Davis v. Mobile County Board of School Commissioners Brief for State of Alabama as Amicus Curiae

    October Term, 1970 

NO. 436
Birdie Mae Davis, et al .,

'Petitioners,
v.

Board of School Commissioners 
of Mobile County, et al.,

R espondents.
On W rit of Certiorari to the United States 

Court of Appeals for the Fifth Circuit

IN THE

Suprem e C ourt of tjje Winittb £§>tateg

BRIEF FOR THE 
STATE OF ALABAMA 
AS AMICUS CURIAE

A lbert P. Brewer 
G overnor o f  th e  
State o f  Alabama 
State Capitol
Montgomery, Alabama 36104 
MacDonald Gallion 
A ttorn ey G eneral 
State o f  Alabama 
Administrative Building 
Montgomery, Alabama 36104 
J oseph D. Phelps 
Special Assistant 
A ttorn ey General f o r  th e  
State o f  Alabama 
36 South Perry Street 
Montgomery, Alabama 36104 

Hill, Robison, Belser and Phelps 
36 South Perry Street 
Montgomery, Alabama 36104
O f Counsel__________________________________



October Term, 1970 

NO. 436
Birdie Mae Davis, et al.,

Petitioners,
v.

Board of School Commissioners 
of Mobile County, et al.,

R espondents.
On W rit of Certiorari to the United States 

Court of Appeals for the Fifth Circuit

IN THE
Suprem e C ourt of tfie Mntteb £>tateg

BRIEF FOR THE 
STATE OF ALABAMA 
AS AMICUS CURIAE

A lbert P. Brewer 
G overnor o f  th e 
State o f  Alabama 
State Capitol
Montgomery, Alabama 36104 
MacDonald Gallion 
A ttorn ey General 
State o f  Alabama 
Administrative Building 
Montgomery, Alabama 36104 
J oseph D. Phelps 
Special Assistant 
A ttorn ey G eneral fo r  th e 
State o f  Alabama 
36 South Perry Street 
Montgomery, Alabama 36104 

Hill, Robison, Belser and Phelps 
36 South Perry Street 
Montgomery, Alabama 36104
O f Counsel__________ ___________ ___________



INDEX

Page

The Interest of the State of Alabama 1

Questions Before the Court ...........................................................  2

Statement of the Case ..................................................... ..............  3

Argument .........................................................................................  5

Position of Petitioners ......................................................   5

Position of the State of Alabama ..........................................  5

A  UNITARY SCHOOL SYSTEM IS CONSTITU­
TIONALLY ACHIEVED BY THE USE OF NON- 
DISCRIMINATORY ATTENDANCE A R E A S  
WITHOUT COMPULSORY RACIAL BALANC­
ING IN EACH SCHOOL THROUGHOUT THE 
SYSTEM.

Conclusion 19



TABLE OF AUTHORITIES

Cases:

Alexander v. Holmes, 396 U. S. 19,
90 S. Ct. 29, 24 L. Ed 2d 19 .................................  8, 9, 13,

Bolling v. Sharpe, 347 U. S. 497,
74 S. Ct. 693, 98 L. Ed 884 .......................................................

Brown v. Board of Education, 347 U. S. 483,
74 S. Ct. 686, 98 L. Ed 873 .............................  9, 10, 13, 17,

Brown v. Board of Education, 349 U. S. 294,
75 S. Ct. 753, 99 L. Ed 1083 ..........................................  8, 10,

Carr v. Montgomery County Board of Education,
........ F. Supp.......... , Civil Action 2072,
M. D. Ala. (Feb. 24, 1970). A f f ’d 5th Cir. 
No. 29521 (June 29, 19 7 0 )...................................

Carter v. West Feliciana Parish School Board, 
396 U. S. 290, 90 S. Ct. 608, 24 L. Ed 2d 477

Cooper v. Aaron, 358 U. S. 1, 78 S. Ct. 1401, 
3 L. Ed 2d 5 .................................................

Green v. School Board of New Kent County,
391 U. S. 430, 88 S. Ct. 1689, 20 L. Ed 2d 7 1 6 ... 7, 8, 13, 17,

Jones v. Mayer, 392 U. S. 409, 88 S. Ct. 2186, 
20 L. Ed 2d 1189 ............................................

Northcross v. Board of Education, 397 U. S. 232,
90 S. Ct. 891, 25 L. Ed 2d 246 .......................................... 13,

Shelley v. Kraemer, 334 U. S. 1, 68 S. Ct. 836, 
92 L. Ed 2d 1161 ............................................

17

9

18

18

15

8

9

18

18

16

17

11



Singleton v. Jackson Municipal Separate School District,
No. 29226, 5th Cir. (May 5, 1970) ...................................... 7

United States v. Montgomery County Board of
Education, 395 U. S. 225, (June, 1969) .........................  15, 16

Periodicals:
R. Carter, The Warren Court and Desegregation,

67 Mich. L. Rev. 237 (1968) ..............................................  18

D. Cohen, Racial Equality in Education— Part I,
16 UCLA Law Rev. 255 (1969) ..........................................  13

J. Kaplan, Equality in an Unequal World,
61 Nw. U. L. Rev. 363 (1966) ..........................................  13

J. Kaplan, Segregation Litigation and the Schools—
Part II, 58 Nw. U. L. Rev. 157 (1963) ............  9, 11, 12, 14, 17

Effects of Segregation and the Consequences of 
Desegregation: A  Social Science Statement,
37 Minnesota Law Rev. 427 (1953) .................................. 10

21 U. S. L. Week 3164 (December 16, 1952) ..................... 11

Statutes

42 U. S. C. § 2000(c) ................................................................. 14

42 U. S. C. § 3303 (d) ..................................................................  14

42 U. S. C. § 3601 .................................................................... 18

20 U. S. C. § 884 .................................................................... 14

Public Law No. 90-557, § 410, 82 Stat.
969 (1969) ...................................................................................  14

iii



October Term, 1970 

NO. 436
Birdie Mae Davis, et al .,

Petition ers,
v.

Board of School Commissioners 
of Mobile County, et al .,

R esponden ts.

BRIEF FOR THE 
STATE OF ALABAMA 
AS AMICUS CURIAE

IN THE

Suprem e C ourt of tfje Mntteb isrtateg

THE INTEREST OF THE STATE OF ALABAMA

This brief, amicus curiae, is presented by the State 
of Alabama and is sponsored by the Attorney General 
of the State of Alabama, pursuant to Rule 4 2 (4 ), 
Rules of the Supreme Court of the United States. 
School children throughout the State of Alabama are 
vitally affected by the issues before the Court in this 
case. The State of Alabama recognizes the mandate to 
establish nonracial and unitary school systems. In view 
of the position taken by the petitioners, it is of critical 
importance for this Court to again define the require­
ments of a unitary school system and to thereby allow 
school systems throughout this state and throughout 
the nation to proceed with their vital function of edu­
cating children, regardless of race, and in a nondis- 
criminatory manner.



2

The definition of the unitary system, as advanced by 
the petitioners, would require racial quotas and racial 
balancing in public education. The maintenance of 
such balances and racial ratios would of necessity for­
ever require affirmative racial consciousness in public 
education. Attendance areas would have to be racially 
gerrymandered or noncontiguous zones shifted or chil­
dren bused from different areas year after year, with 
no concern for the stability which is so important to the 
school world of a child. We do not here contest the 
affirmative duty of school boards to abolish dual school 
systems. W e do, emphatically, urge that racial ratios 
and racial balances are not constitutionally required 
in the establishment or maintenance of the unitary sys­
tem.

THE QUESTIONS BEFORE THE COURT

1. Must any particular racial balance be achieved 
in every school throughout a school system wherein 
no person is effectively excluded from any school be­
cause of race or color?

2. Must nondiscriminatory and fairly conceived 
geographic school attendance areas be altered to achieve 
any particular racial balance in every school through­
out a system wherein no person is effectively excluded 
from any school because of race or color?

3. Must children be bused from one nondiscrimina- 
tory geographic attendance area to another for the 
sole purpose of achieving or maintaining any particu­
lar racial balance or racial ratio in every school 
throughout a system wherein no person is effectively 
excluded from any school because of race or color?



3

4. Is geographic districting based on place of resi­
dence an unreasonable classification so as to offend the 
equal protection clause?

5. Is the failure to bus children to and from school 
for the purpose of achieving a racial balance so un­
reasonable as to violate constitutional demands?

STATEMENT OF THE CASE
The Court of Appeals for the Fifth Circuit on June 

8, 1970, upon obtaining supplemental findings of fact 
from the district court below, reviewed the constitu­
tional effectiveness of proposed desegregation plans for 
the Mobile, Alabama school system.1 In the June 8, 
1970, order, as amended, the Court of Appeals held 
six elements to be essential in disestablishing a dual 
school system; i.e., composition of student bodies, fac­
ulty, staff, transportation, extracurricular activities 
and facilities. The court held the plan approved by 
the district court to be constitutionally defective in 
student assignment and also in faculty and staff assign­
ments.

On the element of student assignment, which is the 
issue that petitioners have now brought before this 
Court, the Court of Appeals stated that it had studied 
several proposals for student assignment as submitted 
by the Justice Department, by the Department of

1. On August 4, 1970, the Court of Appeals for the Fifth Cir­
cuit amended the June 8, 1970, order by approving certain non- 
discriminatory attendance area changes which the district court 
provided upon remand, some of which actually increased the de­
gree of desegregation.

The Court of Appeals for the Fifth Circuit on August 4, 1970, 
also approved the finalizing of zoning for the entire system which 
the district court provided upon remand.



4

Health, Education and Welfare, and by the school 
board.2

The Court of Appeals concluded that the Depart­
ment of Justice plan, as modified by the court to in­
crease desegregation, would disestablish the dual school 
system in the Mobile schools. The plan as approved is 
basically an attendance area plan which increases deseg­
regation by the pairing of some schools which are in 
close proximity, and by the restructuring of grades in 
others. (The Court of Appeals requires complete de­
segregation of faculty and staff.) The approved plan 
maintains the neighborhood school concept while elimi­
nating all but eight Negro facilities out of a total of 
96 schools in the system. Under the approved plan, 
25% of the Negro students (7,725 out of 30,884) 
will be assigned to the eight schools which would re­
main all or virtually all Negro schools.3 The court 
found that these all Negro student bodies were the re­
sult of neighborhood patterns and ordered a majority 
to minority transfer provision with transportation in 
order to alleviate neighborhood entrapment.

Other plans before the court involved extensive 
transportation, contiguous and noncontiguous zoning, 
contiguous and noncontiguous pairing, and extensive 
cross busing. The only such plan before the court 
which eliminated every all, or virtually all, Negro 
school was designated as "HEW Plan B-l Alternate.” 
This alternate plan called for noncontiguous zoning

2. The pi ans of the Justice Department and of the Department 
of Health, Education and Welfare are set forth in footnote 3 in 
the June 8, 1970, opinion of the Court of Appeals for the Fifth 
Circuit.

3. These eight schools are all at the elementary level.



5

and the noncontiguous pairing of every all Negro 
school in predominantly Eastern Mobile with a pre­
dominantly white school in Western or Southern Mo­
bile (across the system) and for extensive cross trans­
portation of both white and Negro children.

ARGUMENT
In this brief amicus, we shall not attempt to encom­

pass the full range of detailed factual data argued by 
the parties to the case. Rather, we shall refer to the 
order and opinion of the Court of Appeals for the Fifth 
Circuit, and to the underlying legal significance to 
public education throughout the nation.

POSITION OF PETITIONERS
The petitioners ask this Court to immediately im­

plement the plan designated as "HEW Plan B -l Alter­
nate.” It is obvious that petitioners seek the altering 
of attendance zones, the busing of children, and the 
utilization of noncontiguous and "satellite zoning” for 
the purpose of achieving a racial balance or racial quota 
in every school throughout the system. The petitioners 
further seek to have this Court issue a directive to the 
effect that the neighborhood concept of student as­
signment can constitutionally be used only if racial 
balancing is achieved. (Page 31, Motion to Advance, 
and Petitioner for W rit of Certiorari.)

POSITION OF THE STATE OF ALABAMA
A UNITARY SCHOOL SYSTEM IS CONSTITU­
TIONALLY ACHIEVED BY THE USE OF NON- 
DISCRIMINATORY ATTENDANCE A R E A S  
WITHOUT COMPULSORY RACIAL BALANC­
ING IN EACH SCHOOL THROUGHOUT THE 
SYSTEM.



6

The petitioners urge the immediate imposition in 
the Mobile County School System of a desegregation 
plan which would require the utilization of extensive 
cross-busing (white children bused across town to 
schools in predominantly black residential areas, and 
black children similarly bused into predominantly 
white residential areas) ; and which would require the 
noncontiguous pairing of each Negro school in Eastern 
Mobile with a predominantly white school in Western 
or Southern Mobile. Petitioners urge this plan over the 
one required by the Court of Appeals on the sole ground 
that under the plan suggested by petitioners, there 
would be no all black or virtually all black schools 
within the Mobile system. Under the plan approved by 
the Court of Appeals, as previously noted, only eight 
out of a total of 96 schools would remain Negro. The 
Court of Appeals in requiring the plan now before the 
Court and which the court found would disestablish 
the dual system, stated:

"We have examined each of the plans presented to 
the district court in an effort to determine which 
would go further toward eliminating all Negro or 
virtually all Negro student body schools while at the 
same time maintaining the neighborhood school con­
cept of the school system.”

It is apparent that the Court of Appeals was seeking 
the most effective and workable, nondiscriminatory 
student assignment plan. Clearly, contiguous zones 
and pairings where schools are in close proximity are 
more workable than noncontiguous zoning and pair­
ing. It is obvious that cross town transportation would 
result in educational disruption and confusion and since 
such measures have as their avowed goal the mainte­
nance of some racial balance in all schools throughout



7

the system, they are subject to constant and annual 
change as residents move from one area to another 
within the district, or when residents move out of the 
district entirely.

The opinion of the Court of Appeals evaluates the 
entire system to determine whether the dual system 
would be eliminated under the required plan. The 
court below specifically noted that every Negro child 
will attend school in a desegregated junior high and 
high school on a neighborhood basis. This approach is 
entirely consistent with the language of G reen, which 
speaks in terms of the w h o le  system.1

The Court of Appeals for the Fifth Circuit in a re­
cent opinion by Chief Judge John Brown noted on 
May 5, 1970, that the entire system must be evaluated 
(See footnote 6, on Page 8 of Opinion), and further 
made the following critical analysis:

"The deficiencies do n o t lie in th e sim ple ex isten ce o f  
som e sch oo ls tha t are all o r  v ir tu a lly  all N egro or 
w hite. They lie instead in the fact that a substantial 
number of Negro students will receive their entire 
public education in a segregated school environ­
ment. . .” (Emphasis added) S ingleton  v . Jackson  
M unicipal Separate S choo l ’D istrict, No. 29226, 
5th Cir. May 5, 1970.
The court below reached a logical, reasonable and 

constitutional conclusion in selecting the most effective 
plan which maintained the basic concept of the neigh­
borhood school.

Desegregation plans are properly weighed according 
to their effectiveness, within the boundaries of educa­
tional soundness and administrative feasibility. G reen 4

4. Green v. School Board of New Kent Comity, 391 U. S. 430, 
88 S. Ct. 1689, 20 L. Ed 2d 716.



8

v . S choo l Board o f  N ew  K en t C oun ty, 391 U. S. 430, 
88 S. Ct. 1689, 20 L. Ed 716.

Courts throughout the country are commissioned by 
B row n II to give "weight to public and private con­
siderations.” 349 U. S. 294, at 300; G reen v . S chool 
Board o f  N ew  K en t C oun ty, supra, speaks in terms of 
plans that are "reasonably available” and "feasible”, 
391 U. S. 430 at 439 and 441; and Mr. Justice Harland 
in C arter v . W est Feliciana Parish S chool Board, 196 
U. S. 290, 90 S. Ct. 608, 24 L. Ed 2d 477, refers to the 
"workability” of approved desegregation plans. Such 
references are clear authority for the decision of the 
Court of Appeals for the Fifth Circuit in not requiring 
extensive cross town busing and noncontiguous satellite 
zoning for the purpose of achieving some racial balance 
when the plan as required was in fact found sufficient 
to eliminate the dual school system.

The basic question that ultimately emerges in this 
case is whether nondiscriminatory and fairly conceived 
attendance zones based on neighborhood and nearest 
school concepts must be abandoned in order to me­
chanically and arbitrarily integrate every school 
throughout a system. There is no constitutional justifi­
cation or authorization for this. G reen, supra, in fact 
suggests geographic zoning as one way of "realistically” 
converting to a unitary system. B row n II suggests that 
courts consider ". . . revision of school districts and at­
tendance areas into com p a ct units to achieve a system 
of determining admission to the public schools on a 
nonracial basis.” (Emphasis added.) This Court in 
A lexander v . H olm es, 196 U. S. 19, 90 S. Ct. 29, 24 
L. Ed 2d 19, quite clearly defined a unitary system as 
one wherein no person is to be effectively excluded 
from attendance in any school because of race or color.



9

B row n I, G reen  and A lexander all speak in terms of 
discriminatory state action in ex clu d in g  children b e ­
cause o f  ra ce  o r  co lo r ,5

The decisions of this Court in prior school desegre­
gation cases are not reasonably construed to contem­
plate or envision a requirement that school children, 
because of their race, be transported out of a residential 
area or that attendance areas be racially gerryman­
dered to achieve some racial balance in each school 
throughout a school system.6

In the often quoted social science report which was 
attached as an appendix to the first brief of appellants 
in B row n v . Board o f  Education, supra, the following 
statement is made:

"For purposes of the present statement, segrega­
tion refers to that restriction of opportunities for
different types of associations between the members

5. The case of Cooper v. Aaron, 358 U. S. 1, 78 S. Ct. 1401, 
3 L. Ed 2d 5, reinforces Brown in holding that the Fourteenth 
Amendment forbids states to use their governmental power to bar 
children on racial grounds from attending school where there is a 
state participation through any arrangement, management, funds 
or property.

6. In Bolling v. Sharpe, 347 U. S. 497, 74 S. Ct. 693, 98 L. Ed 
884, the court cautioned: “Classification based solely upon race 
must be scrutinized with particular care, since they are contrary 
to our traditions and hence constitutionally suspect.” See also J. 
Kaplan, Segregation Litigation and the Schools—Part II, 58 Nw. 
U. L. Rev. 157, at 188, (19 6 3 ): "Although today a court might 
rule that the state is required to consider race in a benign way, to­
morrow this might well prove a precedent for a much less happy 
result. Moreover, even today it is not easy to decide whether a 
given racial classification is benign. . . . The very difficulty of 
making such determinations, especially in the context of litigations 
which may not even bring to bear our limited knowledge on the 
subject, would seem to militate strongly against any attempts by 
the courts to require states to consider race in a benign manner.”



10

of one racial, religious, national or geographic origin, 
or linguistic group and those of other groups, which 
results from or is supported by the action of any of­
ficial body or agency representing some branch of 
government. W e are n o t h ere co n ce rn ed  w ith  su ch  
segr ega tion  as arises fr o m  th e f r e e  m ov em en ts  o f  
individuals w h ich  are n e ith er  e n fo r c ed  n or supported  
b y  o f f i c i al  bodies. (Emphasis added) . . ”7

Counsel for the appellants in B row n II made the fol­
lowing statement on pages 10 and 11 of the Memoran­
dum Brief which was filed in the Supreme Court of the 
United States during 1954 pursuant to the request of 
the court:

"The Negro children before the Court in these cases 
are entitled to public education on a non-segregated 
basis. The only way the relief can be meaningful to 
them is to abolish the policy of using race as a cri­
terion for assignment of students. Thus, the only ef­
fective decree would be one which will enjoin the 
use of race in the assignment of any pupil in the 
school districts involved.”
During the first oral argument before the Supreme 

Court in the B rown  case, Mr. justice Frankfurter asked 
Counsel for the appellants if every mother would, 
under the relief then requested, be entitled to have her 
child go to a nonsegregated school. When counsel an­
swered "No, Sir”, the Justice inquired as to what the 
relief would in fact accomplish. Counsel for the ap­
pellants replied "The school board, I assume, would 
find some other measure of distributing the children by

7. Effects of Segregation and the Consequences of Desegrega­
tion: A  Social Science Statement, 37 Minnesota Law Rev. 427  
(1953).



11

drawing district lines,” and that such lines should be 
drawn on a "natural basis.”8

Nondiscriminatory, fairly conceived, and logically 
drawn geographic attendance zones, based on the loca­
tion of residents, regardless of race, must in all logic and 
constitutional reason be held valid. The argument that 
nondiscriminatory district lines are legally deficient 
unless they result in racially balanced school attend­
ance, simply does not pass constitutional muster.

It is only reasonable and logical that children attend 
the school nearest to their residence. The educational 
justifications for assignment to the nearest school are 
abundant and apparent, especially for younger and 
elementary age children.9 The Court of Appeals below 
noted the obvious fact that small capacity elementary 
schools naturally draw students from a more limited

8. 21 U. S. L. Week 3164 (December 16, 19 5 2 ); Kaplan, 
Segregation Litigation—Part II, 58 Nw U. L. Rev. 157, at 178. 
The Law Week rendition, supra, reports that Mr. Justice Marshall 
who was then one of the counsel for the appellant stated in argu­
ment that district lines drawn on the basis of race or color would 
be a violation of the court decree and that the lines should be 
drawn "on a natural basis.” (Emphasis added.)

9. Schools in proximity to the homes of students are of extreme 
importance from the aspect of traffic and pedestrian safety; in 
children being able to reasonably travel from their home to school, 
in children being able to reasonably use the school facilities after 
school hours; the nearest school concept eliminates the severe 
problem of a school board seeking to determine which children to 
bus away from their nearest school; the nearest school concept 
eliminates the difficulty of parent contact with a distant receiving 
school, (often times it is necessary for parents to afford medical 
attention and innumerable other special and specific consideration 
to school age children); the nearest school concept alleviates the 
problem of tardiness or absence due to length of travel or missing 
bus schedules.



12

area whereas high schools with larger capacities will 
have larger attendance areas. The racial composition of 
the persons living in close proximity to an elementary 
school is naturally reflected in that school’s attendance 
to a greater degree than in a larger high school or junior 
high school.

Negro and white children who are in the same grade 
and who live in the same geographic area are assigned 
to the same school under the plan ordered by the court 
below. Pursuant to the prior orders of this Court, and 
to the instant order of the Court of Appeals, the faculty 
in the schools to which such assignments are made will 
be completely desegregated and not racially identi­
fiable.

This method of student assignment, based on place of 
residence, and in the absence of any improper motiva­
tion, cannot possibly be judicially held to be such an 
unreasonable classification as to offend the equal pro­
tection clause.10

If the area into which a family moves, or in which 
the family continues to live, is occupied by a predomi­
nance of black or white residents, the school nearest to 
such an area will naturally and inevitably reflect this

10. Schools throughout a system will of course vary in quality 
of teachers, physical facilities, etc. If the teachers are assigned 
without regard to race so that the school cannot be identified as 
being intended for either black or white children, and if physical 
facilities are provided on the same nondiscriminatory basis, there 
is no racial discrimination. "The Supreme Court has never held 
that in the absence of some racial classification the mere inequality 
of one school compared with another involves a constitutional 
violation. In many communities one school is clearly better in 
terms of faculty, student body, physical facilities, and prestige, 
than others, yet no one has suggested that this inequality raises a 
federal constitutional question.” Kaplan, Segregation Litigation—  
Part II, 58 Nw. U. L. Rev. 157, at 172 (1963).



13

racial composition. This is not a violation of the Four­
teenth Amendment. If the student bodies of some 
schools remain all Negro due solely to residential pat­
terns, there is simply no constitutional wrong to be 
remedied.11

B row n I, supra, G reen, supra, Alexander, supra, and 
N orth cross,12 and all intervening decisions hold state 
imposed dual systems unconstitutional and basically 
wrong. B row n I holds that from this wrong, injury 
and invidiously imposed inequality is inevitable. There­
fore, in B row n I, there was found to be a constitutional 
wrong and an injury therefrom to be remedied. How­
ever, when nondiscriminatory and fairly conceived 
geographic attendance zones are drawn and children 
are assigned in accordance therewith without regard to 
race or color, there is a complete absence of invidious 
state action. Remedial measures, such as racial balanc­
ing through busing, noncontiguous zones and non­

11. As to the possibility of noninvidious injury from imbalance 
in a unitary system, recent educational surveys show that family 
background, social and economic status and community charac­
teristics are the real controlling elements of school achievement 
rather than the racial composition of a school. U. S. Department 
of Health, Education and 'Welfare— Equality of Educational Op­
portunity, § 3.2, 966, as quoted in D. Cohen, Racial Equality in 
Education, Part I, 16 UCLA Law Rev. 255 (1969). These obser­
vations become especially meaningful when completely desegre­
gated faculties are provided and when state imposed segregated 
assignment is eliminated. As to the educational harm caused to 
both Negro and white children by busing to secure integration, 
see Kaplan, Equality in an Unequal World, 61 Nw U. L. Rev. 
363, at 401-402 (1966).

12. Northcross v. Board of Education, 397 U. S. 232, 90 S. Ct. 
891, 25 L. Ed 2d 246 (1970).



14

contiguous pairings are entirely without constitutional 
justification.13

President Richard M. Nixon, in a statement, Ex­
pla in ing His P o licy  on  S choo l D esegrega tion , N. Y. 
Times, March 25, 1970, p. 26, stated:

"There is a constitutional mandate that dual school 
systems and other forms of de jure segregation be 
eliminated totally. But within the framework of that 
requirement, an area of flexibility—a 'rule of reason’ 
—exists, in which school boards, acting in good 
faith, can formulate plans of desegregation which 
best suit the needs of their own localities. . . .
W hen th ere is a racial separation in hou sin g, th e  
con stitu tiona l r eq u irem en t has b een  h eld  sa tisfied  
ev en  th o tigh  som e sch oo ls rem ained  a ll-b lack  ” 
(Emphasis added.)

The United States Congress has legislatively spoken 
on several occasions against the busing of students for 
the purpose of achieving a racial balance. Tit. 42 
U. S. C. 2000(c), and 6(a) (2) § 401 (b) and 407 
(a) (2) of the Civil Rights Act of 1964; Department 
of Labor and Health, Education and Welfare Appro­
priations Act, 1969, Pub L. No. 90-557, § 410, 82 
Stat. 969; Model Cities Act of 1966, 42 U. S. C. 
§ 3303 (d ) ;  Elementary and Secondary Education Act 
of 1965, 20 U. S. C. § 884 (Supp. I l l ,  1965-67).

13. See Kaplan, Segregation Litigation— Part II, 58 Nw U. L. 
Rev. 157, at 176 (19 6 3 ): "Merely because racial classification 
without harm is unconstitutional does not mean that harm without 
racial classification is equally impermissible. Law provides us with 
many examples where a party may suffer identical harm under 
two different circumstances and have a legal right to redress under 
one and not the other. . . . This principle applies equally to racial 
problems. . . . ”



15

U. S. District Judge Frank M. Johnson, Jr., of the 
Middle District of Alabama, during February of 1970, 
in reviewing desegregation plans for the Montgomery, 
Alabama school system concisely set forth the law as 
to the issue of remedial measures necessary to eliminate 
a dual school system:

"Plaintiffs’ objections and the few proposals made 
by the Office of Education, Department of Ffealth, 
Education and Welfare, that differ from the plan 
as proposed by the Montgomery County Board of 
Education, appeared to be based on a theory that 
racial balance and/or student ratios as opposed to 
the complete disestablishment of a dual school sys­
tem is required by the law. Such is not this court’s 
concept of what the law requires. C om p lete d is­
estab lishm en t o f  th e dual sy stem  to  th e ex ten t that 
it  is based upon  ra ce is reqttired. W hile pairing o f  
sch oo ls m ay som etim es b e requ ired  to  disestablish a 
dual s ch o o l sy stem , th e pairing o f  sch oo ls or th e bus­
in g  o f  stud en ts to  a ch iev e  a racial balance, o r to  
a ch iev e  a cer ta in  ratio o f  black and -white stud en ts in 
a s ch o o l is n o t requ ired  b y  th e law .” (Emphasis 
added). Carr v . M on tgom ery  C oun ty  Board o f
E du ca tion ,....F. Supp......... , Civil Action No. 2072,
M. D. Ala., February 24, 1970. (Affirmed by the 
Fifth Circuit Court of Appeals in an opinion by 
Judge Goldberg (5th Cir. No. 29521, June 29, 
1970) ,14

14. The Supreme Court of the United States has specifically- 
recognized Judge Johnson’s thorough understanding of the con­
stitutional principles and requirements in school desegregation. 
U. S. v. Montgomery County Board of Education, 395 United 
States 225 (1969).



16

It is extremely significant here that in U nited States 
v . M on tgom ery  C oun ty  Board o f  E ducation, 395 U. S. 
225, (1969),  which dealt with faculty desegregation, 
the Supreme Court noted:

"As the United States, petitioner in No. 798 recog­
nizes in its brief, the District Court’s order [requir­
ing remedial faculty ratios] 'is designed as a r em ed y  
for past racial assignment. . . .  W e do n o t, in  o th er  
w ord s, a rgu e h ere tha t ra cia lly  ba lan ced  fa cu ltie s  are 
con stitu tion a lly  or lega lly  requ ired\ Brief for the 
United States at 13.” (Emphasis added.)
W e understand the law, as set forth in the many 

cases from B row n  through G reen  and A lexander to 
N orthcross, to be that school districts have an affirma­
tive duty to completely eliminate dual school systems 
based upon race, and to provide unitary systems. It 
may be in some cases that dual systems based on race 
have resulted in two schools with the same grades in 
close proximity to each other, or in overlapping or 
otherwise discriminatory bus routes. To elim inate 
th e  dual system , the restructuring of schools in close 
proximity or remedial bus route changes may logically 
be required. The con stitu tiona l pu rpose o f  su ch  
rem ed ia l m easures is n o t racial balance b td  ra th er th e  
a ch iev em en t o f  a n ond iscr im ina to ry , un ita ry  s ch oo l 
system .

For this Court to order racial balance in schools 
throughout systems over the country would keep 
American public education in perpetual turmoil. In 
many areas public education could not survive. No 
court or governmental agency in our democratic so­
ciety can tell a family where to live or where to move. 
An acceptably balanced school this year may be totally 
unbalanced two years from now, or even next year.



17

Why do people live in one neighborhood rather than 
another? It is indeed an oversimplified and overstrained 
answer to attribute racial or nonracial neighborhood 
patterns to state or governmental action. There is no 
creditable evidence before this Court that Negroes in 
Mobile, Alabama, and throughout the nation, who con­
tinue to live in neighborhoods with a preponderance of 
their race do so because prior to 1948 racial restrictions 
in deeds were judicially enforced11’ or because theaters 
and places of public amusement throughout the coun­
try have been racially segregated in the past. 8 When 
this question is put in proper perspective, it must in all 
reason be conceded that personal preference and eco­
nomic reality constitute the real controlling factors in 
the selection of a neighborhood in which a person de­
cides to remain or in which to buy or rent a home.15 16 17

The petitioners in brief ask this Court to require far 
more than the unitary school system envisioned in 
Brown, and clarified in G reen  and Alexander. Petition­
ers seek in addition to unitary systems, for all schools 
throughout all systems to be racially balanced. Peti­
tioners do not stop with this, but they even suggest that

15. Prior to this Court’s decision in Shelley v. Kraemer, 334 U. S. 
1, 68 S. Ct. 836, 92 L. Ed 2d 1161.

16. Kaplan, School Segregation Litigation—Part II, 58 Nw  
U. L. Rev. 157, at 186 (1963).

17. The dubious labels of de facto and de jure segregation are 
further obscured and completely desectionalized when such ele­
ments as pre 1948 racial restrictions in deeds, public accommoda­
tion laws and housing ordinance are injected. These elements in 
varying degrees certainly and without question were present 
throughout the entire nation prior to Shelley v. Kraemer, 334 U. S. 
1, 68 S. Ct. 836, 92 L. Ed 2d 1161, and prior to the public accom­
modation laws, open housing provisions and other antidiscrimina­
tion measures of national scope which have become law over the 
last quarter century.



18

racially balanced neighborhoods be achieved through 
the compulsion of a school desegregation case involving 
the school children of this nation. (See p. 28 of Motion 
to Advance and Petition for a W rit of Certiorari filed 
herein). B row n I, B row n 11, and G reen  certainly can­
not be reasonably interpreted to require or to even 
authorize such a far-reaching proposal.18 19

The following candid and relevant statement was re­
cently made by Robert L. Carter, who was one of the 
original attorneys for the plaintiff in the B row n  cases:

"For, whatever the Court does, our society is com­
posed of a series of insulated institutions and interests 
antithetical to the Negro’s best interest. Effective 
regulation and control of these institutions and in­
terests must come not from the Supreme Court but 
from the bodies politic.”18

18. Open Housing, Title VIII, Civil Rights Act of 1968, 42 
U. S. C. A. 3601, et seq.; Jones v. Mayer, 392 U. S. 409, 88 S. Ct. 
2186, 20 L. Ed 2d 1189, afforded judicial and congressional pro­
tection from housing discrimination. There can be no constitu­
tional justification for imposing this burden on already over­
burdened school systems.

19. R. Carter, The 'Warren Court and Desegregaton, 67 Mich. 
L. Rev. 237, at 248 (1968).



19

CONCLUSION

The Court of Appeals for the Fifth Circuit has had 
extensive experience with the constitutionality and 
workability of school desegregation plans. The opinion 
below from that court holds that a unitary system is 
constitutionally achieved without the drastic system- 
wide balancing measures insisted upon by the petition­
ers. The Court of Appeals evaluated the entire system 
in requiring the plan which forms the basis of this ap­
peal.

The basic issue is just how far American public edu­
cation must go in order to achieve a racially non-dis- 
criminatory and unitary school system. If some balance 
in every school is to be compelled, affirmative racial 
consciousness will be present from year to year in pub­
lic education. Instead of educating just children, re­
gardless of race, educators throughout this country 
would be constantly forced to regard race and children 
would of necessity be classified, assigned, and accounted 
for on the basis of race or color. These requirements 
and their result cannot be in the best interest of public 
education.

It is time that we put school desegregation in its 
proper perspective.

The ed iica tion  o f  ch ild ren , as stated in B rown I, is 
indeed perhaps the most important function of state 
and local government. When racial discrimination is 
eliminated, when racially nonidentifiable faculities are 
provided, when no person is effectively excluded from 
any school because of race, it is time to send educators 
back to the classroom to carry on with the basic func­
tions of teaching children and of providing quality



20

education and sound guidance without regard to race 
or color.

Respectfully submitted,

A lbert P. Brewer 
G overn or o f  th e  
State o f  Alabama 
State Capitol 
Montgomery, Alabama

MacDonald Gallion 
A ttorn ey  G eneral 
State o f  Alabama 
Administrative Building 
Montgomery, Alabama

J oseph D. Phelps 
Special Assistant 
A ttorn ey  G eneral fo r  th e  
State o f  Alabama 
36 South Perry Street 
Montgomery, Alabama