Carr v. Montgomery County Board of Education Petition for Rehearing and Suggestion of Rehearing En Banc

    IN THE

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

NO. 74-2633

ARLAM CARR, JR., et al.,
Pla intiffs-Appellants,

PENELOPE ANNE JENKINS, et al.,
Plaintiff-intervenors-Appellants,

v.
MONTGOMERY COUNTY BOARD OF EDUCATION, 
et al.,

Defendants-Appellees.

Appeal From The United States District Court For The 
Middle District Of Alabama, Northern Division

PETITION FOR REHEARING AND 
SUGGESTION OF REHEARING EN BANC

HOWARD A. MANDELL 
212 Washington Building 
P. O. Box 1904 
Montgomery, Alabama 36103
Attorney for Intervenors- 
Appellants

SOLOMON S. SEAY, JR.
FRED T. GRAY

352 Dexter Avenue 
Montgomery, Alabama 36104

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs-Appellants



IN THE

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

NO. 74-2633

ARLAM CARR, JR., et al.,
Plaintiffs-Appellants,

PENELOPE ANNE JENKINS, et al.,
Plaintiff-Intervenors-Appellants,

v .

MONTGOMERY COUNTY BOARD OF EDUCATION, 
et al.,

Defendants-Appellees.

Appeal From The United States District Court For The 
Middle District Of Alabama, Northern Division

PETITION FOR REHEARING AND 
SUGGESTION OF REHEARING EN BANC

Appellants, by their undersigned counsel, respectfully pray 
that, pursuant to F.R.A.P. 40 and 35(a), this Court grant rehearing 
en banc of the April 11, 1975 decision by a divided panel in this 
case, for the reason that the majority approves (without reserva­
tion, comment, or explanation), clear legal errors by the district 
court which place this ruling in complete and irreconcilable 
conflict with the vast majority of this Court's school desegregation



decisions since at least 1969.
Not only is the result in this case contrary to principles 

long thought settled in this Circuit, but the reasoning of the 
district court's opinion (apparently approved by the panel 
majority) was completely rejected, on the same issues, by the 
same panel, in Flax v. Potts, 464 F.2d 865 (5th Cir.), cert. 
denied, 409 U.S. 1007 (1972). See, for example, Judge Goldberg's 
dissenting opinion at pp. 17a, 20a n. 15, 27a n. 18, 28a, 35a 
n. 25, 37a n. 26, infra. Thus, not only will this opinion result 
in further delaying desegregation of the Montgomery County,
Alabama school system, but it will also mislead lawyers and lov/er 
courts in this Circuit to believe that Fourteenth Amendment 
principles have been changed.

Appellants believe that Judge Goldberg's comprehensive and
dispassionate dissent establishes the need for rehearing en banc
with greater clarity and persuasiveness than anything we could
write. And we have no desire to burden the members of this Court

2/
with additional volumes of material to read. The length of the

1/ ' .

1/ The one-paragraph per curiam opinion affirming on the basis of 
the district court's opinion, is attached hereto at p. la. Judge 
Goldberg's dissenting opinion is attached at pp. 3a-45a. The dis­
trict court's opinion follows at pp. 57a-86a.
2/ There have already been filed in this matter plaintiffs- 
appellants' 17-page Motion for Summary Reversal, accompanied by a 
lengthy Appendix of important documents and lower court rulings; the 
School Board's 12-page response thereto; plaintiffs-appellants' 
60-page Brief on the merits (with an appendix of selected exhibits 
and tables; the intervenors-appellants' Brief on the merits of 70 
pages, with appendices; the Brief for the United States amicus curiae

[continued on next page]
2



documents previously filed in this case results from its
3/

procedural and substantive complexity. However, Judge Goldberg's 
dissenting opinion provides a fair, yet brief, capsule summary

4/
of the factual highlights at pp. 3a-lla, infra.

Despite this complexity, the several errors of the district
Vcourt are glaring and capable of concise summarization. Each,

standing alone, would be sufficient to warrant reversal of the 
district court's judgment. Together, they present an appaling 
picture of constitutional retrogression. The district court's 
rulings cannot be squared either with the consistent thrust of

6/
school desegregation jurisprudence in this Circuit since Jefferson,

V 8/or with the Supreme Court's mandates in Swann and Keyes. Indeed,

2/ (Continued)
in support of Appellants of 51 pages; and the School Board's 
Brief of 67 pages and appendices.
3/ For example, the "plan" approved by the district court is 
actually a series of several submissions and modifications of 
earlier submissions at the instance of the court.
4/ A very detailed statement of the case and description of the 
relevant facts is found in the Brief for Plaintiffs-Appellants at 
pp. 4-33 and the Brief for Intervenors-Appellants' at pp. 3-32.
5/ They roughly correspond to sections II A, B, and C of the 
Dissenting Opinion, infra, pp. 12a-43a.
6/ United States v. Jefferson County Bd. of Educ., 372 F.2d 836 
(5th Cir. 1966), aff'd en banc, 380 F .2d 385, cert. denied sub nom. 
Caddo Parish School Bd. v. United States, 389 U.S. 840 (1967).
7/ Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971).
8/ Keyes v. School Dist. No. 1, Denver, 413 U.S. 189 (1973).

3



it is of little comfort to Montgomery's black school children that 
the Supreme Court has authorized Judge Johnson to protect his 
desegregation decrees by issuing injunctions against private

9/schools' use of city recreational facilities when those decrees 
themselves are so virtually valueless, in terms of bringing about 
actual desegregation.

The district court allowed numerous elementary schools and 
several junior high schools to retain forever their all-black, 
or virtually all-black, character because (a) it held there were 
only a few such schools —  the "small number" permitted by Swann;
(b) the Court said these enrollments resulted from residential 
patterns independent of school board actions; and (c) no practicable 
remedy existed to desegregate these facilities, both because the 
achievement of that end would require inordinate busing and because 
attempts to attain the goal by transporting white students to 
historically black schools would not result in lasting desegrega­
tion. To the extent that these holdings might be defensible if 
adequately supported by specific factual findings, they are 
weakened beyond credence by the total absence of relevant fact­
finding by the district court. To the extent that they enunciate 
principles of law independent of particularized factual situations, 
they have been held wrong in countless opinions of this and other 
courts:

9/ Gilmore v. City of Montgomery, 417 U.S. 556 (1974).

4



(a) The "small number" of one-race elementary schools

»

to which the district court alluded (pp. 68a, 73a, infra)
in fact amounts to one-third of the elementary facilities in
Montgomery? these schools enroll almost 6 0% of all black

10/
elementary students. Although the district court sought
to justify this result by pointing to its expectation of full
desegregation at grades 7-12 (p. 77a, infra), actual experience
has been "ff]alse to predictions . . . more than a quarter of
the black junior high school students in the City are locked
in schools 85% or more black, and nearly 40% in schools 80%

11/or more black.“
(b) The district court's statement, that residential

patterns unrelated to the historic dual system in Montgomery
are the sole cause of present-day segregated enrollments, also
ignores important facts. Seven of the ten elementary schools
to which the court refers (see p. 68a infra) were all-black

12/
schools under the dual system. The school board's plan

10/ As the dissent points out, under the district court's plan 
ten Montgomery elementary schools are over 90% black, and another 
is 86% black (see p. 11a infra).
11/ See Judge Goldberg's dissenting opinion at p. 47a infra.
12/ See the dissenting opinion at p. 22a n. 17 infra.

5



creates additional black schools by mandatory reassignments
13/

which decrease the level of integration. And the district
court itself previously castigated Montgomery school officials 
for construction and other practices which could only have the

14/
effect of cementing in and exacerbating neighborhood segregation.

13/ For example, Bellinger Hill was 73% black in 1973-74, and 
is 86% black under the district court-approved plan; Fews, 99% 
black in 1973-74, was assigned 200 additional black students and 
is an all-black school this year; Loveless, which was 99% black 
last year, was assigned all former McIntyre Elementary pupils and 
remains 99% black during the current term. (See table attached 
to dissenting opinion at pp. 52a-53a infra). Baldwin Jr. High 
School was 48% black last year, was projected to be 73% black in 
1974-75 and actually opened 85% black (id. at 54a). The transfer 
of the white students formerly attending Baldwin to Carver so that 
the latter school would be 60% white is consistent with the specific 
ratio goals of the board's plan: although system-wide enrollment
is approximately 50% black, only Bellingrath and Lanier, of 49 
schools, were projected to enroll between 40% and 80% black students 
(id. at 52a-55a). There was far more variation expected under the 
plans of the plaintiffs and plaintiff-intervenors, which the 
district court characterized as being designed to produce "a racial 
balance" (see pp. 63a, 66a infra).
14/ Carr v. Montgomery County Bd. of Educ., 289 F. Supp. 647 
651-52 (M.D. Ala. 1968):

The evidence further reflects that the defendants 
have continued to construct new schools and expand 
some existing schools; certainly, there is nothing 
wrong with this except that the construction of 
the new schools with proposed limited capacities 
geared to the estimated white community needs and 
located in predominantly white neighborhoods and 
the expansion of the existing schools located in 
predominantly Negro neighborhoods violates both 
the spirit and the letter of the desegregation 
plan for the Montgomery County school system.
Examples of this are the construction of the 
Jefferson Davis High School, the Peter Crump

[continued on next page]

6



(c) The district court's opinion lacks specific factual 
findings concerning the times and distances of pupil trans­
portation which would be required under either the plaintiffs'

14/ (Continued)
Elementary School and the Southlawn Elementary 
School —  all in predominantly white neighbor­
hoods —  and the expansion of Hayneville Road 
School and the Carver High School, both in 
predominantly Negro neighborhoods. The location 
of these schools and their proposed capacities 
cause the effect of this construction and the 
expansion to perpetuate the dual school system 
based upon race in the Montgomery County School 
System.

One of the most aggravating courses of conduct 
on the part of the defendants and their agents 
and employees related to the new Jefferson Davis 
High School to be located in the City of Montgomery 
and operated commencing with the school year 1968- 
69. The defendants in locating this school placed 
it in a predominantly white section of Montgomery. 
The evidence reflects that in determining the 
capacity of the school they approximated the number 
of white students residing in the general vicinity 
and constructed the school accordingly; they have 
adopted a school name and a school crest that are 
designed to create the impression that it is to be 
a predominantly white school; they have hired a 
principal, three coaches and a band director, 
all of whom are white; they have actively engaged 
in a fund-raising campaign for athletic and band 
programs only through white persons in the 
community; they have contacted only predominantly 
white schools for the scheduling of athletic events 
and they have made tentative arrangements to join 
the Alabama High School Athletic Association —  
the white association. . . .

[continued on next page]

7



or plaintiff-intervenors' plans in order to completely desegre­
gate the Montgomery County system. Certainly there is no 
predicate for a conclusion that the necessary busing would 
"either risk the health of the children or significantly 
impinge on the educational process," Swann v. Charlotte-Mecklen-

" 15/
burg Bd. of Educ., 402 U.S. 1, 30-31 (1971). Judge Goldberg

14/ (Continued)
All of this means that the defendants have 
failed to discharge the affirmative duty the 
law places upon them to eliminate the operation 
of a dual school system. . . .
The manner in which the defendants have constructed 
new schools, the location and proposed capacity 
of these schools, and the manner in which the 
defendants have expanded Negro schools and the 
location of these Negro schools make it clear 
that the effect of these new constructions and 
the effect of the expansions have been designed 
to perpetuate, and have the effect of perpetuating, 
the dual school system in the Montgomery County 
schools. . . .

Cf. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 
at 20-21 (1971).
15/ What is clear is that the school board's plan requires far 
greater transportation of black than white students; although 
many black students are reassigned and transported to formerly 
white schools —  some now virtually all-black (see note 13 supra) 
the Superintendent frankly admitted that no white students were 
assigned to formerly black elementary schools unless they lived 
within walking distance of them (April 24, 1974 transcript at pp. 
237, 240).

8



noted in his dissent, for example, that "apparently the 
length of the trips —  of additional elementary student busing 
envisioned in connection with the plaintiffs-intervenors1 plan 
very closely parallels the increase in elementary school busing 
under the desegregation plan implemented in Swann . . . "  (pp. 
38a-39a infra). This is hardly surprising, given the relatively
small geographic area (urban Montgomery) which is at issue

16/
here.

Finally, the district court's reliance on the expected 
lack of stability of any further desegregation, because of 
anticipated white flight, is explicitly contrary to a long line 
of this Circuit's school desegregation cases, from before 
Anthony v. Marshall County Bd. of Educ., 409 F.2d 1287, 1289 
(5th Cir. 1969) to and beyond Lee v. Macon County Bd. of Educ., 
465 F .2d 369 (5th Cir. 1972). All of the members of this Court 
have joined in such rulings, which until this decision were 
thought to be required by controlling Supreme Court precedent.

These are but examples of the contradiction between the 
record and the district court's opinion adopted by the panel 
majority in this case; and of the serious conflicts between the

16/ Pupil transportation is an issue only with respect to the 
schools inside the Montgomery city limits. Students living in 
the suburban "peripheral area" are already transported under the 
plan (see the dissenting opinion, at p. 6a, text at n. 4, and 
p. 7a, infra).



panel's decision and most other school desegregation rulings
of this Court. The April 11 ruling herein appears on its

17/
face to be a clear departure from prevailing law. Because
it is a school desegregation case, there was no opportunity to

18/
present oral argument. Despite a lengthy and scholarly
dissent, the Court's three-sentence per curiam Order merely 
refers to a district court opinion which, as noted by- appellants 
and by Judge Goldberg, fails to make critical fact findings in 
support of its judgment. If this result is to be capable of 
explication or analysis, there must be either a reasoned decision 
from this Court or far more detailed findings by the district 
court.

It is essential —  to the black schoolchildren of
19/

Montgomery for whom Brown v. Board of Education has as yet 
had little or no meaning, to the maintenance of respect for 
this Court among both members of the Bar and of the general

17/ In addition to the serious questions raised in this case 
about the application of Fourteenth Amendment requirements for 
nondiscriminatory assignment of pupils, the panel's affirmance 
approves sub silentio the truly unprecedented action of the dis­
trict court taxing the costs of this school desegregation case 
against plaintiffs and plaintiff-intervenors. This error alone 
warrants reconsideration eri banc.
18/ Shortly before the decision was rendered, appellants filed a 
formal Suggestion that oral argument might be appropriate. However, 
despite the fact that the ruling was not unanimous, no opportunity 
for argument was allowed. Compare Outline of Procedures, 63 F.R.D. 
347, 356 (1974); Circuit Realignment; Hearings before the Sub­
committee on Improvements in Judicial Machinery of the Committee on 
the Judiciary, U.S. Senate, 92d Cong., 2d Sess., at 86 (testimony of 
Chief Judge Brown, Sept. 24, 1974). Rehearing should be granted to afford this opportunity.
19/ 347 U.S. 483 (1954).

- 1 0 -



public, and to the preservation of the Constitution —  that the 
full Court review and reverse the decision of the panel majority 
in this action.

HOWARD A. MANDELL 
212 Washington Building 
P. 0. Box 1904 
Montgomery, /Alabama 36103

Respectfully submitted,

FRED T. GRAY
352 Dexter Avenue
Montgomery, Alabama 36104-

Attorney for Intervenors- JACK GREENBERG 
Appellants JAMES M. NABRIT, III

NORMAN J. CHACHKIN 
10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs-Appellants

11



CERTIFICATE OF SERVICE

I hereby certify that on this 22nd day of April, 1975,
I served two copies of the foregoing Petition for Rehearing 
with Suggestion of Rehearing En Banc upon counsel for the 
parties and amicus curiae herein, by depositing the same in 
the United States mail, first class postage prepaid, addressed 
as follows:

Vaughan Hill Robison, Esq. 
Joseph Phelps, Esq.
815-30 Bell Building 
P. O. Box 612 
Montgomery, Alabama 36102
Brian K. Landsberg, Esq. 
Joseph D. Rich, Esq. 
William C. Graves, Esq. 
Richard Johnston, Esq. 
Civil Rights Division 
U.S. Department of Justice- 
Washington, D.C. 20530

-12-



IN THE UNITED STATES COURT OF 
FOR THE FIFTH CIRCUIT

APP): TDS * .
U. S. COURT o r  A."

F I L E D

No. 74-2633
APR 1 1 W 5

■---------------------- —  \y. WADSWORTH
C'i ]'rirARLAM CARR, JR., a minor by ARLAM CARR &

JOHNNIE CARR, ETC., NT AD.,
Plaintiffs-Appc11an ts, 

NATIONAL EDUCATION ASSOCIATION, INC.,
Interverior,

PENELOPE ANNE JENKINS, ET AD.,
Int crvenors-AppelInnt s,

versus
MONTGOMERY COUNTY BOARD OF EDUCATION,
ET AD., ETC.,

Defcndants-Appellees,
UNITED STATES OF AMERICA,

Amicus Curiae.

Appeals ora the United States District Court for the 
_____________  '■_ Micelle District of .Alabama

( April 11 , 1975)
Before GENIN, GOLDBERG and DYER, Circuit Judges.

r

PER CURIAM:

Wc affirm the judgment of the district court for the reasons
set forth in its opinion, 377 F . Supp. 1123 (M.D. Ala. 1974). The
judgment of the district oourt is attached as Appendix A. Tie take
note of the history of this litigation as reflected by the opinions
of the district court, this court, and the Supreme Court cited in
the district court's opinion. The Montgomery County school system
has been under the scrutiny and surveillance of the federal judiciary
for a substantial period' of time and such scrutiny and surveillance
will continue. . '

AFFIRMED.

©



.• -1
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE

DISTRICT OF ALABAMA, NORTHERN DIVISION

ARLAM Q\RR, J R . ,  ET  A t .  ))
Plaintiffs, )

)
NATIONAL EDUCATION ASSOCIATION, )
INC.; PENELOPE ANNE JENKINS; .• )
ET AL., )

)
Plaintiff-Intervcnors, )

)
UNITED STATES OF AMERICA, ))

Amicus Curiae, ))
v. ))

MONTGOMERY COUNTY BOARD )
OF EDUCATION, ET AL., )

Defendants. )

F I L E D

MAY 2 A

HANF. P. GORDON, C lc R‘f
BY______ ______________

DEPUTY ClERE

CIVIL ACTION NO. 2072-N

JUDGMENT

Pursuant to the findings of fact and onclusions of law made and 

entered.in a memorandum opinion filed in this cause this date, it is the 

ORDER, JUDGMENT and DECREE of this Court that:

1. The plans presented by the plaintiffs and plaintiff-intervcnors 

for the further desegregation of the Montgomery County school system be and
J

arc hereby rejected.

2. The plan presented by the defendant Montgomery County Board of 

Education on January 15, 1974, revised on March 29, 1974, and modified on 

May 8, 1974, be and is hereby approved and ordered implemented.

3. The school board's plan will be implemented forthwith, with the 

student assignments to the various schools within the system to be effective 

with the commencement of the 1974-75 school year.

4. The school board will file with this Court on September 15, 1974, 

and on February 15, 1975, and on said dates each year thereafter, written 

reports reflecting the actual student and teacher assignments, by race, in 

each school ir. the system.

5. The costs incurred in this proceeding be and they arc hereby 

taxed one-half against the plaintiffs and one-half against the plaintiff- 

intervcnors.
/Vj9

Done, this the *3- day of May, 1974.

UNITED STATES DISTRICT JUduE



No. 74-2033 - Carr v. Montgomery County Bd. of Education 
GObDBERG, Circuit Judge (dissenting):

Respectfully, but without equivocation, I dissent.

This suit was brought in 1904 to desegregate the public 

schools in Montgomery County, Alabama. Its progress has been 

recorded at several stages in opinions by the able District Judge,

±y
by this Court, and by the Supreme Court. In August, 1973,

/ Carr v. Montgomery County Bd. of Educ., M.D. Ala.,

1964, 232 F.Supp. 705; further relief ordered, 1966,

253 F.Supp. 306; further relief ordered, 1968, 289 

F.Supp. 647, ziff1 d, 5 Cir. 400 F.2d 1, af f' d, 1969,

395 U.S. 225, L.Ed.2d , S.Ct.;

further relief ordered by district court,

1970, [unreported], aff'd with modifications, 5 Cir.

1970, 429 F.2d 302.

J

/ i, ■'
the district court ordered the parties then in this case —  the 

the
plaintiffs,/defendant School Board, and the United States —  to

submit proposals for further desegregation of the Montgomery

County system in light of decisions by this Court and the Supreme 

the in 1970
Court since/entry/of the last comprehensive order in the case.

One week later, plaintiffs-intervenors, Jenkins,

et al., filed their motion to intervene, which was granted in

February, 1974. During the first four months of 1974, plaintiffs,

plaintiffs-intervenors, and the School Board each prepared and

proposed new pupil assignment plans. Hearings were held on

_ 1 _



each plan in April. The School Board amended its plan in response

to prodding from the Bench, and in an order entered May 22, 1974, 

opinion F. Supp. 1123,
and/reportcd at 377 / the district court adopted the School Board 

plan, as amended, in its entirety. Costs were taxed half against 

the plaintiffs and half against the plaintiffs-intervenors.

The plaintiffs, the plaintiffs-intervenors, and the United 

States appeal, arguing between them that the district court erred 

in adopting the School Board's plan for the assignment of elementary 

and junior high school students, that the School Board assignment 

plan saddles black elementary school students with a disproportion­

ate transportation burden, and that costs should have been taxed

against the School Board, 

would
I /hold that the district court should not have adopted 

the School Board's proposed assignment plan for the elementary 

grades because it fell short of establishing a unitary school 

system, and there was no sufficient finding that no workable alter­

native could be implemented. The record indicates

additionally that the School Board plan for the assignment of

junior high students,as implemented, fails to comply with consti-

would
tutional mandates. Accordingly, 1/ remand to the district court



4

for further proceedings to develop workable

unitary school assignment plans for the elementary and junior

high grades. In light of this I would find it unnecessary

at this time to pass on the appellants' claims of unequal trans-

would
portation burdens. i /vacate the district court's award of costs 

in favor of the School Board, to permit the entry of an appropri­

ate award after the further proceedings on remand. 
y

I
Background

For the 1973-74 term, Montgomery County public schools 

enrolled 36,016 students, 17,042 (47/) of whom were black, and 

18,974 (53/) white, in some 54 regular schools, organised along a

1-6, 7-9,- 10-12 pattern. The 36 elementary schools enrolled/ , '
18,449 students (9,279, or 50/, black), the 13 junior high schools 

9,644 (4,390, or 45/, black), and the 5 high schools 7,923

JJ(3,373, or 43/, black). All but 7 of the schools then in use

stood within the corporate limits of the City of Montgomery, and 

the total county population is similarly concentrated within the 

City.

LV We rely here upon the figures referenced in the 

district court's opinion, although the plaintiffs- 

• intervenors assign some minor inaccuracies thereto.



The student population residing in the area of Montgomery 

County outside the City is predominantly black. Within the City 

the student population is predominantly white: the eastern half 

of the City is more conveneratodly white: most of the western 

half is virtually all-black: and a narrow integrated corridor

running Perth-South bisects the City. Under the desegregation 

plan adopted in ,970 and effective in 1979-74, most pupils within

the City were as:

school children in

assigned to neighborhood schools.- Outside the City,

JL7
all but the extreme south of die county were

organized into "periphery zones.'

-'1-/ These students attended Dunbar Elementary School 

(l-f>), and Montgomery County High School (7-12), 

botl( of which remain virtually all-black under all 

plans proposed to the district couxt.

Most of these "periphery zone2" students were bused to schools in

the Cityi.ty, and they made up the majority of the 11,175 student-

jy
(31%) bused by the county.



j u During the 1973-74 terra, some 5,308 elementary school 

students, 3,759 junior high students, and 2,029 senior 

high students were bused.

Implementation of the neighborhood—assignment based plan

adopted in 1970 left a high number of all-one-race or virtually

all-one-race schools. The record discloses that in the Spring 
%

of 1974/ 15 elementary schools were 87% or more black, and 6 were 

87% or more white; 6 junior highs were 94% or more black, another 

was 85% black, and 1 was 90% white; 1 senior high was 99% black 

and another was 86% black. Responding to these conditions, in

J

its order/below the district court replaced its 1970 plan with 

the School Board's most current proposal. That plan adheres to
f

the techniques employed in the 1970 plan, and, unlike the plans 

suggested by the plaintiffs and plaintiffs-intervenors, eschews 

pairing or clustering of schools.

At the high school level, the School Board plan employs 

rezoning and peripheral reassignments to reduce the percentages 

of black students at each City school to 33-40%; only Montgomery 

County High School, in the extreme south of the County, retains
5_y

an 07% black student body. None of the

See Appendix C; see also note 35 infra.



appellants question the propriety of this high school plan, and

appeal was
it requires no further discussion. Rather, this / brought tc

test the constitutional sufficiency of the School Board's student 

assignment plans for the elementary and junior high levels. I 

will discuss each of the two educational stages in turn.

II
Elementary School Plan

The plaintiffs and plaintiffs-intervenors each proposed 

alternative plans for assignment of elementary school students. 

Each plan aimed at eliminating "racially identifiable" schools,
J

7  . :• •
defined at the outset by each plan's architect as a school whose 

racial balance varied more than 10-15% from the racial make-up 

of the county-wide student body for that level. Neither plan 

clung strictly to such statistical profiles, however, and each

left at least one virtually all—black elementary school.

The plaintiffs' plan was directed only toward the elemen­

tary schools within the City. It generally retained the zone line 

drawn by the School Board, but changed assignment patterns within 

those zones through pairing and clustering, and some modification

of peripheral

- G -



assignments, to reach a 24-66% black concentration in each city 

school. The district court calculated that implementation of the 

plaintiffs' plan would require reassignment of 43% of the elemen­

tary school population and additional transportation of 20% of 

the elementary student body. The district court concluded that

the plaintiffs' plan v.>as designed "for the sole purpose of attain- 
, 377 F. Supp. at 1129,

ing a strict racial balance in each elementary school involved,"

and that the increased busing, large scale reassignment of studen

and teachers, and the "fracturization of grade structure" in-

"be disruptive to the educational.processes 
herent in pairing and clustering,/would place an excessive and

unnecessarily heavy administrative burden on the school system."
i \

•' M*

The plaintiffs-intervenors proposed a more complicated ove: 

haul of elementary school assignments. Their plans abandoned the 

School Board zone lines, replacing them with two sets of new 

zones: one set of strip zones, running generally North-South, for 

grades 1-3; another set of strip zones, running generally East-We 

for grades 4-6. -Utilizing this basic network, the plaintiffs-

intervenors offered two possible plans. The simpler plan merely



assigned students to the school within their proposed contiguous 

zone. This loft 400 black students in grades 4-G in a school

01% black, and 2233 of the black primary grade 1-3

children in schools 04% or more black. The plaintiffs- ]
intervenors' alternative, and preferred, plan retained their grade

zone and the single 81% black school- 
4-G/pattern/ but added satellite zoning to the primary grade

v the total of
assignments, reducing to 402/black students in one 84% black 

primary school. The plaintiffs-intervenors' plan offered trans­

portation advantages over the plaintiffs1 plan, requiring addi­

tional busing for only 11% of the elementary school students, 

according to the district court. There was evidence that the7 •
plaintiffs-intervenors1 plan would prove the more likely thwarted 

in practice, however, and the district court found that implements 

tion of either of the plaintiffs-intervenors1 plans would in­

volve reassignment of 60—70% of all of the elementary school 

population. The district court entered no specific findings as 

to the workability of the plaintiffs-intervenors1 plans.

The School Board plan adopted by the district court for 

the assignment of elementary school children furthers desegrega­

tion by closing 5 previously virtually all-black elementary



schools and assigning some pupils from those schools to predom­

inantly white schools, and by reassigning some 400 black students

at another virtually all-black school to 4 predominantly white

schools. Under this plan, however, 55% of the black students

v/ere projected to be enrolled at elementary schools 87% or more

black, and 44% were expected to attend elementary schools 93%

or more black. The statistics showing actual enrollment as of

September 15, 1974, demonstrate that the true profiles are slightly 
6 /

worse. Under the School Board plan no white elementary school

See 7\ppendix A & note 37 infra.
!

students were reassigned to a school that would remain predomin­

antly black. The School Board estimated that its elementary

school plan would produce a significant net reduction of trans­

portation .

- 9



A
Unitary School System

As the Supreme Court established in Green v. School Bd. 

of New Kent County, I960, 391 U.S. 430, 436, 20 L.Ed.2d 716,

722, B8 S.Ct. 1689, ____ , "The transition to a unitary, non-

racial system of public education . . . is the ultimate end

to be brought about" in school desegregation cases. In this 

pursuit the school authorities and district court "will . . .

necessarily be concerned with the elimination of one-racc 

schools." Swann v. Charlotte-Mecklenburg Bd. of Educ., 1971,

J

402 U.S./l, 26, 28 E.Ed.2d 554, 572, 91 S. C-t. 1267,_______ .

The district court, relying on Ellis v. Board of Public Instruc. 

of Orange County, 5 Cir. 1970, 423 F.2d 203 (Ellis I), concluded, 

however, that the persistence of virtually all-black elementary 

schools in Montgomery County under the School Board's "neighbor­

hood assignment" plan did not prevent that system from reaching 

the unitary status mandated by Green. I disagree.

10



jV
Ellis I approved, as modified, a student desegregation

which was
plan for Orange County, Florida,./based on neighborhood school

assignments and left several virtually all-black schools. We

held that "[u]nder the facts of this case, it happens that the

school board's choice of a neighborhood assignment system is

adequate to .convert the Orange County school system from a dual

to ci unitary system." 423 F.2d at 208, n. 7. Ellis 1 did not,
"neighborhood school"

• however, automatically sanctify any/student assignment plan which 

placed the same percentages of students in fully integrated 

schools. Rather, as we explicitly cautioned,

There arc many variables in the student assignment
7 :
approach necessary to bring about unitary school

zv
The district court's opinion below, 377 F.Supp at 1137 n.36as

erroneously reads the Ellis I opinion /approving the degree 

of desegregation under the Orange County plan without modification

- 11



systems. The answer in each case turns, in the 

final analysis, as here, on all of the facts in­

cluding those which are peculiar to the particular 

system.

423 F .2d at 208, n. 7. This passage has become a refrain in our

iL/
school desegregation decisions. Indeed, our school desegre­

gation cases are too numerous, their facts, figures, and conditions] 

too particular, and our remedies too flexibly fashioned, to lend 

themselves to a simple sorting into neat rows. But I believe that 

the weight of our pre-Swann decisions adopting and adapting the

neighborhood assignment approach of Ellis I do not permit us t(

the
certify the School Board's plan for Montgomery as/achievement

I V
of a unitary system.

± 7  ~ 7 ~  7See, e■g., Henry v. Clarksdale Mun. Sep. Sch. Dist., 5 Cir. 

1970, 433 F.2d 387, 390; Andrews v. City of Monroe, 5 Cir. 1970,

425 F .2d 1017, 1019.

U Seefe ■g., Ross v. Eckels, 5 Cir. 1970, 434 F.2d 1140, cert

denied, 1971, 402 U.S. 953, 29 L. Ed. 2d 123, 91 S. Ct. 1614;

Valley v. Rapides, 5 Cir. 1970, 434 F.2d 144; Conley v. Lake

Charles School Bd., 5 Cir. 1970, 434 F.2d 35; Allen v. Board of

Public Instruc . of Broward County, 5 Cir. 1970, 432 F.2d 362,

cert, denied, 1971 402 U.S. 952, 29 L.Ed.2d 123, 91 S. Ct. 1609,

1612; Pate v. Dade County School Bd. 5 Cir. 1970, 434 F.2d. 1151,

cert, denied, 1971, 402 U.S. 953, 29 L.Ed.2d 123, 91 S. Ct. 1614;

Bradley v. Board of Public Instruc. of Pinellas County, 5 Cir.

1970, 431 F.2d 1377, cert, denied, 1971, 402 U.S. 943, 29 L.Ed.2d

111, 91 S. Ct. 1600; Hightower v. Went, 5 Cir. 1970, 430 F.2
-  12 -



fn continued

Mannings v. Board of Public Instruc. of Hillsborough County,
"neighborhood assi'gnment"

5 Cir. 3970, 427 F.2d 074. In each of thcse/cases we required' 
concentration

that the / of black students attending virtually ali­

bi ack schools be reduced far below the level accomplished under 

the School Board plan for Montgomery. This is not, of course, to 

disregard the complex of other variables present in each case.

See also, Wright v. Board of Public Instruc. of Alachua County,

5 Cir. 1970, 431 F.2d 1200.

As we concluded in Allen v. Board of Public Instruc.of Broward 
/

County,5 Cir. 1970, 432 F.2d 3G2, "In the conversion from dual 

school systems based on race to unitary school systems, the con­

tinued existence of all—black or virtually all.—black scliool.s is

n ££/
unacceptable where reasonal^l.e alternatives exist."

J, f •7 ■'
1 0/

Quoted with approval in Boykins v. Fairfield Bd. of 

Educ., 5 Cir. 1972, 457 F.2d 1051, 1095.

Even were the Sdiool Board's plan adequate to achieve a 

unitary school system under Ellis I and the cases immediately fol 

lowing it, liowever, I thinly it manifest that the School Board's 

plan cannot stand after Swann; Davis v. Board of School Comm'rs

of Mobile County, 1971, 402 U.S.



33, 20 b. Ed. 577, 91 S.Ct. 12B9; and Keyes v. School District

Ho X, 1 9 7 3 , 413 U.S. 189, 37 b.Ed.2d 548, 93 S.Ct. 2606. Swann

shed new light on the constitutional requisites in school desegre­

gation cases, and since Swann we have refused to accept mere com­

pliance with our decision in Ellis I as the mark of a school board

plan's constitutional sufficiency. Indeed, we held in Ellis v. Bojr

cerjt. _d er> i e <c
of Public Instruc. of Orange County, 5 Cir. 1972, 465 F.2d 870, /

1973, 410 U.S. 966, 35 b. Ed. 2d 700, 93 S. Ct. 1438 (Ellis IT),

that the school board was obliged to desegregate each all-black
11 /

school remaining in Orange County under our prior holding.

See also Dandridge v. Jefferson Parish School Bd., 5 Cir. 19/2,

j-iy456 F.2d 552, 554, cert, denied, 1972, 409 U.S. 978, 34 L.Ed.

2d 240, 9''3 S. Ct. 306.

11/ We found the Orange County system could be unitary, how­

ever, although two elementary schools, to which 7% of the system's 

black elementary students were assigned, continued with 79% black 

enrollments, where 14% of the system's black students had employed 

the majority to minority transfer program 

I2y
Compare bee v. Macon County Bd. of Educ. (Anniston), 5 Cir 

1973, 483 F .2d 244 (post-Swann), with bee v.Macon County Bd. of 

Educ. (Anniston), 5 Cir. 1970, 429 F.2d 1218 (pre-Swann). Rut cf- 

bee v. Macon County Bd. of Educ. (Troy), • 5 Cir. 1973, 47o

F.2d. 748 (apparently denying interim relief only).

- 34



TJ,e concentration of black students in virtually all-black

schools conti:endicts the assertion that the School Board's plan
these

for Montgomery establishes a unitary school system under/control­

ling standards. Compare, c j , ;  Swann,
»

KlliB xi, supra; Flax v. Potts, 5 Cir. 1972, 464 F.2d 869, 869, 

cert, denied, 1972, 409 U.S. 1007, 34 L. Ed.2d 299, 93 S.Ct. 433 

(middle schools, high schools); Dandridge v..Jefferson Parish Scho 

Bd., 5 Cir. 1972, 456 F.2d 553, cert, denied, 1972, 409 U.S. 978, 

34 L. Ed. 2d 240, 93 S. Ct. 306; cases cited, note 9 supra; 

see also Keyes v. School Dist. No. 1, 1973, 413 U.S. 189, 199 n.

X,. Ed. 540, 558, 93 S. Ct. 2606, -------• The teaching of10, 37

school which reflects vestigial discrimSwann and Keyes is that no
J

if

ination through its virtually single-race student body can be 

omitted from a desegregation plan unless inclusion is unworkable, 

where desegregation is possible wo can tolerate no abandonment 

of some given portion of students locked into a uniracial educa­

tional experience.

in appraising a school board’s plan we are, of course, 

attentive to conditions other than racial concentrations. I can­

not agree, however, with the suggestion that compliance with the

remaining five of the six requirements established m  Green v.

15



School Bonrd ot Now Kent Comity, 19W, 391 «0, 435, 30 L,

M . 2d. 710, 722, 00 0. Ct. 1009--------, -  "£oc»lty, »t»££.

icialar activities and facilities - cantransportation, extra curr

13 / conclude
immunize the School Board’s plan. So to/ would ignore tha

"[i]n Green the court spoke in terms of the whole system, " F,1 lis

WOUld
1, 423 F.2d at 204, and/disregard the recognition that student

assignment is the single most important single aspect of a de­

segregated school system. Our cases have always required complr-

14/
ance with all six particulars.

13/ 377 F.Supp. at 3.138.
p/e / I assume arguendo that the Board plan complies with the 

remaining five benchmarks enumerated in Greeip.

14 /
Sc6, c. o;., Ellis II, supra; Valley v. Rapides, 5 Cir. 1970, 

434 F .2d. 144; Allen v. Board of Public Instruc. of Broward 

County, 5 Cir. 1970, 432 F .2d 362, cert, denied, 1971, 402 U.S. 

962, 29 L. Ed.2d 123, 91 S. Ct. 1609, 1612; Pate v. Dade County 

School Bd., 5 Cir. 1970, 434 F.2d .1151, cert, denied, 1971,

402 U.S. 953, 29 L.Ed.2d 123, 91 S. Ct. 1614; Henry v. Cl arksdale 

Hun. Sep. School Dist., 5 Cir. 1970, 433 F.2d 387; Bradley v. 

Board of Public Instruc. of Pinellas County, 5 Cir. 1970, 433 

F.2d 387; Bradley v. Board of Public Instruc. of Pinellas County, 

5 Cir. 1970, 431 F.2d 1970, cert, denied, 1971, 402 U.S. 943,

29 L. Ed. 2d 111, 91 S. Ct. 1600; City of Monroe v. Andrews, 5 

Cir. 1970, 425 F.2d 1017. See generally Singleton v. Jackson 

Mun. Sep. School Dist., 5 Cir.(cn banc) 1970, 419 F.2d 1211.

16 -



J

'J’he School Board additionally argues' that the secondary schools

;n Montgomery County are desegregated, and points out that wc have

taken note of thorough integration at the secondary level, in

some cases approving assignment plans which left some all-black

primar■y schools. Jlee Lee v. City of Troy Bd. of Educ., 5 Cir. 1970

432 F.2d 819, 822; Hightower v. West, 5 Cir. 1970, 430 F.2d 552,

• also
555. This argument/fails here. Even assuming arguendo that the

secondary schools in Montgomery County were fully integrated, we

would, as in the
>-Swann /cases relied upon by the School Board,attach little

/ • ‘pre

weight to that consideration'. Moreover, as it has become quite 

clear," [Tlhis court has, with limited exceptions [not applicable

here] disapproved of school board plans which exclude a certain

age grouping from school desegregation." Arvizu v. Waco Indep.

School Dist., 5 Cir. 1974, 495. F.2d 499, 503. In the.light of

Swann and our developed case law, it is manifest that the pro-

grL-essive integration of Montgomery''s high schools is no excuse for

17



at 16/
the continued failure to desegregate/the elementary level.

In some cases it may prove necessary to avoid trans­

portation of school children of very tender age, sec 

generally Swann, 402 U.S. at 31, 20 Jj.bd.2d at ->7->

91 S. Ct. at ____; Cisneros v. Corpus Christi Indep.

School Dist., 5 Cir. (en banc) 1972, 467 F.2d 142, 153, 

cert, denied, 1973, 413 U.S. 922, 37 L. Ed. 2d. 1044,

93 S. Ct. 3052. But such exceptions are carefully 

limited, see, c .g ., Flax v. Potts, 5 Cir., 1972, 464 

F.2d 865, 869, cert, denied, 1972, 409 U.S. 1007, 34 

I,. Ed.2d 299, 93 S. Ct. 433; Lockett v. Board of Educ. 

of Muscogee County School Dist., 5 Cii~. 197]., 447 F.2d 

472, 473; cf. Lee v. Macon County Bd. of Educ., 5 Cir. 

1973, 475 F .2d 749 (apparently denying interim relief

only).
/

, /
/ \ :

In cases where racially identifiable primary schools 

cannot feasibly be eradicated, of course, a district 

court should endeavor particularly to insure that 

students from such schools will graduate to fully 

integrated schools.

in sum, a neighborhood school assignment plan may be ade­

quate if it establishes a unitary school system; but such assign 

merit is not "per se'adequate." Davis v. Board of School Comm’rs 

of Mobile County, 1971, 402 U.S. at 37, 20 L.Ed.2d at ~>01, 91 

S. Ct. at A review of the circumstances of



the Montgomery County system, particularly the concentration 

of black elementary students in virtually all-black schools, 

reveals that the School Board plan approved by the district 

court was insufficient to achieve a unitary school system as 

required under Green and Swann. Such a plan can stand only 

if its lack 6f unitary status is not attributable to state

action, or if no further remedy is workable



n

Residential Patterns

The district court declined to require further desegre­

gation of the remaining virtually all-black elementary schools

in part
in Montgomery County,/because it considered the persistence of

those schools to be "a result of residential patterns and not of

the school board's action —  either' past or present." 377 p.

Supp. at. 1133. Because the district court's opinion offer

no supporting discussion, it is unclear whether the district

court believed that the present existence of virtually all-black

in part
schools could be laid/to residential patterns established dur-

J
, /
i . ■

ing the period of statutory school segregation yet not induced

by that sterte action, or that the development of racially iden-

tifitible neighborhoods since the onset of efforts to integrate

17 /
the schools had precipitated the virtually all-black schools.

l u  ~ :
The record discloses that of the 11 elementary 

schools which retain a projected black population 

over 80% under the School Board's “neighborhood 

assignment" plan, 8 (all but Bellinger Hill,

Davis, and Pintlala) had been black schools be­

fore 1970.

In either event, I think the district court erred in its

20



determination.

Aware that "[p)eople gravitate toward- school facilitie 

just as schools are located in response to the needs of peopl 

the Supreme Court has recognized that

- 21



ft)he location of schools may . . . influence 

the patterns of residential development of a metro­

politan area and have important impact on composi­

tion of inner-city neighborhoods.

In tile pact, choices in this respect 

have been used as a potent weapon for creating 

or maintaining a state-segregated school system.

2 0,
Swann,402 U.S. at/21, 28 L. Ed. 2d at 569, 91 S. Ct. at .

Moreover,

[Ajeormection between past segregative acts,and 

present segregation may be present even when not 

apparent and . . . close examination is required 

before concluding that the connection does not 

exist. Intentional school segregation in the past
J/ j

may,have been a factor in creating a natural environ­

ment for the growth of further segregzition.

Keyes , 413 U.S. 189, 211, 37 L. Ed.

2d 548, 565, 93 S. Ct. 2686, ________  .

Accordingly, the Swann Court held that while

the existence of some small number of one-race, 

or virtually one-race, schools within a district is 

not in and of itself the mark of a system that 

practices segregation by law [,] . . . in a system 

with a history of segregation the need for remedial

-  -22 -



criteria of sufficient specificity to assure a 

school authority's compliance with its constitu­

tional duty warrants a presumption against schools 

that are substantially disproportionate in their 

racial composition. Where the school authority's 

proposed plan for conversion from a dual to a uni­

tary system contemplates the continued existence 

of some schools that are all or predominately of one 

race, they have the burden of showing that such 

assignments are genuinely nondiscriminatory. Hie 

court- should scrutinize such schools, and the bur- 

den upon the school authorities will be to satisfy 

the court that their racial composition is not the 

result of present or past discriminatory action on 

their part.

Swann, 40?. U.S. at 26, 28 L. Ed. 2d 572, SI S. Ct. at

j
, I/ • ■The School Board may satisfy its burden "only- by showing that its 

past segregative acts did not create or contribute to the cur­

rent segregated condition of the . . . [particular] schools."

Keyes, 413 U.S. at 211, 37 L.Ed.2d at 565, 93 S.Ct. at _____ .

There is no evidence to support a conclusion that the exis-

ence of virtually all-black neighborhood elementary schools, so 

derive
far as they / from residential patterns etched before school

desegregation, is innocent of past discriminatory action by the

School Board.



The opinion below lacks the detailed factual findings by

the district court which should reflect the "close scrutiny

required under Swann and Keyes, and the record bears no evidence tc 

support the conclusion that the link between past and present 

segregation has been severed. While there is much evi­

dence of the residential separations between whites and blacks



4

in Montgomery, which in some cases shows that those patterns 

are not new, evidence of this sort is insufficient to overcome 

the presumption established in Swann connecting the development 

of persistently segregated residential patterns with state-mandate 

school segregation. See also Dandridge v. Jefferson Parish School 

Bd., 5 Cir. 1972, 456 F.2d 552, cert, denied, 1972 409 U.S. 978,

34 L. Ed. 2d 24 0, 93 S. Ct. -306.

■These'principles establish equally well that racial segre­

gation in the Montgomery County elementary schools cannot be ex­

cused on the ground that segregated residential patterns of some 

neighborhoods from which the one-race neighborhood schools draw 

have crystallized an the result of population shifts by private
J, f

residents since the court1s initiation of school desegregation.

Such an argument has previously been rejected by this Court.
„  ; “ ’

See Flax v. Potts, 5 Cir. 1972, 464 I'.2d 865, 868,

cert, denied, 1972, 409 U.S.1007, 34 L.Ed.2d 299, 93

S. Ct. 433; cjf. Boyd v. Point Coupee Parish School Bd. ,

5 Cir. 1974, 505 F.2d 632; Hereford v. Huntsville Bd.

of Educ. , 5 Cir. 1974, 604 F.2d 857; Adams v. Rankin,

5 Cir. 1973, 485 F.2d 324.

To be cure, the Supreme Court has made clear that after a school 

system attains unitary status,



the communities served by such [a system may not] 

remain demographically stable [;] . . . in a grow­

ing, mobile society, few will do so. Neither 

school authorities nor district courts are con­

stitutionally required to mate year-by-year adjust­

ments of tlie racial composition of student bodies 

' once the affirmative duty to_desegregate has been 

accomplished and racial discrimination through of­

ficial action is eliminated from the system.

Swann, 402 U.S. at 31-32; 20 L. Ed. 2d. at 575, 91 S. Ct. at ____

But in Montgomery a unitary system has never been achieved, for

"[t]he vestiges of state-imposed segregation [have not] been

eliminated from the assignment of elementary school students,"

Flax v. Potts, 5 Cir. 1972, 464 F.2d 865,868, cert, denied, 1972,

409 U.S. 1007, 34 L.Ed.2d 299, 93 S. Ct. 433, as required under

l*/ .
Swann. ' / •

1U ~
Cf. Ellis v. Board of I’ublic Instruc. of Orange 

County, 5 Cir. 1972, 465 F.2d 870, 879-80, cert, 

denied, 1973, 410 U.S.966, 35 L.Ed.2d 700, 93 S.

Ct. 1438 (Ellis XI); Dandridge v. Jefferson Parish 

School Bd., 5 Cir. 1972, 456 F.2d 552, 554,cert, 

denied, 1972, 409 U.S.970, 34 I,.Ed.2d 240, 93 S.

Ct. 306. Moreover, there is even some indication 

of Montgomery County School Board action since the 

onset of court-ordered desegregation which may tend 

to perpetuate the dual system. As the district 

court found at i\ prior stage in this litigation, the



location find extent of construction and expansion

of elementary and secondary schools in Montgomery

County have "been designed to perpetuate, and have

the effect of perpetuating, the dual school system."

Carr v. Montgomery County Bd. of Educ., M.D. Ala.

I960, 289 F. Supp. 647, 692. See generally,Swann,
at

402 U.S. at 18-21, 28 L.Ed.2d/568-70, 91 S. Ct.

_____ ; cf. Keyes, 413 .U.S. at 201-05, 37 L.Ed. 2d at

559-61, 93 S. Ct. at .

26a



0

c
Remedy

Because the School Board's proposed elementary school plan

falls short of achieving a unitary system, and this failing cannot

be attributed solely to private action, the district

court should have ordered an appropriate alternative plaan. At

we have said before Swann and reiterated after, ''[i]n the con -

version from dual school,systems based on race to unitary school 

systems, the continued existence of all-black or virtually all­

black schools is unacceptable where reasonable remedies exist. 2o_y

2 0 /
Allen v. Board of Educ. of Broward County, 5 cir. 1970, 

432 F. 2d 362, 367, cert, denied, 1971, 402 U.S. 952, 29 L. Ed. 

2o 123, 91 S .. Ct. 1609, 1612, quoted in Boykins v. Fairfield 

Bd. of Educ., 5 Cir. 1972, 457 F.2d 1091, 1095.

The district court discarded the plans proposed by the 

plaintiffs and plaintiffs-intcrvenors, after determining that

they aimed at balancing black/white student populations on

tibstract ratios, rather than simply creating a unitary acsignment

plan. Although the plaintiffs and plaintiffs-intervenors protest

) 0 ck

27  -



thiit .their use of reitios as indicators of residual- 

ly discriminatory school assignments remained within the bounds 

approved by the Supreme Court in Swann, 402 U.S. at 22-25, 28

l,.Ed.2d at 570-72, 91 S.Ct. at ____, 1 would not hold that the

district court abused its discretion in choosing not to follow 

those plans. Nevertheless, the elimination of those proposals 

did not relieve the district court of its duty to exercise its 

"broad power to fashion a remedy that wi11 assure a unitary school 

system," and to"makc every effort to achieve the greatest possible- 

degree of actual desegregation and . . . [eliminate] one-race
Jj f

schools." Swann, 404 U.S. at 16, 26, 20', L.Ed.2d at 567,' 572, 91

S.Ct. at ___ _. Upon determining that none of the alternatives

presented was satisfactory, the district court should have held 

further proceedings to forge a workable and effective plan. See 

Cisneros v. Corpus Christi Indep. School Dist., 5 Cir. (en banc) 

1972, 467 F.2d 142, 152, cert, denied, 1973, 413 U.S. 922, 37 

L. Ed.2d 1044, 93 S. Ct. 3052. The district court could suppor.t 

its failure so to proceed only by a conclusion that no further 

desegregation of the elementary school population was workable 

oil any plan.

- 28



I

'Die School Board has consistently maintained that no

workable means exists .for increasing desegregation in the 

and
elementary schools,./ the district court agreed, finding "that the 

remaining predominantly black schools cannot be effectively de­

segregated in "a practical and workable manner" and that the 

School Board plan achieved "the greatest possible degree of actual 

desegregation, taking into account the 'practicalities of the 

situation.'" 377 F. Supp.at 1135. These conclusions are

drawn on insufficient or improper factual considerations, however,
J, /7 • '

and are thus inadequate as a matter of law.

The district court reasoned that any further elementary

school desegregation would require cross-busing of black and white

students which "would not, under the circumstances of this case,

accomplish any realistically stable desegregation." 3^7 F. Supp.

21 / no
at 1132. Die opinion carries/discussion or subsidiary findings t

also
21 / The district court/forecast that the plans of

the plaintiffs and plaintiffs-intervenors would 

provide only "an extremely unstable desegregated 

system." 377 F. Supp. at 1131.



explain its concern with the stability of desegregation. Ap­

parently the district court was persuaded by_ the School Board's 

_22/
attempt to demonstrate that busing of white children into black

See, e.g., Transcript, April 24, 1974, at 240.

neighborhoods to attend traditionally black schools would in many

cases be met with withdrawal of white students from those schools.

But it is well- settled that the threat of "white flight," however

likely, cannot validate an otherwise insufficient desegre-
2 3 /

gation remedy. To the extent that it considered white flight

237 See, c .g ., Monroe v. Board of Commissioners or the

City of Jackson, 1968, 391 U.S. 450, 459, 20 L.Ed.2d
./ /
7‘33, 739, 99 S. Ct.1700, ___; Lee v. Macon County Bd.

of Educ. (Marengo), 5 Cir. 1972, 465 F.2d 369; United 

States v. Hinds County School Bd., 5 Cir. 1969, 417 

p .2d B52, -858, cert, denied, 1970, 396 U.S. 1032, 24 

L.Ed.2d 531, 90 S. Ct. 612; Lee v. Macon County Bd. 

of Educ. (Pickens), M.D. Ala. (3 judge) 1970, 317 F.

Supp. 95, 98-99. Cf., e.g., Boyd v. Point Coupee 

Parish School Bd., 5 Cir. 1974, 505 F.2d 632; Hereford 

v. Huntsville Bd. of Educ., 5 Cir. 1974, 504 F.2d 857; 

Adams v. Rankin, 5 Cir. 1973, 405 F.2d 324.

as a factor requiring the moderation of desegregation otherwise 

to be ordered, the district court was in error.

30 -



The opinion below door, not sufficiently explicate the rc-

(other than stability) that 
ing factors/the district court appraised and the reasoning itmarnrng

followed in determining that no further elementary school desegre­

gation was feasible beyond that suggested by the School Board.

The district court simply specified the total’s of children to be
be newly bused

reassigned and the number of students to/under the plaintiffs' 

and plaintiffs-intervenors1 plans; observed without any specific

findings that busing would involve a substantial increase in the 

time and distance that students would have to travel to school; an<

J
then concluded that the plaintiffs1 but not the plaintiffs 

interveners’ —  plan "would be disruptive to the educational pro 

cesses and would place an excessive and unnecessarily heavy admin­

istrative burden on the school system." These findings are an 

inadequate foundation on which to rest either a determination of 

the unworkability of the proposed plans or a conclusion that no 

improvement of the Board's solution could be obtained. Nor does_ 

the face of the record reveal any inherent obstacle to the progres 

of all further desegregation in Montgomery through the instrument 

of zoning, pairing, and busing. Each of these tools has been

31 -



approved in Swann, 402 U.5. at 27-29, 28 I,.Ed.2d at 573-74, 91 s.

Ct. a t _____and Cisneros v. Corpus Christi, Indep. School Dist.,

5 Cir. (en banc) 1972, 467 F.2 , 342, 152-53,cert, denied, 1973, 

413 U.S. 922, 37 L.Ed.2d 1044, 93 S. Ct. 3052, and repeatedly 

utilized in this circuit.

24/
We have, where necessary, required both rezoning and pair-

25/
ing or clustering; eind while pairing may not be the remedy of

H 7  _
See_, e.g., Conley v. Lake Charles School Bd., 5 Cir. .1970, 

434 F.2d 35, 39-41; Valley v. Rapides Parish School Bd., 5 Cir. 

1970, 434 F.2d 144, 147; Pate v. Dade County School Bd., 5 Cir. 

3.970, 434 F ..2d 1151, 1158, cert, denied, 1971, 402 U.S. 953, 29 

b. 33d. 2d 123, 91 S. Ct. 1614; Bradley v. Board of Public Instruc. 

of Pinellas County, 5 Cir. 1970, 431 F.2d. 1377, 1301-03, cert.

denied, 1971, 402.U.S. 943, 29 L. 13d. 2d 111, 91 S. Ct. 1600.
/ •

•See also Wright v. Board of Public Instruc. of Alac3vua County,

5 Cir. 1970, 431 F.2d 1200;

See, e.g., Weaver v. Board of Public Instruc. of Brevard 

County, 5 Cir. 1972, 467 F.2d 473, cert, denied, 1973, 410 U.S. 

902, 36 L.Ed.2d 177, 93 S. Ct. 1498; Flax v. Potts, 5 Cir. 1972, 

464 P .2d 065, 068-69, cert, denied, 1972, 409 U.S. 1007, 34 L. Ed 

2d 299, S3 S. Ct. 433; Ross v. Eckels, 5 Cir. 1970, 434 F.2d 1140 

1140, cert, denied, 1971, 402 U.S. 953, 29 I,.Ed.2d 123, 91 S. Ct. 

1614; Henry v. Clarksdale Mun. Sep. School Dist., 5 Cir. 1970,

433 F.2d 307, 394-95; Allen v. Board of Public Instruc. of Browari 

County, 5 Cir. 1970, 432 F.2d 362, 367-71 (citing additional case: 

cert, denied, 1971, 402 U.S. 952, 29 L.Ed.2d 123, 91 S. Ct. 1009, 

1612. See also Miller v. Board of Educ. of Gadsden, 5 Cir. 1973,



i

fn continued

-102 P.2d 1234; Boykins v. Fairfield Bd. of Educ., 5 Cir. 1972,

457 F.2d 1091, 1095; Andrews v. City of Monroe, 5 Cir. 1970, 425

F .2 d 1017, 1021.
____

first resort, we have said and repeated that "where all black 

or virtually all-black schools remain, under a zoning plan, but it :

prficticablc to desegregate some or all of the black schools by

' 2 7/
using the tool of pairing, the tool must be used." The record,

insofar as it reveals the administrative practicalities associated
4

with rezoning and pairing or clustering, does not appear to pre­

clude the imposition of all measures beyond those desired by the 

School Board. The record fails to indicate in any way how 

Montgomery's situation differs from the conditions existing in 

any of the many other school districts in which we have specified

that these measures be employed. Indeed, examination of the

r

record suggests the feasibility of their utilization in several 

28/
instances. Accordingly, I would hold that the district court 

erred in approving the School Board plan, and remand the cause for 

- implementation of a constitutionally sufficient plan.

33



?JL/
Allen v. Board of Public Inntruc. of Broward County, 5 Cir. 

1970, 4 32 F. 2d 3G2, 367, cert, denied, 1971, 402 U.S. 952,29 L.Ed. 

2d 123, 91 S. Ct. 1609, 1, quoted in Flax v. Potts, 5 Cir. 1972 

464 F.2d 865, 868, cert, denied, 1972, 409 U.S. 1007, 34 L.Ed. 2d

299, 93 S. Ct. 433, and Boykins v. Fairfield Board of Educ., 5

Cir. 1972, 457 F. 2d 1091, 1095.
27 /

See Cjsneros v. Corpus Christ! Indep. School Dist. 5 Cir

(en banc) 1972, 467 F.2d 142, 153; cert, denied, 1973, 413 U.S.

922, 37 L.Ed.2d 1044, 93 S. Ct. 305; Conley v . Lake Charles School! 

Bd., 5 Cir. 1970, 434 F .2d 35, 39. .

28 /
In regard to the initial administrative difficulties 

associated with re-zoning and pairing, we emphasize "[t]he fact
, f

that a temporary, albeit difficult, burden may be placed on the 

School Board in the initial administration of the plan . . . does

not justify in these circumstances the continuation of a less than 

unitary school system and the resulting denial of an equa] educa­

tional opportunity to a certain percentage of the [County] 

children." Dandridge v. Jefferson Parish School Bd., E.D. La. 

1971, 332 F. Supp. 590, 592,stay denied, 1971 404 U.S. 1219, 30

L. Ed. 2d 23, 24, 92 S. Ct. 18, _____ (Marshall, J., in chambers;

quoting cited language with approval), aff1d,5 Cir. 19 72, 4j6 

F.2d 552, cert, denied, 1972, 409 U.S. 978, 34 L.Ed.2d 240, 93

S. Ct. 1306.



TIig district court entered no specific findings rega3-ding

_29/
the extent in time or miles of additional busing required to im­

plement any of the desegregation plans before it, nor did it e>:

pre 5S nny conclusions as to whether "the time or distance of travel

[under any possible plan was] so great as to either risk the 

health of the children or significantly impinge on the educational

proces

at

" Swann, 402 U.S. at 30-31, 28 L.F,d.2d at 575, 91 S . Ct.

C e r t ainly it is clear that the School Board plan

See Cisneros v. Corpus Christi Indep. School Dist.,

5 rir ] 972 /5 f. 7 F.2d 142, 153, cert, denied, • 1973, 413 U.S.
922, r ' 2d 1 044. 93 A. Ct! 3052.------- ----------------

employs less than the maximum busing possible, since it anticipate. 
, /7  . ' •

a significant reduction in elementary school student busing in

the year of implementation. Accordingly, I would direct that xn

analyzing remedies for desegregation of the Montgomery schools on

renamd, the district court should consider the implementation of

additional busing as necessary to accomplish new zoning, pairing, 

30/
or clustering.

30/

—  of
Significantly, the extent —  in terms of the number of 

pupils involved,and apparently the length of the trips 
additional elementary student busing envisioned in conncctior 
with the plaintiffs-intervenors' plan very closely parallel^

- 34(a)-



I

fn continued

increase in elementary school busing under the desegrega- 

•tion plan implemented in Swann, as reflected in the opinions 

in the Supreme Court, 4 02 U.S. at 29-31; 20 I..Ed.2d at 574-

7.5; 91 S.Ct. a t ____, and the Fourth Circuit, 1970, 431 F.2d

130, 144-47. ' ' '

To summarize, I would hold that the district court erred 

in adopting the School Board plan, because that plan falls short 

of the constitutional mark, and because there is no indication of 

the unworkabil'ity of a Constitutional remedy. I do not believe 

the district court's result can be upheld on any of the arguments 

advanced, whether independently or cumulatively considered. If

there be no other way to desegregate, the 

tools of pairing and clustering must be used to relieve the bar-
J, /7 ■

ricaded tmd beleaguered blacks from their school garrisons. These 

mixing mechanisms have received judiciiil blessing, and they must- 

be employed unless manifestly unusable for constitutional rea­

sons. Other innovations may be considered. Nothing to achieve 

the constitutional mandate to desegregate can be avoided because 

of whimsy, white flight and fright, inconvenience, annoy­

ance or any other actual or conjured excuse. Desegregation of 

education is a constitutional necessity and not an optional luxury 

and bland generalities will not suffice to justify segregated 

schools.
- 35 -



1 would be unwilling to require the immediate implementa­

tion of any of the alternative elementary school plans presented, 

however, in light of the district court's determination that the 

plans of the plaintiffs and plaintiffs-intervenors were generated 

to achieve racial ratios beyond and in contravention of the man­

date of Swann, in light of the state of the record, and in light 

•of the opportunity remaining for the district court to refine and

31/
meld the various plans before it. Rather I would remand the

case to the district court for further proceedings to develop a

proper plan. Wo have in 
, /

H 7  ~~ rCf. Adams v. Rankin County Bd. of Educ., 5 Cir. 1973, 485 

F.2d 324, 326; Andrews v. City of Monroe, 5 Cir. 1970, 425 

F. 2 d 1017, 102 3.

aaj36



the pact required specific and detailed finings to accompany 

the district court's selection of a desegregation remedy that 

promises to he less effective than alternative plans for estab- 

lishing a unitary school system. This requirement is

meant to secure to the reviewing court the full ad­

vantages of the factual appraisals and perspective of the particu­

larly well-situated trial court, in order to

maximize the benefits of the district court's informed discretion.

iFy
See, e.g. , 7\dams v. Rankin County Bd. of Educ., 5 Cir. 1973

405 E.2d 324, 326; Boykins v. Fairfield Bd. of Educ. , 5 Cir.

1972, 457 F. 2d 1031, 3.097; .Andrews v.' City of Monroe, 5 Cir. 1970,

425’ F.2d 1017, 1021; cf. also, Winston-Salem/Forsyth County Bd.
/

of Educ.;'1971, 404 U.S. 1221, 1226-27, 31 1,. Ed. 2d 441, 446, 92 

S. Ct. 1236, ____ (Burger, C.J., in chambers).

Cf. Brown v. Board of Educ. of Topeka, 1955, 349 U.S. 294, 299-300,

99 L.Ed.2d 1003, 1105-06, 75 S.Ct. 753,____(Brown XI) . Thus I

would direct tliat, if the district court should approve on remand 

a plan less than fully effective in establisliing a unitary school 

system in Montgomery County, it must support its conclusion

with precise and detailed



'-O

findings of fact, keeping in mind Swann';; heavy burden upon

school officials to legitimate any less than thorough desegrega-
33/

tion plan on grounds of unworkability:

All things being equal, with no history of dis­

crimination, it might well be desirable to as ign 

pupils to schools nearest their homes. But all 

things are not equal in a system that has been 

deliberately constructed and maintained to enforce 

racial segregation. The remedy for such segregation 

may be administratively awkward, inconvenient, emd 

even bizarre in seme situations and may impose burdens 

on some; but all awkwardness and inconvenience cannot 

be avoided in the interim period when remedical adjust­

ments are being made to eliminate the dual school

systems.
/

402 U.S,'. at 28, 28 L. Ed. 2d at 573, 91 S. Ct. at _______. Many

practicalities affect the judgment and aims of school authorities 

in pursuing their daily occupation of maintaining a pragmatic 

educational system. But when the constitutionally mandated 

establishment of a unitary school system rests in the balance, 

workaday practicalities are no longer determinative factors.

33/ Sec aĵ so
/ Green v. School Bd. of New Kent County, 1960, 391 U.S. 430 

439, 20 L. Ed. 2d 716, 724, 88 S. Ct. 1609, _____ .



1<hc conservation of such daily efficiencies may have been a con­

sidered objective in the days of Plessy v. Ferguson, 1096, 163

j.S. 337, 41 L.Ed.256, 5. Ct. , but Brown v. Board of
(Brown 1) ,

Kduc. of Topeha, 1934, 347 U.S. 4B3, 90 L. Ed.073, 74 S. Ct.606 /
post-adoleseen t

has tahen us down a new road. Brown and its/progeny have imposed

upon school authorities and courts an 

such

affirmative duty to see that

/stumbling blochs in the path of desegregation are relegated to a
34 ,

footnote in history. As we observed in a prior Montgomery case,

‘"Ibis obligation is unremitting, and there can be no abdication,

no matter how temporary." A school board's plan may have any num-

ber of advantages when 'appraised in ordinary perspective, but

these give way where- they impede the progress of desegregation;
, / /

convenience as well as cu:;tom must bend to constitutional pro­

scription.

Given my resolution of this aspect of the attach on the.
would

School Board’s plan for the elementary grades, I /find it un­

necessary to consider at this time whether that plan imposes a

discriminatorily harsh burden on the black students.

34,
Carr v. Montgomery County Bd. of Educ., 5 Cir. 1970, 4.-9

F.2d 302, 306.



*

Junior High School Plan

The junior high school student assignment plan in effect

in the Spring of 1974 left over half of the black students in

7 junior high schools which were over- 85% black. The School

Board plan, as implemented by the district court, proposed to

reduce this concentration through rezoning, peripheral reassign-

ments, and the elimination of three black schools; the district

court projected that McIntyre Junior High, enrolling 792

• of the County's black junior high students (18%) would remain the

only junior high facility more than 80% black under the School 
/, /

’ / '
Board plan.

III

The district court's opinion, following the style 

of the School Board plan, treats the some 252 

(233 black, 19 white) junior high school students in 

attendance at the Montgomery County High facility as 

senior high school students. The apparent premise 

to this treatment is that "[i]t is conceded by all. 

parties that Montgomery County High School . - - cannot be

effectively desegregated because of its isolation." 377 F. 

Supp. at 1138, n. 37. This conclusion is not con­

tested here, although the plaintiffs-intervenors' 

plan did propose to reduce the junior high class at 

Montgomery County High from 92% to 82% black. My

-40 -



figures follow the style of the district court.

Both the plaintiffs and plaintiffs-intervenors submitted

alternative plans for desegregation at the junior high level. The

School '
plaintiffs proposed to modify the basic/Board plan through addi­

tional busing to achieve a closer racial balance at McIntyre and

two other junior, high schools left substantially black under the

Board plan, Bellingrath and Baldwin. The plaintiffs-intervenors 

projected a 65% black student body at McIntyre, and a less than

60% black enrollment cit each of 8 other junior high schools with-

strip zones, with transportation to be provided within each zone 

where necessary. In adopting the School Board plan for the 

junior high schools, the district court dismissed these alterna­

tive proposals as too inflexibly wedded to abstract racial bal­

ancing, and suggested that they were unfeasible. Emphasizing 

the isolation of McIntyre as the only virtually all-black junior 

high remaining under the School Board plan, the district court 

held that "under the circumstances that exist in the Montgc

7/

in the City, under a plan of new elongated but continuous



school system" no further requirement of desegregation could be
36/

imposed upon the County. 377 F.Supp. at 1139.

21/ The district court found that the plaintiffs'

. proposed plan would require reassignment of

36% of the junior high student body, find additional 

transportation of about 17%; the plaintiffs- 

intervenors1 plan was forecast to require re­

assignment of 50-60% and additional busing of 

some 20%. (The plaintiffs-intervenors assert 

that the opinion below is clearly erroneous in

its computation of busing required under their
would

junior high plan; I / not pass on the issue
J

at this time.) The district court did not enter 

any findings regarding the proportion of students 

reassigned, projected to be reassigned, pv newly 

transported under the School Board plan. Nor 

does the opinion below reveal any specific con­

clusions regarding the significance of the bur­

dens in reassigning or transporting additional 

students, except that the McIntyre facility "is 

impossible to effectively desegregate in a 

stable and workable manner." 377 F. Supp. at 1132.

Unfortunately, the chita revealing the actual desegregation 

at the junior high schools accomplished under the School Board 

plan, as of September 15, 197-1, show that "the circumstances" hav<



changed
J L J

False to predictions, the student body at McIntyre

37 /
See Appendix B. The actual enrollment figures as 

of September 15, 1974, are taken from the School 

Board's October 1, 1974, report to the District 

Court, per that court's order. These figures are 

not challenged by any other parties. See Davis v. 

Board of School Cornin' r's of Mobile County, 1971, 

402 U.S. 33, 37, 20 L.Ed.2d 577, 500, 91 S.Ct.

1289, _____. This data is utilized in Appendices

A, B, and C.

Junior High is 98% black, Baldwin is 85% black, and Bellingrath 

38_/ •
is, as 1 compute it, 81% black. Thus, more than a quarter of

39 /
the black junior high school students in the City are locked in 

schools 85% or more black, and nearly 40% in schools 80% or more

black.

30 /
The actual enrollment figures for Bellingrath, 

as of September 15, 1974, are estimations. Accord­

ing to the district court's opinion, projected at­

tendance at the Bellingrath facility was to be 215 

(115 black, 100 white) at the elementary' level find 

1049 (G59 black, 390 white) at the junior high 

level. Actual enrollment as of September 15, 1974, 

listed by the School Board is a combined total of 

911 (681 black, 230 white) students; no break-down

is given as to grade levels.



fn. continued
'Jllie total actual attendance at Bellingrath

j ej considerably lower tlian the total projected at­

tendance. The net over-projection is 93 black 

students (12% of projection),.and 260 white students 

(93% of projection). In estimating actual attendance,

I have, conservatively, attributed the total de­

crease to the junior high level, where the enroll­

ment was projected to be 62% black, and for which

the zone was to be significantly shifted for
" distric!

1974-75. I would, of course, direct that on remand the / 

court proceed to determine the actual enrollment 

figures with certainty.

I V  . . .These percentages do not include tire junior high 

students at the Montgomery County Senior High 

facility. See note 35 infra.

would
y / not pass now on the academic question of the ac­

ceptability of the School 'Board plan as proposed and implemented 

by the district court. It is now clear that the School Board 

plan has been unsuccessful, as implemented, in accomplishing de­

segregation at the junior high level, and there is no indica­

tion on the record that the present circumstances are beyond 

previous
remedy. As the/discussion of the elementary school plan should

make clear, the "School Board plan for the junior high schools



cannot stand as it appears, unless improvement is unworkable. 

4 0 /
Cf./e.q., Boyd v. Point Coupee Parish School,

5 Cir. 1974, SOS F.2d 632; Hereford v. Huntsville ,

Bd. of Educ., 5 Cir. 1974, S04 F.2d B57; Adams 

v. Rankin County Bd. of Educ., 5 Cir. 1973,

4 85 5'.2d 32 4, 32 5-2 6.

The record does not suggest what remedial plan might

be employed at this stage. I would leave that difficulty for resol

tion by the district court, following whatever further proceed- 

might find to be would
ings it / necessary. 1/ emphasize again, however, that the 

district court's order should be accompanied with supporting find­

ings and conclusions of sufficient precision and detail to fully

u

/
apprise a reviewing court of its reasons and understanding.

IV

Conclusion

We deal here with a school system whose roots were segre­

gated by law. There is no indication that those roots have 

withered away, and that the racial separation in the present 

system is anything but the fruit of a tainted crop. The School 

Board still plans to cultivate its gardens separately; and it doe 

not promise ever to integrate in any future season. Rather, its



I!

plan guarantees perennial one-race educational experiences for 

over a third of the biack students within its elementary and 

junior high schools. Desegregation is not impossible in Mont­

gomery'. It might be uncomfortable, expensive, disturbing, or even 

disconcerting. But these words are not amendments to the Four­

teenth Amendment's commands. Much progress has been made in 

Montgomery school desegregation, but medals earned for past per­

formance cannot justify contemporary failure. I am confident that 

our respected, scholarly, cind courageous trial judge did not 

hesitate to apply the law correctly as he saw it to the facts.be­

fore him in Montgomery. I firmly believe, however, that that view 

of the law in erroneous and in conflict with previous decisions 

of this Court and the Supreme Court.of the United States.

as it adopts and implements the School Board plans foi elementary 

and junior high schools in Montgomery County, and remand the 

cause for such further proceedings as would be necessary to 

bring Montgomery County to a unitary system. In order to permit

/

I would reverse the order of the district court insofar

I



the district court to reconsider its award of costs against the 

plaintiffs and plaintiffs-intervcnors in light of further pro­

ceedings, I would vacate the judgment awarding costs in favor of

the School Board.



Adoption or ur.e >1 Board nlan crodu :r.a rout

Projected Enrol

cchcol Normal Caoaciuv Black White

Bear 630 186 505

Bellinger Hill 300 186 A ̂

Eellingrath '1,2 30 ■ 115 1 0 0

B.T.Washington 420 255 4

Capitol Hgts. 57G 119 192

Carver 780 421 2

Catorr.a 240 6 3 t r /i.i.

Chisolm 810 326 555

Crump 990 263 703

Daisy Lawrence 720 445 7

Dalraida 630  ̂ , 153 423

Eannelly 780 226 484

Davis 630 615 91

Durbar 660 240 51

Fews 720 640 *3

?lowers 780 169 573

r.v'incr profiles of the are ;rv schood1 student bodies;j

Black

Actual Enrollment 9/15/74 

Black vrnita % Black

27% 185 407 31%

81% 2 1 1 . 35 ■ 8 6%
c / c_y

53% 115 1 0 0 53%

98% 232 5 98%

38% 1 1 2 178 ■ 39%

95% 411 5 99%

29% Crr 153 26%

37% 375 505 43%

27% 246 745 2 5%

98% 408 8 93%

26% 143 421 2 5%

32% 254 512 3 3%

87% 637 45 93%

87% 323 34 91%

99% 641 3 H O O ON

OBV 170 533 24%

Z
9
a
.



School Kerr,al Cacacitv Slack White

Floyd 1,350 148 319

Forest Ave. . 480 172 262

Harrison 750 134 427

Hayneville Rd. 1 , 2 0 0 669 30

Head 6 S0 143 415

Highland Ave. 390 115 272

Highland Gardens 1 , 0 2 0 335 551

Johnson 660 175 . 550

Loveless 1,140 902 5

MacMillan 390 205 ' 109

Morningview 600 134 486

Paterson 810 5 66 34
Peterson 600 175 299

Pintlala 270 204 15

Southlawn 600 223 £32

Eastern By-Pass __ 149 539

Vaughan Rd. 750 i e s 409

9,224 9,160

lmcr.t Actual Enrollment 9/15/7^

%  Black Black Whi
1 /

% Black

. 32% 135 275 33%

4C% 160 283 36%

30%

95%

255

705

357'

21

42%

97%

26% 1 1 1 339 2 5%

30% 118 237 ■ 33%

38% 310 513 38%

24% 163 527 24%

99% 876 6 99%

65% 195 75 72%

2 2% 1 1 0 427 2 0%

94% 550 36 94%
.37% 149 322 32%

''93% 1S6 4 98%

31%

2 0%

260
a /

149
427

e_/
589

33%
O Oe/4 0/0

32% 199 549 27%

50% 9,164 8,676 51%



'.L.lMJ \_13

Adoption of rhe School Board plan ureduces the foilowincr prof:

Proi eotad EnrolInant

School Normal Caoacitv Black White % Black

Baldwin 73 0 290 107 7 3%
j±y

Eellingrath 1,230 659 390 62%

Capt. Hgts. ■ 1 , 2 0 0 442 730 38%

Carver 660 350 545 .. 39%

Cloverdale 1,170 437 375 3 3%
.0 /

Floyd 1,350 283 541 35%

G. Washington 1 ,2 S0 357 732 31%

Goo cwyn 1,500 540 1,031 *3 do/ --x/O

Houston Hill 57 0 2 1 0 ■ 333 35%

McIntyre 1,500 792 14 98%

Montgomery Cty Hich

Total 4,365 5,393 A Co/ 
- x  ~s/i>

es of junior high school student bod:

Actual Enrollment 9/15/74

Black vrnite % Bla<

275 43 85%
c / c /

566 . 130 81%

345 742 32%

354 533 40°%

476 391 35%

264 <L/
467 36%

409 904 31%

564 917 38%

243 307 45%

831 15 9S%

4,382 4,959 47%

V «



appendix c

Carver Sr. 1 , 1 0 0 439 660 39% 610 673 48%

Jeff. Davis Sr. 2 , 1 0 0 8 S8 1,425 38% 857 1,449 37%

Lanier Sr. 2,250 817 1,053 4 3% 677 801 46%

Leo Sr. 2,300 929 1,550 • 37% . 815 1,650 33%

Montgomery Ctv High 570 299 63 8 6% 390 57 ' 87%

Total 2,452 4,777 42% . 3,349 4,630' 42%

Footnotes to Aotsendices

See note 27.

<L/

These figures represent normal capacity for combined elementary and junior high grades. 

Estimated figures. For their computation see note 38.

.cccrding to the district court's opinion projectedJ_i .L.tlCl L ;er.dar.ce at the Fioyc

facility was to he 467 (148 black, 319 white) at the elementary level, and 829 (283 black, 541 white) at the 

junior high level. Actual enrollment listed by the School Board is a combined total of 1141 (399 black, 742



Footnotes r. t i n t e d

white) students; no break-down is given as to grade levels, 

enrollment we have simply reduced the projected enrollments 

according to projected and actual enrollments, by race. On

For sake of simplicity, in estimati 

of students at both levels proporti 

remand the district court must, of c

proc

f_y

determine'the actual enrollment figures with certainty. 

Projected figures. Ko actual figures given.

See note 37.

ng actual

cnally,

ourse.



IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE
DISTRICT Or WAD AM A, NORTHERN DIVISION 
v

ARLAM CARR,' JR El AT,.,
Plaintiffs,

NATIONAL EDUCATION ASSOCIATION, 
INC.; PENELOPE ANNE JENKINS;
ET AL. ,

)
)
)
)
)
)
)
)

p]aintiff-Intcrvenors, )
)

UNITED STATES OF AMERICA, )
Amicus Curiae, )

)
’

MONTGOMERY COUNTY HOARD OF )
EDUCATION; ITAL., 1

Defendants. )

F I L E  L

WAY 2 ̂ 1374
DANE P. GORDON, CLERK

DEPUTY CLERK

CIVIL ACTION NO. 2072-N

OPINION

This school desegregation' case, having heen previously before this 
Court and the appellate courts upon several occasions, is again submitted. The 
present submission is upon the pleadings, the evidence presented orally over a 
period of several days, and the briefs and arguments of the parties. Upon this 
submission this Court non makes appropriate findings of fact and conclusions of 
law. As authorized by Rule 52, Federal Rules of Civil Procedure, these findings 

and conclusions are incorporated in this memorandum opinion.
I „ HISTORY OF CASE

This case was originally filed in May, 1954, when a group of black 
children and their parents, with the United States participating as amicus curiae, 

asked this Court to enjoin the. Montgomery County Board of Education from 
"continuing the policy, practice, custom, and usage of maintaining and operating 
a compulsory biracial school system."17 Although ten years had passed since the 
Supreme Court's decision in Brown v. Board of Education," the schools of 
Montgomery County, as was true in many areas of the United States, were completely

1/ Carr v. Montgomery County Board of Education, 232 F. Supp. 
1964). ~

705 (M.D. Ala.

2/ 347 U.S. 4H3 (1954)



4
Ii

segregated; one set of schools was operated exclusively for white students and
istaffed entirely by white teachers, and one set was operated for black students

and staffed by black teachers. Thus, on July 31, 1964, this Court declared that
the Montgomery schools were being operated in violation of the law of the United
States nnd enjoined defendants from continuing to operate these schools on a

3 /racially segregated basis. But this Court fully "realized that desegregation
of the public schools cut across the social fabric of this community and that 
there were both administrative and other practical problems for the board to

Ucope with in order to comply with the law." Consequently, the board was allowed
to proceed with desegregation in' a gradual manner. A frcedci.i-of-choice plan
proposed by the board an the means for integrating four grades was accepted.

Almost two years later,’ on March 22, 1966, this Court ordered that
the freedon-of-choice plan be implemented in 10 of the 12 grades for tne 1966-67
school year and that the plan be fully operative throughout the system commencing 

5/
with the fall of 1967. In addition, this Court decreed that:

Race or color will henceforth not be a 
factor in hiring, assignment, reassignment,
•promotion, demotion, or dismissal of teachers 

. and other professional staff, with the
exception that assignments shall be made in 
order to eliminate the effects of past discrimi­
nation.—'

3/ At the time this Court entered its order in July, 1964, there were approximately 
25,000 white students and 15,000 black students attending the Montgomery County 
school system.
4/ 289 F. Supp. at 657. .
5/ Carr v. Montgomery County Board of Education, 253 F. Supp. 306 (M.D., Ala.
1S66)7~
6/ Id. at 310. This decree originally required the process of desegregating the 
faculty and professional staffs to commence with the school year 1956-67. But 
when the Fifth Circuit subsequently allowed the Mobile. County system until the 
school year 1967-68 to end its policy of hiring and assigning teachers and staff 
by race, this Court, on its own motion, modified the March 22 order to give the 
Montgomery hoard an additional year before requiring desegregation of the system's 
faculty and staff. Again, this Court was cognizant of the administrative problems 
and practical ramifications of its order, and thus sought to give the board some 
additional time in which to meet its constitutional obligation to desegregate 
Montgomery's dual school system.



tT, W», M  »***» ’• th° SMt“
Cwirt to ,=,.,iro aotondor.to to toko fottkov otoot to dloo.tablish tho ..ool 

school syoto. in i M r i j l  Coooty. »Poo toviov »£ .»« tcootd, Mi. Coott 
found that tho M M  hoard hod foiled to dlsohotg. If offUoo.otivo duty to 
clinlnate i:h, du.il school syato J J  ilodot the W « M M .  pl.u, only 550 
Mocks „rc M M .  ttndltionnlly uhlto schools. »= o.hlto children veto 
attending trnditiou.U, hl.ick schools. Of the ogpt.kinntoly 550 block toothers 
and g,5 thito toothers, only 52 ,or« teaching in schools that .era predocin.ntly 

of the opposite race.
On tike basis of this evidence, it was found necessary to establish 

specific requirements governing mining amounts of progress in future desegregation 

efforts. First, this Court ordered that the hoard must move toward a goal 
under which the ratio of white to'black faculty members in each school was

substantially the same as it was throughout the system.
Second, the school hoard was required to obtain approval from the State

Superintendent of Education prior to the construction of any new school or any

additions to existing schools.
Third, the board was ordered to eliminate race as a factor in the 

assignment of students to school buses and in its designation of bus routes. 
Finally, this Court observed that the board's frecdom-of-choice plan was not 
working and that unless the plan became more effective in eliminating tho dual 
school system, the Court would have no alternative except to order some other 

8 /plan.
For the first time in this case, defendants appealed this Court’s

7/ Carr v. tlnntcomerv bount^o a r i n Q d u c ^ ,  289 F. Supp. 647 (M.D. Ala. 
1968) .'

affirmative duty to establish a unitary school system.

( S )-3-



order n Oil appeal, the Fifth Circuit affirmed the March 2, 19G8, order.
10/

1 1 /
A petition for rehearing cn banc was denied by the Fifth Circuit. Finally,

Wthe Supreme Court granted certiorari and also affirmed this Court's order.
Xr, the summer of 1969, plaintiffs and the United States again filed 

motions asking this Court to require the hoard to take additional steps to

disestablish Montgomery's dual school system.
An evidentiary hearing was held on February 24, 1970, to consider plans

submitted by the United States and the board. The board's plan essentially
adopted the basic elements of the plan proposed by the government experts with

13/
some minor changes and refinements.' Under the board's projections for the 
1970-71 school year, this plan provided that there would be no all-white
schools in the county and only one all-black school. Over plaintiffs'objections 
that this plan did not go far enough in eliminating the dual school system, this

9/ This fact is significant in that it underscores the efforts of the Montgomery 
board to comply with the law as reflected by the mandates of this Court. Unlike 
many school boards that opposed desegregation at every step, the Montgomery County 
Board of Education recognized that it had an affirmative duty to desegregate ics 
school system. As the Fifth Circuit noted on appeal, "good faith conduct on the 
part of any litigant in any court, especially in a court of equity and, more 
particularly, in the sensitive- area of desegregation, is a vital element for 
appropriate consideration." 400 F.2d 1, 2 (3th Cir. 1963),

Although the board contended that this Court's order was unprecedented in its 
imposition of "ratio" requirements, this Court was firmly convinced that its 
order was "the minimum the applicable law will allow under the peculiar tact* am 
circumstances presented and that each and every feature of the order arid injunction 
entered in this case on February 24, 1968, is not only authorized but required 
by the applicable law." 289 F. Supp. at 660 (emphasis added).
]_q/ 400 F .2d 1, 8 (5th Cir. 1968).
1J/ 402 F.2d 782 (5th Cir. 1963).
j')/ United States v, Montgomery Countv Board of Education, 39w U.S. 22j (1969). 
fhe Suprcme_ctur:E concluded its opinion by noting that "it is good to be able to 
decide, a case with the feelings we have about this one. The differences between 
the parties are exceedingly narrow." Id;, at 236.
13/ This plan included proposals to close certain schools in the system, to pair 
several rural schools, to adopt neighborhood zoning of the schools within the 
city of Montgomery, and to transport students from nonzoned rural areas to 
schools within the city.

-4-



<

Hi/Court approved tin, board's ulna with some edifications of Its own. On appeal,^ 
the Fifth Circuit affirmed this Court's decision to implement the board's plan —

The Fifth Circuit added the following cautionary -note:
Once a school board has acted, however, 

the courts have a solemn obligation to de­
termine whether the structure designed by the 
school hoard will house a unitary school 
system. This obligation is unremitting, and 
there can be no abdication, no matter how 
temporary.- Accordingly, any imprimatur of 
judicial approval must be entered with the 
caveat that until construction of a unitary 
system is completed, change orders, when 
appropriate, will be issued to ensure that 
tiie designed structure in fact accommodates^ 
a unitary system and not a bifurcated one. ~

Since this Court’s order of February 25, 1070, the board's plan has 
remained largely unaltered. The board has worked with plaintiffs and the United 
States in an effort to keep its plan updated, and changes in attendance tones 
and school facilities have been proposed and approved by this Court. But changes 
in the facts of this case -  largely changes in residential patterns -  and 
recent clarifications by the Fifth Circuit and the Supreme Court of the obligation 
of a school board to establish a unitary school system now necessitate an overall 
evaluation of- this system.'s compliance with the requirements of the law. Accord­
ingly, on August 29, 1973, all parties were ordered to submit their suggestions 
and proposals for the further desegregation of the Montgomery system.

It is important at this point to emphasize two factors tnat have 
characterized this continuing litigation. First, this Court has often recognized 
the practical problems and administrative difficulties in eliminating s *»1 school 
system that had been closely tied to long-established social patterns. A

14/ In its order, 
ba3.ance or similar 
disestab1isheenL of 
race is required."

this Court made clear that the law does not require racial 
student ratios throughout a school system. "Complete 
the dual school system to the extent that it is based upon

15/  429 F.2d 382 (5th Cir. 1970). In addition, the Circuit Court directed that 
’the majority-to-minority transfer provisions of the plan be altereo to re-lcct a 
change in the law since this Court's order of February 25, 1̂ 70.

3j>/ 429 F.2d at 336.
12/ See, e.g., 289 1-. Supp. at 657. See also note 6, .supra

-5-



successful school system demands support from the community -  both black and 
wMtc. To facilitate this support, this-Court has attempted to avoid posing 
rl3id or inflexible requirements on the board and, where possible, has allowed 
the parties to work out their own differences. In this way, this Court has 
constantly strived for a workable solution to the problems encountered in 
converting from a dual system to a "unitary system in which racial discrimina­

tion would be eliminated root and branch.”
Second, all the parties to this litigation share the same goal:^ 

establishment o£ a "desegregated, unitary and nonracial school system." ~ Every 
court that has reviewed the record of this litigation has observed that the 
differences between the parties have been unusually small.- Moreover, the 
Montgomery County School board has been repeatedly complimented for its good 
faith efforts to comply with the requirements of the law.22 It is -orthy of 
pride that the ten-year history of this case has been characterized throughout

by cooperation from all the participants.
II, AN ^-rvcTq nv TNC PLANS BEFORE THE COURT

A number of desegregation proposals have, been submitted for the Court's 
consideration. In evaluating these proposals, it is impô .. -: to keep in mind 
that the real controversy now presented centers around the operation of the 

elementary schools*
On January 15, 1974, the defendant board submitted its initial proposal, 

and the United States submitted a number of detailed suggestions. On February 14, 
1974, the United States submitted a response to the defendants' first proposal, 
which incorporated additional desegregation suggestions. On February 16, 1976, 
the. plaintiffs submitted their plan. On March 29, 1974, the defendants submitted 
their second plan, which was a revision of their January 15 proposal. On April 1, 
1974, the plaintiff-interveners submitted their proposal. In addition, the

18/ grief for the board before the Supreme Court. See 395 U.S. 225, 236 (1968).
19/ 395 U.S. at 236. See note 12, supra. 400 F.2d at 2; 429 F.2d at 386-87.

?0/ This Court has often complimented the board on the Performance f

r f  - s s s r s *  M r i a r i s .
pressed ^ ^ ^ t h i s  ,
proceedings. Sec 39a b... .» 2. „, . diJtrlct courts and more school hoards

hadrboei £  £ns£l£ ^  hero Involved »  the ^ ^ t c l y
£ ^ r «  Cwroty of » W « | -



United T.tates proposed a high school desegregation plan devised l>y authorities at 
the Maxwell Air Force base in February and March, 1974. By letter of April 5,
1974, to the Court, the United States withdrew this proposal. Finally, on May 8, - 
1974, the school board presented to the Court certain modifications and 
adjustments to its March 79, 1974, plan.

the University of Miami Title IV Desegregation Center. The Foster plan at the 
senior and junior high school levels in general starts with the existing board

bun routes and the reassignment of students to other schools which would require

Foster. Dr, Foster testified that contiguous pairing was used wherever possible 
to minimise transportation. However, because of the degree of residential

used by Dr. Foster to bring each elementary school in each paired or clustered 
group, under his plan, within one-tenth of one percent of the exact racial 
percentage in each of the schools paired or clustered witn tv?o exceptions. liie 
exact racial balance varies by two-tentns of one percent in these exceptions.
The schools paired or clustered range in grade structures one-two, one-three, one-four 
three-six, four-six, five-six, and 11 elementary schools under the plaintiffs' plan 
are grades one-six. The evidence reflects that the pairing or clustering of 
schools as proposed by the plaintiffs' plan would require extensive cross-city 
busing from beyond the westernmost part of the city to beyond the easternmost 
part of the city and the same is true from east to west. Elementary children at 
all grade levels, one through six, would be involved in this cross-city busing.
It is evident, and this Court finds, that fracturization of grade structure and 
the pairing and clustering of schools in the Montgomery school system, as 
proposed by the plaintiffs, is for the sole purpose of attaining a strict racial 
balance in each elementary school involved.

A. Plaintiffs' Plan
Plaintiffs' proposed plan was devised by Dr. Gordon Foster, Director of

proposal and seeks to achieve greater desegregation by the rerouting of existing

segregation in Montgomery, this was felt by Dr. Foster to be feasible *iti only 
three instances. The pairing and clustering of elementary schools was the means



(

Forty-three percent of the total number of elementary students enrolled 
the Montgomery school systen would be reassigned under the plaiiitlif j plan.

The plan would also necessitate the reassignment of a large number of elementary 
teachers since the teachers within the system should continue to teach at the 
grade levels where they have attained the greatest competency. This Court is 
impressed that the plaintiffs’ plan would be disruptive to the educational 
processes and would place an excessive and unnecessarily heavy acuninistrutive 

burden on the school system.
The plaintiffs' plan for the junior high school level adopts basically

the defendant hoard's plan with certain significant changes. These changes
consist of new cross-city and cross-county busing. This busing is proposed by
the plaintiffs in order to bring the projected percentages of black students enrolled
in each junior high school within the system within the 15 percent tolerance allowed

?.l /under Dr. Foster's plan,'”  Dr. Foster's proposal would require a reassignment 
of 35 percent of the total junior high school enrollment in the system.

Dr. Foster proposes a plan of desegregation at high school level which 
requires noncontiguous and satellite aoniug to more racially balance each high 
school. To accomplish this, 22 percent of all high school students would be 

reassigned from schools they presently attend.
Following is a summary of newly assigned and additionally transported

students under the plaintiffs’ plan:
Grade bevel Number Reassier.cA Percentage, of Total Enrollment

Reassigned

1 - 6 7,555 43

7 - 9 3,493 35

10 - 12 1,037 22
A total of 12,685 students, or 36 percent of the total enrollment in 

the Montgomery school system, would be reassigned under the plaintiffs' plan.

21/ Dr. Foster uses a 15 percent variation or tolerance to determine the racial 
Tdentifiability of the elementary and junior high schools in the system. That 
is to say, any elementary or junior high school with an enrollment of less than 
33,5 percent black is racially identifiable as white. If the enrollment is more 
than 63,5 percent black the school is racially identifiable, according to Dr. 
Foster, as black. These variations are determined on. the elementary and junior 
high school levels on the basis that 43.5 percent of the total elementary and 
junior high school students enrolled in the system are black and that 45.5 percent 
of the total high school enrollment is black.

-8-



The students requiring additional transportation under the plaintiffs’ 

plan arc .as follows:
Elc.inentnry (1 - 6) 5

Junior High School ( 7 - 9 )  X*6A2
Senior High School ( 10 - 17) 350

K, Pinintiff-Tntorvonnrs’ Plan
The plaint iff-intervenors’ plan was prepared by Or. Larry Winecoff, 

a professor at the University of South Carolina. Dr. Winecoff originally 
submitted two plans, Plan A, with Plan A alternate, and Plan B. Dr. Uinccoff 
abandoned Plan B, and no evidence was offered in support of that pi..a. Dr.
Winecoff set similar guidelines to those used by Dr. Poster in determining 
those schools which he considered to be, racially identifiable in the Montgomery 
school system.227 However, Dr. Winecoff used 10 to 15 percent as his tolerance

in determining racial identiflability.
' At the elementary level the grade structure of every elementary school

within the system is fracturized under the plaintiff-interveners’ Plan A. This 
is done by dividing the existing one through six elementary grades into one

..  ..and four through six centers. Dr. Winecoff also uses the

rezoning technique of strip zones running generally vertically for grades one-three 
and elongated horizontally for grades four-six. He also uses noncontiguous 
satellite zoning in his one-three grades Plan A. The evidence reflects that four 
of the 16 elementary schools within the system, serving grades one-three, would 
still be racially identifiable according to Dr. Winecoffs standards under his

Plan A, one-three.
In Plan A, one-three alternate, Dr. Winecoff uses the same zone lines 

as used in his Plan A, one-three. Judged by his tolerances, 11 of the 16 schools 
serving grades one-three within the system would continue to be racially 
identifiable under Dr. Winecoff’s Plan A, one-three alternate.

Plaintiff-interveners’ Plan A, four-six, uses elongated horizontal 

zones extending from the east side of the city to the west side of the city. This 
type of strip zoning would of necessity require, substantial additional transporta­
tion and would also result in many elementary children having to walk a 
considerable distance farther to school. In some instances they would be required 

to walk past another elementary school serving grades one-three. Under thio

22/ See note 21, supra.

-9



proposal, five of ] 3 schools serving grades four-six would continue to bo
racially identifiable according to I)r. Winecoff's tolerances.

The evidence reflects that from 60 to 70 percent of all elementary -school
students within the. Montgomery system would he reassigned under plaintiff-ihtervenors’
Plan A, one-three or one-three alternate, and Plan A, four-six. Furthermore, new
transportation would be required for approximately 2,&00 elementary grade children
under the plaintiff-intervenors' elementary plans,

Plaintiff-intervenors' junior high school plan lines strip toning of an
elongated shape running obliquely. In some instances the seven-nine school tones
proposed are only four blocks in width. From 50 to 60 percent of all students
enrolled within the system in grades seven through nine would be reassigned under
plaintiff-intervenors' junior high level proposal. Furthermore, approximately
2,000 students would be newly transported.

' \
The plaintiff-intervenors’ senior high plan Uses strip tones; For

instance, the zone for the Jeff Davis school is from two to four blocks in width
in certain areas. This proposal would require the reassignment of from 30 to 40
percent of the total high school enrollment within the system-. The evidence
reflects, and this Court now finds, that the plan proposed by the plaintiff-
interveners for the elementary, junior high, and senior high schools in the
Montgomery school system is designed to achieve a racial balance in these schools.

C. The Dc-bool Board's Plan
The school hoard utilizes transportation route changes, involving both 

black and white students, zone changes, the closing of physically inferior schools, 
the consolidation of schools, and the construction of new schools in its proposed 
plan for the system. Mr. Silas Garrett, Superintendent of Education for the school 
system and an experienced school administrator, testified that the following are 
the criteria that were utilized in formulating the board's plan:

1. To achieve a unitary school system.
2. To provide an organizational structure which will ensure 

optimum educational opportunities ior all children with a minimum of disruption.
3. To adjust the assignment of students to available physical

facilities.

-10-



4. To u tilize  available funds to the greatest educational

advantage.
r>. To achieve the maximum possible community acceptance of the

plan thereby resulting in minimal rcsegregation.
6. To reassign students in a manner which enhances the

instructional program of the system.
V. To provide for maximum teachability through the matching of

assignments with teacher competencies and training,
8, To utilize the existing transportation in a supportive role 

to the instructional and organizational framework of the system.
9. To minimize disruptive transition for students, school 

personnel, and parents and at the same time comply with the mandate of the courts 

in achieving a unitary system. *x
At the present time, the Montgomery school system is operating pursuant 

to a desegregation plan which was prepared by a team of HEW experts and which 
v?as approved by this Court and by the United States Court of Appeals for the 
Fifth Circuit The plan when originally approved assigned both black and

. i c e h o o l  in the- system with the exception of Loveless 

School, which the Court of Appeals found to be a facility located so deep in tnc 
heart of a black residential, area as not to be. practical to desegregate. Since 
the implementation of the 1970 plan, the evidence in this case reflects that the 
school board has attempted in good faith to ensure its effective operation. 
Additionally, since 1970, the school board has furthered the desegregation of the 
Montgomery system by closing the Billingslea elementary facility and consolidating 
that school with the Momingview School. The board proposes extensive plans for 
the transition of the Georgia Washington School, one-nine, now an all-black 
facility, into a substantially desegregated junior high school complex. Further 
substantial desegregation is proposed by the board in assigning white students 
to Carver Senior High and Carver Junior High. The hoard projects 61 percent 
whites in both schools that have heretofore been practically all-black. Many 
other significant and effective assignments arc to be made by the board -- in 
each instance to attempt to achieve a unitary school system. Extra-curricular 
activities have been expanded on a desegregated basis and inter-school participation 

through joint seminars and educational clinics has been developed.

23/ (iarr v• HonU?,on̂ ry County Boi*d oi K«.l\'c -iti.on9 A29 1* *2d .>82 (btH Cit* 1970
,11-



The evidence reflects that the board considered the techniques or 
satellite zoning, clustering and pairing. However, the board concluded that it 
could establish a unitary system through the means and methods enumerated without 
the disruptions of satellite zoning, clustering and pairing as proposed by the 
plaintiffs and plaintiff-inLervenors in order to achieve what the evidence in 
this case reflects would be an extremely unstable desegregated school system.

'Hie evidence presented to the Court further reflects that the population 
of Montgomery is so arranged that whites largely live on the east side of the 
city and blacks on the west. This necessarily means that pairings and clusterings 
would, in the main, be noncontiguous and would require cross-city busing. This, 
of course, would substantially increase the time and distance that students would 
have to travel to and from the schools to which they would be. assigned under such 
plan.

Under the board’s plan, there will remain a few schools with a substantially
predominantly black student population. All of these are at the elementary

24/level with the exception of McIntyre Junior High.
An in-depth analysis of the school board's plan impresses this Court

that the continued existence of some substantially predominantly black schools
is genuinely non.discrininatory. These schools, Daisy Lawrence, Booker T.
Washington Elementary, Carver Elementary, Fews, Loveless, Hayneville Road Elementary,
Paterson, Pintlala, Davis and Bellinger Hill, are in each instance located deep
in black residential areas; the white students residing in those areas are
assigned to the nearest of these schools. While this has to some extent
desegregated practically all of these schools, no ratio has been accomplished
that satisfies the plaintiffs and plaintiff-intcrvenors. The evidence reflects,
and this Court finds, that in order to further desegregate any of these
facilities, satellite zoning and the cross-city busing of white students would 
, 25/be necessary. Further, an exchange of black students would have to be made 
by transporting them across the city from these school areas. This would not, 
under the circumstances of this case, accomplish any effective and realistically

24/ Plaintiff-intcrvenors also project a heavily black enrollment at McIntyre. 
Plaintiffs would, under their proposal, achieve a projected 50 percent black-white ‘ ratio at McIntyre Junior High. However, this would be accomplished by satellite 
zoning and by transporting 550 whites for a considerable distance frem the 
satellite Clover-dale area and periphery area to the McIntyre school. The only 
purpose in this is to attempt to achieve a racial balance in this school that" is located deep in a black residential area.
Jr.-1/ lb is significant ..but Dr. V/inecoff under bis Plan A alternate leaves Carver 
Element ary at .o percent blade. Under Ills Plan A, Dr. Winecoff proposes to bus approximately 200 white students from the various school -areas to Carver which 
would still leave Carver Elementary at 61 percent black. These students would 
have to pass throe or four elementary schools to arrive at Carver.

-12-



s t ab 3 c desegregation. In each instance, the situation is a result of residential

patterns and not: of the school hoard's action -- either past or present.
It is significant to an overall evaluation of the hoard's plan that all

? 0 /of the students in the. Montgomery school system”  will attend a substantially 
desegregated school for the majority of tlieir school careers. Over 80 percent 
of the black children in the system will attend a substantially desegregated 
school for at least six grades of the 12. One hundred percent of the black 
children in the system will attend a substantially desegregated senior high 
facility.”  ̂At the junior high school level, the only junior high facility 
under the board’s plan that is projected to be over 80 percent black will be 
the McIntyre Junior High facility which, as this Court har, previously noted, is 
impossible to effectively desegregate in a stable and workable manner.

A detailed analysis of the board's plan is attached and marked as 
ypb3 e 2 to this opinion. The chief criticism of the plaintiffs and plaintiff- 
intervenors of the board's plan is that the board is putting the primary burden 
of. desegregating tlie Montgomery school system on the blade students. Tlie 
evidence does not bear this out. Approximately 4,000 white students and ->,CJ0 
black students are reassigned under the school board's plan. Furthermore, on 
the junior high level the board's plan proposes that three virtually all-black 
facilities be converted into predominantly white ones, that is, Carver Junior 
High from aero percent white to 61 percent white; Georgia Washington from zero 
percent white to 69 percent white, and Houston Hill from 15 percent white to 65

percent white.
As to the proposal of the board regarding the senior high schools 

within the system, the evidence reflects that all of the city senior high schools

will be substantially desegregated.
Ill • A3’fLlCABLE LAM

For several years it has been clear, and all parties in this case 

recognize, that
the obligation of every school district 
is to terminate dual school systems at 
once and to operate now and hereafter 
only unitary schools.

25/ The only exception involves those students in tlie Montgomery County High-Dunba 
Elementary area — ' and neither the plaintiffs nor the plaintiff-intervenors serious 
ly attempt to desegregate these schools.
27/ For instance, Lanier - 57 percent wliite, or Carver - 61 percent white.



Alexander v» Holmes County Bd. of Kduc., 396 U.S. 19, 20 (1969). In cl e Corbin In 3 
what constitutes a "unitary” school system, there arc six facets of school

t
operation which must be considered. These six criteria are (1) faculty, (2) staff, 
(3) transportation, (4) extra-curricular activities, (5) facilities, and (6) compo­
sition of the student body. Green y. County School Bd., 391 U.S. 430, 435 (1968); 
Adams v. llnnhln County bd. of Hduc., 485 F.2d 324, 325 (5th Cir* 1973).

A • F a c u l t y  and'  S t a f f

In 1968, this Court ordered that the Montgomery County School Board 
must move toward a goal under which "in each school the ratio of white to Negro 
faculty members is substantially the same as it is throughout the system." As 
observed earlier, the United States Supreme Court affirmed, that order. United 
States v. Montgomery County Bd. of Eauc.», supra.

An analysis of the evidence presented in this case [see Table 1] shows 
that the board is in full compliance with that order.

B . T r a n s p o r t a t i o r , . K.-rtrayciir r l c u l a r  A c t i v i t i e s ,  F a c i l i t i e s

There is no dispute as to the law regarding these indicia of desegregation 
Suffice it to say that there can be no racial discrimination in any of these 
areas of school operation. Hone of the parties seriously contend the board is 
not in full compliance with the law in these areas. Appropriate factual findings 
will be made as to each criterion.

C. Student Body Composition
While it is clear that in disestablishing a segregated school system all

vestiges of racial segregation must be eliminated "root and branch," Green v.
County School Bd., 391 U.S. 430, 437-38 (1968), the establishment of a fixed
racial quota in each school is not required by the United States Constitution.
The United States Supreme Court has ruled that

[t]he constitutional command to desegregate 
schools does not mean that every school in 
every community must always reflect the 
racial composition of the school system as 
a whole.

Swann v. Charlottc-Mecklcnburg lid, of Kduc., 402 U.S. 1, 24 (1971).
Thus, it appears that a balance must be reached, one unquestionably 

subtle in its implications: while school system segregation must be actively
disestablished, racial quotas for student population are not to be instituted.



it is in this case’, with several schools which contain a student population which
is largely of one race. Since this Court last considered the compliance of
this school system with constitutional commands, many important cases have been
decided by the appellate courts, necessitating a re-examination of the law with
respect to schools whose student population does not typify the general population
figures. The Supreme Court has, in a general manner, addressed the question of
one-race schools, writing in Swann that

U ]he record in this case reveals the familiar 
phenomenon that in metropolitan areas minority 
groups ore often found concentrated in cue 
part of the city. In some circumstances 
certain schools may remain all or largely of 
one race until new schools can be provided 
or neighborhood patterns change. Schools 
all or predominantly of one race in a district 
of mixed population will require close 
scrutiny to determine that school assignments 
arc not part of state-enforced segregation.

In light of the above, it should be clear 
that .the existence of some small number of 
one-race, or virtually one-race, schools 
within a district is not in and of itself 
the mark of a system that still practices 
segregation, by law. The district judge or 
school authorities should make every effort 
to achieve the greatest possible degree of 
actual desegregation and will thus necessarily 
be concerned with the elimination of one-race 
schools. Mo per s_e rule can adequately embrace 
all the difficulties of reconciling the 
competing interests involved; hut in a system 
with a history of segregation the need for 
remedial criteria of sufficient specificity 
to assure a school authority's compliance 
with its constitutional duty warrants a 
presumption against schools that are sub­
stantially disproportionate in their racial 
composition, there the school authority's 
proposed plan for conversion from a dual to a unitary 
system contemplates the continued existence of 
soars schools that are all or predominantly of one 
race, they have, the burden of showing that such 
school assignments are genuinely non-discriminatory.
The court should scrutinise such schools, and 
the burden upon the school authorities will be to 
satisfy the court that their racial composition 
is not the result of present or past discriminatory 
action on their part,

■Swarm v. Charlotte-Hncklcnburft Bd. of Kduc.. 402 U.S. 1, 25-26 (1971).

Several cases dealing with one-race schools have been decided by the 
Court of Appeals for this circuit since this Court last fully considered compliance 
in this school system. While neither the Court of Appeals nor the Supreme Court 
has adopted any explicit, clear test by which to measure the constitutional

The difficulty of analysis is most acute when the Court is confronted, as

- 1 5 -



I

validity of one-race schools, the Court of Appeal:: has, since this Court's last
major order in this case, reversed district courts in school cases and held that
nine all-black schools in one system could not remain in existence^ that
insufficient pairing had been ordered when schools which could be paired were
about one and one-half miles away,-— ' and that 1A all-black elementary schools in

30/one r.yntem had to be paired or rezoned0~  Other district courts were reversed
because under court-approved plans 80 percent of the blacks attended schools
where their race predominates — because 70 percent of all black elementary

32 /students attended one all-black school,—  because 68 percent of the black
elementary school students in a system attended schools 90 percent or more
black,-— - and because 44 percent of the black students in one system attended

34/all-black or virtually all-black schools* These cases, and others Ixke then
decided since this Court's last consideration of this case, necessitate a re­
examine Lion of this case in the light of the state of the law and the facts as 

they exist in the Montgomery school system today*
TV- 3?1AH APThOVED

As is already evident from what has been stated in this opinion, this 
Court proposes to order implemented in toto the desegregation plan as proposed 
by the Montgomery County Board of Education on January 13, revised March 29, 1974, 
and modified May 8, 1974* The evidence in this case reflects that the plans 
proposed by the plaintiffs and by the plaint iff-intervenors will accomplish

28/ Kradlev v* E<1* of Public Instruction, 431 F.2d 13/7, 1330-81 (3th Cir* 1970)*
29/ Weaver v* 3rd* of Public Instruction, 4G7 F*2d 473, 474 (3th Cir. 1972) (all- 
black- school l.'/.To T ,5 miles from predominantly white elementary schools);
Wright Vo M * of Public Instruction, 431 F*2d 1200, 1201-02 (3th Cir* 19/0)*
30/ Mannings, v* Ed* of Public Instruction, 427 F*2d 874, 877 (5th Cir* 1970)*
31/ United States v* Texas Education Agency, 467 F*2d 848, 872.-73 (5th Cir,
1972)(en banc)*
32/ Boykins v* Fairfield Bd* of Fchic. , 457 F*2d 1091, 1.093 (5th Cir* 1972)*
33/ Allen v* Bd* of Public Instruction, 432 F„2d 362, 366 (5th Cir* 1970)*
34/ l'at o v* bade County, 434 F*2d 1.151, 3.153 (5th Cir. 1970)*



very little stable, long-term desegregation In this school system. This Court 
desires to emphasise that the remaining predominantly black schools in this 
school system under the board's plan cannot be effectively desegregated in a practi­
cal and workable manner. In each instance this Court has examined and re-examined 
the evidence and has determined that these predominantly black schools exist 
and continue to exist without, any discriminatory board action. The board's- 
proposal and this Court, in adopting same, have taken "into account the 
practicalities of the situation" that exist in this school system. Davis v.
Board of School. Commissioners, supra. The schools that will remain predominantly 
black in the Montgomery school system are the result of the concentrations of 
blacks in the western area of Montgomery. As the Supreme Court observed in 
Swann v. Chariotte-Mecklenburg. supra, the existence of a small number of 
predominantly black schools in such areas is not in and of itself a sign that a 
dual school system exists. The school authorities in the Montgomery school 
system have taken, affirmative action to the extent required by the law and have 
achieved the greatest possible degree of actual desegregation, taking into 
account the "practicalities of the situation." As this Court has observed time 
and time again in school desegregation cases, racial quotas and busing to achieve 
racial quotas are not required by the law.

A. Elementary Schools
The board has proposed, and this Court is adopting for elementary 

schools, what is in large measure a "neighborhood" or proximity plan, under 
which an elementary child normally attends the school nearest his home.

The Court is aware that any "neighborhood school" plan is stri.ctissir.il 
juris in this circuit and is to be adopted, if at all, only in narrowly confined 
instances. This is such a case.

In a pure neighborhood school system, as approved in Ellis v. Ed. of 
Public Instruction. 423 F.2d 203 (5th Civ, 1970), there are two requirements:
(1) a strict proximity rule must bo followed, under which neither man-made nor ■ 
natural boundaries may be considered, but only travel distance;'-— and (2) the

35/ "We also hold that the neighborhood system, based on school
capacity, must be observed without exception* This will 
prevent any variance based on traffic conditions 0 „ ©
Variances by arbrifcrary cone lines, or for reasons of 
traffic, while•reasonable on their face, nay destroy the 
integrity and stability of the entire assignment plan*
If Orange County wishes to maintain a neighborhood 
assignment system, then it must do so without variances*
Each student in the system must be assigned to attend 
the school nearest his or her home, limited only by the 
capacity of the school, and then to the next nearest school o'

423 I’© 2d at 207-08*



plan must be one which is effective to establish a unitary school system.
The sc cone! criterion, that the plan must effectively provide for a

unitary system, was outlined in a footnote:
fu]nder the facts of this case, it: happens 
that tiie. school hoard's choice of a neigh­
borhood assignment system is adequate to 
convert the Orange County school system 
from a dual to a unitary system.

423 F .2d at 203, n.7 (emphasis added).
However, in a series of cases the Court of Appeals has held that an 

F.llis neighborhood school plan, to be upheld, must provide for the ultimate 
conversion of a dual to a unitary school system.

In Andrews v. City of Monroe, 425 F.2d 1017 (5th.Cir. 1970),. the Court 
of Appeals held that in Monroe, Louisiana, a city with only 18 schools, an Kills 
plan was constitutionally infirm-,if it left 85 percent of the black elementary 
students in. all-black schools, or schools nearly so. 425 F .2d at 1019-20.

In Henry v. Clarksdnle.liunicinnl Separate School 'District, 433 F.2d 387 
(5tli Cir, 1970), involving a small city with only seven elementary schools, the 
Court of Appeals reversed a plan which left three all-white elementary schools 
and four all-black. The Court of Appeals wrote that the order of the district 
judge "totally ignore.;', the real key to Ellis, the strong caveat of footnote.
7 # „ . 4 3 3  }-■ .2d at 390. Footnote 7 was the footnote in Ellis which noted 
that "it happens that .. .  [the plan] is adequate to convert the . . .  system 
from a dual to a unitary system." 423 F.2d at 20S, ft.7.

Similarly, in Ross v. Eckels, 434 F.2d-1140 (5th Cir. 1970)(Houston, 
Texas, system), the Court of Appeals reversed a district judge's adoption of 
an Ellis plan where 29 percent of black students were in all-black or virtually 
all-black schools, 434 F.2d at 1146, n.9, noting that each case had to be judged 

on its own facts. Id. at 1147.
In 1970 the Court of Appeals reversed a district court’s adoption of

•an Ellis plan in Alexandria, Louisiana, where 60 percent of the black students
were In schools where their race constituted 90 percent or more of the student

body. The Court of Appeals held that
[t]he end result is that neighborhood 
zoning in Alexandria, Louisiana, leaves 
the majority of the city's Negro students 
in a virtually segregated school system.
The fact that the plan complies with the 
requirements for a neighborhood system as 
enunciated be this Court in [El 1 is] does 
not make the system constitutionally



palatable unless the plan actually works 
to achieve integration.

Vnllev v. r, mo id ns p-tri sh School lid., 434 F.2d 144, 145 (5th Cir. l‘.)/0) .
In a case from Lake Charles, Louisiana, the Court of Appeals reversed a

district judge who had adopted an Ellis plan, pointing on., tnat
[a]s to ward 3, the Board plan is not 
up to constitutional standards. In 
many circumstances the Orange County 
approach of neighborhood schools is 
adequate to convert a school system 
from a dual to a unitary system. But, 
as Prance County itself makes clear,. . . 
each case turns on all of its own 
facts, including those peculiar to 
the particular system . . . .A plan 
which leaves two out of three black 
children in Lake Charles in schools all 
black or substantially so, . . . 
cannot be upheld as constitutional.

Conlev v. Lake Charles School Board, 434 F.2d 35 (5th Cir. 1970).
However, the Fifth Circuit Court of Appeals has affirmed the use of 

the Ellis plan in some circumstances where the result is a substantially 
desegregated school system. The. Court of Appeals approved the use of an £Uis 
plan for the schools of Fulton County, Georgia (excluding Atlanta). In that case, 
only 1C percent of the black students attended all-black schools. While several 
elementary schools were largely black in composition, bulge Wisdom pointed out 
that 11 [e]very black student at some point m  bis scuool career will he exposed 
to complete desegregation . . . Hightwar v. Vast, 430 I’.2d 552, 555 (5th Cir. 

1970). There,
[a)s in so many other cases,these majority- 
black and all-black schools are the product 
of residential segregation and, historically, 
the location of schools to serve a segregated 
community.

430 F.2d at 555. The Court of Appeals found several deficiencies in the other 
plans offered at trial, among then that "[t]he pairing proposals . . . would 
produce longer walking distances and busing for these elementary school children." 

M.
Similarly, the Court of Appeals approved the use of an Ellis plan in 

the schools of Anniston and Tuscaloosa. Lee v. Macon County Ed. of Educ., 429 l’.2d 

1218, 1.222 (5th Cir. 1970).
The plan proposed by the. school board in this case does not: precisely 

fit the Ellis mold. The school assignment has not been effected by precise and

- 19-



4

mathematical drstnncc n^^ouiin"j sone natural, and roan—made boundaries linve boon 
considered in the process of zoning. However, os this Court views Ellis, the 
El1is plan in its purity is ultimately designed for the school system which is 
approaching unitary status and will be drawing its own lines. Tn such a 
situation a strict Ellis plan completely eliminates discretion in student 
assignment, thus eliminating the possibility of discriminatory student assignment.

However, in this case the plan is under careful judicial scrutiny. This 
Court, long familiar with every aspect of this case, is convinced that where the 
board plan for elementary schools deviates from a strict Ellis proximity plan, 
the deviation is to maximise, rather than to minimize, desegregation; and thus 
is intended to help meet the constitutional burden, which is upon the hoard.

Therefore, while the school board plan does not strictly meet the 
absolute standard of Ellis, any deviation is for a permissible and proper 
purpose. Thus, this Court considers that the principle of Ellis —  thus 
neighborhood schools may be constitutionally proper -- may be adopted by the 
district court if the line construction is under judicial scrutiny and the 
plan adopted effects desegregation of the complete system.

It is, therefore, necessary to consider whether the school, hoard plan 
in this case for elementary schools is constitutionally proper.

The plan in Ellis itself, which the Court of Appeals held to bo. "adequate
to convert the Orange County school system from a dual to a unitary system,"
42d 1 .2d at 20S n.7, provided for substantially less desegregation at the
elementary level than does the school board plan in this case. Jn Ellis,
■Sgsynyrt-fout; rercent (74%) of black elementary pupils attended elementary schools

36/which were at least ninety-nine percent (99/.)' black.

While the school board’s elementary plan here is better than that in 
v,,xch was affirmed, it is also better than most, of the. plans which have 

been modified or reversed by the Court of Appeals for this circuit, l’or example, 
the Monroe, Louisiana, plan left 85 percent of the black elementary pupils in 
all-black schools. 425 K.2d at 1019-20. The Clarksdale, Mississippi, plan 
appears to have left the elementary schools completely segregated. 433 F»2d at 390.

3&J iiy.iSw the following elementary schools were 
Callahan (99 percent); Hcclcston (JOl) percent); Hold 
Hungerford (100 percent); Mnxoy (99.7 Richmond Heights (100 (99 percent); and Uhe 
those schools, out of
7j percent of all black elementary pupils least 99 percent black.

• > ...- j percent) , w,.... ..e- veneer vj.n n 1 con. .t-'xhington photo.: (100 percent);
aL1 ey (1.00 percent). A total of 6,376 Mac 
a tol >! black elementary school nomd.-itinn

at least 
:n Street: 

Orange Center
99 percent black: 
(99.8 percent);
(100 percent);

Webster Avenue 
ck students attended population of 8,62d. Thus,

-20-



The Alexandria, Louisiana, plan provided that 60 percent of the black students 

were in schools which were? 90 percent or more black. 434 K-’d at 345.
Thus, while the school board's elementary school plan doer, r.ot completely 

eliminate hil' predominantly black schools on the elementary level, the Court is 

convinced that considered as a par t̂ of_jj^m2^  ^ der.Jho.j ^ L -Si
this case, the school board's elementary plan is constitutionally acceptable.
There are several factors which the Court considers in arriving at this conclusion.

First, in this system, as Judge Wisdom has pointed out in another case,
"f e) very black student at some point in his school career will be exposed to 
complete desegregation „ . Hightower v. West, 430 F.2d 552, 555 {5th Cir.
1970). Grades seven-twelve of the Montgomery system, under-the board’s plan,

37 /are to be completely desegregated.
Second, the system as a -./hole will be desegregated. All of the other 

five indicia of a unitary school system have been completely met in this school 
system. Sim members of the Court of Appeals^ 7 concurring specially in an on 
bene case, have recently affirmed the proposition that normally the system as a 
whole is examined for purposes of determining whether the system is unitary; 
individual schools are not looked to for that purpose. VnUpd_gtates v. Texas 
Education Agency, 457 i?.2d 843, 888 (5th Cir. 1972) («n_ base). In Montgomery . 
County, Alabama, there is system-wide desegregation of all six facets and indicia

of school desegregation.
Third, in the Fulton County, Ceorgio, case, the Fifth Circuit wrote of 

"the value of assigning young children to nearby schools . . £iall£2HSE.
West, 430 F.2d 557, 556 (5th Cir. 1970). It cannot bo denied that there is value 
in having elementary children attend schools near their homes. Recognition of 
this benefit of neighborhood elementary schools does not constitute abandonment 
of the goal of desegregation as required by the United States Constitution. If 
a neighborhood elementary school system can be effected, without a sacrifice of 

rnnsHtutional standards, then such a plan should

7/ The board's junior high plan would keep only 18 percent of the black 
unior high school students in schools 80 percent or more black [excluding 
fontgomery County High School], and no high school student would be in a 
chool more than 43 percent black [excluding Montgomery County High Scnool] ,

It is conceded by all parties that Montgomery County High School, which 
is at the opposite end of the county from the city schools, cannot be effectively 
desegregated because of its isolation.
33/ Judges brown, Wisdom, Gewin, Goldberg, Hyer, and Simpson.

- 2 1 -



All factors considered, the neighborhood elementary school system 
proposed by the board is constitutionally adequate to effect desegregation under 
the. facts of this case. This Court is convinced that to adopt the plans proposed . 
by plaintiffs and plaintiff-interveners would be to adopt a fixed racial quota 
for student population. The Supreme Court has indicated that not only is the 
imposition of racial quotas in schools not required, but a court may commit 
reversible error if it requires 'a fixed racial ratio in student population.
Swann v. £ W 1  ntt-e-Hociclenburn lid. /gQdute., AO 2 U.S, 1, 24 (1971). 

l!, junior High Schools
As observed earlier, under the board’s plan the only junior high school 

faciUty that till he Over 80 percent black will be the McIntyre facility. For 
the reasons previously noted, it is hot feasible to further desegregate the 
Mdntyre School, in a stable and workable, manner. This school continues to exist 
as a predominantly black school through no action on the part of the school 
board. Of the 13 junior high schools to be operated in the Montgomery system, 
McIntyre is the only one that comes close to being racially identifiable. For 
instance, Houston Hill (a formerly all-black school) will be 35 percent black, 
Cnodvyn will be 34 percent black, Georgia Washington (a formerly al1-black 
school) will be 31 percent black, Floyd will be. 35 percent black, Cl oversale 
will be 33 percent black, Carver (a formerly all-black school) will he 39 
percent black, Capitol Heights will be 38 percent black, Baldwin (a formerly 
all-white school) will be 73 percent black, and Bellingrath (a formerly all-white 
school) will be 62 percent black. This is the maximum under the circumstances 
that exist in the Montgomery school system that can be required of the board.

C. Senior High Schools
The defendant board's plan on the senior high school, level, as observed 

by the United States in its brief, "appears to be fully acceptable." As a 
matter of fact, there is very little, if any, controversy among the parties as 
far as the operation of the senior high schools in the Montgomery system is 
concerned. The board proposes that Carver High be 39 percent black, that 
Jeff Davis be 38 percent black, that Lanier be 43 percent black and that Lee be

ao/ Thi- is with the exception of Montgomery County High which was not proposed 
't'o tv. desegregated by any of the plans submitted by the parties by reason of its 
] ocation in ci r ptuo l.o nr c*.n o.i the county*



37 percent block. Such a proposal for the senior high schools within the 

system is entirely acceptable.
in sec ,ary; every formerly all-white school in the Montgomery school 

system will, under the board's plan, be substantially desegregated. Several 
formerly all-white schools will now be predominantly black. Further, several 
former1y all-black schools will become predominantly white.

V« GENERAL COMSIDERAT1 S 

A. Wn^nritv-to-Minorlty Transfer Rule 
The previous orders entered by this Court in this case required the 

desegregation of not only the students but the faculty and st,ff,_ transportation, 
extra-curricular activities, and facilities and also required, among other things, 
a rule that the hoard allow any student enrolled in a school where his race is 
in the majority to transfer to a school where bis race will he in a minority.
This majority-to-minority transfer rule also requires the hoard to provide 
transportation for those electing to transfer pursuant to this rule. This 
transfer rule is a viable and effective doctrine in the Montgomery school system. 
Based on a report that was filed with the Court and made a part, of the records 
in this case, in December, 1973, over 600 blacks had elected to transfer under 
the majority-to-minority transfer rule. The majority-to-minority transfer policy 

war. incorporated in the order made and entered in this case in February, 1970. 
Upon review of that order, the United States Court of Appeals for the Fif th 
Circuit in Carr v. Montgomery County Board,,_ctc., 429 F.2d 332, directed that 
this Court's order he modified "in light of recent opinions of this court." In 
July, 1970, pursuant to the direction of the Court of Appeals, this Court ordered 
that the Montgomery County Board of Education shall provide transportation, if 
desired, for students transferring pursuant to this majority-to-minority transfer 
policy. The Court also ordered that students so transferring are to be sx\c.n 

priority for space in the schools to which they transfer.
A majority-to-minority transfer provision in a school desegregation 

order is universally recognized by the courts as a useful tool to accomplish 
desegregation in a dual school system. As a matter of fact, the Supreme Court 
of the United States in Swann v. Board of Education, snore, stated:



An optional nnjority-to-minority transfer 
provision has lonf.' been recognised as a 
useful part of every desegregation plan.
Provision for optional transfer of those 
in the majority racial group or a particular 
school to other schools there they vil 1 he 
In the minority is an indispensable remedy 
for those students willing to transfer to 
other schools in order to lessen the impact 
on them of the state-imposod stigma of 
pep,rogation. In order to be elf act ivc, 
ouch a transfer arrangement must grant the 
transferring student free transportation 
and space must be made available in the 
school to which he desires to move.

The vital importance of the effective operation of the inajority-to-minorrty
AO/

transfer has been noted by the Fifth Circuit in several cases.' In .Cisneros,

the cn hi tic court Gtet'cd:
An overall amelioration of any possible 

discrimination will tend to he accomplished 
by the use of'the mandatory majority t.o 
minority transfer provision of Sivaim* supra,
AO?. U.3. at 36-37, 91 S.Ct. 1267, 23 L.M.
2d 5 3 4, heretofore ordered by the district 
court. Such a provision will guarantee to 
both races an unfettered right to attend 
schools with members of an opposite race 
or identifiable ethnic group, and with 
transportation provided,

As stated, the Montgomery school board lias and continues to implement 
a majority-to-»inority transfer provision that complies with every requirement 

of the existing school desegregation laws.
B. Bir a ci: • 1 Permittee

Up until this time, the Montgomery school hoard has not operated with 
the assistance of a biracial committee. In an order made and entered in this

case on March 13, 1974, this Court stated:
An over-all review of the applicable 

school- desegregation decisions rendered . 
since Swarm, Green, and Davis, reflects 
that this Court is now required to give 
serious consideration to the appointment 
of a biracial committee. The biracial 
committee is to be constituted by tbiŝ
Court from names submitted by the parties 
to this litigation. The committee is to 
review the operation of the Montgomery 
County transportation system and the 
majority-to-minority transfer rule and 
is'to be charged with responsibility in 
the area of selecting school sites.

40/ Cisneres v• 
■(5 th Cir. 197?) (g 
423 F.2d 203, 206 
Sfihml District.»

Coinus Christi Independent School District:, 4o7 1 ,2d 142, 153 
;rlx-inc) ; Tfllis v. lid. of Public Instruction of Orange .County. 
“(5th Cir. 1.9/0); Singleton v. Jackson Municipal Separate 
419 l'.2d 1211, 1218 (5 th Cir. 1970) (on banc).



Thn committee will be authorised to 
bold hearings and make recommendations 
to the school board in connection with 
any of these activities.

*
It is further ordered that within 15 

days iron this date each party to this 
litigation submit to t'ais Court the 
names of 20 citizens residing in 
Montgomery County, Alabama; one-half of 
the names submitted v;ill he black 
citizens and the other half will be 
white citizens; the submission of these 

v names is to be for the purpose of the 
Court's constituting from the names 
submitted a biracial committee for the 
purposes hereinabove discussed.

The parties have, as directed, submitted the nones of citizens to the Court, 
and the Court has chosen from the names submitted 15 black citizens and 15 
white citizens to constitute the Montgomery County school system's biracial 
committee. A separate order will'be made and filed contemporaneously with this 
order designating the citizens who are to constitute this committee and 
outlining their functions and responsibilities. The chairmanship of the committee 
will bn rotated each two years with the committee selecting the chairman to 
succeed the initial chairman being designated by this Court, lhc membership of 
the com.-jit.tee represents a cross-section of the Montgomery, Alabama, area with 
regard to race, sex,and ethnic and economic backgrounds. The Montgomery County 
Board of Education will he required to cooperate with the committee or any of 
its subcommittees, furnishing any information, records or documents requested by 

said committee.
C. Arbitrary Tolerances or Guidelines 

As noted earlier, the plaintiffs’ expert witness, Dr. Foster, and the 
plaintiff-interveners' expert witness, Dr. Ninecoff, instead of. evaluating the 
system as a whole, evaluate each school within the system independently for the 
purpose of arriving at certain conclusions that seme schools within the system 
continue to he "racially identifiable." In doing this, Dr. Foster uses a 15 
percent variation or tolerance and Dr. VJinecoff uses a 30 to 15 percent variation 
or tolerance to determine the racial idcntifj.ablli.ty of elementary and junior 
high schools in the Montgomery school system. These variations arc determined 
on the elementary and junior high school level on the basis that 48.5 percent 
of the total elementary and junior high school students enrolled in the system

-25-



are black., This neanr, that, pursuant to Dr, Foster's computation (a similar 
procedure is followed by Dr. Winecoif), any elementary or junior lii;;h school 
with an enrollment less than 33.5 percent black is "racially identifiable" 
as white. If the enrollment is more than 63.5 percent black, the school, 
according to Dr. Foster, is "racially identifiable" as black.

The use of such variances or tolerances is highly artificial and 
cannot be applied in the Montgomery County school system without severely and 
unnecessarily disrupting the operation of the system and without severely and 
unnecessarily impinging on the educational processes in the Montgomery school 
system. The application of such formulas must of necessity proceed on the theory 
that a racial balance is to be achieved and is required under the law. Further­
more, the formalistic arid mechanical application of the 15 percent tolerance of

\
Dr. Foster or the 10 to 15 percent tolerance or deviation of Dr. VJinecoff gives 
no consideration whatsoever to the other indicia in school desegregation cases 
such as faculty, transportation, facilities and extra-curricular activities. To 
label schools that do not fall within these tolerances or deviations as "racially 
identifiable" means that, in order not to be "racially identifiable," each school 
within any school system rr.ust meet certain predetermined ratios. As this Court: 
has stated through, the years time and'time again, racial bait.lice .is not consti­
tutionally required. The Supreme Court of the United States in Swann v. Hoard 
of Education, st'nra, emphasised this by stating:

fi]f we were to reed the holding of the 
District Court to require, as a matter 
of substantive constitutional right, 
any particular degree of racial balance 
or mixing, that approach would be dis­
approved and we would be obliged to 
reverse, 'file constitutional command 
to desegregate schools does not mean 
that every school in every community 
must always reflect the racial compo­
sition of the school system ns a whole.

VI. CONCLUSION
This Court feels an obligation to point out that its allowance of a 

neighborhood elementary school system does not constitute an abandonment by 
this Court of the goal of securing to all citizens their rights guaranteed by the 
Fourteenth Amendment. This Court has always strived to guarantee to all citizens 
both black and white, their right to equal protection of the laws. This Court 
has never balked at the enforcement of constitutional rights in racial discrimi­
nation cases. In the last nineteen years, this Court has sat in cases in which



I

the constitutional rights of black citizens had been denied in that blacks
41 /were discriminated against when they sought on equal right to use buses,

airports,"^ libraries, parks,and YMCA's.”  The Court has further dealt
46/ . 47/vith racial dir. crimination in the areas of voting rights, "jury selection,

AS/ A9/ , .and governmental hiring by both state and federal governments, and has •
to/also dealt with governmental districting. In the school field, this Court

.51/ .
has decided cases which involved ‘aid to private schools, School desegregation

52/ . 53/ . 35/on the level of local schools," statewide administration, athletic programs,

be-.,is v, Greyhound Corn., 109 F. Supp. 310 (M.D. Ala. 1961); Browder v. Gayle, 
142 F. Supp. 707 (M.D. Ala. 1956), aff̂ d, 35?. U.S. 903 (1.057).
42/ United States v, City of Montgomery, 201 K. Supp. -59 0 (M.D. Ala, 1962).
43/ Cobb. v. Montgomery T.lbrary Board, 207 in Supp. 830 (M.D. Ala-. 1962).
44/ Gilmore v. City of Montgomery, 176 1’. Supp. 776 (M.D. Ala. 1959).
45/ smith v. YMCA, 316 V. Supp. 899 (M.D. Ala. 1970), £ff'_d 562 F.2d 634 (5th Cir, 
1972).'"
46/ State of Alabama v. Donors, 1C7 F. Supp. 368 (M.D. Ala. I960), «££.71 235 
f 7?c W-(Tth“cI?ri961) Tunitcd.States v. SJ cl e t f Alab ng, 2.>2 F. oupp. 95 (M.D. Ala. 1965); United States v. Darker, 236 V. Supp. 511. (M.D. A.a. 196 ,),
United States y. Cartwright, 230 F. Supp. 373 (M.D. Ala. 1.964); Uni|ed^at.es V. 
£i5™”*~212 F. Supp. 1*53 (M.D. Ala. 1962); United States v. Ptrdt^rjVJanrM. 1»2 
F* Supp*- 677 Ala* 3 961)*
47/ Pe^ v. KubanUs. 350 F. Supp. 699 (M.D. Ala. 1973) ; Write v. Crook, 251 
I’* Supp * 401 (i:*b* Ala* 1966) «
48/ ISAAC? v. Allen, 340 F. Supp. 703 (M.D. Ala. 19/2), sfiMu, „ F.2d_--
75th Cir. 19/4) ; 'strain v. Phi lpott, 331 F. Supp. 836 (M.D, Ala. 19/1); Juried 
States v. Frazer, 317 F. Supp. 1079 (M.D. Ala. 1970); 297 F. Supp. 319 (M.D.
Ala * 1963)»
49/ Penny. Schwinger, 350 F. Supp. 752 (M.D. Ala. 1.973), ££££, *‘2d 700
(5th Cir. 1973), rehearing on banc granted, ,___ F.2d .---- (5th Car. 197,).
50/ Yelverton v. Driggers, 370 F» Supp. 612 (M.D. Ala. 15/n).
51/ Gilmore v. City of Montgomery. 337 F. Supp. 22 (M.D. Ala. 1972),
mid afpr, 473 F.2d 832 (5th Cir. 1972), ccrU jutted,___ U.S. _ U9/3;.
Crensh'-w *Cou’-'tv private Sch.ool Foundation v. Connolly, 343 F. Supp. i93 (M.D.

F.2d 1185 (5th Cir. 1973); Lea v. Macon Counted._of 
Educ., 267 l'7~Supp. 453 (M.D. Ala. 1967); 231 F. Supp. 743 (M.D. Ala. 1964). '
52/ T.ee v. Macon Countv 3d. of Educ., 292 F. Supp. 363 (M.D. Ala. 1968); 289 
F. Supo. 975 (M.D. Ala. 1958); 270 F. Supp. 859 (M.D. Ala. 196/); 231 F. Supp.
743 (ii.D. Ala. 1.964); Harris v, Crenshaw County lid, of Kduc. , 259 1-. Supp. lo7 
(M.D. Ala. 1966); l-’rank L in v. Bar hour County Dd. of l.duc., 259 i. Supp. 545 
(M.D. Ala. 1966); Harris v. lyulfock County Dd. of Educ., 253 F, Supp. 2/6 (M.D. 
1966); Carr v. Mo at gem orv County lid,, of i:ldoc., 253 F. Supp. 306 (M.D. Ala. 1966) .
53/ I.ee v, Macon County Dd. of l’dnc., 26/ F . Supp. 458 (M.D. Ala. 1967).
54/ bee v. Macon County 3d. of Fduc., 283 F. Supp. 194 (M.D. Ala. 196o).



56/ 57/
faculty,’”  graduate schools, and trade schools and junior colleges.

This Court stands on its record showing its willingness to protect, where

necessary, the constitutional rights of black citizens against racial discrimination

by government officials. This Court has not in the past allowed, and is not now

allowing, the violation of constitutional rights to go unremedied. In adopting

the school board’s plan providing for elementary schools under a "neighborhood"

system, this Court in all respects is following the mandate of the Fourteenth

Amendment and has arrived at the' conclusions stated herein upon an evaluation

of the Montgomery school system ns a. whole.
//C5Done, this the f4 ? ' day of May, 1974

______,,/
ÛilXTED STATEo DISTRICT JUDGE

s i; / v MoM-comcrv Countv Dd . of F.duc., 239 F. Supp. 647 (M.D. Ala.),
H i ' d ^ f ^ '!itl7^4UCrF;fdTT5t!n:Ir. 1968), a*£d 395 U.S. 225 (1969).
56/ Parker v. Franklin, 223 F. Supp. 724 (M.D. Ala.), nff'd as modified, 331 
ir:?d S41 (5th Cir. 1964).

5 7 / Dec v. M-.rnn Cnuntv lid, of Educ., 317 F. Supp. 103 (M.D. Ala. 1970), a£fM 
’A53 F.2d 524 (5th Cir. 1971).



4
I

T A B LE  1
FACULTY DEE EG LEGATION



<

Actual Earollr.-snt, March, 19 W

TACI.r. 2
Ei.£v»:c:iT.\T f

P r o j e c t e d  U nder B oard  P l a n

: r o o L 

r:V-. _
r\,T V'.V
hi

Total j 7, F,1 ack
j

75
j! 503 373! 12,9*7, ■

0: 
1 f

j____4 7..___150 -___72______

TUncV-

___ if/>_
1 .6

Uhitn

___s n i
*68

Total

_ 601
2 ̂  9

S* ! '22 7. L__ S i .
i 'H i:

7 »
70 1

1 3

.S33

2.3 3_L 
1/0 \

<jO
30

119 
' a 7 1

_ io o  C IL L -
I___ 23 9

192 I___ IL L

0 - SHv ' 7 : ' . 3 33_L  
.<£<-} 1__

09 L
] __°o_L
1 .027 r

Gp

j v \  I _ L 1 
A6l X ~  93
6 AS

T  63 __ V
O le , -n  s

1_____ V

7 r  A 2 3
V, 0  217

% n ia c v

27 7,
j fl

33 __

38
99

:0 !_ 
v r

_
A AS !

J77 ...L9 Lj, j 1.011 > 
'8 9  ! 71A !

10 . 0 .

87
87

A63 I
K 7. •

n ' M
?0 L . J 1 76

0 >_309 i
“  6 6 3 J  ___

7 LL H __I S . 7
503 i___ 37 . (-

7,7*9 : A/Li i___ j  9 .5.
........... r , V A  99

J >2 LI
81 3 •

f 62 8 731 ! •> AO

, . ,, ,v . .I,). ___ i __ 67,1 L ■ 708 \ 6 8 __
5L2 ; 1 1 . 3

9 7 1  < 8 ’;9 .i_ 3 0 .3  _
S 9 !3 ! 3 3 9  i 3 7 . 5

,37 1 6 5 ___7V?_
0 1 ’ 100
r 11 6 ,;0 { 9 9 . 7

i 53 i
~234
6 1 '

J l S l - L
640 1

_1.69.J_ 
i/3_ j 

" 7 ?  T

tiV-'i

t o  D 3] r  ■■j; d a  an<; !i ' .
881 __27________
96 6
/. 52
581
720

27
98

32 
r 37

ISA t 
66 0 1 

I _  148 I
- r  .n s  i

I_____ 835_l_
_ i___iv5 r

902 i

Li" 391 87 _______
8 613 9 9

5 7 3 742 _ 2 .3 __________
8» 9 AG 7 32 ___

~~9?> / '  * 0 . .....................
'■ •7 r.c.hoolri
... t e r  fo r u8ndi.cr*n i8tl ____

6 7 | 6)1 !.....  To
30 1 6 99 1 9 5

693__
972

r  5 5 3 \ 'A6 . ...
1 30

551 _ j___ 8.36___ T 38 _
550 I ___ 725-_____
T T  907___ L

VA.VTfS '.RRJR-
j __206 i
>____ 14 2 J_

’ j___ i i L i -
j ___357 I
"j 1 7.7 !

ij,U
__ 0 j 14 ?

30 1 9 .~;9
- j r i  A n  •

I 100
o r, s"I ___J.____£’JL

0,0 ‘ ~~̂ u>7oV | 6 20 T___22.

16 I ■jio I 93

13 3 1

T 751
204 i

2 9 3__I
1 6 r

600__ I ____Vi_
a '?a r  3 7 ..
2 20 1 ' 93_

TCTA1S

BAioy.iTM xi.___ _
83110'

r
CARV.-l IS. ...
C.U0V"
n.OYD JR. ____

9 ,2 7 9

11 l a  eh 

I 8 S3

t 2 2.1 I
'} 1 8

~yv~

BAIT)1.7. PJ>. -12<-__G, ifASiUhOTOU JR.
c / l  .V *  a ' . J ._____
HOUSTON [1 ...JJ.'-..
LOViila.SS 22..____

TOi'AhU

170 ^ 18,449

J1

i  t  c» T o ta l 7. B la c l

635
| —
' 1 , T93 4 6 .7

373 i 1 .0 5 8 64
0 i 22!. , ! 00

;~38 9 N  ,202 '

S\
*r>i

i 3 3 4 . 
7 l  ,**307

i 100 
1 i o .3

575 1 734 ! 2 1 .6
17 t 297 1
0 1 150 ! 100

" |“ 9 ,2 2 6  j 9 ,1 6 0

JIlMORJuroh
Blacl:

r
290 \
6 89 !

V ihtte

107

3; 3/___
IS,304

Total. % Black

397 73
J,»69 .... 62________

| _  Co~at.nl
Z L L i t f i E

i 350
730 I 1,171..J.

l S 7 ± j j L C . | .

33

437 i_ 
'2 3 3  1

875 | 1 . 31 2
"541 I > ?-9 j_____ XL

160 1____________
2Vf ! 1 ._32'..I H .5 9 3  1___1«_

■375~ 1 57 1 383 i___ 05.
” s 3 1  0 ' 353 i loo ..

540 
210"

391 1 o 7.d) ; 96

i 4 ,3 9 0  
1

B lac l

C \ a ' '  .
ok? ;- . D .w rs s r ,_
1 MIT UR SR. __ _
l,!::7. JR ._________

5 ,2 5 4  9 ,5 4 4

Total 7. Black

— .r 7o>s
SKi.iOR.incn

B la c k

>rcov. i ; L  1; 1. L i 11 
“  totat 1;

958 6
i  X > 
9 51

i 1,6 4 3 12
r~;

' 661. f: ̂ >27 .7.
3 91 T ~  61 I

3,3/3 14,550 [7

w if i :  Vl.Of ■u and C
782 1 1 ,139

" 1 ,031  1 1 ,571
383 593 .

Wit!, h e ! t  y r  c
14 806

5 ,3 9 8 9 ,7 6 3

r r j i

M h ite

4 52

99 439 6G0
1 9. S 0  3 8 1,426
/,'>/) sr/i 1,063
'’,0. ?
86.6

n •) ‘ 5 1 ,550
3 9 3 63

1 3,452 4,7 77

Tot. a 1