Gaines v. Dougherty County Board of Education Brief for Appellants

    IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT 

NO. 30290

SHIRLEY GAINES, et al.,
plaintiffs-Appellants, 

versu s
DOUGHERTY COUNTY BOARD OF EDUCATION, et al.,

Defendants-Appellees.

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

BRIEF FOR APPELLANTS

C. B. KING 
ELLIOT HOLDEN 

P. O. BOX 1904 Albany, Georgia 31702
JACK GREENBERG NORMAN J. CHACHKIN 10 Columbus Circle 

New York, New York 10019
Attorneys for Appellants



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

NO. 30290

SHIRLEY GAINES, et al.,
Plaintiffs-Appellants,

versus
DOUGHERTY COUNTY BOARD OF EDUCATION, et al.,

De fendants-Appellees.

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

BRIEF FOR APPELLANTS

Issues presented for Review

1. Whether the nearest school assignment plan 
approved by the district court establishes a unitary school system 
in Dougherty County, Georgia in light of the alternative techniques 
available as represented by the HEW plan.

2. Whether the majority to minority transfer provision 
contained in the plan approved by the district court conformed to 
the requirements of recent decisions of this court.



I

Staitement of the case

This school desegregation case was originally filed 
April 5, 1963. Subsequent proceedings resulted in the entry of a 
Jefferson decree on April 12, 1968 following summary reversal by 
this court. Gaines v. Dougherty County Board of Education, 392 
F.2d 669 (5th Circuit 1968).

On June 20, 1968 following the decision of the United 
States Supreme Court in Green v. County School Board of New Kent 
County, 391 U.S. 430 (1968), plaintiffs-appellants filed a Motion 
for Further Relief seeking implementation of a desegregation plan 
other than freedom of/choice. The district court denied the Motion 
on December 12, 1968. Thereafter plaintiffs filed a Motion for 
Reconsideration on June 3, 1969 in light of this court's opinion in 
Hall v. St. Helena parish School Board, 417 F.2d 801 (5th Cir. 1969). 
August 8, 1969 the district court ruled that effective with the 
1970-71 school year freedom of choice could no longer be used in 
Dougherty County. The court's decree required the board to consult 
with the Department of Health, Education and Welfare and to attempt 
to agree upon a plan of desegregation with that agency. In any 
event, the board and HEW were directed to submit plans within 90 
days of the August 1969 Order.

December 15, 1969 the board filed its plan which recited 
that the board could not agree with HEW. The Department apparently 
submitted its plan to the district court at the same time, although 
it has never been served upon counsel for plaintiffs-appellants

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(Tr. 3).
After a hearing, April 28, 1970, the district court

on June 30, 1970 entered the Order appealed from approving the
school board's plan without modification. July 14, 1970 plaintiffs
filed Notice of Appeal; August 3 this matter was docketed in this

2/court.

Statement of Facts
The pupil population of the Dougherty County school system 

is 41% black. Most of the schools are located within or adjacent 
to the city limits of Albany, Georgia. The city is bisected by the 
Flint River; neither t,he School Board nor the HEW plan would assign 
students across the river.

The board proposed to assign each student to the school 
nearest his residence, subject to a right of majority to minority 
transfer without provision of transportation. See, Ellis v. Board 
of Public Instruction of Orange County, 423 F.2d 203 (5th Cir., 1970).

1/ Citations are to the transcript of hearing April 28, 1970.
2 / August 20, 1970 this court denied appellants' request for

an extension of time to file their brief; however, this short 
brief is being submitted for the assistance of the court 
because appellants are advised that this school desegregation 
appeal will not be dismissed despite denial of a Motion for an Extension of time.

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The HEW plan has never been served upon plaintiffs-appellants; 
however, the Department of HEW in Washington has provided counsel 
with pupil projections and grade structures under the HEW plan 
which indicate considerable rezoning for the purpose of promoting 
desegregation and the pairing of six elementary schools.

A comparison of the percentage of black students who 
would be assigned to each school under the board's plan and the 
HEW plan follows as Table I:

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TABLE I

Grades Served and Grades Served
School % Black, Board ^lan % Black. HEW 1

Albany High School 10-12 27% 10-12 28%
Monroe High School 
Dougherty County High

10-12 78% . 10-12 67%

School 10-12 22% 10-12 28%
Westover High School 10-12 2% 10-12 36%

Albany Junior High 7-9 18% 8-9 27%
McIntosh Junior high 7-9 18% 7 31%
Dougherty Junior High 7-9 26% 7-9 40%
Merry Acres Junior High 7-9 1% 7-9 39%
Carver Junior High 7-9 98% C L 0 S E D
River Road Junior High 7-9 98% 7-9 68%
Southside Junior High 7-9 78% 7-9 89%
Radium Junior High 7-9 12% 7-9 9%

Broad Elementary 1-6 79% C L 0 S E D
Coachman 1-6 86% 1-6 78%
Flintside 1-6 99% 1-6 98%
Hazzard 1-6 80% 1-6 48%
Highland 1-6 80% 1-3 80%
Isabella 1-6 12% 1-6 9%
Jackson Heights 1-6 94% 4 -6 48%
Lake Park 1-6 8% 1-6 8%
Lincoln Heights 1-6 98% 1-6 84%
Madison 1-6 100% 4-6 78%
Magnolia 1-6 4% 1-6 4%
Mamie Brosnan 1-6 26% 1-3 48%
Mock Road 1-6 4% 1-6 4%
Morningside 1-6 0% 1-6 16%
Northside 1-6 0% 1-6 10%
Palmyra 1-6 0%o 1-6 11#
Radium Springs 1-6 18% 1-6 18%
River Road 1-6 100% 1-6 78%
Sherwood 1-6 2% 1-6 18%
Sylvandale 1-6 12% 1-3 48%
Sylvester Road 1-6 2%> 1-6 12%
Tift 1-6 68% 4-6 44%
Turner 1-6 4% 1-6 13%
Wes tover

I

1-6 8%

5 -

1-6 19%



ARGUMENT
I.

TEE BOARD'S PLAN FAILS TO ACHIEVE 
A UNITARY SCHOOL SYSTEM IN DOUGHTERY COUNTY, GEORGIA

Under the plan approved by the district court in 
this 41% black school system, there will remain one high school 
78% black and one high school 98% white; two junior high schools 
95% or more black and one junior high school 99% white; two all­
black elementary schools, three other elementary schools 94% or 
more black, seven elementary schools 95% or more white, and an 
additional three all-white elementary-schools. it is thus clear 
that adoption of Ellis assignment methods in this district fails 
to bring about a unitary school system. Mannings v. Board of 
Public instruction of Hillsborough County, No. 28643 (5th Cir.,
May 11, 1970); uavis v. Board of School Commissioners of Mobile,
No. 29,332 (5th Cir., June 8, 1970); Henry v. Clarksdale Municipal 
Separate Sch. Dist., No. 29165 (5th Cir., August 12, 1970); Ross v. 
Eckels, No. 30080 (5th Cir., August 25, 1970).

The HEW plan demonstrates that without violating what 
this court has termed the "reasonable concept of a neighborhood" 
but using the techniques of rezoning and contiguous pairing, all­
black and all-white schools in Dougherty County can be eliminated. 
Clearly the HEW plan is preferable to that approved by the court 
below.

I

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It would therefore be appropriate to require implementation 
by the district court of this plan or any other which would achieve 
at least the same amount of desegregation. pate v. Dade County 
School Board, No. 29039 (5th Cir., August 21, 1970) .

II. •
THE MAJORITY TO MINORITY TRANSFER 
PROVISION FAILS TO MEET CONSTITUTIONAL 
STANDARDS

The plan approved by the court below does not require the 
school board to furnish transportation to students exercising their 
right to the majority .to minority transfer provision. This is 
clearly insufficient in light of the recent decisions of this court. 
Singleton v . Jackson Municipal Separate School District, No. 29226 
(5th Cir., May 5, 1970); Hightower v. West, No. 29933 (5th Cir.,
July 14, 1970); Carr v. Montgomery County Board of Education,
No. 29521 (5th Cir., June 29, 1970); Allen v. Board of Public 
Instruction of Broward County, No. 30032 (5th Cir., August 20, 1970).

CONCLUSION
Wherefore, for the foregoing reasons plaintiffs-appellants 

respectfully pray that the judgment be;low be reversed and the cause 
remanded with directions to implement the HEW plan and to amend the

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majority to minority transfer provision in accordance with recent 
decisions of this court.

Respectfully submitted,

C. B. KING 
ELLIOT HOLDEN

. P. 0. Box 1904
Albany, Georgia 31702

JACK GREENBERG 
NORMAN J. CHACHKIN

10 Columbus Circle
• New York, New York 10019

Attorneys for Appellants
►,/

Certificate of Service

I hereby certify that on this ____ day of August, 1970
I served two copies of the foregoing Brief for Appellants upon 
Jesse w. Walters, Esquire, p. O. Box 527, Albany, Georgia 31702 by 
United States mail, first class postage prepaid.

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