it seem s to us th a t classification accord
ing to race for purposes of tran sfe r is hard ly less un
constitutional than such classification for purposes
of original assignm ent to a public school.” It is that
■decision in Briggs v. Elliott, supra, which the m a jo r
ity here now seek to criticize and repudiate.
In Ralph Stell, et al n. Savannah-Chatham Coun
ty Board of Education, et al, (5CA) 333 F.2d 55, 59,
in footnote 2 it is said ; “ No court has requ ired a ‘com
pulsory rac ia lly in teg ra ted school system ’ to m eet
the constitutional m andate th a t there be no discrim -
17. S., et al. V. Jeff. County Bd. of Educ., et al. 149
ination on the basis of race in the operation of pub
lic schools. See E vers v. Jackson M unicipal Sepa
ra te School D istrict, 5 Cir., 1964, 328 F.2d 408,
and cases there cited. The interdiction is against en
forced rac ia l segregation. Incidental in tegration , of
course, occurs through the process of desegregation.
Cf. Stone V . B oard of Education of A tlanta, 5 Cir.,
1962, 309 F.2d 638.”
This Court in Darrell Kenyatta Evers, et al v. Jack-
son Municipal Separate School District, 328 F.2d 408
(1964) said: “ This is not to say th a t the Fourteen th
A m endm ent com m ands in tegration of the races in
the schools, or tha t voluntary segregation is not le
gally perm issib le. See A very v. W ichita F alls Ind.
School D ist., 5 Cir., 1957, 241 F.2d 230; Rippy v. Bor
ders, 5 Cir., 1957, 250 F.2d 690; Cohen v. Public Hous
ing A dm inistration, 5 Cir., 1958, 257 f''.2d 73, cert, den.,
358 U.S. 928, 79 S.Ct. 315, 3 L .Ed. 2d 302; Holland v.
Board of Public Instruction, supra; and Shuttlesw orth
V . B irm ingham Board of Education, supra. The Su
prem e Court did not hold otherw ise in Brown v. Board
of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed.
873.” The sam e teaching is expressed in a p a rk case
from this Court, styled City of Montgomery, Alabam a
V. Georgia Theresa Gilmore, 277 F.2d 364. In the m any
cases from this Court involving the race issue in pub
lic schools (there being some forty-one of them ac
cording to the m ajo rity opinion), not one of them
speaks of any requ irem en t or duty of the school to
forcefully in tegrate the races, or to com pel the races
to m ix w ith each other in public schools; but every
150 U. S., et al. v. Jeff. County Bd. of Educ., et al.
one of them speak of desegregating such schools. The
w ord desegregate does not ap p ear in W ebster’s New
In ternational D ictionary, Second Edition, E dited in
1950. But W ebster’s New Collegiate D ictionary (a
M erriam -W ebster) defines desegregation as: “ To
free itself of any law, provision or p rac tice requiring
isolation of the m em bers of a p a rticu la r race in sep
a ra te units, especially in m ilitary service or in edu
cation .’’
In sum , there is no law to requ ire one of these pub
lic schools to in teg ra te or force m ix these races in
public schools. But these public schools, which have
been heretofore seg regated by s ta te action, and op
e ra te under a dual system , should be requ ired to re
m ove every vestige of state influence tow ard seg re
gation of the races in these schools; and these col
ored children should be fully advised of their consti
tutional righ t to attend public schools of the ir choice,
com pletely w ithout reg a rd to race. M any problem s
exist and a re c rea ted by the p roper enforcem ent of
desegregation plans th a t will assure a full sweep of
rea l freedom of choice to these negro children, and
this Court cannot by only two of its m em bers becom e
im patien t as tra il-b lazers and rew rite the decisional
law of this C ircuit as m y good friends have undertak
en to do in this case.
Such a course would do violence to the ancient rule
of S tare Decisis. In Donnelly Garment Co. v. Nation
al Labor Relations Board, (8CCA) 123 F.2d 215: “ It is
a long-established rule th a t judges of the sam e court
U. S., et al. V. Jeff. County Bd. of Educ., et al. 151
will not knowingly review , reverse or overru le each
o th er’s decisions. Shreve v. Cheesman, 8 Cir., 69 F.
785, 790, 791; P la ttn e r Im plem ent Co. v. In ternational
H arvester Co., 8 Cir., 133 F . 376, 378, 379. The neces
sity of such a ru le in the in te rest of an orderly ad
m in istra tion of justice is c le a r .” In Sanford Napoleon
Powell V. United States, (7CA) 338 F.2d 556 (1964), it
is said : ‘‘Our decision in L auer has been criticized.
However, this decision is the law of this C ircuit un
less and until th is Court (p resum ably sitting en banc)
would determ ine otherw ise or unless higher au thor
ity m ight so d e term ine .”
Rule 25(a) of the F ifth C ircuit provides for a re
hearing in any case upon vote of a m ajo rity of the c ir
cuit judges in active service for any reason which ap
p ears to them to be sufficient in the p a rticu la r case.
O rdinarily , a hearing or rehearing en banc is not o r
dered except ‘‘when necessary to secure or m aintain
uniform ity or continuity in the decisions of the court,
e tc .” The m ajo rity opinion sim ply does not reflect the
well considered and firm ly sta ted com posite decision
of this C ircuit; and in th a t view, is not an accurate
or p roper s ta tem en t of the law in this case as it now
exists in the F ifth Circuit.
The Civil R ights Act of 1964 (42 U.S.C., 1958 ed.,
§2000c-6) refers to ‘‘desegregation in public educa
tion” and not to forced m ixing or in tegration of the
races. T hat sam e section s ta tes ‘‘provided tha t noth
ing herein shall em pow er any official or court of the
United S tates to issue any order seeking to achieve
152 U. S., et al. v. Jeff. County Bd. of Educ., et al.
a rac ia l balance in any school by requiring the tran s
porta tion of pupils or students from one school to an
other or one school d is tric t to another in o rder to
achieve such rac ia l balance, or otherw ise enlarge
the existing power of the court to insure com pliance
w ith constitutional s tan d a rd s .” The English language
sim ply could not be sum m oned to s ta te any m ore
c learly than does th a t very positive enac tm en t of Con
gress, th a t these so-called “ guidelines” of this ad
m in istra tive agency are not sac ro san c t expositions
of school law (if so in tended), bu t are actually p ro
m ulgated and being used in opposition to and in v iola
tion of this positive s ta tu te . C ontrary to the m ajo rity
opinion, it w as never the intention or purpose of the
Congress to constitute the C om m issioner of H ealth,
E ducation and W elfare as the sidewalk superin tend
ent of this Court in these school cases. On the con
tra ry , 42 U.S.C., 1958 ed., §2000c-2 provides th a t the
C om m issioner, only upon application of a school
board, state, municipality, school district or other
governmental unit, can render any techn ica l a ss is t
ance to such an applicant. Nowhere in that ac t is it
contem plated th a t this court should abdicate its pow
er and authority to ac t upon and decide a case on ap
peal to it as a court of equity, and sim ply decide it
by rubber stam ping one of the annual guideline bul
letins of an adm in istra tive bureau of the U nited S tates
in W ashington. The a ttitude and position of th is Court
in doing exactly th a t in this case is not im proved by
disavowing any intention or purpose to do so.
U. S., et al. V. Jeff. County Bd. of Educ., et al. 153
There w ere seven consolidated cases before the
Court which a re em braced in this decision. Most, if
not all, of the plans in those cases w ere defective and
needed updating for a m ore rea listic and effective ap
plication of the free choice principle under the fo rm er
decisions of this Court; but they did not need or de
serve the harsh and unprecedented trea tm en t ac
corded these schools by the m ajo rity decision in these
cases. The colored children a re not befriended and
their lot is not im proved by this unprecedented m a
jo rity opinion and the entire school system will suffer
under the im pact of this im provident adm in istra tive
directive as thus adopted by th is Court.
My duty im pels me to file this DISSENT to the m a
jo rity view in these cases w ith g rea t deference to both
of m y distinguished associates.
Adm. Office. U. S. Courts—E. S. Upton Printing Co., N. O., La.