Carson v. American Brands, Inc. Brief Amicus Curiae of the Equal Employment Advisory Counsel in Support of Petitioners

    In the

Bnpveme (Hemet in  the Imfrfc States
October Term, 1968

No......... .......

A beam Cabb, Jr., a Minor,, by Arlam Carr and Johnnie Carr, 
Ms parents and nest friends, et al.,

Petitioners, 
v.

M ontgomery County B oard on E ducation, et al.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR 

THE FIFTH CIRCUIT

F red D. Gray 
Solomon S. Seay, J r.
Gray, Seay, L angford & P ryor 

352 Dexter Avenue 
Montgomery, Alabama 36104

Jack Greenberg 
James M. Nabrit, III 
F ranklin E. W hite 
E lizabeth B. D uB ois 
Melvyn Zarr

10 Columbus Circle
New York, New York 10019

Attorneys for Petitioners



I N D E X

PAGE

Opinions Below .................................................................. 1

Jurisdiction ............  2

Question Presented............................   3

Constitutional Provisions Involved.................................  3

Statement .................................. -.......................................  4
1. Introduction ..........................................................  4
2. Proceedings during 1964 ...............    4

3. Proceedings during 1965 .....................................  5
4. Proceedings during 1966 .....................................  6

5. Proceedings during 1967 .....................................  7
6. Proceedings during 1968 .....................................  11

a. In the District Court.....................................  11

b. Action of the Court of Appeals ..................  15

Reasons for Granting the Writ .....................................  16

Conclusion.................................................................................  25

T able op Cases

Bradley v. School Board, 382 U.S. 103 ......................6,18
Brown v. Board of Education, 347 U.S. 483 ..........5,16,17
Brown v. Board of Education, 349 U.S. 294 ...............  16

Coppedge v. Franklin County Board of Education,
273 F. Supp. 289 (E.D. N.C. 1967), aff’d 294 F.2d 
410 (4th Cir. 1968) ............   23



IX

PAGE

Davis v. Board of School Commissioners of Mobile
County, 364 F.2d 896 (5th Cir. 1966) ...................... 7

Dowell v. School Board of Oklahoma City Public 
Schools, 244 F. Supp. 971 (W.D. Okla. 1965), ail’d 
375 F.2d 158 (10th Cir. 1967), cert, denied, 387 
U.S. 931 ....................................................................... 23,24

Green v. County School Board of New Kent County,
391 U.S. 430 ............................................................16,17, 22

Griffin v. School Board, 377 U.S. 218.............................  18

Kelley v. Altheimer School District, 378 F.2d 483
(8th Cir. 1967) .............................................................. 23

Kier v. County School Board of Augusta County,
249 F. Supp. 239 (W.D. Ya. 1966) .......................... 23

Lee v. Macon County Board of Education, 267 F. 
Supp. 458 (M.D. Ala. 1967), aff’d sub nom. Wallace
v. United States, 389 U.S. 215 (1967) .............. 7, 8,19, 21

Raney v. Board of Education of the Gould School
District, 391 U.S. 443 ................................................  24

Rogers v. Paul, 382 U.S. 198 .........................................6,18

United States v. Board of Education of City of Bes­
semer, 396 F.2d 44 (5th Cir. 1968) ........................  17

United States v. Jefferson County Board of Educa­
tion, 372 F.2d 836 (5th Cir. 1966), aff’d en banc, 380' 
F.2d 385 (5th Cir. 1967), cert, denied, 389 U.S.
840 ...............................................................................7,8,24

United States v. School District 151 of Cook County, 
Illinois, 286 F. Supp. 786 (N.D. 111. 1968), aff’d,
------- F.2d ------  (7th Cir., Dec. 17, 1968), 37 U.S.L.
Week 2371 .............   23

Wallace v. United States, 389 U.S. 215 .............. 8,16,19, 22
Wanner v. County School Board of Arlington County,

Va., 357 F.2d 452 (4th Cir. 1966) .......................... . 24

Yarbrough v. Hulbert-West Memphis School District, 
380 F.2d 962 (8th Cir. 1967) ..................................... 23



In the

Bnpvm? (U m iri n f  %  I m t e f c  S t a t e s
October Term, 1968 

No.................

A blam Caeb, Jr., a Minor, by Arlam Carr and Johnnie Carr, 
his parents and nest friends, et ah,

Petitioners,
v.

M ontgomery County B oard of E ducation, et al.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR 

THE FIFTH CIRCUIT

Petitioners pray that a writ of certiorari issue to review 
the judgment of the United States Court of Appeals for 
the Fifth Circuit, entered in the above-entitled case on 
August 1, 1968, and rehearing denied on November 1, 1968.1

Opinions Below

The opinion and order of the district court of February 
24,1968 (R. 404), is reported at 289 F. Supp. 647 (Appendix 
A )2 and the supplemental order entered March 2, 1968 
(R. 430), is at 289 F. Supp. 657 (Appendix B). Another

1 A  petition for certiorari to review the same judgment has been 
filed by the United States in this Court with the record herein sub 
nom. United States v. Montgomery County Board of Education, 
No. 798, Oct. Term, 1968.

2 Citations to the Appendix refer to the Appendices to the Peti­
tion filed in this Court by the United States in No. 798, Oct. Term, 
1968.



2

supplemental order of March 2,1968 (R. 428), is unreported 
(Appendix C). The majority opinion of August 1, 1968, 
by the panel of the Court of Appeals (by Circuit Judge 
Gewin, with District Judge Elliott concurring) is reported 
at 400 F.2d 1 (Appendix D). The dissenting opinion of 
October 21, 1968, by Judge Thornberry is reported at 402 
F.2d 782 (Appendix E). The order of the Court of Appeals 
of November 1, 1968, denying rehearing and rehearing 
en banc by an equally divided court, is at 402 F.2d 784 
(Appendix F). The opinion dissenting from the denial of 
rehearing en banc (by Chief Judge Brown, with the con­
currence of Judges Wisdom, Thornberry, Goldberg and 
Simpson) is at 402 F.2d 784 (Appendix F). Judge Dyer 
also dissented from the denial of rehearing en banc without 
opinion at 402 F.2d 787.

Prior reported opinions and orders of the district court 
at earlier stages of the case are reported as follows: (a) 
July 31, 1964, 232 F. Supp. 705, R. 98; (b) May 18, 1965, 10 
Race Rel. L. Rep. 582, R. 191; (c) March 22, 1966, 253 F. 
Supp. 306, R. 274; (d) August 18, 1966,11 Race Rel. L. Rep. 
1716, R. 285; (e) June 1, 1967, 12 Race Rel. L. Rep. 1200, 
R. 364.

Jurisdiction

The judgment of the Court of Appeals was entered on 
August 1, 1968 (Appendix D ) ; rehearing was denied 
November 1, 1968 (Appendix F). The jurisdiction of this 
Court is invoked under 28 U.S.C. Section 1254(1).



3

Question Presented

Whether in a school district segregated by law into a 
dual system of separate white and Negro schools, where 
only slight desegregation has been achieved despite litiga­
tion begun in 1964, and a trial court determined that to 
“pass tokenism” the faculty desegregation goal should be 
to distribute teachers so that all schools will have about the 
same proportion of white and Negro teachers, it was error 
for the Court of Appeals to :

(a) strike down the trial court’s numerical ratios as 
the proper long-term faculty integration objective and leave 
the goal undefined;

(b) refuse to set a target date or timetable for full fac­
ulty desegregation;

(c) dilute the trial judge’s interim minimum goals by 
adding qualifying phrases which enable the school board 
to excuse noncompliance;

(d) reject the petitioners’ request that all faculties in 
new schools be fully desegregated when they are opened.

Constitutional Provisions Involved

This case involves the Equal Protection Clause of the 
Fourteenth Amendment to the Constitution of the United 
States.



4

Statement

1. Introduction.

This is a public school desegregation suit presenting is­
sues relating to the obligation of the Montgomery County, 
Alabama, public school system to desegregate school facul­
ties. The school board appealed seeking reversal of a 
desegregation order entered February 24, 1968, and 
amended March 2, 1968, by District Judge Frank M. John­
son, Jr. By a vote of 2-1, a panel of the Court of Appeals 
(Circuit Judge Gewin and District Judge Elliott) modified 
the order and eliminated certain provisions relating to 
faculty desegregation. Circuit Judge Thornberry dissented 
from the modifications of the faculty integration order. A 
petition for rehearing en banc was denied by an equally 
divided vote of 6-6, with one Judge not participating due to 
illness.

In this petition, the Negro pupils and parents wdio com­
menced the litigation in 1964 seek to reinstate the district 
court order on the faculty question. Another petition for 
certiorari seeking that same relief has been filed by the 
United States which has participated in the case throughout 
by order of the District Court. See United States v. Mont­
gomery County Board of Education, docketed December 4, 
1968, as No. 798, October Term, 1968.

2. Proceedings During 1964.

The complaint (R. 1-8), filed by a group of Negro pupils 
and parents May 11, 1964, alleged that the Montgomery 
County, Alabama school system was operated on a racially 
segregated basis. It was alleged that Negro students were 
assigned to schools with only Negro students and faculties 
(R. 4). The relief sought included an injunction against 
segregated faculty assignments (R. 7).



5

Ail opinion by the district court July 31, 1964, noted that 
the system, which embraces the City of Montgomery and 
surrounding rural areas, served about 25,000 white children 
and 15,000 Negro children (E. 100). The judge found there 
was “ a dual school system based upon race and color” and 
that defendants “ operate one set of schools to be attended 
exclusively by Negro students and one set of schools to be 
attended exclusively by white students” (R. 100). The judge 
wrote that: “ The evidence further reflects that the teachers 
are assigned according to race; Negro teachers are assigned 
only to schools attended by Negro students and white 
teachers are assigned only to schools attended by white 
students” (E. 100). The court observed: “Even the sub­
stitute teachers’ list and attendance records reflect these 
distinctions based upon race” (R. 101). Finding that ten 
years had elapsed since Brown v. Board of Education, 347 
U.S. 483, without any action to desegregate the schools, the 
court ordered that desegregation begin in September 1964 
in grades 1,10,11 and 12. But, the court made no order with 
respect to faculty integration. Thereafter, 29 Negro pupils 
sought transfers to white schools in September 1964. The 
school board, using the Alabama School Placement Law, 
denied the requests of 21 and admitted the remaining 8 
Negroes to white schools (R. 112). The court refused to 
order the admission of the rejected Negro transfer appli­
cants (R. 148).

3. Proceedings During 1965.

On January 15, 1965, the school board filed a proposed 
desegregation plan as required by the judge (R. 155). The 
proposed plan made no mention of faculty desegregation 
and plaintiffs objected on that ground among others 
(R. 169). On May 18, 1965, the trial judge approved the 
proposed plan with amendments to require desegregation



6

in grades 1, 2, 9, 10, 11 and 12 in September 1965 (R. 191). 
Again the court entered no order with respect to faculty 
desegregation, but did order that a plan for “complete elimi­
nation of the biracial school system within a reasonable 
time” be filed in January 1966.3

In August 1965 the school board reported that it had ac­
cepted 18 of 49 Negro applicants to white schools (R. 195). 
The plaintiffs again objected to the denial of transfer re­
quests, but the court upheld the board’s denials of all ex­
cept 6 applicants who were ordered admitted (R. 232-234).

4. Proceedings During 1966.

On January 14, 1966, the board filed another desegrega­
tion plan making no mention of faculty desegregation 
(R. 250). Again plaintiffs objected to the lack of faculty 
desegregation (R. 265) and this time the United States 
made a similar objection (R. 261). Plaintiffs specifically 
relied on this Court’s faculty desegregation decisions in 
Bradley v. School Board, 382 U.S. 103 (Nov. 1965) and 
Rogers v. Paul, 382 U.S. 198 (Dec. 1965).

On March 22, 1966, the court entered another desegrega­
tion order (R. 274), this time requiring a “ freedom of 
choice” plan generally following guidelines of the Depart­
ment of Health, Education, and Welfare (HEW) (R. 270). 
This order required desegregation of all grades except 5

3 In announcing his ruling from the Bench, May 5, 1965, Judge 
Johnson said: “ The defendants should be ordered to file their plan 
for completion of the desegregated system, including abolition of 
the dual school or biracial school system, which of course still exists. 
I am not naive enough to believe that desegregation of certain 
grades by transfer, such as we are doing here, is full compliance 
with what the law eventually envisions and requires, but I recog­
nize that it is a transition period, and I think that this is reasonable 
for the facts in this case and the circumstances existing in this 
particular school district at this time” (R. 444).



7

and 6 in September 1966, and for those grades to be de­
segregated in September 1967. It directed the closing of 
several small, inadequate all-Negro schools.

For the first time, the March 22,1966, order also required 
faculty desegregation. It ruled that race and color was not 
to be a factor in faculty assignments except to eliminate 
the effects of past discrimination. It ordered that assign­
ments be made so that each school’s “faculty . . .  is not com­
posed of members of one race.” Job applicants were or­
dered to be informed of the new policy, and the administra­
tion was ordered to encourage staff transfers to promote 
integration. The school administration, in response, made 
tentative arrangements to place 4 white teachers in black 
schools and 4 black teachers in white schools (R. 455). How­
ever, after these plans were made, the trial judge, on his 
own motion on August 18, 1966, rescinded the requirement 
and postponed faculty integration another year (R. 285). 
The judge relied on a Fifth Circuit opinion which ordered 
faculty integration for Mobile, Alabama to begin in 1967.4

5. Proceedings During 1967.

On April 11,1967, plaintiffs moved for modification of the 
desegregation plan to conform to the circuit-wide require­
ments of United States v. Jefferson County Board of Educa­
tion, 372 F.2d 836 (5th Cir. 1966), aff’d en banc, 380 F.2d 
385 (5th Cir. 1967), cert, denied, 389 U.S. 840 (1967). Judge 
Johnson ordered the board to show cause why it should not 
adopt a plan to conform to Jefferson, supra, and to the plan 
ordered by a three-judge court for 99 Alabama counties in 
Lee v. Macon County Board of Education, 267 F. Supp, 458

4 Davis v. Board of School Commissioners of Mobile, 364 F.2d 
896 (5th Cir., 1966).



8

(M.D. Ala. 1967), aff’d sub nom. Wallace v. United States, 
389 U.S. 215 (1967).5

On June 1, 1967, the court entered an order conformable 
to Jefferson, supra, and Lee, supra (R. 364). The provision 
for faculty desegregation, which is quoted in full in the 
footnote below,6 adopted the objective that “the pattern of

5 The Lee opinion recites in detail the background of official 
resistance by the Governor of Alabama and state education officials 
to prevent public school desegregation in the State. The three-judge 
court found that the desegregation efforts of Negroes in Alabama 
“have met the relentless opposition of these defendant state officials” 
(267 F. Supp. at 465; R. 318), The opinion recites in detail one 
series of episodes in August 1966 when the State Superintendent 
of Education and Governor George C. Wallace worked to prevent 
faculty desegregation in Tuscaloosa County (267 F. Supp. at 469). 
The court found that these “state officials also made it clear that 
similar measures would be taken in other communities if Negro 
teachers were assigned to teach white students” (id.).

6 “VI 
“ F a c u l t y  a n d  S t a f f

“A. Faculty Employment and Assignment. Race or color 
will not be a factor in the hiring, assignment, reassignment, 
promotion, demotion or dismissal of teachers and other pro­
fessional staff members, including student teachers, except that 
race will be taken into account for the purpose of counteracting 
or correcting the effect of the past segregated assignment of 
teachers in the dual system. Teachers, principals, and staff 
members will be assigned to schools so that the faculty and 
staff is not composed exclusively of members of one race. 
Wherever possible, teachers will be assigned so that more than 
one teacher of the minority race (white or Negro) will be on 
a desegregated faculty. The school board will take positive and 
affirmative steps to accomplish the desegregation of its school 
faculties, including substantial desegregation of faculties in 
as many of the schools as possible for the 1967-68 school year, 
notwithstanding that teacher contracts for the 1967-68 or 
1968-69 school year have already been signed and approved. 
The objective of the school system is that the pattern of teacher 
assignment to any particular school shall not be identifiable 
as tailored for a heavy concentration of either Negro or white 
pupils in the school. The school system will accomplish faculty 
desegregation in a manner whereby the abilities, experience, 
specialties, and other qualifications of both white and Negro 
teachers in the system will be, insofar as administratively



9

teacher assignment to any particular school shall not he 
identifiable as tailored for a heavy concentration of either 
Negro or white pupils in the school” (E. 370).

On August 17, 1967, the United States filed a motion to 
require further faculty desegregation in view of the fact 
that the school board planned to assign only 5 white teach­
ers of 804 to two Negro high schools and 5 Negro teachers 
out of 554 to two predominantly white high schools (E. 376). 
The plaintiffs joined in the motion (E. 379), and the court 
held an evidentiary hearing September 5, 1967.

feasible, distributed evenly among the various schools of the 
system.

“B. Dismissals. Teachers and other professional staff mem­
bers will not be discriminatorily assigned, dismissed, demoted, 
or passed over for retention, promotion, or rehiring on the 
ground of race or color. In any instance where one or more 
teachers or other professional staff members are to be displaced 
as a result of desegregation, no staff vacancy in the school 
system will be filled through recruitment from outside the 
system unless no such displaced staff member is qualified to 
fill the vacancy. If, as a result of desegregation, there is to 
be a reduction in the total professional staff of the school sys­
tem, the qualifications of all staff members in the system will 
be evaluated in selecting the staff member to be released with­
out consideration of race or color. A report containing any 
such proposed dismissals, and the reasons therefor, shall be 
filed with the Court, and copies served upon opposing counsel 
within five (5) days after such dismissal, demotion, etc., is 
proposed.

“ C. Notice to New Staff Members. In the recruitment and 
employment of teachers and other professional personnel, all 
applicants or other prospective employees will be informed that 
Montgomery County operates a racially desegregated school 
system and that members of its staff are subject to assignment 
in the best interest of the system and without regard to the 
race or color of the particular employee.

“D. Encouragement of Voluntary Faculty Tranfers. The 
Superintendent of Schools and his staff wall take affirmative 
steps to solicit and encourage teachers presently employed to 
accept transfers to schools in which the majority of the faculty 
members are of a race different from that of the teacher to be 
transferred.”



10

School Superintendent McKee testified that it was de­
cided to limit faculty desegregation at the beginning to 
high schools because he anticipated less objection since one 
teacher would not have the pupils for as much of the day in 
high school classes (R. 459-460). He also decided to inte­
grate faculties only in schools within the city limits because 
of the need for close supervision and special protection 
which was more difficult in sparsely settled areas of the 
county (R. 461). The superintendent said he was having 
some difficulty finding white teachers who would agree to 
assignments in Negro schools, although there was no dif­
ficulty finding Negroes willing to teach in white schools 
(R. 466, 469, 470). The superintendent had engaged 12 or 
13 white teachers for Negro schools, but only 5 of them actu­
ally finally accepted the assignment (R. 468). All 5 Negroes 
initially picked for white schools actually undertook such 
assignments (R. 468-469). Mr. McKee indicated that he 
had not assigned more Negro teachers, even though they 
were available, because he had not been able to get more 
whites to volunteer for assignments to Negro schools 
(R. 469), and he wanted to keep the number of Negroes 
and whites in balance (R. 481). The annual faculty turn­
over or replacement rate in Montgomery is about 10% of 
the total staff (R. 478).

At the end of the hearing the court heard arguments, but 
took no action to make a ruling to affect the 1967-68 school 
year. The matter was kept under advisement without ac­
tion by the court. During argument the judge made it 
plain that he had little “ sympathy” with the request for 
relief at that time (R. 484).



11

6. Proceedings During 1968.

a. In the District Court. On February 1, 1968, the board 
filed a further pleading asserting it had 32 faculty em­
ployees teaching in schools predominantly of the other race, 
and that it planned further efforts for the coming year. 
The United States filed a motion (E. 389), joined by the 
private plaintiffs (R. 394), seeking further relief on the 
faculty question as well as relief on several other issues 
affecting desegregation. The court heard evidence Febru­
ary 9, 1968 (E. 495-694).

Superintendent McKee and Associate Superintendent 
Garrett testified that they had decided that in September 
1968 they would assign Negro teachers to all of the white 
schools at once in “ one fell swoop” (R. 556, 579). Mr. Gar­
rett described the plans for faculty desegregation in the 
following testimony:

Q. How many teachers do you estimate you will have 
in minority situations this coming year? A. Well, we 
have about thirty-five now. We are going to attempt— 
our plan is to try to get at least one into every junior 
high and every elementary, and then start—once we 
accomplish that, start around with the second one and 
the third one and so on, rather than to have three in 
one school and none in another.

Q. Well based on your— A. Roughly speaking, a 
minimum or—with thirty-five already there, we have 
fifty schools or thereabouts; I would say about a hun­
dred or better.

Q. Based on your— A. I think that is practical; I 
believe we can accomplish that (R. 584).

# * *
The Court: My understanding, now, you are going 

to have this next year teachers of the minority race in 
every school in your system?



12

Witness: As far as humanly possible.
The Court: And how many do you expect to have in 

your—in your elementary schools, a minimum per 
school?

Witness: Two, at least.
The Court: And how many in your junior high, your 

minimum!
Witness: Two; maybe more.
The Court: All right.
Witness: Depending on what we come—
The Court: Now, let’s go to percentages; what per­

centage do you expect to have in your high schools ?
Witness: I just don’t know. We haven’t actually dis­

cussed that up to this point. I—I couldn’t say.
The Court: Well, your race—your student popula­

tion is sixty-forty!
Witness: Yes, sir.
The Court: Ultimately, that will be your optimum 

if you are going to eliminate the racial characteristics 
of your school through faculty—

Witness: (Nodded to indicate affirmative reply.)
The Court: —wouldn’t it? It would have to be. 

(R. 598-599.)
# # #

Q. Mr. Garrett, I believe you testified when I was 
examining you that you were going to have at least— 
at least one in each school, or am I wrong on that? 
A. I said we would try to start with one in every ele­
mentary school and then come back around with two, 
and if we were successful, maybe three; I don’t have 
any preconceived notion about maximums, but I would 
rather have these distributed rather than to have three, 
say, in one school and none in another (R. 600).



13

In a memorandum opinion filed February 24, 1968, the 
court made findings that there were still about 15,000 Negro 
children and 25,000 white children in the system; that only 
550 Negro children were attending traditionally white 
schools and no whites were in the Negro schools under the 
freedom of choice plan; that 32 classroom teachers were 
teaching pupils in schools predominantly of the opposite 
race; that the system employed about 550 Negro teachers 
and 815 white teachers; that most faculty desegregation 
was in the high schools and there was little, if any, faculty 
desegregation in the county’s rural schools (R. 406). The 
court also noted that the vast majority of teachers newly 
hired after the June 1, 1967, faculty desegregation order, 
were still assigned to schools where their race was in the 
majority; that no Negro has yet been a sustitute in a white 
school; that during a semester where white substitute 
teachers were employed 2,000 times, only 33 white sub­
stitutes were employed in Negro schools; that there was 
“no adequate program for the assignment of student 
teachers on a desegregated basis” ; and that there was no 
faculty desegregation in night schools (R. 406-407). The 
court concluded: “The evidence does not reflect any real 
administrative problems involved in immediately desegre­
gating the substitute teachers, the student teachers, the 
night school faculties, and in the evolvement of a really 
legally adequate program for the substantial desegregation 
of the faculties of all schools in the system commencing with 
the school year 1968-69” (R. 407).

Judge Johnson, during the hearing, in a colloquy with 
Superintendent McKee, expressed the position, “I have gone 
along with this transition business for a good long while, 
but we have passed the transition period” (R. 544). Finding 
that the board had “ failed to discharge the affirmative duty 
. . .  to eliminate the . . . dual school system,” the court held



14

it was “necessary and entirely appropriate to establish now 
more specific requirements governing minimum amounts 
of progress in the future . . . ” (R. 409).

The order of February 24, 1968 (R. 413-414), as amended 
(R. 429), supplemented the desegregation plan approved 
June 1, 1967. The order, which is quoted below,7 defined the 
objective of eliminating the racial identifiability of school 
faculties as requiring the assignment of faculty such that 
the ratio of Negro to white faculty members in each 
school would be substantially the same throughout the

“ F a c u l t y  a n d  S t a f f

“ A. Statement of Objective. In achieving the objective of 
the school system, that the pattern of teacher assignments to 
any particular school shall not be identifiable as tailored for 
a heavy concentration of either Negro or white pupils in the 
school, the school board will be guided by the ratio of Negro 
to white faculty members in the school system as a whole.

“ The school board will accomplish faculty desegregation by 
hiring and assigning faculty members so that in each school 
the ratio of white to Negro faculty members is substantially 
the same as it is throughout the system. At present, the ratio 
is approximately 3 to 2. This will be accomplished in accord­
ance with the schedule set out below.

“B. Schedule for Faculty Desegregation. 1. 1968-69. At 
every school with fewer than 12 teachers, the board will have 
at least one full-time teacher whose race is different from the 
race of the majority of the faculty and staff members at the 
school.

“At every school with 12 or more teachers, the race of at 
least one of every six faculty and staff members will be dif­
ferent from the race of the majority of the faculty and staff 
members at the school. This Court will reserve, for the time 
being, other specific faculty and staff desegregation require­
ments for future years.

“ C. Means of Accomplishment. I f  the school board is un­
able to achieve faculty desegregation by inducing voluntary 
transfers or by filing vacancies, then it will do so by the as­
signment and transfer of teachers from one school to another.

“D. Substitute Teachers. Commencing in September, 1968, 
with the 1968-69 school year, the ratio of the number of days 
taught by white substitute teachers to the number of days



15

system. For the year 1968-69 the court ordered at least 
one minority race (white or black) teacher in each school 
with less than 12 teachers, and in larger schools at least 
one minority race teacher of every six teachers. The 
court reserved judgment on detailed requirements for fu­
ture years. The court also ordered that substitute teachers, 
student teachers, and night school teachers should be as­
signed so that there was substantially the same racial ratio 
in each school.

On the school board’s application for a stay pending ap­
peal, a part of the faculty desegregation order was stayed 
by Judge Johnson.

b. Action of the Court of Appeals. On August 1, 1968, 
the Court of Appeals, by a divided vote, modified the faculty 
desegregation order.8 The court struck from the decree all 
numerical ratios except the interim 1968-69 goal—a five-to- 
one ratio in large schools and a more liberal ratio in 
smaller schools—which was modified to read “substantially 
or approximately five to one” (emphasis added). The court

taught by Negro substitute teachers at each school during each 
semester will be substantially the same as the ratio of white 
substitute teachers to Negro substitute teachers on the list of 
substitute teachers at the beginning of the semester.

“ Commencing with the 1968-69 school year, the board will 
not use an individual as a substitute teacher in the Mont­
gomery Public Schools if he will consent to substitute only at 
predominantly white schools or only at predominantly Negro 
schools.

“ E. Student Teachers. Commencing in September, 1968, 
with the 1968-69 school year, the ratio of white to Negro 
student teachers each semester in each school that uses student 
teachers will be substantially the same as the ratio of white 
and Negro student teachers throughout the system.

“F. Night Schools. Commencing June 1, 1968, the ratio of 
white to Negro faculty members at each night school will be 
substantially the same as the ratio of white to Negro faculty 
members throughout the night-school program.”

8 Trial court rulings pertaining to special efforts to desegregate 
a new high school were affirmed on appeal.



16

also rejected the plaintiffs’ argument that the trial court 
should have set a target date for full integration and should 
have required immediate total desegregation of faculties 
in several new schools to be opened in 1968.

Judge Thornberry dissented,, finding no basis in the 
record or the prior decisions for modifying the trial judge’s 
experiment in establishing numerical ratios for faculty de­
segregation. Chief Judge Brown’s dissent from the denial 
of rehearing en banc (joined in by Judges Wisdom, Thorn- 
berry, Goldberg and Simpson) argued that there was a 
need for specfic numerical targets for faculty desegre­
gation plans to define the goal of schools unidentifiable 
as to race, as well as a need for specific target dates 
for compliance.

Reasons For Granting the Writ

This case merits plenary review on certiorari because it 
involves issues of considerable practical importance to the 
future of school desegregation, about which there is both a 
conflict among the circuits and an equal division among 
twelve active judges of the Fifth Circuit, The ruling be­
low also conflicts with this Court’s decisions in Wallace v. 
United States, 389 U.S. 215, and Green v. County School 
Board, 391 U.S. 430.

The case involves the powers of a district court in super­
vising the transition of a dual, segregated school system 
into a racially non-discriminatory system as required by 
Brown v. Board of Education, 347 U.S. 483 (Brown I) ■ 
349 U.S. 294 (Brown II).  The court below set aside an 
order of the trial court which defines the long range goal 
for faculty desegregation to be to seek, over an indetermi­
nate period of time, approximately the same proportion of 
Negro and white teachers in all schools of the system. By



17

striking the “numerical ratios” from the trial court’s order, 
the panel majority below rejected this goal and left the 
faculty desegregation objective so vaguely defined as to 
impair the ability of district courts to assure substantial 
progress.

In addition to altering the long-term goal, the court below 
made three subsidiary rulings to which petitioners also 
object. One was the failure to set any target date or time­
table for full faculty desegregation in Montgomery. An­
other panel of the Fifth Circuit had set a so-called “ C” 
(for “ compliance” ) day for full faculty desegregation by 
September 1970. United States v. Board of Education of 
the City of Bessemer, Alabama, 396 F.2d 44, 52 (5th Cir. 
1968). Also the court diluted the trial judge’s specific mini­
mum goals for 1968 by adding the qualifying phrases “ap­
proximately” and “ substantially.” Finally, the court below 
refused the petitioners’ request that the trial court be di­
rected to require full faculty desegregation immediately in 
all newly established schools at the time faculties are first 
hired and assigned.

The issues should be viewed in the practical context of 
Montgomery County, Alabama. When this law suit was 
filed in May 1964, ten years after Brown I, the public schools 
were still totally segregated. No progress had been made 
voluntarily. In Montgomery, as was true in a Virginia 
county brought before this Court last term: “Racial identi­
fication of the system’s schools was complete, extending not 
just to the composition of student bodies . . . but to every 
facet of school operations—faculty, staff, transportation, 
extracurricular activities and facilities.” Green v. County 
School Board, 391 U.S. 430, 435. As stated in Green, supra, 
at 436, “ [t]he transition to a unitary, nonraeial system of 
public education was and is the ultimate end to be brought 
about . . . .” In Montgomery County, Alabama it became the



18

task of District Judge Frank M. Johnson, Jr. to supervise 
that transition.

The very same month this case was filed, this Court de­
clared in Griffin v. School Board, 377 U.S. 218, 234, that 
“the time for mere ‘deliberate speed’ has run out . . . .” 
Yet, for four more years the District Judge patiently per­
mitted the respondent school board to delay desegregation 
with a variety of transitional devices until he finally decided 
“We have reached the point where we must pass ‘token­
ism.’ ” (R. 431). The beginning of faculty desegregation 
had been repeatedly postponed until September 1967, al­
though petitioners sought such relief from the outset of the 
case. Even after this Court ruled in late 1965 that faculty 
segregation must be considered in connection with school 
desegregation plans, in Bradley v. School Board, 382 TJ.S. 
103, and Rogers v. Paul, 382 TJ.S. 198, Judge Johnson felt 
constrained by a ruling of the Fifth Circuit involving 
Mobile, Alabama, to delay faculty integration in Montgom­
ery County until 1967 (R. 285). Finally, after four years 
of litigation, at a 1968 hearing, Judge Johnson warned the 
school officials that: “ I have gone along with this transition 
business for a good long while, but we have passed the 
transition period” (R. 544). Judge Johnson entered a 
faculty desegregation order which demanded specific results 
in 1968 and clarified the ultimate goal to be pursued by the 
hoard. The order was justified by (a) a finding that only 
slight progress had been made theretofore and the board 
had not carried out its affirmative obligations under the 
Constitution,9 (b) the similarity of the court-imposed re­
quirements to the school authorities’ own estimates as to 
how much faculty integration they could accomplish in

9 See opinion of the district court at 289 F. Supp. 647, 649-652.



19

1968,10 and (c) the school authorities’ own expressions of 
uncertainty about the ultimate goal to be pursued in de­
segregating faculties.11

At an earlier stage (in the June 1, 1967 order) Judge 
Johnson had defined the goal generally (R. 370):

The objective of the school system is that the pattern 
of teacher assignment to any particular school shall 
not be identifiable as tailored for a heavy concentration 
of either Negro or white pupils in the school. The 
school system will accomplish faculty desegregation in 
a manner whereby the abilities, experience, specialties, 
and other qualifications of both white and Negro teach­
ers in the system will be, insofar as administratively 
feasible, distributed evenly among the various schools 
of the system.

This identical language was approved by this Court when 
it affirmed a decree in Wallace v. United States, 389 U.S. 
215, affirming Lee v. Macon County Board of Education,

10 See the testimony of Associate Superintendent Garrett, in the 
Statement, supra at pp. 11-12. Judge Johnson noted his reliance on 
the board’s planning: “What is actually required in the area of fac­
ulty desegregation in the high schools for the 1968-69 school year is 
very little—if any—more than the testimony reflects the school 
board planned without an additional court order. . . . This also 
applies to that part of the Court order as now amended requiring 
faculty desegregation for the other schools in the system. Thus, 
in the area of faculty desegregation, nothing more is required of 
the Montgomery County School Board by the order of February 24, 
1968, than the law requires as a minimum at this stage of the 
desegregation process and very little, if any, is required more than 
the school board, by its testimony, advised this Court it was going 
to do anyway.” (289 F. Supp. at 658.)

11 Associate Superintendent’s Garrett’s testimony that he did not 
know the objectives of the earlier court order beyond a general 
understanding that “ reasonable desegregation of faculty” was re­
quired, is quoted extensively in the opinion below. 400 F.2d 1, 
at 6, note 5.



20

267 F. Supp. 458, 489 (M.D. Ala. 1967). After this Court’s 
action in Wallace, supra, on December 4, 1967, affirmed the 
objective that faculty assignments not be so arranged as to 
identify schools as tailored for one race and that teachers 
be distributed evenly among the various schools, Judge 
Johnson then entered the more specific order to assure 
specific results in Montgomery County. The order, which 
has largely been set aside by the judgment below, further 
elaborated the theme sounded in the earlier order and in 
Wallace, supra, by stating:

A. Statement of Objective.
In achieving the objective of the school system, that 

the pattern of teacher assignments to any particular 
school shall not be identifiable as tailored for a heavy 
concentration of either Negro or white pupils in the 
school, the school board will be guided by the ratio of 
Negro to white faculty members in the school system 
as a whole.

The school board will accomplish faculty desegrega­
tion by hiring and assigning faculty members so that 
in each school the ratio of white to Negro faculty mem­
bers is substantially the same as it is throughout the 
system. At present, the ratio is approximately 3 to 2. 
This will be accomplished in accordance with the 
schedule set out below. (R. 413)

The majority of the panel below eliminated the ratios 
from the decree, saying that compliance should not be de­
cided solely by reference to the ratios, and that the faculty 
in a particular school need not mirror the racial composi­
tion of the total faculty of the system. In place of the trial 
judge’s relatively precise goals the panel majority substi­
tuted only vague generalities about an “ideal racial bal­
ance” :



21

There must be a good faith and effective beginning 
and a good faith and effective effort to achieve faculty 
and staff desegregation for the entire system. Al­
though a ratio of substantially or approximately five 
to one is a good beginning, we cannot say that a ratio 
of substantially three to two, simply because it mirrors 
the racial balance of the entire faculty must be 
achieved as a final objective. (400 F.2d at 8.)

# # #

It is hoped and believed that experience will teach 
effective ways and means of achieving an ideal racial 
balance. . . . They [school boards] have the responsi­
bility and should exercise the ingenuity to achieve a 
proper racial balance. (400 F.2d at 9.)

The vagueness of the majority’s generalities about “ideal” 
and “ proper” racial balances inevitably will leave school 
boards and trial judges in the circuit confused about the 
ultimate goal. Invariably those officials who resist the 
progress of desegregation will construe the ruling to justify 
tokenism which merely alters the all-white or all-black 
character of a faculty by adding one or two teachers of the 
other race. The confusion is compounded by the fact that 
the Fifth Circuit is equally divided, thus leaving the out­
come of particular future cases to await the accident of 
the composition of future panels. We think the point made 
by Judge Brown’s dissent below, about the need for specifics 
in faculty decrees is irrefutable as a general matter. But 
the need is even more imperative in Alabama, with its his­
tory of official resistance to desegregation, including the 
attempted intimidation of local school boards by the 
Governor and State Superintendent of Education to pre­
vent faculty integration. See Lee v. Macon County Board 
of Education, 267 F. Supp. 458, 465-470 (M.D. Ala, 1967), 
aff’d sub nom. Wallace v. United States, 389 U.S. 215.



22

Another practical impact of the judgment below is that it 
signals a cautious, go-slow attitude on faculty integration 
for trial judges in the circuit, since one of the first district 
judges in the area to attempt to push a board beyond mere 
tokenism in faculty integration has been reversed. This 
plainly will discourage other judges from attempting to 
formulate detailed goals for school boards to assure faculty 
integration progress.

Both in its vagueness and in its tendency to delay de­
segregation, the action below conflicts with this Court’s 
decision in Green v. County School Board, 391 U.S. 430. 
Green emphasized the needs for action now and for a prag­
matic appraisal of desegregation progress. Green’s require­
ment is for “a plan that promises realistically to work, and 
promises to work now”  (391 U.S. at 439). Both goals are 
thwarted by the panel’s action here. Neither the Montgom­
ery County board, nor the court below, has defined any as­
certainable goal toward which progress can be measured 
now or later.

The decision also conflicts with Wallace v. United States, 
389 U.S. 215, where the per curiam order summarily af­
firmed a decree resting on the same essential idea as the 
order which has now been set aside. As we read it, the order 
in Wallace (quoted supra at 19), covering 99 Alabama 
counties, calls for a faculty desegregation plan where 
teachers of differing races and qualifications are “ evenly 
distributed” among the various schools of a system. The 
order involved here merely defines that objective more pre­
cisely.

Judge Johnson’s order followed the precedents in other 
courts, and the action of the Fifth Circuit conflicts with 
decisions in four other circuits approving faculty desegre­



23

gation orders requiring that teachers of both races be dis­
tributed approximately evenly throughout the systems. 
See Dowell v. School Board of Oklahoma City, 244 F. Supp. 
971, 978 (W.D. Okla. 1965), aff’d 375 F.2d 158, 164, 167 
(10th Cir. 1967), cert, denied, 387 U.S. 931; Coppedge v. 
Franklin County Board of Education, 273 F. Supp. 289, 
300 (E.D. N.C. 1967), aff’d 394 F.2d 410 (4th Cir. 1968); 
United States v. School District 151 of Cook County, Illi­
nois, 286 F. Supp. 786, 798, 800 (N.D, 111. 1968), aff’d,
—  F.2d ------  (7th Cir., Dec. 17, 1968), 37 U.S.L. Week
2371. The Eighth Circuit has said that the use of such a 
formula “comports with Brown” in Kelley v. Altheimer 
School District, 378 F.2d 483, 498, n. 24 (8th Cir. 1967); 
cf. Yarbrough v. Hulbert-West Memphis School District, 
380 F.2d 962, 968-969 (8th Cir. 1967).

The Dowell case was the first reported case in which a 
district court required that the percentage of Negro teach­
ers in each school should approximate their percentage in 
the entire system. It is notable that the percentage formula 
was first proposed by an expert panel of educators and not 
by lawyers. The court in Dowell made its ruling for the 
Oklahoma City system on the recommendations of a dis­
tinguished panel of educational administrators who devised 
the integration plan for that city at the court’s invitation. 
The same formula was adopted by Judge Michie in the 
Western District of Virginia in Kier v. County School 
Board, 249 F. Supp. 239, 248 (W.D. Va. 1966), where the 
court said:

. . . [t]he order of the court to be entered here envi­
sions no ..  . permanent race consciousness. It is merely 
intended to give redress for former faculty segregation 
on the premise that, had there been no discrimination 
to begin with, the Negro teachers employed by the 
county would have been as evenly distributed through­



24

out the various schools in the system as, for want of a 
better analogy, those teachers with blue eyes or cleft 
chins.

In conclusion, it ought to be emphasized that the per­
centage goals adopted by the district court were sufficiently 
flexible to accommodate administrative difficulties. The 
goal was not an exact percentage but “ substantially the 
same” ratio. But, if necessary, it would have been unobjec­
tionable to define an area of leeway, as for example was 
done in Dowell, supra, where the court allowed a ten per­
cent margin for individual school variations. Dowell,, 
supra, 375 F.2d at 164 Nor did the order import any per­
manent notion of racial quotas into the school system. Nor 
did the order mandate that teachers be hired or fired on 
the basis of race. It merely required that within the con­
text of a system formerly segregated by law where existing 
employees were about 60% white and 40% black, they be 
reorganized into a racially integrated pattern among the 
approximately 50 schools of the system. The mathematical 
ratios adopted by the court were justifiable as a necessary 
remedial measure to assure the “disestablishment of state- 
established segregated school systems,” Raney v. Board of 
Education, 391 U.S. 443, 449. Approval of the use of such 
percentages as remedial measures offends no constitutional 
rule against consideration of racial factors. United States 
v. Jefferson County Board of Education, 372 F.2cl 836, 876 
(5th Cir. 1966), adopted en banc, 380 F.2d 385, cert, denied, 
389 U.S. 840 (1967); Wanner v. County School Board of 
Arlington County, 357 F.2d 452 (4th Cir. 1966).



25

CONCLUSION

Wherefore, petitioners respectfully submit that the peti­
tion for certiorari should be granted.

Respectfully submitted,

F eed D. Gray 
Solomon S. Seay, Jr.
Gray, Seay, L angford & P ryor 

352 Dexter Avenue 
Montgomery, Alabama 36104

J ack Greenberg 
J ames M. Nabrit, III 
F ranklin E. W hite 
E lizabeth B. D uB ois 
Melvyn Zarr

10 Columbus Circle
New York, New York 10019

Attorneys for Petitioners



MEIIEN PRESS INC. — N, Y C. <^§^>219