Correspondence from Pamela Karlan to Joel Miller (Bureau of the Census)

    a 

CERTIFICATE OF SERVICE 
  

1 hereby certify that on this 7th day of June, 1969, I 

caused to be served by United States mail, postage prepaid, 

a copy of the foregoing Motion For Summary Reversal upon 

Calvin R. King, Esquire, 106 East Mulberry Street, Durant, 

Mississippi; R. L. Goza, Esquire, 114 West Center Street, 

Canton, Mississippi; G. Milton Case, 114 West Center Street, 

Canton, Mississippi; Joseph R. Fancher, Jr., Esquire, First 

National Bank Building, Canton, Mississippi; Honorable A. F. 

Summer, Attorney General, Post Office Box 220, Jackson, 

Mississippi; Robert Moore, Esquire, United States Department 

of Justice, Civil Rights Division, Washington, D. Ci3 R. B. 

Deen, Jr., Esquire, 1400 Greater Mississippi Life Building, 

Meridian, Mississippi; William B. Compton, Esquire, 426 

Citizens National Bank Building, Meridian, Mississippi; Will 

S. Wells, Esquire, Assistant Attorney General, Post Office 

Box 220, Jackson, Mississippi; Herman C. Glazier, Jr., Esquire, 

118 East China Street, Rolling Fork, Mississippi; J. Wesley 

Miller, Esquire, 401 Pine Street, Rolling Fork, Mississippi; 

Thomas H. Campbell, Jr., Esquire, Post Office Box 35, Yazoo 

City, Mississippi; Walter R. Bridgforth, Esquire, Post Office 

Box 48, Yazoo City, Mississippi; John C. Satterfield, Esquire, 

Post Office Box 466, Yazoo City, Mississippi; J. E. Smith, 

Esquire, 111 South Pearl Street, Carthage, Mississippi; Harold 

W. Davidson, Esquire, South Pearl Street, Carthage, Mississippi; 

Robert E. Covington, Esquire, Jeff Carter Building, Quitman, 

Mississippi and Tally D. Riddell, Esquire, Post Office Box 199, 

Quitman, Mississippi. 

  

  

MELVYN R. LEVENTHAL a 

 



ET RRA PARRA TON... PAL 0 

ANDERSON & BANKS 

Attorneys at Law 

s538Y; NORTH FARISH STREET 

JACKSON, MISSISSIPPI 39202 

  

REUBEN V. ANDERSON 

POST OFFICE DRAWER 290 

FRED L. BANKS, JR. 

AREA CODE 601 948-7301 

June 7, 1969 

Honorable Edward W. Wadsworth 

Clerk | 

United States Court of Appeals 

for the Fifth Circuit 

Room 408 - 400 Royal Street 

New Orleans, Louisiana 70130 

RE: BEATRICE ALEXANDER et al. v. THE HOLMES COUNTY BOARD pment 

OF EDUCATION, et “hi Civil Action No. 3/7/79 

N. et al. v. CANTON MUNICIPAL SEPARATE 

CH DISTRI et al., Civil Action No. 3700 

et al. v. MERIDIAN MUNICIPAL SEPARATE 

SCHOOL DISTRICT et al., Civil Action No. 1300 

IPREMTAN BLACKWELL, et al. v. THE ISSAQUENA COUNTY 
: UCATION, et al., Civil Action No. 1096 

ROY LEE HARRIS, et al. v. THE YAZOO CITY MUNICIPAL 

SEPARATE SCHOOL BISTRICT, et al., Civil Action No.1209 

DIAN AUDSON, et al. v. LEAKE COUNTY SCHOOL BOARD, et als 

Civil Action No. 3382 

CHARLES KILLINGSWORTH, et al. v. THE ENTERPRISE CON- 

SOLIDATED SGHOOL DISTRICT, et al., Civil Action No. 1302 

Dear Mr. Wadsworth: 

  

  

  

  

  

  

  
  

  

  

Enclosed please find for filing three copies and original 

of Motion for Summary Reversal in the above captioned cases. 

Sincerely, 

Melvyn R. Leventhal 

MRL:mscC 

Enclosures 

cc: All Attorneys of Record 

 



  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

NO. 
  

BEATRICE ALEXANDER, ET AL., 

VS. 

THE HOLMES COUNTY BOARD OF EDUCATION, ET AL., 

JOAN ANDERSON, ET AL., 

vs, 

CANTON MUNICIPAL SEPARATE SCHOOL DISTRICT, 

ET AlL., 

JOHN BARNHARDT, ET AL., 

VS. 

MERIDIAN MUNICIPAL SEPARATE SCHOOL DISTRICT, 

ET AlL., 

JEREMIAH BLACKWELL, JR., ET AL., 

VS. 

THE ISSAQUENA COUNTY BOARD OF EDUCATION, 
ET AL., THE SHARKEY COUNTY BOARD OF EDUCATION, 

ET AL., THE ANGUILLA LINE CONSOLIDATED SCHOOL 
DISTRICT, ET AL., and THE SHARKEY-ISSAQUENA 
LINE CONSOLIDATED SCHOOL DISTRICT, ET AL., 

ROY LEE HARRIS, ET AL., 

VS. 

THE YAZOO CITY MUNICIPAL SEPARATE SCHOOL 
DISTRICT, ET AL., THE YAZOO COUNTY BOARD 
OF EDUCATION, ET AL., THE HOLLY BLUFF 
LINE CONSOLIDATED SCHOOL DISTRICT, ET AL., 

DIAN HUDSON, ET AL., 

VS. 

THE LEAKE COUNTY SCHOOL BOARD, ET AL., 

Appellants, 

Appellees. 

Appellants, 

Appellees. 

Appellants, 

Appellees. 

Appellants, 

Appellees. 

Appellants, 

Appellees. 

Appellants, 

Appellees. 

 



  

CHARLES KILLINGSWORTH, ET AL., Appellants, 

VS. 

THE ENTERPRISE CONSOLIDATED SCHOOL DISTRICT, 

ET AL., THE QUITMAN CONSOLIDATED SCHOOL 

DISTRICT, ET AL., and THE CLARKE COUNTY BOARD 

OF EDUCATION, ET AL., 
Appellees. 

MOTION FOR SUMMARY REVERSAL 
  

These school desegregation cases were included in the 

consolidated appeal decided by this Court in Adams v. Mathews, 

403 F.2d 181 (5th Cir. 1968); this is, therefore, the second 

time in less than a year that plaintiffs-appellants are be- 

fore this Court requesting an order directing the United 

States District Court for the Southern District of Missis- 

sippi, Judge Harold Cox, to implement Jefferson and Green. 
  

In Adams, 403 F.2d at 188, this Court directed Judge Cox 

to treat plaintiffs'-appellants’ motions for new plans of 

desegregation "as entitled to the highest priority," and "to 

conduct a hearing in each case at the earliest practicable 

time, no later than November 4, 1968." Instead, upon remand 

of these cases, motions for new plans of desegregation in all 

school cases pending in the United States District Court for 

the Southern District of Mississippi, were consolidated and 

  

lin Adams appellants sought an order directing the 

district court to hold hearings on their motions for new 

plans of desegregation in advance of the 1968-69 school 

year. This Court denied summary reversal holding that 

"the reviewing court should have the benefit of the 

district court's findings of fact and conclusions of law," 

403 F.2d at 188. Appellants now come tO this Court with 

the district court's findings in hand; see Exhibit "A", 

opinion of district court.  



  

EASA Da ik ld 

were heard, before an en banc district court, during October 

and December, 1968. 2 

In Adams, 403 F.2d at 188-89, the district court was di- 

rected to enter an order "by such date as will permit effec- 

tive review in [The United States Court of Appeals for the 

Fifth Circuit]. . .of the court-approved actions the Board 

will institute in the 1968-69 year as well as the 1969-70 

year." Instead, the district court, through inaction, de- 

nied plaintiffs any relief effective for the 1968-69 school 

year and, by a decision dated May 13, 1969, and orders dated 

May 16, 1969, approved the continued utilization of freedom 

of choice desegregation plans in all defendant-appellee school 

districts. Although the district court required faculty inte- 

gration, it confined its orders to a broad statement of objec- 

tives and refused to establish specific numerical targets for 

the 1969-70 school year.” It is from this decision dated 

May 13, 1969 and the orders dated May 16, 1969, that plain- 

tiffs appeal. (Attached hereto and marked Exhibits "A" through 

"H" are the district court's opinion and orders in each of the 

captioned cases.) 

  

2This Motion for Summary Reversal is filed by private 
plaintiffs only. The decision appealed from, however, dis- 
posed of all motions for new plans of desegregation pending 
in the district court, including eighteen such motions filed 
in suits wherein the United States is the plaintiff. 

3In Graves v. Walton County Board of Education, consoli- 
dated with Adams, and decided separately on a Motion for Re- 
hearing, this Court outlined steps which could be taken 
during the 1968-69 school year: liberal majority-to-minority 
transfer policies, faculty and athletic competition desegre- 
gation, 403 F.2d at 190. 

  

“¢i11ingsworth v. The Enterprise Consolidated School 
District and Quitman Consolidated School District was dis- 
posed of differently by the district court; see, infra, pp. 
10-13. 

  
  

  
  

ES TT ¥ gh + mn 

 



  

II. 

This is an appropriate case for summary reversal. First, 

the Adams court assured plaintiffs-appellants "effective re- 

view" of actions contemplated by the defendant boards of edu- 

cation for the 1968-69 and 1969-70 school years and approved 

by the district court, 403 at 188-89. And if review is to be 

effective for 1969-70 this Court must grant summary reversal 

as prayed for herein. 

Moreover, decisions since Adams have made it clear that 

1969-70 is the deadline for implementation of Green. In U.S. 

v. Indianola Municipal Separate School District, 5th Cir. 1969, 

  

F.2d ,. No. 25655, April 11, 1969, the district court 

  

was directed "to move quickly so that a new plan may be 

approved and operable by the 1969-70 school year," (Slip 

Opinion, p. 13). In Hall v. St. Helena Parish School Board, 
  

5th Cir. 1969, oe FLA No. 27391, decided as recently 

as May 28, 1969, this Court established a detailed time-table 

for the implementation of a new plan of desegregation effec- 

tive for the 1969-70 school year, (Slip Opinion, pp. 27-29). 

If this Court denies summary reversal, these plaintiffs will 

again be asked to wait this time until 1970-71; and this 

Court declared four years ago, that a moratorium upon coOn- 

stitutional rights cannot long be tolerated. t 

Furthermore, if summary reversal is denied and plaintiffs 

asked to await the 1970-71 school year, a "double standard" 

for school desegregation will prevail in Mississippi during 

  

An expedited appeal will be of no benefit to plaintiffs; 

the court's term end docket has been fixed and we are only 

three months from the commencement of the 1969-70 school year. 

6price v. Dennison, 348 F.2d 1010, 1013 (5th Cir, 1965). 
  

 



  

the 1969-70 school year. In virtually every school desegre- 

gation case pending in the United States District Court for 

the Northern District of Mississippi, new plans of desegre- 

gation, have been ordered effective for the 1969-70 school 

year.’ The Brown II formula which assigned to the district 
  

courts the task of implementing school desegregation, never 

contemplated an arbitrary geographic division of Mississippi 

into two sections each governed by its own distinct guide- 

lines and standards. Such an arbitrary division undermines 

the confidence of litigants in the judiciary and encourages 

white resistance in the Northern District of Mississippi.® 

And such a division demands immediate and decisive resolution 

by this Court. 

Finally, this is an appropriate case for summary rever- 

sal because on its face the decision of the district court is 

clearly erroneous. 

111. 

1. In each of the cases presented in this appeal plain- 

tiffs filed motions for further relief seeking to implement 

the Green decision for the 1968-69 school year and to secure 

the adoption of desegregation plans based upon geographic 

zoning or pairing. Upon hearing, plaintiffs introduced 

  

See, for example, the order attached hereto and marked 

Exhibit "I", which was entered by the Honorable Orma Smith, 

United States District Judge for the Northern District.of 

Mississippi, in Carter v. Drew Municipal Separate School 

District, Civil Action No. GCb673I-S. Orders responsive to 
Green and its progeny have been entered against approximately 

thirty school districts under the jurisdiction cf the United 

States District Court for the Northern District of Mississippi. 

  

  

8 Thus, in Bell v. West Point Municipal Separate School 
District, Civil Action No. EC6560, (N.D. Miss.), Carter v. 
Drew Municipal Separate School District, Civil Action No. 
GCob/31-5 oh D. Miss), and Dean v. Clay County Board of =g, . 

Education, Civil Action No. EC6663, (N.D. Miss.), defendants 

  

  

  

  

have moved the district court for an order to stay the im- 
plementation of new plans of desegregation pending the out- 

come of this appeal. 

 



  

statistical data compiled by defendant school districts under 

the requirements of the reporting provisions of the uniform 

Jefferson decree. Plaintiffs demonstrated through this sta- 
  

tistical data that:’ 

a) In every defendant school district not a single white 

child was enrolled in any Negro school nor had elected to 

attend any Negro school; 

b) In every defendant school district, except for the 

Enterprise Consolidated School District, less than 10% of 

the total Negro student population was enrolled in predominate- 

ly white schools; in several school districts the figure was 

less than 5%; in Enterprise the figure was 16%. 

c) Not a single school district had achieved more than 

token faculty integration. 

Through the testimony of defendant superintendents of 

education, plaintiffs secured the following admissions: 

a) that in every school district pairing and/or zoning 

was administratively sound and feasible; that except for the 

possibility of community hostility such a plan would achieve 

substantially more desegregation than had been realized under 

freedom of choice; 

b) that athletic competition and extra-curricula activ- 

ities were conducted on a dual racial basis; 

¢) that defendants have operated under freedom of choice 

plans of desegregation since 1965. 

Significantly, the district court incorporated in its 

findings of fact all of the above described evidence offered 

by plaintiffs. 

2. The clearest statement of the conclusion of law 

reached by the district court appears on page 13 0f its 

  

Attached hereto and marked Exhibit "J" is a compilation 

of the statistical data for each school district. 

 



  

opinion: 

(T)he plaintiffs have not shown by 
the greater weight of the more con- 

vincing evidence that the freedom of 

choice plan. . .has not worked and 
that there is no probable prospect 

of such plan working. The plan has 

not been afforded an opportunity and 

chance to work, and it simply cannot 
be honestly said that the plan will 

not work if given a chance to do so. 

The Court, therefore, finds as a fact 

and holds as a matter of law that the 

movants in these cases have failed to 

prove that such freedom of choice plan 

should be discarded as not workable 

and that the schools should be re- 

quired to adopt another plan which 
would work more effectively under jg 

the model decree. [Emphasis added. | 

  

  

  

Appellants submit that the indisputable rule of law in 

this Circuit is that a plan of desegregation which has not 

achieved desegregation of students, faculty and school re- 

lated activities is unacceptable and inadequate on its face 

and that the district court's approach, which imposes upon 

plaintiffs the burden of proving that freedom of choice can- 

not work in the future, is clearly erroneous. 

This Court instructed Judge Cox in Adams, 403 F.2d at 

188: 

If in a school district there are still 

all-Negro schools or only a small frac- 

tion of Negroes enrolled in white schools, 

or no substantial integration of faculties 

and school activities then as a matter of 
  

  

107he district court's opinion is divided into three 

discernible segments: first, the court disposes of 

Killingsworth v. The Enterprise Consolidated School Dis- 

trict and The Quitman Consolidated School District; second, 

it disposes of U.S. v. Natchez Special Municipal Separate 

School District finally it disposes of the remaining 

twenty-three cases, discussing them generally as a single 

entity as to student and then faculty integration. The rule 

of law quoted above was applied to the twenty-three cases. 

Plaintiffs herein cannot be concerned with the Natchez School 

District which was sued by the United States. Killingsworth 

  

  

  

  

  

  

  

Ts discussed separately below, pp. 10-13. 

 



  

+ FO PER TNE Ep TRAST 

law, the existing plan fails to meet 
constitutional spqndards as estab- 
lished in Green. 

And in U.S. v. Greenwood Municipal Separate School Dis- 
  

tcict, 5th Cir. 1969, F.2d y 25714, February 4, 1969 

(Slip Opinion, p. 10), the Court stated: 

We hasten to emphasize that on remand 
the proceedings must be controlled by 
Green and Raney, as well as recent 

th Circuit dN ciatone. Going a step 
further, we will express the view that 
these recent decisions foreclose the 
use of freedom of choice in Greenwood 
because it has produced so little in 
the way of meaningful desegregation. 

  

And most recently this Court disposed of a contention 

identical to that of the district court below, thusly: 

(I)n evaluating the plans before him 
the district judge did not apply the 
standard of whether the plans are 
working but rather that of whether 
they could work. This is an erron- 
eous standard. When testing the suf- 
ficiency of a plan that has been in 
operation sufficiently long to produce 
meaningful empirical data, that data 
must be considered and a determination 
made of whether the plan is effectuat- 
ing a transition to a racially non- 
discriminatory school system. [Hall wv. 
St. Helena Parish School Board, et al. 
ath Cir. 1969, F.2d No. 76450, 
May 28, 1969, STip Opinion, D+ 26] 

  

3. After summarily dismissing the clear standard of 

Adams and its progeny, the district court determined to 

ignore statistical data: 

  

emphasis added. In U.S. v. Indianola Municipal 
Separate School District, 5th Cir. T1969, F240 ’ 
No. 25655, April II, 1969, the court italicized the 

  

  

  

  

phrase "as a matter of law," (Slip Opinion, p. 4). See 
also, Ra v. Clarksdale Municipal Separate School Dis- 
trict, Cir. 1969, r.Zd s NO. 23255, March o, 

U.S gr Vv. Greenwood Municipal Separate School District, 
5th Los 1969, F.2d . To 25/14, February 4, 1969 
and Hall v. St. Helena Parish School Board, et al., 5th 
Cir. 1969, F.2d , No. 26450, May 7%. 1969. 

This Court is again reminded that plaintiffs-appel- 
ants herein were before this Court in Adams, and that the 
standard quoted above, was directed specifically to the 
United States District Court for the Southern District of 
Mississippi. 

 



  

But the statistics which this Circuit 

says speaks so loudly, they listen 

thereto, do not by themselves make a 

very attractive bare figure of any re- 

garding or impressive accomplishment. 

But these statistics alone are mis- 

leading, and do not truly and convinc- 

ingly reflect the facts and circum- 

stances as they actually exist. 

In U.S. v. Board of Education of Bessemer, 396 F.2d 44, 
  

46 (5th Cir. 1968), the court noted, "figures speak and when 

they do courts listen." Most recently in Hall, supra, the 
  

court held "when figures speak we must listen," (emphasis 

added) . 

4. But the district court did make findings of fact 

which, under the rule of Adams, provide bases for ordering 

new plans of desegregation. Thus, the district court found 

that "No school in the district has attained the figure de- 

gree of mixing the races among the students to equal that 

condemned in Green as being glsatisfactory, Tuy: (finding 

of fact, number 5, p. 20 of opinion); it found further that 

inadequate progress had been made toward faculty integration, 

an important element in the Adams test, (finding of fact, 

number 9, p. 21 and p. 17 of opinion); and implicit in its 

finding that nExtracurricula activities are being engaged in 

on a gradual and cautious basis in this particularly delicate 

area,® is the further finding that defendant school districts 

have not achieved substantial integration of school activities, 

(finding of fact, number 3, P. 19 of opinion). 

In summary, there is no real question of law posed by 

this appeal. Rather, the district court applied a clearly 

erroneous standard to its findings of fact; there can be no 

 



  

EI PEN RA DPA FEWER BATOTAY WE We BN TPR Sy EF Sv 
2 NAT ds 3 TR i a eT 

case more appropriate for summary reversal.l? 

Iv. 

Plaintiffs also challenge the failure of the district 

court to order specific targets for faculty integration for 

the 1969-70 school ‘year. Judge Cox's order provides only: 

In order to insure [complete faculty 
integration] by the 1970-71 school 
year, defendants shall achieve sub- 
stantial faculty and staff desegre- 
gation by the 1969-70 school year. 

This indefinite approach to faculty integration was 

forcefully condemned in U.S. v. Board of Education of Bessemer, 
  

396 F.2d 44, 46 (5th Cir. 1968): 

(The trial court. . .has a duty to 
require specific interim target dates 
which in the short course remaining 
will assure full compliance by "C" 
(Compliance Day). If the boards will 
not supply meaningful targets, the 
Judge must. 

  

120pe considerations which the district court found con- 
trolling have on numerous occasions been considered by this 
Court and found without merit. For example, the district 
court placed heavy emphasis upon the good faith of the defend- 
ants notwithstanding the holdings of Green, Henry v. Clarksdale 
Municipal Separate School District, U.S. v. Indianola Municipal 
Separate school District and U.S. v. Greenwood Municipal Sep- 
arate School District that good faith Is but one facet of a 
constitutional plan of desegregation and that the failure of a 
school district to implement a new plan of desegregation in 
view of the lact of meaningful progress under freedom of choice 
may be evidence of bad faith. The district court also found 
that no Negro child had voiced any complaint against the free- 
dom of choice plan. As to this finding, the Court in U. S. wv. 
Greenwood Municipal Separate School District, 5th Cir. 1969, 

F.2d y NO. 25/14, slip opinion at p. 7, stated "the 
school board knows, has known since 1954, what Negro parents 
mean when they allege generally that their children are being 
denied equal protection of the laws. They mean that all- 
Negro schools yet exist, that faculties have not been inte- 
grated, and that other characteristics of the dual system 
remain." In addition, the district court found that federal 
monies available under Title I of the Elementary and Secondary 
Education Act, 20 U.S.C. 241(a), discourage integration; this 
finding is clearly erroneous. The regulations promulgated by 
the Office of Education clearly provide that target children 
rather than target schools are to benefit by programs; further, 
that Title I monies may not be used in any manner which would 
inhibit integration. 

  

    

  
  

  

  

   



  

As the Court noted in Jefferson, uncertainty in the de~- 
  

crees entered by the district courts has contributed to the 

delays attending the desegregation process; the uniform de- 

cree was, therefore, a detailed statement of the precise 

duty of school boards under freedom of choice plans. Such 

precision is equally important in faculty integration, and 

the district court must establish interim targets for the 

1969-70 school year. See also, U.S. Vv. Montgomery County 
  

Board of Education, Supreme Court of the United States, 
  

June 2, 1969, 37 U.S. Law Week 4461. 

V, 

Finally, plaintiffs seek summary reversal of the dis- 

trict court's order in Killingsworth v. The Enterprise Con- 
  

  

solidated School District and The Quitman Consolidated School 
  

  

District. Plaintiffs' proof against these two school dis- 
  

tricts was essentially identical to that entered in the other 

cases before this Court. However, the district court sustained 

defendants' motion to dismiss plaintiffs' motion for a new plan 

of desegregation on the ground that the attorney representing 

plaintiffs had no authority to file the motion for a new plan. 

The district court found that attorney Reuben V. Anderson had 

entered the case well after the Complaint was filed and was 

not specifically retained by plaintiffs; further, it found 

that named plaintiffs never expressly authorized Mr. Anderson 

to file the motion for a new plan. 

In 1965 plaintiff school children, through their parents, 

retained Carsie Hall and Jack Young "and anyone they may ap- 

point or designate" to represent them in "all desegregation 

«10~ 

 



  

proceedings"! against the defendant school districts. Novem- 

ber 9, 1966, plaintiffs again executed retainer forms this 

time designating Marian E. Wright "and anyone she may desig- 

nate, associate with or appoint." Mr. Anderson noticed his 

appearance in these cases on April 18, 1968, (original record, 

15 
p. 34) as an associate of Marian E. Wright (original record, 

p. 30), pursuant to the authorization contained in the retainer 

agreement dated November 9, 1966. There is, therefore, no sup- 

port for the finding that Reuben V. Anderson was not properly 

retained by plaintiffs. 

Moreover, there is nothing in the record which indicates 

that Mr. Anderson did not confer with plaintiffs prior to the 

filing of the motion. Indeed, Mr. Anderson stated: 

(B)efore I file any action in any court 
for any additional relief in the case. . . . 
I, or someone from my office will go and 
talk with the people in the community and 
if the people in the community tell me. 
that they do not want to file suit, we 
will not, at least I will not, and I will 
go in the communities and sit down and 
talk about it. . .and if they say they had 
rather operate under the freedom of choice 
plan. . .no further relief will be re- 
quested, (original record, pp. 23-24). 

  

13,ttached hereto and marked Exhibit "L" is a retainer 
agreement executed by a plaintiff in 1965 designating Jack 
Young and Carsie Hall. 

14,¢ tached hereto and marked Exhibit "K" is the retainer 
agreement executed by Rev. and Mrs. J. C. Killingsworth in be- 
half of their son, dated November 9, 1966, designating Miss 
Wright. 

Lye, Anderson and Miss Wright were partners in the law 
firm of Wright and Anderson until Miss Wright's departure from 
Mississippi. (original record, p. 30). 

167he fact that Mr. Anderson was the only attorney listed 
on plaintiffs' motion for a new plan of desegregation resulted 
from the rule of the district court, discussed in Sanders v. 
Honorable Dan M. Russell, 401 F.2d 241 (5th Cir. 1968), footnote 
10, which directed every attorney who signs or permits his name 
to be listed on any pleading to appear at all hearings. Attorneys 
Young and Hall, who had been retained in 1965, withdrew because 
they could not appear at each hearing. However, attorneys Marian 
E. Wright, Jack Greenberg and others of the NAACP Legal Defense 
Fund, never withdrew from these cases; rather, they withdrew 
their names from the pleading to comply with the order of the 
district court. All pleadings filed subsequent to Sanders list 
the names of associate counsel of the Legal Defense Fund. 

  

-ll- 

 



  

And as to the motions for new plans in Quitman and 

Enterprise, Mr. Anderson stated: 
  

A. (B)efore we filed the motion for 
additional relief in this case, 
someone from our office went out 
in the community. 

Q. How do you know that? 

A. Because I take it upon myself to 
see that someone does this before 
further relief is requested in any 
school case. (original record, pp. 
24-25) 

The only admission counsel opposite elicited from Mr. 

Anderson was that he could not be certain that someone from 

his office had conferred with plaintiffs, since he did not 

have the proper files with him at the time he was called as 

a witness by defendants. Indeed, the uncertainty was occas- 

ioned by the surprise surrounding the motion to dismiss: de- 

fendants gave no notice of their motion and it was made, ore 

tenus, during the hearing on plaintiffs' motion for a new 

plan, (original record, pp. 16, 34). Therefore, the dis- 

trict court's finding that Mr. Anderson did not represent 

plaintiffs and did not consult with them before filing this 

motion is without foundation and clearly erroneous. 

Finally, the retainer agreements designating Jack Young, 

Carsie Hall and Marian E. Wright to desegregate the defendant 

school systems, on their face and without further proof, 

authorize the filing of motions for new plans of desegrega- 

tion. Counsel were retained in 1965 and 1966 to secure inte- 

grated school districts; }? the record shows that this objec- 

tive has not been realized. The motion for a new plan of 

  

17ughe school board knows, has known since 1954, what 
- Negro parents mean when they allege gemerally that their 
children are being denied equal protection of the laws. 
They mean that all-Negro schools yet exist, that faculties 
have not been integrated, and that other characteristics 
of the dual system remain," U.S. v. Greenwood Municipal 
Separate School District, 5th Cir. 1969, F.2d s: NO, 
AVAL February 4, 1969, slip opinion, p. 7. | 

  

-]2e 

 



  

desegregation is but one step toward the goal attorneys were 

asked to achieve in 1965 and 1966. These retainer agreements 

create a strong presumption that attorneys were authorized to 

file any motion which sought an integrated school system and 

defendants were required to prove that such authorization had 

been withdrawn or modified. No such proof was offered. 

If defendants' smoke-screen, their motion to dismiss, is 

lifted, the Court will find that the Enterprise and Quitman 

school districts achieved no meaningful progress under free- 

dom of choice; that the district court's findings of fact re- 

lating to performance under freedom of choice fully applied 

to the Enterprise and Quitman cases. If the smoke-screen is 
  

lifted these cases are no different from the others before 

the court and summary reversal is equally proper and neces- 

sary. 

vi. 

This court and plaintiffs are confronted with a district 

court which insists upon undermining the clearest orders and 

precedents of this Court: Adams directed Judge Cox to order 

new plans of desegregation upon a showing of token progress 

toward integration under freedom of choice. And this Court 

with language abundantly clear has left no doubt that freedom 

of choice plans of desegregation are unacceptable in all of 

these defendant school districts. Yet, the district court 

says "No" and challenges the very foundations of our judicial 

system. Plaintiffs submit that in view of the district court's 

position on school desegregation cases summary reversal without 

specific orders directing the district court to require plans 

-13~ 

 



  

of pupil assignment other than freedom of choice, will be 

lo 18 
unavailing. 

Negro citizens have acted as "private Attorneys General® 

to enforce the Brown mandate that dual systems be converted 

to unitary nonracial systems in much the same way that they 

have had to do so to enjoy their rights under Title II (Public 

Accommodations) of the Civil Rights Act of 1964. While we do 

not argue here that counsel fees need necessarily be allowed 

as a matter of course in school desegregation cases, as the 

Supreme Court has said it must be in Title II cases (see 

Newman v. Piggie Park Enterprises, Inc., U.S. y: 36 
    

L.W. ___, decided March 19, 1968), we do strongly submit 

that counsel fees should be awarded where appellants have 

been forced to reverse in this court, district court orders 

failing adequately to adhere to the orders of this Court. 

Other courts in this and other circuits have begun to 

recognize the inequities and are beginning to grant counsel 

fees with somewhat more frequency. See Cato., et al. v. Parham 
  

(the Dollarway School District, No. 2, Jefferson County, 

Arkansas), No. PE-67-C-69, (E.D. Ark.) July 25, 1968 where the 

court allowed a fee of $700.00, on the ground that "whatever 

  

184, U.S. v. Greenwood Municipal Separate School District, 
5th Cir. 1960, F.2d sy No. 25/14, February 4, 1969, slip 
opinion, p. 10, the Court in effect directed the district court 
to enter a plan of desegregation other than freedom of choice. 
We concede that in Hall, supra, the Court was reluctant to fore- 
close the use of freedom of choice. But there the Court estab- 
lished a time-table which assured another review by this Court 
before the commencement of the 1969-70 school year. Time is 
shorter in these cases and without specific instructions to 
the contrary it can be predicted that the district court will 
approve a plan of desegregation based upon freedom of choice. 
We emphasize too that the order of this Court must specify 
"new plan of pupil assignment" lest defendants come before 
the district court with plans based upon freedom of choice but 
which have such ineffective features as "majority-to-minority" 
transfer provisions. If the court is not specific it can be 
expected that the district court will approve any freedom of 
choice plan which contains an added feature. This was the 
approach of defendants in the Northern District of Mississippi; 
there, of course, such plans were summarily rejected by the 
district court. 

  

  

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progress has been made [in the 9 years the litigation had been 

underway] in the direction of desegregation at Dollarway has 

followed judicial prodding."; the same Court made a similar 

award in Kelley v. The Altheimer, Arkansas Public School Dis- 
  

trict No. 22, No. PB-66-C-10 (E.D. Ark.,), July 29, 1968. 
  

Rolfe v. Lincoln County Board of Education, No. , 
  

  

y Fa Supp. , decided Feb. 16, 1968. Cf., 
  

  

Bell v. School Board of Powhatan County, Va., 321 .F.2d4 494, 
  

500 (C.A. 4, 1963). This Court should do no less. 

Appellants' counsel have expended 50 lawyer hours and 

much secretarial and duplicating expose in preparing the ap- 

peals in these seven cases, and believe an award of $500.00 

against each of these Boards would be a fair and reasonable 

recovery. | 

WHEREFORE, appellants for the foregoing reasons pray that 

the decision and orders of the district court below, dated 

May 13, 1969 and May 16, 1969, be SUMMARILY REVERSED; that the 

cases be remanded to the district court with instructions: 

1. To require the submission of plans of pupil 
assignment based upon geographic zoning and/or 
pairing to be implemented for the 1969-70 school 
year within four days from the order of this 
Court; 

2. That, where necessary, immediate hearings 
be held following the submission of such plans; 

3. That specific numerical targets be estab- 
lished for faculty integration for the 1969-70 
school year; | 

Appellants pray further that this Court provide a 

mechanism for appeal to this Court which will insure effec- 

tive review by the 1969-70 school year; 

Appellants pray further for an order against each defend- 

ant board of education awarding appellants $500 for reasonable 

counsel fees incurred in connection with this appeal; 

“15 

 



  

Le i 
pe 

¢ -* 

Ll 

« 

Appellants pray finally for all alternative or additional 

relief this Court deems just and proper. 

June 7, 1969 Respectfully submitted, 

=n wn 

MEEVYN R. LEVENTHAL 
REUBEN V. ANDERSON 
FRED L. BANKS, JR. 

538% North Farish Street 
Jackson, Mississippi 39202 

  

JACK GREENBERG 

JONATHAN SHAPIROG 
NORMAN CHACHKIN 

Suite 2030 
10 Columbus Circle 
New York, New York 

Attorneys for Plaintiffs 

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