United Steel Workers of America v. Webber Brief Amici Curiae

    CORRECTED COPY 

IN THE

United States Court of Appeals
FOR THE FIFTH CIRCUIT

N o .  2 3 3 4 5

UNITED STATES OF AMERICA and LINDA STOUT, 
by her father and next friend, BLEVIN STOUT,

Appellants,
versus

JEFFERSON COUNTY BOARD OF EDUCATION,
ET AL,

Appellees.

N o . 2 3 3 3 1

UNITED STATES OF AMERICA,
Appellant,

versus

THE BOARD OF EDUCATION OF THE CITY OF 
FAIRFIELD, ET AL,

Appellees.



2 U. S., et al. v. Jeff. County Bd. of Educ., et al.

N o  . 2 3 3  3 5

UNITED STATES OF AMERICA,
Appellant,

versus

THE BOARD OF EDUCATION OF THE CITY OF 
BESSEMER, ET AL,

Appellees.

Appeals from the United States District Court for the 
Northern District of Alabama.

N o .  2 3 2 7 4

UNITED STATES OF AMERICA,
Appellant^

versus

CADDO PARISH SCHOOL BOARD, ET AL,
Appellees.

N o .  2 3 3 6 5

UNITED STATES OF AMERICA,
Appellant,

versus

THE BOSSIER PARISH SCHOOL BOARD, ET AL,
Appellees.



17. S., et al .  V.  Jeff. County Bd. of Educ., et al.

N o .  2 3 1 7 3

MARGARET M. JOHNSON, ET AL,
Appellants,

versus

JACKSON PARISH SCHOOL BOARD, ET AL,
Appellees,

N o .  2 3 19  2

YVORNIA DECAROL BANKS, ET AL,
Appellants,

versus

CLAIBORNE PARISH SCHOOL BOARD, ET AL,
Appellees.

Appeals from the United States Distriet Court for the 
Western Distriet of Louisiana.

(D ecem ber 29, 1966.)

Before WISDOM and THORNBERRY, C ircuit Judges, 
and COX,* D istric t Judge.

WISDOM, C ircuit Judge: Once again the Court is 
called upon to review  school desegregation plans to 
determ ine w hether the plans m eet constitutional 
s tandards. The distinctive fea tu re  of these cases, con­
solidated on appeal, is that they requ ire  us to reex ­
am ine school desegregation standards in the light of

* William Harold Cox, U. S. District Judge for the Southern Dis­
trict of Mississippi, sitting by designation.



4 U. S., et al. v. Jeff. County Bd. of Educ., et al.

the Civil R ights A ct of 1964 and the G uidelines of the 
U nited States Office of E ducation , D epartm en t of 
H ealth , Education, and W elfare (HEW ).

W hen the U nited S tates Suprem e Court in 1954 
decided Brown v. Board of Education^ the m em ­
bers  of the H igh School C lass of 1966 had  not en tered  
the firs t g rade. Brown I held th a t sep a ra te  schools 
for N egro children w ere “ inheren tly  unequal” .̂  N e­
gro children, sa id  the Court, have the “ personal and 
p re sen t” righ t to equal educational opportunities 
w ith white children in a rac ia lly  nondiscrim inatory  
public school system . F o r all but a handful of Negro 
m em bers of the High School Class of ’66 th is righ t 
has been “ of such stuff as d ream s a re  m ade on” ,!*

“ The Brown  case is m isread  and m isapp lied  when 
it is construed  sim ply to confer upon N egro pupils 
the  rig h t to be considered for adm ission to a  white

 ̂ Brown v. Board of Education, 1954, 347 U. S. 483, 74 S.Ct. 
686, 98 L. Ed. 873 {Brown I). See Brown v. Board of Education, 
1955, 349 U.S. 294, 75 S.Ct. 293, 99 L.Ed.'1083 {Brown II).
2 347 U. S. at 495.
3 Shakespeare, The Temptest IV, The cases consolidated for ap­
peal involve Alabama and Louisiana public schools. In Alabama, 
as of December 1965, there were 1250 Negro pupils, out of a state­
wide total of 295,848, actually enrolled in schools with 559,123 
white students,, 0.43% of the eligible Negro enrollment. In Louisi­
ana there were 2187 Negro children, out of a total of 318,651, en­
rolled in school with 483,941 white children, 0.69% of the total 
eligible. Southern Education Reporting Service, Statistical Sum­
mary of Segregation-Desegregation in the Southern and Border 
Area from 1954 to the present, 15th Rev. p. 2, Dec. 1965. See Ap­
pendix B, Rate of Change and Status of Desegregation. In each of 
the seven cases before this Court, no start was made toward de­
segregation of the schools until 1965, eleven years after Brown. 
In all these cases, the start was a consequence of a court order 
obtained only after vigorous opposition by school officials.



U. S ; et al. V.  Jejf. County Bd. of Educ., et al.

school” .̂  The U nited S ta tes Constitution, as construed  
in Brown, req u ires  public school system s to in teg ra te  
students, faculties, facilities, and activities.® If Brown

* Braxton v. Board of Public Instruction of Duval County, 
S.D.Fla. 1962, 7 Race Rel. L. Rep. 675, aff’d, 5 Cir. 
1964, 326 F.2d 616, cert, den’d 377 U. S. 924 (1964). 
Senator Humphrey cited this case in explaining Section 604 of 
The Civil Rights Act of 1964. See Section IV D of this opinion.
" The mystique that has developed over the supposed difference 
between “desegregation” and “integration” originated in Briggs 
V . Elliott, E.D.S.C. 1955, 132 F.Supp. 776: “The Constitution . . . 
does not require integration. It merely forbids segregation”. 132 
F.Supp. at 777. This dictum is a product of the narrow view 
that Fourteenth Amendment rights are only individual rights; 
that therefore Negro school children individually must exhaust 
their administrative remedies and will not be allowed to bring class 
action suits to desegregate a school system. See Section IIIA of 
this opinion.

The Supreme Court did not use either “desegrega­
tion” or “integration” in Brown. But the Court did 
quote with approval a statement of the district court 
in which “integrated” was used as we use it here. For ten 
years after Brown the Court carefully refrained from using “in­
tegration” or “integrated”. Then in 1964 in Griffin v. County 
School Board of Prince Edward County, 375 U.S. 391, 84 S.Ct. 
400, 11 L.Ed.2d 409, the Court noted that “the Board of Super­
visors decided not to levy taxes or appropriate funds for integrated 
public schools”, i.e. schools under a desegregation order. There 
is not one Supreme Court decision which can be fairly construed 
to show that the Court distinguished “desegregation” from “in­
tegration”, in terms or by even the most gossamer implication.

Counsel for the Alabama defendants assert that “desegrega­
tion” and “integration” are terms of art. They struggle valiantly 
to define these words:

By “desegregation” we mean the duty imposed by Brown 
upon schools which previously compelled segregation to take 
affirmative steps to eliminate such compulsory segregation 
so as to allow the admission of students to schools on a non- 
racial admission basis. By “integration” we mean the actual 
placing of or attendance by Negro students in schools with 
whites.

They can do so only by narrowing the definitions to the point of 
inadequacy. Manifestly, the duty to desegregate schools extends 
beyond the mere “admission” of Negro students on a non-racial 
basis. As for “integration”, manifestly a desegregation plan must 
include some arrangement for the attendance of Negroes in 
formerly white schools.

In this opinion we use the words “integration” and “desegre­
gation” interchangeably. That is the way they are used in the 
vernacular. That is the way they are defined in Webster’s Third 
New International Dictionary: “ ‘integrate’ to ‘desegregate’ ”.



6 17. S., et al. v. Jeff. County Bd. of Educ., et al.

I left any doubt as to the a ffirm ative  dutj?  ̂ of s ta tes  
to fu rn ish  a  fully in teg ra ted  education to N egroes as

The Civil Rights Commission follows this usage; for example, 
“The Office of Education . . . standards . . . should . . . 
ensure that free choice plans are adequate to disestablish dual, 
racially segregated school systems . . .  to achieve substantial 
integration in such systems.” U. S. Comm. Survey of School 
Desegregation 1965-66, p. 54.

The Eighth Circuit used “integration” interchangeably with 
“desegregation” in Smith v. Board of Education of Morrilton, 8 
Cir. 1966, 365 F.2d 7J0. So did the Third Circuit in Evans v. 
Ennis, 3 Cir. 1960, 281 F.2d 385. See also Brown v. County 
School Board of Frederick County, Va., W.D.Va. 1965, 245 F. 
Supp. 549. The courts in Dowell v. School Board of Oklahoma City 
Public Schools, W.D.Okla. 1965, 244 F. Supp. 971 and Dove v. 
Parham, 8 Cir. 1960, 282 F.2d 256 (and the Civil Rights Commis­
sion), speak of a school board’s duty to “disestablish segrega­
tion”. This term accurately “implies that existing racial imbalance 
is a consequence of past segregation policies, and, because of 
this, school boards have an affirmative duty to remedy racial 
imbalance”. Note, Discrimination in. the Hiring and Assignment of 
Teachers in Public School Systems, 64 Mich. L. Rev. 692, 698 n.44 
(1966). (Emphasis added.)

We use the terms “integration” and “desegregation” of 
formerly segregated public schools to mean the conversion of a 
de jure segregated dual system to a unitary, nonracial (nondis- 
criminatory) system—lock, stock, and barrel: students, faculty, 
staff, facilities, programs, and activities. The proper govern­
mental objective of the conversion is to offer educational op­
portunities on equal terms to all.

As we see it, the law imposes an absolute duty to desegre­
gate, that is, disestablish segregation. And an absolute duty to 
integrate, in the sense that a disproportionate concentration of 
Negroes in certain schools cannot be ignored; racial mixing of 
students is a high priority educational goal. The law does not 
require a maximum of racial mixing' or striking a racial balance 
accurately reflecting the racial composition of the community 
or the school population. It does not require that each and evep^ 
child shall attend a racially balanced school. This, we take it, 
is the sense in which the Civil Rights Commission used the 
phrase “substantial-integration”. i.. j

As long as school boards understand the objective of de­
segregation and the necessity for complete disestablishment of 
segregation by converting the dual system to a nonracial unitary 
svstem, the nomenclature is unimportant. The criterion for deter­
mining the validity of a provision in a desegregation plan_ is 
whether it is reasonably related to the objective. We emphasize, 
therefore the governmental objective and the specifics of the 
conversion process, rather than the imagery evoked by the 
pejorative “integration”. Decision-making in this important area 
of the law cannot be made to .turn upon a quibble devised over



U. S., et al. V.  Jeff. County Bd. of Educ., et al. 7

a class, Brown II reso lved  th a t doubt. A s ta te  w ith a 
dual a ttendance  system , one for w hites and one for 
N egroes, m ust “ effectuate a  transition  to a  [single] 
rac ia lly  nondiscrim inatory  sy stem .” ® The two Brown 
decisions estab lished  equalization of educational op­
portunities as a  h igh p rio rity  goal for all of the  s ta tes  
and com pelled seven teen  s ta tes , w hich by  law had  
segregated public schools, to take affirm ative  action 
to reorganize their schools into a un itary , nonracial 
system .

The only school desegregation plan that m eets con­
stitutional standards is one that works. By helping 
public schools to m eet th a t test, by assisting  the 
courts in the ir independent evaluation  of school de­
segregation  plans, and by acce lerating  the p rogress 
bu t sim plifying the process of desegregation  the. 
HEW  G uidelines offer new hope to N egro school 
children long denied the ir constitu tional rights. A 
national effort, bringing together Congress, the 
executive, and the jud ic ia ry  m ay  be able to m ake 
m eaningful the rig h t of Negro ch ildren  to equal 
educational opportunities. The courts acting alone 
have failed.

We hold, again , in determ ining  w hether school de­
segregation  plans m eet the standards of Brown and

ten years ago by a court that misread Brown, misapplied the class 
action doctrine in the school desegregation cases, and did not fore­
see the development of the law of equal opportunities.
® Brown v. Board of Education, 1955, 349 U.S. 294, 301.



8 U. S., et al. v. Jeff. County Bd. of Educ., et al.

other decisions of the Suprem e C o u r t , th a t  courts in 
th is  c ircu it should give “ g rea t w eight” to HEW  
Guidelines.® Such deference is consistent w ith the 
exercise  of trad itio n a l jud ic ia l pow ers and  functions. 
HEW  G uidelines a re  based  on decisions cf th is and 
o ther courts, a re  fo rm u la ted  to s tay  w ithin the  scope 
of the  Civil R ights Act of 1964, a re  p rep a red  in detail 
by experts  in education and school adm in istra tion , 
and  a re  in tended by Congress and  the  executive to 
be p a r t  of a coordinated  national p ro g ram . The 
G uidelines p resen t the best system  availab le  for uni­
fo rm  application, and the East aid  to the courts in 
evaluating the valid ity  of a school desegregation  plan 
and the progress m ade under th a t plan.

HEW  regulations provide th a t schools applying for 
financial assistance  m ust com ply w jfh ce rta in  re­
qu irem ents. However, the req u irem en ts  for elem en­
ta ry  or secondary  schools “ shall be deem ed to be 
satisfied  if such school or school sy stem  is sub jec t to 
a  final o rder of a court of the U nited S ta tes for the 
desegregation of such school or school system  . . 
This regu la tion  causes our decisions to have a  tw o­
fold im p ac t on school desegregation . Our decisions 
determ ine  not only (1) the s tandards schools m ust 
com ply w ith under Brown but also (2) the  s tan d ard s  
these  schools m ust com ply w ith to qualify for fed era l 
financial assistance. Schools automatically qual-

’’ Especially Cooper v. Aaron, 1958, 358 U.S. 1, 78 S.Ct. 1399, 
3 LEd.2d 3; Bradley v. School Board of the City of Richmond, 
1965, 382 U.S. 103, 86 S.Ct. 224, 15 L.Ed.2d 187; Rogers v. Paul, 
1965, 382 U.S. 198, 86 S.Ct. 358, 15 L.Ed.2d 265.
8 Singleton v. Jackson Municipal Separate School District, 5 
Cir. 1965, 348 F.2d 729 (Singleton /) .
9 45 C.P.R. 180.4(c) (1964).



17, S., et al. V. Jeff. County Bd. of Educ., et al. 9

ify for fed e ra l aid w henever a final court o rd er 
desegregating  the school has been en tered  in the liti­
gation and the school au thorities ag ree  to com ply 
w ith the order. Because of the second consequence of 
our decisions and because of our duty to cooperate 
w ith Congress and w ith the executive in enforcing 
Congressional objectives, strong policy considerations 
support our holding th a t the s tandards of court- 
superv ised  desegregation should not be lower than  
the s tandards of H EW -supervised desegregation . The 
Guidelines, of course, cannot bind the courts; we a re  
not abdicating  any jud ic ia l responsib ilities.“  But we 
hold th a t H EW ’s s tan d ard s  a re  substan tia lly  the sam e 
as th is C ourt’s s tandards. They a re  req u ired  by the 
Constitution and, as we construe them , a re  w ithin 
the scope of the Civil R ights A ct of 1964. In  evaluating  
desegregation  plans, d is tric t courts should m ake 
few exceptions to the Guidelines and should c a re ­
fully ta ilo r those so as not to defeat the policies of 
HEW  or the holding of th is Court.

Case by case over the last tw elve years, courts 
have increased the ir understand ing  of the desegre­
gation p rocess.“  Less and less have courts accepted  
the question-begging distinction betw een “ deseg rega­
tion” and “ in teg ra tio n ” as a san c tu ary  for school 
boards fleeing from  th e ir constitutional duty to estab-

In Singleton I, to avoid any such inference, we said: “The 
judiciary has of course functions and duties distinct from those 
of the executive department . . . Absent legal questions, the 
United States Office of Education is better qualified. . . . ” 348 
F. 2d at 731.

“The rule has become: the later the start, the shorter the 
time allowed for transition.” Lockett v. Board of Education of 
Muscogee County, 5 Cir. 1965, 342 F.2d 225, 228.



10 U. S., et al. V.  Jeff. County Bd. of Educ., et al.

lish an  in teg ra ted , non-racial school system d^ W ith 
the benefit of th is experience, the Court has re ­
studied the School Segregation Cases. We have re ­
exam ined the n a tu re  of the N egro’s rig h t to equal 
educational opportunities and the ex tent of the cor­
re la tive  affirm ative duty of the s ta te  to fu rn ish  equal 
educational opportunities. We have taken  a close look 
at the background and objectives of the Civil R ights 
A ct of 1964.18

^  ^  jJ?

We approach  decision-m aking here  w ith hum ility. 
M any in telligent m en  of good will who have dedicated 
th e ir lives to public education a re  deeply concerned 
for fear th a t a doctrinaire  approach to desegregat­
ing schools m ay  lower educational standards or even 
destroy  public schools in som e a reas . These educa­
to rs and school adm in istra to rs, especially  in com m u­
nities where to tal segregation  has been the w ay of 
life from  crad le  to coffin, m ay  fail to understand  all 
of th,3 legal im plications of Brown, but they  un­
d erstand  the g rim  rea lities  of the problem s th a t com ­
plicate th e ir task.

The Court is aw are  of the g rav ity  of th e ir problem s. 
(1) Some determ ined  opponents of desegregation  
would scuttle  public education ra th e r  th an  send th e ir 
children to schools w ith N egro children. These m en

■- See Section III A and footnote 5.
The Court asked counsel in these consolidated cases and in 

five other cases for briefs on the following questions:
(a) To what extent, consistent with judicial preroga­

tives and obligations,- statutory and constitutional, is it per­
missible and desirable for a federal court (trial or appellate) 
to give weight to or to rely on H.E.W. guidelines and policies 
in cases before the court?

(b) If permissible and desirable, what practical_ means 
and methods do you suggest that federal courts (trial and 
appellate) should follow in making H.E.W. guidelines and 
policies judicially effective?



17. S., et al. V.  Jeff. County Bd. of Educ., et al. 11

flee to the suburbs, reinforcing  u rb an  neighborhood 
school p a tte rn s. (2) P riv a te  schools, a ided by s ta te  
g ran ts , have m ushroom ed in som e s ta tes  in th is c ir­
c u i t . T h e  flight of w hite children to these new  
Schools and to estab lished  p riv a te  and paroch ial 
schools prom otes resegregation . (3) M any white 
teach ers  p re fe r not to teach  in Negro schools. They 
a re  tem p ted  to seek em ploym ent a t white schools or 
to re tire . (4) M any Negro children, for various re a ­
sons, p re fe r to finish school w here they  s ta rted . (5) 
The gap betw een white and Negro scholastic achieve­
m ents causes all so rts of difficulties. There is no con­
solation in the fac t th a t the gap depends on the socio­
econom ic sta tu s of N egroes a t leas t as m uch as it de­
pends on in ferio r N egro schools.

No court can have a  confident solution for a legal 
problem  so closely interw oven w ith political, social, 
and m o ra l th read s  as the problem  of establishing 
fair, w orkable s tandards for undoing de ju re  school 
segregation in the South. The Civil R ights Act of 
1964 and the HEW  Guidelines a re  belated but invalu­
able helps in arriv ing  a t a neutral, principled  deci­

le Alabama provides tuition grants of $185 a year and Louisiana 
$360 a year to students attending private schools. “Only Florida 
and- Texas report no obvious cases of private schools formed to 
avoid desegregation in public schools.” Up to the school year 
1965-66, Louisiana had “some 11,000 pupils already receiving 
state, tuition grants to attend private schools.” This number will 
be significantly increased as a result of new private schools in 
Plaquemines Parish. Leeson, Private Schools Continue to In­
crease in the South, Southern Education Report, November 1966, 
p. 23. In Louisiana, students attending parochial schools do not 
receive tuition grants.



12 U. S., et al. v. Jeff. County Bd. of Educ., et al.

Sion consisten t w ith the dim ensions of the problem , 
trad itiona l jud ic ia l functions, and the U nited S tates 
Constitution. We g rasp  the nettle.

I.

“ No arm y is s tronger th an  an idea whose tim e 
h as  com e.” ®̂ Ten y ears  a fte r Brown, cam e the Civil 
R ights Act of 1964.“  C ongress decided th a t the tim e 
had  com e for a sweeping civil righ ts advance, in­
cluding national legislation to speed up d eseg rega­
tion of public schools and to put tee th  into enforce­
m en t of desegregation .”  T itles IV and  VI together

In a press meeting May 19, 1964, to discuss the Civil Rights 
bill. Senator Everett Dirksen so paraphrased, “On resiste a 
I’invasion des armees; on ne resiste pas a I’invasion des idees.” 
Victor Hugo, Histoire d’un crime: Conclusion: La Chute, Ch. 10 
(1877). Senator Dirksen then said, “Let editors rave at will and 
let states fulminate at will, but the time has come, and it can’t 
be stopped.” Cong. Quarterly Service, Revolution in Civil Rights 
63 (1965).
i« H. R. 7152, Pub. L. 88-352, 78 Stat. 243; approved July 2, 
1964.

“[I]n the last decade it has become increasingly clear that 
progress has been too slow and that national legislation is re­
quired to meet a national need which becomes ever more obvious. 
That need is evidenced, on the one hand, by a growing impatience 
by the victims of discrimination with its continuance and, on the 
other hand, by a growing recognition on the part of all of our 
people of the incompatibility of such discrimination with our 
ideals and the principles to which this country is dedicated. A 
number of provisions of the Constitution of the United States 
clearly supply the means ‘to secure these rights,’ and H. R. 7152, 
as amended, resting upon this authority, is designed as a step 
toward eradicating significant areas of discrimination on a na­
tionwide basis. It is general in application and national in scope.” 
House Judiciary Committee Report No. 914, to Accompany H. R. 
7152. 2 U.S. Code Congressional and Administrative News,
88th Cong. 2nd Sess. 1964, 2933. “The transition from all- 
Negro to integrated schools is at best a difficult problem of ad­
justment for teachers and students alike. . . . We have tried to 
point out that the progress in school desegregation so well com­
menced in the period 1954-57 has been grinding to a halt. The 
trend observed in 1957-59 toward desegregation by court order



U. S., et al. V.  Jeff. County Bd. of Educ., et al. 13

constitu te the congressional a lte rn ativ e  to court-su­
perv ised  desegregation . These sections of the law 
mobilize in aid  of desegregation  the U nited States 
Office of Education and the Nation’s purse.

A. Title IV authorizes the Office of E ducation  to 
give techn ical and financial assis tance  to local school 
system s in the process of desegregation.^® Title VI 
requ ires  all fed era l agencies adm in istering  any grant- 
in-aid p ro g ram  to see to it that there  is no rac ia l dis­
crim ination by any school or other recipient of fed­
eral financial aid.^® School boards cannot, however, 
hy giving up fed era l aid, avoid the policy th a t p ro ­
duced this limitation on federal aid to schools: Title 
IV authorizes the A ttorney G eneral to sue, in the 
nam e of the U nited S tates, to desegregate  a public

rathrr than hy voluntary action has continued. It is not healthy 
nor right in this country to require the local residents of a com­
munity to carry the sole burden and face alone the hazards of 
commencing costly litigation to compel school desegregation. After 
all, it is the responsibility of the Federal Government to protect 
constitutional rights. . . . ” Additional Views on H. R. 7152 of 
Hon. William M. McCulloch, Hon. John'V. Lindsay, Hon. William
T. Cahill, Hon. Garner E. Shriver, Hon. Clark MacGregor, Hon. 
Charles McC. Mathias, Hon. James E. Bromwell.” Ibid., 2487.
18 78 Stat. 246-99, 42 U.S.C. § 2000c (1964).
19 78 Stat. 252-53, 42 U.S.C. § 2000d (1964). Section 601 
states: “No person in the United States shall, on the ground of 
race, color, or national origin, be excluded from participation in, 
be denied the benefits of, or be subjected to discrimination under 
any program or activity receiving Federal financial assistance.” 
Section 602 states: “Each Federal department and agency which 
is empowered to extend Federal financial assistance to any program 
or activity . . .  is authorized and directed to effectuate the pro­
visions of Section 601 with respect to such program or activity 
by issuing rules, regulations, or orders of general applicability 
which shall be consistent with achievement of the objectives of 
the statute authorizing the financial assistance in connection 
with which the action is taken. . . . ”



14 U. S., et al. v. Jeff. County Bd. of Educ., et al.

school or school system.^® More clearly and effec­
tively  th an  e ither of the o ther two coordinate b ranches 
of G overnm ent, Congress speaks as the Voice of the 
N ation. The national policy is plain: form erly de jure 
segregated public school system s based on dual at­
tendance zones m ust shift to unitary, nonracial sys­
tem s—with or without federal funds.

The Chief Executive acted  prom ptly  to c a rry  into 
effect the Chief L eg isla tu re’s m andate. P res id en t 
Lyndon B. Johnson signed the bill into law  Ju ly  2, 
19'64, only a few hours a fte r C ongress had  finally 
approved it. In  the signing cerem ony b ro ad cas t to the 
N ation, the P resid en t said : “ We believe all m en are  
en titled  to the blessings of liberty , yet m illions are 
being deprived of those blessings—not because of 
the ir own fa ilu res, but because of the color of the ir 
skins. . . . [It] cannot c o n t i n u e . A t  the request 
of P res id en t Johnson, Vice P resid en t H ubert H. H um ­
phrey  subm itted  .a rep o rt to the P resid en t “ On the 
Coordination of Civil R ights A ctivities in the F ed e ra l 
G overnm ent” recom m ending the creation of a Coun­
cil on E qual O pportunity. The rep o rt concludes that 
“ the very  b read th  of the  F ed era l G overnm ent’s ef­
fort, involving a m ultip licity  of p ro g ram s” necessary  
to c a rry  out the 1964 Act had c rea ted  a “ problem  
of coordination .” The P resid en t approved the recom ­
m endation th a t instead of creating  a new agency

20 78 Stat. 246-49, 42 U.S.C. § 2000c (1964). In addition, Title 
IX authorizes the Attorney General to intervene in private suits 
where persons have alleged denial of equal protection of the laws 
under the 14th Amendment where he certifies that the case is of 
“general public importance.” 78 Stat. 266, Title IX § 902, 42 U.S.C. 
§ 2000 h-2 (1964).
21 N.Y. Times, July 3, 1964, p. 1.



17. S., et al. V.  Jeff. County Bd. of Educ., et al. 15

there be a general coordination of e f f o r t . L a t e r ,  
the P resid en t noted th a t the federal d ep artm en ts  and 
agencies had “ adopted uniform  and consistent reg u la ­
tions im plem enting Title VI . . . [in] a coordinated 
p ro g ram  of en fo rcem ent.” He d irected  the A ttorney 
G eneral to “ coord inate” the various federal p ro ­
g ram s in the adoption of “ consistent and uniform  
policies, p rac tices  and procedures w ith respect to the 
enforcem ent of Title VI. . .

In  A pril 1965 Congress for the firs t tim e in its h is­
tory  adopted a law  providing general federal aid 
—a billion dollars a y ea r—for elem entary and 
secondary schools.-^ It is a fa ir assum ption th a t 
Congress would not have tak en  th is step had  Title VI 
not estab lished  the principle th a t schools receiving 
fed era l assis tance  m ust m eet uniform  national 
s tan d ard s  for desegregation.^®

To m ake Title VI effective, the D epartm en t of 
Health, E ducation , and W elfare (HEW) adopted the 
regulation, “ N on-discrim ination in F edera lly  assisted 
P ro g ra m s.” *® This regulation  d irects the C om m is­
sioner of Education  to approve applications for fi-

Executive Order 11197, Feb. 9, 1965, 30 F.R. 1721.
Executive Order No. 11247, Sept. 28, 1965, 30 F. R. 12327.
The Elementary and Secondary Education Act of 1965, 79 

Stat. 27.
23 “The Elementary and Secondary Education Act of 1965 
greatly increased the amount of federal money available for public 
schools, and did so in accordance with a formula that pumps the 
lion’s share of the money to low-income areas such as the Deep 
South. Consequently, Title VI of the Civil Rights Act of 1964 
has become the main instrument for accelerating and completing 
the desegregation of Southern public schools.” The New Republic, 
April 9, 1966 (Professor Alexander M. Bickel).
2« 45 C.F.R. Part 80, Dec. 4, 1964, 64 F. R. 12539.



16 U. S., et al. v. Jeff. County Bd. of Educ., et al.

nancia l assis tance  to public schools only if the school 
or school system  agrees to com ply w ith  a court o rder, 
if any, outstanding against it, or subm its a deseg re ­
gation plan satisfacto ry  to the Commissioner.^’̂

To m ake the regulation effective, by assisting  the 
Office of E ducation  in determ ining w hether a  "school 
qualifies for fed era l financial aid  and by inform ing 
school boards of HEW  requ irem en ts, HEW  form u­
lated  certa in  standards or guidelines. In  A pril 1965, 
nearly  a y ear after the Act w as signed, HEW  pub­
lished its f irs t Guidelines, “ G eneral S ta tem en t of 
Policies under Title VI of the Civil R ights Act of 
1964 R especting D esegregation of E lem en ta ry  and 
Secondary Schools.” -® These Guidelines fixed the 
fa ll of 1967 as the ta rg e t date for to ta l desegregation  
of all g rades. In M arch  1966 HEW  issued “Revised  
Guidelines” to co rrec t m ost of the m a jo r flaw s re­
vealed in the firs t y ea r of operation under Title VI.

B. The HEW  G uidelines ra ise  the question: To 
w hat ex ten t should a court, in determ ining  w hether 
to approve a school desegregation plan, give w eight 
to the HEW G uidelines? We adhere  to the answ er

2'̂  “Every application for Federal financial assistance to carry 
out a program to which this part applies . . . shall, as a condi­
tion to its approval . . contain or be accompanied by an as­
surance that the program will be conducted or the facility operated 
in compliance with all requirements imposed by or pursuant to 
this part. . . . ” 45 C.F.R. § 80.4 (a) (1964).

U. S. Department of Health, Education and Welfare, Office 
of Education, General Statement of Policies under Title VI of the 
Civil Rights Act of 1964 Respecting Desegregation of Elementary 
and Secondary Schools, April, 1965. It is quoted in full in Price
V. Denison Independent School District, 5 Cir. 1965, 348 F.2d at 
1010 .
29 Revised Statement of Policies for School Desegregation Plans 
Under Title VI of the Civil Rights Act of 1964. March, 1966.



U. S., et al. V. Jeff. County Bd. of Educ., et al. 17

this Court gave in four ea rlie r cases. The HEW 
Guidelines a re  “ m in im um  s tan d a rd s” , representing 
for the m ost p a r t s tan d ard s  the Suprem e Court and 
th is  Court estab lished  before the Guidelines were 
promulgated.^^ Again we hold, “we attach g rea t 
w eight” to the  Guidelines. Singleton v. Jackson Munic­
ipal Separate School District, 5' Cir. 1965, 348 F.2d 
729 (Singleton I). “We put these s tan d ard s  to work. 
. . . [P lans] should be m odeled a fte r the Com­
m issioner of E duca tion ’s requ irem en ts. . , . [E xcep­
tions to the guidelines should be] confined to those 
ra re  cases p resen ting  justic iab le, not operational, 
questions. . . . The applicable s tan d a rd  is essentially  
the HEW  fo rm u lae .” Price v. Denison Independent 
School District, 5 Cir. 1965, 348 F .2d 1010. “We consid­
e r it to be in the  best in te rest of all concerned th a t 
School B oards m eet the m inim um  stan d ard s  of the 
Office of Education . . . .  In  certain school districts 
and in certa in  respects, HEW  stan d ard s  m ay  be too 
low to m eet the requ irem en ts  estab lished  by the 
Suprem e Court and by this Court . . . .  [But we also] 
consider it im portan t to m ake c lear th a t . . . we do 
not abd ica te  our jud ic ia l responsibility  for de term in ­
ing w hether a  school desegregation  p lan  violates fed­
era lly  g u aran teed  rig h ts .” Singleton v. Jackson Mu­
nicipal Separate School District, 5 Cir. 1966, 355 F.2d 
815 (Singleton II).  In  Davis v. Board of School Com­
missioners of Mobile County, 5 Cir. 1966, 364 F.2d 896, 
the m ost recen t school case before th is Court, we ap-

In Davis v. Board of School Commissioners of Mobile County, 
5 Cir. 1966, 364 F.2d 896, Judge Tuttle, for the Court, noted that 
“for more than a year, it has been apparent to all concerned 
that the requirements of Singleton and Denison were the minimum 
standards to apply.”



18 U. S., et al. v. Jeff. County Bd. of Educ., et al.
proved  Singleton I and  II and  Price v. Denison and  
o rdered  certa in  changes in the  school p lan  in con­
fo rm ity  w ith the HEW  G uidelines.

Courts in o ther c ircu its  a re  in substantial agree­
m en t w ith this Court. In  K em p v. Beasley, 8 Cir.
1965, 352 F . 2d 14, 18-19, the Court said : “ The Court 
ag rees  th a t these [HEW] s tan d ard s  m ust be 
'heavily relied upon . . . .  [T]he courts should en­
deavor to m odel th e ir s tan d ard s  a fte r those prom ul- 
g a ted  by the  executive. They a re  not bound, how ever, 
and  w hen c ircum stances d icta te , the  courts m ay  re ­
quire som ething m ore, less or d ifferen t from  the 
H.E.W . guidelines.” (E m phasis  added.) C oncurring, 
Judge L arson  observed: “However, th a t ‘som ething 
d ifferen t’ should ra re ly , if ever be less th a n  w hat is 
contem plated  by the H.E.W . s tan d a rd s .” 352 F .2d a t 
23. Sm ith v. Board of Education of Morrilton, 8 Cir.
1966, 365 F.2d 770 rea ffirm s th a t the G uidelines “ a re  
en titled  to serious jud ic ia l deference” .

A lthough the Court of Appeals for the F o u rth  C ir­
cuit has not y e t considered the effect of the HEW 
standards, d is tric t courts in th a t c ircu it have relied 
on the  guidelines. See Kier v. County School Board 
of Augusta County, W .D.Va. 1966, 249 F. Supp. 239; 
W right v. County School Board of Greenville County,
E.D .V a. 1966, 252 F. Supp. 378; Miller v. Clarendon 
County School District No. 2, D.S.C., Civil Action No. 
8752, A pril 21, 1966. In  Miller, one of the m ost recen t 
of these cases, the court said:

The orderly  p rogress of desegregation  is
best served  if school system s desegregating



U. S., et al. V.  Jeff. County Bd. of Educ., e t.a l. 19

under court o rder are requ ired  to m eet the 
m inim um  stan d ard s  prom ulgated for system s 
th a t desegregate  voluntarily . W ithout d irec t­
ing absolute adherence to the “ Revised S tand­
a rd s” guidelines at this jun c tu re , th is court 
will w elcom e their inclusion in any new, 
am ended, or substitu te  p lan which m ay  be 
adopted and subm itted .

In  this circuit, the school problem  arises  from  
state action. This Court has not had  to deal w ith 
nonracially  m otivated  de facto segregation, that is, 
rac ia l im balance  resulting  fortuitously in a school 
system  based  on a single neighborhood school se rv ­
ing all white and N egro children in a certa in  a ttend ­
ance area or neighborhood. F o r this circu it, the 
HEW G uidelines offer, for the firs t tim e, the p ros­
pect th a t the transition  from  a de ju re  seg regated  
dual system  to a u n ita ry  in teg ra ted  system  m ay  be 
carried  out effectively, prom ptly, and in an orderly  
m anner. See A ppendix B, R ate  of Change and S tatus 
of Desegregation.

II.

We read Title VI as a  congressional m andate for 
change—change in pace and m ethod of enforcing de­
segregation. The 1964 Act does not disavow  court- 
supervised desegregation. On the con trary , Congress 
recognized th a t to the courts belongs the la s t word 
in any case or c o n t r o v e r s y .B u t  Congress w as dis-

31 Title IV, § 407, 42 U.S.C. § 2000 (c) authorizing the Attorney- 
General to bring suit, on receipt of a written complaint, would 
seem to imply this conclusion. Section 409 preserves the right of 
individual citizens “to sue for or obtain relief” against discrimina­
tion in public education. HEW Regulations prowde: “In any 
case in which a final order of a court of the United States for



20 U. S., et al. v. Jeff. County Bd. of Educ., et al.

satisfied  w ith the slow prog ress inheren t in the  jud i­
cial adversary process.®^ Congress therefore fash­
ioned a new  m ethod of enforcem ent to be adm in­
is te red  not on a  case by case basis as in the courts 
but, generally , by fed era l agencies operating  on a 
na tional scale  and having a special com petence in 
th e ir respective fields. C ongress looked to these  agen­
cies to shoulder the additional enforcem ent burdens 
resu lting  from  the shift to high g ear in school deseg­
regation.

A. Congress was well aw are th a t it w as tim e for 
a change. In  the decade following Brown, court-super­
v ised  desegregation  m ade qualita tive  p rogress: 
Responsible Southern leaders  accep ted  desegregation  
as a settled  constitu tional principle.®® Q uantitively,

the desegregation of such school or school system is entered 
after submission of such a plan, such a plan shall be revised to 
conform to such final order, including any future modification of 
such order.” 45 C.F.R. § 80.4(c) (1964).
32 See footnote 17.
33 “The Federal courts have been responsible for great qualita­
tive advances in civil rights; the lack has been in quantitative im­
plementation—in enabling the individual to avail himself of these 
great decisions.” Bernhard and Natalie, Between Rights and 
Remedies, 53 Georgetown L. Jour. 915, 916 (1965). “[ l i t  is the 
consensus of the judges on the firing line, so to speak, that one 
phase in the administration of the law—the establishment phase, 
characterized by permissive tokenism, by a sort of minimal 
judicial holding of the line while the political process did, as it 
must, the main job of establishing—this phase has been closed 
out.” Bickel, The Decade of School Desegregation, 64 Colum. 
L. Rev. 193, 209 (1964). The changes of the past decade have dis­
appointed the most optimistic hopes, but they have been dramat­
ically sweeping nonetheless. Gellhorn, A Decade of Desegregation— 
Retrospect and Prospect, 9 Utah L. Rev. 3 (1964). “What makes 
one uneasy, of course is the truly awesome magnitude of what 
has yet to be done.” Marshall, The Courts, in Center for the Study 
of Democratic Institutions, The Maze of Modem Government 36 
(1964), quoted in Poliak, Ten Years After the Decision, 24 Fed. 
Bar Jour. 123 (1964). On the first decade of desegregation, see 
generally, Sarratt, The Ordeal of Desegregation (1966); Legal 
Aspects of the Civil Rights Movement (D. B. King ed. 1965).



17. S., et al. V. Jeff. County Bd. of Educ., et al. 21

the resu lts  w ere m eagre. The s ta tistics  speak  elo­
quently. See Appendix B, R ate  of Change and S tatus 
of Desegregation. In  1965 the public school d is tric ts  
in the consolidated cases now before this C ourt had 
a school population of 155,782 school children, 59,361 
of whom w ere Negro. Y et under the existing court- 
approved desegregation plans, only 110 Negro chil­
dren in these d istric ts , .019 p er cent of the school 
population, a ttend  fo rm er “ w hite” schools.®^ In  1965 
there  w as no faculty  desegregation in any of these 
school d is tric ts ; indeed, none of the 30,500 Negro 
teachers  in A labam a, Louisiana, and M ississippi 
served w ith any of the 65,400 white teach ers  in those 
states.®® In  the 1963-64 school year, the eleven s ta tes  
of the C onfederacy had 1.17 per cent of th e ir N egro 
students in schools w ith white students.®® In  1964-65, 
undoubtedly because of the effect of the 1964 Act,

Total
Enrollment

Negroes Admitted 
To Formerly 
White Schools

Bessemer, Ala. 
Fairfield, Ala. 
Jefferson County, Ala. 
Caddo Parish, La. 
Bossier Parish, La. 
Jackson Parish, La. 
Claiborne Parish, La.

W N
2,920 5,284 13
1,779 2,159 31

45,000 18,000 24
30,680 24,467 1
11,100 4,400 31

2,548 1,609 5
X XX.X. 2,394 3,442 5

(Affidavit of St. John Barrett, Attorney, Department of Justice, 
attached to Motion to Consolidate and Expedite Appeals.)

U. S. Dept, of Health, Education and Welfare, Office of 
Education Release, Table 3, September 27, 1965. In the 11 states 
of the Confederacy there are 1800 Negro teachers, 1.8 per cent 
of all the Negro teachers in Southern schools, assigned to schopls 
with biracial faculties. By contrast, in the border states (Dela­
ware, Kentucky, Maryland, Missouri, Oklahoma and West Vir­
ginia). 51 per cent of the Negro teachers now teach white students. 
Xl3id36 Southern Education Reporting Service, Statistical Sunimary, 
Dec. 1965, cited in U.S. Comm, on Civil Rights,
Desegregation in the Southern and Border States 1965-66, p. l.



22 U. S., et al. v. Jefj. County Bd. oj Educ., et al.

the percen tage  doubled, reach ing  2.25. F o r the 1965-66 
school y ear, this tim e because of HEW  Guidelines, 
the percen tage reached  6.01 per cent. In  1965-66 the 
en tire  region encom passing the Southern and border 
states  h ad  10.9 per cent of th e ir N egro children  in 
school w ith w hite ch ildren; 1,555 b irac ial school dis­
tric ts  out of 3,031 in the Southern and border states 
w ere still fully seg regated ; 3,101,043 N egro children 
in the region a ttended  all-N egro schools. D espite the 
im petus of the 1964 Act, the s ta tes  of A labam a, Loui­
siana, and M ississippi, still had less th an  one p er cent 
of th e ir N egro enro llm ent attend ing  schools with 
white students.®^

The dead hand of the old p ast and the closed f is t  of 
the recen t past account for som e of the slow prog­
ress. There a re  o ther reasons—as obvious to Con­
gress as to courts. (1) Local loyalties com pelled 
school officials and elected  officials to m ake a public 
record  of the ir unw illingness to act. But even school 
au thorities willing to ac t have m oved slowly be­
cause of un certa in ty  as to the scope of th e ir duty to 
ac t affirm atively . This is a ttrib u tab le  to (a) a m is­
placed re liance on the Briggs d ictum  th a t the  Consti- 
tuition “does not require integration”,®* (b) a misun­
derstanding of the Brown II m andate , desegregate  
with “due deliberate speed”,®* and (c) a mistaken no-

3̂  Ibid.; see footnote 3; Appendix B, Rate of Change and Status 
of Desegregation.
38 See Section III A of this opinion.
39 In Davis v. Board of School Commissioners of Mobile County, 
5 Cir. 1966, 364 F.2d 896, 898, Judge Tuttle, for the Court, said: 
“This is the fourth appearance of this case before this court. This 
present appeal, coming as it does from an order the trial 
court entered nearly eighteen months ago, on March 31, 1965, 
points up, among other things, the utter impracticability of a



U. S., et al. V. Jeff. County Bd. of Educ., et al. 23

tion th a t tra n s fe rs  under the P upil P lacem en t Law s 
satisfy desegregation requirements.^® (2) Case by
case developm ent of the  law  is a  poor sort of m edium  
for reasonably p rom pt and uniform  desegregation. 
There a re  n a tu ra l lim its to effective legal action. 
Courts cannot give advisory  opinions, and the d isci­
plined exercise of the jud icia l function p roperly  m akes 
courts re lu c tan t to m ove fo rw ard  in an  a rea  of the

continued exercise by the courts of the responsibility for super­
vising the manner in which segregated school systems break out 
of the policy of complete segregation into gradual steps of com­
pliance and towards complete compliance with the constitutional 
requirements of Brown v. Board of Education, 347 U.S. 483. One 
of the reasons for the impracticability of this method of oversee­
ing the transitional stages of operations of the school boards 
involved is that, under the Supreme Court’s ‘deliberate speed’ 
provisions, it has been the duty of the appellate courts to interpret 
and reinterpret this language as time has grown apace, it now 
being the twelfth school year since the Supreme Court’s decision.” 
40 “The pupil assignment acts have been the principal obstacle 
to desegregation in the South.” U. S. Comm, on Civil Rights, 
Civil Rights U.S.A.—^Public Schools, Southern States 15, 1962. 
See Note, The Federal Courts and Integration of Southern 
Schools: Troubled Status of the Pupil Placement Acts, 62 Colum. 
L. Rev. 1448, 1471-73 (1962); Bush v. Orleans Parish School 
Board, 5 Cir. 1962, 308 F.2d 491. Such laws allow care­
fully screened Negro children, on their application, to transfer 
to white schools from the segregated schools to which the Negroes 
were initially unconstitutionally assigned. Often, even after six 
to eight years of no desegregation, these transfers were limited 
to a grade a year. When this law first came before us we held 
it to be unconstitutional. Bush v. Orleans Parish School Board,
E. D.La. 1956, 138 F. Supp. 337, af f d  242 F.2d 156, cert, den’d 354 
U.S. 921 (1957). Later, in a narrowly focused opinion, we held 
that the Alabama version was constitutional on its  face. Shut- 
tlesworth v. Birmingham Board of Education, N.D.Ala. 1958, 162
F. Supp. 372, aff’d per curiam, 358 .U.S. 101 (1958). As
long ago as 1959 and 1960 this Court disapproved of such acts as a 
reasonable start toward full compliance. Gibson v. Board of 
Public Instruction of Dade County, 272 F.2d 763; Mannings v. 
Board of Public Instruction of Hillsborough County, 277 F.2d 370. 
See also Bush v. Orleans Parish School Board, 5 Cir. 1961, 308 
F.2d 491; Evers v. Jackson Municipal Separate School District, 5 
Cir. 1964, 328 F.2d 408. *‘[T]he entire public knows that in fact 
[the Louisiana law] . . .  is being used to maintain segregation.
. . . It is not a plan for desegregation at all.” Bush v. Orleans 
Parish School Board, 308 F. 2d at 499-500.



24 17. S., et al. v. Jeff, County Bd. of Educ., et al.

law  bordering  the p e rip h ery  of the jud ic ia l domain. 
(3) The con tem pt pow er is ill-suited to serve as the 
chief m eans of enforcing desegregation . Judges nat­
u ra lly  shrink  fro m  using it  ag a in s t citizens willing 
to  accep t the thank less, painful responsib ility  of se rv ­
ing on a school board.'*^ (4) School desegregation 
p lans a re  often woefully inadequate ; they  ra re ly  p ro ­
vide n ecessa ry  detailed  instructions and specific an­
swers to  administrative problems.^^ And most judges 
do not have  sufficient com petence—they  a re  not 
educato rs or school ad m in is tra to rs—to know the rig h t 
questions, m uch  less the rig h t answ ers. (5) B ut one 
reason m ore th an  any o ther has held  back  deseg re­
gation  of public schools on a large scale. This has 
been  the  lack, until 1964, of effective congressional

Bush V. Orleans Parish School Board is an example. 
The board was plagued by bundles of Louisiana statutes 
aimed at defeating desegregation. There were five extra 
sessions of the Louisiana legislature in 1960. After the School 
Board had for three years failed to comply with an order to sub­
mit a plan, the district judge wrote one himself. The trial judge 
simply said: “All children [entering New Orleans public schools 
. . . may attend either the formerly all white public schools 
nearest their homes, or the formerly all Negro public schools 
nearest their homes, at their option. B. Children may be trans­
ferred from one school to another, provided such transfers are 
not based on race”. 204 F.Supp. 568; 571-72.

For example, the order of the able district judge in Bush. 
See footnote 41. Judge Bohanon underscored this point in 
Dowell V. School Board of Oklahoma City Public Schools, W.D.Okla. 
1965, 244 F. Supp. 971, 976: “The plan submitted to this Court 
. . .  is not a plan, but a statement of policy. School desegrega­
tion is a difficult and complicated matter, and, a s . the record 
shows, cannot be accomplished by a statement of policy. U De­
segregation of public schools in a system as large as Oklahoma 
City requires a definite and positive plan providing definable 
and ascertainable goals to be achieved within a definite time 
according to a prepared procedure and with responsibilities clearly 
designated.”



U. S., et al. V. Jeff. County Bd. of Educ., et al. 25

statu to ry  recognition of school desegregation as the 
law of the land.'^®

“Considerable p rog ress has been m ade . . . N ever­
theless, in the la s t decade it has becom e increasingly  
clear th a t p rogress has been too slow and that nation­
al legislation is requ ired  to m eet a national need 
which becomes ever more obvious.” *̂ Title VI of the 
Civil R ights Act of 1964, therefore, w as not only ap ­
propriate  and proper legislation under the T hirteenth  
and F ourteen th  A m endm ents; it w as n ecessary  to

The Civil Rights Act of 1964 had its direct genesis in Presi­
dent Kennedy’s message to Congress of June 19, 1963, urging 
passage of an omnibus civil rights law. He noted: “In the con­
tinued absence of congressional action, too many state and local 
officials as well as businessmen will remain unwilling to accord 
these rights to all citizens. Some local courts and local mer­
chants may well claim to be uncertain of the law, while those 
merchants who do recognize the justice of the Negro’s request 
(and I believe these constitute the great majority of merchants. 
North and South)'will be fearful of being the first to move, in 
the face of official customer, employee, or competitive pressures. 
Negroes, consequently, can be expected to continue increasingly 
to seek the vindication of these rights, through organized direct 
action, with all its potentially explosive consequences, such as we 
have seen in Birmingham, in Philadelphia, in Jackson, in Boston, 
in Cambridge, Md., and in many other parts of the country. H In 
short, the result of continued Federal legislative inaction will be 
continued, if not increased, racial strife—causing the leadership 
on both sides to pass from the hands of reasonable and responsible 
men to the purveyors of hate and violence, endangering domestic 
tranquillity, retarding our nation’s economic and social progress 
and weakening the respect with which the rest of the world re­
gards us. No American, I feel sure, would prefer this course of 
tension, disorder, and division—and the great majority of our 
citizens simply cannot accept it.’’ H.Doc. 124, 88th Cong. 1st 
Sess. June 20, 1963, Rep. Emanuel Celler, Chairman of the House 
Judiciary Committee, introduced H.R. 7152 embodying the Presi­
dent’s proposals. The same day Senator Mike Mansfield intro­
duced a similar bill, S. 1731. H.R. 7152-S.1731, as amended, be­
came the Civil Rights Act of 1964.

H. Rep. No. 914, 88th Cong., 1st Sess.



26 U. S., et al. v. Jeff. County Bd. of Educ., e t al.

rescue  school desegregation  from  the bog in which 
it had been trapped for ten  years.*®

The Civil R ights Com m ission, doubtless be tte r able 
th an  any  other au thority  to un d ers tan d  the  signifi­
cance of the Civil R ights Act of 1964, had  th is to say  
about Title VI:

“ This s ta tu te  hera lded  a new era  in school 
desegregation  . . . M ost significantly  . . . 
F edera l pow er was to be b rought to b ear in 
a m an n er w hich prom ised speed ier and m ore 
su b stan tia l desegregation  than  had  been 
achieved through the vo lun tary  efforts of 
school boards and d istric t-by-d istric t litig a ­
tion. . . . D uring fiscal y e a r 1964, $176,546,992 
w as d istribu ted  to S tate  and local school 
agencies in the 17 Southern  and border States.
The passage of the E lem en ta ry  and Second­
a ry  E ducation  A ct of 1965 added an addition­
al appropria tion  of $589,946,135 for allocation 
to the 17 Southern and border S ta tes for fiscal 
y e a r 1966. W ith funds of such m agnitude  at 
s take, m ost school system s would be placed 
a t a serious d isadvan tage  by te rm ina tion  of 
Federal assistance.”*®

“It was the Congressional purpose, in Title VI of the Civil 
Rights Act of 1964, to remove school desegregation efforts from 
the courts, where they had been bogged down for more than a 
decade. Unless the power of the Federal purse is more effectively 
utilized, resistance to national policy will continue and, in fact, 
will he reinforced.” Report of the White House Conference “To 
Fulfill These Rights”, June 1-2, 1966, p. 63.

Rep. U. S. Comm, on Civil Rights, Survey of School De­
segregation in the Southern and Border States—1965-66, p. 2.



U. S., et al. V. Jeff. County Bd. of Educ., e t al. 27

B. The congressional m andate , as em bodied in
the Act and as ca rried  out in the HEW  G uidelines, 
does not conflict w ith the p roper exercise of the jud i­
cial function or w ith the doctrine of separation  of 
powers. It does how ever profoundly affect construc­
tive use of the jud ic ia l function w ithin the lawful 
scope of sound jud ic ia l discretion. W hen C ongress 
declares national policy, the duty the two other coor­
dinate branches owe to the N ation requ ires  that, 
within the law , the jud ic ia ry  and the executive re ­
spect and c a rry  out th a t policy. H ere the Chief E x ­
ecutive acted p rom ptly  to bring about uniform  s tan d ­
ards for desegregation . The jud icia l b ran ch  too 
should cooperate w ith Congress and the executive 
in m aking adm in istra tive  agencies effective in stru ­
m ents for supervising and enforcing desegregation  
of public schools. Ju stice  H arlan  F. Stone expressed 
this well;

“ L egisla tu res c rea te  adm in istra tive  agencies 
w ith the desire and expectation  th a t they will 
perfo rm  efficiently the tasks com m itted  to 
them . That, a t least, is one of the contem ­
p la ted  social advan tages to be w eighed in 
resolving doubtful construction. Its  a im  is so 
obvious as to- m ake unavoidable the conclu­
sion th a t the function w hich courts a re  called 
upon to perform , in carry ing  into operation 
such adm in istra tive schem es, is constructive, 
not destructive, to m ake adm in istra tive  agen­
cies, w henever reasonab ly  possible, effective



28 U. S., et al. v. Jeff. County Bd. of Educ., et al.

in s trum en ts  for law  enforcem ent, and not to 
destroy them .” ’̂'

In  an  analogous situation  involving enforcem ent of 
the F a ir  Labor S tandards Act, the Suprem e Court 
has said, “ Good adm in istra tion  of the Act and good 
jud icia l adm in is tra tio n  alike requ ire  th a t the  stand­
a rd s  of public enforcem ent and those for d e term in ­
ing p riv a te  righ ts shall be a t v a rian ce  only w here 
justified  by very  good reaso n s .” Skidm ore v. Swift 
& Co., 1944, 323 U. S. 134, 65 S.Ct. 161, 89 L .E d. 124. 
In  an  appeal from, the d is tric t co u rt’s denial of an 
injunction to enforce labor s tan d ard s  under the A ct 
th is Court has pointed out:

“ . . . this proceeding is only superficially  r e ­
la ted  to a su it in equity for an injunction to 
p ro tect in te rests  jeopardized in a p rivate con­
troversy . The public in te re s t is jeopardized 
here. The in junctive p rocesses a re  a m eans 
of effecting general com pliance w ith national

Stone, The Common Law in the United States, 50 Harv. L. 
Rev. 1, 18 (1936). In a similar vein, writing for the Court, 
Justice Stone has said: “ . . . in construing a statute setting 
up an administrative agency and providing for judicial review of 
its action, court and agency are not to be regarded as wholly in­
dependent and unrelated instrumentalities of justice, each acting 
in the performance of its prescribed statutory duty without re­
gard to the appropriate function of the other in securing the 
plainly indicated objects of the statute. Court and agency are 
the means adopted to attain the prescribed end, and so far as 
their duties are defined by the words of the statute, those words 
should be construed so as to attain that end through co-ordinated 
action. Neither body should repeat in this day the mistake made 
by the courts of law when equity was struggling for recognition 
as an ameliorating system of justice; neither can rightly be re­
garded by the other as an alien intruder, to be tolerated if must 
be, but never to be encouraged or aided by the other in the at­
tainment of the common aim.” United States v. Morgan, 1939, 
307 U. S. 183, 191, 59 S. Ct. 795, 799, 83 L.Ed. 1211.



U. S., et al. V.  Jejf. County Bd. of Educ., et al. 29

policy as expressed  by Congress, a public 
policy judges too m ust c a rry  out—actu a ted  by 
the sp irit of the law  and not begrudgingly  as 
if it w ere a newly im posed fia t of a p resid i­
um . . . . Im plicit in the defendan ts’ non-com ­
pliance, as we read  the briefs' and the record, 
is a certa in  underlying, not unna tu ra l, Acton- 
ian  d istaste  for national legislation affecting 
local activities. B ut the F a ir  Labor S tandards 
Law  has been  on the books for tw enty-three 
years. The A ct estab lishes a policy for all of 
the country, and for the courts as well as for 
the  agency requ ired  to adm in ister the law. 
M itchell V. Pidcock, 5 Cir. 1962, 299 F.2d 281,
287, 288.

C. We m ust therefore cooperate w ith Congress 
and the Executive in enforcing Title VI. The problem  
is: A re the HEW  G uidelines w ithin the scope of 
the congressional and executive policies em bodied 
in the Civil R ights Act of 1964. We hold th a t they  are.

The G uidelines do not p u rp o rt to be a ru le or reg u ­
lation or order. They constitute a s ta tem en t of policy 
under section 80.4(c) of the HEW  R egulations is­
sued a fte r the P resid en t approved the regulations 
D ecem ber 3, 1964. HEW is under no statu tory  com ­
pulsion to issue such sta tem en ts . I t is, how ever, of 
m anifest advan tage  to school boards throughout the 
country and to the general public to know the c rite ria  
the C om m issioner uses in determ ining  w hether a



30 17. S., et al. v. Jeff. County Bd. of Educ., et al.

school m eets  the req u irem en ts  for eligibility to re ­
ceive financial assistance .

The G uidelines have the vices of all ad m in is tra ­
tive policies estab lished  un ila te ra lly  w ithout a  h e a r­
ing. B ecause of these vices the courts, as the  school 
boards point out, have set lim its on adm in istra tive  
regulations, ru lings, policies, and p rac tices: an 
agency construction of a s ta tu te  cannot m ake the 
law ; it m ust conform  to the law  and be reasonable. 
To some extent the adm in istra tive  w eight of the dec­
la ra tions depends on the p lace of such declarations 
in the h ie ra rch y  of agency pronouncem ents extending 
from  regu lations down to general counsel m em o ran ­
da and  inter-office decisions. See M anhattan General 
Electric Company v. Commissioner, 1936, 297 U. S. 
129, 56 S.Ct. 397, 80 L .Ed. 528; United States v. Ben­
nett, 5 Cir. 1951, 186 F.2d 407; United States v. Mis­
sissippi Chemical Corporation, 5 Cir. 1964, 326 F. 
2d 569; Chattanooga Auto Club v. Commissioner, 6 
Cir. 1950, 182 F.2d 551.

These and sim ila r decisions a re  not inconsistent 
w ith  the co u rts’ giving g re a t w eight to the HEW ’s 
policy s ta tem en ts  on enforcem ent of Title VI. In 
Skidmore v. Sw ift & Co., 323 U.S. 134, an action was 
com m enced in a  fed era l d is tric t court by em ployees 
of Swift & Co. to recover w ages a t the overtim e ra te s  
p rescrib ed  by the F a ir  Labor S tandards Act (52 Stat. 
1060, et seq.) for certa in  serv ices which they  had 
perform ed. At issue w as w hether these serv ices con­
stitu ted  “ em ploym ent” w ithin the  m eaning  of sec-



U. S., et al. V.  Jefj. County Bd. of Educ., et al. 31

tion 7 (a) of th a t act. The d is tric t court and  th is 
Court, on appeal, decided th is issue ag a in st the 
plaintiffs. The Suprem e Court reversed . A fter ac ­
knowledging (323 U.S. a t 137) th a t the s ta tu te  had  
g ran ted  no ru le-m aking  pow er to the W age and  H our 
A dm in istra to r w ith resp ec t to the issue a t  hand 
( “ [ijn stead , it put th is responsibility  on the 
courts”), the  Court referred to an “Interpretative 
B ulletin” issued  by the A dm in istra to r containing his 
in terp re ta tion  of the s ta tu to ry  ph rase  in question. The 
Suprem e Court said:

“ We consider th a t the rulings, in terp re ta tions 
and opinions of the A dm in istra to r under th is 
Act, while not controlling upon the courts by 
reason  of th e ir authority , do constitute a body 
of experience and inform ed judgm en t to 
w hich courts and litigan ts m ay  properly  re­
so rt for guidance. The w eight of such a judg­
m en t in a p a rtic u la r  case will depend upon 
the thoroughness evident in its consideration, 
the valid ity  of its reasoning, its consistency 
w ith ea rlie r and la ter pronouncem ents, and 
all those fac to rs  which give it pow er to p e r­
suade, if lacking power to control.” ®̂

The Supreme Court also stated in Skidmore, 323 U. S. at 139- 
40: “The rulings of this Administrator are not reached as a re­
sult of hearing adversary proceedings in which he finds facts 
from evidence and reaches conclusions of law from findings of 
fact. They are not, of course, conclusive, even in the cases with 
which they directly deal, much less in those to which they apply 
only by analogy. They do not constitute an interpretation of the 
Act or a standard for judging factual situations which binds a 
district court’s processes, as an authoritative pronoimcement of 
a higher court might do. But the Administrator’s policies are 
made in pursuance of official duty, based upon more specialized



32 U. S., et al. v. Jejf. County Bd. of Educ., et al.

The Suprem e Court found th a t the low er courts had  
misunderstood their function vis-a-vis the In te rp reta ­
tive Bulletin and remanded the  case. See also, 
United States v. Am erican Trucking Association, 
1940, 310 U. S. 543, 549; Goldberg v. Servas, 1 Cir. 
1961, 294 F.2d 841, 847.

The national im portance  of the HEW  G uidelines, 
the evident thoroughness w ith which these s tan d ard s  
were p rep a red  and fo rm ulated  by educational au tho r­
ities, the  s im ila rity  of the HEW  stan d a rd s  to the 
s tandards th is Court and the Suprem e Court have 
established, and the m anifest effort of the Office of 
E ducation  to be faithfu l to the congressional objec­
tives of the 1964 Civil R ights Act entitle the HEW 
G uidelines to g re a te r  w eight by the courts th an  run- 
of-the-mine policy statem ents low in the h ie ra rchy  
of adm in istra tive  declarations.

Courts therefo re  should cooperate v/ith the congres­
sional-executive policy in favor of desegregation and 
against aiding segregated  schools.

D. B ecause our approval of a p lan establishes 
eligibility for federal aid, our s tan d a rd s  should not 
be low er than  those of HEW. Unless jud ic ia l stand-

experience and broader investigations and information than is 
likely to come to a judge in a particular case. They do deter­
mine the policy which will guide applications for enforcement by 
injunction on behalf of the Government. Good administration of 
the Act and good judicial administration alike require that the 
standards of public enforcement and those for determining private 
rights shall be at variance only where justified by very good 
reasons.” (Emphasis added.)



17. S., et al. V. Jeff. County Bd. of Educ., et al. 33

ards a re  substantia lly  in accord  w ith the Guidelines, 
school boards previously resistan t to desegregation 
will re so rt to the courts to avoid com plying w ith the 
m inim um  stan d ard s  HEW  prom ulgates for schools 
tha t desegregate  voluntarily . As we said  in Singleton 
I:

“ If in  som e d istric t courts jud ic ia l guides for 
approval of a school desegregation p lan  a re  
m ore accep tab le  to the com m unity  or sub­
stantially  less burdensom e than  H.E.W . 
guides, school boards m ay tu rn  to the federal 
courts as a m eans of c ircum venting the 
H.E.W . requ irem en ts for financial aid. In­
stead  of a uniform  policy re la tive ly  easy to 
adm in ister, both the courts and the Office of 
E ducation  would have to struggle w ith indi­
vidual school system s on ad hoc basis. If 
judicial s tan d ard s  a re  low er, re ca lc itran t 
school boards in effect will receive a p re ­
m ium  for recalc itran ce; the m ore the in tran ­
sigence, the b igger the bonus.” 348 F.2d a t 
731.

In Kem p v. Beasley, 8 Cir. 1965, 352 F.2d 14, the 
Court concluded:

“ [HEW] s tan d ard s  m ust be heavily  relied 
upon. . . . Therefore, to the end of p rom ot­
ing a degree of uniform ity  and discouraging 
re lu c tan t school boards from  reap ing  a  bene­
fit from  the ir re luctance  the courts  should 
endeavor to m odel th e ir  s tan d ard s  a fte r those



34 U. S., et al. v. Jeff. County Bd. of Educ., et al.

prom ulgated  by the executive.’ 
19.

352 F.2d a t 18,

C oncurring, Judge Larson, speaking from  his expe­
rience as a d is tric t judge, pointed out th a t school 
boards w hich do not a c t vo luntarily  re ta rd  the  deseg­
regation  process to the d isadvan tage  of the individ­
ual’s constitu tional righ ts: “ Ju d ic ia l c rite ria ” , 
therefo re , “ should ‘p robably  be m ore s trin g en t” than  
HEW  G uidelines:

“A school board  which fails to a c t voluntarily  
forces Negro students to solicit a id  from  the 
courts. This not only shifts the burden  of in i­
tia tin g  desegregation , but inevitab ly  m eans 
delay in tak ing  the f irs t step. As Judge Gib­
son observes, we a re  not here  concerned w ith 
regu lating  the flow of F ed e ra l funds. Our task 
is to safeguard  basic  constitu tional rights. 
Thus, our s tan d ard s  should be directed  to­
w ard  full, com plete, and final realization of 
those r ig h ts .” 352 F.2d a t 23.

The announcem ent in HEW  regulations tha t the 
Com m issioner would accep t a final school desegrega­
tion o rder as proof of the school’s eligibility for 
fed era l aid  p rom pted  a num ber of schools to seek 
refuge in the fed e ra l courts. M any of these had  not 
moved an inch toward desegregation.^® In  Louisiana

The following statement appeared in the Shreveport 'Journal 
for July 1, 1965: “The local school boards prefer a court order 
over the voluntary plan because HEW regidations governing the 
voluntary plans or compliance agreements demand complete 
desegregation of the entire system, including students, faculty, 
staff, lunch workers, bus drivers, and administrators, whereas 
the court-ordered plans can be more or less negotiated with the 
judge.” This was not news to the Court.



U. S., et al. V.  Jeff. County Bd. of Educ., et al. 35

alone tw enty  school boards obtained quick decrees 
providing for desegregation according to p lans g re a t­
ly at variance with the Guidelines.®®

We shall not p e rm it the courts to be used to destroy 
or dilute the effectiveness of the congressional policy 
expressed in Title VI. There is no bonus for foot- 
dragging.

E. The experience th is Court has had in the la st 
ten y ears  argues strongly for uniform  stan d ard s  in 
court-supervised desegregation.

The firs t school case to reach  this Court a fte r 
Brown v. Board of Education  was Brown v. Rippey, 
5 Cir. 1956, 237 F.2d 796. Since then  we have review ed 
41 other school cases, many more than once.®  ̂ The

We may also expect a number of school desegregation. suits 
to be filed in Alabama. The legislature has enacted a statute de­
claring the Guidelines null and void in Alabama and prohibiting 
school officials signing any agreement to comply. The bill pro­
vides that any agreement or assurance of compliance with the 
guidelines already in effect “is null and void and shall have no 
binding effect.” H.B. 446, approved September 2, 1966.

The brief of the United States gives the following figures: 
“1. Case Load

Number of 
Cases 
Number of 
Orders Entered

District
Court

128

513

Court of 
Appeals 

42

76

Supreme
Court

10

2. Frequency of Appeals 
to this Court

Number of Cases With One or More Appeals 42
Number of Cases With Two or More Appeals 21
Number of Cases With Three or More Appeals 8
Number of Cases With Four or More Appeals 4
Number of Cases With Five or More Appeals 2
In Bush V. Orleans Parish School Board the complaint was 

filed September 5, 1952. Bush’s peregrinations through the 
courts are reported as follows: 138 F.Supp. 336 (3-
judge 1956) motion for leave to file petition for man­
damus denied, 351 U. S. 948 (1956); 138 F. Supp. 337



36 U. S., et al. v. Jeff. County Bd. of Educ.j et al.

d is tric t courts in th is c ircu it have considered  128 
school cases in  the sam e period. R eview ing these 
cases im poses a taxing, tim e-consum ing burden  on 
the courts not reflected  in s ta tistics . An analysis  of 
the cases shows a  wide lack  of uniform ity  in areas 
w here th e re  is no good reason  for varia tio n s  in the 
schedule and m anner of desegregation.®^ In  some 
cases there  has been a substan tia l tim e-lag  betw een 
th is C ourt’s opinions and the ir application  by the  dis­
trict courts.®* In certain cases—which we consider un­
necessary  to cite—there  has even been a m an ifest 
v a riance  betw een th is C ourt’s decision and a la te r 
d is tric t court decision. A num ber of d is tric t courts 
still m istaken ly  assum e th a t tran sfe rs  under Pupil 
P lacem en t Laws—superim posed on unconstitu tional 
in itia l assignm ent—satisfy  the req u irem en ts  of a  de­
segregation  plan. The lack of c lear and uniform  
s tan d a rd s  to govern  school boards has tended to put 
a prem ium  on delaying actions. In  sum , the lack  of 
uniform  standards has re ta rd ed  the developnaent of

(1956) , aff’d 242 F.2d 156 (1957), cert, den’d, 354 U.S. 921
(1957) ; 252 F.2d 253, cert, den’d 356 U.S. 960 (1958); 163 F. 
Supp. 701 (1958), aff’d, 268 F.2d 78 (1959); 187 F. Supp. 42 (3- 
judge 1960), motion to stay den’d, 364 U.S. 803 (1960), aff’d 
365 U.S. 569 (1961); 188 F. Supp. 916 (3-judge 1960), motion 
for stay denied, 364 U.S. 500 (1960), aff’d, 365 U.S. 569 (1961); 
190 F. Supp. 861 (3-judge 1960), aff’d 366 U.S. 212 (1961); 191 
F. Supp. 871 (3-judge 1961), aff’d 367 U.S. 908 (1961); 194 F. 
Supp. 182 (3-judge 1961), aff’d, 367 U.S. 907 (1961), 368 U.S. 11 
(1961); 204 F. Supp. 568 (1962); 205 F. Supp. 893 (1962), aff’d 
in part and rev’d in part, 308 F.2d 491 (1962); 230 F. Supp. 509 
(1963).
5- Of the 99 court-approved freedom of choice plans .in this 
circuit, 44 do not desegregate all grades by 1967; 78 fail to pro­
vide specific, non-racial criteria for denying choices; 79 fail to 
provide any start toward faculty desegregation; only 22 provide 
for transfers to teke courses not otherwise available; only 4 in­
clude the 8ingl§tcm transfer rule.

See footnote 39.



V. S., et al. V. J^ff. County Bd. of EdUc., et al. 37

local responsibility  for the adrh in istre tion  6f Schools 
w ithout reg a rd  to race or color. W hat w as tru e  of an  
earlie r A thens and an  ea rlie r Rom e is tru e  today: In  
Georgia, for exam ple, there  should not be one law  
for Athens and another law  for Rom e.

Before HEW  published its Guidelines, this Court 
had a lread y  estab lished  guidelines for school deseg­
regation: to encourage uniform ity  at the d is tric t 
court level and to conserve judicia l effort at both 
the d is tric t court and appellate  levels. We did so by 
m aking detailed  suggestions to the d is tric t courts. 
Lockett V.  Board of Education of Muscogee County, 
5 Cir. 1964, 342 F.2d 225; Bivens v. Board of Educa­
tion for Bihh County, 5 Cir. 1965, 242 F.2d 229; A rm ­
strong V.  Board of Education of B irm ingham , 5 Cir. 
1964, 333 F.2d 47; Davis v. Board of School Com mis­
sioners of Mobile County, 5 Cir. 1964, 333 F.2d 53; 
Stell V.  Savannah-Chatham County Board of Educa­
tion, 5 Cir. 1964, 333 F.2d 55; Gaines v. Dougherty 
County Board of Education, 5 Cir. 1964, 334 F.2d 983. 
In other a re a s  of the law  involving rec u rre n t p rob­
lem s of regional or national in terest, th is Court 
has also found guidelines advantageous. In  United 
States V.  Ward, 5 Cir. 1965, 347 F.2d 795, and United 
States V.  Palm er, 5 Cir. 1966, 356 F.2d 951, suits to 
enjoin re g is tra rs  of voters fro m  discrim inating  
against N egroes, we a ttached  identical proposed 
decrees for the guidance of district courts.®  ̂ See also

In Ward the Court said: “[Glood administration suggests 
that the proposed decree be indicated by an Appendix, not be­
cause of any apprehenmoh that the conscientious District Judge 
would hot faithfully impose every condition so obviously im­
plied, but rather because of factors bearing upon administration



38 U. S., et al. v. Jeff. County Bd. of Educ., et al.

Scott V. Walker, 5 Cir. 1966, 358 F.2d 561, one of a  
series  of cases on the exclusion of N egroes from  
ju ries.

F . We sum m arize  the C ourt’s policy as one of 
encouraging the m axim um  legally  perm issib le  cor­
re la tion  betw een judicial s tan d a rd s  for school deseg­
rega tion  and HEW  G uidelines. This policy m ay  be ap­
plied w ithout fed era l co u rts’ abdicating the ir p roper 
jud ic ia l function. The policy com plies w ith the Su­
p rem e C ourt’s increasing  em phasis on m ore speed 
and less deliberation in school desegregation.®® It is 
consistent w ith  the ju d ic ia ry ’s duty to the N ation to 
cooperate  w ith the two other coordinate b ranches of 
governm ent in carry ing  out the national policy ex­
p ressed  in the Civil R ights A ct of 1964

III.

The defendants contend that the G uidelines requ ire  
integration, not ju s t desegregation; th a t school boards 
have no affirm ative  duty to in teg ra te . They say  th a t

itself. It is not possible, or even desirable, of course to achieve 
absolute uniformity. But in this ever growing class of cases which 
have their genesis in unconstitutional lack of uniformity as be­
tween races, courts within this single circuit should achieve a rela­
tive uniformity without further delay.” 349 P.2d at 805.

“There has been entirely too much deliberation and not enough 
speed in enforcing the constitutional rights which we held in 
Brown v. Board of Education had been denied Prince Edward 
County Negro children.” Griffin v. County School Board of 
Prince Edward County, 1964, 377 U.S. 218, 229, 84 S.Ct. 1226, 
12 L.Ed.2d 256, 264. See also Rogers v. Paul and Bradley v. 
School Board of the City of Richmond, 1965, 382 U.S. 103, 86 
S.Ct. 224, 15 L.Ed.2d 187. “Brown never contemplated that the 
concept of ‘deliberate speed’ would countenance indefinite delay 
in elimination of racial barriers in schools. . . . ” (Goldberg, J.) 
Watson V. City of Memphis, 1963, 373 U.S. 526, 530, 83 S.Ct. 
1314, 1317, 10 L.Ed.2d 529, 534.



U. S., et al. V.  Jeff. County Bd. of Educ., et al. 39

in this re sp ec t the G uidelines are con trary  to the p ro ­
visions of the Civil R ights A ct of 1964 and to constitu­
tional in ten t expressed  in the Act. This argum ent 
rests on nothing that the United States Supreme 
Court held or said in Brown or in any other case. 
I t re s ts  on two glosses on Brown: the opinions in 
Briggs v. Elliott, E.D .S.C. 1955, 132 F . Supp. 776 and 
Bell V.  School City of Gary, N.D. Ind. 1963, 213 F. 
Supp. 819, aff’d, 7 Cir. 1963, 324 F.2d 209. Briggs, 
decided only six w eeks a fte r Brown II, is one of the 
earliest cases in th is field of law. The portion of the 
opinion m ost quoted is pure dictum . Briggs did not 
p a rap h rase  the  law  as the Suprem e Court s ta ted  it 
in Brown or as the law  m ust be s ta ted  today  in the 
light of Aaron v. Cooper, Rogers v. Paul and  Bradley 
V.  School Board. These and other- decisions com pel 
s ta tes in th is c ircu it to take  a ffirm ative  action  to r e ­
organize th e ir school system s by in teg ra ting  the  stu­
dents, facu lties, facilities, and activities. As for Bell, 
it is inapplicable to cases in th is circuit, a ll of which 
involve fo rm erly  de ju re  seg rega ted  schools. Al­
though the leg islative  h isto ry  of the s ta tu te  shows 
tha t the floor m an ag ers  for the Act and other m em ­
bers of the Senate and House cited and quoted these 
two opinions they  did so w ithin the context of the 
problem  of de facto segregation. A study of the 
Guidelines shows th a t the HEW  standards a re  w ithin 
the rationale of Brown and the congressional objec­
tives of the  Act.

A. Briggs, an  action  to desegregate  the  public 
schools in C larendon County, South C arolina, w as one



40 17. S., et al. v. Jeff. County Bd. of Educ., et al.

of th e  school cases consolidated w ith Brown v. 
B odtd  of Education of Topeka, Kansas. On rem and , 
a  d istinguished  court (P a rk e r  and  Dobie, C ircuit 
Judges, and  T im m erm an , D istric t Judge) fe lt th a t it 
w as im p o rtan t to  “ point out ex ac tly  w hat th e  Su­
prem e Court has decided and w hat it has not de­
c ided .” The C ourt sa id ;

“ I t  has no t decided th a t the  fed e ra l courts 
a re  to take over o r reg u la te  the public 
schools of the s ta tes . I t  h as  not decided th a t 
th e  s ta tes  m u st m ix persons of different 
ra c es  in  the  schools or m u st req u ire  th em  to 
a tten d  schools or m u st deprive th em  of the 
r ig h t of choosing the  schools they  attend . 
W hat it  has decided, and a ll th a t it h a s  de­
cided, is th a t  a state  m ay  not deny to  any 
person  on account of race  the  rig h t to a ttend  
any  school th a t it m ain ta ins. . . . The Con­
stitution, in other words, does not require 
integration. It m erely  forbids segregation.”
132 F . Supp. a t 777.

Ten y ears  la te r C larendon County schools w ere still 
to ta lly  segregated.®®

This Court and other courts, gratu itously  for the 
m ost p a rt, have often p a ra p h rase d  or quoted w ith 
approval the  Briggs dictum.®^ It is not surprising,

See Branson v. Board of Trustees of School District No. 1, 4 
Cir. 1962, 311 F.2d 107; Southern Education Reporting Service, 
Statistical Summary, Nov. 1964, p. 46.
S’' The Fifth Circuit cases are: Borders v. Rippy, 1957, 247 
F.2d 268, 271; Boson v. Rippy, 1960, 285 F.2d 43, 48; Lockett v. 
Board of Education of Muscogee County, 5 Cir. 1965, 342 F.2d 225; 
Avery v. Wichita Falls Independent School District, 1956, 241 F.2d 
230, 233; Stell v. Savannah-Chatham County Board of Education, 
1964, 333 F.2d 55, 59; Evers v. Jackson, 1964, 328 F.2d 408; cf.



U. S., et al. V. Jejf. County Bd. of Educ., et al. 41

therefore, th a t Briggs p rom pted  P upil P lacem en t 
Laws, the  m ost effective technique for perpetuating  
school segregation . And it is not surprising  th a t 
school officials—the Briggs d ictum  dinned into the ir 
ears  for a  decade—have not now faced  up to facu lty  
integration. However, as th is C ourt’s experience in 
handling school cases increased , the Court becam e 
aw are of the fru stra tin g  effects of Briggs. In  Single- 
ton I we re fe rre d  to the d ic tum  as “ inconsistent with 
Brown [II] and  the la te r  developm ent of decisional 
and sta tu to ry  law  in the a re a  of civil r ig h ts .” 348 F. 
2d a t 730 n.5. In  Singleton II we called  it an “ over­
sim plified” construction of Brown I. We added: “ The 
Constitution forbids unconstitu tional s ta te  action in 
the form  of seg rega ted  .facilities, including seg re­
gated public schools. School au thorities, therefore , 
are under the constitutional com pulsion of furnishing 
a single, in teg ra ted  school sy stem .” 355 F.2d a t 369.

Cohen v. Public Housing Administration, 1958, 257 F.2d 73 (public 
housing); City of Montgomery v. Gilmore, 1960, 277 P.2d 364 
(public parks). For a list of cases in other circuits see foot­
notes 10 and 11 in Blocker v. Board of Education of 
Manhasset, E.D.N.Y. 1964, 226 F. Supp. 208, 220. In Blocker Judge 
Zavitt notes that “the construction draws continuing sustenance 
through a process in which each case relies upon a preceding one; 
it would appear that the ultimate and solitary source is this 
dictum in Briggs v. Elliott.” 226 F. Supp. at 220.

In Borders v. Rippy, 5 Cir. 1957, 247 F.2d 268, the Court 
reversed the judgment of the district court dismissing the com­
plaint and directed the entry of a judgment enjoining the defend­
ants “from requiring segregation of the races in any school under 
their supervision”. On remand, the district court entered an order 
enjoining the defendants “from requiring or permitting segrega­
tion of the races in any school under their supervision”. On the 
second appeal, in Rippy v. Borders, 5 Cir. 1957, 250 F.2d 690, 692, 
the Court again reversed the district court, stating: “We have 
emphasized the words ‘or permitting segregation of the races’ 
in the district court’s order because that expression might in­
dicate a serious misconception of the applicable law and of the 
mandate of this Court. Our mandate (footnote 1, supra) had 
been carefully limited so as to direct the entry of a judgment 
restraining and enjoining the defendants ‘from requiring segrega-



42 U. S., et al. v. Jeff. County Bd. of Educ., et al.

O ther fed era l courts have d isapproved of the Briggs 
dictum.®^

tion of the races in any school under their supervision’ (emphasis 
supplied). Likewise in our opinion, we had pointed out that is 
only racially discriminatory segregation in the public schools which 
is forbidden by the Constitution.”

In Kemp v. Beasley the Eighth Circuit remarked, “The dictum 
in Briggs has not been followed or adopted by this Circuit and is 
logically inconsistent with Brown.” Blocker v. Board of Education 
of Manhasset, E.D.N.Y. 1964, 226 F.Supp. 208, makes a frontal 
attack on Briggs. In that case, which concerned segregation 
characterized as de jure, Judge Zavitt observed that even where 
the Briggs dictum has seemingly been adopted, “it appears to be 
in a state of diminishing force, if not outright erosion”, citing 
Dillard v. School Board of the City of Charlottesville, 
4 Cir. 1962, 308 F.2d 920, cert, denied, 374 U.S. 827 
(1963), and McCoy v. Greensboro City Board of Education, 4 
Cir. 1960, 283 F.2d 667. The Third Circuit, reversing a 
district court’s approval of a year-by-year plan, ignored Briggs: 
“if the plan as approved by the court below be not drastically 
modified, a large number of the Negro children of Delaware will 
be deprived of education in integrated schools, despite the fact 
that the Supreme Court has unqualifiedly declared integration to 
he their constitutional right.” (Emphasis added.) Evans v. 
Ennis, 3 Cir. 1960, 281 F.2d 385, 389, cert, den’d 364 U.S. 933. In 
Evans v. Ennis, only three school districts were involved. Never­
theless, the court required the district judge to order the State 
Board of Education and the State Superintendent of Delaware to 
prepare “a plan which will provide for the integration of all grades 
of the public school .system of Delaware.” “Eventually”, Judge 
Biggs said, “a wholly integrated school system will be effected for 
Delaware: ‘wholly integrated’ in the sense that all school children, 
whether white or Negro, . . . will attend schools without regard 
to race or color.” Sometimes a court’s action in regard to the 
school board’s affirmative duty has spoken louder than Briggs’s 
words. In Evans v. Buchanan, D.C. Del. 1962, 207 F. Supp. 820, 
although the court cited Briggs and stated that the Fourteenth 
Amendment “does not contemplate compelling action; rather it is a 
prohibition preventing the States from applying their laws un­
equally”, the court did compel the school boards to act. The 
Court found that the Negro school children who wished to attend 
integrated schools were attending an all-Negro school, with an 
all-Negro faculty, surrounded by white attendance area. On those 
bare facts, the Court found: “The . . . Board as promulgator of the 
plan and the State Board of Education as the party having the 
ultimate responsibility for administering a nondiscriminatory sys­
tem of public education should have the initial burden of coming 
forward since a presumption of unconstitutionality arises under 
this set of facts.” 207 F. Supp. at 825. (Emphasis 
added.) The facts were “highly probative” of intentional



U. S.y et al. V. Jeff. County Bd. of Educ., et al. 43

The Briggs d ictum  m ay  be explained as a  face t of 
the F o u rth  C ircu it’s now abandoned view th a t F o u r­
teenth  A m endm ent righ ts a re  exclusively individual 
rights and in school cases are to be asserted  individu­
ally a fte r eacii p lain tiff has exhausted  s ta te  adm in is­
trative remedies.®*’ The Court disallowed class suits 
because N egro students who had not asked  fo r tra n s ­
fers to w hite schools had not individually exhausted 
their rem edies and w ere therefore  not sim ilarly  s it­
uated w ith the plaintiffs. Thus in Carson v. Warlick, 
4 Cir. 1956, 238 F.2d 724, Judge John P a rk e r , for 
the Court, stated:

“ There is no question as to the rig h t of these 
[Negro] school children. . . . They a re  to 
be adm itted , how ever, as individuals, not as 
a class or group; and it  is as individuals th a t  
th e ir righ ts under the C onstitution a re  a s ­
serted . . . . [The] school board  m ust pass 
upon individual applications m ade individu­
ally to the board. . . . ” 238 F.2d a t 729.

In Covington v. Edwards, 4 Cir. 1959, 264 F.2d 780, 
783, the court com m ented th a t “ the County board  has 
taken no steps to put an end to the p lanned segre-

racial discrimination and the evidence of intent rested 
largely with the Board. The Board came forward and showed that 
its plan was based on such neutral factors as the safety of the 
children, facilities, location, and access roads. The court, however, 
held that the Board did not rebut the presumption by showing 
that the plan could be justified as rational and nondiscriminatory. 
The obviously sophisticated trial judge observed, “In effect, 
counsel is asking the States to intentionally gerrymander dis­
tricts which may be rational when viewed by acceptable, non- 
discriminatory criteria”. Id. at 824.
®® See U. S. Comm, on Civil Rights, Civil Rights U.S.A.—Public 
Schools, Southern States (1962), p. 7.



44 17. S., et al. i). Jeff. County Bd. of Educ., et al.

gation” , but still held for the board  for fa ilu re  of 
the p lain tiffs to exhaust th e ir rem ed ies and for filing 
the  suit as a class action. In  a la te r  opinion in  th is 
case, sub.nom . Jef fers v. Whitley, 309 F.2d 621, the 
Court found th a t the plain tiffs had failed  to estab lish  
that they  w ere “ denied any constitutional fig h t be­
cause of their race  or color” . The court observed,

“ It can fa irly  be said  th a t w hat the children 
and th e ir p a ren ts  a re  still seeking is only a 
desegregation  of the Conwell County School 
System  ra th e r  than a pro tection  of th e ir own 
righ ts. . . . ”

The F ourth  C ircuit abandoned th is view in Green 
V. School Board of the City of Roanoke, 4 Cir. 1962, 
304 F.2d 118, holding th a t since ad m in is tra tiv e  re m e ­
dies need not be exhausted, a class suit is proper. 
“ [It] would be a lm ost a cruel joke to say  th a t 
adm in is tra tiv e  rem ed ies m ust be exhausted  w hen it 
is known th a t such exhaustion of rem ed ies will not 
te rm in a te  the p a tte rn  of a rac ia l a ss ig n m en t.” Jack- 
son V. School Board of City of Lynchburg, W.D. 
Va. 1962, 201 F. Supp. 620. McNeese v. Board of Edu­
cation for School D istrict 187, 1963, 373 U. S. 668, 83 
S.Ct. 1433, 10 L .Ed.2d 622, put beyond debate  the need 
to exhaust rem ed ies and the righ t of N egro students 
to file a class action. See also Arm strong v. Board of 
Education of the City of Birm ingham , 5 Cir. 1963, 323
F.2d 333, cert, denied sub.nom. Gibson v. Harris, 376 
U.S. 905 (1964).



17. S., et al. V. Jejj. County Bd. of Educ., et al. 45

In  the §ense that an individual pupil’s rig h t upder 
the equal pro tection  clause is a “ personal and p re s ­
ep t” rig h t not to be d iscrim inated  against by being 
segregated,®" the  dictum is a cliche. The Fourteenth 
A piendm ent provides, “nor shall any s ta te  . . . deny 
to any person within its ju risd iction  the equal p ro ­
tection of the law s” . The dictumi m ay  also be defen­
sible, if the  Briggs court used the te rm  “ in teg ra tion” 
to m ean  an absolute com m and a t all costs th a t each  
and every  N egro child a ttend  a  rac ia lly  balanced  
school.®  ̂ But w hat is wrong about the  dictum is more 
im portan t th an  w hat is righ t about it. W hat is wrong 
about Briggs is th a t it d ra ins out of Brown th a t deci-

For example: . the essence of the constitutional right is
that it is a personal one. . . .  It is the individual who is 
entitled to the equal protection of the laws, and if he is denied 
by a common carrier, acting in the matter under the authority of 
a state law, a facility or convenience in the course of his journey 
which under substantially the same circumstances is furnished to 
another traveler, he may properly complain that his constitu­
tional privilege has been invaded”. McCabe v. Atchison, T. & S.F. 
Ry., 1914, 235 U. S. 151, 161-62, 35 S.Ct. 69, 59 L.Ed. 169.' The 
legislative history of the 14th Amendment provides no informa­
tion on this point. See Frank and Munro,  ̂ The Original Under­
standing of Equal Protection of the Laws, 50 Colum. L. Rev. 131 
(1950); Biekel, The Original Understanding and the Segregation 
Decision, 69 Harv. L. Rev. 1 (1955). But ‘‘the personal nature of 
the right to be free from discrimination was declared in order to 
make the existence of such right independent of the number of 
other members of the same racial group who were victimized by 
the discrimination. . . . ” Hartman, The Right to Equal Educa­
tional Opportunities as a Personal and Present Right, 9 Wayne 
L. Rev. 424, 427 (1963).

What is meant by the statement of “no duty to integrate” is 
that a school board “does not have to completely alter bound­
aries and to insure that every school district is mixed, even 
though some students will have a great distance to travel . . . 
[E]ven though the state is not required to integrate fully every 
school and child, this does not mean that the state may not have 
certain responsibilities to children of a minority race while educat­
ing them, the failure to perform which may be imconstitutional”. 
Sedler, School Segregation in the North and West: Legal Aspects, 
7 St. Louis U.L.J. 228, 251 (1963). See also the discussion of 
Barksdale v. Springfield School Comm., at 65-67, infra.



46 U. S., et al. v. Jeff. County Bd. of Educ., et al.

Sion’s significance as a c lass action  to secure  equal 
educational opportunities for N egroes by com pelling 
the  states to reorganize their public school systems.®^ 
All four of the orig inal School Segregation cases 
w ere class actions and described as such in the 
opinions. 347 U. S. a t 455.

We do not m inim ize the im portance of the F o u r­
teen th  A m endm ent righ ts of an individual, bu t there

Rule 23a, Fed. R. Civ. P., before the recent amendments, was 
unclear as to whether a favorable decree applies to members of 
the class who do not join in the suit. Compare 3 Moore, Federal 
Practice 3434 (2d Ed.) with Chafee, Some Problems in Equity 
199-295 (1950). “In dealing with [segregation] cases, courts have 
largely disregarded Moore’s classifications, and have indicated 
that an injunction would run to the benefit of absentees.” De­
velopments in the Law—Multiparty Litigation in the Federal 
Courts, 71 Harv. L. Rev. 874, 935 (1958). Citing Brown II, 349
U. S. at 300-301 dictum; Brown I, 347 U. S. at 495 (dictum); 
Orleans Parish School Board v. Bush, 5 Cir. 1957, 242 F.2d 156, 
165-66 (dictum); Browder v. Gayle, M.D. Ala. 1956, 142 F. Supp. 
707, 711, 714, aff’d per curiam, 352 U. S. 903 (1956); Frasier
V. Board of Trustees of University of North Carolina, M.D.N.C. 
1955, 134 F. Supp. 589, aff’d per curiam, 350 U. S. 979 (1956).

“Violations of the Fourteenth Amendment are of course vio­
lations of individual or personal rights, but where they are com­
mitted . . . generally because of race, they are no less entitled to 
be made the subject of class actions and class adjudica­
tions under Rule 23. . . . than are other several rights.” 
Kansas City v. Williams, 8 Cir. 1953, 205 F.2d 47, 
52, cert, denied 346 U. S. 826 (1953). See also Holmes
V. City of Atlanta, N. D. Ga. 1954, 124 F. Supp. 290,
aff’d 223 F.2d 93, judgment vacated and remanded for a broader 
decree in conformity with Mayor and City of Baltimore v. Daw­
son, 350 U. S. 977 (1955); Jeffers v. Whitley, 4 Cir. 1962, 309 
F.2d 621; Brunson v. Board of Trustees of School District No. 1, 
4 Cir. 1962, 311 F.2d 107, cert, denied 373 U. S. 933 (1963).

See Comment, The Class Action Device in Antisegregation 
Cases, 20 U. Chi. L. Rev. 577 (1953). See also Comment, 
Multiparty Litigation in the Federal Courts, 71 Harv. 
L. Rev. 874, 935; McKay, “With All Deliberate Speed”—A Study 
of School Desegregation, 31 N.Y.U.L. Rev. 991, 1084-86 (1956); 
Class Actions—A Study of Group Interest Litigation, 1 Race Rel. 
Rep. 991 (1956); Meador, The Constitution and the Assignment of 
Pupils to Public Schools, 45 Va. L. Rev. 517, 523 (1959).



U. S., et al. V. Jejf. County Bd. of Educ., et al. 47

was m ore a t  issue in Brown th an  the  con troversy  be­
tw een certa in  schools and certa in  children. Briggs 
overlooks the fac t th a t N egroes collectively a re  
harm ed  w hen the sta te , by law  or custom , opera tes 
seg regated  schools or a school system  w ith uncor­
rec ted  effects of segregation.

D enial of access to the dom inant culture, lack  of 
opportunity in any m eaningful w ay to p a rtic ip a te  in 
political and  other public activ ities, the stigm a of 
apartheid  condem ned in the T h irteen th  A m endm ent 
are concom itants of the dual educational system . The 
unm alleable fac t transcending  in im portance  the 
harm  to individual Negro children is that the sepa­
ra te  school system  w as an in teg ra l e lem ent in the 
Southern S tate’s general p rog ram  to restrict, N egroes 
as a class from  p artic ipa tion  in the life of the com ­
m unity, the a ffa irs  of the S tate, and the m ainstream  
of American life; Negroes must keep the ir place.®®

“ [SJegregation is a group phenomenon. Although 
the effects of d iscrim ination  a re  fe lt by each m em ­
ber of the group, any d iscrim inatory  p rac tice  is 
directed  against the group as a unit and against in­
dividuals only as the ir connection w ith the group in-

In United States v. Louisiana, E.D. La. 1963, 225 F. Supp. 
353, aff’d 380 U.S. 145, the court traced the history of voting 
in Louisiana to show that the black codes, the grandfather 
clause, the white primary, literacy-tests, and other devices were 
all members of a seemingly endless series designed to bar access 
of Negroes to the dominant culture and to political power. The 
same situation exists with regard to denial of equal educational 
opportunities. So-called freedom of choice plans, as thus far 
utilized, follow pupil placement laws, which followed the 
“separate-but-equal” dodge in the educational series of devices 
to limit access of Negroes to the polity.



48 U. S., et al. v. Jeff. County Bd. of Educ., et clI.

volves the antigroup sanction. . . . [As] a group- 
w rong . . . the m ode of red ress  m u st be group-wide 
to be adequate.”®* Adequate redress therefore calls 
for m uch  m ore th an  allowing a  few N egro children 
to attend  fo rm erly  w hite schools; it calls for liquida­
tion of the s ta te ’s system, of de ju re  school seg reg a­
tion and  the organized undoing of the effects of p ast 
segregation. “ Beyond [a child’s] personal righ t 
[under the F o u rteen th  A m endm ent] how ever, or 
p erhaps as an aspec t of it, the low er fed e ra l courts 
seem  to be recognizing a righ t in N egro school chil­
dren, enforceable a t leas t by a class action, to have 
the school system  administered free of an enforced 
policy of segregation  irrespective  of w hether any 
colored pupil has been denied adm ission  to any 
particular school on the  ground of his race.”®®

It is undoubtedly true  th a t the in tangible inade­
quacies of a segregated  education h a rm  the individ­
ual, bu t the S uprem e Court treated  these inade­
quacies as inheren t a ttr ib u te s  which preva il un iver­
sally.®® For example, the  Court said;

w Note, 20 U. Chi. L. Rev. 577 (1953).
Meador, The Constitution and the Assignment of Pupils to 

Public Schools, 45 Va. L. Rev. 517, 523 (1959).
In Brown the unanimous court, through Chief Justice Warren, 

cited the Slaughter House Cases, 1872, 83 U.S. (16 Wall.) 36, 71 
in which the Court stated: . . one pervading purpose found
in [all of these amendments!, lying at the foundation of each, 
and without which none of them would have been even suggested; 
we mean the freedom of the slave race, the security and firm 
establishment of that freedom, and the protection of the newly- 
made freeman and citizen from the oppressions of those who had 
formerly exercised unlimited dominion over him. It is true that 
only the Fifteenth Amendment, in terms, mentions the negro by 
speaking of his color and his slavery. But it is just as true that 
each of the other articles was addressed to the grievances of that 
race, and designed to remedy them as the fifteenth.” The Court 

also quoted the following passage from Strauder v. West Vir-



U. S., et al. V. Jeff. County Bd. of Educ., et al. 49

[Education] is the very  foundation of good 
citizenship. Today it is a p rinc ipal in strum ent 
in awakening the child to cultural values,, in 
p rep arin g  h im  for la te r  professional tra in ing , 
and in helping him  to adjust norm ally to his 
environment. In  these days, it is doubtful 
th a t any child m ay  reasonab ly  be expected 
to succeed if he is denied the opportunity  of 
an education. Such an opportunity  w here the 
s ta te  has undertaken  to provide it, is a  righ t 
w hich m ust be m ade availab le  to all on equal 
te rm s  347 U.S. a t 493. (E m phasis added.)

Again, in -a  c ritica l passage;

To sep a ra te  [children] from  others of sim ­
ilar age and qualifications solely because of 
th e ir race  generates  a feeling, of in feriority  
as to th e ir sta tu s in the com m unity th a t m ay 
affect their h earts  and m ind in a wUy un­
likely ever to be undone, 347 U.S.. a t 494.

With this p red ica te  it is not surprising  th a t Brown 
II, a y ear a fte r Brown I w as decided, going beyond 
recognition of the “personal” righ t in the individual 
plaintiffs, fashioned a rem edy  appropria te  for the 
class. The Court im posed on the s ta tes  the duty of 
furnishing an  in tegrated  school system , th a t is, the

ginia, 1879, 100 U.S. 303, 307: “The words of the amendment 
• . . contain a necessary implication of a positive immunity, or 
right, most valuable to the colored race—the right to exemption 
from unfriendly legislation against them distinctively as colored; 
exemption from legal discriminations, implying inferiority in civil 
society, lessening the security of their enjoyment of the rights 
which others enjoy, and discriminations which are steps toward 
reducing them to the condition of a subject race.”



50 U. S., et al. v. Jeff. County Bd. of Educ., et al.

duty of “ effectuat[ing] a transition  to a racially  
nondiscriminatory school system.”̂ '̂  (Emphasis 
added.) In  addition, Brown II subordinated  the 
“present” rig h t in the individual plain tiffs to the 
rig h t of N egroes as a class to a  un itary , nonracial 
system—some time in the future.®*

The cen tral vice in a fo rm erly  de ju re  segregated  
public school system  is ap artheid  by dual zoning: in 
the p a s t by law , the use of one set of a ttendance 
zones for w hite children and ano ther for N egro chil­
dren, and  the com pulsory in itial assignm ent of a  Ne­
gro to the N egro school in his zone. D ual zoning per-

67 “[T]he courts will require that the defendants make a prompt 
and reasonable start toward full compliance with our May 17, 
1954, ruling. Once such a start has been made, the courts may 
find that additional time is necessary to carry out the ruling in 
an effective manner. . . .  To that end the courts may consider 
problems related to administration, arising from the physical 
condition of the school plant, the school transportation system, 
personnel, revision of school districts and attendance areas into 
compact units to achieve a system of determining admission to the 
public schools on a nonracial basis, and revision of local laws 
and regulations which may be necessary in solving the foregoing 
problems.” Brown v. Board of Education, 349 U.S. 294, 300-01. 
(Emphasis added.)
6® “K it is the Negro population as a minority group which 
is entitled to attend public facilities, then the objective of any 
corrective plan would be to bring about complete integration 
of all Negro children in public education.” Hartman, The Right 
to Equal Educational Opportunities as a Personal and Present 
Right, 9 Wayne L. Rev. 424, 441 (1963). Cf. Greenberg, Race 
Relations and Group Interests in the Law, 13 Rutgers L. Rev. 
503, 506 (1959). There would be no necessary conflict between 
the individual’s “personal and present” right and the class right 
if the Brown, Cooper v. Aaron, Bradley, and Rogers v. Paul 
decisions were read as recognizing the immediate right of any 
Negro plaintiff to transfer to a white school, over and above 
the state’s duty to reorganize its school system. Thus in Watson 
V. City of Memphis, 1963, 373 U.S. 526, 533, 83 S.Ct. 1314, 
10 L.Ed.2d 529, the Supreme Court stated that the rights asserted 
in that case “are, like all such rights, present rights . . . war­
rants for the here and now and, unless there is an overwhelming­
ly compelling reason they are to be promptly fulfilled.”



V. S., et at  V. Jeff. County Bd. of Educ., et al. 51

sists in the dontinuing operation Of NOgfO Schools 
identified as Negro, h isto rically  and  because the  fac ­
ulty and students a re  N egroes. A cceptance of an  in­
dividual’s application  for tran sfe r, the tefo re , m ay  sa t­
isfy th a t p a rtic u la r  individual; it will not sa tisfy  the 
class. The class is all Negro children in a  school dis­
trict attending , by definition, inherently  unequal 
schools and w earing  the badge of slavery  separa tion  
displays. R elief to the class requ ires  school boards 
to desegregate  the school from  which a tran sfe ree  
comes as well as the school to w hich he goes. I t 
requires conversion of the dual zones into a  single 
system. F acu lties, facilities, and activ ities as well 
as student bodies m ust be in tegrated . No m a t­
ter what view is taken  of the ra tionale  in B t o w t i  

I, Brown II envisaged the rem edy following 
the wrong, the s ta te ’s correcting  its d iscrim ina­
tion against N egroes as a class, through sepa­
rate schools, by in itiating  and operating a  uni­
tary  in teg ra ted  school system . The g radual tra n s i­
tion the Suprem e Court authorized was to allow the 
states tim e to solve the adm in istra tive  problem s in­
herent in th a t change-over; No delay would have been 
necessary if the right at issue in Brown had been 
only the right of individual Negro plaintiffs to ad­
mission to a white school. Moreover, the delay of 
one year in deciding Brown II and the gradual 
remedy Brown II fashioned can be justified only on 
the ground that the “personal and present” right of 
the individual plaintiffs m ust yield to the overrid­
ing right of Negroes as a class to a completely in­
tegrated public education.



52 17. S., et al. v. Jeff. County Bd. of Educ., et al.

A lthough psychological h a rm  and lack  of education­
a l opportunities to N egroes m ay  exist w hether 
caused by de facto or de ju re  segregation, a s ta te  
policy of ap arth e id  ag g rav a te s  the h a rm . Thus, 
Chief Ju stice  W arren  quoted, w ith approval the  finding 
of the  d is tric t court in the Kansas case: “ The im pact 
[of the  de trim en ta l effect of segregation  upon N e­
gro children] is g rea te r when it has the sanction of 
the law ; for the policy of sep ara tin g  the  ra c e  is usual- 
ly in te rp re ted  as denoting the inferio rity  of the Negro 
group. A sense of inferio rity  affects the m otivation 
of a child to learn . Segregation  w ith the sanction  of 
law , therefore , has a tendency to [retard] the edu­
cational and m ental developm ent of N egro children 
and to deprive them  of som e of the benefits they  
would receive in a racial[ly] integrated school sys­
te m .” (E m phasis  added.) Brown I, 347 U S . a t 494. 
The S tate, therefo re , should be under a  duty to take 
w hatever corrective action is n ecessa ry  to undo the 
harm  it created and fostered.*® “State authorities

®® “Indeed, the requirement of affirmative action lies at the 
very heart of Brown; seventeen states had to abandon racial 
criteria and affirmatively reorganize school attendance plans.” 
Fiss, Racial Imbalance in the Public Schools: The Constitutional 
Concepts, 78 Harv. L.Rev. 564, 612 (1965). See also Gillmor and 
Gosule, Duty to Integrate Public Schools ?. Some Judicial Responses 
and a Statute, 46 Bost. U. L. Rev. 45, 62-3 (1966). “State support 
of segregated schools through any arrangement, management, 
funds, or property cannot be squared with the equal protection 
clause.” Cooper v. Aaron, 1958, 358 U.S. 1, 19, 78 S.Ct. 1401, 
3 L.Ed.2d 5. “ . . . Most of the major decisions of the Warren 
Court under the equal protection clause impose affirmative obli­
gations upon the states. Earlier cases sustaining a constitutional 
claim were typically mandates directing the government to refrain 
from a particular form of regulation. Now the emphasis is "upon 
measures the states must adopt in carrying on their activities 
and steps they must take [even] to offset disabilities not of their 
creation”. Cox, Foreword: Constitutional Adjudication and the 
Promotion of Human Rights, 80 Harv. L. Rev. 91, 93 (1966).



U. S., et al. V. Jejj. County Bd. of Educ., et al. 53

were thus duty bound to devote every  effort tow ard  
initiating desegregation and  bringing about the  elim i­
nation of ra c ia l d iscrim ination  in the public school 
system .” (E m phasis  added.) Cooper v. Aaron, -358 
U.S. a t 7. Some m ay  doubt w hether to lerance  of de 
facto segregation  is an  unsubtle fo rm  of s ta te  action. 
There can  be no doubt as to the n a tu re  and effect 
of segregation  th a t cam e into being and p ers ists  be­
cause of s ta te  action as p a r t of the longstanding pat­
tern  to narrow  the access of N egroes to political 
power and to the life of the com m unity.

In  a school system  the persons capable of giving 
class re lief a re  of course its ad m in is tra to rs . I t  is 
they who a re  under the affirm ative duty to take  cor­
rective action  tow ard  the goal of one in teg ra ted  sys­
tem. As Judges Sobeloff and Bell said in Bradley v. 
School Board of the City of Richmond, 4 Cir. 1965, 
345 F.2d 310, 322;

“ . . . the initiative in achieving desegrega­
tion of the public schools m ust come from  the 
school authorities. . . . A ffirm ative action 
means more than telling those who have long 
been deprived of freedom  of educational op­
portunity. ‘You now have a choice.’ . . .  I t  
is now 1965 and high tim e for the court to in­
sist th a t good fa ith  com pliance requ ires  ad­
m in is tra to rs  of schools to proceed actively  
with their non transferab le  duty to undo the 
segregation  w hich both by action and inac­
tion has been  persisten tly  perpetuated. (E m ­
phasis added.)



54 U. et al. V. J^ff. County Bd. of Bduc-, et al.

In  l^Qrtficross v. Board of EduoQtion of the City of 
Memphis, 5 Cir. 1062, 302 F.24 818, the defend­
an ts  assa rted , as the defendants a sse rt here, 
th a t continued segregation  is “ volun tary  on the 
p a r t  of N egro pupils and p a ren ts  because they 
do not avail them selves of the tran sfe r prov isions.” 
The C ourt held : “ The P upil A ssignm ent Law . . 
will not serve as a p lan  to convert a b irac ia l system  
into a  non rac ia l system  . . . N egro children cannot 
be req u ired  to apply for th a t to w hich they are en­
titled  as a m a tte r of right. . . . The burden rests 
with the school authorities to initiate desegregation 
. . . [The Board] should subm it some realistic 
plan for the organization of their schools on a non- 
racial basis” . (E m phasis  added.) In Dowell v. School 
Bogrd of Oklahoma City Public Schools, W. D. Okla. 
1965, 244 F. Supp. 971, 975, 978-79, the School 
B oard in O klahom a City had  “ superim posed” 
a geographic zone plan on “ a lread y  existing 
residen tia l seg regation  in itia ted  by law .” The 
court held; A school board  m ust “ adopt policies 
th a t would increase  the percen tage  of pupils who a re  
obtaining a  deseg regated  education. . . .[The] fa il­
u re  to adopt an affirm ative  policy is itself a policy, 
adherence to which, a t leas t in th is case, has slowed 
up . . . the desegregation  process. . . . [W jhere the 
cessation of assignm ent and transfer policies based 
solely on race is insufficient to bring about more 
than token change in the segregated system , the 
Board m ust devise affirm ative action reasonably 
purposed to effectuate the desegregation goal. This 
conclusion m akes no new  law .”



U. S., et al. V. Jejf. County Bd. of Educ., et al. 55

The position we take  in these  consolidated cases is 
that the only adequate redress for a previously overt 
system-wide policy of segregation directed against 
Negroes as a collective entity is a system -wide pol­
icy of integration. In Singleton I the Court touched 
on the s ta te ’s duty to in teg ra te ;

“ In  re tro spect, the second Brow n opinion 
clearly  im poses on public school au thorities 
the duty to provide an  in teg ra ted  school sys­
tem . Judge P a rk e r ’s well-known dictum  
should be laid to rest. I t  is inconsisten t w ith 
Brown and the la ter developm ent of deci­
sional and statu to ry  law in the a re a  of civil 
rig h ts .” 348 F.2d a t 730 n.5.

Three y ears  before Singleton I this Court analyzed 
the problem  in Potts v. Flax, 5 Cir. 1963, 313 F.2d 
284. In  th a t case the Court re jec ted  a school board ’s 
contention th a t a suit b rought by two Negro p a ren ts  
was not a class action even though the record  con­
tained testim ony that one paren t w as bringing the 
action only for his own children and not for o ther N e­
gro children. The B oard contended th a t a cou rt order 
was not needed because it w as willing to adm it any 
Negro child to a w hite school on dem and of any  N e­
gro child. Judge Brown, speaking for the Court, said:

“ P roperly  construed the purpose of the suit 
was not to achieve specific assignm ent of spe­
cific children to any specific g rade or school.
The peculiar righ ts of specific individuals 
w ere not in controversy. I t w as d irec ted  a t 
the system -wide policy of ra c ia l segrega-



56 U. S., et al. v. Jeff. County Bd. of Educ., et al.

tion. I t  sought ob literation  of th a t policy of 
system-wide racial discrimination. . .

E ven  before Potts v. Flax, in Bush v. Orleans Parish 
School Board, 5 Cir. 1962, 308 F.2d 492, 499, the  Court 
sa id :

“ In  th is aspect of [initial] pupil assignm ent 
[to seg regated  schools] the fac ts  p resen t 
a  c lear case w here th e re  is not only dep riv a ­
tion of the  righ ts of the  individuals directly  
concerned bu t deprivation  of the righ ts  of 
N egro school children as a class. As a class, 
and irrespective  of any individual’s rig h t to 
be ad m itted  on a non-racial basis to a  p a r ­
ticu la r school, N egro children  in the public 
schools have a constitu tional rig h t to have 
the  public school system  adm in istered  free  
from  an  adm in is tra tiv e  policy of seg rega­
tion.’”^̂

0̂ The Court also said: “There is at least considerable doubt 
that relief confined to individual specified Negro children either 
could be granted or, if granted, could be so limited in its opera­
tive effect. By the nature of the controversy, the attack is on 
the unconstitutional practice of racial discrimination. Once that 
is found to exist, the Court must order that it be discontinued. 
Such a decree, of course, might name the successful plaintiff as 
the party not to be discriminated against. But that decree may 
not—either expressly or impliedly—affirmatively authorize con­
tinued discrimination by reason of race against others. Cf. Shel­
ley V. Kramer, 1948, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161. 
Moreover, to require a school system to admit the specific suc­
cessful plaintiff Negro child while others, having no such pro­
tection, were required to attend schools in a. racially segregated 
system, would be for the court to contribute actively to the 
class discrimination proscribed by Bush v. Orleans Parish School 
Board, 5 Cir. 1962, 308 F.2d 491, 499, on rehearing 308 F.2d 503; 
see also Ross v. Dyer, 5 Cir. 1962, 312 F.2d 191.” Potts v. Flax, 
313 F.2d at 289.

The Court also said: “Geographical districts based on race 
are a parish-wide system of unconstitutional classification. Of 
course, it is undoubtedy true that Brown v. Board of Education



U. S., et al. V.  Jeff. County Bd. of Educ., et al. 57

See also Ross v. Dyer, 5 Cir. 1963, 312 F .2d 191, 194-95; 
Augustus V.  Board of Public Instruction of Escam bia  
County, 5 Cir. 1963, 306 F.2d 862, 869; Holland v. 
Board of Public Instruction of Palm  Beach County, 
5 Cir. 1958, 258 F.2d 730; Orleans Parish School Board 
V. Bush, 5 Cir. 1957, 242 F.2d 156.

Brown w as an  inevitable, p red ic tab le  extension of 
Sweat V.  Painter, 1950, 339 U.S. 629, 70 S.Ct. 848, 94 
L.Ed. 1114, and M cLaurin v. Oklahoma State Regents, 
1950, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149.^  ̂ Those 
cases involved separa te  but equal or iden tical g rad ­
uate facilities. F acto rs “ incapab le  of objective m eas­
u rem ent” b u t c rucial to a good g raduate  education 
were not availab le  to seg rega ted  N egroes. These w ere 
the intangible fac to rs  that p reven ted  the N egro g ra d ­
uate students from  having norm al contacts and a s ­
sociation w tith  w hite students. A partheid  m ade the 
two groups unequal. In  Brown I these sam e intangi-

dealt with only an individual child’s right to be admitted to a 
particular school on a non-racial basis. And it is also true, as 
the second Brown opinion pointed out, that courts must bear in 
mind the ‘personal interest’ of the plaintiffs. In this sense, the 
Brown cases held that the law requires non-discrimination as to 
the individual, not integration. But when a statute has a state­
wide discriminatory effect or v;hen a School Board maintains a 
parish-wide discriminatory policy or system, the discrimination is 
against Negroes as a class. Here, for example, it is the Orleans 
Parish dual system of segregated school districts, affecting all 
school children in the Parish by race, that, first, was a _ dis­
criminatory classification and, second, established the predicate 
making it possible for the Pupil Placement Act to fulfill its be- 
hind-the-face function of preserving segregation.” Bush v. Or­
leans Parish School Board, 308 P.2d at 499.

See, for example, Ransmier, The Fourteenth Amendment and 
the ‘‘Separate but Equal” Doctrine, 50 Mich. L. Rev. 203, 238-40 
(1951); Roche, Education, Segregation and the Supreme Court— 
A Political Analysis, 99 U. Pa. L. Rev. 949 (1951); Taylor, The 
Demise of Race Restrictions in Graduate Education, 1 Duke B. 
Jour. 135 (1951); Note, 26 St. John’s L. Rev. 123 (1951).



58 17. S., et al. V. Jeff. County Bd. of Educ., et al.

bles w ere found “ to apply w ith added force to chil­
d ren  in grade and high schools” ; educational oppor­
tun ity  in public schools m ust be m ade availab le  to all 
on equal te rm s.

The Brown I finding th a t seg rega ted  schooling 
causes psychological h a rm  and denies equal educa­
tional opportunities should not be construed  as the 
sole basis for the decision.'^® So construed, the  way 
would be open for proponents of the status quo to a t­
tem p t to show, on the fac ts , th a t in teg ra tion  m ay be 
ha rm fu l or the lesser of two evils. Indeed tha t n a r­
row view  of Brown I has led severa l d is tric t courts

Professor Edmund Cahn characterized as a “myth” the notion 
that the Brown decision was “sociological” rather than “legal”. 
Cahn, Jurisprudence, 31 N.Y.U. L. Rev. 182 (1956); Cahn, Juris­
prudence, 30 N.Y.U. L. Rev. 150 (1955). “I would not have the 
constitutional rights of Negroes—or of other Americans—rest on 
any such flimsy foundation as some of the scientific demonstra­
tions in these records. . . . Heretofore, no government official 
has contended that he could deny equal protection with impunity 
unless the complaining parties offered competent proof that they 
would sustain or had sustained some permanent (psychological or 
other kind of) damage. The right to equal protection has not 
been subjected to any such proviso.” Cahn, Jurisprudence, 30 
N.Y.U. L. Rev. 150, 157, 158, 168 (1955). Professor Black has 
said: “The charge that it is ‘sociological’ is either a truism 
or a canard—a truism if it means that the Court, precisely like 
the Plessy court, and like innumerable other courts facing in­
numerable other issues of law, had to resolve and did resolve 
a question about social fact; a canard if it means that anything 
like principal reliance was placed on the formally ‘scientific’ 
authorities, which are relegated to a footnote and treated as 
merely corroboratory of common sense.” Black, The Lawfulness 
of the Segregation Decision, 69 Yale L.J. 421, 430 n.25 (1960).

Acceptance of these views is not inconsistent with the con­
tinued vitality of the psychological findings in Brown I. Indeed, 
several studies have reinforced those findings. The most recent is 
the United States Office of Education’s “Equality of Educational 
Opportunity”, the two-year study authorized by section 402 of 
the Civil Rights Act of 1964 to investigate “the lack of availability 
of equal educational opportunities for individuals by reason of 
race, color, religion, or national origin in public educational 
institutions . . . . ” 42 U.S.C. § 2000c—1.



U. S., et al. V.  Jejf. County Bd. of Educ., et al. 59

into orror.'^* We think tha t the judgment “mu?t h^ve 
rested on the view th a t rac ia l segregation  is, in p rin ­
ciple, a denial of equality  to the m inority  agajn st 
whom it is directed.” ®̂ The relief Brown II requires 
rests on recognition of the princip le th a t s ta te-im ­
posed separa tion  by race  is an invidious c lassifica­
tion and for th a t reason alone is unconstitutional^® 
Classifications based  upon race a re  especially  sus­
pect, since they  are “odius to a free people” In short, 
compulsory separa tion , apartheid, is per se d iscrim ­
inatory ag a in st N egroes.

A num ber of post-Broian per cu riam  decisions not 
involving education m ake it c lear th a t the broad  
dimensions of the rationale are not c ircum scribed  
by the necessity  of showing harm ful inequality  to the

See Stell v. Savannah-Chatham County Board of Education, 
S.D.Ga. 1963, 220 F. Supp. 667, rev’d 333 F.2d 55; 255 P.Supp. 84
(1965) , appeal pending; 225 F.Supp. 88 (1966), appeal pending. 
See also Jackson Municipal Separate School District v. Evers, 5 
Cir. 1966, 357 F.2d 653.

Wechsler, Toward Neutral Principles of Constitutional Law, 
73 Harv. L. Rev. 1, 33 (1959). Professor Wechsler concluded: 
“For me, assuming equal facilities, the question posed by state- 
enforced segregation is not one of discrimination at all. Its 
human and constitutional dimensions lie entirely elsewhere, in 
the denial by the state of freedom to associate . . . ” The article 
started a vigorous debate. See authorities collected in Emmerson 
and Huber, Political and Civil Rights 1625-1629 (1967). See also 
Kaplan, Equality in an Unequal World, 61 NW U.L. Rev. 363
(1966) .

For discussion of the inherently—arbitrary—classification 
principle against the principle of equality of educational op­
portunity, see Fiss, Racial Imbalance in the Public Schools: The 
Constitutional Concept, 78 Harv. L. Rev. 564, 590-98 (1965).

See Poliak, Racial Discrimination and Judicial Integrity: A 
Reply to Professor Wechsler, 108 U. Pa. L. Rev. 1 (1959); Kaplan, 
Segregation Litigation and the Schools—Part I, The New Rochelle 
Experience 58 NW U. L. Rev. 1, 21 (1964).

Korematsu v. United States, 1944, 323 U. S. 214, 216, 65 S. Ct. 
193, 89 L. Bd. 194.



60 17. S., et al. v. Jeff. County Bd. of Educ., et al.

individual. In  these cases N egroes w ere sep ara ted  
from  w hites but w ere afforded equal or iden tical fa­
cilities. Relying on Brown, the Court o rdered  in teg ra ­
tion of the  facility or activity.^® See also Anderson v. 
Martin, 1964, 375 U.S. 399, 402, 84 S.Ct. 454, 11 L.Ed.2d 
430, 433, holding th a t com pulsory  designation of a  can­
d id a te ’s ra c e  on the ballot is unlawful. The designation 
p laced  “ the pow er of the S tate  behind a ra c ia l classi­
fication th a t induces rac ia l p re jud ice  a t the polls.”

Bolling v. Sharpe, 1954, 347 U.S. 497, 74 S.Ct. 693, 98 
L. Ed. 884, provides fu rth e r evidence of the b read th  
of the rig h t recognized in Brown. T here, because the 
case concerned the D is tric t of Colum bia, the Court 
had  to rely on the due process clause of the Fifth  
A m endm ent instead of the equal p ro tection  clause 
of the F o u rteen th  A m endm ent. Going beyond any 
question of psychological h a rm  or of the denial of 
equal educational opportunities to the individual, the 
Court concluded th a t ra c ia l classifications in public 
education a re  so unreasonab le  and a rb itra ry  as to 
violate due process:’̂®

E.g., Schiro v. Bynum, 375 U.S. 395 (1964) (municipal audi­
toriums); Johnson v. Virginia, 373 U.S. 61 (1963) (court-rooms); 
State Athletic Comm’n v. Dorsey, 395 U.S. 533 (1959) (athletic 
contests); New Orleans City Park Improvement Ass’n v. De- 
tiege, 358 U.S. 54 (1958) (public parks and golf courses); Gayle 
V. Browder, 352 U.S. 903 (intrastate busses); Holmes v. City 
of Atlanta, 350 U.S. 879 (1955) (municipal golf courses);
Mayor of Baltimore v. Dawson, 350 U.S. 877 (1955) (public 
beaches and bathhouses). Muir v. Louisville Park Theatrical 
Ass’n, 347 U.S. 971 (1954) (municipal amphitheater).
For lower court decisions to the same effect, see cases collected 
in Emmerson and Huber, Political and Civil Rights in the United 
States 1678 (1967).

See Cahn, Jurisprudence, 30 N.Y.U.L. Rev. 150, 155 (1955). 
Cf. Antieau, Equal Protection Outside the Clause, 40 Cal. L. Rev. 
362, 364 (1954); Poliak, Racial Discrimination and Judicial In­
tegrity, 108 U. Pa. L. Rev. 1, 27-28 (1959).



U. S., et al. V. Jeff. County Bd. of Educ., et al. 61

“ L iberty  under law  extends to the full range 
of conduct which the individual is free to p u r­
sue, and it cannot be re s tric ted  except for a 
p roper governm ental objective. Segregation 
in public education is not reasonably related 
to any proper governm ental objective, and 
thus it im poses on Negro children  . . .  a bu r­
den th a t constitu tes an a rb itra ry  deprivation 
of th e ir  lib e rty .” 347 U. S. a t 498. (E m phasis 
added.)

As in the ju ry  exclusion cases, w hen the c lassifica­
tion is not “ reasonab ly  re la ted  to any proper govern­
mental ob jective” equal protection and due process 
merge.

If Brown has only the narrow  m eaning Briggs 
gives it, the system  of state-sanctioned segregated  
schools will continue indefinitely with o n ly -a  little 
token desegregation . W hite school boards, alm ost 
universal in th is circuit, will be able to continue 
to say th a t the ir constitutional duty -ends w hen they 
provide re lief to the p a rticu la r Negro children who, 
as individuals, claim  their personal righ t to be ad ­
mitted to white schools. If the Briggs thinking should 
prevail, the dual system  will, for all p rac tica l p u r­
poses', be m ain tained: white school officials in m ost 
key positions a t the s ta te  and county levels; Negro 
faculties in N egro schools, w hite faculties in white 
schools; no w hite children or only a few w hite chil­
dren of way-out p a ren ts  in Negro schools; a few Ne­
groes in som e w hite schools; at best, tokenism  in ce r­
tain school d istricts.



62 U. S., et Cd. V.  J&ff. County Bd. of Edu6., et dL

Brown’s b road  m eaning, its im p o rtan t me&ning, 
is its rev ita lization  of the national constitu tional fight 
the T hirteenth , F ourteen th , and F ifteen th  A m end­
m ents c rea ted  in favor of N egroes. This is the right 
of N egroes to national citizenship, their rig h t as a 
class to sh are  the privileges and im m unities only 
w hite citizens had enjoyed as a class. Brown  erased 
Dred Scott, used the F ourteen th  A m endm ent to 
b rea th e  life into the T hirteenth , and w rote the D ecla­
ra tio n  of Independence into the Constitution. Freed- 
m en  a re  free  m en. They a re  c rea ted  as equal as 
a re  all o ther A m erican  citizens and w ith the sam e 
unalienable righ ts to life, liberty , and the  p u rsu it of 
happiness. No longer “ beings of an  inferior ra c e ”— 
the  Dred Scott a rtic le  of fa ith—N egroes too a re  part 
of “ the people of the U nited S ta te s” .

A p rim ary  responsibility  of federa l courts is to pro­
tec t nationally  created  constitu tional righ ts. A duty 
of the States is to give effect to such righ ts—here, by 
providing equal educational opportunities free  of any 
com pulsion th a t N egroes w ear a badge of slavery. 
The S tates owe this duty to Negroes, not ju s t because 
every  citizen is entitled  to be free  from, a rb itra ry  
d iscrim ination  as a heritage  of the com m on law  or be­
cause every  citizen m ay look to his s ta te  for equal 
protection of the righ ts a s ta te  g ran ts  its citizens. As 
Ju stice  H arlan  clearly  saw  in the Civil Rights Cases 
(1883), 109 U. S. 3, 3 S.Ct. 18, 27 L .Ed. 835, the War­
tim e Am endm ents created an affirm ative duty thut 
the States eradicate all relics, “badges and indicia of 
slavery” lest Negroes as a race sink hack into “sec­
ond-class” citizenship.



U. S., et al. V. Jejf. County Bd. of Educ., et al. 63

B. The factual situation  dealt w ith in Bell v. School 
City of Gary, N. D. Ind. 1963, 213 F. Supp. 819, a f f d  
7 Cir. 1963, 324 F.2d 209, cert, den’d 377 U. S. 924 (1964) 
is not the situation  the Suprem e Court had  before it 
in Brown or th a t we deal w ith in this circuit. Brown 
dealt w ith state-im posed segregation  based  on dual 
attendance zones. Bell involved nonracially  m otivated  
de facto seg regation  in a school system  based on the 
neighborhood single zone system . In  Bell the p la in ­
tiffs alleged th a t the G ary  School B oard had  delib­
erately g e rry m an d ered  school attendance zones to 
achieve a seg rega ted  school system  in violation of 
its “ duty to provide and m ain tain  a racially  in te­
grated sy stem ” . On the showing th a t the students 
were assigned and boundary lines d raw n based upon 
reasonable nonracial c rite ria , the court held th a t the 
school board  did not deliberately seg rega te  the 
races; the racial balance was a ttribu tab le  to geo­
graphic and housing patterns. The court analyzed 
the problem  in te rm s  of s ta te  action ra th e r than  in 
term s of the N egroes’ righ t to equal educational op­
portunities. Finding no sta te  action the court con­
cluded th a t Brown did not apply. In effect, the court 
held th a t de facto seg regated  neighborhood schools 
must be accepted. At any ra te , the court said, 
“ states do not have an affirm ative duty to provide 
an in teg ra ted  education” . The Seventh C ircuit af­
firmed,

We m ust assum e th a t Congress w as well aware 
of the fact  th a t Bell w as concerned w ith de facto seg­
regated neighborhood schools—only. N otw ithstand­
ing the broad language of the opinion re la ting  to the



64 17. S., et al. v. Jeff. County Bd. of Educ., et al.

lack of a duty to in teg ra te , language la te r  frequently  
quoted by Senator H um phrey and o thers in the de­
ba tes  on the Civil R ights Act of 1964, C ongress went 
only so fa r  as to prohibit c ross-d istric t bussing and 
cross-d istric t assignm ent of students.

The fac ts, as found by the Court in Bell, favored 
the G ary  School Board. O ther courts, on very  sim i­
la r fac ts, have decided that th e re  a re  alternatives 
to acceptance of the status quo.®<* A commentator on 
the sub ject has fa irly  sum m ed up the cases: “ Using 
Brown  as a governing principle, ra c ia l im balance 
caused by rac ia lly  m otivated  conduct is c learly  in­
valid. W hen rac ia l im balance resu lts  fortuitously, 
there is a split of authority.”®̂

80 “The central constitutional fact is the inadequacy of segre­
gated education. . . . The educational system that is thus com­
pulsory and public afforded must deal with the inadequacy arising 
from adventitious segregation; it cannot accept and indurate seg­
regation on the ground that it is not coerced or planned but 
accepted.” Branche v. Board of Education, 204 F.Supp. at 153. 
See Wright, Public School Desegregation: Legal Remedies for De 
Facto Segregation, 40 N.Y.U.L. Rev. 285, 301 (1965); Fiss, 78 
Harv. L. Rev. 564, 609 (1965) (a relative approach); Sedler, 
School Segregation in the North and West: Legal Aspects, 7 St. 
Louis L. Rev. 228, 233-239, 275 (1963); Maslow, De Facto Public 
School Segregation, 6 Vill. L. Rev. 353 (1961).

King, Racial Imbalance in the Public Schools, 18 Vand. L. 
Rev. 1290, 1337 (1965). Webb v. Board of Education of Chi­
cago, N.D.Ill. 1963, 223 F.Supp. 466; Deal v. Cincinnati Board of 
Education, S.D.Ohio 1965, 244 F.Supp. 572; Lynch v. Kenston 
School District, N.D.Ohio 1964, 229 F.Supp. 740; Downs v. Board 
of Education, 10 Cir. 1965, 336 F.2d 988, cert, denied
380 U.S. 914, 85 S.Ct. 898, 13 L.Ed. 2d 800; and
Sealy v. Department of Public Instruction of Pennsylvania, 
3 Cir. 1958, 252 F.2d 898, are more or less in agree­
ment with Bell. These cases usually rely on the school 
board’s good faith, lack of racial motivation, and the propriety of 
considering transportation, geography, safety, access roads, and 
other neutral criteria as rational bases for school districting. 
Taking the contrary position are: Booker v. Board of Education 
of Plainfield, 1965, 45 N.J. 161, 212 A.2d 1; Branche v. Hempstead, 
E.D.N.Y. 1962, 204 F.Supp. 150; Blocker v. Board of Education 
of Manhasset, E.D.N.Y. 1964, 226 F. Supp. 208, 229 F.Supp. 709; 
Barksdale v. Springfield School Committee, D.Mass. 1965, 237



U. S., et al. V. Jeff. County Bd. of Educ., et al. 65

Barksdale v. Springfield School Com mittee, D. 
Mass. 1965, 237 F. Supp. 543, sim ilar on the fac ts  to 
Bell, holds squarely  co n tra ry  to Bell:

“ The defendants argue, nevertheless, th a t 
there  is no constitutional m andate  to rem edy' 
racial im balance. Bell v. School City of Gary,
324 F .2d 209 (7th Cir. 1963). But th a t 
is not the question. The question is whether 
there is a constitutional duty to provide 
equal educational opportunities for all chil­
dren within the system . While Brown an­
sw ered th a t question affirm atively  in the con­
tex t of coerced segregation, the constitutional 
fact—the inadequacy of seg regated  educa­
tion—is the sam e in this case, and I so find.
. . . This is not to im ply that the neighbor­
hood school policy per se is unconstitution­
al, but that it m ust be abandoned or modi­
fied when it results in segregation in fact.

P.Supp. 543, vacated for other reasons 1 Cir. 1965, 348 F.2d 261; 
Jackson v. Pasadena City School District, 1962, 59 Cal. 2d 876, 31 
Cal. Kept. 606, 382 P.2d 878. School authorities may act to 
offset racial imbalance: See Addabbo v. Donovan, 256 N.Y.S. 2d 
178, aff’d 261 N.Y.S.2d 68, 209 N.E.2d 112 (1965), cert, den’d 382 
U.S. 905 (1965). See also Balaban v. Rubin, 248 N.Y.S.2d 574, aff’d 
250 N.Y.2d 281, 199 N.E.2d 375 (1964), cert, den’d 379 U.S. 881
(1964) (Board may “take into consideration the ethnic composi­
tion of the children” before drawing the attendance lines for a 
new school); Olson v. Board of Education, E.D.N.Y. 1966, 250 P. 
Supp. 1000 (the Princeton plan—see note 124, infra); 
Offerman v. Nitkowski, W.D. N.Y. 1965, 248 F.Supp. 
129; Guida v. Board of Education of New Haven, 26 
Conn. Supp. 121, 213 A.2d 843 (1965); Strippoli v. 
Bichal, 250 N.Y.S.2d 969, aff’d N.Y.S.2d 84, 209 N.E.2d 123
(1965) (bussing); Morean v. Board of Education, 42 N.J. 237, 200 
A.2d 97 (1965); Vetere v. Allen, 258 N.Y. 77, 206 N.E. 2d 174 
(1965) (redistricting of attendance zone approved because “racial 
balance is essential to a sound education”) ; Van Blerkom v. Dono­
van, 1965, 15 N.Y.2d 399, 259 N.Y.S.2d 825, 207 N.E.2d 503.



66 U. S., et al. v. Jeff. County Bd. of Educ., et al.

. . .  I cannot accep t the view  in Bell th a t 
only fo rced  segregation is incom patib le w ith 
the  requ irem en ts  of the F o u rteen th  A m end­
m ent, nor do I find m eaningful the sta te­
m ent that ‘[t]he Constitution . . . does not 
require integration. It m erely forbids dis­
crimination.’ 324 F.2d at 213. . . . ^ This court 
recognizes and re ite ra te s  th a t the problem  
of rac ia l concentration is an  educational, as 
well a s  constitutional, p roblem  and, th e re ­
fore, o rders the defendants to p re sen t a p lan  
no la te r  than A pril 30, 1965, to eliminate to 
the fu llest extent possible rac ia l concen tra ­
tion in its e lem en tary  and jun ior high schools 
w ithin the fram ew ork  of effective education­
al procedures, as guaran teed  by the equal 
protection clause of the F o u rteen th  A m end­
m en t to the C onstitution of the U nited 
S ta tes .” (E m phasis  added.)

“ In  short, Barksdale  [does not analyze Brown] in 
te rm s of p rop rie ty  of school board  action, bu t pro­
ceeds in te rm s  of a rig h t on the p a r t  of N egro students 
to  an  equal educational opportunity , w hich in  light 
of the  ruling in Brown th a t separa te  schools a re  in­
heren tly  unequal, m ust perforce be a  rig h t to an in­
tegrated educational setting.”®̂ On appeal, the First 
C ircuit accep ted  the d is tric t co u rt’s findings of fact 
b u t vaca ted  the o rder w ith directions to dism iss With­
out p re jud ice  because the school board, on its own
82 Gillmor and Gosule, Duty to Integrate Public Schools? Some 
Judicial Responses and a Statute, 46 Best. U. L. Rev. 45 57
(1966).



17. S., et al. V.  Jeff. County Bd. of Educ., et al. 67

initiative, had tak en  action iden tical w ith the court- 
ordered action. 348 F.2d 261. The Court noted a  dif­
ference betw een “ the seem ing abso lu tism ” of the 
opinion and the less sweeping order “ to elim inate 
[segregation] to the fullest ex ten t possible . . . w ith­
in the fram ew ork  of effective educational proce­
dures”.®® Taking both opinions together, they recog­
nize th a t “ the s ta te  would not be p e rm itted  to ignore 
the problem  of de facto segregation. The holding in 
Brown, unexplained by its underlying reasoning, re ­
quires no m ore than  the decision in Bell, but when 
illum inated by the reasoning, it p e rm its  the resu lt 
in Barksdale and may require that result.”®* At the 
very least, as the Barksdale court saw  it, there  is a 
duty to in teg ra te  in the sense th a t in tegra tion  is an 
educational goal to be given a high, high prio rity  
among the various considerations involved in the 
proper adm in istra tion  of a system  beset w i th . de 
facto seg regated  schools.

The First Circuit construed the court’s order. as not calling 
for “an absolute right in the plaintiffs to have what the court 
found to be ‘tantamount to segregation’ removed at all costs.” 
At the same time, the Court said: “Rather we take it to deter­
mine that . . . racial imbalance disadvantages Negro students 
and impairs their educational opportunities as compared with 
other races to such a degree that they have a right to insist that 
the defendants consider their special problems along with all other 
relevant factors when making relevant decisions.” Springfield 
School Committee v. Barksdale, 1965, 348 F.2d 261, 264.

Gillmor and Gosule supra note 82, at 64. Compare the state­
ment of policy in the Massachusetts statute. An Act Providing for 
the Elimination of Racial Imbalance in the Public Schools (Mass. 
Acts. 1965, ch. 651):

It is hereby declared to be the policy of the commonwealth 
to encourage all school committees to adopt as educational 
objectives the promotion of racial balance and the correction 
of existing racial imbalance in the public schools. The pre­
vention or elimination of racial imbalance shall be an ob­
jective in all decisions involving the drawing or altering 
of school attendance lines and the selection of new school sites. 

The statute was enacted a month after Barksdale was decided.



68 U. S., et al. v. Jeff. County Bd. of Educ., et al.

Although Brown  points tow ard  the existence of a 
duty to  integrate de facto segregated schools,®® the hold­
ing in Brown, unlike the holding in Bell but like the 
holdings in this c ircu it, occurred  w ithin the context 
of state-coerced  segregation. The sim ila rity  of pseudo 
de facto segregation in the South to ac tu a l de facto 
segregation  in the N orth is m ore ap p aren t than  real. 
H ere school boards, utilizing the dual zoning system , 
assigned  Negro teach ers  to N egro schools and se­
lected  Negro neighborhoods as suitable a reas  in which 
to locate Negro schools. Of course the concentration 
of N egroes increased  in the neighborhood of the 
school. Cause and effect cam e together. In  this cir­
cuit, therefo re , the location of N egro schools with 
N egro facu lties in Negro neighborhoods and white 
schools in white neighborhoods cannot be described 
as an  unfortunate fo rtu ity : It cam e into existence as 
s ta te  action  and continues to ex ist as rac ia l gerry ­
mandering, made possible by the dual system.*® Segre­
gation resu lting  from  racially  m otivated  gerrym an-

“Some of the Supreme Court’s language in Brown can apply 
to this type of segregation as well as to that before the Court, 
since this type of imbalance may also ‘generate a feeling of 
inferiority as to [the Negro children’s] status in the community 
that may affect their hearts and minds in a way unlikely ever 
to be undone.’ Thus, if one believes that the basis of the 
Brown decision was the Court’s finding that separate schools 
were unconstitutional simply because they bred a feeling of in­
feriority in the Negro, one must also believe that the neighbor­
hood school must also be unconstitutional if it breeds the same 
feeling of inferiority.” Kaplan, Segregation Litigation and the 
Schools—Part 1, The New Rochelle Experience 58 NW U. L. Rev. 
1, 21 (1964). “Necessarily implied in [Brown’s] . . . proscription 
of segregated education was the positive duty of eliminating it.” 
Taylor v. Board of Education of the City of New Rochelle, 
S.D.N.Y. 1961, 191 F. Supp. 181, 193, aff’d 294 F.2d 36, cert, denied 
368 U.S. 940.

See Clemons v. Board of Education of Hillsboro, 6 Cir. 
1956, 228 F.2d 853, cert, den’d 350 U.S. 1000 (1956). Cf. G o m il l io n  
V . Lightfoot, 1960, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110.



U. S., et al. V. Jeff. County Bd. of Educ., et al. 69

dering is properly  ch arac te rized  as “ de ju re ” seg re ­
gation. See Taylor v. Board of Education of the City 
of New Rochelle, S.D.N.Y. 1961, 191 F. Supp. 181.'^ 
The courts have had the pow er to deal w ith th is situ ­
ation since Brown I. In Holland v. Board of Public In­
struction of Palm Beach County, 5 Cir. 1958, 258 F.2d 730, 
although there was. no evidence of gerrymandering as 
such, the court found th a t the board  “ m ain ta ined  and 
enforced” a  com pletely seg rega ted  system  by using 
the neighborhood plan to take advan tage of rac ia l 
residential p a tte rn s. See also Evans v. Buchanan, 
D.Del. 1962, 207 F. Supp. 820, w here, in spite of a gen­
uflexion in the direction of Briggs, the Court found 
that there  was gerrym andering  of school d istric ts  
superimposed on a gve-Brown policy of segregation.

C. The defendants e rr  in their contention that the 
HEW and the courts cannot take race  into considera­
tion in establishing standards for desegregation 
“The Constitution is not this color-blind.”®*

The Constitution is both color blind arid color con­
scious. To avoid conflict w ith the equal protection

Modified plan approved, 195 F.Supp. 231, aff’d 2 Cir. 1961, 
294 P.2d 36, cert, den’d 368 U.S.-940 (1961). See Kaplan, Segre­
gation Litigation and the Schools—Part 1; The New Rochelle 
Experience, 58 NW.U. L. Rev. 1 (1964). Jackson v.
School Board of the City of Lynchburg, W.D. Va. 1962, 
203 PSupp 701; Dowell v. School Board of Oklahoma City 
Public Schools, W.D. Okla. 1965, 244 F.Supp. 971; and Swann 
V. Charlotte-Mecklenburg Board of Education, W.D.N.C. 1965, 243 
F.Supp. 667, followed Taijlor on the unconstitutionality of racial 
gerrymandering. See also Jackson v. Pasadena City Schom Dis- 
trict, 1963, 59 Cal.2d 876, 382 P.2d 878; Clemons v Board of Edu­
cation of Hillsboro, 6 Cir. 1956, 228 853, cert, den d
350 U.S. 106 (1956); Fuller v. Volk, 3 Cir. 1965, 351 H2d 323. 
®® Taylor v. Board of Education of the City of New Rochelle, 
S.D.N.Y. 1961, 191 F.Supp. 181, 196, af f d  294 F.2d 36 (Kauf­
man, J.).



70 U. S., et al. v. Jeff. County Bd. of Educ., &t al.

clause, a classification th a t denies a benefit, causes 
h a rm , or im poses a burden m ust not be based  on race . 
In  th a t sense, the C onstitution is color blind. B ut the 
C onstitution is color conscious to p rev en t d iscrim ­
ination being perpetuated  and to undo the effects of 
p a s t d iscrim ination. The crite rion  is the re levancy  
of color to a leg itim ate  governm ental purpose. For 
exam ple, ju ry  venires m ust rep resen t a cross-section 
of the com m unity. Strauder v. W est Virginia, 1880, 
100 U.S. 303, 25 L .Ed. 664. The ju ry  com m issioners 
therefo re  m u st have a “ conscious aw areness of race  
in extinguishing rac ia l d iscrim ination  in ju ry  se rv ­
ice” . Brooks V .  Beta, 5 Cir. 1966,, 366 F.2d 1. S im ilar­
ly, in voter reg istration  cases we have used the 
“ freezing p rincip le” to justify  enjoining the use of 
a constitutional statu te  w here, in effect, the sta tu te  
would perpetuate  p ast ra c ia l d iscrim ination  against 
N egroes. United States v. Louisiana, E .D . La. 1963, 
225 F.Supp. 353, a ff’d 1965, 380 U.S. 145, 85 S.Ct. 817, 
13 L .E d .2d 817. “ [I]t is un realistic  to suppose tha t 
the evils of decades of flag ran t race discrim ination 
can be overcom e by purging reg is tra tio n  rolls of white 
voters. . . . [UJnless there  is som e appropria te  way 
to equalize the p resen t w ith the past, the injunctive 
prohibitions even in the m ost stringen t, em phatic, 
m andatory  te rm s prohibiting d iscrim ination  in the 
future, continues for m any y ears  a s tru c tu re  com ­
m itting  effectual political power to the a lread y  reg is­
te red  w hites while excluding N egroes from  this vital 
activ ity  of citizenship .” United States v. Ward, 5 Cir. 
1965, 349 F.2d 795, 802. “ An appropria te  rem edy  . . . 
should undo the resu lts of past d iscrim ination  as well



17. S., et al. V. Jeff. County Bd. of Educ., et al. 71

as p rev en t fu tu re  inequality  of tre a tm e n t.” United 
States V. Duke, 5 Cir. 1964, 332 F.2d 759, 768. If the 
Constitution w ere  absolutely color-blind, considera­
tion of race  in the census and in adoption proceedings 
would be unconstitutional.

H ere race is relevant,®® because the governmental 
purpose is to  offer N egroes equal educational oppor­
tunities. The m eans to that end, such as d isestab ­
lishing segregation  am ong students, d istributing  
the b e tte r teach ers  equitably, equalizing facilities, 
selecting ap p rop ria te  locations for schools, and avoid­
ing reseg reg a tio n  m ust necessarily  be based  on race. 
School officials have to know the racial composition 
of the ir school populations and the ra c ia l d is trib u ­
tion w ithin the school d istrict. The Courts and  HEW  
cannot m easure  officials’ good fa ith  or p rog ress w ith­
out taking race  into account. “ W hen rac ia l im balance 
infects a public school system , there  is sim ply no way 
to allev iate  it w ithout consideration of race. . . . 
There is no constitu tional rig h t to have an inequality

89 “The justification for the school board’s incorporation of 
racial distinctions in its correctional scheme is that race is a 
relevant characteristic, given the school hoard’s purpose, which is 
to avoid psychological injury to the Negro child, break down 
social barriers, and mitigate the academic inadequacy of the im­
balanced schools. Of course, it might be argued that many of the 
evils the school board attempts to eliminate when it takes correc­
tional steps are not attributable to the race of the individuals 
within the imbalanced school, but instead are attributable to their 
social class. Yet, certain of these evils are uniquely related to the 
fact that the imbalance is a racial one; namely, those attributable 
to the personal impact of the imbalance on the Negro. Moreover, 
most Negroes in the ghetto, and hence attending an imbalanced 
school, are members of the lowest economic class, and thus the 
board’s remedial measures will tend to cure the social imbalance 
as well.” Fiss, Racial Imbalance in the Public Schools: The 
Constitutional Concepts, 78 Harv. L. Rev. 564, 577-78 (1965).



72 U. S., et al. v. Jeff. County Bd. of Educ., et al.

perpetuated.”®" Judge Sobeloffs answer in Wanner v.
County School Board of Arlington County, 4 Cir. 1966,
357 F .2d 452, 454-55, is our answ er in th is case:

“ If a  school b o ard  is constitu tionally  fo r­
bidden to institu te  a  sy stem  of rac ia l seg re­
gation by  the use of artificia l boundary  lines, 
it is likew ise forbidden to p e rp e tu a te  a system  
th a t  has been  so institu ted . I t  would be stu lti­
fying to hold th a t a  board m ay  not m ove to 
undo a rran g em en ts  artificia lly  contrived  to 
effect or m ain ta in  segregation , on the  ground 
th a t th is in terference  w ith  the s ta tu s  quo 
would involve ‘consideration of race .’ W hen 
school au thorities, recognizing the  h istoric  
fa c t th a t existing conditions a re  b ased  on a 
design to  seg rega te  the races , a c t to undo 
these  illegal conditions—especially  condi­
tions th a t have been jud ic ia lly  condem ned— 
th e ir effort is not to be fru stra ted  on the 
ground th a t race  is not a perm issib le  con­
sideration. This is not the  ‘consideration  of 
race ’ w hich the Constitution discountenances.
. . . T here  is no legally  p ro tec ted  vested  in­
te re s t in segregation . If there  w ere, then 
Brown v. B oard of E ducation  and the num er­
ous decisions based  on th a t case would be 
pointless. Courts will not say  in one b rea th  
th a t public school system s m ay not p ractice  
segregation , and in the next th a t they  m ay 
do nothing to elim inate  i t .”

90 Wright, Public School Desegregation: Legal Remedies for De
Facto Segregation, 16 West. Res. L. Rev. 478, 489 (1965).



U. S., et al. V.  Jeff. County Bd. of Educ., et al. 73

D. U nder Briggs’s blessing, school boards th rough­
out this c ircu it firs t declined to tak e  any a ffirm ative  
action th a t m igh t be considered a move tow ard  in­
tegration. Later, they em braced  the Pupil P lacem ent 
Laws as likely to lead to no m ore th an  a little  token 
desegregation. Now they tu rn  to freedom  of choice 
plans supervised by the d is tric t courts. As the de­
fendants construe and adm in ister these p lans, w ith­
out the aid  of HEW  stan d ard s  th e re  is little  pros­
pect of the plans’ ever undoing past discrimination 
or of com ing close to the goal of equal educational 
opportunities. M oreover, freedom  of choice, as now 
adm instered, necessarily  prom otes resegregation. 
The only relief approaching adequacy is the conver­
sion of the still-functioning dual system  to a un itary , 
non-racial system —lock, stock, and barre l.

If this process be “ in tegration” according- to the 
1955 Briggs court, so be it. In  1966 th is rem edy  is the 
relief com m anded by Brown, the Constitution, the 
Past, the P resen t, and the wavy fofe-im age of the 
Future.

IV.

We tu rn  now to the specific provisions of the Civil 
Rights' Act on which the defendants rely  to show tha t 
HEW violates the Congressional intent. These p ro ­
visions a re  the am endm ents to Title IV and VI added 
in the Senate. The legislative h istory  of these am end-



74 U. S., et al. v. Jeff. County Bd. of Educ., et al.

m ents is sparse and less au thorita tive  th an  usual be­
cause of the lack  of com m ittee  repo rts  on the 
am ended version  of the  bill.

A. Section 401(b) defines desegregation :

“ ‘D esegregation’ m eans the assignm ent 
of students tO' public schools and w ithin such 
schools w ithout reg a rd  to th e ir race , color, 
religion, or national origin, bu t ‘deseg rega­
tion ’ shall not m ean  the assignm ent of stu ­
dents to public schools in o rder to overcom e 
rac ia l im b a lan ce .”

The a ffirm ative  portion of this definition, down to 
the “ b u t” clause, describes the assignm ent provi­
sion necessary  in a p lan for conversion of a de jure  
dual system  to a un itary , in teg ra ted  system . The 
negative portion, starting  w ith “ b u t” , excludes as­
signm ent to overcom e rac ial im balance, th a t is, acts 
to overcom e de facto  segregation . As used in the 
Act, therefore , “ desegregation” re fe rs  only to the 
d isestab lishm ent of segregation  in de ju re  segre­
gated schools. E ven if a b roader m eaning should be 
given to “ assignm ent . . .  to  overcom e rac ial im ­
b a lan ce” , Section 401 would not m ean  th a t such as­
signm ents a re  unlawful:

“ The in ten t of the s ta tu te  is th a t no funds and 
no techn ica l assis tance  will be given by the 
U nited S tates C om m issioner of E ducation  
w ith respec t to p lans for the assignm ent of 
students to public schools in o rder to over-



U. S., et al. V.  Jeff. County Bd. of Educ., et al. 75

come rac ia l im balance. The s ta tu te  m ay  not 
be in te rp re ted  to m ean  th a t such assignm ent 
is illegal or th a t reasonab le  in teg ra tion  ef­
forts are arbitrary or unlawful.”®̂

The prohibition against assignm ent of studen ts to 
overcome racial im balance w as added as an am end­
m ent during the  debates in the House to achieve the 
same resu lt as the anti-bussing provision in  section 
407. Some of the difficulty in understanding the  Act 
and its leg islative h istory  a rises  from  the s ta tu te ’s 
use of the undefined te rm  “ racial im balance” . I t  is 
clear how ever from  the hearings and debates that 
Congress equated  the te rm , as do the com m entato rs, 
with “ de facto segregation” th a t is, non-raciaUy 
m otivated segregation  in a school system  based  on 
a single neighborhood school for all children in a de­
finable area.®2 Thus, Congressman William Cramer

Addabbo v. Donovan, 22 App. Div.2d 383, 256 N.Y.S.2d 178, 
184, (2d Dept. 1965), aff’d, 16 N.Y.2d 619, 261 N.Y.S.2d 68, 209 
N.B.2d 112 (1965), cert, denied, 382 U.S. 905 (1965).
82 For example, “Racial imbalance” and “de facto segregation’ 
are “used synonymously . . . [to] refer to a situation where a 
school is predominantly composed of Negro students not as a 
result of state action but rather as the end product of segregated 
housing and adherence to the neighborhood school plan. Gillmor 
and Gosule, 46 Boston U. L. Rev. 45, 46 (1966). The term de 
facto segregation” has become accepted as denoting non-racially 
motivated separation of the races as opposed to de jure se^e- 
gation” denoting deliberate separation of the races by law. Since 
segregation is unconstitutional, each is a contradiction iii terms. 
One student of the problem has pointed out, “The term de facto 
segregation makes the racially imbalanced school appear . . . 
[to be] the Northern counterpart of segregated education under 
Jim Crow laws . . . .  As such the term distorts reality and 
paralyzes thought. [Racial] imbalance is frequently labeled de 
facto’ segregation to suggest that the requisite governmental 
involvement cannot be found.” Fiss, Racial Imbalance 
Schools: The Constitutional Concepts, 78 Harv. L. Rev. 564, 566, 584 
(1965). Another has said, “As a more accurate term, racial im-



76 U. S., et al. v. Jeff. County Bd. of Educ., et al.

who' offered the am endm ent, w as concerned that the 
bill as originally  proposed m igh t authorize the gov­
ernm ent to requ ire  bussing to overcom e de facto  seg­
regation. In  explaining the am endm ent, he said:

“ In  the  hearings before the com m ittee I 
raised  questions on ‘rac ia l im b a lan ce’ and 
in the sub-com m ittee we had  lengthy d iscus­
sions in reference  to having these w ords 
stricken  in the title , as it then  consisted, and 
to s trike  out the words ‘racial im balance’ p ro­
posed by the administration, f  The purpose is to 
prevent any semblance of congressional ac­
ceptance or approval of the concept of ‘de 
facto’ segregation  or to include in the defini­
tion of ‘desegregation’ any balancing of school 
attendance by moving students across school 
district lines to level off percentages where 
one race outweighs another.”

The neighborhood school system  is rooted deeply 
in American culture.®^ W hether its continued use is

balance will be used to denote fortuitous racial separation in the 
public schools”. King, Racial Imbalance in the Public Schools: 
Constitutional Dimensions and Judicial Response, 18 Vand. L. 
Rev. 1290, 1291 (1965).

“De facto segregation has become the short way of describing 
the existing situation in northern cities. . . .  a school system 
which is marked by a very high proportion of Negroes in some 
of its schools, and few or none in others, but in which this 
separation has taken place without the compulsion of a state law 
or officially announced policy requiring that Negro and white 
children be placed in separate schools.” Hyman and Newhouse, 
Desegregation of the Schools: The Present Legal Situation, 14 
Buff. L. Rev. 208, 221 (1964). See also Carter, De Facto Segre­
gation, 16 West. Res. L. Rev. 502, 503 (1965).
9® The rationale of the neighborhood school system is that the 
school serves as the educational, recreational, and cultural center 
of the community. See Hansen, The Role of Educators, 34 Notre 
Dame L. Rev. 652, 654 (1959). Proponents of the view that 
neighborhood schools may become so racially imbalanced as to



U. S., et al. V.  Jeff. County Bd. of Educ., et al. 77

constitutional w hen it leads to grossly im balanced  
schools is a question som e day to be answ ered  by the 
Supreme Court, but th a t question is not p re sen t in any 
of the cases before this Court. As noted in the previous 
section of this opinion, we have m any  instances of a 
heavy concentration  of Negroes or w hites in  certa in  
areas, but alw ays th a t type of im balance has been 
superim posed on to ta l school separa tion . And alw ays 
the separation  originally w as rac ia lly  m otivated  and 
sanctioned by law  in a system  based  on two schools 
within a  neighborhood or overlapping neighborhoods, 
each school serving a different race . The situations 
have som e sim ilarity  bu t they have d ifferent origins, 
create d ifferent problem s, and requ ire  different cor­
rective action.®*

In the 1964 Act (and again in 1966 during consider­
ation of am endm ents to the E lem en tary  and Secon­
dary E ducation  Act of 1965) Congress, w ithin the con-

require affirmative corrective action point out: “The modern-day 
neighborhood school cannot he equated with the common school 
of yesteryear—the latter constitutes America’s ideal of a demo­
cratic institution—a single structure serving a heterogeneous 
community in which children of varied racial, cultural, religious, 
and socio-economic backgrounds were taught together—the pro­
verbial melting pot. Because of rigid racial and socio-economic 
stratification, ethnic and class similarity has become the most 
salient present-day neighborhood characteristic, particularly in ur­
ban areas. The neighborhood school, which encompasses a homo­
geneous racial and socio-economic grouping, as is true today, is the 
very antithesis of the common school heritage.” Carter, De Facto 
School Segregation: An Examination of the Legal and Constitu­
tional Questions Presented, 16 West. Res. L. Rev. 502, 507 (1965). 
See also Sedler, School Segregation in the North and West: Legal 
Aspects, 7 St. Louis U. L. J. 228, 252-56 (1963).

For some idea of the number and complexity of the adminis­
trative problems school officials face in dealing with de facto 
segregation, see Kaplan, Segregation Litigation and the Schools— 
Part II: The General Northern Problem, 58 NW. U. L. Rev. 157, 
182-186 (1963). Professor Kaplan quotes at length excerpts from 
the testimony in Bell.



78 U. S., et al. v . Je/f. County Bd. of Educ., et al.

tex t of debates on aid to de facto  seg rega ted  schools 
declined to decide ju s t w hat should be done about 
imbalanced neighborhood schools.®̂ ®- The legislative 
solution, if there  is one to this problem , will require 
a carefu lly  conceived and thoroughly debated  com­
p rehensive  statu te. In  the 1964 Act Congress simply 
d irec ted  th a t the fed era l assis tance  provided in Title 
IV, §403-5 was not to be used for developing plans to 
assign pupils to overcome racial imbalance.®® Simi­
larly , C ongress w ithheld authorizing the Attorney 
G eneral, in school desegregation actions, to ask for 
a court o rder calling for bussing pupils from  one 
school to  another to “achieve a racial balance”.®®

The question of providing special, ear-marked federal funds 
for school districts that were trying to correct imbalanced neigh­
borhood schools came up again in connection with the 1966 
amendments to the Elementary and Secondary Education Act of 
1965. The House committee recommended special priority for ap­
plications under Title III of the Act from local school districts 
which sought help with problems of overcrowding, obsolescence, 
or racial imbalance. The House withdrew priority for dealing 
with problems of racial imbalance and added an amendment to 
Section 604 of the Act to the effect that nothing in the Act 
be construed to “require the assignment or transportation 
of students or teachers in order to overcome racial imbalance.” 
The Senate went along with both actions. The debate makes 
clear that Congress was once again talking about racial imbalance 
in the context of de facto, not de jure, school segregation. See 
particularly Congressional Record, October 6, 1966, pp. 24538-9; 
24541-3. See also 1966 U.S. Code Congressional and Administra­
tive News, No. 11, pp. 5089-90, for language in House committee 
report recommending the priority position of applications to deal 
with racial imbalance.

Congressman Cramer’s amendment.
This restriction appears in §407 of the Act. In its contpt 

it seems clearly to restrict the Attorney General to requesting 
only such relief as is constitutionally compelled. In other words, 
the Act is not to be construed as authorizing a statutory duty 
to reduce imbalance by bussing. Certainly the language of §407 
does not call for a construction that prohibits a court order direct­
ing that school boards abandon racially discriminatory practices 
which violate the Constitution. Nor does it suggest that the 
Attorney General is precluded from requesting court orders to 
end racial imbalance resulting from unconstitutional practices.



17. S., et al. V.  Jeff. County Bd. of Educ., et al. 79

B. Section 407(a)(2) of Title IV authorizing the 
Attorney G eneral to file suit to desegregate, contains 
the “ anti-bussing” proviso;

. nothing h ere in  shall em pow er any of­
ficial or court of the U nited States to issue any 
order seeking to achieve a racial balance 
in any school by requ iring  the tran spo rta tion  
of pupils or students from  one school to an­
other or one school d is tric t to ano ther in o r­
der to achieve such rac ia l com pliance w ith 
constitutional s tan d ard s .”

F irst, i t  should be noted th a t the prohibition ap ­
plies only to tran spo rta tion ; and only to tra n sp o rta ­
tion across school lines to achieve rac ia l balance. 
The furnishing of tran sp o rta tio n  as p art of a free ­
dom of choice plan is not prohibited. Second, the 
equitable pow ers of the courts exist independently of 
the Civil R ights Adt of 1964. I t  is not contended in the 
instant cases th a t the A ct conferred  new au thority  
on the courts. And this Court has Jiot looked to the 
Act as a g ran t of new  judicia l authority .

Section 407(a)(2) m igh t be read  as applying only 
to orders issued in suits filed by the A ttorney G eneral 
under T itle IV. However, Senator, now Vice P resid en t 
Humphrey, F loor M anager in the Senate, said  it w as 
his understanding th a t the provision applied to the 
entire bill. In  p a rticu la r, he said th a t it applies to 
any refusal or te rm ina tion  of federa l assistance  un­
der Title VI since the procedure for doing so requ ires 
an order approved by the P residen t. Senator H um ­
phrey explained:



80 U. S., et al. v. Jeff. County Bd. of Educ., et al.

“ This addition seeks sim ply to preclude an 
inference that the title confers new authority 
to deal with ‘racial im balance’ in schools, 
and should serve to soothe fea rs  th a t T itle TV 
m ight be read  to em pow er the F ed e ra l Gov­
ernm en t to o rder the bussing of children 
around a city in o rder to achieve a certa in  r a ­
cial balance or mix in schools. Furthermore, 
a new  section 410 would explicitly declare  th a t 
‘nothing in th is  title  shall p rohib it c lassifica­
tion and assignm ent for reasons o ther th an  
race , color, religion, or na tional orig in .’
T[ Thus, classification along bona fide neighbor­
hood school lines, or for any other legitimate 
reason w hich local school boards m ight see 
fit to adopt, would not be affected  by Title 
IV, so long as such classification  w as bona 
fide. F u rth e rm o re , th is am endm ent m akes 
c lear th a t the only F ed e ra l in terven tion  in 
local schools will be for the purpose of p re ­
venting denial of equal protection of the 
law s.” (E m phasis  added.)

Senator H um phrey spoke several tim es in the lan­
guage of Briggs but his refe rences to Bell indicate 
th a t the restric tions in the Act w ere pointed a t the 
G ary, In d ian a  de facto type of segregation. Senator 
B yrd (W est V irginia) asked  Senator H um phrey  would 
he give assu ran ce  “ th a t under Title VI school children 
m ay  not be bussed from  one end of the com m unity to 
ano ther end of the com m unity  a t ta x p a y e rs ’ expense 
to relieve so-called rac ia l im balance in the schools” . 
Senator H um phrey rep lied :



U. S., et al. V. Jeff. County Bd. of Educ., et al. 81

“ I do . . . T hat language is to be found in 
Title IV. The provision [§407(a)(2)] m e re ­
ly quotes the substance of a recen t court de­
cision which I have w ith m e, and w hich I 
desire to include in the R ecord today, the 
so-called G ary  c ase .”

Senator H um phrey  explained:

“ Judge R eam er’s opinion in the Gary case is 
significant in th is connection. In  discussing 
th is case, as we did m any  tim es, it w as de­
cided to w rite the thrust of the court’s opin­
ion into the proposed su b stitu te .” (E m p h a­
sis added.)

The th ru s t of the Gary case (Bell) was th a t if school 
districts w ere draw n w ithout reg a rd  to race , but 
ra ther on the basis of such fac to rs  as density  of pop­
ulation, trav e l d istances, safety  of the children, costs 
of operating the' school system , and convenience to 
parents and children, those d istric ts  a re  valid even 
if there is a racial im balance caused by d iscrim ina­
tory p rac tices  in housing. Thus, continuing his ex­
planation, Senator H um phrey said:

“ The bill does not a ttem p t to in teg ra te  the 
schools, but it does a ttem p t to elim inate seg­
regation  in the schools. The natu ra l factors, 
such as density of population, and the dis­
tance th a t students would have to trav e l a re  
considered leg itim ate  m eans to determ ine the 
validity  of a school d istrict, if the school dis­
tricts are not gerrymandered, and in effect



82 U. S., et al. v. Jeff. County Bd. of Educ., et al.

deliberately segregated. The fac t th a t th e re  is 
a rac ia l im ibalance per se is not som ething 
which is unconstitutional. T hat is why we 
have a ttem p ted  to clarify it w ith the lan­
guage of Section 4.” (E m phasis added.)

C. Section 601 sta tes  the general purpose of Tith 
VI of the A ct:

“ No person in th e  United S ta tes shall, on the 
ground of race , color, or national origin, be 
excluded from  p artic ipa tion  in, he denied the 
benefits of, or be subjected  to d iscrim ination  
under any p ro g ram  or activ ity  receiving 
F ed e ra l financial assistance .” (E m phasis 
added.)

This is a c lea r congressional s ta tem en t tha t racial 
d iscrim ination ag a in st the beneficiaries of fed era l as­
sistance is unlawful. C hildren attending  schools which 
receive federal assis tance  a re  of course am ong the 
beneficiaries. In  the House, C ongressm an Celler ex­
plained:

“ The legality  is based on the genera l power 
of Congress to apply  reasonab le  conditions. . .
Ifin general, it seems ra ther anomalous that 
the F ed e ra l G overnm ent should aid and abet 
d iscrim ination  on the basis of race, color or 
national origin by granting m oney and other 
kinds of financial aid. I t seem s ra th e r shock­
ing, m oreover, that while we have  on the one 
hand the 14th am endm ent, which is supposed 
to do aw ay with d iscrim ination  since it pro-



U. S., et al. V. Jeff. County Bd. of Educ., et ai. 83

vides for equal pro tection  of the laws, on the 
other hand, we have the F edera l G overnm ent 
aiding and abetting  those who p e rs is t in 
practicing  rac ia l d iscrim ination .”

In the Senate, Senator Jav its , an ass is tan t floor- 
manager, expressed  concern as to the c larity  of the 
statem ent of policy:

“ I ask  the Senator w hether we now have a 
clear understand ing  th a t if title  VI shall be 
enacted as it is now proposed, the express 
and c lear policy of Congress against aiding 
d iscrim ination  will prevail . . . ”

Senator H um phrey answ ered:

‘‘Some F ed e ra l agencies ap p ear to have been 
re luc tan t to ac t in this a rea . Title VI will re ­
quire them  to act. Its en ac tm en t will thus 
serve to insure uniform ity and perm anence  
to the nondiscrim ination policy.”

D. Section 604 of the Act, 42 U.S.C. § 2000d—3 is 
the section the defendants principally rely  upon and 
the section most misunderstood.®^ It provides:

‘‘Nothing contained in this title shall be con­
strued  to authorize action under this title by 
any d ep artm en t or agency with respect to 
any em ploym ent practice of any employer 
em ploym ent agency, or labor organization ex-

See Hearings Before the Committee on Rules, House of Repre- 
sentotives, 89 Cong. 2nd Sess., on H. Rep., 826, Sept. 29-30, 1966, 
24-26, 37-40.



84 U. S., et al. v. Jeff. County Bd. of Educ., et al.

cept w here a  p rim ary  objective of the F ed ­
e ra l financial ass is tan ce  is to provide em ­
p loym ent.” (E m phasis  added.)

The defendants contend that th is section bars any ac­
tion requ iring  desegregation of faculties and school 
personnel.

Section 604 w as not a p a r t of the original House 
bill. Senator H um phrey, while introducing the Act 
explained: “ [The] Com m issioner m igh t also be 
justified  in requ iring  elim ination of rac ia l d iscrim ina­
tion in em ploym ent or assignm ent of teach ers , at 
leas t w here such d iscrim ination  affected  the educa­
tional opportunities of students. See Braxton v. Board 
of Public Instruction of Duval County, 5 Cir. 1964, 326 
F.2d 616.” 110 Cong.Rec. p. 6345. T hat w as in M arch 
1964. In  June  1964, in explaining the am endm ents, 
Senator H um phrey  said, “ This provision is in line 
w ith the  provisions of section 602®® and serves to spell 
out m ore p recisely  the declared  scope of coverage 
of the title .” In  the sam e speech he s ta ted  (110 C.R. 
12714): “We have m ade no changes of substance in 
Title V I.” This explanation plainly indicates th a t the 
am endm en t w as not intended as a s ta tu to ry  bar to 
facu lty  in tegration  in schools receiv ing  fed era l aid.

H ow ever, in the in te rv a l betw een these two expla­
nations the A ttorney G eneral, in response to a letter 
from  Senator Cooper, s ta ted  th a t Section 602 would 
not apply to federally  aided em ployers who discrim ­
inated  in em ploym ent p rac tices: “ Title VI is limited 
. . .  to d iscrim ination  against the beneficiaries of

®* See footnote 19.



U. S., et al. V. Jeff. County Bd. of Educ., et al. 85

federal assistance  p rogram s. . . . W here, how ever, 
employees a re  the in tended beneficiaries of a  p ro ­
gram, Title VI would apply”.®® He gave as an ex­
ample acce lerated  public w orks p rogram s. I t  was 
after the receip t of the A ttorney G eneral’s le tte r 
that the am ended  Senate bill w as passed. The school 
boards argue therefore that Section 604 w as enacted, 
because of the A ttorney G enera l’s in te rp re ta tion , to 
exclude in terference w ith em ploym ent p ractices of 
schools.

In its b roadest application this argum ent would a l­
low rac ia l d iscrim ination  in the hiring, d ischarge, and 
assignment of teachers. In its narrow est application  
this argum en t would allow discrim ination  in  hiring 
and d ischarging but no t-in  assigning teachers, an  in­
explicable anomaly.^®® There is no m erit to  this ar­
gument. Section 604 and the A ttorney G enera l’s le t­
ter are not inconsistent, since under Section 601 it is 
the school children, not the teach ers  (em ployees), 
who are  the p rim ary  beneficiaries of federa l a ss is t­
ance to public schools. F acu lty  in tegration  is essen­
tial to student desegregation. To the extent th a t 
teacher d iscrim ination  jeopardizes the success of de­
segregation, it is unlaw ful wholly aside from  its ef­
fect upon individual teachers.

After Section 601 w as proposed, additional c larify ­
ing language w as suggested to m ake it c lear th a t 
discrimination in certa in  em ployer-em ployee relation­
ships, not affecting the intended beneficiaries of the 
program, would be excluded from  the reach  of the

BNA Operations Manual, The Civil Rights Act of 1964, p. 359. 
® See Note, Desegregation of Public School Activities, 51 Iowa 

O' Rev. 681, 690-96 (1966).



86 U. S., et al. v. Jeff. County Bd. of Educ., et al.

sta tu te . See H earings, H.R. Comm, on R ules, H. R. 
7152, 88th Cong., 2d Sess. (1964), pp. 94. 226; 110 
C.R. 6544-46 (Senator H um phrey). F o r exam ple, there 
w as a serious question as to w hether the bill would 
forbid a fa rm e r who w as receiving benefits under 
the A gricultural A djustm ent Act from  discrim inat­
ing upon the basis of race  in the seleption of his em­
ployees. H earings, H.R. Comm, on Rules, H. R. 
7152, 88 Cong., 2d Sess., 1964, p. 94, 110 C.R. 6545 
(Senator H um phrey). The addition of Section 604 to 
the bill a s  originally proposed clearly  excluded the 
application of the Act to this type of situation. Con­
gress did not, of course, intend to provide a forum 
for the relief of individual teach ers  who m ight be 
d iscrim inatorily  discharged; Congress w as interested 
in a general req u irem en t essen tial to success of the 
program as a whole.̂ *̂ ^

Collaterally to their a rgum en t on Section 604, the 
defendants cite Section 701(b) of Title VII, covering 
E qual E m ploym ent O pportunities, w hich specifically 
excepts a “ s ta te  or political subdivision thereof” . This 
section has no application to schools. Section 701(b), 
defines “ em ployer” as “ a person engaged in an in­
dustry  affecting com m erce who has twenty-five or 
m ore em ployees. . . . ”

101 Senator Humphrey explained: The “elimination of racial dis­
crimination in employment or assignment of teachers . . . does 
not mean that Title VI would authorize a federal official to pre­
scribe [particular] pupil assignments, or to select a [particular] 
faculty as opponents of the bill have suggested. The only au­
thority conferred would be authority to adopt, with the approval 
of the President, a general requirement that the local school au­
thority refrain from racial discrimination in treatment of pupils 
and teachers . . . ” 110 Cong. Rec. 6545.



17. S., et al. V.  Jejj. County Bd. of Educ., et al. 87

Section 604 w as never intended as a lim itation on 
desegregation of schools. If the defendan ts’ view of 
Section 604 w ere co rrec t the purposes of the sta tu te  
would be fru stra ted , for one of the keys to desegre­
gation is in tegration  of faculty . As long as a school 
has a Negro faculty it will always have a Negro 
student body. As the D istric t Court for the W estern 
D istrict of V irginia put it in Brown v. County School 
Board of Frederick County, 1965, 245 F. Supp. 549, 
560:

“ [T]he presence of all N egro teach ers  in a 
school a ttended  solely by Negro pupils in the 
p ast denotes th a t school a ‘colored school’ ju s t 
as certain ly  as if the words w ere prin ted  
across its en trance  in six-inch le tte rs .”

As fa r  as possible fed era l courts m ust c a rry  out 
congressional policy. But we m ust not overlook the 
fact th a t ‘‘we deal here w ith constitutional righ ts and 
not with those established by s ta tu te”.̂ ®̂ The right of 
Negro students to be free  from  rac ia l discrim ination 
in the form  of a seg rega ted  faculty  is p a rt of their 
broader righ t to equal educational opportunities. The 
“m andate of Brown . . . forbids the [d iscrim ina­
tory] consideration of race  in facu lty  selection just 
as it forbids it in pupil p lacem en t.” Chambers v. 
Hendersonville City Board of Education, 4 Cir. 1966, 
364 F.2d 189.

In Brown II the Suprem e Court specifically  re fe rred  
to the reallocation  of staff as one of the reasons p e r­
mitting desegregation  “ with all deliberate  speed” .

Smith V. Board of Education of Morrilton, 8 Cir. 1966, 365 
P.2d 770, 784.



88 U. S., et al. v. Jeff. County Bd. of Educ., et al.

“ In  determ ining  the additional tim e necessa ry  . . . 
courts m ay  consider problem s re la ted  to adm inistra­
tion, arising  from  . . . personnel. . . (Em phasis 
added.) 349 U.S. a t 301. F o r ten  y ears, how ever, this 
Court and other circuit courts^®  ̂ had  approved district 
co u rts’ postponing hearings on facu lty  desegregation. 
Bradley v. School Board of the City of Richmond, 
1965, 382 U. S. 103, ,86 S.Ct. 224, 15 L .Ed.2d 187 put an 
end to this p rac tice . In  Bradley the Supreme 
Court held th a t faculty  segregation  had  a  direct 
im pact on desegregation  plans. The court sum m ari­
ly  rem anded  the case to the d is tric t court holding that 
it w as im proper for th a t court to approve a  desegre­
gation p lan  without considering, a t a  full evidentiary 
hearing , the im pact of facu lty  allocation on a  racial 
basis. The Court said, “ [There is] no m erit to 
the suggestion th a t re la tion  betw een facu lty  alloca­
tion on an alleged rac ia l basis and  the adequacy 
of the  desegregation  plans a re  en tire ly  speculative.” 
M oreover, “ D elays in desegregation of school 
system s a re  no longer to le rab le .” 382 U.S. at 
105. In  Rogers v. Paul, 1965, 382 U.S. 198, 200, 86 S.Ct. 
358, 15 L .Ed.2d 265, the Suprem e Court held th a t Ne­
gro students in g rades not yet deseg regated  w ere en­
titled  to an  im m edia te  tra n s fe r  to a w hite high school. 
They “plain ly  had  stand ing” to sue on two theories:
(1) “ th a t racial allocation of faculty denies them 
equality of educational opportunity without regard to 
segregation  of pupils, and  (2) th a t it ren d ers  ‘inade­
quate an  otherw ise constitutional pupil desegregation

103 por example, Lockett v. Board of Education of Muscogee 
County, 5 Cir. 1965, 345 P.2d 225, 229; Calhoun v. Latimer, 5 Ch' 
1963, 321 F.2d 302, 307; Bradley v. School Board of the City of 
Richmond, 4 Cir. 1965, 345 F.2d ‘310, 320.



17. S., et al. V.  Jeff. County Bd. of Educ., et al. 89

plan soon to be applied  to th e ir g rad es .” In  Singleton 
II this Court, rely ing on Bradley, held th a t it w as “ es­
sential” for the Jackson  schools to m ake an “ade­
quate s ta r t  tow ard  elim ination of race  as a basis for 
the em ploym ent and allocation of teachers , adm inis­
trators and other personnel.” 355 F.2d a t 870.

In a recen t decision of the E igh th  Circuit, Clark v. 
Board of Education of Little Rock School District, 
No. 18,368, D ecem ber 15, 1966, the Court requ ired  a 
“positive p ro g ram  aim ed a t ending in the n ear fu tu re  
the segregation of the teaching and operating staff”. 
The Court stated: “We agree th a t facu lty  seg reg a­
tion encourages pupil segregation  and is d e trim en ta l 
to achieving a constitutionally  requ ired  non-racially  
operated school system . It is c lear th a t the Board 
may not continue to operate a seg regated  teaching 
staff. . . .  I t  is also c lear th a t the tim e for - delay is 
past. The desegregation  of the teaching  staff should 
have begun m any y ears  ago. At th is point the Board 
is going to have to take acce lera ted  and positive ac­
tion to end d iscrim inato ry  p rac tices in staff assign­
ment and rec ru itm en t.”

In Braxton v. Board of Public Instruction of Duval 
County, 1964, 326 F.2d 616, 620, cert, denied 377 U. S. 
924, the case cited by Senator H um phrey, this Court 
affirmed an  order of the d istric t court prohibiting as­
signment of “ teach ers  and other personnel . . .  on a 
racially seg regated  b asis .” In  Sm ith v. Board of E du­
cation of Morrilton, 8 Cir. 1966, 365 F.2d 770, 778, the 
Court said;



90 U. S,, et al. v. Jejf. County Bd. of Educ,, et al.

“ It is our firm  conclusion th a t the reach  of the 
Brown decisions, although they specifically 
concerned only pupil discrim ination, clearly  
extends to the proscrip tion  of the em ploym ent 
and assignm ent of public school teach e rs  on a 
rac ia l basis. Cf. U nited Public W orkers v. 
M itchell, 330 U. S. 75, 100 (1947); W iem an v. 
U pdegraff, 344 U. S. 183, 191-192 (1952). See 
Colorado Anti-Discrimination Comm’n v. 
Continental A ir Lines, Inc., 372 U. S. 714, 721 
(1963). This is p a rticu la rly  evident fro m  the 
Suprem e C ourt’s positive indications th a t non- 
d iscrim inato ry  allocation of facu lty  is indis­
pensable to the valid ity  of a desegregation 
plan. B radley  v. School B oard of the City of 
R ichm ond, su p ra ; R ogers v. P au l, supra. 
This court has a lready  said, ‘Such d iscrim ina­
tion [failure to in teg ra te  the teach ing  staff] 
is proscribed by Brown and also the Civil 
R ights Act of 1964 and tLe regulations prom ul­
gated  th e reu n d er’. K em p v. Beasley, supra, p,
22 of 352 F .2d .’’

In Wheeler v. Durham City Board of Education, 4 
Cir. 1966, 363 F.2d 738, 740 the Court stated : “We read 
[Bradley] as au thority  for the proposition tha t re­
m oval of race  considerations from  faculty  selection 
and allocation is, as a m a tte r  of law, an inseparable 
and indispensable com m and within the abolition of 
pupil segregation  in public schools as pronounced in 
Brown v. Board of Education, 347 U.S. 483. Hence no 
proof of the relationship  of faculty  allocation and 
pupil assignm ent w as requ ired  here. The only factual



U. S., et al. V.  Jeff. County Bd. of Educ., et al. 91

issue is w hether race  w as a fac to r en tering  into the 
employment and p lacem ent of te ac h e rs .” In  Wright
V. County School Board of Greensville County, E.D. 
Va. 1966, 252 F. Supp. 378, 384, holding th a t a faculty  
desegregation provision approved by the Com m is­
sioner of E ducation  w as not sufficient, the court said:

“The p rim ary  responsibility  for the selection 
of m eans to achieve em ploym ent and assign­
m ent of staff on a nonracial basis res ts  w ith 
the school board. . . . Several principles m ust 
be observed by the board. Token assignm ents 
will not suffice. The elim ination of a  rac ia l 
basis for the em ploym ent and assignm ent of 
staff m ust be achieved a t the earliest p ra c ti­
cable date. The plan m ust contain well defined 
procedures which will be put into effect on 
definite dates. The board will be allowed 
ninety days to subm it am endm ents to its plan 
dealing w ith staff em ploym ent and assign­
m ent p rac tice s .”

In Kier v. County School Board of Augusta County,
W.D. Va. 1966, 249 F. Supp. 239, 247, the court held 
that free  choice plans requ ire  faculty  in tegration:

‘‘F reedom  of choice, in other words, does not 
m ean a choice betw een a c learly  delineated 
‘Negro school’ (having an all-Negro faculty  
and staff) and a ‘w hite school’ (w ith all-white 
faculty  and staff). School au thorities who 
have heretofore opera ted  dual school system s 
for N egroes and w hites m ust assum e the duty 
of elim inating the effects of dualism  before a



92 U. S., et al. v. Jejj. County Bd. of Educ., et al.

freedom  of choice p lan  can be superim posed 
upon the pre-existing situation  and  approved 
as a  final p lan of desegregation. It is not 
enough to open the previously all-white 
schools to Negro students who desire to go 
th e re  while all-Negro schools continue to be 
m ain ta ined  as such. . . . The duty res ts  with 
the School B oard to overcom e the d iscrim ina­
tion of the past, and the long-established image 
of the ‘Negro school’ can be overcom e under 
freedom  of choice only by the p resence of an 
in tegrated  facu lty .”

See also Dowell v. School Board of Oklahoma City 
Public Schools, W.D. Okla. 1965, 244 F .Supp. 971, 977, 
and Franklin v. County School Board of Giles County, 
4 Cir. 1966, 360 F.2d 325.

We cannot im pute to Congress an intention to re­
pudiate Senator H um phrey’s explanation of Section 
604 and  to change the substance of Title VI, tearing 
the v ita ls  from  the s ta tu to ry  objective. In tegration of 
facu lty  is indispensable to the success of deseg­
regation  plan. Nor can we im pute to Congress the 
intention to license, unconstitutionally, discrimination 
in the em ploym ent and assignm ent of teachers, a 
conspicuous badge of de jure segregated schools.'"^

Chambers v. Hendersonville City Board of Education, 4 
Cir. 1966, 364 F.2d 189, 192, involved the problem of surplus Negro 
teachers who lost their jobs when an all Negro school was 
abolished. The School Board treated them as new applicants. 
The court held that this was discriminatory. Speaking for the 
majority, Judge Bell said: “First, the mandate of Brown v. 
Board of Education, 347 U.S. 483 (1954), forbids the considera­
tion of race in faculty selection just as it forbids it in pupil place­
ment. See Wheeler v. Durham City Board of Education, 346 F.2d 
768, 773 (4 Cir. 1965). Thus the reduction in the number of



U. S., et a l .  V.  Jeff. County Bd. of Educ., et a l .  93

E. As we construe the Act and its legislative his­
tory, especially  the sponsors’ re liance on Bell, Con­
gress, because of its hands-off a ttitude on bona fide 
neighborhood school system s, qualified its b road  pol­
icy of nondiscrim ination by precluding HEW ’s re ­
quiring the bussing of children across d is tric t lines or 
requiring com pulsory p lacem ent of children in schools 
to strike a balance w hen the im balance resu lts  from  
de facto, th a t is, non-racially  m otivated  segregation. 
As C ongressm an C ram er said, “ De facto  segregation 
is racial im b a lan ce” . But there is nothing in the lan­
guage of the Act or in the legislative history that 
equates corrective acts to desegregate or to integrate 
a dual school system  initially based on de jure segre­
gation with acts to bring about a racial balance in a 
system based on bona fide neighborhood schools.

Congress recognized th a t HEW ’s requ irem en ts for 
qualifying for financial assistance a re  one thing and 
the courts’ constitutional and judicial responsibili­
ties are som ething else again. The Act sta tes, th e re ­
fore, th a t it did not en large the cou rts’ existing pow­
ers to ensure com pliance with constitutional stand ­
ards. But neither did it reduce the courts’ power.

V.

The HEW Guidelines agree w ith decisions of this 
circuit and of the sim ilarly  situated  Fourth  and

Negro pupils did not justify a corresponding reduction in the 
number of Negro teachers. Franklin v. County Board of Giles 
County, 360 P.2d 325 (4 Cir. 1966). Second, the Negro school 
teachers were public employees who could not be discriminated 
against on account of their race with respect to their retention 
in the system. Johnson v. Branch, 364 F.2d 177, (4 Cir. 1966)



94 U. S., et al. v. Jeff. County Bd. of Educ., et al.

E ighth  C ircuits. And they stay within the Congres­
sional mandate. There is no cross-d istrict or cross­
town bussing requ irem ent. T here is no provision re­
quiring school au thorities to p lace white children in 
N egro schools or N egro children in white schools for 
the purpose of strik ing  a rac ia l balance in a school or 
school d is tric t p roportionate to the  rac ia l population 
of the community or school district.^”® The provision re­
fe rring  to percen tages is a general ru le of thum b or 
objective adm in istra tive  guide for m easuring  prog­
ress  in desegregation ra th e r  than  a firm  require­
ment tha t must be met.^”® See footnotes 105 and 106.

105 The present Commissioner of Education, Harold Howe II, in 
a congressional hearing declared:

“The guidelines do not mention and do not require 
‘racial balance’ or the correction of racial ‘imbalance.’ Nor 
have we in the administration of our obligations under Title 
VI sought to establish ‘racial balance.’ They deal only with 
desegregation plans designed to eliminate the dual school 
systems for whites and Negroes, systems being operated 
in violation of the 1954 Supreme Court ruling. . . . Racial 
imbalance certainly means the notion of trying to establish 
some proportion of youngsters that must be in each and every 
school. We are not about such an enterprise. We are try­
ing to give the effect of free choices to enter into, or to allow 
free choices in having pupils enter into whatever school they 
may wish to attend. I do not believe that free choice plans 
were ever intended by the courts or by us to be an arrange­
ment whereby the dual school system could continue with­
out support of law. But rather an arrangement by which 
over a period of time we would gradually have one school 
system rather than two separate school systems. I do not 
see that we are engaged in any way in establishing procedures 
for balance.” Hearings before the Committee on Rules, 
House of Representatives, 89th Cong. 2nd Sess., on H. Res. 
26, Sept. 29-30, 1966, p. 32-34.

See also footnote 106.
1®® In a letter addressed to Members o f  Congress and G overn ors, 
dated April 9, 1966, and given wide publicity in the press, John 
W. Gardner, Secretary of Health, Education and Welfare ex­
plained the purpose of the percentages:

“The second area of concern involves the percentages men­
tioned in the guidelines. Some have contended that this por­
tion of the guidelines imposes a formula of ‘racial balance.’



U. S., et al. V. Jeff. County Bd. of Educ., et al. 95

Good fa ith  in com pliance should be m easured  by per­
formance, not prom ises.

In review ing the effectiveness of an approved plan 
it seems reasonab le  to use some sort of ya rd stick  or 
objective percen tage  guide. The percen tage  requ ire ­
ments in the G uidelines a re  m odest, suggesting only 
that system s using free  choice p lans for at leas t two 
years should expect 15 to 18 per cent of the pupil popu­
lation to have selected  desegregated  schools. This 
Court has frequen tly  relied  on percen tages in ju ry  ex-

This contention misconceives the purpose of the percentages. 
The prevailing method of desegregation is what is called 
the ‘free choice’ plan. Under such a plan, students select 
their schools instead of being assigned to them on a geo­
graphic basis. Courts have expressly conditioned their ap­
proval of such plans on affirmative action by school boards 
to insure that ‘free choice’ actually exists. It is our re­
sponsibility to review such plans to insure that the choice 
is, in fact, free and to indicate to school districts what pro­
cedures should be used to assure true freedom of choice.

In seeking appropriate criteria to guide us in rfeview of 
free choice plans, we have adopted the objective criteria ap­
plied by the courts in similar situations. One such criterion is  
the distribution of students by race in the various schools of a 
system after the students have made their choices. If sub­
stantial numbers of Negro children choose and go to pre­
viously all-white schools, the choice system is clearly operat­
ing freely. If few or none choose to do so in a community 
where there has been a pattern of segregation, then it is ap­
propriate that the free choice plan be reviewed and other 
factors considered to determine whether the system is 
operating freely.

With more than 2000 separate districts to consider, such 
percentages are thus an administrative guide which helps 
us to determine those districts requiring further review. 
Such review in turn will determine whether or not the free­
dom of choice plan is in fact working fairly." New York 
Times, April 12, 1966, page 1.

Printed in Hearings before the Committee on Rules, House of 
Representatives, 89 Cong. 2nd Sess., on H. Res. 826, Sept. 29-30, 
1966, p. 31. Commissioner Howe reaffirmed Secretary Gardner’s 
policies as stated in the letter. See Hearings on H. Res. 826, 
p. 30-33.



96 U. S., et al. v. Jeff. County Bd. of Educ., et al.

elusion cases. W here the percen tage of N egroes on the 
ju ry  and ju ry  venires is d isproportionately  low com ­
p a red  w ith the N egro population of a  county, a  p rim e 
facie case is m ade for de liberate  d iscrim ination 
against Negroes.^®^ Percentages have been used in other 
civil rights cases.̂ ®® A similar inference may be drawn 
in school desegregation  cases, when the num ber of 
N egroes attending  school w ith w hite children is m an­
ifestly  out of line w ith the ra tio  of N egro school chil­
dren  to white school children in public schools. Com­
m on sense suggests th a t a gross d iscrepancy  between 
the ra tio  of N egroes to white children in a  school and 
the HEW  percen tage  guides ra ises  an  inference tha t 
the school p lan  is not working as it should in pro­
viding a un itary , in teg ra ted  system . Thus Evans v. 
Buchanan, D.C. Del. 1962, 207 F. Supp. 820̂ ®® held that 
th is n a tu ra l inference coupled w ith the b o ard ’s pos­
sessing the probative fac ts  th a t m ight rebu t the in­
ference c rea ted  a presum ption  th a t the proposed de­
segregation  plan was unconstitutional.

107 “Very decided variations in proportions of Negroes and whites 
on jury lists from racial proportions in the population, which 
variations are not explained and are long continued, furnish evi­
dence of systematic exclusion of Negroes from jury service.” 
United States ex rel. Seals v. Wiman, 5 Cir. 1962, 304 F.2d 53, 67. 
10® In United States v. Ward, supra at 803, the Court compared 
the number of Negroes registered with the number of Negroes 
eligible to vote. A similar practice is used in proving systematic 
exclusion of Negroes from juries. Cassell v. Texas, 1950, 339 
U.S. 282; Avery v. Georgia, 1953, 345 U.S. 559; Smith v. Texas, 
1940, 311 U.S. 128. In each instance, percentage tests have been 
used not as an effort to effect racial balance, but as a means 
of determining whether a challenged procedure is operating in a 
way that violates constitutional rights. See Finkelstein, The Ap­
plication of Statistical Decision Theory to the Jury Discrimination 
Cases, 80 Harv. L. Rev. 338 (1966).
11® See footnote 58.



U. S., et al. V.  Jeff. County Bd. of Educ., et al. 97

The G uidelines w ere adopted for the en tire  country.
However, they have been fo rm ulated  in a context 
sym pathetic  with local problem s. Sections 403-405 of 
the 1964 Civil R ights Act provide tha t, upon request, 
the Com m issioner of E ducation  m ay  render technical 
assistance to public school system s engaged in de­
segregation. The C om m issioner m ay  also establish  
tra in ing  institu tes to counsel school personnel having 
educational problem s occasioned by desegregation; 
and the C om m issioner m ay m ake g ran ts  to school 
boards to defray  the costs of providing in-service 
tra in ing  on desegregation. In short, the Com m issioner 
m ay assis t those school boards who allege th a t they 
will have difficulty com plying w ith the guidelines. 
When desegregation plans do. not m eet m inim um  
standards, the school au thorities should ask HEW  for 
assistance. And d istric t courts should invite HEW to 
assist by giving advice on ra ising  the levels of the 
plans and by helping to coordinate a school’s prom ises 
with the school’s perform ance. In view of the com ­
petent assistance  HEW m ay furnish  schools, there  is 
a heavy burden on proponents of the a rgum ent th a t 
their schools cannot m eet HEW standards.

VI.

School au thorities in this circuit, with few ex­
ceptions, have turned  to the “freedom  of choice” 
method for desegregating public schools. The m ethod 
has serious shortcom ings. Indeed, the “ slow pace of 
integration in the Southern and border S tates is in 
large m easure  a ttribu tab le  to the m anner in which



98 U. S., et al. v. Jeff. County Bd. of Educ., et al.

free choice plans . . . have operated.” !̂® W hen such 
p lans leave  school officials with a b road  a re a  of un­
controlled discretion, th is m ethod of desegregation  is 
b e tte r su ited  than  any other to p reserve  the  essen­
tia ls  of the dual school system  while giving paper 
com pliance w ith the duty to desegregate.

A free  choice p lan  does not abandon geographical 
c rite ria , but requ ires  ho rigid adherence to attendance 
zones. T heoretically  every  child m ay  choose his 
school, but its effectiveness depends on the avail­
ability  of open places in balanced  schools. M oreover, 
unless th e re  is som e provision to p reven t w hite chil­
d ren  tran sfe rrin g  out of an im balanced  school this 
p lan  will promote resegregation.^ti

11® Rep. U. S. Comm, on Civil Rights, Survey of School Desegre­
gation in the Southern and Border States—1965-66, p. 51. “Free­
dom of choice plans accepted by the Office of Education have 
not disestablished the dual and racially segregated school systems 
involved, for the following reasons: a. Negro and white schools 
have tended to retain their racial identity; b. White students 
rarely elect to attend Negro schools; c. Some Negro students 
are reluctant to sever normal school ties, made stronger by the 
racial identification of their schools; d. Many Negro children 
and parents in Southern States, having lived for decades in posi­
tions of subservience, are reluctant to assert their fights; e. Negro 
children and parents in Southern States frequently will not choose 
a formerly all-white school because they fear retaliation and 
hostility from the white community; f. In some school districts 
in the South, school officials have failed to prevent or punish 
harassment by white children of Negro children who have elected 
to attend white schools; g. In some areas in the South where 
Negroes have elected to attend formerly all-white schools, the 
Negro community has been subjected to retaliatory violence, evic­
tions, loss of jobs, and other forms of intimidation.” Ibid-.
Ill See Goss v. Board of Education, 1963, 373 U.S. 683, 83 S.Ct 
1405, 10 L.Ed.2d 632; Dillard v. School Board of the City of 
Charlottesville, 4 Cir. 1962, 308 F.2d 920, cert, den’d 374 U.S. 
827 (1963); Jackson v. School Board of the City of Lynchburg, 
4 Cir. 1963, 321 F.2d 230. For discussion of limitations to 
a free choice plan, see Fiss, Racial Imbalance in the Public 
Schools, 78 Harv. L. Rev. 563, 572 (1965).



17. S., et al. V.  Jeff. County Bd. of Educ., et al. 99

“ U nder freedom  of choice p lans, schools tend  to re ­
tain th e ir racial identification.”^^ Such plans require 
affirm ative action by p aren ts  and pupils to d isestab ­
lish the existing system  of public schools. In  th is c ir­
cuit white students ra re ly  choose to a ttend  schools 
identified as N egro schools. Negro students who 
choose white schools are , as we know from  m any 
cases,.only  N egroes of exceptional initia tive and fo rti­
tude. New construction and im provem ents to the Ne­
gro school p lan t a ttra c t no white students and  dim in­
ish Negro m otivation to ask for tran sfe r. N everthe­
less, the E ighth  C ircuit has approved freedom  of 
choice plans “ as a perm issib le  m ethod a t this s tag e” , 
although recognizing th a t such a p lan “ is still only in 
the experim en tal stage and it has not yet been dem ­
onstra ted  th a t such a m ethod will fully im plem ent the 
decision of Brown, and subsequent cases and the legis­
lative declaration  of §2000(d) of the Civil R ights Act 
of 1964.”“ ® We have said; “At this stage in the history 
of desegregation in the deep South a ‘freedom  of 
choice p lan ’ is an acceptable m ethod for a school 
board to use in fulfilling its duty to in teg ra te  the 
school system . In the long run, it is hard ly  possible 
that schools will be adm inistered  on any such hap ­
hazard b a s is” . Singleton II, 355 F.2d a t 71. HEW

Rep. U. S. Comm, on Civ. Rights, Survey of Desegregation in 
the Southern and Border States, 1965-66. p. 33. The Commission 
also notes that racial identification of schools as Negro schools is 
strengthened by: (1) normal school ties; (2) the interest Negro 
administrators and teachers have in maintaining the dual system 
(from May 1965 to September 1965, 668 Negro teachers became 
surplus because of desegregation); (3) some Negro educators are 
opposed to desegregation, because past economic and cultural 
deprivation makes Negroes ill prepared to compete with white 
children in schools.

Kemp V. Beasley, 8 Cir. 1965, 352 P.2d 14, 21.



IQO U. S., et dl. V. Jeff, County Bd. of Educ., et al.

recognizes freedom  of choice as a  perm issib le  m eans 
of desegregation. See R evised G uidelines, S ubpart B, 
181.11, and all of S ubpart D.

Courts should closely scrutin ize all such plans. 
F reedom  of choice plans “ m ay  . . .  be invalid  be­
cause the ‘freedom  of choice’ is illusory. The plan 
m ust be te sted  not only by its provisions, but by the 
m an n er in -which it opera tes to provide opportunities 
for a deseg regated  education .” Wright v. County 
School Board of Greenville County, E.D .V a. 1966, 252
F.Supp. 378, 383. In th a t case the court w as concerned 
th a t “ operation under the p lan m ay  show th a t the 
tran sp o rta tio n  policy or the capac ity  of the schools 
severe ly  lim its freedom  of choice, although provisions 
concerning these phases a re  valid on th e ir  fa c e ” . In 
Lockett V .  Board of Education of Muskogee County, 
Ga., 5 Cir. 1965, 342 F.2d 225, we w ere concerned that 
“p roper notice” be given so th a t “N egro students are 
afforded a  reasonab le  and conscious opportunity  to 
^Pply foi" adm ission to any school which they  are 
otherw ise eligible to a ttend  without reg a rd  to ra c e ” . 
Also, as Judge Bell, for the Court, pointed out, “a 
n ecessa ry  p a rt of the p lan  is a provision th a t the dual 
or b irac ia l school a ttendance  system  . . .  be abol­
ished .” See also Dowell v. School Board of Oklahoma 
City Public Schools, W.D.Okla. 1965, 244 F. Supp. 971; 
Bell V .  School Board of City of Staunton, W.D.Va. 
1966, 249 F.Supp. 249; Kier v. County School Board of 
Augusta County, W.D. Va. 1966, 249 F.Supp. 239.

There is m uch th a t school au thorities should do to 
m eet th e ir responsibilities:



17. S., et al. V.  Jeff. County Bd. of Educ., et al. 101

“ [Brown] called  for responsible public of­
ficials to reap p ra ise  th e ir thinking and  poli­
cies, and  to m ake every  effort to afford  Ne­
groes the m ore m eaningful equality  g u aran ­
teed  them  by the Constitution. The Brown de­
cision, in short, w as a  lesson in dem ocracy , 
d irected  to the public a t la rge  and m ore 
p a rticu la rly  to those responsible for the opera­
tion of the schools. It im posed a  legal and 
m oral obligation upon officials who had  c re a t­
ed or m ain ta ined  segrega ted  schools to undo 
the damage which they had fostered.” Taylor 
V.  Board of Education of the City of New Ro­
chelle, S.D .N .Y . 1961, 191 F. Supp. 181, 187, 
a ff’d 294 F.2d 36, cert, den’d 368 U.S. 940 
(1961).

School officials should consult with Negro and  white 
school au thorities before plans a re  put in fina l.fo rm . 
They should see th a t notices of plans and procedures 
are c lear and  tim ely. They should avoid the d iscrim ­
inatory use of te sts  and the use of b irth  and health  
certificates to m ake tran sfe rs  difficult. They should 
elim inate inconvenient or burdensom e arran g em en ts  
for tran sfe r, such as requiring  the personal ap p ea r­
ance of paren ts, notarized form s, signatures of both 
parents, or m aking form s available at inconvenient 
times to working people. They should employ 
forms which do not designate the nam e of a Negro 
school as the choice or contain a “ w aiver” of the 
“righ t” to a ttend  white schools. C ertainly school of­
ficials should not discourage Negro children from  en-



102 U. S., et al. v. Jeff. County Bd. of Educ., et al.

rolling in white schools, d irectly  or indirectly , as for 
exam ple, by advising them  th a t they  would not be 
p e rm itted  to engage or would not w ant to engage in 
school activ ities, a th le tics, the band, clubs, school 
p lays. If tran sp o rta tio n  is provided for white children, 
the schedules should be re-routed to provide for Ne­
gro children. O vercrow ding should not be used as an 
excuse to avoid tran sfe rs  of N egro children. In 
Bradley v. School Board of the City of Richmond, 4 
Cir. 1965, 345 F.2d 310, 323, Judges Sobeloff and Bell, 
concurring, said:

“A plan of desegregation  is m ore than  a 
m a tte r  of words. The a ttitude and purpose of 
public officials, school ad m in is tra to rs  and  fac ­
ulties a re  an in teg ra l p a rt of any plan  and 
determ ine its effectiveness m ore than  the 
words em ployed. If these public agents tra n s ­
la te  th e ir duty into a ffirm ative  and  sym pa­
thetic  action the p lan will work; if th e ir sp irit 
is obstructive, or a t best negative, little  prog­
ress  will be m ade, no m a tte r  w hat form  of 
words m ay  be u sed .”

Freedom  of choice m eans the m ax im um  am ount of 
freedom  and c learly  understood choice in a bona fide 
u n ita ry  system  w here schools a re  not white schools 
or Negro schools—just schools.

We tu rn  now to a discussion of the specific ele­
ments of a freedom of choice plan that make it more 
than  a m ere  word of prom ise to the ear.



U. S., et al. V.  Jejj. County Bd. of Educ., et. al. 103

A. Speed of Desegregation. The announced speed 
of desegregation  no longer seem s to be a  c ritica l is­
sue. The school boards generally  concede th a t by the 
school y ear 1967-68 all g rades should be desegregated .

B. Mandatory Annual Free Choice. U nderlying and  
tending to counteract the effectiveness of all the free ­
dom of choice p lans before the Court is the  in itia l un­
constitutional assignm ent of all students by race. 
When the freedom  of choice p lan is “ p erm issive” or 
“vo lun tary” the effect is to superim pose the sam e old 
tran sfe r p lan on rac ia l assignm ents and dual zones. 
We hold th a t any freedom  of choice p lan  is inadequate 
if based  upon a p re lim inary  system  of assignm ent by 
race or dual geographic zones. See Singleton II and 
Lockett V.  Board of Education of Muscogee County, 
Ga., 5 Cir. 1965, 342 F.2d 225, resta ting  the req u ire ­
m ent of Stell V.  Savanndh-Chatham County Board of 
Education, 5 Cir. 1964, 333 F.2d 55 and Gaines v. 
Dougherty County Board of Education, 5 Cir. 1964, 
334 F.2d 983. I t is essen tial th a t dual or b irac ia l school 
a ttendance system s be abolished contem poraneously 
w ith the  application of a plan to the respective g rades 
reached  by it.

In  p lace of perm issive freedom  of choice there  m ust 
be a  m andato ry  annual free choice of schools by all 
students, both w hite and Negro. “ If a child or his 
paren t is to be given a m eaningful choice, th is choice 
m ust be afforded annually .” Kem p v. Beasley, 8 Cir. 
1965, 352 F.2d 14, 22. The initial choice of assignm ent, 
within space lim itations, should be m ade by a p aren t 
or by a child over fifteen without reg a rd  to race. This



104 U. S., et al. v. Jeff. County Bd. of Educ., et al.

m an dato ry  free  choice system  would govern even the 
in itia l assignm ent of students to the firs t g rade and  to 
k indergarten . At the m inim um , a  freedom  of choice 
p lan  should provide tha t: (1) all students in desegre­
ga ted  g rades shall have an opportunity  to exercise a 
choice of schools. Bradley v. School Board of the City 
of Richmond,  4 Cir. 1965, 345 F.2d 310, v aca ted  and  re­
m anded, 1965, 382 U.S. 103; (2) w here the num ber of 
app lican ts applying to a  school exceeds available 
space, p re fe rences will be de term ined  by a  uniform 
non-racial s tandard , Stell v. Savannah-Chatham Coun­
ty  Board of Education,  5 Cir. 1964, 333 F.2d 55, 65; and 
(3) w hen a  student fails to exercise his choice, he will 
be assigned  to a school under a  uniform  non-racial 
s tandard , K em p v. Beasley,  8 Cir. 1965, 352 F.2d 14, 
22.

C. Notice. The notice provisions of the HEW 
Guidelines a re  reasonab le  and  should be followed. 
W here public notice by publication in a new spaper 
will a ssu re  adequate  notice, individual notice will not 
be necessary . Indiv idual notice should be requ ired  if 
notice by publication is likely to be inadequate.

D. Transfers for Students in Non-desegregated 
Grades and with Special Needs.  In  Singleton II we 
held th a t children in still-segregated  g rades in Negro 
schools “have an absolute righ t, as individuals, to 
tra n s fe r  to schools from  which they  w ere excluded 
because of th e ir race,”“ ‘‘ 355 F.2d at 869. See also

This ■was not new. In 1957 a district court in Maryland held 
that stair step plans do not justify excluding a qualified indi­
vidual, notwithstanding a more gradual schedule applicable to the



U. S., et al. V.  Jeff. County Bd. of Educ., et al. 105

Rogers v. Paul, 1965, 382 U. S. 198, 15 L .Ed.2d 265. A 
tran sfe r provision should be included in the plan. The 
righ t to tra n s fe r  under a s ta te  Pupil P lacem en t Law 
should be reg a rd ed  as an additional righ t th a t takes 
into consideration c rite ria  irre lev an t to the absolute 
right re fe rred  to in Rogers v. Paul.

E. Services, Facilities, Activities, and Programs. 
In Singleton II we held th a t there  should be no seg re­
gation or d iscrim ination  in services, facilities, ac ­
tivities, and p rog ram s th a t m ay  be conducted or 
sponsored by, or affiliated  with, the school in which a 
student is enrolled. We have in m ind school a th letics 
and in ter-scholastic  associations of course, but also 
paren ts-teachers  associations. In order to elim inate 
any u ncerta in ty  on th is point, we hold th a t the p lan 
should contain a s ta tem en t th a t there  will be no such 
segregation or discrim ination.

F. School Equalization. In  recen t years, as we are  
all well aw are. Southern s ta tes  have exerted  g rea t ef­
fort to im prove Negro school plants. There a re  how­
ever m any  old and inferior schools read ily  identifiable 
as N egro schools; there  a re  also m any superior w hite 
schools, in te rm s of the quality of instruction. A free ­
dom of choice p lan  will be ineffective if the students 
cannot choose am ong schools th a t a re  substantia lly  
equal. A school plan therefore  should provide for

school population generally. Moore v. Board of Education of 
Harford County, D.Md. 1957, 146 F. Supp. 91 and 152 F.Supp. 114, 
aff’d sub.nom. Slade v. Board of Education, 4 Cir. 1958, 252 P.2d 
191, cert, den’d 357 U.S. 906 (1958). This Court approved such 
an order in Augustus v. Board of Education, 5 Cir. 1962, 306 
F.2d 863.



106 U. S., et al. v. Jeff. County Bd. of Educ., et al.

closing inferior schools and  should also include a  pro­
vision for rem ed ia l p ro g ram s to overcom e p ast in­
adequacies of all-Negro schools. This will, of course, 
requ ire  the local school au thorities and  the tr ia l courts 
to exam ine carefu lly  local situations and perhaps 
seek advice from  qualified, unbiased au thorities in the 
field.

G. Scheduled Compliance Reports. Scheduled com­
pliance repo rts  to the court on the p rogress of free­
dom  of choice p lans a re  a necessity  and  of benefit to 
all the parties. These should be req u ired  following the 
choice period and again  a fte r the opening of school. 
None of the school boards expressly  objected to this 
provision, or one sim ila r to it, and  it does not appear 
onerous.

H. Desegregation of Faculty and Staff.  The most 
difficult problem  in the desegregation  process is the 
in tegra tion  Of faculties. See Section TV D of this 
opinion. A recen t survey  shows th a t until the 1966-67 
session not a single Negro teach e r in A labam a, 
Louisiana, or M ississippi has been assigned  to a 
school where there are white teachers/^® As evidenced 
in num erous records, this long continued policy has 
resu lted  in inferior Negro teach ing  and in inferior 
education of N egroes as a class. E veryone agrees, on 
principle, th a t the selection and assignm ent of teach­
ers on m erit should not be sacrificed  ju s t for the sake 
of in teg ra ting  faculties; teach ing  is an a rt. Y et until

115 See footnote 35. However, the press has carried accounts 
that progress is being made toward “desegregation of teachers, 
administrators and other personnel” for 1967-68 in Jackson, Mis­
sissippi. See Jackson Clarion Ledger, July 30, 1966, page 1.



17. S., et al. V. Jeff. County Bd. of Educ., et al. 107

school au thorities recognize and c a rry  out th e ir a f­
firm ative  duty to in teg ra te  faculties as well as facil­
ities, there  is not the slightest possibility of th e ir  ever 
establishing an operative non-discrim inatory  school 
system.^^® The transfer of a few Negro children to a 
white school does not do aw ay w ith the dual system^. 
A N egro facu lty  m akes a N egro school; the Negro 
school continues to offer inferior educational oppor­
tunities; and the school system  continues its psy­
chological h a rm  to N egroes as a class by not putting  
them on an equal level with white children as a class.^^  ̂
To p reven t such h a rm  or to undo the harm , or to p re ­
vent resegregation , the school au thorities, even in the 
adm in istra tion  of an otherw ise ra tional, nondiscrim - 
inatory  policy, should take corrective action involving 
rac ia l c rite ria . As we pointed out (see Section III C), 
in fashioning an appropria te  rem edy  tending to undo 
past d iscrim ination  this Court has often taken  race  in­
to account.

In the past year, d is tric t courts have strugg led  w ith 
the problem  of fram ing  effective o rders for the de­
segregation of faculty. (1) Some courts have focused 
upon the specific resu lts to be reached  by reassign-

“Faculty desegregation is a necessary precondition of an ac­
ceptable free choice plan. A free choice plan cannot disestablish 
the dual school system where faculties remain segregated on the 
basis of the race of the teachers or the pupils. In such cir­
cumstances a school inevitably will remain identified as “white” 
and “Negro” depending on the color of the teachers.” Rep., U.S. 
Comm, on Civil Rights, Survey of Desegregation in the Southern 
and Border States—1965-66, p. 57.
Ill Faculties should be desegregated so that “both white and 
Negro students would feel that their color was represented upon 
an equal level and that their people were sharing the responsibility 
of high-level teaching”. Dowell v. School Board of Oklahoma City 
Public Schools, W.D. Okla. 1965, 219 F. Supp. 427.



108 U. S., et al. v. Jeff. County Bd. of Educ., et al.

m ent of teach e rs  previously assigned  solely upon the 
basis of th e ir race. Dowell v. School Board of Okla­
homa City Public Schools, W .D.Okla. 1965, 244 F. 
Supp. 971, Kier v. County School Board of Augusta 
County, W.D.Va. 1966, 249 F. Supp. 239.“ » The orders 
en tered  in these cases requ ire  the defendant school 
boards to assign any newly employed teachers and re­
assign already-employed faculty so that the proportion 
of each race assigned to teach in each school will be 
the sam e as the proportion of teach e rs  of th a t race  in 
the to ta l teach ing  staff in the system , or a t least, 
of the p a rticu la r school level in which they  a re  em­
ployed. (2) O ther courts have not been specific as to 
the num ber of teach e rs  of each  race  th a t should be as­
signed to each  school in order to rem ove the effects of 
p ast d iscrim inato ry  assignm ents. These courts have 
focused upon the m echanics to be followed in rem ov­
ing the effect of p ast d iscrim ination  ra th e r  than  upon 
the resu lt as such. Thus, in Beckett v. School Board of 
the City of Norfolk,  Civil Action No. 2214 (E.D.Va., 
1966); Gilliam v. School Board of the City of Hope- 
well, Civil Action No. 3554 (E .D .V a. 1966); and Brad­
ley V.  School Board of the City of Richmond, Civil 
Action No. 3353 (E .D .Va. 1966), the courts approved 
consent decrees setting forth  in detail the considera­
tions th a t would control the school ad m in is tra to rs  in 
filling facu lty  vacancies and in tran sfe rrin g  already-

ns In Kier the Court said that duty to desegregrate faculty 
must be “immediately and squarely met” ; there can be no free­
dom of choice for faculties and administrative staffs by the 1966- 
67 school year. Insofar as possible, “the percentage of Negro 
teachers in each school of the system should approximate the 
percentage of Negro teachers in the entire system for the 1965- 
66 season”. 249 F. Supp. at 22.



17. S., et dl. V. Jef-f. County Bd. of Educ., et al. 109

em ployed facu lty  m em bers in order to fac ilita te  fac ­
ulty in tegration . (3) In a th ird  group of cases, the dis­
tric t court, while em phasizing the necessity  of a ffirm ­
ative steps to undo the effects of p ast ra c ia l assign­
m ents of facu lty  and while requ iring  som e tangible 
results, has not been specific regard ing  the m echanics 
or the  specific resu lts  to be achieved. See Harris v. 
Bullock County Board of Education, M.D Ala. 1966, 
253 F. Supp. 276; United States v. Lowndes Board of 
Education, Civil Action No. 2328-N (M.D.Ala. 1966); 
Carr v. M ontgomery County Board of Education, 
M.D.Ala. 1966, 253 F. Supp. 306.

We agree  w ith the E ighth  C ircuit’s s ta tem en t: “ The 
lack of a definite p rog ram  will only resu lt in fu rth er 
delay of long overdue action. We are not content a t 
this la te  date to approve a desegregation plan that 
contains only a s ta tem en t of general good intention. 
We deem  a positive com m itm ent to a reasonable 
p rogram  aim ed at ending segregation of the teaching 
staff to be necessary  for the final approval of a con­
stitutionally adequate desegregation p lan .” Clark v. 
Board of Education of the Little Rock School Dis­
trict, No. 18,368, D ecem ber 15, 1966 (unreported). 
In th a t case the Court did not im pose “ a set tim e 
with fixed m ath em atica l req u irem en ts” . How ever the 
Court was firm  in its position: “ F irst, as the Board 
has already positively pledged, fu tu re  icmployment, 
assignm ent, transfer, and discharge of teachers  m ust 
be free from  rac ia l consideration. Two, should the 
desegregation process cause the closing of schools 
employing individuals predom inately  of one race, the



110 U. S., et a l .  V.  Jeff. County Bd. of Educ:, et a l .

displaced p,3rsonnel should, a t the very  m inim um , be 
absorbed  into vacancies appearing  in the system . 
Sm ith V.  Board o f  Education of Morrilton, supra. 
Third, w henever possible, requests  of individual staff 
m em bers to tran sfe r into m inority  situations should 
be honored by the Board. F inally , we believe the 
B oard should m ake all additional positive com m it­
m ents n ecessary  to bring about som e m easune of 
rac ia l balance in the staffs of the individual schools in 
the very  n ear fu tu re. The age old distinction of ‘white 
schools’ and ‘Negro schools’ m ust be erased . The 
continuation of such distinctions only perpetrates in­
equality of educational opportunity and places in jeop­
ardy the effective future operation of the entire 
‘freedom  of choice’ type p lan .”

In Singleton I we ag reed  w ith the original HEW 
G uidelines in requiring  that an “ adequate  s ta r t” to­
w ard  faculty  desegregation  should be m ade in 1966-67. 
The req u irem en t th a t all g rades be desegregated in 
1967-68 increases the need for substantial progress be­
yond an “ adequate  s ta r t” . It is essen tial that school 
officials (1) cease p rac tic ing  rac ia l d iscrim ination  in 
the hiring and assignmi.ent of new  facu lty  m em bers 
and (2) take a ffirm ative  p ro g ram m atic  steps to cor­
rec t existing effects of p ast rac ia l assignm ent. If 
these two requ irem en ts  a re  p rescribed , the district 
court should be able to add specifics to m eet the par­
ticu la r situation the case p resents. The goal should be 
an equitable distribution of the be tte r teachers."®

’1* Rev. Theodore M. Hesburgh, President of Notre Dame and a 
member of the Civil Rights Commission, makes these suggestions: 
“A realistic and quite possible approach to this is, I think, 
through the immediate improvement of all teachers of each race,



U. S., et al. V. Jeff. County Bd. of Educ., et  al. I l l

We an tic ipate  th a t when d istric t courts and th is Court 
have gained m ore experience w ith facu lty  in tegration , 
the Court will be able to set forth  s tan d ard s  m ore 
specifically than  they  are  set forth  in the decrees in 
the instan t cases.

VII.

We a tta ch  a decree to be en tered  by the d istric t 
courts in these cases consolidated on appeal. See Ap­
pendix A.

We have carefu lly  exam ined each of the records in 
these cases. In each  instance the record  supports the 
decree. However, the provisions of the decree a re  
intended, as fa r  as possible, to apply uniform ly 
throughout th is circuit in cases involving plans based  
on free  choice of schools. School boards, p riva te  
plaintiffs, arid the , United S tates m ay, of course, 
cOme into court to prove th a t exceptional circurri-

beginning with those who most need assistance in being better 
qualified as teachers, f  At this precise time of transition, why not 
institute along with the whole process of desegregation in the 
South a positive program of upgrading all teachers in the present 
systems? In fact, the best teachers of either race, worthy of their 
profession, should be put in the schools needing the most help to 
improve. One might even think of rotating teachers within the 
schools of a given district. There is already the existing pattern 
of academic year and summer institutes for just this purpose 
of improving teachers. . . . IT If this positive action could be 
moved along quickly, with good will from all concerned, school 
administrators, parents, and students, then we could eliminate the 
present cat-and-mouse game which is going on between the Fed­
eral Office of Education and the local Southern school districts. 
In fact, I have a feeling that the South could solve its problem 
long before the North, which has an educational desegregation 
problem which may be less amenable to solution because of en­
trenched patterns of housing segregation.” Rep., U. S. Comm, on 
Civil Rights, Survey of Desegregation in the Southern and Border 
States—1965-66, p. 64.



112 U. S., et al. v. Jeff. County Bd. of Educ., et al.

stances com pel m odification of the decree. F o r ex­
am ple, school system s in a re a s  which let school out 
during p lanting and harvesting  seasons m ay  find that 
the period for exercise of choice of schools, M arch 
1-31, should be changed to a different m onth.

As Brown d ic ta tes, the decree p laces responsibility 
on the school au thorities to take  affirm ative  action 
to bring about a un itary , non-racial system . As the 
Constitution dicta tes, the proof of the pudding is in 
the eating: the proof of a school bo ard ’s compliance 
w ith constitutional s tan d ard s  is the resu lt—the per­
form ance. H as the operation of the p rom ised  plan 
actually  e lim inated  seg regated  and token-defeegre- 
gated  schools and achieved substan tia l integration?

The substantive requ irem en ts  of the decree derive 
from  the F ourteen th  A m endm ent as in te rp re ted  by 
decisions of the Suprem e Court and of th is Court, in 
m any  instances before the HEW  G uidelines were 
published. F o r adm in istra tive  details, we have looked 
to the Office of Education. F o r exam ple, those fam il­
ia r  with the HEW  G uidelines will note th a t the decree 
follows the G uidelines exactly  as to the form  letters 
which go to p a ren ts  announcing the need  to exercise 
a  choice of schools, and the form s for exercising 
th a t choice a re  the sam e. Indeed a close p a ra lle l will 
be noted betw een m uch in P a r ts  II th rough V of the 
decree and the Guideline provisions.

The g rea t bulk of the school d is tric ts  in th is circuit 
have applied for federal financial assis tance  and



U, iS.̂  et al. V. Jeff. County Bd. of Educ., et al. 113

therefore  operate  under volun tary  desegregation  
plans.^^° Approval of these plans by the Office of Ed­
ucation qualifies the schools for fed era l aid. In  this 
opinion we have held th a t the HEW  G uidelines now 
in effect a re  constitutional and a re  within the s ta tu ­
tory  au thority  c rea ted  in the Civil R ights A ct of 1964. 
Schools therefore , in com pliance w ith the Guidelines 
can in general be regarded  as d ischarging constitu­
tional obligations.

Some schools have m ade no move to desegregate  
or have had  plans re jec ted  as unsatisfac to ry  by dis­
tric t courts or the HEW. We expect the provisions of 
the decree to be applied in proceedings involving such 
schools. O ther schools have earlie r court-approved 
plans w hich fall short of the te rm s of the decree. On 
motion by proper parties  to re-open these cases, we 
expect these p lans to be m odified to conform  w ith 
our decree. In  some cases the p a rtie s  m ay  challenge 
various aspects of H EW -approved plans. Our approv­
al of the existing Guidelines and the deference owed 
to any fu tu re  Guidelines is not intended to deny a  day 
in court to any person asserting  individual righ ts or

120 “Although only 164 (3.4 percent) of the 4,941 school dis­
tricts in the South have qualified by the court order route, these 
districts include most of the major cities of the South and, ac­
cordingly, a large share of the population. Court orders are a 
significant method of qualification particularly in Louisiana, 
where official resistance to compliance with Title VI has been 
most widespread. In Louisiana, 32 court orders have been ac­
cepted, affecting 86.5 percent of the school districts judged quali­
fied.” 1966—U. S. Comm, on Civ. Rights, Survey of School De­
segregation in the Southern and Border States 46. See also Table 
3 in Appendix B.



1 1 4  U. S., et al. v. Jeff. County Bd. of Educ., et (d.

to any school board contesting HEW action.^^^ In  any 
school desegregation  case the issue concerns the  con­
stitu tional righ ts of N egroes, individually  and  as a 
class, and the constitutional righ ts of the  S ta te— n̂ot 
the issue w hether fed era l financial assis tance  should 
be w ithheld under Title VI of the Civil R ights Act of 
1964.

W hen school system s a re  under court-ordered  de­
segregation , the courts a re  responsible for determ in­
ing the  sufficiency of the sy stem ’s com pliance with 
the decree. The cou rts’ task , therefore , is a  continu­
ing process, especially  in m a jo r a re a s  read ily  suscep­
tib le  of observation and m easu rem en t, such as facul­
ty  in teg ra tion  and  student desegregation. (1) As to 
faculty , we have found th a t school au thorities have 
an  a ffirm ative  duty  to b reak  up the h isto rica l pattern  
of seg rega ted  faculties, the ha ll-m ark  of the dual 
systemi. To aid  the courts in its task , the decree re ­
quires the  school au thorities to rep o rt to the d istrict 
courts the p rogress m ade tow ard  facu lty  integration. 
The school au thorities b ear the burden  of justifying 
an apparent lack of progress.^^ (2) As to students, the

121 For an HEW approved desegregation plan held insufficient to 
protect constitutional rights of Negro students see Brown v. Board 
of Education of DeWitt School District, E.D. Arki 1966, F.Supp.

See also Thompson v. County School Board of Hanover 
County, E.D.Va. 1966, 252 F. Supp. 546; Turner v. County School 
Board of Goochland County, E.D.Va. 1966, 252 F. Supp. 578.
122 “Innumerable cases have clearly established the principle 
that under circumstances such as this where a history of racial 
discrimination exists, the burden of proof has been thrown upon 
the party having the power to produce the facts. . . . ” Chambers 
V . Hendersonville City Board of Education, 4 Cir. 1966, 364 
F.2d 189, 192. In Brown II, permitting desegregation with ‘'de­
liberate speed” the Supreme Court put the “burden . . . upon 
the defendants to establish that [additional] time is necessary 
to carry out the ruling in an effective manner”. 349 U.S. at 302.



U. S., et al. V. Jeff, County Bd. of Educ., et al. 115

decree requ ires  school au thorities to m ake repo rts  to 
the court showing by race , by school, by grade, the 
choices m ade in each  “ choice period” . A sim ila r re ­
port is requ ired  a fte r schools open to show w hat ac tu ­
ally happened when schools opened.

W hat the decree contem plates, then, is continuing 
judicial evaluation of com pliance by m easuring  the 
perform ance—not m erely  the prom ised  perform ance 
—of school boards in carry ing  out th e ir constitutional 
obligation “ to d isestablish  dual, rac ia lly  segregated  
school system s and to achieve substan tia l in tegration  
within such systems.”^̂® District courts may call upon 
HEW for assistance  in determ ining  w hether a  school 
board ’s perform ance m easu res up to its obligation 
to desegregate. If school officials in any d istric t 
should find th a t the ir d istric t still has seg regated  
faculties and schools or only token integration, th e ir 
affirm ative duty to take corrective action - requ ires 
them  to try  an a lternative  to a freedom  of choice 
plan, such as a geographic attendance plan, a  com ­
bination of the two, the Princeton plan,^®‘‘ or some other 
acceptable substitute, perhaps aided by an  education­
al park . F reedom  of choice is not a key th a t opens 
all doors to equal educational opportunities.

Given the knowledge of the educators and adm in is­
tra to rs  in the Office of Education and th e ir day to

U. S. Comm, on Civil Rights, Survey of School Desegregation 
in the Southern and Border States 1965-66, p. 54.
124 rjijjg Princeton plan involves establishing attendance zones 
including more than one school and assigning students by grade 
rather than by residence location. Thus all of the zone’s students 
in grades 1 through 3 would attend school A, while all students 
in grades 4 through 6 would attend school B. For a discussion of 
the plan see Fiss, Racial Imbalance in the Public Schools: The 
Constitutional Concepts, 78 Harv. L. Rev. 564, 573 (1965).



116 U. S., et al. V.  Jeff. County Bd. of Educ., et al.

day experience w ith thousands of school system s, 
judges and school officials can ill afford  to tu rn  their 
backs on the proffer of advice from  HEW. Or from 
any responsible governm ent agency or independent 
group com petent to w ork tow ard  solution of the com­
plex problem  of de ju re  d iscrim ination  bequeathed 
th is generation  by ten preceding generations.

Now afte r tw elve y ears  of snail’s pace progress 
tow ard  school desegregation, courts a re  entering a 
new era. The question to be resolved in each  case is: 
How fa r  have fo rm erly  de ju re  seg rega ted  schools 
p rogressed  in perform ing th e ir a ffirm ative  constitu­
tional duty to fu rn ish  equal educational opportunities 
to all public school children? The clock has ticked 
the la s t tick  for tokenism  and delay in the nam e of 
“ deliberate  speed” .

In  the suit against the Caddo P a rish  School Board 
Ju ly  19, 1965, the United S tates m oved to intervene 
under §902 of the Civil R ights A ct of 1964 (42 U.S.C. 
§2000h-2). The m otion w as filed twelve days after 
the B oard subm itted  its p lan  in com pliance w ith the 
d is tric t co u rt’s decree of June 14, 1965, but two days 
before the original p laintiffs filed the ir objections 
and before the court issued its o rder approving the 
plan. The d istric t court denied the m otion on the 
ground that it cam e too late. In  these circum stances 
we consider th a t the m otion w as tim ely  filed and 
should have been granted .



U. S., et al. V. Jeff. County Bd. of Educ., et al. 117

This Court denied the m otion of certa in  appellan ts 
to consolidate their cases, but allowed consolidation 
of briefs and, in effect, trea ted  the cases as consoli­
dated  for purposes of appeal. The Court, how ever, in 
each case has sep ara te ly  considered the p a rticu la r 
contentions of all the parties in the light of the 
record.

The Court R EV ER SES the judgm ents below and 
REMANDS each case to the d is tric t court for fu rth er 
proceedings in accordance w ith this opinion.

COX, D istric t Judge: I reserve  the righ t to dissent in 
whole or in part a t a la te r date.



118 V. S., et al. v. Jeff. County Bd. of Educ., et a t  

A PPEN D IX  A:

PROPOSED D EC R EE

It is O RD ERED , ADJUDGED and D EC R EED  that 
the defendants, their agents, officers, em ployees and 
successors and all those in active concert and p a rtic ­
ipation w ith them , be and they are perm anently  en­
joined from  d iscrim inating  on the basis of race or 
color in the operation of the school system.
As set out m ore particu larly  in the body of the 
decree, they shall take a ffirm ative  action to d isestab­
lish all school segregation  and to elim inate the ef­
fects of past rac ia l d iscrim ination in the operation of 
the school system :

SPEED OF DESEGREGATION

Com m encing w ith the 1967-68 school year, in ac­
cordance w ith this decree, all g rades, including kin­
d e rg a rten  g rades, shall be desegregated  and pupils 
assigned to schools in these g rades w ithout reg ard  to 
race or color.

II.

EXERCISE OF CHOICE

The following provisions shall apply to all grades:
(a) Who May Exercise Choice. A choice of schools 

m ay  be exercised by a p a ren t or other adult person



17. S., et al. V. Jeff. County Bd. of Educ., et al. 119

serving as the s tuden t’s paren t. A studen t m ay  exer­
cise his own choice if he (1) is exercising a choice 
for the ninth or a h igher g rade, or (2) has reached  
the age of fifteen a t the tim e  of the exercise  of 
choice. Such a  choice by a student is controlling un­
less a  d ifferent choice is exercised  for him  by his 
p a ren t or o ther adult person  serv ing  as his p a ren t 
during the choice period or a t such la te r  tim e  as the 
student exercises a choice. E ach  re ference  in th is de­
cree to a  s tuden t’s exercising a  choice m eans the  ex­
ercise of the choice, as appropria te , by a  p a ren t or 
such other adult, or by the student him self.

(b) Annual Exercise of Choice. All students, both 
white and N egro, shall be requ ired  to exercise a  free  
choice of schools annually.

(c) Choice Period. The period for exercising 
choice shall com m ence M ay 1, 1967 and  end June 1, 
1967, and  in subsequent y ears  shall com m ence M arch  
1 and end M arch  31 preceding the school y ea r for 
which the choice is to be exercised. No studen t or 
prospective student who exercises his choice within 
the choice period shall be given any p reference  be­
cause of the tim e within the period when such choice 
was exercised.

(d) Mandatory Exercise of Choice. A  fa ilu re  to 
exercise a choice w ithin the choice period shall not 
preclude any student from  exercising a  choice a t any 
tim e before he com m ences school for the y ear w ith 
respect to which the choice applies, but such choice 
m ay be subordinated  to the choices of students who



120 17. S., et al. v. Jeff. County Bd. of Educ., et al.

exercised  choice before the expiration  of the  choice 
period. Any student who has not exercised  his choice 
of school w ithin a  w eek a fte r school opens shall be 
assigned  to the school n e a re s t his hom e w here space 
is available under s tan d ard s  for determ ining  avail­
able space  w hich shall be applied uniform ly through­
out the system .

(e) Public Notice. ^On or w ithin a  w eek before 
the date  the  choice period opens, the  defendants shall 
a rran g e  for the  conspicuous publication of a  notice 
describ ing the  provisions of th is decree in the  news­
p ap er m ost generally  c ircu lated  in the community. 
The tex t of the  notice shall be substan tia lly  sim ilar 
to the  tex t of the  exp lanato ry  le tte r  sen t hom e to 
paren ts. (See p a ra g rap h  11(e).) Pub lication  as a  legal 
notice will not be sufficient. Copies of th is notice 
m ust also be given a t th a t tim e  to all radio  and tele­
vision stations serv ing  the com m unity. Copies of this 
decree shall be posted in each  school in  the  school 
system  and a t the office of the  Superin tendent of 
Education.

(e) Mailing of Explanatory Letters and Choice 
Forms. On the firs t day of the choice period there 
shall be d istribu ted  by first-c lass m ail an explanatory 
le tte r  and a choice form  to the p a ren t (or o ther adult 
person  acting  as paren t, if known to the defendants) 
of each  student, together w ith a  re tu rn  envelope ad­
d ressed  to the Superintendent. Should the defend­
an ts satisfac to rily  dem onstrate  to the court that 
they  a re  unable to com ply w ith the requirem ent



U. S., et al. V.  Jeff. Comity Bd. of Educ., et at. 121

of d istributing  the exp lanatory  le tte r and choice form  
by first-c lass m ail, they  shall propose an  a lte rnative  
m ethod which will m axim ize individual notice, i.e., 
personal notice to parents by delivery to the pupil 
with adequate  p rocedures to insure the delivery  of 
the notice. The tex t for the exp lanatory  le tte r  and 
choice form  shall essentially  conform  to the sam ple 
le tte r and choice form  appended to this decree.

(g) E xtra Copies of the Explanatory Letter and 
Choice Form. E x tra  copies of the exp lanatory  le tte r 
and choice form  shall be freely  availab le  to paren ts, 
students, prospective students, and the general public 
at each  school in the system  and a t the office of the 
Superintendent of Education during the tim es of the 
year when such schools are  usually  open.

(h) Content of Choice Form. E ach  choice form  
shall set forth  the nam e and location of the g rades 
offered a t each  school and m ay  requ ire  of the person 
exercising the choice the nam e, address, age of stu ­
dent, school and grade cu rren tly  or m ost recen tly  a t­
tended by the student, the school chosen, the signa­
ture of one p aren t or other adult person serving as 
parent, or w here appropria te  the signature  of the 
student, and the identity of the person signing. No 
statem ent of reasons for a p a rticu la r choice, or any 
other inform ation, or any w itness or other au then tica­
tion, m ay  be requ ired  or requested , w ithout approval 
of the court.

(i) Return of Choice Form. At the option of the 
person com pleting the choice form , the choice m ay



122 U. S., et al. v. Jeff. County Bd. of Edue., et al.

be re tu rned  by m ail, in person, or by m essenger to 
any school in the  school system  or to the office of 
the Superintendent.

(j) Choices not on Official Form. The exercise of 
choice m ay  also be m ade by the subm ission in like 
m an n er of any other w riting  which contains inform a­
tion sufficient to identify the student and indicates 
th a t he has m ade a choice of school.

(k) Choice Form s Binding. When a  choice form 
has once been subm itted  and  the choice period has 
expired, the choice is binding for the en tire  school 
y e a r and m ay  not be changed except in cases of 
p a ren ts  m aking  different choices from  th e ir children 
under the conditions set forth  in p a ra g rap h  II  (a) of 
th is decree and in exceptional cases w here, absent 
the consideration of race, a change is educationally 
called  for or w here com pelling hardsh ip  is shown by 
the student.

(1) Preference in Assignm ent. In  assigning stu­
dents to schools, no p references shall be given to 
any student for prior attendance at a school and, ex­
cept w ith the approval of court in extraordinary cir­
cum stances, no choice shall be denied for any reason 
other th an  overcrow ding. In case of overcrow ding at 
any school, p reference  shall be given on the basis of 
the proxim ity  of the school to the hom es of the stu­
dents choosing it, w ithout reg a rd  to race  or color. 
S tan d ard s  for determ ining  overcrow ding shall be ap­
plied uniform ly throughout the system .



U. S., et al. V.  Jeff. County Bd. of Educ., et al. 123

(m ) Second Choice where First Choice is Denied. 
Any student whose choice is denied m ust be p rom pt­
ly notified in w riting and given his choice of any 
school in the school system  serving his g rade level 
w here space is available. The student shall have 
seven days from  the receip t of notice of a  denial of 
firs t choice in which to exercise a second choice.

(n) Transportation. W here tran sp o rta tio n  is gen­
erally  provided, buses m ust be routed  to the m ax i­
m um  extent feasible in light of the geographic dis­
tribution of students, so as to serve each  student 
choosing any school in the system . E v ery  student 
choosing e ither the fo rm erly  white or the fo rm erly  
Negro school n eares t his residence m ust be tra n s ­
ported to the school to which he is assigned  under 
these provisions, w hether or not it is his f irs t choice, 
if th a t school is sufficiently d istan t from  his hom e 
to m ake him  eligible for tran sp o rta tio n  under gen­
erally  applicable transpo rta tion  rules.

(o) Officials not to Influence Choice. At no tim e 
shall any official, teacher, or em ployee of the school 
system  influence any paren t, or other adult person 
serving as a paren t, or any student, in the exercise 
of a choice or favor or penalize any person because 
of a  choice m ade. If the defendant school board  em ­
ploys professional guidance counselors, such persons 
shall base the ir guidance and counselling on the in­
dividual s tuden t’s p a rticu la r personal, academ ic, and 
vocational needs. Such guidance and counselling by 
teachers as well as professional guidance counsellors



124 U. S., et al. v. Jeff. County Bd. of Educ., et al.

shall be availab le  to all students w ithout reg a rd  to 
race  or color.

(p) Protection of Persons Exercising Choice. 
W ithin the ir au thority  school officials a re  responsible 
for the  protection of persons exercising  righ ts under 
or otherw ise affected  by th is decree. They shall, 
w ithout delay, take app rop ria te  action w ith regard  
to any student or staff m em h er who in te rfe res  with 
the successful operation of the plan. Such in te rfe r­
ence shall include h a rassm en t, intim idation, th rea ts , 
hostile words or acts, and s im ila r behavior. The 
school board  shall not publish, allow, or cause to be 
published, the nam es or addresses of pupils exercis­
ing righ ts or otherw ise affected  by th is decree. If 
officials of the school system  a re  not able to provide 
sufficient protection, they  shall seek w hatever assist­
ance is necessa ry  from  other app rop ria te  officials.

III.

PRO SPECTIV E STUDENTS

Each prospective new studen t shall be requ ired  to 
exercise a choice of schools before or a t the tim e of 
enrollm ent. All such students known to defendants 
shall be furnished a copy of the p rescribed  le tte r to 
p a ren ts, and choice form , by m ail or in person, on 
the date  the choice period opens or as soon th e reafte r 
as the school system  learns th a t he plans to enroll. 
W here there  is no p re-reg istra tion  p rocedure for new­
ly entering students, copies of the choice fo rm s shall 
be available a t the Office of the Superin tendent and 
a t each  school during the tim e the school is usually 
open.



U. S., et al. v. Jeff. County Bd. of Educ., et al. 125

IV.

TRANSFERS

(a) Transfers for Students. Any student shall 
have the righ t a t the beginning of a  new  term., 
to tra n s fe r  to any school from  which he was 
excluded or would otherw ise be excluded on account 
of his race  or color.

(b) Transfers for Special Needs. Any student 
who requ ires  a course of study not offered a t the 
school to which he has been assigned m ay  be p e rm it­
ted, upon his w ritten  application, a t the beginning of 
any school te rm  or sem ester, to tran sfe r to another 
school which offers courses for his special needs.

(c) Transfers to Special Classes or Schools. If 
the defendants operate  and m ain ta in  special classes 
or schools for physically  handicapped, m entally  re ­
tarded , or gifted children, the defendants m ay  assign 
children to such schools or c lasses on a basis re la ted  
to the function of the special class or school th a t is 
other than  freedom  of choice. In no event shall such 
assignm ents be m ade on the basis of race  or color or 
in a m anner which tends to perpe tuate  a dual school 
system  based on race  or color.



126 17. S., et al. v. Jeff. County Bd. of Educ., et al.

V.

SERVICES, FACILITIES, ACTIVITIES AND PRO
GRAMS

No student shall be seg regated  or d iscrim inated  
against on account of race  or color in any service, 
facility , activity, or p rog ram  (including tran sp o rta ­
tion, a th letics, or o ther ex tracu rricu la r activ ity ) that 
m ay  be conducted or sponsored by or affiliated  with 
the school in which he is enrolled. A studen t a ttend­
ing school for the firs t tim e on a desegregated  basis 
m ay  not be sub ject to any disqualification or w aiting 
period for partic ipation  in  activ ities and program s, 
including ath letics, which m ight otherw ise apply be­
cause he is a tran sfe r or newly assigned studen t ex­
cept th a t such transferees shall be sub ject to long­
standing, non-racially based rules of city, county, or 
s ta te  ath letic  associations dealing w ith the eligibility 
of transfer students for a th letic  contests. All school 
use or school-sponsored use of athletic fields, m eet­
ing room s, and all other school re la ted  services, 
facilities, activities, and p rog ram s such as Com­
m encem ent exercises and paren t-teacher m eetings 
which a re  open to persons other than  enrolled stu­
dents, shall be open to all persons w ithout reg a rd  to 
race  or color. All special educational p ro g ram s con­
ducted by the defendants shall be conducted without 
reg a rd  to race  or color.



U . S., et al. V. Jeff. County Bd. of Educ., et al. 127

VI.

SCHOOL EQUALIZATION

(a) Inferior Schools. In  schools heretofore m ain ­
ta ined  for N egro students, the defendants shall take  
p rom pt steps necessa ry  to provide physical facili­
ties, equipm ent, courses of instruction, and in s tru c ­
tional m a te ria ls  of quality  equal to th a t provided in 
schools previously m ain ta ined  for w hite students. 
Conditions of overcrow ding, as de term ined  by pupil- 
teach e r ra tios and pupil-classroom  ra tios shall, to the 
ex ten t feasible, be d istribu ted  evenly betw een schools 
fo rm erly  m ain ta ined  for Negro students and those 
fo rm erly  m ain ta ined  for white students. If for any 
reason  it is not feasible to im prove sufficiently any 
school fo rm erly  m ain tained  for N egro students, w here 
such im provem ent would otherw ise be requ ired  by 
th is subparagraph ,, such school shall be closed as 
soon as possible, and students enrolled in the school 
shall be reassigned  on the basis of freedom  of choice. 
By October of each  year, defendants shall rep o rt to 
the C lerk of the Court pupil-teacher ratios, pupil-class­
room  ratios, and per-pupil expenditures both as to 
operating and cap ita l im provem ent costs, and shall 
outline the steps to be taken  and the tim e w ithin which 
they  shall accom plish the equalization of such schools.

(b) Rem edial Programs. The defendants shall p ro­
vide rem ed ial education p rog rain s which perm it stu­
dents attending  or who have previously a ttended  all- 
N egro schools to overcom e p ast inadequacies in th e ir 
education.



128 U. S., et al. v. Jeff. County Bd. of Educ., et al.

VII.

NEW CONSTRUCTION

The defendants, to the extent consistent w ith the 
p roper operation of the school system  as a  whole, 
shall locate any new school and substan tia lly  expand 
any existing schools w ith the objective of erad icating  
the vestiges of the dual system  and of elim inating the 
effects of segregation.

VIII.

FACULTY AND STAFF

(a) Faculty Em ploym ent. R ace or color shall not 
be a fac to r in the hiring, assignm ent, reassignm ent, 
prom otion, dem otion, or d ism issal of teach e rs  and 
other professional staff m em bers, including student 
teachers , except th a t race  m ay  be taken  into ac­
count for the purpose of counteracting  or correcting 
the effect of the seg rega ted  assignm ent of teachers  
in the dual system . T eachers, p rincipals, and  staff 
m em bers shall be assigned to schools so th a t the 
facu lty  and staff is not com posed exclusively of 
m em bers of one race. W herever possible, teachers 
shall be assigned  so th a t m ore than  one teach e r of 
the m inority  race  (white or N egro) shall be on a  de­
segregated  faculty . D efendants shall take  positive 
and a ffirm ative  steps to accom plish  the desegregation 
of the ir school faculties and to achieve substan tia l de­
segregation  of faculties in as m any  of the schools as 
possible for the 1967-68 school year notw ithstanding



U . S., et al. V. Jeff. County Bd. of Educ., et al. 129

th a t teach e r con trac ts  for the 1966-67 or 1967-68 school 
y ears  m ay  have a lread y  been signed and  approved. 
The tenure  of teach e rs  in the system  shall not be used 
as an  excuse for fa ilu re  to com ply w ith th is  provision. 
The defendants shall estab lish  as an  objective th a t 
the p a tte rn  of teach e r assignm ent to any  p a rticu la r 
school not be identifiable as ta ilo red  for a heavy  con­
cen tration  of e ither Negro or w hite pupils in the 
school.

(b) Dismissals. T eachers and o ther professional 
staff m e m b e rs 'm a y  not be d iscrim inato rily  assigned, 
d ism issed, dem oted, or passed  over for retention, 
prom otion, or reh iring , on the ground of race  or color. 
In  any instance w here one or m ore teach e rs  or other 
professional staff m em bers a re  to be d isplaced as a 
resu lt of desegregation, no staff vacancy  in the  school 
system  shall be filled through rec ru itm en t from  out­
side the system  unless no such displaced staff m em ­
ber is qualified to fill the vacancy. If, as a result of de­
segregation, there  is to be a reduction in the to ta l 
professional staff of the school system , the qualifica­
tions of all staff m em bers in the system  shall be eval­
uated  in selecting the staff m em ber to be re leased  
w ithout consideration of race  or color. A rep o rt con­
ta in ing  any such proposed dism issals, and the re a ­
sons therefor, shall be filed w ith the C lerk of the 
Court, serv ing  copies upon opposing counsel, w ithin 
five (5) days a fte r such dism issal, demotion, etc., as 
proposed.

(c) Past Assignm ents. The defendants shall take 
steps to assign  and reassign  teachers  and other pro-



130 U. S., et al. v. Jeff. County Bd. of Educ., et al.

fessional staff m em bers to e lim inate p ast d iscrim i­
n a to ry  pa tterns.

IX.

REPORTS TO THE COURT

(1) Report on Choice Period. The defendants 
shall serve upon the opposing p artie s  and  file w ith the 
C lerk of the Court on or before A pril 15, 1967, and on 
or before June  15, 1967, and in each subsequent year 
on or before June  1, a rep o rt tabu la ting  by  race  the 
num ber of choice applications and tran sfe r applica­
tions received  for enrollm ent in each  g rade  in each 
school in the system , and the num ber of choices and" 
tra n s fe rs  g ran ted  and  the num ber of denials in  each 
g rade  of »each school. The rep o rt shall also s ta te  any 
reasons relied  upon in denying choice and shall tab ­
u late , by school and by race  of student, the  num ber 
of choices and transfers  denied for each  such reason.

In addition, the rep o rt shall show the percentage 
of pupils actually  tra n s fe rre d  or assigned  from  seg­
reg a ted  g rades or to schools a ttended  predom inantly  
by pupils of a race  other than  the race  of the appli­
cant, for a ttendance  during the 1966-67 school year, 
w ith com parab le  d a ta  for the 1965-66 school year. 
Such additional inform ation shall be included in the 
rep o rt served  upon opposing counsel and  filed with 
the  C lerk of the Court.

(2) Report A fter  School Opening. The defend­
ants shall, in addition to repo rts  elsew here described,



U. Si, et al. V. Jeff. County Bd. of Educ>, et al. 131

serve upon opposing counsel and file w ith the  C lerk 
of the Court w ithin 15 days a fte r the opening of 
schools for the fall sem ester of each  year, a  repo rt 
setting  fo rth  the following inform ation:

(i) The name, address, grade, school of 
choice and school of p resen t a ttendance  of 
each  student who has w ithdraw n or requested  
w ithdraw al of his choice of school or who has 
tran sfe rred  a fte r the s ta r t  of the school year, 
together with a description of any action taken  
by the defendants on his request and the re a ­
sons therefor.

(ii) The num ber of faculty  vacancies, by 
school, th a t have occurred or been filled by the 
defendants since the order of this Court or the 
la te s t report subm itted pursuan t to this sub- 
paragraph . This repo rt shall s ta te  the race  of 
the teacher em ployed to fill each such vacan ­
cy and indicate w hether such teacher is newly 
employed or was transferred from within 
the system . The tabulation of the num ber of 
tran sfe rs  w ithin the system  shall indicate the 
schools from  which and to which the tran sfe rs  
w ere made. The repo rt shall also set forth  the 
num ber of faculty m em bers of each race  as­
signed to each school for the cu rren t year.

(iii) The num ber of students by race, in 
each grade of each school.



132  V. et al; v: Jeff .County Bd. of Educ., et al.

E X P L A N A T O R Y  L E T T E R

(School System  Name and Office A ddress)

(D ate Sent)
D ear P a re n t:

All g rades in our school system  will be desegre­
gated  next year. Any studen t who will be entering 
one of these  g rades next year m ay  choose to attend 
any school in our system , regardless of w hether th a t 
school w as fo rm erly  all-white o r all-Negro. I t  does 
not m a tte r  w hich school your child is attending this 
year. You and your child m ay  select any school you 
wish.

E v ery  student, w hite and Negro, m ust m ake a 
choice of schools. If a child is entering the ninth or 
h igher grade, or if the child is fifteen  y ears  old or old­
er, he m ay  m ake the choice him self. O therw ise a p a r­
en t or o ther adu lt serving as pansn t m ust sign the 
choice form . A child enrolling in the  school system  for 
the  f irs t tim e m ust m ake a choice of schools before or 
a t the tim e  of his enrollm ent.

The form  on which the choice should be m ade is at­
tached  to this le tte r. It should be com pleted and re ­
tu rn ed  by June  1, 1967. You m ay  m ail it in the  en­
closed envelope, or deliver it by m essenger or by 
hand to any school p rincipal or to the Office of the 
Superin tendent a t any tim e betw een M ay 1 and June 
1. No one m ay requ ire  you to re tu rn  your choic»3 
form  before June  1 and no preference  is given for 
re tu rn ing  the choice form  early.



U. S., et al. V .  Jeff. County Bd. of Educ.s e t cd- 133

No principal, teach er or o ther school official is  p e r­
m itted  to influence anyone in m aking a choice or to 
requ ire  early  re tu rn  of the choice form . No one is p e r­
m itted  to favor or penalize any studen t or o ther per­
son because of a choice m ade. A choice once m ade 
cannot be changed except for serious hardship .

No child will be denied his choice unless for reasons 
of overcrow ding a t the school chosen, in  which case 
children living n eares t the school will have p re fe r­
ence.

T ransportation  will be provided, if reasonab ly  pos­
sible, no m a tte r  what school is chosen. [D elete if the 
school system  does not provide transporta tion .]

Your School B oard and the school staff will do 
everything we can  to see to it that the righ ts  of all 
students a re  protected  and th a t desegregation of our 
schools is carried  out successfully.

Sincerely yours,

Superintendent.

CHOICE FORM

This form  is provided for you to choose a school for 
your child to attend next year. You have 30 days to 
m ake your choice. It does not m a tte r  which school 
your child attended last year, and does not m atte r 
w hether the school you choose was fo rm erly  a white 
or Negro school. This form  m ust be m ailed or brought



134 U. S;, et aL v. Jeff, County Bd. of Educ., et aL

to the principal of any school in  the system  or to the 
office of the Superin tendent, [address], by June 
1, 1967. A choice is requ ired  for each  child.

N am e of child
(M iddle)(L ast) (F irs t)

Address ........................................................................

N am e of P a re n t or other
adult serving as p a r e n t ..........................................

If child is en tering  firs t grade, date of b irth ;

(M onth) (D ay) (Y ear)

G rade child is entering .............................................

School a ttended  last y ea r ...........................................

Choose one of the following schools by m ark ing  an X 
beside the nam e.

N am e of School G rade Location

Signature
D ate

To be filled in by Superin tendent;
School Assigned . ..

1 In subsequent years the dates in both the explanatory letter 
and the choice form should be changed to conform to the choice 
period.



17. S., et al. V. Jejj. County Bd. of Educ., e t  al. 135

APPENDIX B.

Rate of Change and Status of 
Desegregation

(Leeson, Faster Pace, Scarcer Records, 
Southern Education Report 28-32 (Jan.-Feb. 
1966), quoted in E m m erson  and H uber, Politi­
cal and Civil R ights in the United S tates, 695- 
99 (1967))

. Both the 11-state Southern a rea  and the border 
area, the  la tte r  consisting of six states and the D is­
tr ic t of Columbia, experienced a sh arp er increase  in 
the  percen tage  of Negroes in desegregated  schools for 
1965-66 th an  in previous years. But only the Southern 
states showed a changed attitude tow ard  reporting  
records by race ; in only th ree  Southern s ta tes  could 
nearly  com plete sta tistics  be obtained d is tric t by dis­
tric t. As in other years, th ree  of the border s ta tes  plus 
the  D istric t of Colum bia continued to keep records by 
race, and th ree  s ta tes  did not.

C orrespondents for Southern E ducation  R eporting 
Service . . . found th a t 15.89 per cent of the N egroes 
enrolled in the public schools of the region attended  
classes w ith w hites, m ostly in form erly  all-white 
schools but som etim es also in fo rm erly  all-Negro 
schools. This num bered  567,789 N egro students out of 
the reg ion’s Negro enrollm ent of 3,572,810.

In  the firs t 10 years a fte r the Suprem e Court de­
cisions on segregated  schools, in 1954 and 1955, the



136 U, S., et al. v. Jeff. County Bd. of Educ., et al.

Southern and  border region increased  the num ber of 
N egroes in schools w ith  whites a t an  av erag e  of about 
one p e r cent a y ear. A lthough the im petus of the  Su­
p rem e  C ourt’s ru lings and  the possibility of d irect in­
volvem ent in legal action  w ere fac to rs , m ost d istric ts 
desegregating  th rough last y ea r acted “ voluntarily” 
and  only about 10 p e r cent req u ired  a  specific court 
o rder. By the  end of the 1964-65 school y ear, the region 
h ad  enrolled 10.9 p e r cent of its N egro students in 
b irac ia l classroom s.

The 1964 Civil R ights A ct b rought p ressu re  on every 
d is tric t in the nation  bu t the com pliance effort ad m it­
tedly w as concen tra ted  on the South. . . . Beginning 
in the spring of 1965 and  continuing even th rough the 
f irs t m onths of the 1965-66 school-y^ear, HEW ’s Office 
of Education nego tia ted  w ith officials in each  d istric t 
to obtain  com pliance by the  school officials e ither 
signing a  s ta tem en t, subm itting  a court-ordered de­
segregation  p lan  or adopting a vo lun tary  plan.

W ith the new school year, the region had  increased 
the num ber of N egroes in  desegregated  schools by five 
percen tage points to reach  15.9 per cent, while in  the 
previous two school years the ra te  of increase in this 
figure  had  only been betw een one and two percen t­
age points. F o r 1964-65, the region had  10.9 per cent of 
the N egro enrollm ent in desegregated  schools, an in­
crease  of 1.7 percen tage  points over 1963-64, and for 
th a t  year the  9.2 p e r cent figure w as an  increase  of
1.2 percen tage  points over 1962-63. (See Table I .)  . . .



U. S., et al. V. Jeff. County Bd. of Educ., et al. 137 

TABLE I

The Rate of Change

Percentage of Negroes in Schools with Whites

School Year 
1959-60*

South
.160

%
Change Border

45.4
%

Change Region
6.4

%
Change

1960-61 .162 .002 49.0 3.6 7.0 .6
1961-62 .241 .079 52.5 3.5 7.6 .6
1962-63 .453 .212 51.8 0.7 8.0 .4
1963-64 1.17 .717 54.8 3.0 9.2 1.2
1964-65 2.25 1.08 58.3 3.5 10.9 1.7
1965-66 6.01 3.76 68.9 10.6 15.9 5.0

* First school year in which SERS began recording number of 
Negroes in schools with whites.

Up through the 1962-63 school year, the 11 Southern 
s ta tes  together had  few er than  one per cent of the ir 
N egro students in schools w ith whites. In  1963-64, the 
figure passed  the one per cent m a rk  and it a lm ost 
doubled for 1964-65 to becom e 2.25 per cent of the 
N egroes in b irac ia l schools, an increase  of m ore than  
one percen tage  point. F o r the 1965-66 school year, the 
percen tage  m ore than  doubled and reached  6.01 per 
cent.^
1 Other estimates are summarized in Report of the United 
States Commission on Civil Rights, Survey of School Desegrega­
tion in the Southern and Border States 1965-1966, 27-28 (Feb.

“ . . . The Office of Education based on a sampling of 590 
districts through a telephone survey conducted in cooperation with 
State departments of education, estimates that 216,000, or 7.5 
percent, of the Negro students in the 11 Deep South States are 
enrolled in school this year with white pupils. [Office of Educa­
tion, telephone survey. Table I, Sept. 27, 1965.] Civil rights 
organizations, relying upon figures obtained from, a variety of 
sources, including field workers, advance a lower figure. The 
Southern Regional Council’s estimate is 151,416 Negro pupus. 
or 5.23 percent of the total. [Southern Regional Council, School



138 U. S., et al. v. Jeff. County Bd. of Educ., et al.

The six border s ta tes  and the D istric t of Columbia 
desegregated  a t a fa s te r  ra te  than  did the South, and 
by the 1961-62 school y ear th a t a re a  had  m ore than  
half of its Negro enro llm ent attend ing  desegregated  
schools. The annual change in the num ber of N egroes 
in desegregated  border schools av erag ed  about th ree  
p er cent a year, and by 1964-65, the border a re a  had 
desegregated  58.3 per cent of its N egro enrollm ent. 
In  the cu rren t school year, the border a re a  has 68.9 
per cent of its Negro students attend ing  the  sam e 
schools w ith w hites, a jum p of over 10 percen tage 
points from  the previous y e a r’s figure.

This y ear, as in previous y ears, a  d isparity  exists 
betw een w hat m ight be called  “ techn ica l” desegrega­
tion and “ a c tu a l” desegregation. L ast y ear, for ex­
am ple, 56 per cent of the reg ion’s N egro students 
w ere enrolled in d is tric ts  having desegregation  pol­
icies, but about 11 per cent of the to ta l N egro en­
ro llm ent attended  desegregated  schools. This year, 
the region has 97 per cent of its d is tric ts  in official 
com pliance with federa l desegregation  regulations, 
and  93 per cent of the reg ion’s com bined N egro and 
white enrollm ent com es from  these d istric ts. How­
ever, the actual a ttendance  of N egroes in deseg regat­
ed schools am ounts to alm ost 16 per cent. The differ­
ence in these figures w as accentuated th is y e a r by the 
fac t that alm ost 2,000 school d is tric ts  having e ither all-

Desegregation: Old Problems Under a New Law’ 9, Sept. 1965.] 
The American Friends Service Committee and NAACP Legal De­
fense and Educational Fund agree that the actual figure is less 
than 6 percent [American Friends Service Committee and NAACP 
Legal Defense and Educational Fund, ‘Report on the Implementa­
tion of Title VI of the Civil Rights Act of 1964 in Regard to 
School Desegregation’ 4, Nov. 15, 1965].”



U. S., et al. V. Jeff. County Bd. of Educ., et al. 139

white or all-N egro enrollm ents a re  included in the “ in 
com pliance” statistics. . . .

Among the Southern sta tes, Texas leads in the num ­
ber and percen tage  of N egroes in schools w ith whites 
—an estim ated  60,000 N egroes or 17 per cent of the 
s ta te ’s Negro enrollm ent. Tennessee ranks second in 
the a re a  w ith 16 per cent and V irginia th ird  with" 11 
per cent. Three s ta tes—A labam a, Louisiana, and Mis­
sissippi—continue to have less than  one p e r cent of 
th e ir Negro enrollm ent a ttending schools w ith whites. 
The other Southern s ta tes—^Arkansas, F lo rida, G eor­
gia, N orth  C arolina-and South Carolina—v ary  betw een 
1 and 10 per cent of the ir N egro students in b irac ia l 
classfoom s.

All but one of the border s ta tes  have m ore than  
half of th e ir Negro enrollm ents in desegregated  
schools. O klahom a has 38 per cent of its N egroes in 
b irac ia l schools, M aryland has 56 per cent, and D ela­
w are, the D istric t of Columbia, K entucky, . . . 
M issouri and W est V irginia have desegregated  m ore 
th an  three-fourths of the ir Negro student popula­
tion. . . .

The desegregation sta tistic  showing the sh arp est in­
crease  this y ear w as the num ber of d istric ts  w ith de­
segregation  policies. The region now has 4,804 public 
school d istric ts th a t have received  approval from  the 
U. S. Office of Education for th e ir desegregation  pro­
posals. When the la st school y ear ended, SERS re ­
ported  th a t 1,476 d istric ts  had  desegregated  in p ra c ­
tice or in policy.



140 U. S., et al. v. Jeff. County Bd. of Educ., et al.

TABLE III

Status of D esegregation  

(17 Southern and Border States and D.C.) 

School Districts

Alabama
Total

118

With
Negroes

and
Whites

119

In
Compli­
ance''

105

Not In 
Compli­
ance^ 

14

Enrollment 
White Negro 

559,123** 295,848**

Negroes 
in Schools 

with Whites 
No. %ft 

1,250* .43
Arkansas 410 217 400 10 337,652** 111,952** 4,900* 4.38
Florida 67 67 67 0 1,056,805* 256,063* 25,000* 9.76
Georgia 196 180 192 5 784,917* 355,950* 9,465* 2.66
Louisiana 67 67 33 34 483,941 318,651 2,187 .69
M ississippi 149 149 118 31 309,413 296,834 1,750* .59
N orth C arolina 170 170 165 4 828,638** 349,282** 18,000* 5.15
South Carolina 108 108 86 21 374,007 263,983 3,864 1.46
T ennessee 152 129 149 2 714,241* 176,541* 28,801 16.31
Texas 1,325 850 1,303 7 2,136,150* 349,192* 60,000* 17.18
V irginia 130 127 124 12 757,037** 239,729** 27,550* 11.49

SOUTH 2,892 2,183 2,742 140 8,341.924 3,014,025 182,767 6.01

D elaw are 58 47 59 0 86,041 20,485 17,069 83.32
D ist. of Columbia 1 1 1 0 15,173 128,843 109,270 84.81
K entucky 200 167 204 0 713,451** 59,835** 46,891 78.37
M aryland 24 23 24 0 583,796 178,851 99,442 55.60
Missouri 1,096 212* 675 0 843,167 105,171 79,000* 75.12
Oklahoma 1,046 323 1,044 4 564,250* 45,750* 17,500* 38.25
W est V irginia 55 44 55 0 425,087* 19,850* 15,850* 79.85

BORDER 2,480 817 2,062 4 3,230,965 558,785 385,022 68.90

REGION 5,372 3,000 4,804 144 11,572,889 3,572,810 567,789 15.89

* Estimated. 
** 1964-65 .
t The sum of adding the districts “In Compliance” and “Not in Compliance” will not always equal the 

total number of districts because the Office of Education reports a different number of districts from that 
of some of the state departments of education.
tt The number of Negroes in schools with whites, compared to the total Negro enrollment.



U. S., et al. V. jQff. County Bd.. of Educ., et al. 141

COX, D istric t Judge, d issenting:
The m ajo rity  opinion herein im pels m y dissent, 

w ith deference, to its general them e, th a t p receden t 
requ ired  the public schools to m ix the races  ra th e r 
than  desegregate such schools by rem oving all effects 
of s ta te  action which m ay have heretofore com ­
pelled segregation, so as to pe rm it these schools to 
be operated  upon a p roper free  choice plan. This 
C ouit has heretofore firm ly  and soundly (as decision 
and not gratu itously) com m itted itself to the views 
expressed  by the distinguished ju rists  in Briggs v. 
Elliott, 132 F. Supp. 776. The m ajority  now seeks 
to criticize the Briggs case and d isparage  it as 
dictum , although this Court in severa l reported de­
cisions has em braced  and adopted Briggs w ith 
extensive quotations from  it as the decisional law  
of this C ircuit. Surely, only two of the judges of this 
Court m ay  not now single-handedly reverse  those de­
cisions and change such law of this Circuit.

These school cases all stem  from  the decision of 
the Suprem e Court of the United S tates in the fam il­
ia r  Brown cases.^ Nothing was said  in those cases or 
has since been said by the Suprem e Court to justify  
or support the ex trem ely  h arsh  p lan  of enforced in­
teg ra tion  devised by the m ajo rity  decision. Signifi-

1 Brown I Brown v. Board of Education of Topeha, 347 
US 483, 74 S.Ct. 686, 98 L.Ed. 873.

Brown II Brown v. Board of Education of Topeka, Kansas, 
349 US 294, 75 S.Ct. 753, 99 L.Ed. 1083.

On December 6, 1965 in Patricia Rogers, et al v. Edgar F. 
Paul, et al, 382 US 198, 86 S.Ct. 358, the Court decried delays 
in desegregation of public schools and called for an acceleration 
of the process, but neither said nor intimidated the existence of 
any power or the justification for any authority to forcefully mix 
or integrate these schools.



142 U. S., et al. v. Jeff. County Bd. of Educ., et al.

cantly, th e re  is nothing in the Civil R ights A ct of 1964 
to suggest the p roprie ty  of th is Court adopting and 
following any guidelines of the Health, Education 
and W elfare C om m issioner in these school desegre­
gation cases in such respect. T he policy s ta tem en t of 
Congress as contained in the ac t itself expressly dis­
claim s any intention or purpose to do th a t w hich these 
guidelines, and  the m ajo rity  opinion approving them , 
do in com plete d isregard  thereof.

No inform ed person  a t th is late date would now a r ­
gue w ith the soundness of the philosophy of the Brown 
decision. T hat case sim ply declared  the constitution­
al rig h t of negro children to a ttend  public schools of 
the ir own free  choice w ithout any kind of re s tra in t 
by state action. T hat Court has m ade it clear th a t the 
tim e for “ deliberate” speed in desegregating these 
public schools has now expired , but the m a jo rity  opin­
ion herein is the firs t to say  th a t the Brown case, to­
gether w ith the Civil R ights Act of 1964, m akes it nec­
essa ry  th a t these public schools m ust now in teg ra te  
and m ix these schools and their facilities, “ lock, 
stock and b a rre l.” That view com es as a s trange  con­
struction  of the F ou rteen th  A m endm ent righ ts of col­
ored children. The passage  of tim e since the rendi­
tion of the Brown case ; and of n a tu ra l d isparities 
which a re  found in so m any  school plans before the 
Court; and the difficult problem s posed before the 
Court by such plans certain ly  can provide no legal 
justification  or basis for this ex trem e view  and harsh  
and m ailed  fist decision a t th is tim e. These questions 
involving principles of com m on sense and law  are



U. S., et al. V. Jejf. County Bd. of Educ., et at. 143

readily  resolved by a court of equity w ithout being 
p roperly  accused of giving an advisory opinion. The 
decision in such case is not overtaxing on a court of 
equity and its a rticu la ted  conclusions can be im ple­
m ented by an enforceable decree even a t the expen­
ditu re  of some well spent tim e, patience and energy 
of the Court. If a Court is to w rite a decree, it should 
be the decree of th a t Court and not the by-product of 
som e adm in istra tive  agency without knowledge or 
sworn obligation to resolve sacred  constitutional 
righ ts  and principles. U nila terally  p rep ared  guide­
lines allegedly devised by the Com m issioner m ay 
or not accord  with his own views, but such an 
anom alously p rep ared  docum ent could not justify  
this Court in adopting it “ lock, stock and b a rre l” un­
der any p re tex t and even with repeated  disavow als 
of such intention or purpose.

The Constitution of the United S tates is not the dead 
hand of the past strangling the liberties of a free peo­
ple; it is a living docum ent designed for all tim e to 
perpetuate  liberty , freedom  and justice  for every  per- 
son, young or old, who is born under or who comes 
w ithin its protecting shield. As was said m any  years  
ago, “ in m oving w ater there  is life, in still w aters 
there  is stagnation  and d ea th .” The Constitution was 
fram ed  not for one era, but for all tim e. But when the 
Courts transform  viability into elasticity , constitu­
tional righ ts a re  illusory. The rope of liberty  m ay  be 
tw isted and becom e a garro te  which strangles those 
who seek its protection. If the m ajority  opinion in 
these cases is perm itted  to stand, it will, in the nam e



144 U. S., et al. v. Jeff. County Bd. of Educ., et al.

of p ro tecting  civil righ ts of som e, destroy civil rights 
and constitutional liberties of all our citizens, their 
children and the ir ch ild ren’s children.

The Suprem e Court, in Brown II, said th a t “ school 
au thorities have the p rim ary  responsibility  for elu­
cidating, assessing and solving these problem s; 
courts will have to consider w hether the action of 
school au thorities constitu tes good fa ith  im plem enta­
tion of the governing constitutional p rinc ip les.”  It 
thereupon  becam e the duty of the Court, acting as a 
Court of Equity , under such principles to see that pub­
lic schools, still operating under the dual system  by 
sta te  action, w ere desegregated  (not in teg ra ted ) in 
accordance w ith the vested  constitu tional righ t of col­
o red  children. Jud ic ia l haste  and im patience cannot 
justify  this Court in equating in tegration  w ith deseg­
regation. No Court up to this tim e has been h eard  to 
say  th a t th is Court now has the pow er and the au thori­
ty  to force in tegration  of both races  upon these public 
schools w ithout reg a rd  to any equitable considera­
tions, or the will or w ish of e ither race. The decisions 
of this Court deserve and m ust have stab ility  and in­
tegrity . I t was the 19G5 guidelines of HEW th a t were 
approved by this Court in Derek Jerom e Singleton v. 
Jackson Municipal Separate School District, 255 F.2d 
865. Judge W isdom w rote for the Court and Judge 
T hornberry  concurred in th a t case on Jan u a ry  26, 
1966; and there  w as not a w ord in th a t case to the ef­
fect that this Court then thought th a t any decision or 
s ta tu te  or guidelines under any s ta tu te  requ ired  or 
justified forced integration. A lm ost before th a t slip



U. S., et al. V. Jeff. County Bd. of Educ., et al. 145

opinion reached  the bound volume, th is Court has now 
w ritten  on D ecem ber 29, 1966, a  vastly  different opin­
ion w ith no change in tervening in the law.

The la s t reported  school case from  this C ircuit, de­
cided August 16, 1966 by Judge Tuttle and Judge 
T hornberry  in Birdie Mae Davis, et al v. Board of 
School Commissioners of Mobile County, et al, 364 
F.2d 896, this Court still w rote of accelerating  a plan 
of desegregation. As if to foreshadow  the point of 
Judge W isdom ’s “ n e ttle” in the m ajo rity  opinion in 
th is case. Judge Tuttle w rote in his Note 1 an expla­
nation of his changing requ irem en ts in these school 
cases for the delayed enjoym ent of constitutional 
righ ts by accelerating  desegregation. D avis said  that 
negro children, as individuals, had the righ t to tran s­
fer to schools from  which they w ere excluded be­
cause of their race, and said  th a t this had been the 
law  since the Brown decision; bu t that m isunder­
standing of th a t’principle was perhaps due to the pop­
u la rity  “ of an  oversim plified dictum  th a t the Consti­
tu tion  does not requ ire  integratioru, B riggs v. E lliott, 
132 F . Supp. 776, 777.” That is the firs t and only ex­
pressed  critic ism  of Briggs found am ong the decisions 
of th is C ircuit, but the Court did not com m ent upon 
the viability  and soundness of the m any decisions of 
this C ircuit which w holeheartedly em braced  and re ­
peated ly  reaffirm ed the so-called dicta  in Briggs. 
Dayis dealt with an u rban  a rea  in Mobile, A labam a, 
while these cases deal w ith sm all com m unities or 
ru ra l schools but th a t could have no possible bearing  
on desegregation versus or as distinguished from  im ­
m ediate  forced in tegration or m ixing of these schools.



146 17. S., et c l ,  V. Jeff. County Bd. of Educ., et c l .

In  Alfred Avery, Jr., a Minor by his Mother and 
N ext Friend, Mrs. A lfred Avery, et al v. Wichita In­
dependent School District, et al, 241 F.2d 230 (1957), 
this Court said:

“ The Constitution as construed in the School Seg­
regation  Cases, Brown v. B oard of Education, 347 U.S. 
483, 74 S.Ct. 686, 98 L .Ed. 873; Id ., 349 U.S. 294, 75 S.Ct. 
753, 99 L .Ed. 1083, and Bolling v. Sharpe, 347 U.S. 497, 
74 S.Ct. 693, 98 L .Ed. 884, forbids any s ta te  action re ­
quiring segregation of children in public schools sole­
ly on account of race; it does not, however, requ ire  ac ­
tua l in tegration  of 'the races. As was well said in 
B riggs V .  Elliott, D .C.E.D.S.C., 132 F . Supp. 776, 777:

“ * * * if  is im portan t th a t we point out exactly  w hat 
the Suprem e Court has decided and w hat it has not 
decided in this case. It has not decided th a t the fed­
e ra l courts are to take over or regulate  the public 
schools of the states. It has not decided th a t the states 
m ust m ix persons of different races  in the schools or 
m ust requ ire  them  to a ttend  schools or m ust deprive 
them  of the righ t of choosing the schools they  attend. 
W hat it has decided, and all th a t it has decided, is 
that a state  m ay  not deny to any person  on account of 
race  the righ t to a ttend  any school th a t it m ain tains. 
This, under the decision of the Suprem e Court, the 
s ta te  m ay  not do directly  or ind irectly ; but if the 
schools which it m ain ta ins a re  open to children of all 
races, no violation of the Constitution is involved even 
though the children of different races voluntarily at­
tend different schools, as they attend different



U. S., et al. V. Jeff. County Bd. of Educ., et al. 147

churches. Nothing in the Constitution or in the deci­
sion of the Suprem e Court takes aw ay from  the peo­
ple freedom  to choose the schools they attend. The 
Constitution, in other words, does not requ ire  inte­
gration. It m erely  forbids d iscrim ination. It does not 
forbid such segregation as occurs as the result of vol­
u n tary  action. I t  m erely  forbids the use of govern­
m en ta l power to enforce segregation. The F ourteen th  
Am endm ent is a lim itation upon the exercise of pow­
er by the sta te  or sta te  agencies, not a lim itation  upon 
the freedom  of individuals.”

Again, this Court in Hilda Ruth Borders, a Minor, 
et al V. Dr. Edwin L. Rippy, et al, 247 F.2d 268 (1957) 
said : “ The equal protection and  due process clauses 
of the F ourteen th  A m endm ent do not affirm atively  
com m and integration, but they do forbid any state 
action requiring segregation  on account of th e ir race 
or color of children in the public schools. A very v. 
W ichita F alls  Independent School D istrict, 5 Cir., 
1957, 241 F.2d 230, 233. Pupils m ay, of course, be sep­
a ra ted  according to their degree of advancem ent or 
re ta rda tion , their ability to learn, on account of th e ir 
health, or for any other legitim ate  reason, but each 
child is entitled to be treated  as an individual w ithout 
reg a rd  to his race  or color.”

In  a public housing case, participated  in by Judge 
Wisdom, Queen Cohen v. Public Housing Adm inistra­
tion, 257 F.2d 73, it is said : “ N either the F ifth  nor the 
F ourteen th  A m endm ent operates positively to com ­
m and in tegration  of the races, but only negatively  
to forbid governm entally enforced segregation .”



148 U. S., et al. v. Jeff. County Bd. of Educ., et al.

This Court in Sandra Craig Boson, et al v. Dr. Ed­
win L. Rippy, et al, 285 F.2d 43, said; “ Indeed, this 
Court has adopted the reasoning in B riggs v. E lliott, 
DC.E.D.S.C. 1955, 132 F. Supp. 776, relied  on by the 
Sixth C ircuit, and has fu rth er said ; ‘The equal p ro tec­
tion and due process clauses of the fourteenth  am end­
m ent do not affirm atively  com m and in tegration , but 
they  do forbid any state  action requiring  segregation  
on account of th e ir race  or color of children in the 
public schools. A very v. W ichita F alls  Independent 
School D istric t, 5 Cir., 1957, 241 F.2d 230, 233. Pupils 
m ay, of course, be sep ara ted  according to their de­
gree of advancem ent or re ta rd a tio n , the ir ability  to 
learn , on account of their health , or for any other le­
g itim ate  reason, but each child is entitled to be 
treated  as an individual, w ithout reg a rd  to his race 
or color.’ B orders v. R ippy, 5 Cir., 1957,-247 F.2d 268, 
271.

“ N evertheless, w ith deference to the views of the 
Sixth Circuit, it seem s to us th a t classification accord­
ing to race  for purposes of tran sfe r is hard ly  less un­
constitutional than  such classification for purposes 
of original assignm ent to a public school.” It is that 
■decision in Briggs v. Elliott, supra, which the m a jo r­
ity here now seek to criticize and repudiate.

In Ralph Stell, et al n. Savannah-Chatham Coun­
ty  Board of Education, et al, (5CA) 333 F.2d 55, 59, 
in footnote 2 it is said ; “ No court has requ ired  a ‘com ­
pulsory rac ia lly  in teg ra ted  school system ’ to m eet 
the constitutional m andate th a t there  be no discrim -



17. S., et al. V.  Jeff. County Bd. of Educ., et al. 149

ination on the basis of race  in the operation of pub­
lic schools. See E vers  v. Jackson  M unicipal Sepa­
ra te  School D istrict, 5 Cir., 1964, 328 F.2d 408, 
and cases there  cited. The interdiction is against en­
forced rac ia l segregation. Incidental in tegration , of 
course, occurs through the process of desegregation. 
Cf. Stone V .  B oard of Education of A tlanta, 5 Cir., 
1962, 309 F.2d 638.”

This Court in Darrell Kenyatta Evers, et al v. Jack- 
son Municipal Separate School District, 328 F.2d 408 
(1964) said: “ This is not to say th a t the Fourteen th  
A m endm ent com m ands in tegration  of the races in 
the schools, or tha t voluntary  segregation is not le­
gally perm issib le. See A very v. W ichita F alls  Ind. 
School D ist., 5 Cir., 1957, 241 F.2d 230; Rippy v. Bor­
ders, 5 Cir., 1957, 250 F.2d 690; Cohen v. Public Hous­
ing A dm inistration, 5 Cir., 1958, 257 f''.2d 73, cert, den., 
358 U.S. 928, 79 S.Ct. 315, 3 L .Ed. 2d 302; Holland v. 
Board of Public Instruction, supra; and Shuttlesw orth 
V .  B irm ingham  Board of Education, supra. The Su­
prem e Court did not hold otherw ise in Brown v. Board 
of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 
873.” The sam e teaching is expressed in a  p a rk  case 
from  this Court, styled City of Montgomery, Alabam a  
V.  Georgia Theresa Gilmore, 277 F.2d 364. In  the m any 
cases from  this Court involving the race  issue in pub­
lic schools (there being some forty-one of them  ac­
cording to the m ajo rity  opinion), not one of them  
speaks of any requ irem en t or duty of the school to 
forcefully in tegrate  the races, or to com pel the races 
to m ix w ith each other in public schools; but every



150 U. S., et al. v. Jeff. County Bd. of Educ., et al.

one of them  speak of desegregating  such schools. The 
w ord desegregate  does not ap p ear in W ebster’s New 
In ternational D ictionary, Second Edition, E dited  in 
1950. But W ebster’s New Collegiate D ictionary (a 
M erriam -W ebster) defines desegregation as: “ To 
free  itself of any law, provision or p rac tice  requiring 
isolation of the  m em bers of a p a rticu la r race  in sep­
a ra te  units, especially in m ilitary  service or in edu­
cation .’’

In sum , there  is no law  to requ ire  one of these pub­
lic schools to in teg ra te  or force m ix these races  in 
public schools. But these public schools, which have 
been heretofore seg regated  by s ta te  action, and op­
e ra te  under a dual system , should be requ ired  to re ­
m ove every  vestige of state influence tow ard  seg re­
gation of the races  in these schools; and these col­
ored children should be fully advised of their consti­
tutional righ t to attend public schools of the ir choice, 
com pletely w ithout reg a rd  to race. M any problem s 
exist and a re  c rea ted  by the p roper enforcem ent of 
desegregation  plans th a t will assure a full sweep of 
rea l freedom  of choice to these negro children, and 
this Court cannot by only two of its m em bers becom e 
im patien t as tra il-b lazers and rew rite  the decisional 
law  of this C ircuit as m y good friends have undertak­
en to do in this case.

Such a course would do violence to the ancient rule 
of S tare  Decisis. In  Donnelly Garment Co. v. Nation­
al Labor Relations Board, (8CCA) 123 F.2d 215: “ It is 
a long-established rule th a t judges of the sam e court



U. S., et al. V. Jeff. County Bd. of Educ., et al. 151

will not knowingly review , reverse  or overru le  each 
o th er’s decisions. Shreve v. Cheesman, 8 Cir., 69 F. 
785, 790, 791; P la ttn e r Im plem ent Co. v. In ternational 
H arvester Co., 8 Cir., 133 F . 376, 378, 379. The neces­
sity of such a ru le in the in te rest of an  orderly  ad­
m in istra tion  of justice is c le a r .” In  Sanford Napoleon 
Powell V. United States, (7CA) 338 F.2d 556 (1964), it 
is said : ‘‘Our decision in L auer has been criticized. 
However, this decision is the law of this C ircuit un­
less and until th is Court (p resum ably  sitting  en banc) 
would determ ine otherw ise or unless higher au thor­
ity  m ight so d e term ine .”

Rule 25(a) of the F ifth  C ircuit provides for a re ­
hearing  in any case upon vote of a m ajo rity  of the c ir­
cuit judges in active service for any reason  which ap­
p ears  to them  to be sufficient in the p a rticu la r case. 
O rdinarily , a hearing  or rehearing  en banc is not o r­
dered except ‘‘when necessary  to secure or m aintain 
uniform ity  or continuity in the decisions of the court, 
e tc .” The m ajo rity  opinion sim ply does not reflect the 
well considered and firm ly sta ted  com posite decision 
of this C ircuit; and in th a t view, is not an accurate 
or p roper s ta tem en t of the law in this case as it now 
exists in the F ifth  Circuit.

The Civil R ights Act of 1964 (42 U.S.C., 1958 ed., 
§2000c-6) refers to ‘‘desegregation in public educa­
tion” and not to forced m ixing or in tegration  of the 
races. T hat sam e section s ta tes  ‘‘provided tha t noth­
ing herein shall em pow er any official or court of the 
United S tates to issue any order seeking to achieve



152 U. S., et al. v. Jeff. County Bd. of Educ., et al.

a rac ia l balance in any school by requiring  the tran s­
porta tion  of pupils or students from  one school to an ­
other or one school d is tric t to another in o rder to 
achieve such rac ia l balance, or otherw ise enlarge 
the existing power of the court to insure com pliance 
w ith constitutional s tan d a rd s .” The English language 
sim ply could not be sum m oned to s ta te  any m ore 
c learly  than  does th a t very  positive enac tm en t of Con­
gress, th a t these so-called “ guidelines” of this ad ­
m in istra tive  agency are  not sac ro san c t expositions 
of school law (if so in tended), bu t are  actually  p ro ­
m ulgated  and being used in opposition to and  in v iola­
tion of this positive s ta tu te . C ontrary  to the m ajo rity  
opinion, it w as never the intention or purpose of the 
Congress to constitute the C om m issioner of H ealth, 
E ducation  and W elfare as the sidewalk superin tend­
ent of this Court in these school cases. On the  con­
tra ry , 42 U.S.C., 1958 ed., §2000c-2 provides th a t the 
C om m issioner, only upon application of a school 
board, state, municipality, school district or other 
governmental unit, can  render any techn ica l a ss is t­
ance to such an  applicant. Nowhere in that ac t is it 
contem plated th a t this court should abdicate its pow­
er and authority  to ac t upon and decide a case on ap ­
peal to it as a court of equity, and sim ply decide it 
by rubber stam ping one of the  annual guideline bul­
letins of an  adm in istra tive  bureau  of the U nited S tates 
in W ashington. The a ttitude and position of th is  Court 
in doing exactly th a t in this case is not im proved by 
disavowing any intention or purpose to do so.



U. S., et al. V.  Jeff. County Bd. of Educ., et al. 153

There w ere seven consolidated cases before the 
Court which a re  em braced  in this decision. Most, if 
not all, of the plans in those cases w ere defective and 
needed updating for a m ore rea listic  and effective ap ­
plication of the free choice principle under the fo rm er 
decisions of this Court; but they did not need or de­
serve the harsh and unprecedented trea tm en t ac­
corded these schools by the m ajo rity  decision in these 
cases. The colored children a re  not befriended and 
their lot is not im proved by this unprecedented m a ­
jo rity  opinion and the entire school system  will suffer 
under the im pact of this im provident adm in istra tive  
directive as thus adopted by th is Court.

My duty im pels me to file this DISSENT to the m a ­
jo rity  view in these cases w ith g rea t deference to both 
of m y distinguished associates.

Adm. Office. U. S. Courts—E. S. Upton Printing Co., N. O., La.