Johnsons Jr., v. Ryder Truck Lines, Inc. Brief for Respondent in Opposition

    Vlnited States Court of Appeals 

FIFTH CIRCUIT 

EDWARD W. WADSWORTH OFFICE OF THE CLERK ROOM 408-400 ROYAL ST. 

CLERK 
NEW ORLEANS, LA. 70130 

September 10, 1970 

Clerk 

U. 5. District Court 

P. O. Box 769 

Jackson, Miss. 

Nos. 28030 & 28042 - U.S.A. vs. Hinds 

County, et al 

Dear Sir: 

Enclosed is a certified copy of an order entered by 

the Court in the Kemper County School Board case. 

Very truly yours, 

EDWARD W. WADSWORTH, Clerk 

Gilbert F. Ganucheau 

Chief Deputy Clerk 

  

GFG/fcw 

Enc. 

cc and enc. to: 

Hon. Dan M. Russell, Jr. 

Mr. Melvyn Leventhal 

Mr. Jack Greenberg 

Mr. David L. Norman 

Miss Helen McDade  



  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT oi BeTgrd ER 
  

NOS. 28030 & 28042 2 10 mn 

  

UNITED STATES OF AMERICA, 

Plaintiff 

Ve. 

HINDS COUNTY SCHOOL BOARD, ET AL, 

Po fondants 

UNITED STATES OF AMERICA, 

| Plaintiff 

ih F 

THE KEMPER COUNTY SCHOOL BOARD, ET AL, 

Defendants : : 

  

Appeal from the United States District Court for 

the Southern District of Mississippi 

  

(September 10, 1970) 

Before BELL, THORNBERRY, and MORGAN, Circuit Judges 

BY THE COURT:-~- 

The findings of fact and recommendations of Honorable 

Dan M. Russell, Jr., United States District Judge, dated Sept- 

ember 4, 1970 and appemded hereto, relative to the student as- 

signment plan in the Kemper County School District are approved 
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and made the order of this court except insofar as the find- : |  ; 

ings and recommendations are directed to the charge of civil i 

contempt. 

Pending further consideration by this court and the 

rocelptios the report due from defendants on October 15,..1970 vo 

‘pursuant to our order of March 30, 1970, we pretermit Getision 

on the findings and recommendations of the district court that i 

“the charge of civil contempt against the defendants is moot 

and should be dismissed. The defendants are directed in the 

interim to striotly comply with all terms of our order of Nov- 

ember 7, 1960 including those relating to faculty assignment 

and student transportation. 

IT IS SO ORDERED this 8th day of September, 1970. 

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IN THE UNITED STATES COURT OF APPEALS ' 
FOR THE FIFTH CIRCUIT | 

  UNITED STATES OF AMERICA, | PLAINTIFF 

VERSUS NOS, 28030 and 28042 | 

HINDS COUNTY SCHOOL BOARD, ET AL, . © DEFENDANTS 

sity way | | | 
UNITED STATES OF AMERICA, | +. i PLAINTIFF 

VERSUS Buy a ssivo, 1371 | 

THE KEMPER COUNTY SCHOOL BOARD, ET iti © DEFENDANTS 

  

FINDINGS OF FACT AND RECOMMENDATIONS 

The above styled and numbered sehiool case, consolidated 

with other school pasde, Nos. 28030 and 28042, on. the docket of the 

Fifth Circuit Court of Appeals, is before this Court for che ; - 

weediiendation ofa new student assignment plan pursuant to the "i 

‘procedures outlined in the Appellate Court's order of Noverber 7, 

1969). ‘The original HEW student assignment plan for che Kemper 

County School District was first modified by the Appellate Cours 

on January 2, 1970. Because these modifications, as implemented, 

resulted in an all black attendance at four of the district's five 

schools, with a drop in attendance of nearly 1100 students, both 

black and white, from a total attendance of 2853, the school board 

again sought relief from the Appellate Court, which, by its order 

dated February 10, 1970, referred the board's motion to this Court 

to make recommendations for the balance of the 1969-70 school year, 

A hearing was had on February 24, 1970, and over the objections of 

the government this Court on February 27, 1970, recommended the 

acceptance, for the most part, of the board's requested modifica- 

tions. On March 18, 1970, the Appellate Court adopted in part       
 



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and Jojedted in part these recommendations. The school board under 

took to implement the assignment plan, as twice modified by che 

Appellate Court, the assignments wd sttendande as rerldeted by 

sohion] enrollownt Testes; being as follows: 

STUDENT ATTENDANCE 

      

  

SCHOOL CAPACITY GRADES W N T 

DeKalb 810° 1-12 202 100 302 
Whisenton 1530, 1-9 

11-12 0 1106 1106 

Scooba “330 1-8 \ 64 62 126 
Spencer | 750 1-12" +0 645 645 
Lynville (closed) 

TOTAL . 266 1913 2179 

Under this plan the tenth grade from Whisenton was assigned to 

DeKalb; from Walaenton one class each class period was transported 

to DeKalb, and from DeKalb one class each class period was trans- 

ported to Wilsonton. In the Scooba=Spencer ‘school zone, 89 negroes 

from Spencer were assigned to Scooba; sixth grade math classes from . 

. Scola and Spencer were taught at Spencer, ond eighth grade English [- 

classes from Spencer and Scooba were taught at Scooba. AtSendance 
’ 

figures shown above are those reflected in the school board's 

enrollment report. 

On June 29, 1970, the Appellate Court directed this 

Court to conduct a full hearing on a motion aod affidavits filed 

by the N.A.A.C.P. Legal Defense and Educational Fund, Inc., seek= 

ing an order adjudging the Kemper County school board in civil | 

contempt of the aforesaid orders of November 7, 1969, January 2, 

1970 and March 18, 1970 and on the board's answer and supporting 

affidavits, Prior to a hearing on the civil contempt charges, the 

government filed a motion alleging that the plan as implemented 

by the board had failed to desegregate the Schools in that the 

school attendance report filled with the Appellate Court reflected 

that, except for the 10th grade at DeKalb and the lst and 2nd 

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. grades at Scooba, all students in the school system remained in 

segregated schools, The government in Tn mot ion Eequested that. 

the Court requis the defendant school board to seek the: assistance 

of the Office of Education, Department of Health, Educagion and 

Welfare, in the development of a new plan of student desegregation 

for the 1970-71 school year, | 

On July 26, 1970, this Court held a full hearing on the 

contenpt charges, with all parties present, The thrust of the 

charges was that the classes interchanged between. DeKalb and 

Whisenton and between Scooba and Spencer remained segregated 

throughout the shuttle transportation and instructional time, 

that bus transportation otherwise remained segregated and the 

faculty ratio was not maintained, The board admitted these charges 

and denied others. By way of mitigation, the board pointed out 

that, following the order of March 18, 1970, only seven weeks ah 

‘remained in the school term in which to carry out the student 

assignment plan, as twice modified, and that the board did the 

best it could, Testimony was offered to show that the courses of 

study in the classes exchanged between the two sets of schools 

were not correlated in the sense of all classes having covered the 

same material, and to have integrated the clashing would have caused 

some students to suffer at the expense of others. The lack of a 

proper faculty ratio was attributed to teacher resignations. The 

board's position was that the plan was successful in that nearly 

400 of the drop-out students, black and white, veburhed after its 

implementation. 

At the conclusion of the hearing a conference was had 

in chambers with all parties present, and, in response to the 

government's aforesaid motion for a new plan, the school board 

was directed to seek assistance of a consultant staff of the 

Mississippi Educational Service Center, State College, Mississippi,   Fu 

 



      

in formulating a new student assignment plan, Mr, Tom J. Richey, 

with assistance of others from this Sonor, after visiting all 

schools in the district and consulting with the school superinten- 

dent on August 3nand 7, 1970, formulated a plan filed herein on 

August 26, 1970. The school board refused to accept the plan 

proposed by the Mississippl Educational Service Center and filed 

its own plan. As the opening of this school system for the year 

1970-71 has been delayed from its original opening date of 

August 24, 1970, this Court called for he emergency conference of 

all parties on September 3, 1970, This conference failed to 

produce an agreed upon plan, All parties being present, including 

the members of the school board and their counsel, and the board 

having waived formal notice and having consented to an immediate 

hearing, the Court proceeded with a hearing on the two plans before 

it. | | ‘ 

The plan offered by the school board calls for the same 

grade assignments to all schools as provided in the last spotless 

Court plan, set out above, with the addicional: provision that all 

tenth, eleventh, and twelfth grade students enrolled in vost lonsL 

agriculture would be assigned to the new vocationaletechnical | 

center in integrated classes. It additionally provides that one 

class each class period be transported daily from DeKalb to 

Whisenton for instruction in specified courses to be taught by 

‘negro teachers in integrated classes, and that one class each class 

period be transported daily from Whisenton to DeKalb to be taught 

in integrated classes by white teachers, It additionally provided 

for a unified athletic program for grades 9 to 12 at the DeKalb 

and Whisenton schools, The Court, mindful of the repeated 

difficulties of this board in implementing any plan to successfully 

eliminate the effects of a dual school system with a racial ratio 

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of 82% black and 187 white, as exists here, has. carefully con- 

sidered the board's proposal, and finds, as contanddd by the 

board, that, while more Integration has occurred under the last 

currently ioplenented plan, nonetheless, two. schools, Whisenton 

and Spencer, out of four, remained all black, and the provisions 

of the added proposals do not alter the fact that the students 

in this school system would still attend segregated schools alter 

what is in effect a freedom of choice plan, partially desegregat=- 

ed under a Sourde-dxchhnge program, and with a faculty assignment 

that does not. conform to the Singleton reditizenents, Such a plan 

is not acceptable under the decisions of the Fifth Circuit, and 

  

this Court cannot recommend it. See U,S.A. v. Board of Education 

of Webster County, Georgia, (No.. 29769, 5th Cir,, July 7, 1970). 
  

‘The plan prepared by the Mississippi Educational Service } 

Center, offered by the government, provides as follows: A 

  

  

PROJECTED ENROLLMENT 
SCHOOL Ras CAPACITY - GRADES W N I 

Whisenton | 1530 1-5, “118.809 © 927 
¢ 3 10-12 
DeKalb : 810 6-9 64 397 46) > 
Spencer -750 1m5, 65. 523 588 
Va 9-12 

Scooba 330 6-8 19 184 203 

John C., Stennis 420 10-12 (part-time students 
Vo-Tech from all high schools)| . 

The board contends that the palring of the schools in 

two zones as shown in the above plan with the high proportion of 

negro to white will again result in the loss of white students 

regained under the last implemented plan, and that, like the 

original HEW plan, it will not work, and that the schools will 

again become re-segregated with no white attendance, 

“In support of the Richey plan, the government offered 

the testimony of Mr. Richey, the consultant, who along with others 

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from Mississippi Educational Services Center, prepared the plan, 

He stated that his staff followed the suidelines get forth in 

the Singleton requirements. They visited each school, and 

determined upon thie pairing arrangement in two zones according to 

the suitability and capacities of the respective schools, and 

according to the last, enrollment figures reported by the school 

board. An amended metes and bounds description of the line 

between the two zones has been made a part of the plan filed 

herein as an exhibit, This Court has no alternative but to 

recommend the approval of the Richey plan with two changes in 

grade assignments, The Richey plan would assicn grades 1=5 rd 

9-12 in the Spencer-Scooba zone to Spencer and split off grades 

6-8 to Scooba, Similarly in the DeKalb-Whisenton zone it would 

assign grades 1-5 and 10-12 to Whisenton and split off grades 6-9 

to DeKalb. The Court finds no compelling reasons for this unusual 

arrangement of grades which, in effect, creates a middle school. 

Having examined the building information supplied as part of the 

"plan, the Court on its own initiative recommends that the Richey 

plan be amended to assign students in the DeKalb-Whisenton zone | 

in grades 1-5 to DeKalb and in Senda 6-12 to Whisenton, and in 

the Scooba-Spencer zone, students 0 grades 1-4 to Scooba, and 

grades 5-12 to Spencer, The building space 1s adequate for these 

assignments, and a continuity of grades is preserved without 

affecting .the racial composition, 

As to the contempt hearing, this Court finds that the 

admitted failures of the school board to comply in all particulars 

with the previously approved plan were not wilful, and, in view 

of the impending approval of a new student assignment plan, the 

charges have become moot and should be dismissed. 

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The Court so recommends and directs the Clerk of this 

Court to file the original of this Findings of Fact and Recommenda~- 

tions with the Clerk of the Appellate Court, along wish the 

original Richey Plan together with the amended description of 

the zone boundary, file a duplicate copy of the Findings of Fact 

and Recommendations in his office, and mail a copy to all parties 

of record, attaching thereto the amended zone line, 

Gran (lens pia . Ottamnel’ 
  

  

UNITED STATES DISTRICT JUPGE” - 

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DATED: Dems 

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Appr 

ALTERATION OF PAGE § If A REPORT 70 TE CARRY 

In order to bring about & unitary school system in which eohoola are not 

1dentifishlo by rece, the following recommendations mre suited in compliance 

UIA th Court Gitlerss 

tekst cnt tas iil mnt figures supplied by the swerintendent 

Ve rocomands | = Lis 

That Kemper County be divided into two schodl attendmee zones. who Abvidii 

Jina should begtn ab the Forth bounlary Ina of Eomer County, between Range 16 Tasty 

and Range 17 Fast, end run South oa a straight line to the intersection of corners ad 

of section 1 end 12, Range 16 East, townchip 11 North, and scotia 6 and 7, Rong. | 

17 East, tomaldp 11 Northy thenco Bastvard on @ straight line to intersection 

. of corners of soctians by, 3, 9 end 10 of Range 17 Dust, township 11 Forthy thence 

Souttnard on @ straight 11n0 to the Northeast comer of sceticn 15 in township 9p EL 

Korth range 17 East end ruming in & Soutivesterly dircotion to the Soutivoat 

corner of sooticn 29, township 9 arth, range 17 Bast and rumilng thence West 

to tho Northeast corner of eoction 30 tomaltdp 9 North, yunge 17 Rost ext thence 

South to the Xempor County 1ins. | i 

Zone 1 will encompass tho following school attendance conterss 

Spencer which will house Grofies 3 through 5p end 9 though 12. 

Scooba which will house grades 6 throu Os 

Zeno IX vill encompass the following 8 school ettondonce centorse 

Wialsenton which wll house gred 23 3 though 9 ad 30 through 126 

DaXelb which wild howe grades § throu Qe 
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