Norwood v. Harrison Memorandum for the United States as Amicus Curiae

    No. 72-77

Jtt the .Supreme Gjmtri of the Unite! States
O c t o b e r  T e r m , 1972

D e lo res  N o r w o o d , e t  a l ., a p p e l l a n t s

v.
D . L .  H a r r is o n , S r ., e t  a l .

ON A P P E A L  F R O M  TH E UNITED STATE S D IS T R IC T  COURT FOR  
TH E N O R TH ER N  D IS T R IC T  OF M IS SISS IPPI

MEMORANDUM FOR THE UNITED STATES AS AMICUS CURIAE

ERW IN  N. GRISWOLD,
S olicitor Genera l,

3. STANLEY POTTINGER,
A ssistant A ttorn ey General,

LAWRENCE G. WALLACE,
D eputy Solicitor General,

HARRIET S. SHAPIRO,
A ssistant to the Solicitor General.

BRIAN K. LANDSBERG,
THOMAS M. KEELING,
LLOYD J. PARKER, Jr.,

A ttorneys,
D epartm ent o f  Justice, 

W ashington, D.C. 20530.



I N D E X

Page
Question presented____________________________  1
Interest of the United States___________________  1
Statement_____________________________________  3
Summary of argument_________________________  8
Argument_____________________________________  9

I. The standards applied in testing state 
action under the religion clauses of the 
First Amendment are not applicable
in this case_________________________  9

II. The furnishing of free textbooks here 
constituted impermissible state in­
volvement in the racial discrimination 
practiced by the private, segregated
academies__________________________  12

III. The furnishing of textbooks challenged 
in this case improperly aids private 
segregated schools which have ad­
versely affected desegregation of public 
schools in some school districts of the
State______________________________  18

Conclusion____________________________________  22

CITATIONS
Cases:

Aaron v. McKinley, 173 F. Supp. 944, affirmed 
per curiam sub nom. Faubus v. Aaron, 361
U.S. 197________________________________  14

Alexander v. Holmes County Board of 'Edu­
cation, 396 U.S. 19----------------------------------  3,14

Board of Education v. Allen, 392 U.S. 236-----  7, 11
Brown v. Board of Education, 347 U.S. 483—  2, 13

(i)
495-080— 7: -1



II

Cases—Continued
Brown v. Board of Education, 349 U.S. 2Q4___ 
Brown v. South Carolina State Board of Educa- 

cation, 296 F. Supp. 199, affirmed per
curiam, 393 U.S. 222____ ________________

Burton v. Wilmington Parking Authority, 365
U.S. 715______________________________ 8,

Bush v. Orleans Parish School Board, 187 F.
Supp. 42, affirmed per curiam, 365 U.S. 569  ̂

Coffey and United States v. State Educational 
Finance Commission, 296 F. Supp. 1389_ 2, 6, 

Coffey and United States v. State Educational 
Finance Commission (S.D. Miss., C.A. No. 
3906, decided September 2, 1970) (unre­
ported) _________________________________

Cooper v. Aaron, 358 U.S. 1____________ 3, 8,
Davis v. Board of School Commissioners of

Mobile County, 402 U.S. 33______________
Edgar v. United States, 404 U.S. 1206_______
Evers v. Jackson Municipal Separate School

Separate School District 328 F. 2d 408_____
Everson v. Board of Education, 330 U.S. 1___
Goss v. Board of Education, 373 U.S. 683____
Green v. Connally, 303 F. Supp. 1150, affirmed

sub nom. Coit v. Green, 404 U.S. 602______
Green v. County School Board of New Kent

County, 391 U.S. 430______________ 3, 7, 9,
Griffin v. Breckenridge, 403 U.S. 88_________
Griffin v. State Board of Education, 239 F.

Supp. 560_______________________________
Griffin v. State Board of Education, 296 F.

Supp.1178______________________________
Hall v. St. Helena Parish School Board,, 197 

F. Supp. 649, affirmed per curiam, 368 U.S. 
515_____________________________________

Page
3

14 

12,17 

14

13, 14

13. 
11, 17

20
20

13
7
3

11

19, 21 
11

13

14

14



I l l

Cases— Continued Page

Hawkins v. North Carolina State Board of
Education, 11 Race Rel. L. Rep. 745--------- 14

Jones v. Alfred H. Mayer Co., 392 U.S. 409___ 11
Lee v. Macon County Board of Education,

231 F. Supp. 743________________________  14
Lee v. Macon County Board of Education, 267 

F. Supp. 458 (M.D. Ala.) affirmed sub. nom.
Wallace v. United States, 389 U.S. 215-------14, 20

Lemon v. Kurtzman, 403 U.S. 602----------------  10, 11
Lombard v. Louisiana, 373 U.S. 267-------------  17
Moose Lodge No. 107 v. Ires, 407 U.S. 163___ 17
North Carolina State Board of Education v.

Swann, 402 U.S. 43______________________ 19
Pennsylvania v. Board of Trusts, 353 U.S. 23Q_
Pierce v. Society of Sisters, 268 U.S. 510_____ 11
Poindexter v. Louisiana Financial Assistance 

Commission, 275 F. Supp. 833, affirmed per
curiam, 389 U.S. 571____________________  14, 18

Poindexter v. Louisiana Financial Assistance 
Commission, 296 F. Supp. 686, affirmed per
curiam, 393 U.S. 17_________________ ____14, 18

Reitman v. Midkey, 387 U.S. 369_________  12
Robinson v. Florida, 378 U.S. 153_________  17
Sherbert v. Verner, 374 U.S. 398-------------------  11
Swann v. Charlotte-M ecklenburg Board of

Education, 402 U.S. 1----------------------------  3
Tilton v. Richardson, 403 U.S. 672„_^----------  10
United States v. Scotland Neck Board of Edu­

cation, 407 U.S. 484_____________________  19, 20
United States v. State of Texas, 321 F. Supp.,

1043, affirmed, 447 F. 2d 441, certiorari 
denied. 404 U.S. 1016____________________  20



IV

Cases—Continued
Walz v. Tax Commission, 397 U.S. 844-----  8, 10,11
Wisconsin v. Yoder, 408 U.S. 205-----------------  10, 11
Wright v. Council of the City of Emporia, 407 

U.S. 451______________________________ 3, 19,20
Constitution and statutes:

United States Constitution:
First Amendment_________________ 8, 9, 10, 11
Thirteenth Amendment------------------------  11
Fourteenth Amendment-----------------------  2,

8, 9,10, 11,12, 13,16,17, 18 
Act of April 11, 1988, Sec. 801, et sea., 42

U.S.C. 3601, et seq_______________________ 11
Civil Rights Act of 1964, 78 Stat. 241, et seq.:

Sec. 201, et seq., 42 U.S.C. 2000a, et seq.. 11
Sec. 407, 42 U.S.C. 2000c-6------------------  1
Sec. 601, 42 U.S.C. 200Qd______________ 1
Sec. 701, et seq., as amended, 42 U.S.C.

2000e, et seq-------------------------------------  H
Sec. 902, 2000h-2_____________________  1

Office of Education Appropriation Act of 1971,
Pub. L. 91-380, 84 Stat. 800 et seq------------ 2, 16

Mississippi Code of 1942 Ann. (1972 Cum.
Supp.), Section 6641(1) (a)-----------------------  16

Miscellaneous:
Exec. Order 11063, 27 Fed. Reg. 11527 (1962)_ 11
Exec. Order 11246, 30 Fed. Reg. 12319 (1965). 11
45 C.F.R. Part 181, 36 Fed. Reg. 16546 

(1971)--------------------------------------------------- 1



J it  the jJwjjitme flfourt of the ® n M  plates
O c t o ber  T e r m , 1972

No. 72-77

D e l o r e s  N o r w o o d , e t  a l ., a p p e l l a n t s

v.
D. L. H a r r is o n , Sr., e t  a l .

ON A P P E A L  FR O M  T E E  UNITED STATES D IS T R IC T  COURT FOR  
T E E  N O RTH ERN  D IS T R IC T  OF M IS S IS S IP P I

MEMORANDUM FOR THE UNITED STATES AS AMICUS CURIAE

Q U ESTIO N  P R E S E N T E D

Whether the distribution of state-owned textbooks 
to private racially segregated schools, formed to avoid 
the effective desegregation of the public schools, should 
have been enjoined as action in violation of the Four­
teenth Amendment.

IN T E R E S T  OE T H E  U N IT E D  ST A T E S

The United States is responsible for enforcing 
school desegregation under the 1964 Civil Rights Act, 
42 U.S.C. 2QQ0c-6, 2000d, and 20Q0h-2. In furtherance 
of that responsibility, the United States has partici­
pated in desegregation actions involving more than

(i)



2

seventy school districts in the State of Mississippi and 
other litigation, such as Coffey and United States v. 
State Educational Finance Commission, 296 F. Supp. 
1389 (S.D. Miss.), and United States v. Tunica County 
School District, 323 F. Supp. 1019 (hLD. Miss.), af­
firmed, 440 F.2d 377 (C.A. 5), contesting various forms 
of state aid to private segregated schools. In addition, 
federal statutes 1 and regulations 2 specifically prohibit 
recipients of Emergency School Assistance Program 
(E SA P) funds from providing aid to nonpnblie 
schools which practice racial discrimination. The gov­
ernment’s enforcement responsibility under the above 
statutes, cases and regulations, includes taking action 
to prevent States from providing support or aid to 
racially segregated schools in violation of the Equal 
Protection Clause of the Fourteenth Amendment.

Although the government did not participate in this 
case in the court below, the issues presented are re­
lated to those presented in cases where the government 
is a party.3 The outcome here will thus directly affect 
the government’s enforcement responsibilities under 
federal law. Our participation here as amicus is con­
sistent with the government’s participation in such 
other school desegregation cases as Brown v. Board

1 Office of Education Appropriation Act, 1971, Pub. L. 91-880, 
84 Stat. 800.

2 45 C.F.R. Part 181, 36 Fed. Reg. 16546 (1971).
3 The United States is appellant in Graham and United States 

v. Evangeline Parish School Board, Ho. 72-3033 (C.A. 5, appeal 
pending), involving a similar scheme for the distribution ,of 
textbooks and, additionally, the provision o f transportation to 
students attending a private segregated school in Evangeline 
Parish, Louisiana.



3

of Education, 347 U.S. 483 ; Brown v. Board of Edu­
cation, 349 U.S. 294; Cooper v. Aaron, 358 U.S. 1; 
Goss v. Board of Education, 373 U.S. 683; Green v. 
County School Board of New Kent County, 391 U.S. 
430; Alexander v. Holmes County Board of Education, 
396 U.S. 19; Swann v. Charlotte-Mecklenburg Board of 
Education, 402 U.S. 1; and Wright v. Council of the 
City of Emporia, 407 U.S. 451.

STATEMENT

Since the parties have dealt extensively with the 
factual record, we include here only a brief review of 
the background of the case, and a summary statement
of the evidence.

While the issue raised on this appeal was presented 
to the district court by means of a separate complaint 
and hearing, the complaint was filed by parents of 
children in Tunica County school district (App. 20), 
which has a long history of school desegrega­
tion litigation, and the contested action by the defend­
ant state officials occurred at a time when substantial 
statewide desegregation was imminent. Consequently, 
much of the factual record here is also contained in 
the record of the desegregation litigation involving 
the Tunica County schools, and the purpose and effect 
of the contested state action here can be more fully 
evaluated with reference to the circumstances in the 
1969-1970 school year reflected in the records of de­
segregation cases throughout the State. The circum­
stances at that time in Tunica County, where the 
appellants reside, wTere described by the district court



4

in United States v. Tunica County School District 
323 F. Supp. 1019, 1023 (F.D. Miss.), affirmed, 440 
F. 2d 377 (C.A. 5), as follows:

On February 2, 1970, the first day of the sec­
ond semester [-when a terminal desegregation 
plan was to be implemented], no white child 
enrolled at any of the district schools. Instead, 
the Tunica Church School opened with an all- 
white faculty composed of 21 teachers, 18 of 
whom had refused reassignment in public 
schools and were paid the remainder of their 
salaries. * * * All or almost all of the 340 
students attending the church school had been 
enrolled in the Tunica County public schools 
during the first semester, and none of the 428 
white students attending the public schools 
during the first semester enrolled in them 
during the second semester. The Tunica Church 
School charged no tuition of its students and 
its teachers received no remuneration for their 
services during the second semester. * * * The 
students used the same textbooks which they 
kept in their possession after leaving the public 
schools [footnotes omitted].

While the district court in that case enjoined state 
salary payments to former public school teachers for 
teaching in the Tunica Church School (id. at 1028), 
the private plaintiffs’ request for an injunction pre­
venting the loan of textbooks to the students in the 
private school became moot when the Tunica Church 
School was disbanded and the books were returned 
to the public school officials at the end of the 1969- 
1970 school year. 323 F. Supp. at 1025, n. 7, and 1028. 
When the Tunica County Institute of Learning



5

opened in the 1970-1971 school year, however, the 
county’s white students, now enrolled in the Insti­
tute, were again provided textbooks by the State.4 
Consequently, the appellants filed the complaint in 
this action on October 9, 1970, alleging that the ac­
tions of the appellees frustrated the attainment of a 
“ racially integrated and otherwise non-diseriminatory 
public school system”  in Tunica County and consti­
tuted unconstitutional “ state aid and encouragement 
to racially segregated education * * *” (App. 21). 
Appellants sued as a class “ in behalf of students 
throughout the state of Mississippi who are aggrieved 
by the policies and practices of defendants complained 
of herein”  (App. 20), and requested relief which in 
effect would require appellees to recall textbooks dis­
tributed, and "would prohibit further distribution of 
textbooks, for the use of students enrolled in private 
racially segregated schools in the State (App. 21- 
22). The request for relief was later refined by speci­
fying 148 private segregated schools to be affected by 
the requested relief (Appellants’ Brief, p. 6).

Appellants introduced evidence to show that the all- 
white private schools involved were formed from 1963 
to 1970 in local school districts affected by impending * 6

4 In August 1970, the regulations governing textbook distri­
butions were changed so books were provided directly to each 
private and parochial school, rather than being distributed 
through local public school superintendents, as before (Jan. 25, 
1971 Dep. o f Snowden, pp. 8, 89). The new procedure was de­
signed to avoid federal restrictions on aid to racially segregated 
schools by recipients o f federal educational assistance funds (July
6, 1971 Dep. o f Snowden, p. 43). See Jurisdictional Statement, 
p. 15 n. 14; see also infra, p. 16.

495—080— 73-----------2



6

court-ordered desegregation plans.5 6 The evidence fur­
ther showed that these private schools were all-white 
(with a few children of other, non-black races, see App. 
32-36) and had policies of racial exclusion,0 that they 
were formed for the purpose of avoiding attendance by 
their students at public desegregated schools,7 and 
that appellees were aware of the purpose o f the 
schools.8 Appellees had long provided textbooks for 
the use of students in both public and private schools 
under existing state statutes and regulations; but, in 
expectation of the mid-year opening of many all- 
white private schools after annual textbook allotments 
were exhausted, appellees adopted a scheme of dis­
tribution of textbooks which was contrary to their 
regulations because the organizers of the private 
schools were “ going to need books.” 9 Upon forma­
tion of the private schools, almost all of the white 
students in the public schools in some school districts 
withdrew to attend the newly formed all-white private 
schools.10 Thus, the public schools, or some public 
schools, in these districts remained all, or virtually all, 
black.

5 (App. 44-49); J.S. App. 16a-17a. See, also, Coffey and 
United States v. State Educational Finance Commission, 296 F. 
Supp. 1389,1391 (S.D. Miss.).

6 See, e.ff., Dep. o f McLean and Owen, p. 53; Dep. o f Tinsley, 
p. 37; Dep. o f Garrett, p. 11; Dep. o f Mosely, p. 17; Dep. o f Smith- 
ers, p. 14.

7 See e.g.. Dep. o f Daniels, pp. 10,11; Dep. o f Barbour, pp. 6, 7; 
Dep. o f Isbell, pp. 17-23; Dep. o f Wilson, pp. 5-7; Dep. o f Bog-
gan, p. 9.

8 Ex. A  to Dep. o f Floyd.
9 Id.
10 See Appellants’ Brief, pp. 14-19.



7

The court below assumed the accuracy of this evi­
dence,11 12 13 14 15 but considered it irrelevant, because the text­
books were distributed, under a long-standing statute 
enacted without racial motive, to all children “ of 
whatever race * * * without question or impediment.”  
J.S. App. 15a, 20a. The court found no inconsistency 
with the holding in Green 12 that the State has an affirm­
ative obligation to convert to a unitary desegregated 
school system, because statewide less than ten percent 
of the student population attend private schools and lie- 
cause under the Everson 13 and Allen 14 decisions the pro­
vision of textbooks would not be considered impermis­
sible state aid to the private schools. J.S. App. 15a-16a, 
20a--21a.:L5 Accordingly, relief was denied and the com­
plaint dismissed.

11 While the district court did not make extensive, specific 
findings concerning the particular private schools at issue, in 
framing the question presented it said (J.S. App. 16a) :

We are thus brought to the point o f determining whether 
the state’s furnishing o f free textbooks to students attend­
ing racially segregated schools is a support o f such schools 
* * *

12 Green v. County School Board of New Kent County, 391 
U.S. 430.

13 Everson v. Board of Education, 330 U.S. 1.
14 Board of Education v. Allen, 392 U.S. 236.
15 The district court appears also to have been o f the view that 

the provision o f free textbooks should not be considered aid and 
encouragement to private schools because “ [tjhere is no show­
ing that any child enrolled in private school, i f  deprived o f free 
textbooks, would withdraw from private school and subsequently 
enroll in the public schools, now unitary.”  J.S. App. 21a.



8

S U M M A R Y  OF A R G U M E N T

1. The district court’s reliance on the line of cases 
involving state support of secular education in church- 
related schools is misplaced. That line of authority 
applies significantly different constitutional require­
ments than are involved here, and permits state sup­
port (within constitutional limitations) for the secular 
education provided in parochial schools as “ produc­
tive of a benevolent neutrality” which properly rec­
onciles the values reflected in the Establishment and 
Free Exercise Clauses of the First Amendment. Walz 
v. Tax Commission, 397 U.S. 664, 669. The Four­
teenth Amendment, however, forbids state support of 
racially segregated schools “ through any arrange­
ment, management, funds or property * * Cooper 
v. Aaron, 358 U.S. 1,19.

2. In determining whether a State has become im­
permissibly implicated in private discriminatory acts 
in violation of the Fourteenth Amendment, the courts 
consider the purpose, effect, and surrounding circum­
stances of the State’s acts on a case by ease basis. 
Burton v. Wilmington Parking Authority, 365 U.S. 715. 
The appellants here challenge the constitutionality of 
the Mississippi textbook statute as applied in relation 
to efforts to desegregate the State’s public school sys­
tems. Therefore, the effects and circumstances rele­
vant to decision here are those at the time of the 
statute’s challenged applications, rather than at the 
time of its enactment. In applying the statute in 
this case, the State first ignored its regulations there­
under in order to assure the availability of free text­



9

books for use in segregated private schools opening 
in midterm, and then modified those regulations to 
avoid the intended non-disc rim in atory effects of a 
federal educational assistance program. Despite au­
thority to do so, it has never attempted to condition 
the loan of textbooks on adoption by recipient schools 
of nondiseriminatory racial policies. In light of all 
the circumstances surrounding the establishment and 
operation of the segregated private schools at issue 
here, the State’s furnishing of free textbooks for use 
in those schools impermissibly implicated it in private 
racial discrimination in violation of the Fourteenth 
Amendment.

3. The furnishing of textbooks challenged here also 
had the effect of impeding desegregation of the public 
schools in particular school districts. To the extent 
that it did so, it was inconsistent with the State’s 
obligation under Green v. County School Board of New 
Kent County, 391 U.S. 430, to promote desegregated 
public education in converting from dual to unitary 
public school systems.

ARGUMENT

I. THE STANDARDS APPLIED IN TESTING STATE ACTION 
UNDER THE RELIGION CLAUSES OF THE FIRST AMEND­
MENT ARE NOT APPLICABLE IN THIS CASE

The district court erred, we submit, in relying on 
distinctions which this Court has articulated in cases 
involving the validity of educational assistance pro­
grams challenged under the First Amendment. There 
are significant differences between the constitutional 
standards of the Establishment and Free Exercise-



10

Clauses governing the States’ relationships with 
church-related education, on the one hand, and the 
standards of the Equal Protection Clause with respect 
to state involvement in racial discrimination, on the 
other hand.

The First Amendment prohibits any law “ respect­
ing an establishment of religion,”  and protects “ the 
free exercise”  of religion from governmental inter­
ference. In an attempt to steer a “ neutral course be­
tween the two Religion Clauses,”  Walz v. Tax Com­
mission, 397 U.S. 664, 668,16 this Court has upheld state 
programs which, without excessive state entanglement 
and without discrimination, provide church-related 
schools with “ government aid in the form of secular, 
neutral or non-ideologieal services, facilities, or ma­
terials * * Tilton v. Richardson, 403 U.S. 672, 
687. Such programs are part of the States’ “ long his­
tory of amicable and effective relationships with 
church sponsored schools,” Wisconsin v. Yoder, 406 
U.S. 205, 236, and are consistent with the Establish­
ment Clause. Lemon v. Kurtzman, 403 U.S. 602, 612- 
613; Tilton, supra.

The policy of “ benevolent neutrality which will per­
mit religious exercise to exist without sponsorship and 
without interference,” Walz, supra, 397 U.S. at 669, has 
no counterpart in the interpretation of the Equal Pro­
tection Clause. Racial discrimination by private per­
sons, in contrast to the exercise of religion, enjoys no 
special constitutional immunity, and indeed is subject

16 Tilton v. Richardson, 403 U.S. 672, 677, a: so refers to “ the 
internal tension in the First Amendment between the Estab­
lishment Clause and the Free Exercise Clause.”



11

to special remedial legislative power under Section 2 
of the Thirteenth Amendment, and is unlawful in 
many contexts.17 The considerations relevant in cases 
under the Establishment and Free Exercise Clauses, 
therefore, bear little relation to the question whether 
state aid to racially segregated private schools is con­
sistent with the Equal Protection Clause. This Court, 
in considering state action that supports private dis­
crimination, has recognized the difference 18 and has 
declared unequivocally that state support of segre­
gated schools “ through any arrangement, manage­
ment, funds or property cannot be squared with the 
[Fourteenth] Amendment * * Cooper v. Aaron, 358 
U.S. 1, 19.

For these reasons, the decisions in cases involving 
the Religion Clauses (including Board of Educa­
tion v. Allen, 392 U.S. 236) do not inform a court’s 
judgment in a case, such as this, which is concerned 
with a very different constitutional requirement, and 
which does not involve private action under explicit

17 See, e .gGri ff in  v. Breckeririd.ge, 403 U.S. 88; Jones v. 
Alfred II. Mayer Co., 392 U.S. 409; 42 U.S.C. 2000a, et seg. 
(discrimination in public accommodations); 42 U.S.C. 2000e, 
et seq. (equal employment opportunity) ; 42 U.S.C. 3601, et seq. 
(fair housing); Executive Order 11063, 27 Fed. Reg. 11527 
(1962) (equal opportunity in housing); Executive Order 11246, 
30 Fed. Reg. 12319 (1965) (nondiscrimination by government 
contractors and subcontractors). Compare Wisconsin v. Yoder, 
406 U.S. 205, 216; Sherbert v. Verner, 374 U.S. 398. See, also, 
Pierce v. Society of Sisters, 268 U.S. 510.

18 Compare Walz v. Tax Commission, supra, with Coit v. 
Green, 404 U.S. 997, affirming Green v. Connolly, 330 F. Supp. 
1150 (D. D.C.). See also the concurring opinion of Mr. Justice 
White in Lemon v. Kurtzman, supra, 403 U.S. at 671 n. 2.



12

constitutional protection. The principles relevant to 
decision here are instead to be found in cases deter­
mining whether particular state action violates the 
Equal Protection Clause of the Fourteenth Amend­
ment, and forbidding state support of racially segre­
gated schools.

II. THE FURNISHING OK FREE TEXTBOOKS HERE CONSTI­
TUTED IMPERMISSIBLE STATE INVOLVEMENT IN THE 
RACIAL DISCRIMINATION PRACTICED BY THE PRIVATE, 
SEGREGATED ACADEMIES

This Court has declined to attempt to fashion and 
apply a precise formula for identifying state respon­
sibility under the Equal Protection Clause. Rather, 
the Court has said that “ [o]nly by sifting facts and 
weighing circumstances can the nonobvious involve­
ment of the State in private conduct be attributed 
its true significance.” Burton v. Wilmington Parking 
Authority, 365 U.S. 715,722. In judging particular state 
action, it is appropriate to consider facts showing 
“ * * * its ‘immediate objective,’ its ‘ ultimate effect’ 
and its ‘historical context and the conditions existing 
prior to its [occurrence].’ ” Reitman v. Mulkey, 387 
U.S. 369, 373. Thus, it is pertinent to isolate the specific 
state action which is challenged and to consider its his­
torical context.

In our view, the court below erred in directing 
its attention here principally to the circumstances 
surrounding the enactment of the statute under which 
the state-owned textbooks were distributed. Appel­
lants’ complaint is not that the statute, as enacted, 
is unconstituional; their contention is that it is un­



13

constitutional as applied. It is only the distribution 
o f books by state officials to pupils at specifically 
named private segregated schools that is here chal­
lenged under the Equal Protection Clause. Hence, 
the history of the statute’s enactment and prior ap­
plication is largely irrelevant; it is instead the factual 
circumstances surrounding the particular challenged 
distribution of the books that should be “ sifted” in 
determining whether the state involvement is con­
stitutionally proscribed.

The relevant factual context here, therefore, is the 
process of implementation of the Brown decision in the 
Mississippi public schools. In 1963, when the first Mis­
sissippi school desegregation suits were filed (Evers v. 
Jackson Municipal Separate School District, 328 F. 2d 
408 (C.A. 5 )), there were only 17 private non- 
Catholic schools in the entire State (App. 40- 
41). In 1970, there were 155 (App. 42). The 
establishment and expansion of a private, segregated 
network of schools closely paralleled the ordering 
by the courts of effective desegregation of the public 
schools (App. 44-49). The State attempted to aid 
the persons participating in those private segregated 
schools through such measures as tuition grants ; but 
all such attempts were invalidated by the federal 
courts. See, e.g., Coffey and United States v. State 
Educational Finance Commission, 296 F. Supp. 1389 
(S.D. M iss.); Coffey and United States v. State Edu­
cational Finance Commission (S.D. Miss., C.A. No. 
3906, decided September 2, 1970) (unreported).19

19 The second Coffey decision concerned a statute providing 
for tuition loans rather than grants. For cases involving sim­
ilar legislation in other States, see Griffin v. State Board of



14

For the most part, the new private schools were 
established and operated on the “ thinnest financial 
basis.”  Coffey, supra, 296 F. Supp. at 1392. Prior to
1969 there were 69 such schools operating in the State 
(App. 42). After this Court’s decision in Alexander v. 
Holmes County Board of E ducation396 ILS. 19, the 
number increased by fifty-five, with most opening in 
mid-term of the 1969-1970 school year (App. 42). After 
successful efforts in the spring and summer of 1970 by 
the Department of Justice and the Department of 
Health, Education, and Welfare to bring the remain­
ing school districts in the State into compliance, an 
additional 31 private schools opened in September
1970 (App. 42).

Shortly after the Alexander decision, and in antici­
pation of the opening of a substantial number of

Education, 239 F. Supp. 560 (E.D. Ya.) (3-judge cou rt); 296 
F. Supp. 1178 (E.D. Ya.) (3-judge cou rt); Lee v. Macon 
County Board of Education, 231 F. Supp. 743 (M.D. Ala.) (3- 
judge court); 267 F. Supp. 458 (M.D. A la.), affirmed sub nom. 
Wallace v. United States, 389 U.S. 215; Bush v. Orleans Par­
ish School Board, 187 F. Supp. 42 (E.D. La.) (3-judge court), 
affirmed per curiam, 365 U.S. 569; Hall v. St. Helena Parish 
School Board, 197 F. Supp. 649 (E.D. La.) (3-judge court), af­
firmed per curiam, 368 U.S. 515; Poindexter v. Louisiana Finan­
cial Assistance Commission, 275 F. Supp. 833 (E.D. La.) (3-judge 
court), affirmed per curiam, 389 U.S. 571; Poindexter v. Louisiana 
Financial Assistance Commission, 296 F. Supp. 686 (E.D. La.) 
(3-judge court), affirmed per curiam, 393 U.S. 17; Aaron v. Mc­
Kinley, 173 F. Supp. 944. 952 (E.D. Ark.) (3-judge court) af­
firmed per curiam sub nom. Faubus v. Aaron, 361 U.S. 197; 
Brown v. South Carolina State Board of Education, 296 F. Supp. 
199 (D. S.C.), affirmed per curiam, 393 U.S. 222; Hawkins v. 
North Carolina State Board of Education, 11 Race Rel. L. Rep. 
745 (W .D. N.C.) (3-judge court).



15

private segregated schools, the Executive Secretary 
of the Mississippi Textbook Purchasing Board cir­
culated a memorandum to the local school superin­
tendents, noting that “ all the money has been allotted 
for this year,”  and therefore directing them “ to trans­
fer books with the student as he transfers to the 
private school * * *.” 20 This was contrary to the state 
regulation, which provided that “ upon [his] transfer- 
ing to another school * * * all books shall be returned 
by the pupil * * *” (Pl. Ex. 12 to Jan. 25,1971 Dep. of 
Snowden). Consequently, while most of the newdy- 
formed private schools opened in makeshift facilities 
and with volunteer or underpaid faculty, their operation 
as schools was facilitated by this deviation from normal 
practice by the state officials responsible for textbook 
distribution. Moreover, the immediate availability of 
the same textbooks previously used enabled the students 
in the new segregated private schools to pursue essen­
tially the same courses of study formerly provided them 
in the public schools, and thus facilitated the students’ 
transfer by minimizing the resulting disruption of 
studies.21

20 Ex. A  to Dep. o f Floyd.
21A  particularly flagrant example occurred in Tunica County, 

where the plaintiffs in this case reside. Upon desegregation at 
mid-term, the school board paid a semester’s salary to 18 white 
teachers who resigned from the public school system and went 
to teach at the newly formed all-white private school (see p. 
4, supra). In United States v. Tunica County School Dis­
trict, 323 F. Supp. 1019 (N.D. Miss.), affirmed, 440 F. 2d 377



18

State officials have also taken special measures to 
insure tlie continued provision of the textbooks to 
students in these private schools. When the distribu­
tion scheme followed for almost 30 years would have 
required either the termination of aid to segregated 
private schools or relinquishment of federal financial 
assistance to the public schools under the Emergency 
School Assistance Program established by Pub. L. 
91-380, 84 Stat. 803-804, the distribution procedure was 
changed in August 1970 to establish separate accounts 
for the private schools.22

Although it has authority to “ promulgate * * * 
rules as may be necessary for the proper administra­
tion of [the Textbooks A ct],” Section 6641(1) (a), 
Miss. Code of 1942 Ann. (1972 Cum. Supp.), the Text­
book Purchasing Board has never promulgated a regu­
lation prohibiting recipient schools from discriminating 
on the basis of race or color. In similar circumstances the 
failure of the State to use its regulatory powers to pro-
(C.A. 5), the district court described the situation as follows 
(323 F. Supp. at 1023) :

“ The church school held organized classes in which, for the 
most part, teachers and students met as they had during the 
first semester in the Tunica Elementary and High School * *

22 Jan. 25, 1971 Hep. of Snowden, pp. 8, 39. Previously, orders 
were transmitted through and distribution was made through the 
local school superintendents, but the federal Act made it unlawful 
for recipients to participate in the transfer of property to seg­
regated "schools, Pub. L. 91-381, 84 Stat. 804. In spite o f this 
change in the distribution procedure, the State Board still relies 
on the judgment of the local superintendents in determining 
whether a private school qualifies for free state textbooks (July 6, 
1971 Hep. o f Snowden, pp. 30,43).



17

Mbit racial discrimination by a lessee of State property 
violated the Equal Protection Clause, since “ * * * no 
State may effectively abdicate its responsibilities by 
either ignoring them or by merely failing to discharge 
them whatever the motive may be.”  Burton, supra, 
365 U.S. at 725.

This case thus involves a continuous effort by State 
officials to encourage or facilitate the formation and 
continued operation of private segregated schools. The 
educational function performed by those institutions 
is one which the State would otherwise perform on an 
integrated basis. Compare Moose Lodge No. 107 v. 
h r  is, 407 U.S. 163, 173, 175. Moreover, in contrast 
to the State regulatory functions involved in Moose 
Lodge, the State here has provided a valuable benefit 
which aids the schools in a manner directly related to 
their functioning specifically as schools.23 Nothing in 
the opinion of the court belovT suggests the contrary.24

23 The provision here o f free textbooks to the schools’ stu­
dents, to be used as the very implements o f their education in 
these schools, contrasts with such matters as the provision of 
electrical and water services or police and fire protection to the 
schools on the same basis that those services are provided to all 
persons and facilities in the community. The provision o f such 
neutral services to all does not implicate the State in the activi­
ties of the various recipients and therefore raises no constitu­
tional question.

24 The court’s observation that there was no showing that any 
child, if deprived of free textbooks, would withdraw from a 
segregated school and re-enroll in the public schools (J.S. App. 
21a) misconceives the quantum o f state aid necessary to con­
stitute a violation of the Equal Protection Clause. See Cooper 
v. Aaron, supra, 358 U.S. at 19; Robinson v. Florida, 378 U.S. 
153; Lombard v. Louisiana, 373 U.S. 267; Pennsylvania v. 
Board of Trusts, 353 U.S. 230.



18

While the free textbooks statute is racially neutral on 
its face and “began without racial motivation” (J.S. 
App. 20a), the circumstances here reflect intentional 
state involvement in and support of the discriminatory 
actions of the private segregated schools.25 The State is 
thus implicated in private discrimination in violation 
of the Equal Protection Clause, and the appellants are 
entitled to the relief requested.

III. THE FURNISHING OF TEXTBOOKS CHALLENGED IN THIS 
CASE IMPROPERLY AIDS PRIVATE SEGREGATED SCHOOLS 
WHICH HAVE ADVERSELY AFFECTED DESEGREGATION OF 
PUBLIC SCHOOLS IN SOME SCHOOL DISTRICTS OF THE 
STATE

Even if  this Court were to disagree with our con­
tention in Point II, supra, that appellants are entitled 
to the full measure of relief they are seeking, it should, 
at a minimum, order the district court to enjoin free 
textbook distribution for use in those private schools 
which have substantially impeded desegregation of the

25 Therefore, on this record, the provision o f textbooks, to these 
schools was not simply one o f the “ products o f the State’s 
traditional policy o f benevolence toward charitable and educa­
tional institutions,”  Poindexter v. Louisiana Financial Assist­
ance Commission, ‘lit) F. Supp. 833, 854 (E.D. La.), affirmed per 
curiam. 389 U.S. 571, or “ the fruits of a benevolent racially neu­
tral policy,”  Poindexter v. Louisiana Financial Assistance Com­
mission., 296 F. Supp. 686, 687 (E.D. La.), affirmed per curiam, 
393 U.S. 17. Instead, the assistance was “ the product of the State’s 
affirmative purposeful policy o f fostering segregated schools and 
[had] the effect o f encouraging discrimination.” Poindexter, 
supra, 275 F. Supp. at 854. Thus, even under the language in the 
Poindexter cases cited by the district court (J.S. App. 18a-19a) 
in the particular circumstances shown here the provision o f text­
books to the identified segregated schools constituted prohibited 
state involvement in private segregation.



19

public schools from which they have drawn students. 
In States, such as Mississippi, where racial segrega­
tion has previously been compelled by state law, State 
officials must act in a manner consistent with their 
obligation to promote a desegregated public education 
which is free of racial discrimination. Green v. County 
School Board of New Kent County, 391 U.S. 430. And in 
assessing their actions, even under long-standing, 
facially neutral statutes, “ [t]he existence of a permis­
sible purpose cannot sustain an action that has an im­
permissible effect.” Wright v. Council of the City of Em­
poria, 407 U.S. 451, 462. See, also, North Carolina State 
Board of Education v. Swann, 402 U.S. 43.

Here, the court below minimized the effect of the 
private segregated schools on desegregation of the 
public schools by stating that 90 percent of the State’s 
educable children continued to attend public schools 
( J.S. App. 20a-21a). But the record shows 26 that the ef­
fect of the operation of private segregated schools in 
some school districts has been the reestablishment of al­
most total racial segregation, with most white students 
in private schools and the black students in the public 
schools.27 The withdrawal of white students from a 
school system does, of course, impede the desegrega­
tion process. 'Wright, supra, 407 U.S. at 463; United 
States v. Scotland Neck Board of Education, 407

26 See Appellants’ Brief, pp. 13-19; United States v. Tunica 
County School District, 323 F. Supp. 1019 (N.D. Miss.), af­
firmed, 440 F. 2d 377 (C.A. 5).

27 “ [W ] e do not close our eyes to the facts in favor of 
theory. * * * [DJual school systems must cease to exist in an 
objective sense as well as under the law.” Wright, supra, 407 
U.S. at 472 (Burger, C.J., dissenting).



20

U.S. 484, 490. And state officials are as responsible 
as local school officials for insuring effective deseg­
regation of local school districts. Scotland Neck, 
supra, 407 U.S. at 488-489; Lee v. Macon County 
Board of Education, 267 F. Supp. 458, 475-476 (M.D. 
Ala.), affirmed sub nom. Wallace v. United States, 
389 U.S. 215; United States v. State of Texas, 321 
F. Supp. 1043, 1056-1057 (E.D. Texas), affirmed, 447 
F. 2d 441 (C.A. 5), certiorari denied, 404 U.S. 1016.28 
In the present case, as in Wright and Scotland Leek, 
the determination o f the constitutionality of a partic­
ular state action cannot be based simply on the over­
all, statewide effect of the action; its effect on 
desegregation in the particular local school district af­
fected must be considered.29

To the extent, therefore, that the effect of the dis­
tribution of books for use in any particular schools 
was to aid in the continuation of a dual school system 
in particular school districts, appellants are clearly 
entitled to relief (see, e.g., Appellants’ Brief, pp. 14— 
19). For example, in Tunica County the establishment 
of Tunica Institute of Learning has resulted in the 
continuance of almost total racial segregation in the 
education provided in that school district. The record 
contains evidence showing the same or similar results

28 See, also, Edgar v. United States, 404 U.S. 1206, 1207 
(Black, J., opinion on application for stay).

29 Desegregation can, indeed, be unconstitutionally impeded 
even if  only part o f a particular school district is denied a 
unitary system o f education. Davis v. Board, of School Com­
missioners of Mobile County, 402 U.S. 33; United States v. Scot­
land Neck Board of Education, supra, 407 U.S. at 491 (Burger, 
C.J., concurring).



21

from the operation of others of the 148 private, segre­
gated schools as to which the plaintiffs sought relief. 
Effective desegregation of the public schools in those 
school districts has been wholly frustrated by the 
formation and continued operation of such private 
schools. State aid, such as the provision of textbooks, 
which supports the educational functions of those 
institutions to any substantial degree and thus con­
tributes to the continuation of dual school systems in 
these districts is inconsistent with the State’s responsi­
bilities as defined in Green. Accordingly, at least to 
the extent that the appellees have provided state- 
owned textbooks for the use of students attending such 
private schools, their action should be enjoined. How­
ever, for reasons stated in Point II, supra, we believe 
that the broader relief sought by appellants is also 
warranted on the facts of this case.30

30 That relief would not, o f course, apply to schools which dem­
onstrate that their existence does not perpetuate dualism, and that 
in all respects they operate on a racially nondiscriminatory, inte­
grated basis.



22

CONCLUSION

For the foregoing reasons, it is respectfully sub­
mitted that the judgment of the court below should 
be reversed and the case should be remanded for entry 
of an appropriate injunction.

Respectfully submitted.
E r w i n  1ST. G r is w o l d ,

Solicitor General.
J . S t a n l e y  P o t t in g e r ,
Assistant Attorney General.
L a w r e n c e  G . W a l l a c e , 

Deputy Solicitor General.
H a r r ie t  S . S h a p ir o ,

Assistant to the Solicitor General..

F e b r u a r y  1973.

B r ia n  K .  L a n d sb e r g , 
T h o m a s  M . K e e l in g ,
L l o y d  J. P a r k e r , Jr.,

Attorneys...

U.s. GOVERNMENT PRINTING OFFICE:  1973.