Churchill Area School District v. Hoots Brief of Respondent in Opposition to a Writ of Certiorari

    UNITED STATES

C OURT  OF A P P E A L S
FIFTH CIRCUIT

No. 25,356

JERRY L. LOCKETT, ET AL.,
Appellants,

versus

BOARD OF EDUCATION, MUSCOGEE COUNTY 
SCHOOL DISTRICT, GEORGIA, ET AL.,

Appellees.

Appeal from the United States District Court for the 
Middle District of Georgia.

BRIEF OF APPELLEES.

J. MADDEN HATCHER,
A. J. LAND,
HATCHER, STUBBS, LAND & 

ROTHSCHILD,
P. O. Box 469,

Columbus, Georgia 31902, 
Attorneys for Appellees.



UNITED STATES COURT OF APPEALS 
FIFTH CIRCUIT

No. 25,356.

JERRY L. LOCKETT, ET AL.,
Appellants,

versus

BOARD OF EDUCATION, MUSCOGEE COUNTY 
SCHOOL DISTRICT, GEORGIA, ET AL.,

Appellees.

Appeal from the United States District Court for the 
Middle District of Georgia.

BRIEF OF APPELLEES.

STATEMENT OF THE CASE.

In the statement of the case under the title “ History 
of this Litigation” Appellants correctly state that 
the Board of Education of Muscogee County adopted 
a desegregation plan for its schools in 1963, and that 
the action beginning in this litigation was subse­
quently filed on January 13, 1964. Appellants are in er­
ror when they say that the purpose of this suit was to 
enjoin the continued operation of a bi-racial school 
system and “ challenge the Appellees’ desegregation 
plan as inadequate on a number of grounds.”



2

At the time the petition was prepared and filed, its 
authors were apparently unaware of the fact that the 
Muscogee County Board of Education had taken af­
firmative action to bring about the desegregation 
of its schools and had adopted a plan for its accom­
plishment. In paragraph 9 of the complaint it was 
stated, “ Indeed, the defendant Board is now on rec­
ord as opposing any desegregation of the Muscogee 
County public schools and refusing to initiate desegre­
gation unless such action is required by order of the 
Federal courts.” R., p. 7 in Case #21062, Jerry L. 
Lockett, et al. v. Board of Education, Muscogee 
County School District, Georgia, et al., 342 F.2d 225 
(Fifth Circuit, 1965).

Instead of “ challenging the Appellees’ desegrega­
tion plan as inadequate on a number of grounds,” 
the complaint erroneously alleged that no plan was 
in existence and that Muscogee County was on rec­
ord as refusing to adopt a plan unless compelled to do 
so by the Federal courts. It has always been our 
belief that this error was due to a lack of commu­
nication between the local people who had knowledge 
of the true facts and the Atlanta and New York attor­
neys who prepared the petition. We have felt, further, 
that had those charged with the responsibility for 
determining where suits were to be filed been aware 
of the fact that the Muscogee County Board of Edu­
cation had already decided that its schools should be 
desegregated and that it had already voluntarily tak­
en affirmative action to bring this about, the present 
litigation would not have been begun.



3

We think this is important because it points up a 
very real and important difference between the Mus­
cogee County School District and other districts re­
ferred to in Appellants’ brief.

ARGUMENT.
Appellants’ attack on the judgment appealed 

from seems to be based primarily upon the conten­
tion that in some way the standards and requirements 
therein contained are less than those imposed upon 
“ other systems in Georgia and, indeed, every school 
system in the neighboring State of Alabama.” It is 
not our contention that Muscogee County has any 
right, or desire for that matter, to take any less posi­
tive and affirmative action in ridding itself of the 
segregated dual school system than that required of 
other systems in Georgia and Alabama. We do think 
that the fact that Muscogee County in good faith en­
tered upon a discharge of its responsibility in this re­
gard without the necessity of orders or injunctions 
from the courts justified the District Court in deter­
mining that “ there is no need for judicial interfer­
ence,” and this Court, when it reviewed the Dis­
trict Court’ s decision in commenting that,

“ The record discloses a willingness to go for­
ward. We, as was the District Court, are willing 
to rely on the integrity and good faith of the mem­
bers of the School Board where they represent, as 
they have here, an intention to effectuate the 
law.”  Jerry L. Lockett, et al. v. Board of Edu­
cation, Muscogee County School District, Geor­
gia, supra.



4

The order appealed from does not impose upon the 
Muscogee County School District lower standards or 
requirements than those imposed on other systems 
in Georgia and Alabama and by United States of 
America and Linda, Stout v. Jefferso'n County Board 
of Education, et ah, 372 F.2d 836 (1966); 380 F.2d 385, 
(1967). It does recognize that the defendant Board 
“ intends in good faith to effectuate the law,”  and that 
it “ is earnestly striving to comply with constitutional 
requirements in the operation of its schools and is 
successfully doing so.”

The District Court heard and considered evidence 
from the School Board demonstrating that a decree 
of the nature and in the language of Jefferson is neith­
er necessary nor desirable in the circumstances. We 
believe that the record made at the hearing on Appel­
lants’ motion, together with the record made when the 
case was before this Court in 1965, demonstrate clear­
ly the correctness of this ruling. This evidence showed 
that the School Board in its determination to fully 
comply with the law has in many particulars “ ex­
ceeded the requirements of its plan and has antic­
ipated some of the requirements of Jefferson.”  In 
the particulars in which the School Board is not in 
full compliance with Jefferson, to-wit, the manner and 
means of conducting the choice period and teacher as­
signments, the District Court found in the record am­
ple evidence to support its position that such devia­
tion as appeared was justified.

In regard to these particulars, the District Court 
in its order of August 15, 1967, directed that “ the



5

choice period in 1968 and the manner and means of 
conducting it shall be in compliance with the rules 
prescribed in Jefferson.”  In regard to teacher as­
signment, the District Court found:

“ There has already been considerable volun­
tary progress made by the School District in 
bringing about the desegregation of its faculties. 
With the intention of the Board expressed by its 
committee chairman being to extend the desegre­
gation of faculties in the coming school year, 
coupled with the fact that previous representa­
tions made to the courts have been more than ful­
filled, it is felt that it is not necessary at this 
time to enter an order requiring specific action 
in addition to that which has already been ac­
complished by the Board. Of course, if the action 
taken by the Board in this regard is not consist­
ent with that required by Jefferson and other 
cases of the Court of Appeals, it will be neces­
sary for this Court to enter such other orders as 
are required to bring about such compliance.”

How could the trial court have been more positive 
in its direction than to say that “ if the action taken by 
the Board in this regard is not consistent with that 
required by Jefferson”  the District Court will see to it 
that such compliance is brought about.

What is wrong with allowing a School Board which 
has by positive action demonstrated its willingness 
and desire to desegregate its public schools without 
order of court from effectuating the law in this re­



6

gard, because they recognize that it is the law and 
that it is their duty to bring it about under the law? 
Why must it be said when this is accomplished that 
it had to be done under specific orders of the Dis­
trict Court or the Court of Appeals? The District 
Court has been assured that it will be done. The Dis­
trict Court has said that it will see to it that it is 
done. That it can as this Court did “ rely on the integ­
rity and good faith of the members of the School 
Board where they represent, as they have here, 
an intention to effectuate the law.” Jerry L. Lockett, 
et al. v. Board of Education, Muscogee County 
School District, Georgia, et al., supra.

We respectfully request this Court to consider the 
results of a reversal of the trial court and a determi­
nation against the position of the Muscogee County 
School Board. If a reversal and the entering of a new 
decree brings about nothing more than that which will 
be accomplished without a reversal and imposition of 
such a decree, no worthwhile benefit to the cause of 
desegregation will be realized. On the other hand, if 
this progress has been made because the people of 
Muscogee County, acting through their Board of Edu­
cation, voluntarily take the needed action because 
they know it to be right and not simply because it 
is commanded, the pride in the accomplishment can 
make it more meaningful.

Many of the requirements of Jefferson referred to 
in Appellants’ brief in support of the motion for sum­
mary reversal and on this appeal pertain to condi­



7

tions which have not existed in the Muscogee County 
School District for many, many years, or have been 
corrected since the adoption of its plan for desegre­
gation of its school. Not only is there a complete ab­
sence of complaint or criticism of the schools of this 
County in regard to segregation or discrimination 
against students on account of race in all services, 
facilities, activities and programs, and of the inequal­
ity of pupil-teacher ratios, pupil-classroom ratios and 
pupil expenditures, but the record shows without 
contradiction that none of these conditions prohibited 
by Jefferson exist. R., pp. 41, 42, 46, 50, 51 and the 
entire record of the testimony of Dr. William H. 
Shaw.

Notwithstanding the plan as approved by this Court, 
which plan has been voluntarily amended without or­
der of court three times in order to accelerate deseg­
regation, postponed faculty desegregation until stu­
dent body desegregation had been completed, impor­
tant and substantial progress has been made in this 
regard. This progress is referred to and set forth in 
the District Court’s order. R., p. 126.

In the summer program there are 3 white principals 
and 2 Negro principals; there are 38 white teachers 
and 34 Negro teachers. These principals and teachers 
almost equally divided between the two races are 
teaching 840 white pupils and 600 Negro pupils. At 
one school there are an equal number of white and 
Negro teachers (5 each) working under the super­
vision of a Negro principal. As the Court points out, at



8

a formerly all Negro elementary school, a white prin­
cipal and 8 Negro teachers are working together.

In the diagnostic reading center, attended by both 
Negro and white pupils, there are 8 white teachers 
and 3 Negro teachers working together. There are 4 
white examiners, and 1 Negro examiner, 4 white bus 
drivers and 2 Negro bus drivers, and 3 white clerks 
and one Negro clerk. There are 722 white pupils and 
480 Negro pupils attending classes together.

The tutoring program conducted by the Muscogee 
County Board of Education has 55 teachers and of 
this number 27 are Negro and 28 are white. There are 
333 pupils at 12 school centers, out of which 3 have de­
segregated faculties, and at 4 schools, 2 of which were 
formerly white and 2 formerly Negro, teachers from 
the opposite race of their pupils are employed.

At the regular school term which ended last spring, 
a Negro teacher was assigned to the reading center 
to work with both Negro and white pupils. A Negro 
consultant in English was assigned to work in both 
the formerly white and formerly Negro schools. In the 
adult education program, there is one part-time Ne­
gro teacher for both white and Negro students. At 
Columbus Area Vocational Technical School, one full­
time Negro works in guidance. In the trade school, 
there is a white teacher in radio and television who 
is working in what was formerly the all Negro trade 
school and another white teacher has been assigned 
to that school. There is a Negro teacher instructing



9

in audio-visual aids. R., pp. 126, 127. A white student- 
teacher has been assigned to a formerly Negro school 
for next September. R., p. 78.

To say that “ specific steps”  toward the desegrega­
tion of faculties is absent in the Muscogee County 
School District requires that one completely ignore 
the above stated facts. We find it difficult to under­
stand Appellants’ statements contained in their brief 
that “ to date there has been very little done to ef­
fect faculty desegregation.”

The District Court gave weight to the testimony of 
the chairman of the committee charged with the re­
sponsibility therefor when he stated that there would 
be a plan for “ greater faculty desegregation during 
the forthcoming year.”  R., p. 129.

There does not seem to be any question but that 
some of the technical aspects of the Jefferson de­
cree were not followed in the exercise of choice held 
from March 1 through April 3, 1967. At the time of the 
District Court’ s order, August 15, 1967, only a few 
weeks remained before the beginning of the 1967-68 
school year. The Court’s order directed that “ the 
choice period in 1968 and the manner and means of 
conducting it shall be in compliance with the rules 
prescribed in Jefferson.”  R., p. 129.

We take the opposite position from that taken by 
Appellants in their brief when they say that “ under 
any standard of measurement the plan in this case



10

has not worked in any substantial way.” The number 
of Negro pupils in formerly white schools in Novem­
ber, 1966, who had been approved for transfer under 
the exercise of a choice was 316. In one formerly 
white school there were an additional 25 Negro pupils 
who came into the school by virtue of their parents 
having moved during the school year. In September, 
1967, after the hearing, 550 additional Negro pupils 
through the exercise of choice were scheduled to at­
tend formerly all white schools. There are 112 in the 
adult education and manpower classes; 275 in the 
Columbus Area Vocational Technical School. All of 
these together give you a total of 1253 Negro pupils 
attending formerly all white classes. Three hundred 
sixteen in 1966 increased by 550 in September of 1967, 
plus those in the special classes, bringing the total 
to 1253. R., pp. 60, 61.

Of course, this does not include those who moved 
into the district after the choice period was completed 
on April 3, 1967. If the fact that there were 25 pupils 
in this category in one school in 1966 is a guide we can 
conclude that the number is not inconsequential. The 
record, therefore, necessarily does not give us accu­
rate totals and we can, without being charged with 
going outside the record, correctly assume that these 
totals have been increased.

Although the issue as we understood it is not 
whether the freedom of choice plan is working in 
Muscogee County and bringing about the desegrega­
tion of its schools, we believe the above facts will not



11

leave the Court with any question in its mind in this 
regard.

We, of course, realize now that possibly we were 
somewhat deficient in our presentation of our case to 
the District Court in not presenting evidence regard­
ing the construction program as it may be affected 
by Jefferson. To make any comment in this regard 
we would have to go outside of the record and coun­
sel do not wish to do so. We feel that we can say, 
however, that there has never been any question 
raised in this regard and none was suggested to exist 
in the minds of any of the witnesses or counsel pres­
ent at this hearing. We are certain that had there 
been the least suggestion that we do not meet the re­
quirements of Jefferson in this regard, testimony 
would have been presented to show all construction 
activities and plans. We can say that we are aware 
of and conscious of the requirements of Jefferson in 
this regard and understand that we cannot fail to be in 
compliance with Jefferson in this regard and meet 
our responsibility to “ effectuate the law.”

CONCLUSION.

The granting of an injunction and the imposition of 
the further relief sought by the Appellants is not 
necessary or desirable. Its effect would simply be to 
put in dispute the School Board’s willingness to do 
what this Court found in Lockett it could rely on the 
good faith of the School Board of this District to ac­
complish. What would it accomplish except to put



12

the good faith of this School Board in question. Great 
strides have been made voluntarily, and the results 
which we know must be obtained are being brought 
about by the voluntary action of the people of Musco­
gee County acting through their School Board. The 
District Court has retained jurisdiction and the last 
sentence of its order on page 130 of the record is 
as follows:

“ Where a local school board is earnestly striv­
ing to comply with constitutional requirements in 
the operation of its schools and is successfully do­
ing so, such a board should not be fettered with 
needless directions emanating from the courts.”

It is respectfully urged that for the foregoing rea­
sons, the decision of the District Court should be af­
firmed.

J. MADDEN HATCHER,

A. J. LAND,
HATCHER, STUBBS, LAND & 

ROTHSCHILD,
P. O. Box. 469,

Columbus, Georgia 31902, 
Attorneys for Appellees



13

CERTIFICATE OF SERVICE.

I, A. J. Land, counsel for the Appellees, certify that 
I have served copies of Appellees’ brief on the at­
torneys for Appellants, Jack Greenberg, Esq., and 
Charles Stephen Ralston, 10 Columbus Circle, New 
York, New York 10019; Howard Moore, Jr., Esq., 
859-1/2 Hunter Street, N.W., Atlanta, Georgia; and C. 
B. King, Esq., P. O. Box 1024, Albany, Georgia, by 
depositing the same in the United States mail, post­
age prepaid.

This .. . day of December, 1967.

A. J. LAND,
Attorney for Appellees.



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