Petition for Writ of Certiorari to the US Court of Appeals for the Fifth Circuit

Public Court Documents
January 7, 1970

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Impact area
- Education
Topic
- Educational Equity
LDF Attorneys
Cooperating Attorneys
Organization
- LDF
Matter
- Alexander v. Holmes County Board of Education
Case
- Alexander v. Holmes County Board of Education
U.S. state
- Mississippi
Collection
- Case Files
Taxonomy
Identifier
- 06697d43-cf67-f011-bec2-6045bdd81421

Cite this item

Case Files, Alexander v. Holmes Hardbacks. Petition for Writ of Certiorari to the US Court of Appeals for the Fifth Circuit, 1970. 06697d43-cf67-f011-bec2-6045bdd81421. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/3ac67cd0-87b0-4689-9d38-8f7069de1472/petition-for-writ-of-certiorari-to-the-us-court-of-appeals-for-the-fifth-circuit. Accessed October 05, 2025.

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VOLUME I

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1969

HINDS COUNTY SCHOOL BOARD et als.,

Petitioners,

VS.

UNITED STATES OF AMERICA et als.,

Respondents.

(INCLUDING CONSOLIDATED CASES)

PETITION FOR WRIT OF CERTIORARI WITH MOTION

TO EXPEDITE HEARING

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JUDGE A. F. SUMMER

Attorney General of Mississippi

New Capitol Building

Jackson, Mississippi 39205

JOHN C. SATTERFIELD

SATTERFIELD, SHELL, WILLIAMS AND BUFORD

Post Office Box 466

Yazoo City, Mississippi 39194

Special Counsel for the Petitioners, as-

sociated with other attorneys of

record for the Petitioners in each of

the Consolidated Cases

E. L. MENDENHALL, INC., 926 Cherry Street, Kansas City, Mo. 64106, HArrison 1-3030

1-7-70—100

Volume I

MOTION-TO. ADVANCE ....looovininls wo siisbtidossidlen anemsss

PETITION FOR WRIT OF CERTIORARI ...............

. Judgment and Opinion Below

. Jurisdiction ..

. Questions Presented for Review

A. Constitutional Provisions

. Constitutional Provisions and Statutes Involved

B. Statutes Enacted by Congress under Section
5 of the Fourteenth Amendment to the Con-

stitution of the United States

Argument Amplifying the Reasons Relied On for
Allowance of the Writ of Certiorari ...................

1 The Decision of the Court of Appeals for the
Fifth Circuit Dated November 7, 1969, Mis-
construed and Improperly Implemented the
Decision of This Court Dated October 29,
1069, in Alexander «lh... oso soionenemincavsomeiszemen one

. The Decisions of the Court of Appeals in
These Consolidated Cases Dated November 7,
1969, and July 3, 1969, Conflict with Decisions
of the Court of Appeals of the Sixth Circuit
and the Decisions of the Courts of Appeal of
Other CIirClILs ...... ...ccomnescnmarommsraommessomsssssensuvenns

The Court of Appeals for the Fifth Circuit in
Its Decisions Dated November 7, 1969, and
July 3, 1969, Respectively, Has Applied Sec-
tion 1 of the Fourteenth Amendment to the
Administration of Public Schools So That It
Conflicts with Green, Raney, Monroe, Carr
anid CGriflin ..........cscosciestormisseniigasisiossassassenonowssabhmmnss

O
O

II INDEX

4. Section 1 of the Fourteenth Amendment, Con-
strued in Accordance with the “Appropriate
Legislation” Enacted by Congress under Sec-
tion 5 of Such Amendment, Does Not Require
Compulsory Integration of the Public Schools.
It Prohibits Compulsory Segregation Based
Hooh Bagel... in Sd aT

5. A Freedom of Choice Plan Properly Formu-
lated and Administered Fairly and Without
Discrimination, Which Permits Truly Free
and Uninfluenced Choice by Students and
Their Parents, Meets All Constitutional Guar-
antees. The Factors Utilized in the Judgment
of July 3 to Outlaw Freedom of Choice Are
Not Vestiges of the Dual System of Schools ...

6. The Application of a Disparate Rule to School
Systems “in This Circuit” Because of the
Former De Jure Character of the Earlier Sys-
tems Prior to Brown Amounts to a Judicial
Bill of Attainder and Denies Equal Treatment
Before the Law Required by the Constitution
of the Unite] States ol. lus. on bibiinmmms

7. The Petitioners Have Not Been Accorded Due
Process of Law. There Has Been No Hearing
on the Merits by Any Court nor Any Oppor-
tunity for the Litigants to Be Heard on the
Merits Through Their Attorneys ......cccoeee.........

Conclusion” lo. JF Bald dr 0 a ah a

Exhibit 2—Compilation from Reports to Department
of Health, Education and Welfare Described on Page
50 108ithe Pelition cu. omission sriilo iso iol ensibistitoneesn-

Exhibit 3--Chronology of Events .................................

Exhibit 4—Resume of Facts Concerning Four School
LB TS Cn

INDEX III

TABLE oF CASES

Adams v. Mathews, (1968) 403 F.2d 181 ......13, 20, 27, 28, 30
Alexander, et als. v. Holmes County Board of Educa-

tion, et als., (Supreme Court Docket Nos. 632 and
RL RA 6,7,13,21

Anthony v. Marshall Cty., (1969) 409 F.2d 1287 ............ 13

Armstrong v. Board of Education of the City of Birming-
hom, 333 W2A AT iii ii lini edi 24

Augustus v. Board of Public Instruction of Escambia
County, Florida, 3068 F.24:862 ...........cc. iit lieetidiness 24

Bell v. Gary, (7th Cir. 1963) 324 F.2d 209, cert. denied
STRODE Yo SRE nl LI Lo CRETE don LR on Sl 13

Broussard v. Houston Independent School District,
(May 30, 1968) 395 F.2d 817, petition for rehearing
en banc denied October 2, 1968, 403 F.2d 34 ........ 13, 43, 52

Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753,
89 L.Bd. 1083 (1953) .....c.coccecoccciecenecnneess 12, 22, 23, 43, 44, 48

Brown (II) v. Board of Education, 347 U.S. 483, 74
SCL 0306, 98 1. 0d, 873 ..cveeoiccarrents cinvsiusszssevseesots 12, 23, 44

Bush v. Orleans Parish School Board, et al., 308 F.2d
EE RT OR a SL A RR Ee 24

Carr v. Montgomery Cty., 23 1.Ed.2d 263 ....12, 16,22,23, 40

Clark v. Board of Education, (8th Cir. 1966, 1967) 369
F.2d 661, rehearing denied 374 F.2d 569 ............... 12-13, 45

Cooper v. Aaron, 353 U.S. 1,.3 L.Ed.2d 5 (1958) ............ 12,23

Davis v. Mobile Cty., Nos. 26886, 27491, 27260 (1969)
hon B23 ee ED

Deal v. Cincinnati, (6th Cir. 1966) 369 F.2d 35 _.12, 29, 30, 53

Downs v. Bd. of Ed. of Kansas City, (10th Cir. 1964)
336 F.2d 988, cert. denied 380 U.S. 914, 85 S.Ct. 898,
13 1.8324 800 (1965) rn 12, 46

Duvol Vv. Broxton, (1963) 402 B24 000 .........................-. 13

East Baton Rouge Parish School Board v. Davis, 287 F.2d
EL I Thee Fe Ee Ce ta RN he eo 23

IV INDEX

Freeman v. Gould, (8th Cir. 1969) 405 F.24 1153 ............ 12

Gaines v. Daugherty County Board of Education, 334
Le eG ES a OAL Le Te 24

Goss v. Knoxville, (6th Cir. 1969) 406 F.2d 1133
se JE Ren A EO 12, 23, 30, 45, 53

Graves Vv. Wolton Cty., (1963) 403 F.24 189 ........ ........ 13

Green v. New Kent Co., (U.S. Supr. Ct. 1963) 391 U.S.
430,20 1. Bd.2d 716... 12, 16, 28, 29, 40, 42, 43

Griffin. School Board, 377.U.S. 218 (1964) .................... 36

Hall v. St. Helena, No. 26450 (1969) ....... Pad... 0... 13

Hampton v. Choctaw Cty., No. 27297 (1969) ........ F.2d

Henry v. Clorksdole, (1969) 409 F.24 632 ....................... 13

Hovey v. Elliott, 167 11.5. 40%, 42. 1.04. 415 ................... 99

Louisiana State Board of Education, et al. v. Allen, et al.,
EL EE 0 HR BL sn a 23

Louisiana State Board of Education, et al. v. Angel, et
IAAL Lt I I ER i ee Lh 23

Mapp v. Bd. of Ed. of Chattanooga, Tenn., 373 F.2d 75
BLL Ne EI CL Sa i Sb le 12,53

Monroe v. Board of Commissioners of the City of Jack-
son, Tenn, (1067) 330 F.2d 935... 0. ......... 33

Monroe v. Jackson, Tenn., (U.S. Supr. Ct. 19638) 391
U.S. 450, 20 L..Ed.2d 744 ........ 12, 23, 26, 28, 40, 42, 43, 45, 53

Morgan v. United States, 304 U.S. 13,82 1.E4. 1129 ........ 60

Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed.
258 (1886)... a 23

Powell v. Alubomu, 287 U.S. 45, 77 1.E4. 138 ................ 60

Raney v. Gould, (U.S. Supr. Ct. 1968) 391 U.S. 433, 20
LT AA eR 12, 23, 28, 40, 42, 43

St. Helena Parish School Board, et al. v. Hall, 287 F.2d
TR RS Ee hE aT WL lL LU 23

Singleton v. Jackson Municipal Separate School Dis-
trict, No. 26285, opinion rendered December 1, 1969 .. 20

Springfield v. Barksdale, (1st Cir. 1965) 348 F.2d 261 .... 12

INDEX V

United States v. Board of Ed., Polk County, 395 F.2d

BO iiiieicccnniicansiiininnss iosieni cms oi Aa dh on citin un tausa is nnonR si russ anes 27

U.S.A. Vv. Baldwin Cty., No. 27281 (1969)......... B24... 13

U.S.A. v. Cook County, (7th Cir. 1969) 404 F.2d 1125
EE SRS RA LA SETA 12, 32, 46

U.S.A. v. Crisp, No. 27445 (1969) ........ F2d. ...... 13

U.S.A. v. Greenwood, (1963) 406 7.24 1036... i. ...... 13

US.A. v. Hinds Cty. Nos. 28030, 23042 (1969) ........
BI ce oe a irr 13,20, 30,:55

U.S.4. v. Indienola, (1969) 410. 1.2d 626. ........50.ccneemm.is 13

U.S.A. v. Jefferson County Board of Education, 372 F.2d
U.S.A. v. Jefferson, 380 F.2Q 385. .....cosexsecss 10, 26, 47, 54, 55, 60

U.S.A. v. Jefferson 111, No. 27444 (1969) ........ Fad... 13

U.S.A. v. Jefferson IV, No. 26584 (1969) ........ Pod... 13

B38 (CA 5, 1008)... conc osiesoise a divesssostsssenss Sieh 26, 27, 47

CONSTITUTIONAL PROVISIONS

AND STATUTES

Constitution of the United States—

Article], § IX, Close J ........c.cuismmnmomisinsmvesnnsossihinumsesbysne 10

Fifth AMENAMBHL .......icceomsnsomnnsesngsssssarpvinsessesstomnisssssrs on 10

Fourteenth Amendment. .........cccoiciim dommes 9,44, 45, 46, 48

Civil Rights Act of 1964—

Section 401 (b) (Public L. 88-352, Title IV, § 401, 78
Stat. 246, Title 42, § 2000c-(b), US.C.A.) ........ 10, 46, 47

Section 407 (Public L. 88-352, Title IV, § 407, 78 Stat.
249, Title 42, 3 2000c-6(a), USCA.) ..........-oee.... 11, 47

Section 410 (Public L. 88-352, Title IV, § 410, 78
Stat. 249, Title 42. $ 2000c-3, USCA) .............. 11, 47

Section 604 (Public L. 88-352, Title VI, § 604, 78 Stat.
253, Title 42. § 20004-3, USCA) .......... 11

Section 702 (Public L. 88-352, Title VII, § 702, 78
Stat. 255, Title 42, £ 2000e-1, USCA.) ................... 11

Public Low 90-557, 82 Sint, 969 ...........cccoreeioeniee..... 12, 47

VI INDEX

Volume II

Appendix A—

Opinion of the Court of Appeals of July 3, 1969 ........ Al

Modification of Order of the Court of Appeals of July
29, 1009 ......onii ie re dn he ses vaas Al0

Letter Directive of the Court of Appeals of June 25,
BOBY vr. icacrrovinsiosinmssaniessivis vermis sos mageis ibs iatonns dant rinsteoiesiansee Al2

Appendix B—

Order of Court of Appeals of November 7, 1969 ........ Al6

Appendix C—

Opinion and Judgment of United States Supreme
Court of: October: 29, .1960..........c.coovccuncncnvoscnnss. A23

Appendix D—

Order of Court of Appeals of October 31, 1969 ............ A25

Appendix E—

Order of Court of Appeals of December 1, 1969 ....... A27

Appendix F—

Proceedings of Pre-Order Conference .........cccconveeernn- A46

Appendix G—

Letter of November 4, 1969 re Proposed Order ........ A58

PLOPOSER OPOBE init r--retielle sions fosiinsoeismsasbasasn sess ams azoasin A60

Appendix H—

Opinion of the District Court Approving Freedom of
Choice Plans... al ee 303

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1969

HINDS COUNTY SCHOOL BOARD et als.,

Petitioners,

VS.

UNITED STATES OF AMERICA et als.,

Respondents.

(IncLUDING CONSOLIDATED CASES)

PETITION FOR WRIT OF CERTIORARI WITH MOTION

TO EXPEDITE HEARING

MOTION TO ADVANCE

Petitioners, by their undersigned counsel, move the

Court to advance consideration and disposition of this

case, and in support thereof would show that this case

presents an issue of national importance requiring prompt

resolution by this Court, for the reasons stated in the

annexed petition for writ of certiorari.

WHEREFORE, petitioners pray that the Court: 1)

consider this motion without delay; 2) shorten the time

for filing respondents’ response to 15 days; 3) consider

the petition as soon thereafter as possible; and 4) grant

certiorari and summarily reverse the judgment below or

set an expedited briefing schedule and advance the case

on the calendar for argument.

Respectfully submitted,

Junge A. F. SUMMER

Attorney General of Mississippi

New Capitol Building

Jackson, Mississippi 39205

JOHN C. SATTERFIELD

SATTERFIELD, SHELL, WILLIAMS AND BUFORD

Post Office Box 466

Yazoo City, Mississippi 39194

Special Counsel for the Petitioners,

associated with other attorneys of

record for the Petitioners in each of

the Consolidated Cases

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioners are the defendants and appellees in the

appeals to the Court of Appeals for the Fifth Circuit con-

solidated under Docket No. 28030 and Docket No. 28042,

which consolidated appeal includes actions pending in the

United States District Court for the Southern District of

Mississippi being entitled and numbered in that Court as

follows: United States of America, Plaintiff-Appellant, v.

Hinds County School Board, et al., Defendants-Appellees

(Civil Action No. 4075(J)); Buford A. Lee, et al., Plain-

tiffs-Appellees, v. United States of America, Defendant-

Appellant, v. Milton Evans, Third Party, Defendant-Ap-

pellee (Civil Action No. 2034(H)); United States of

America, Plaintiff-Appellant, v. Kemper County School

Board, et al., Defendants-Appellees (Civil Action No.

1373 (E)); United States of America, Plaintiff-Appellant,

v. North Pike County Consolidated School District, et al.,

Defendants-Appellees (Civil Action No. 3807 (J)); United

States of America, Plaintiff-Appellant, v. Natchez Special

Municipal Separate School District, et al., Defendants-Ap-

pellees (Civil Action No. 1120(W)); United States of

America, Plaintiff-Appellant, v. Marion County School

District, et al., Defendants-Appellees (Civil Action No.

2178(H)); Joan Anderson, et al., Plaintiffs-Appellants,

United States of America, Plaintiff-Intervenor-Appellant,

v. The Canton Municipal School District, et al., and The

Madison County School District, et al., Defendants-Appel-

lees (Civil Action No. 3700 (J) ); United States of America,

Plaintiff-Appellant, v. South Pike County Consolidated

School District, et al., Defendants-Appellees (Civil Action

No. 3984(J)); Beatrice Alexander, et al., Plaintiffs-Appel-

lants, v. Holmes County Board of Education, et al., De-

fendants-Appellees (Civil Action No. 3779(J)); Roy Lee

Harris, et al., Plaintiffs-Appellants, v. The Yazoo County

Board of Education, et al., Defendants-Appellees (Civil

Action No. 1209(W)); John Barnhardt, et al., Plaintiffs-

Appellants, v. Meridian Separate School District, et al.,

Defendants-Appetlees (Civil Action No. 1300 (E)); United

States of America, Plaintiff-Appellant, v. Neshoba County

School District, et al., Defendants-Appellees (Civil Action

No. 1396 (E)); United States of America, Plaintiff-Appel-

lant, v. Noxubee County School District, et al., Defendants-

Appellees (Civil Action No. 1372(E)); United States of

America, Plaintiff-Appellant, v. Lauderdale County School

District, et al., Defendants-Appellees (Civil Action No.

1367 (E) ); Dian Hudson, et al., Plaintiffs-Appellants, United

States of America, Plaintiff-Intervenor-Appellant, v. Leake

County School Board, et al., Defendants-Appellees (Civil

Action No. 3382(J)); United States of America, Plaintiff-

Appellant, v. Columbia Municipal Separate School, et al.,

Defendants-Appellees (Civil Action No. 2199 (H)); United

States of America, Plaintiff-Appellant, v. Amite County

School District, et al., Defendants-Appellees (Civil Action

No. 3983(J)); United States of America, Plaintiff-Appel-

lant, v. Covington County School District, et al., Defend-

ants-Appellees (Civil Action No. 2148 (H) ); United States

of America, Plaintiff-Appellant, v. Lawrence County

School District, et al., Defendants-Appellees (Civil Action

No. 2216 (H)); Jeremiah Blackwell, Jr., et al., Plaintiffs-

Appellants, v. Issaquena County Board of Education, et al.,

Defendants-Appellees (Civil Action No. 1096 (W)); United

States of America, Plaintiff-Appellant, v. Wilkinson County

School District, et al., Defendants-Appellees (Civil Action

No. 1160 (W)); Charles Killinsgworth, et al., Plaintiff-Ap-

pellants, v. The Enterprise Consolidated School District

and Quitman Consolidated School District, Defendants-Ap-

pellees (Civil Action No. 1302(E)); United States of

America, Plaintiff-Appellant, v. Lincoln County School

District, et al., Defendants-Appellees (Civil Action No.

4294(J)); United States of America, Plaintiff-Appellant,

v. Philadelphia Municipal Separate School District, et al.,

Defendants-Appellees (Civil Action No. 1368 (E)); United

States of America, Plaintiff-Appellant, v. Franklin County

School District, et al., Defendants-Appellees (Civil Action

No. 4256 (J)).

The petitioners pray that a Writ of Certiorari issue to

review the judgment of the United States Court of Appeals

for the Fifth Circuit dated and entered on November 7,

1969, and the original judgment dated and entered on July

3, 1969, as modified by such later judgment.

I. JUDGMENT AND OPINION BELOW

The original judgment with the opinion appended

thereto was dated and entered on July 3, 1969, a copy there-

of being attached as Appendix A, page Al. Included there-

with is Letter Directive of the Court of Appeals dated June

25, 1969. Thereafter, judgment was rendered by said court

on November 7, 1969, see copy thereof attached as Appendix

B, page Al16. Neither of said judgments have been re-

ported. Both judgments were entered in all of the twenty-

five cases consolidated in the Court of Appeals as Docket

No. 28,030 and Docket No. 28,042 and listed above.

II. JURISDICTION

The original judgment of the United States Court of

Appeals for the Fifth Circuit was dated and entered July 3,

1969. Opinion and mandate were issued on that date.

Petition for Rehearing in Banc was filed in the said Court

of Appeals in accordance with and within the time limited

by the Federal Rules of Appellate Procedure, being filed on

July 16, 1969. Such Petition for Rehearing in Banc was

overruled on October 9, 1969. Such judgment and Petition

for Rehearing in Banc applied to all of the twenty-five

cases as to which this Petition for Writ of Certiorari is filed

and which are captioned as stated above.

This is the first appearance in the Supreme Court of

the United States of any of the parties to sixteen of the

above suits, being all of the above listed actions in which

the United States of America was the only plaintiff-appel-

lant in the lower courts. Nine of the above captioned

cases’ were included in the Writ of Certiorari to the

United States Court of Appeals directed to the amendatory

order dated August 28, 1969, and docketed as Beatrice

Alexander, et als., Petitioners, v. Holmes County Board of

Education, et als., Respondents, No. 632 upon the docket of

the October, 1969, term of this Court. Such petition and

writ affected solely the order dated August 28, 1969, chang-

ing the time table included in the mandate under the opin-

ion and judgment dated July 3, 1969.

On October 29, 1969, this Court entered a judgment

vacating the order of said Court of Appeals dated August

28, 1969, insofar as it affected the nine cases included in

1. The nine cases included in Alexander, Docket Nos. 632
and 713 in this Court, are (District Court docket numbers in-
cluded for clarity): Beatrice Alexander, et als. v. Holmes County
Board of Education, et als. (District Court Docket No. 3779); Joan
Anderson, et als., United States of America v. Canton Municipal
School District, et als., and Madison County School District, et
als. (No. 3700); Roy Lee Harris, et als. v. Yazoo County Board of
Education, et als. (No. 1209); John Barnhardt, et als. v. Meridian
Separate School District, et als. (No. 1300); Dian Hudson, et als.,
United States of America v. Leake County School Board, et als.
(No. 3382); Jeremiah Blackwell, Jr., et als. v. Issaquena County
Board of Education, et als. (No. 1096); Charles Killingsworth,
et als. v. Enterprise Consolidated School District and Quitman
Consolidated School District, (No. 1302); United States of America,
George Magee, Jr. v. North Pike County Consolidated School Dis-
trict, et als. (No. 3807); United States of America, George Williams,
et als. v. Wilkinson County School District, et als. (No. 1160).

the writ of certiorari. A copy of the opinion and judgment

of this Court is attached hereto as Appendix C, page A23.

Petition for Rehearing thereof was filed in this Court on

November 22, 1969, and was overruled by this Court on

December 8, 1969.

Upon remand the said Court of Appeals entered an or-

der on October 31, 1969, vacating its order of August 28,

1969, as to all twenty-five of the consolidated cases, a copy

thereof being attached hereto as Appendix D, page A25.

Thereafter on November 7, 1969, the Court of Appeals

for the Fifth Circuit entered an opinion and judgment in

all of the twenty-five consolidated cases, copy of which is

attached hereto as Appendix B, page Al6. Petition for Re-

hearing in Banc by the Court of Appeals for the Fifth

Circuit of said judgment dated November 7, 1969, was filed

on November 20, and was denied by said court on Decem-

ber 5, 1969.

The decision of this Court dated October 29, 1969, in-

volved only “the Court of Appeals’ order of August 28,

1969”, which amended the original judgment of the Court

of Appeals dated July 3, 1969. This Court did not have

before it the original judgment of July 3, 1969, and the order

and mandate of this Court affected only the order dated

August 28, 1969, which changed a schedule of procedure

which had been set up by the Court of Appeals (pp. A23-

A24).

A Cross-Petition for Writ of Certiorari was filed by the

respondents to the Petition in Alexander v. Holmes County

Board of Education, and docketed as No. 713 on the docket

of this Court. It was filed on October 8 when there was

still pending before the Court of Appeals for the Fifth Cir-

cuit Petition for Rehearing in Banc as recited above and

as recited on page 29 of such Cross-Petition for Writ of

Certiorari. As the Petition for Writ of Certiorari in Cause

No. 632 was directed solely to the order dated August 28,

1969, and the Petition for Rehearing in Banc of the judg-

ment dated July 3, 1969, was pending, the Cross-Petition

was peremptorily denied by this Court the day after it was

filed under Rule 21(3) and Rule 20 of the Rules of this

Court.

The jurisdiction of this Court is invoked under the pro-

visions of 28 U.S.C. Section 1254 (1).

III. QUESTIONS PRESENTED FOR REVIEW

1. Does the decision of the Court of Appeals for the

Fifth Circuit dated November 7, 1969, properly construe

and implement the decision of this Court dated October 29,

1969, in the nine consolidated cases entitled Beatrice Alex-

ander, et als., Petitioners, vs. Holmes County Board of

Education, et als., Respondents, Docket No. 632 in the Oc-

tober, 1969, term of this Court?

2. Do the decisions of the Court of Appeals for the

Fifth Circuit in these consolidated cases dated November

7, 1969, and July 3, 1969, conflict with the decisions of the

Court of Appeals of the Sixth Circuit and the decisions of

the Courts of Appeals of other Circuits?

3. Has the Court of Appeals of the Fifth Circuit in its

decisions dated November 7, 1969, and July 3, 1969, re-

spectively, applied Section 1 of the Fourteenth Amendment

to the administration of public schools so that it has de-

cided a Federal question in a way which conflicts with

applicable decisions of this Court, or so as to determine

important questions of Federal law which have not been,

but should be, settled by this Court?

4. Does Section 1 of the Fourteenth Amendment, con-

strued in accordance with the “appropriate legislation” en-

acted by Congress under the provisions of Section 5 of such

Amendment, require compulsory integration of the public

schools?

5. Is a freedom of choice plan a proper vehicle to set

up and maintain schools conforming to all constitutional

guarantees, where such plan is properly formulated, com-

plies with all requirements laid down by the courts, is ad-

ministered fairly and without discrimination, and which

permits truly free and uninfluenced choice by students and

their parents? If so, what are the vestiges of a dual system

which must be eradicated in order to maintain a freedom

of choice plan?

6. Does the application of a disparate rule to school

systems “in this Circuit” because of the former de jure

character of the early systems prior to Brown amount to a

judicial Bill of Attainder or ex post facto law or does it

deny equal treatment before the law required by the Con-

stitution of the United States?

7. Have each of the petitioners been accorded due

process of law as required by the Fifth Amendment to the

Constitution of the United States by the rendition of the

judgment dated July 3, 1969, and the rendition of the judg-

ment dated November 7, 1969?

IV. CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED

The following are the constitutional provisions and

statutes involved:

A. Constitutional Provisions

Fourteenth Amendment to the Constitution of the United

States:

Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State
wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or im-
munities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.

Section 5. The Congress shall have power to enforce,
by appropriate legislation, the provisions of this ar-
ticle.

Fifth Amendment to the Constitution of the United States:

No person shall be held to answer for a capital, or other-
wise infamous crime, unless on a presentment or in-
dictment of a Grand Jury, except in cases arising in
the land or naval forces, or in the Militia, when in
actual service in time of War or public danger; nor
shall any person be subject for the same offense to be
twice put in jeopardy of life or limb; nor shall be com-
pelled in any Criminal Case to be a witness against
himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property
be taken for public use, without just compensation.

Article I, § IX, Clause 3 of the Constitution of the United

States:

3. No Bill of Attainder or ex post facto Law shall be
passed.

B. Statutes Enacted by Congress under Section 5 of the
Fourteenth Amendment to the Constitution of the

United States

Civil Rights Act of 1964, Subchapter IV.

Public Education

Section 401 (b) of the Civil Rights Act of 1964, being

Public L. 88-352, Title IV, § 401, July 2, 1964, 78 Stat. 246,

and appearing as Title 42, Section 2000c-(b), U.S.C.A.:

“Desegregation’” means the assignment of students to

public schools and within such schools without regard

to their race, color, religion, or national origin, but

“desegregation” shall not mean the assignment of stu-
dents to public schools in order to overcome racial

imbalance.

Section 410 of the Civil Rights Act of 1964, being

Public L. 88-352, Title IV, § 410, July 2, 1964, 78 Stat. 249,

and appearing as Title 42, Section 2000c-9, U.S.C.A.:

Nothing in this subchapter shall prohibit classification

and assignment for reasons other than race, color, re-
ligion, or national origin.

Section 407 of the Civil Rights Act of 1964, being Pub.

L. 88-352, Title IV, § 407, July 2, 1964, 78 Stat. 249, ap-

pearing as Title 42, Section 2000c-6 (a), U.S.C.A.:

. . . provided that nothing herein shall empower any
official or court of the United States to issue any

order seeking to achieve a racial balance in any school
by requiring the transportation of pupils or students
from one school to another or one school district to
another in order to achieve such racial balance or other-
wise enlarge the existing power of the court to insure
compliance with constitutional standards.

Civil Rights Act of 1964, Subchapter V.
Federally Assisted Programs

Section 604 of the Civil Rights Act of 1964, being

Pub. L. 88-352, Title VI, § 604, July 2, 1964, 78 Stat. 253,

and appearing as Title 42, § 2000d-3, U.S.C.A.:

Nothing contained in this subchapter shall be con-

strued to authorize action under this subchapter by
any department or agency with respect to any em-

ployment practice of any employer, employment

agency, or labor organization except where a primary

objective of the Federal financial assistance is to pro-

vide employment.

Civil Rights Act of 1964, Subchapter VI.

Equal Employment Opportunities

Section 702 of the Civil Rights Act of 1964, being Pub.

L. 88-352, Title VII, § 702, July 2, 1964, 78 Stat. 255, and

appearing as Title 42, Section 2000e-1, U.S.C.A.:

This subchapter shall not apply to an employer with

respect to the employment of aliens outside any State,
or to a religious corporation, association, or society

with respect to the employment of individuals of a

particular religion to perform work connected with

the carrying on by such corporation, association, or
society of its religious activities or to an educational

institution with respect to the employment of indi-

viduals to perform work connected with the educa-

tional activities of such institution.

Public Law 90-557, 82 Stat. 969, Which Includes
the Appropriation for the Departments of Health,

Education, and Welfare and Labor

The section relating to elementary and secondary edu-

cation contains the following prohibition:

No part of the funds contained in this Act may be
used to force bussing of students, abolishment of any

school or to force any student attending any elementary
or secondary school to attend a particular school

against the choice of his or her parents or parent in

order to overcome racial imbalance.

For the convenience of the Court we list references

to the several decisions of this Court and other courts

which will be referred to from time to time by name? All

2. Green V. New Kent Co., (U.S. Supr.. Ct. 1968) 391 U.S.
430, 20 1.Ed.2d 716; Monroe v. Jackson, Tenn., (U.S. Supr. Ct.
1968) 391 U.S. 450, 20 L.Ed.2d 744; Raney Vv. Gould, (U.S. Supr.
Ct. 1968) 391 U.S. 433, 20 L.Ed.2d 727; Brown v. Board of Educa-
tion, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955); Brown (II)
Vv. Bd. of .Ed., 347 U.S, 483, 74 S.Ct. 6386, 93 L.Ed. 373; Corr Vv.
Montgomery Cty., 23 L.Ed.2d 263; Cooper v. Aaron, 358 U.S. 1,
3 L.BEd.2d 5 (1953).

Goss v. Knoxville, (6th Cir. 1969) 406 F.2d 1183; Freeman V.
Gould, (8th Cir. 1969) 405 F.2d 1153; U.S.4. Vv. Cook County, (7th
Cir. 1969) 404 F.2d 1125; Deal v. Cincinnati, (6th Cir. 1966) 369
F.2d 35; Springfield v. Barksdale, (1st Cir. 1965) 348 F.24 261;
Downs v. Bd. of Ed. of Kansas City, 336 F.2d 988 (10th Cir. 1964),
cert. denied 380 U.S. 914, 85 S.Ct. 898, 13 L.Ed.2d 800 (1965);
Mapp Vv. Bd. of Ed. of Chattanooga, Tenn., 373 F.24 75 (1967);
Clark v. Board of Education, (8th Cir. 1966, 1967) 369 F.2d 661,

emphasis in this petition is ours unless otherwise indicated.

This Petition for Writ of Certiorari is filed in two vol-

umes, the appendices including decisions and opinions of

this Court, the Court of Appeals for the Fifth Circuit and

the District Court here, together with certain pertinent

proceedings in these causes, being bound separately as

Volume II of this Petition. There are on file with the

Clerk of this Court forty printed copies of Volume II of

the Response to Petition for Writ of Certiorari in nine of

these cases docketed as Cause No. 632, Alexander v. Holmes

County Board of Education, and the Cross-Petition for

Writ of Certiorari in such proceeding docketed as Cause

No. 713. To avoid prolixity and for the convenience of

the Court, said Volume II containing Appendices 1 through

rehearing denied 374 F.2d 569; Bell v. Gary, (7th Cir. 1963) 324
F.2d 209, cert. denied 377 U.S. 924; Broussard v. Houston Independ-
ent School District, May 30, 1968, 395 F.2d 817, Petition for Re-
hearing en banc (in the light of Green, Monroe and Raney) denied
October 2, 1968, 403 F.2d 34.

Adams v. Mathews, No. 26545, August 20, 1968, Judges Wisdom,
Goldberg and Morgan, 403 F.2d 181; Duval v. Braxton, No. 25479,
August 29, 1968, Judges Wisdom, Coleman and Rubin, 402 F.2d
900; Graves v. Walton Cty., No. 26452, September 24, 1968, Judges
Wisdom, Goldberg and Morgan, 403 F.2d 189; U.S.A. v. Greenwood,
No. 25714, February 4, 1969, Judges Brown, Thornberry and Tay-
lor, 406 F.2d 1086; Henry v. Clarksdale, No. 23255, March 6, 1969,
Judges Wisdom, Thornberry and Cox, 409 F.2d 682; U.S.A. v.
Indianola, No. 25655, April 11, 1969, Judges Dyer, Simpson and
Cabot, 410 F.2d 626; Anthony v. Marshall Cty., No. 26432, April
15, 1969, Judges Ainsworth, Simpson and Mitchell, 409 F.2d 1287;
Hall v. St. Helena, No. 26450, May 28, 1969, Judges Brown, God-
bold and Cabot; ........ P24 .....; Davis v.:- Mobile Cty., Nos. 2638386,
27491, 27260, June 3, 1969, Judges Brown, Dyer and Hunter, ________
B24 2. ; USA. Vv. Jefferson I11, No. 27444, June 26, 1969, Judges
Bell, Goldberg and Atkins, ..... Pod. .... : Hampton v. Choctaw
Cty., No. 27297, June 26, 1969, Judges Wisdom, Carswell and
Roberts, tec F.2d fathisy - Choctaw Cty. v. US.A., No. 25639, June
26, 1969, Judges Wisdom, Carswell and Roberts, lke EF 2d’ ee
USA. v. Jefferson IV, No. 26584, July 1, 1969, Judges Wisdom,
Bell and Godbold, ...... E24... 7 S.A. Hinds Cty., Nos. 28030,
28042, July 3, 1969, Judges Brown, Thornberry and Morgan, os
2d... lls 3A v Crisp, No. 27446, July 3, 1969, Judges Wisdom,
Morgan and Davis, ....... F.2d : U.S.A. v. Baldwin Cty., No.
27281, July 9, 1969, Judges Wisdom, Carswell and Roberts,
F248 -......s

4 is made a part hereof by reference. In directing the

Court’s attention to the original appendices thus filed, the

references will be “Orig. App. p. -....-.. 2

V. ARGUMENT AMPLIFYING THE REASONS
RELIED ON FOR ALLOWANCE OF THE

WRIT OF CERTIORARI

1. The Decision of the Court of Appeals for the Fifth
Circuit Dated November 7, 1969, Misconstrued and
Improperly Implemented the Decision of This Court
Dated October 29, 1969, in Alexander.

The Per Curiam order of this Court dated October 29,

1969, attached as Appendix C, page A23, granted a very

broad discretion to the Court of Appeals for the Fifth Cir-

cuit. Such discretion is stated as follows, p. A24:

The clause which further describes this broad discretion

is as follows:

. . insofar as those recommendations insure a totally
unitary school system for all eligible pupils without
regard to race or color.

In the prior paragraph this Court directed the Court of Ap-

peals to issue its decree and order, effective immediately,

declaring that these school districts:

(a) ...no longer operate a dual school system based
on race or color, and

(b) . . . begin immediately to operate as unitary
school systems within which no person is to be ef-
fectively excluded from any school because of race or

color.

This Court did not, in this particular order, define a

“dual school system based on race or color”. It did define

a unitary school system as being one “within which no per-

son is to be effectively excluded from any school because

of race or color”. :

It is crystal clear that the Court of Appeals had the

authority to require the schools to accept any part of the

August 11, 1969, recommendations of HEW. It is also

crystal clear that any part put into effect might be “with

any modifications which the Court may deem proper”.

We feel it is inescapable that this Court would not have

referred to “any part” nor authorized “any modifications

which the Court may deem proper” if it had been intended

to prohibit the Court of Appeals from using only a part of

a HEW plan. This would include the use of alternate

steps, although they may have been called “interim steps”.

A terminal plan may go into effect immediately, at once,

now, today, whether it includes one or two or more steps.

The Per Curiam order either overlooked the fact that

the HEW plans had never been considered by any court

nor had any hearing been held concerning them by any

court, or assumed that the Court of Appeals would provide

due process of law. It granted this additional discretion, p.

A24:

The Court of Appeals may make its determination and
enter its order without further arguments or submis-
sions.

The Per Curiam order further provided that while the

school systems were being operated as unitary systems un-

der the order entered by the Court of Appeals, p. A24:

. . . the District Court may hear and consider objec-
tions thereto or proposed amendments thereof, pro-
vided, however, that the Court of Appeals’ order shall

be complied with in all respects while the District
Court considers such objections or amendments, if any
are made. No amendment shall become effective be-
fore being passed upon by the Court of Appeals.

The Court of Appeals misconstrued and misapplied the

Per Curiam order, holding (a) that the order required it to

enter the full HEW final and permanent plans without per-

mitting any alternate or interim steps except in the case of

three school districts; (b) that “meaningful and immedi-

ate progress toward disestablishing state-imposed segre-

gation” is not enough—complete compulsory integration

must be effectuated in a matter of weeks; (c) that such

action be taken without permitting any judicial hearing

of any kind either of evidence or argument on the merits

or submission of briefs; (d) that no modifications to the

plans nor hearing thereasto should be held by the District

Court “before March 1, 1970, and any such suggestion or

request shall contemplate an effective date of September,
1970”, pp. A20-A21.

One problem here had its genesis in the interpretation

placed upon words used in Green that a plan “promises”

to work “now”. The construction of Green inherent in the

November 7th order necessarily interprets the word “now”

to mean either something accomplished in the past and ex-

isting today or something to be accomplished today by the

stroke of a pen or by the entry of an order. This construc-

tion is wholly inconsistent with the word, “promises”.

It is contradictory to Green, as recognized and rein-

forced by Carr. In Carr the Court said that “as stated in

Green v. County School Board, supra, 391 U.S. at 439:”

It is incumbent upon the school board to establish that
its proposed plan promises meaningful and immediate
progress toward disestablishing state-imposed segre-
gation. It is incumbent upon the district court to

weigh that claim in light of the facts at hand and in
light of any alternatives which may be shown as feasi-
ble and more promising in their effectiveness.”

Furthermore, this Court said in Carr that an effort

should be made by the school authorities and the courts to

“expedite the process of moving as rapidly as practical to-

ward the goal of a wholly unitary system of schools, not

divided by race as to either students or faculty”.

The presiding Judge would not permit presentation of

any evidence nor any oral or written argument except for a

few questions concerning relatively minor details of the

plans. At the “pre-order conference” which was held on

Thursday, November 6, after oral notification to attorneys

for the petitioners by telephone and otherwise on Monday,

November 3, the order which had been drafted by the

panel was discussed from the bench. The proceedings

were limited by the presiding Judge as follows:

(p. A46) Ladies and gentlemen, we have called this
pre-order conference today for the purpose of making
some announcements and also to exchange views.
After we make some statements, we want everyone
to feel free to ask questions. We don’t intend to have
any legal arguments, as such, but we do think it would
be well for anyone that has questions, that you feel free
to make such inquiries as you may have. . ..

(p. A47) We have also studied the Supreme Court de-
cision in these cases and we are of the view that ac-

tion is required, and immediate action... .

(p. A48) We have prepared a draft order, it is not a
final Order. We hope to put the Order out tomorrow.
We did not want to put an order out until we had this
conference and we want to tell you generally what is
in the order now so that you will be advised as to
what questions you may wish to pose.

(pp. A48-A49) Now, we are going on then, and we

say to effectuate the conversion of these school systems

to unitary school systems within the context of the
Supreme Court order the following things have to be
done and then generally we are putting into effect
in every case, except the ones I will tell you about,
the recommended plan of the Office of Education,
HEW. And that is a permanent plan and not the in-
terim plan.

There appear in this appellate record a copy of each

of the thirty desegregation plans filed on August 11, 1969

by HEW. The Secretary of Health, Education, and Wel-

fare was mot permitted by the Court to withdraw such

plans nor to perfect them. They were put into effect as a

part of the judgment of November 7 without any hearing

in any court, without any opportunity of any testimony by

any party, without any opportunity of argument on the

merits either oral or written by any court at any level of

the federal judicial system.

In order not to burden this Petition, we attach as Ex-

hibit 1 hereto copies of material provisions of typical plans.

With a few minor exceptions, these “plans” were simply

a mathematical calculation of the number of students in

each school with a compulsory assignment of students to

attain as nearly as possible racial balance. The plans re-

quired that this be done either by individual assignment to

attain stated numbers, by pairing of grades, by pairing of

schools, by revisions in transportation (i.e., by bussing)

and, in a few instances, by zoning to obtain a numerical

racial result without regard to geographic location of the

lines. This is doubtless the major reason that the Secre-

tary of Health, Education and Welfare, acting in his official

capacity, contracted that if these plans were put into ef-

fect as drawn they must:

. . surely, in my judgment, produce chaos, confusion
and a catastrophic educational set-back to the 135,700
children, black and white alike, who must look to the

222 schools of these 33 Mississippi districts for their only

available educational opportunities.

The November 7 judgment mandated (pp. A19, A22):

No later than December 31, 1969, the pupil attendance
patterns and faculty assignments in each district shall
comply with the respective plans.

These judgments entered by the Court of Appeals con-

flict with the decisions of other Circuits, violate the de-

cisions of this Court, and depart from recognized judicial

precedents by requiring:

(a) Immediate compulsory integration of all teachers

and other staffs to a racial balance by the following pro-

vision in each plan, Exhibit 1, p. 65, infra:

For the 1969-70 school year the district shall assign
the staff described above so that the ratio of Negro
to white teachers in each school, and the ratio of other
staff in each, are substantially the same as each such
ratio is to the teachers and other staff, respectively,
in the entire school system.

(b) Compulsory integration by assignment of stu-

dents through either pairing, zoning or direct assignment

to approach a racial balance as nearly as can be accom-

plished in available facilities, with busing of students in

order to obtain such compulsory integration. This is dem-

onstrated by a mere glance at the “pupil attendance pat-

terns” contained in the “Composite Building Information

Form” attached as a part of Exhibit 1 hereto. The other

plans followed similar patterns.

in every school district, regardless of whether or not such

district had achieved a unitary school system and had

abolished all vestiges of the prior dual school system.

(d) By applying in these cases the rule first proposed

in Jefferson II (but not then implemented) that the Four-

teenth Amendment imposes a different and more stringent

duty upon states “in this Circuit” or states formerly main-

taining a de jure segregated school system than that which

it imposes upon states or school systems in which de

facto segregation exists.

(e) That the school boards comply with a “constitu-

tional duty” to balance the races in the schools in con-

formity with some mathematical formula.

(f) That all freedom of choice plans be abolished

(under the dicta first announced in Adams and repeated

in Hinds County) even though such plans are properly

and constitutionally formed and administered if in a school

district (1) there are all-Negro schools, or (2) only a small

fraction of Negroes have enrolled in white schools, or (3)

no substantial integration of faculties and school activities

has taken place, upon the legal assumption that each of

these factors constitutes a vestige of the dual school sys-

tem.

(g) That jurisdiction in these causes shall be divested

from the United States District Court for the Southern

District of Mississippi and vested in the Court of Appeals

for the Fifth Circuit as to all matters and proceedings which

“contemplate an effective date” prior to September, 1970,

and that no pleadings suggesting modifications of any

plans may be filed in such District Court prior to March 1,

1970.

That the Court of Appeals of the Fifth Circuit con-

strued the Per Curiam opinion in Alexander to mandate the

judgment it entered is demonstrated beyond the shadow of

a doubt by that Court’s opinion in the cases heard and dis-

posed of as Singleton v. Jackson Municipal Separate School

District, No. 26285, opinion rendered December 1, 1969, not

yet reported. As such case is now on the docket of this

Court upon Petition for Writ of Certiorari, we will quote

extracts from that opinion, demonstrating the erroneous

construction of Alexander by the Court of Appeals (pp. 8,

9, 10, 22 and 23 of the slip opinion):

Following our determination to consider these cases
en banc, the Supreme Court handed down its decision
in Alexander v. Holmes County Board of Education,
1969... Us... ,908Ct........ , 24 L.LEd.2d 19. That
decision supervened all existing authority to the con-
trary...

Because of Alexander v. Holmes County, each of the
cases here, as will be later discussed, must be con-
sidered anew, either in whole or in part, by the dis-
{rict courts... ..

Despite the absence of plans, it will be possible to
merge faculties and staff, transportation, services,
athletics and other extra-curricular activities during
the present school term. . . .

To this end, the district courts are directed to require
the respective school districts, appellees herein, to re-
quest the Office of Education (HEW) to prepare plans

for the merger of the student bodies into unitary sys-
fems. .,"

No. 28407—Bibb County, Georgia

. . . It is sufficient to say that the district court here
has employed bold and imaginative innovations in
its plan which have already resulted in substantial de-
segregation which approaches a unitary system. We
reverse and remand for compliance with the require-

ments of Alexander v. Holmes County and the other
provisions and conditions of this order. . .

No. 27863—Bay County, Florida

This system is operating on a freedom of choice plan.
The plan has produced impressive results but they fall

short of establishing a unitary school system.

We reverse and remand for compliance with the re-
quirements of Alexander v. Holmes County and the
other provisions and conditions of this order.

No. 27983—Alachua County, Florida

This is another Florida school district where impres-
sive progress has been made under a freedom of choice
plan. The plan has been implemented by zoning in
the elementary schools in Gainesville (the principal
city in the system) for the current school year. The
results to date and the building plan in progress should
facilitate the conversion to a unitary system.

We reverse and remand for compliance with the re-
quirements of Alexander v. Holmes County and the
other provisions and conditions of this order.

The November 7 judgment violates all the applicable

decisions of this Court from Brown I to this date by di-

vesting the district court of all jurisdiction from the date

of its entry to September 1970.

Such judgment violates Carr, in which this court sus-

tained the order of the district court concerning faculty

integration, for the reason that the racial ratio of one to

six teachers was found to be reasonable and that the

objective of a ratio in each school comparable to the ratio

in the entire school system was not required immediately,

but was set up as a goal to be accomplished as soon as

possible consistent with realistic administration of the

schools.

The Courts have overlooked the fact that “all deliber-

ate speed” was of judicial origin. The Court of Appeals

of the 5th Circuit held as late as 1965 and 1966 that ex-

tension of “freedom of choice” at the rate of four grades a

year resulted in the school district being “fully desegre-

gated”. The record shows that freedom of choice has al-

ready been extended to every grade in every school district

here.

We briefly trace the development of the rules laid

down by the Court of Appeals of the Fifth Circuit under

Brown I, Brown II, Cooper, Goss, Watson, Green, Monroe,

Raney, Carr and other cases. It is of vital importance to

remember that “hindsight is better than foresight”. The

Petitioners are urging that there be imposed “a judicial Bill

of Attainder” against school officials throughout the na-

tion and particularly within this Circuit.

Looking back over the years, we see that the over-

ruling of Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138,

41 L.Ed. 256 (1896), and the myriad of supporting cases

has been broadened rather than narrowed. However, the

Court will take judicial notice of the fact that when there

is a revolutionary departure from Constitutional con-

struction which had been accepted for many generations,

it is reasonable for all citizens to await the gradual develop-

ment of decisional law in order to determine the exact

and true meaning of the broad principles originally an-

nounced.

On February 9, 1981, after Brown I, Brown HU,

Cooper and succeeding cases clarified the new Constitu-

tional principles, a group of cases was decided by the Court

of Appeals of the Fifth Circuit. These cases were St.

Helena Parish School Board, et.al. v. Hall, 287 P.24 376;

East Baton Rouge Parish School Board v. Davis, 287 F.2d

380; Louisiana State Board of Education, et al. v. Allen,

et al., 287 F.2d 32; and Louisiana State Board of Educa-

tion, et al. v. Angel, et al., 287 F.2d 33. These cases enjoined

the school boards from requiring racial segregation in pub-

lic schools but did not set up any time limit or schedule

of “desegregation”.

Then on July 24, 1962, the Fifth Circuit handed down

its decision in Augustus v. Board of Public Instruction of

Escambia County, Florida, 306 F.2d 862. In that decision

the Court found that the Board must amend its plan to

provide for one grade per year desegregation.

Again in August of 1962 the Court of Appeals of the

Fifth Circuit in Bush v. Orleans Parish School Board, et al.,

308 F.2d 491, held that a policy of desegregation of one

grade per year was proper and Constitutionally sufficient.

The District Court had earlier withdrawn an order for

desegregation of the first six grades by the fall of 1962.

The Board presented a long-range plan providing for

a grade a year desegregation and for redistricting of at-

tendance areas in future years. This long-range plan was

approved by the Court.

After approving several plans extending freedom of

choice to one grade each year, on June 18, 1964 the Fifth

Circuit handed down its decision in Armstrong v. Board

of Education of the City of Birmingham, 333 F.2d 47,

where the Court required desegregation to proceed at the

rate of two grades per year so as to accomplish complete

desegregation within six years, i.e., by 1970.

Then on July 31, 1964, the Fifth Circuit again took up

the case of Gaines v. Daugherty County Board of Educa-

tion; the opinion following this consideration is reported

in 334 F.2d 983. As a result of the Calhoun decision by the

Supreme Court, the Fifth Circuit directed the District Court

to enter an order in Gaines requiring immediate total deseg-

regation of vocational schools by giving any pupil the

choice of attending either the formerly Negro or formerly

white vocational school. Freedom of choice for the fall of

1964 for all children in the first, second and twelfth grades

and desegregation in the same manner of two additional

grades each year above the second grade and one additional

grade below the twelfth so that total desegregation would

be accomplished in four years.

During the years 1964, 1965, 1966 and 1967, the school

officials throughout the Fifth Circuit were looking to the

Court of Appeals for guidance and direction as to those ac-

tions which should be taken by them in order to be in

obedience to Constitutional principles. Through hindsight,

the Civil Rights activists are attempting to lay all blame

upon these officials for not having not only accomplished

desegregation as now required by the decisions of the

courts, but also for not having brought about many years

ago total integration or mixing of students.

It is both intriguing and alarming to observe the

change in terminology by the Court. At the time of

Brown, the constitutional safeguards were held to prohibit

“racial discrimination by segregation of the races in public

schools”. It was then found desirable to describe the con-

stitutional mandate as requiring “desegregation” of the

schools as distinguished from “compulsory integration”. As

the meanings of words were changed and the objectives

sought were disclosed, the removal of “racial imbalance”

or the attainment of “racial balance” has been changed to

compulsory action by public authorities so that schools and

faculties “are not identifiable as being maintained for mem-

bers of one race” (no consideration is given to the existence

of schools which are “identifiable as being attended by stu-

dents of one race”). Now the true and original meaning

of the term “a mondiscriminatory, unitary school system”

has been changed to mean (in fact if not in words) to

“a wholly racially integrated school system” resulting

from compulsory action by federal, state or local authori-

ties,

Finally, we now see the words “compulsory integra-

tion” changed to the word “merger”. Now, to compel ra-

cial integration, to assign students solely on the basis of

race, to remove racial imbalance or to attain racial balance,

is simply to “merge student bodies” or to “merge faculties

and staff’. We can never underestimate the power of

words.

But we must not forget that the use of governmental

force is legal compulsion which destroys the freedom of

those to whom it is applied.

2. The Decisions of the Court of Appeals in These Con-
solidated Cases Dated November 7, 1969, and July 3,
1969, Conflict with Decisions of the Court of Appeals
of the Sixth Circuit and the Decisions of the Courts
of Appeal of Other Circuits.

The decisions of November 7 and July 3 are bottomed

upon rules of law announced but not enforced in Jefferson

I and Jefferson II. The majority opinion in Jefferson I

covers sixty-nine pages of the Federal Reporters. The

majority and concurring opinions in Jefferson II cover four-

teen pages of the Federal Reporter. Because of the ex-

tended discussion of the many constitutional and legal

principles involved, these opinions may be considered “all

things to all men”, as pointed out in the dissenting opin-

ions. The judgments of July 3 and November 7 here have

finally judicially put into effect the construction of Jeffer-

son I by the Court of Appeals of the Sixth Circuit con-

tained in Monroe (decided June 21, 1967):

We are asked to follow United States v. Jefferson
County Board of Education, 372 F.2d 836 (CA 5, 1966),
which seems to hold that the pre-Brown biracial states
must obey a different rule than those which desegre-
gated earlier or never did segregate. This decision
decrees a dramatic writ calling for mandatory im-
mediate integration. . . . But to the extent that United

- States v. Jefferson County Board of Education, and the
decisions reviewed therein, are factually analogous and
express a rule of law contrary to our view herein and
in Deal, we respectfully decline to follow them.

The judgments entered here result in complete destruc-

tion of freedom of choice plans. They are also based upon

dicta first appearing in Adams and repeated in the July

3 judgment, page A2:

If in a school district there are still all-Negro schools,
or only a small fraction of Negroes enrolled in white
schools, or no substantial integration of faculties and
school activities then, as a matter of law, the existing
plan fails to meet constitutional standards as estab-
lished in Green

At one stroke the Fifth Circuit set up a test which,

under the Court’s own announcements, automatically out-

laws every freedom of choice system within the Circuit.

In Jefferson I it was held:

In this circuit white students rarely choose to attend

schools identified as Negro schools. (372 F.2d 836,

889).

On April 18, 1968, it was held in United States v.

Board of Ed., Polk County, 395 F.2d 66, 69:

The record here discloses what the courts have pre-
viously commented on, that is it is rare, almost to the

point of nonexistent, that a white child, under a
freedom of choice plan, elects to attend a “predomi-

nantly Negro” school. As this court said in the first

Jefferson case:

“In this circuit white students rarely choose to

attend schools identified as Negro schools. . . .”

Yet on August 20, 1968, only four months later, the

Adams dicta outlawed any freedom of choice plan “if

in a school district there are still all-Negro schools”.

Again on September 24, 1968, in Graves the panel

said:

In its opinion of August 20, 1968, this Court noted that,

under Green (and other cases), a plan that provides
for an all-Negro school is unconstitutional.

The entry of these judgments also arises from a misun-

derstanding of what constitutes a dual system of schools

and a misunderstanding of the clause “a unitary nondis-

criminatory school system”.

Through a misconstruction of the “trilogy of cases”,

Green, Monroe and Raney, this panel of the Court of Ap-

peals is now in direct conflict with decisions of other cir-

cuits. The panel in Adams had before it a docket setting

only. Yet, it seized upon numerous elements which were

considered in combination and separated them, so that

each separate element is now made the sine qua non of

continuance of freedom of choice. This is also true in the

varying definitions of what constitute the “vestiges of a

dual school system” that must be removed.

The Court of Appeals of the Sixth Circuit determined

on February 10, 1969, in Goss v. Board of Education of

Knoxville, Tennessee, 406 F.2d 1183, that the elimination

of all-Negro and all-white schools is not a condition pre-

cedent to either the establishment of a unitary, nonracial

school system, or to the continuation of a freedom of choice

plan of desegregation. In the Knoxville system there were

five all-Negro schools and twenty-nine schools having fa-

culties of only one race. It also found that in 1960 the dis-

trict had “a school system completely and de jure segre-

gated both as to students and faculty”. In holding that

the Knoxville school system was constitutionally accept-

able under Green, Raney and Monroe, the Court of Appeals

said:

Preliminarily answering question I, it will be sufficient
to say that the fact that there are in Knoxville some
schools which are attended exclusively or predomi-
nantly by Negroes does mot by itself establish that
the defendant Board of Education is violating the con-
stitutional rights of the school children of Knoxville.
Deal v. Cincinnati Bd. of Education, 369 F.2d 55 (6th
Cir. 1966), cert. denied, 389 U.S. 847, 88 S.Ct. 39, 19
L.Ed.2d 114 (1967); Mapp v. Bd. of Education, 373 F.2d
75, 78 (6th Cir. 1967). Neither does the fact that the
faculties of some of the schools are exclusively Negro
prove, by itself, violation of Brown.

The Court then discussed the rule set forth in Green,

including in the statement that the school boards are

“charged with the affirmative duty to take whatever steps

might be necessary to convert to a unitary system in which

racial discrimination would be eliminated root and branch”.

In applying this to the Knoxville District and discussing

its effect, the Court of Appeals of the Sixth Circuit said:

The Court further said that it would be their duty “to
convert to a unitary system in which racial discrim-
ination would be eliminated root and branch.” 391
U.S. at 437-438, 88 S.Ct. at 1694. We are not sure that

we clearly understand the precise intendment of the
phrase “a unitary system in which racial discrimina-
tion would be eliminated,” but express our belief that
Knoxville has a unitary system designed to eliminate
racial discriminaiton.

The Court brushed aside the position that different con-

stitutional principles should be applied to southern states

where there had been in the past de jure segregation as

contrasted to northern states where there had been in the

past de facto segregation. This was of particular impor-

tance as Deal involved formerly de facto segregation and

Goss involved formerly de jure segregation. The Court

said:

In Monroe v. Bd. of Commissioners, 380 F.2d 955, 958
(6th Cir. 1967), we expressed our view that the end
product of obedience to Brown I and II need mot be
different in the southern states, where there had been
de jure segregation, from that in morthern states in
which de facto discrimination was a fortuity. Our ob-
servations in that regard were not found invalid by
the Supreme Court’s opinion reversing our Monroe de-
cision. See Monroe v. Board of Commissioners, 391
U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968).

The constitutional principles thus found to be applica-

ble to both southern states and northern states were

stated by the Sixth Circuit in Deal, cited as supporting au-

thority in Goss. Deal involved the Cincinnati school sys-

tem in which de facto segregation had resulted in heavy

racial imbalance in the schools.® Racial discrimination

may be removed by different methods, including freedom

of choice plans, validly set up, properly administered, with

choices freely exercised without external pressures so that

the plan itself (without regard to the statistical results pro-

duced by choices thereunder) is constitutionally acceptable.

Adams and Hinds County are actually bottomed solely up-

on statistics and are in direct conflict with both Goss and

Deal. In Deal the Sixth Circuit said:

The cases recognize that the calculus of equality is not
limited to the single factor of “balanced schools”;
rather, freedom of choice under the Fourteenth Amend-

ment is a function of many variables which may be
manipulated differently to achieve the same result in
different contexts. . . .

This is in accord with our holding that bare statistical
imbalance alone is not forbidden. There must also be

3. The report of the Cincinnati school system to HEW for the
school year 1968 revealed that of the 106 schools in the Cincinnati
Public School System, forty were composed of students of one
race (i.e, more than 99 per cent negro or 99 per cent white
students), of which thirteen schools were Negro and twenty-
seven schools were white.

present a quantum of official discrimination in order
to invoke the protection of the Fourteenth Amend-
ment. ...

Finally, in the one case in which a district court ap-
parently accepted the appellants’ theory of racial
imbalance, Barksdale v. Springfield School Comm.,
237 F.Supp. 543 (D.Mass. 1965), the first Circuit, in
vacating the decision and dismissing the complaint
without prejudice specifically rejected any such as-
serted constitutional right. Springfield School Comm.
v. Barksdale, 348 F.2d 261, 264 (1st Cir. 1965).

These judgments are in direct conflict with Spring-

field School Committee V. Barksdale, 348 F.2d 361, ren-

dered by the Court of Appeals of the First Circuit in 1965.

The district court found that two of the elementary schools

had over 80 percent Negro pupils, that fourteen elementary

schools had no Negro pupils or less than one per cent Negro

pupils, and that the school system was racially imbalanced.

The Court of Appeals said:

Having reached its conclusions, the court ordered the
defendants to submit a plan to correct racial imbal-
ance in the Springfield schools.

The Court vacated the order of the district court and

reversed, stating the constitutional principles as follows:

Certain statements in the opinion, notably that “there
must be no segregated schools,” suggest an absolute
right in the plaintiffs to have what the court found to
be “tantamount to segregation” removed at all costs.
We can accept no such constitutional right. Cf. Bell
v. School City of Gary, 7 Cir., 1963, 324 F.2d 209, cert.
den. 377 U.S. 924, 84 S.Ct. 1223, 12 L.Ed.2d 216; Downs

v. Board of Education, 10 Cir., 1945, 336 F.2d 988, cert.
den. 380 U.S. 914,:85 S.Ct. 393. 13 L.E4A2d 300...

But more fundamentally, when the goal is to equalize

educational opportunity for all students, it would be no

better to consider the Negro’s special interests exclu-
sively than it would be to disregard them completely.

These statistically-based decisions conflict with United

States v. Cook County, 404 F.2d 1125, 1135, decided by the

Court of Appeals of the Seventh Circuit on December

17, 1968. The Fifth Circuit has brushed aside good faith.

They require hard and fast statistical results now. To the

contrary, the Court said in Cook County:

There is no hard and fast rule that tells at what point

desegregation of a segregated district or school occurs.
The court in Northcross said the “minimal require-
ments for non-racial schools are geographic zoning,
according to the capacity and facilities of the build-
ings and admission to a school according to residence
as a matter of right.” 333 F.2d at 662. On the other
hand, “The law does not require a maximum of racial
mixing or striking a rational balance accurately re-
flecting the racial composition of the community or
the school population.” United States v. Jefferson
County Board, 372 F.2d 836, 847, n. 5 (5th Cir. 1966)
aff'd en bane, 380 F.2d 385 (5th Cir.), cert. denied,
Cado Parish School Board v. United States, 389 U.S.
840, 88 S.Ct. 67, 19 L.Ed.2d 103 (1967).

By the entry of these judgments there arises a conflict

with the opinion of the United States Court of Appeals for

the Tenth Circuit in Downs v. Board of Education of Kan-

sas City, 336 F.2d 988 (1964), cert. denied 380 U.S. 914,

85 S.Ct. 898, 13 L.Ed.2d 800 (1965). This involved the

public schools of the Kansas City, Kansas, school system,

which was operated on a segregated basis prior to Brown

I. Thereafter the schools were integrated based chiefly up-

on zones and neighborhood school systems including the

right of transfer. The Court held:

There is, to be sure, a racial imbalance in the public
schools of Kansas City. , ..

Appellants also contend that even though the Board
may not be pursuing a policy of intentional segrega-
tion, there is still segregation in fact in the school
system and under the principles of Brown v. Board
of Education, supra, the Board has a positive and af-
firmative duty to eliminate segregation in fact as well

as segregation by intention. While there seems to be
authority to support that contention, the better rule is
that although the Fourteenth Amendment prohibits
segregation, it does not command integration of the
races in the public schools and Negro children have
no constitutional right to have white children attend
school with them. (Citing authorities).

See also Mapp v. Board of Education of Chattanooga,

Tennessee, 373 F.2d 75, rendered by the United States

Court of Appeals for the Sixth Circuit. This involved a

school system in which de jure segregation continued until

it was removed by a grade-to-grade extension of a free-

dom of choice plan resulting in “full integration of all

grades in September 1966”. In response to an attack upon

the plan by the plaintiffs, the Court upheld the plan and

said:

To the extent that plaintiffs’ contention is based on
the assumption that the School Board is under a con-
stitutional duty to balance the races in the school sys-
tem in conformity with some mathematical formula,
it is in conflict with our recent decision in Deal v.
Cincinnati Board of Education, 369 F.2d 55 (6th Cir.
1966).

Four months after the rendition of Jefferson II the

Court of Appeals of the Sixth Circuit had before it Monroe

v. Board of Commissioners of the City of Jackson, Tennes-

see, 380 F.2d 955, decided July 21, 1967. This involved

formerly racially segregated de jure school systems. Be-

cause of its significance here, its consideration of Jefferson

I and Jefferson II and its express repudiation of the con-

struction thereof later adopted by panels of this Court, we

quote at length from such decision:

Appellants argue that the courts must now, by recon-
sidering the implications of the Brown v. Board of Ed-
ucation decisions in 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed.
873 (1954) and 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083
(1955), and upon their own evaluation of the com-
mands of the Fourteenth Amendment, require school
authorities to take affirmative steps to eradicate that
racial imbalance in their schools which is the product
of the residential pattern of the Negro and white
neighborhoods. The District Judge’s opinion discusses
pertinent authorities and concludes that the Four-
teenth Amendment did not command compulsory in-
tegration of all of the schools regardless of an honestly
composed unitary neighborhood system and a freedom
of choice plan. We agree with his conclusion. We
have so recently expressed our like view in Deal et al.
v. Cincinnati Board of Education, 369 F.2d 55 (CA 6,
1966), petition for cert. filed, 35 LW 3394 (U.S. May 5,
1967) (No. 1358), that we will not here repeat Chief
Judge Weick’s careful exposition of the relevant law
of this and other circuits. He concluded “We read
Brown as prohibiting only enforced segregation.” 369
F.2d at 60. We are at once aware that we were there
dealing with the Cincinnati schools which had been
desegregated long before Brown, whereas we consider
here Tennessee schools desegregated only after and in
obedience to Brown. We are not persuaded, however,
that we should devise a mathematical rule that will
impose a different and more stringent duty upon states
which, prior to Brown, maintained a de jure biracial
school system, than upon those in which the racial im-
balance in its schools has come about from so-called
de facto segregation—this to be true even though the
current problem be the same in each state.

We are asked to follow United States v. Jefferson
County Board of Education, 372 F.2d 836 (CA 5, 1966),
which seems to hold that the pre-Brown biracial states

must obey a different rule than those which desegre-
gated earlier or never did segregate. . . . In Mapp v.
Board of Education, 373 F.2d 75, 78 (CA 6, 1967),
Judge Weick said,

“To the extent that plaintiffs’ contention is based
on the assumption that the School Board is under a
constitutional duty to balance the races in the school
system in conformity with some mathematical for-
mula, it is in conflict with our recent decision in
Deal v. Cincinnati Board of Education, 369 F.2d 55
(6th Cir. 1966).”

However ugly and evil the biracial school systems ap-
pear in contemporary thinking, they were, as Jeffer-
son, supra, concedes, de jure and were once found law-
ful in Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138,
41 L.Ed. 256 (1896), and such was the law for 58 years
thereafter. To apply a disparate rule because these
early systems are now forbidden by Brown would be
in the nature of imposing a judicial Bill of Attainder.
Such proscriptions are forbidden to the legislatures of
the states and the nation—U.S. Const., Art. I, Section
9, Clause 3 and Section 10, Clause 1. Neither, in our
view, would such decrees comport with our current
views of equal treatment before the law. . . . But to the
extent that United States v. Jefferson County Board of
Education, and the decisions reviewed therein, are fac-
tually analogous and express a rule of law contrary to
our view herein and in Deal, we respectfully decline
to follow them.

A writ of certiorari was granted by the Supreme Court

in this case and the decision appears as Monroe. The sole

issue in that case was the constitutionality of a “free trans-

fer” provision in the plan of desegregation. When the

same suit again came before the Court of Appeals of the

Sixth Circuit on February 10, 1969, as Goss the Court con-

strued the holding of the Supreme Court in Monroe and

stated:

In Monroe v. Bd. of Commissioners, 380 F.2d 955, 959
(6th Cir. 1967), we expressed our view that the end
product of obedience to Brown I and II need mot be
different in the southern states, where there had been
de jure segregation, from that in northern states in
which de facto discrimination was a fortuity. Our ob-
servations in that regard were not found invalid by
the Supreme Court’s opinion reversing our Monroe de-
cision. See Monroe v. Board of Commissioners, 391
U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968).

A writ of certiorari to the Court of Appeals of the Fifth

Circuit should be granted because of the conflict between

these judgments and the decisions of Courts of Appeal of

other Circuits.

3. The Court of Appeals for the Fifth Circuit in Its De-
cisions Dated November 7, 1969, and July 3, 1969,
Respectively, Has Applied Section 1 of the Four-
teenth Amendment to the Administration of Publie
Schools So That It Conflicts with Green, Raney,

Monroe, Carr and Grifffin.

Alexander announced no new rules of law, did not

either modify or overrule Griffin, Green, Raney, Monroe,

Carr or other decisions of this Court affecting school deseg-

regation, but has been construed by the Court of Appeals

for the Fifth Circuit as if it overruled or materially mod-

ified all prior decisions.

With deference, the Court of Appeals for the Fifth

Circuit has misconstrued the findings of this Court based

upon Griffin and Green. After holding that the use of “ ‘All

deliberate speed’ for desegregation is no longer constitu-

tionally permissible”, the Court said:

Under explicit holdings of this Court the obligation of
every school district is to terminate dual school sys-
tems at once and to operate now and hereafter only
unitary schools. Griffin v. School Board, 377 U.S. 218,

234 (1964) ; Green v. County School Board of New Kent

County, 391 U.S. 430, 438-439, 442 (1968).

The time for “all deliberate speed” ran out in 1964.

As was said by Mr. Justice Black in this case in the opinion

delivered in chambers on September 5, 1969, 24 L.Ed.2d 41,

43:

In 1964 we had before us the case of Griffin v. School

Board, 377 U.S. 218, 12 L.Ed.2d 256, 84 S.Ct. 1226 and

we said the following:

“The time for mere ‘deliberate speed’ has run out
and that phrase can no longer justify denying these
Prince Edward County School children their consti-
tutional right to an education equal to that afforded
by the public schools in the other parts of Virginia.”
Id., at 234, 12 1.Ed.2d at 267.

He then quoted Green, decided May 27, 1968:

In that case Mr. Justice Brennan, speaking for a unani-
mous Court said:

“ “The time for mere “deliberate speed” has run
out. . . > The burden on a school today is to come
forward with a plan that promises realistically to
work, and promises realistically to work now.” Id.,
at 438-439, 20 L.Ed.2d at 724.

“The Board must be required to formulate a new
plan . . . which promise[s] realistically to convert
promptly to a system without a ‘white’ school and a
‘Negro’ school, but just schools.” Id., at 442, 20
L.Ed.2d at 726.

In this context, the action of this Court in repeating

its finding that “all deliberate speed” is no longer per-

missible did not change the then existing rules as thereto-

fore announced by this Court.

As pointed out elsewhere herein, there is nothing which

would indicate an intent for this Court to require com-

pulsory integration either to a racial balance or to remove

racial imbalance or to approach a racial balance. Never-

theless, the decision has been thus construed by the Court

of Appeals for the Fifth Circuit. This seems to be based

upon the belief that the use of the term “unitary schools”

means schools maintained under compulsory integration.

To the contrary, this Court clarified its meaning of “unitary

schools” and the duty to “terminate dual school systems at

once” in its order vacating the order of the Court of Ap-

peals of August 28, 1969, as follows (pp. A23-A24):

1. The Court of Appeals’ order of August 28, 1969,
is vacated, and the cases are remanded to that court
to issue its decree and order, effective immediately, de-
claring that each of the school districts here involved
may no longer operate a dual school system based on
race or color, and directing that they begin imme-
diately to operate as unitary school systems within
which no person is to be effectively excluded from any
school because of race or color.

As herein pointed out in detail, the action of the Court

of Appeals requires assignment of students because of their

race in numbers predetermined by a review of those in at-

tendance within the school districts. The result is to ef-

fectively exclude students from the various schools compos-

ing this system because of race or color. In every instance

race is the basis of assignment of students, the criterion

utilized in the “pairing” of grades or schools, and the

criterion used in busing of students and drawing of geo-

graphic zones based upon race.

The Per Curiam opinion was rendered and is neces-

sarily construed in the context of Green, Raney, Monroe

and Carr. These cases clearly and unmistakably describe

the racially nondiscriminatory school system which meets

all constitutional guarantees as a “unitary school system”.

In Green such system is described as: “A racially

nondiscriminatory school system”—“a unitary, monracial

system of public education” —“a unitary system in which

racial discrimination would be eliminated root and branch”.

In Raney such system is described as: “A unitary,

nonracial school system”.

In Monroe such school system is described as: “A

racially nondiscriminatory system”—‘“a unitary system in

which racial discrimination would be eliminated root and

branch”—"a system without a ‘white’ school and a ‘Negro’

school, just schools”.

In Carr such school system is described as: “A sys-

tem of public education free of racial discrimination” —"a

completely unified unitary mondiscriminatory school sys-

tem”—*“a racially nondiscriminatory school system”.

The Supreme Court affirmatively declined to hold in

Green that the Fourteenth Amendment requires “compul-

sory integration”, saying:

The Board attempts to cast the issue in its broadest
form by arguing that its “freedom-of-choice” plan may
be faulted only by reading the Fourteenth Amendment
as universally requiring “compulsory integration”, a
reading it insists the wording of the Amendment will
not support. But that argument ignores the thrust of
Brown II. In the light of the command of that case,
what is involved here is the question whether the
Board has achieved the “racially mondiscriminatory
school system” Brown II held must be effectuated in
order to remedy the established unconstitutional de-
ficiencies of its segregated system.

There is no legal significance in the use of the word

“immediately” in the Per Curiam order and the word “now”

used in Green. As was said by Judge Bell at the pre-

order hearing (p. A48):

Now, that is the language of the Supreme Court de-
cision. It is a little different from some of the language
used in the old Supreme Court decisions but probably
means the same thing.

It is only by a consideration of the many complex

factors entering into the educational process and par-

ticularly into the desegregation of formerly de jure and

formerly de facto segregated schools that the courts are

able to identify a unitary school system and to chart the

course which is in the best interest of the students and

of our public schools. This was the objective stated by

Mr. Justice Black in Carr.

In Green the Supreme Court found that the school sys-

tem of New Kent County was a dual school system and de-

scribed such system as follows:

. . . Racial identification of the system’s schools was
complete, extending not just to the composition of stu-
dent bodies at the two schools but to every facet of
school operations—faculty, staff, transportation, extra-
curricular activities and facilities.

In Green, Raney and Monroe there was considered

many of the factors which, when taken as a whole and in

combination, should be utilized in determining the applica-

tion of the following test:

Where the Court finds the board to be acting in good
faith and the proposed plan to have real prospects of
dismantling the state-imposed dual system “at the ear-
liest practicable date” then the plan may be said to
provide effective relief. . . . Moreover, whatever plan
is adopted will require evaluation in practice. . . .

The elements elucidated in these cases included:

1. Every facet of school operations;

2. Faculty, staff and student body;

3. Transportation and construction of new buildings;

Extracurricular activities and facilities;

Majority to minority transfer; |

Method of exercising the freedom of choice;

N
S
P

Assignment of students who did not exercise the
freedom of choice;

8. Whether or not the “public school facilities for |
Negro pupils (were) inferior to those provided |
for white pupils”; |

9. Operation of the freedom of choice plan “in a
constitutionally permissible fashion”;

10. “All aspects of school life including faculties and
staffs’;

11. Whether “the board had indeed administered the
plan in a discriminatory fashion”;

12. The comparative treatment of students attempting

“to transfer from their all-Negro zone schools to
schools where white students were in the major-
ity”;

13. The comparative treatment of “white students
seeking transfers from Negro schools to white
schools’;

14. Whether “the transfer (provision) lends itself to
perpetuation of segregation”.

Within the broad statements of Green fall the following

additional phases of a school system:

15. Athletic activities within the schools;

16. Parent-teacher associations;

17. Faculty and staff meetings within schools and of

faculties and staffs of the various schools at the
elementary, junior high school and high school
levels;

18. School-sponsored visitation of student body of-
ficers and student committees;

19. In-service training of teachers and staff to assist

in the desegregation process;

20. Participation by students in various types of
student organizations.

The unitary nondiscriminatory school system required

in the Per Curiam opinion has been described by the

Court of Appeals of the Sixth Circuit in Goss (decided in

the light of Green, Raney, and Monroe) as follows:

In Green the Court said school boards must adopt
plans which “promise realistically to convert promptly
to a system without a ‘white’ school and a ‘Negro’
school, but just schools.” 391 U.S. at 442, 88 S.Ct. at
1696. The Court further said that it would be their
duty “to convert to a unitary system in which racial
discrimination would be eliminated root and branch.”
391 U.S. at 437-438, 88 S.Ct. at 1694. We are not sure
that we clearly understand the precise intendment of
the phrase “a unitary system in which racial dis-
crimination would be eliminated,” but express our be-
lief that Knoxville has a unitary system designed to
eliminate racial discrimination.

This opinion found that the Knoxville school system

contained five all-Negro schools and 29 schools in which

the teaching staffs were composed exclusively either of

members of the Negro race or members of the white race.

Knoxville, Tennessee, previously had schools segregated

under state law. Nevertheless, the Court concluded that

this system met the requirements of a unitary, non-dis-

criminatory school system as laid down in Green, Monroe

and Raney.

In its Per Curiam order of October 29 in these cases

the Supreme Court defined the term ‘unitary school

system” in the mandate that this Court enter an order

as to these nine school districts:

. . . directing that they begin immediately to operate
as unitary school systems within which no person is
to be effectively excluded from any school because of
race or color.

This definition is in accord with the holding in Goss.

It is also in accord with the holding of the Fifth Circuit in

Broussard v. Houston Independent School District, May

30, 1968, 395 So.2d 817, Petition for Rehearing in banc

(in the light of Green, Monroe and Raney) denied October

2, 1968, 403 F.2d 34. That case involved the same consti-

tutional principles which are applicable here. The issue

was that of school construction which would perpetuate

the Houston freedom of choice plan. The affirmance of

the lower court was based upon the following principle

announced by the Court:

Indeed, under the Houston plan, as described by the
school authorities, it would appear that an “inte-
grated, unitary school system” is provided, where
every school is open to every child. It affords “ed-
ucational opportunities on equal terms to all”. That
is the obligation of the Board. (Note 15) United
States v. Jefferson County Bd. of Ed., supra, 380 F.2d
p. 390, en banc consideration.

4. Section 1 of the Fourteenth Amendment, Construed
in Accordance with the “Appropriate Legislation”
Enacted by Congress under Section 5 of Such
Amendment, Does Not Require Compulsory Integra-
tion of the Public Schools. It Prohibits Compulsory
Segregation Based upon Race.

The true meaning and effect of the Fourteenth Amend-

ment, as construed in Brown I and in succeeding cases,

was well stated by Mr. Justice Thurgood Marshall in his

brief filed with this Court in Brown I on May 6, 1955 (after

the oral argument and twenty-six days prior to the

rendition of the opinion), in which he said:

The Negro children before the Court in these cases
are entitled to public education on a non-segregated
basis. The only way the relief can be meaningful
to them is to abolish the policy of using race as a
criterion for assignment of students. Thus, the only
effective decree would be one which will enjoin the
use of race in the assignment of any pupils in the
school districts involved.

The meaning and the application of the Fourteenth

Amendment to public education is also well stated by

former Justice Arthur J. Goldberg in the brief amicus

curiae filed in Brown I in behalf of the Congress of In-

dustrial Organizations, in which he said:

These general concepts—that permissive separation is
not the same as compulsory segregation and that the
constitutional evil in all these cases is not the separa-
tion of the races but the denial to the individual of his
right to choose to be separate or not—may, perhaps,
be usefully applied in dealing with the particular kind
of segregation problem here presented, viz: public
school education. . . .

We only mean that the elimination of compulsory
segregation is not the same thing as compulsory at-
tendance of whites at Negro schools, or Negroes at
white schools, because the states can, wherever they
now compel separation, offer separation on a wvolun-
tary basis. Even compulsory attendance at particular
schools based on residential districting rests ultimately
on the voluntary choice of residence. Negroes and
whites would no more be compelled to attend the same
schools under such regulations than were Negroes
and whites compelled to live in the same neighborhood
when compulsory residential segregation was de-
clared invalid in Buchanan v. Warley, 245 U.S. 60.

These quotations are important not only because of

their sources but because of the fact that this Court, in

rendering Brown I, Brown II and succeeding cases,

adopted such construction of the Fourteenth Amendment.

We have quoted at length above from decisions of the

Courts of Appeal of several Circuits expressly holding

that the Fourteenth Amendment does not command com-

pulsory integration of the schools. They are made a part

of this portion of the brief by reference. Particularly we

call attention to the statement of the Court of Appeals of

the Sixth Circuit in Monroe, which was decided July 21,

1967, as follows:

The District Judge’s opinion discusses pertinent au-
thorities and concludes that the Fourteenth Amend-
ment did not command compulsory integration of all
of the schools regardless of an honestly composed uni-
tary neighborhood system and a freedom of choice
plan. We agree with his conclusion. We have so re-
cently expressed our like view in Deal et al. v. Cincin-
nati Board of Education, 369 F.2d 55 (CA 6, 1966), peti-
tion for cert. filed, 35 LW 3394 (U.S. May 5, 1967)
(No. 1358), that we will not here repeat Chief Judge
Weick’s careful exposition of the relevant law of this
and other circuits. He concluded “We read Brown as
prohibiting only enforced segregation.” 369 F.2d at
60.

The Court of Appeals of the Sixth Circuit reaffirmed

this position in Goss, as quoted above. When Cooper was

remanded by this Court for further proceedings, it reached

the Court of Appeals of the Eighth Circuit and that deci-

sion is entitled Clark v. Board of Education of Little Rock

School District, 369 F.2d 661, rehearing denied, 374 F.2d

569. The Court delineated a school system and its operation

which falls within the constitutional mandate of the Su-

preme Court as follows:

The Constitution prohibits segregation of the races,
the operation of a school system with dual attendance
zones based upon race, and assignment of students on
the basis of race to particular schools. If all of the
students are, in fact, given a free and unhindered choice
of schools, which is honored by the school board, it

cannot be said that the state is segregating the races,
operating a school with dual attendance areas or con-
sidering race in the assignment of students to their
classrooms. We find no unlawful discrimination in
the giving of students a free choice of schools.

Again, in Cook County, decided by the Court of Ap-

peals of the Seventh Circuit on December 17, 1968, that

Court held:

There is no hard and fast rule that tells at what point
desegregation of a segregated district or school occurs.
. . . On the other hand, “The law does not require a
maximum of racial mixing or striking a rational bal-
ance accurately reflecting the racial composition of the
community or the school population.”

The decision of the Court of Appeals of the Tenth

Circuit in Downs is to the same effect. After finding that

there existed a racial imbalance in the public schools of

Kansas City, the Court said:

While there seems to be authority to support that
contention, the better rule is that although the Four-
teenth Amendment prohibits segregation, it does not
command integration of the races in the public schools
and Negro children have mo constitutional right to
have white children attend school with them. (Citing
authorities.)

It is particularly important to consider applicable Con-

gressional Acts. Congress adopted the Civil Rights Act

of 1964 under the authority granted by Section 5 of the

Fourteenth Amendment, “The Congress shall have the

power to enforce, by appropriate legislation, the provisions

of this article.” The portions of the Act appearing as

U.S.C.A., Title 42, Sec. 2000c(b), et seq.; Pub.L. 88-352,

Title 4, Sec. 401 (b), Sec. 407 (a), Sec. 410, define and limit

the desegregation of public schools and colleges:

Section 401(b): . . . but desegregation shall not mean
the assignment of students to public schools in order
to overcome racial imbalance.

Section 407(a). . . . provided that nothing herein
shall empower any official or court of the United
States to issue any order seeking to achieve a racial
balance in any school by requiring the transportation
of pupils from one school to another or one school dis-
trict to another in order to achieve such racial balance
or otherwise enlarge the existing power of the court
to insure compliance with constitutional standards.

Section 410: Nothing in this title shall prohibit clas-
sification and assignment for reasons other than race,
color, religion or national origin.

The latest expression of Congressional intent that dis-

crimination was not to be measured by the racial distribu-

tion of students among the schools, or within a particular

school, is contained in the current appropriation act for

HEW. (Pub. L. 90-557; 32 Stat. 989); Section 409 of

Title 4, relating to elementary and secondary education,

contains the following clear prohibition:

No part of the funds contained in this Act may be
used to force busing of students, abolishment of any
school, or to force any student attending any ele-
mentary or secondary school to attend a particular

school against the choice of his or her parents or parent
in order to overcome racial imbalance.

The substitution of compulsory assignment of students

by any means to achieve integration for the compulsory

assignment of students to maintain segregation is to de-

stroy the freedom attained by Negro children under

Brown just fifteen years ago. The results of such action,

foreshadowed by Jefferson I, were described by Judge

Coleman in his concurring opinion to Jefferson II as fol-

lows:

The freedom of the Negro child to attend any public
school without regard to his race or color, first se-
cured in the Brown cases, is again lost to him after a
short life of less than thirteen years. He is left open
to a future adjudication that although he does not
wish to attend School A and has in fact expressed a
desire to go elsewhere this is of no importance. Be-
cause of his race he can be assigned to a particular
school to achieve a result satisfactory to someone who
probably does not even live in the district but who
wishes to make a racial point. Thus the child re-
enters the same racial discrimination from which he

escaped so short a time ago. He remains bogged in
race. Moreover, when Negro children are to be
selected by someone, we know not who, to comply with
such a racial assignment, on what basis will the selec-
tion be made? How will the wishes of some be re-
spected and others rejected, solely because they hap-
pen to be of the Negro race? We are not freeing
these children of racial chains. We are compounding
and prolonging the difficulty.

The true answer remains, give him absolute freedom
of choice and see to it that he gets that choice in
absolute good faith.

We return to the above quotations from Mr. Justice

Thurgood Marshall and former Justice Arthur J. Gold-

berg in their presentation of Brown I. The only construc-

tion of the Fourteenth Amendment meaningful to Negro

children is that it prohibits the policy of using race as a

criterion for assignment of students. The constitutional

evil which must be guarded against is the denial to the

individual of his right to choose to be separate or not.

5. A Freedom of Choice Plan Properly Formulated and
Administered Fairly and Without Discrimination,
Which Permits Truly Free and Uninfluenced Choice
by Students and Their Parents, Meets All Constitu-
tional Guarantees. The Factors Utilized in the Judg-
ment of July 3 to Outlaw Freedom of Choice Are
Not Vestiges of the Dual System of Schools.

The only finding of fact by any court after due process

and full hearing is the detailed finding of the United

States District Court for the Southern District of Mis-

sissippi appearing as Appendix H, pages A63 through A80

These findings are clear and explicit. They have not

been challenged at any point of these proceedings. In

fact, the Court of Appeals, in its directive concerning the

hearing of these cases on the merits which resulted in the

decision of July 3, 1969, accepted such finding, page Al4:

6. The Court’s general approach will be to accept the
fact findings of the District Court and to determine
what, if any, legal relief is now required best thereon.
To the extent that appellants, private or government,
assert that any one or more specific fact findings (as
distinguished from mixed questions of law and fact)
are clearly erroneous, the appellants concerned shall
xerox copies of pertinent excerpts of the transcript of
the evidence for use by the Judges (4 copies) which
may be made available during argument.

The action taken on July 3 was based solely upon

findings of law based upon the assumption that the three

elements quoted above constituted vestiges of the dual

system of schools which had not been eliminated. We

submit that such finding as a matter of law is erroneous.

The initial step to determine what are vestiges of a

racially discriminatory dual school system (in which sep-

aration of the races has been de jure) as distinguished

from racially nondiscriminatory unitary school systems

(in which separation of the races has been de facto) is to

eliminate those elements common to both.

Compilations before the Court of Appeals were as-

sembled from the statistical information filed with the

Department of Health, Education and Welfare and show

the racial composition of schools in the one hundred largest

school districts in this nation as of October 15, 1968. They

were filed by school districts under the requirements of

Title VI of the Civil Rights Act of 1964 and are upon Civil

Rights Forms OS/CR 102-1 and OS/CR 101. The reports

from the districts which have never had a dual system

reveal the facts contained in Exhibit 2 attached to this

Petition.

Assuming that a school with less than one percent of

the minority race is an all-white or all-Negro school, of the

12,497 schools in the one hundred largest school districts

in the United States 6,137 schools are either all-white or

all-Negro. Thus, more than forty-eight percent of the

schools in these districts are either all-white or all-Negro.

It is also found that in districts having as much as twenty

percent or more Negro student enrollment, only one dis-

trict does not have within it all-Negro schools. This

is the Rochester, New York, Monroe County School Dis-

trict. In the consolidated cases at bar only one of the

thirty districts has less than twenty percent Negro student

enrollment. These facts cannot be a “vestige of the dual

system of schools” but resulted from the natural process

of education in a unitary, non-racial school system:

District

Chicago Public Schools,
Chicago, Ill.

Indianapolis Public Schs.,
Indiana

Des Moines Community
Schs., Iowa

Boston School Dept.,
Massachusetts

Detroit Public Schools,
Michigan

Special School Dist. No. 1,
Minneapolis, Minn.

St. Louis Cily Sch. Dist.,
Mo.

Kansas City School Dist.,
Mo.

Newark Public Schools
Newark, N. J.

Oklahoma City Public Sch
Dist., I-89, Okla.

Dallas Indep. Sch. Dist.,
Texas

Los Angeles School Dist.,
Calif.

Sch. Dist. No. 1, Cily
& Co. of Denver, Colo.

District of Columbia
Public Schools

Gary Community Schools,
Gary, Ind.

Cleveland, Ohio,
Cuyahoga Co.

New York City Public Schs.
NY, N.v.

Houston Indep. Schools,
Houston, Texas

School Dist. of
Philadelphia, Pa.

Schools

sy Schools

Snals One Gee Tomo
in Dist. Race Race Schools

610 236 392 208

119 1 92 17

81 92 36 —-

196 108 56 11

302 10 98 67

98 92 42 Re

164 81 114 83

29 14 43 19

80 1 27 27

115 5} 71 15

173 149 117 26

991 229 359 65

116 32 54 3

188 26 114 114

45 6 25 21

180 38 115 37

853 221 158 113

225 9 139 61

278 3 37 63

Broussard approved the Houston Independent School

District as being in compliance with constitutional require-

ments under a freedom of choice plan. According to its

official report as of October 15, 1968, there then remained

sixty-one all-Negro schools, seventy-eight all-white

schools, and there were eighty-six desegregated schools.

It is clear that the following do not constitute vestiges

of a de jure racially discriminatory dual school system:

(1) All-Negro schools and all-white schools, identi-

fiable as being attended by students of only one race or by

students predominantly of one race.

(2) Schools being served by faculty and staff com-

posed of members of one race or composed predominantly

of members of one race.

(3) Schools in which the number of students of the

two races do not materially vary from year to year, i.e.,

in which statistics do not demonstrate that the number of

Negro students is increasing in a school attended pre-

dominantly by white students or in which Negro teachers

are not increasing where the faculty is composed pre-

dominantly of members of the white race.

We respectfully submit that the entry of the November

7th judgment was the result of a misconstruction of the

Per Curiam order dated October 29, 1969. It is clear that

the Court of Appeals believed it had been expressly directed

to enter such judgment.

6. The Application of a Disparate Rule to School Sys-
tems “in This Circuit’ Because of the Former De
Jure Character of the Earlier Systems Prior to Brown
Amounts to a Judicial Bill of Attainder and Denies
Equal Treatment Before the Law Required by the
Constitution of the United States.

The application of a different rule to states within

“this Circuit” because of their former de jure character of

the segregation in their schools, proposed in Jefferson I, has

been fully answered by the Court of Appeals of the Sixth

Circuit in Goss, Monroe, Mapp and Deal. To dispel this

misconception of the meaning of the Constitution we need

only to quote from Monroe:

We are asked to follow United States v. Jefferson
County Board of Education, 372 F.2d 836 (CA 5, 1966),
which seems to hold that the pre-Brown biracial states
must obey a different rule than those which desegre-
gated earlier or never did segregate. ... In Mapp v.
Board of Education, 373 F.2d 75, 78 (CA 6, 1967),
Judge Weick said,

However ugly and evil the biracial school systems ap-
pear in contemporary thinking, they were, as Jeffer-
son, supra, concedes, de jure and were once found law-
ful in Plessy v. Ferguson, 163 11.8. 537, 16 S.Ct..1133,
41 L.Ed. 256 (1896), and such was the law for 58 years
thereafter. To apply a disparate rule because these
early systems are now forbidden by Brown would be
in the nature of imposing a judicial Bill of Attainder.
Such proscriptions are forbidden to the legislatures of
the states and the nation—U.S. Const. Art. I, Section
9, Clause 3 and Section 10, Clause 1. Neither, in our
view, would such decrees comport with our current
views of equal treatment before the law.

A writ of certiorari was granted by the Supreme Court

in this case and the decision appears as Monroe. The sole

issue in that case was the constitutionality of a “free trans-

fer” provision in the plan of desegregation. When the

same suit again came before the Court of Appeals of the

Sixth Circuit on February 10, 1969, as Goss the Court con-

strued the holding of the Supreme Court in Monroe and up-

held the above rule set forth in Judge Coleman’s specially

concurring opinion:

The above finding of the Sixth Circuit was fore-

shadowed by the separate opinion of Judge Coleman in

Jefferson II:

Prior to 1954, racially separate, if equal, schools
had not been condemned as unconstitutional. One is
not to be punished or harassed for an act which was
lawful when it was done. Indeed, such condemnation
in this instance would inferentially include some of the
most highly respected Judges who ever graced the Su-
preme Court. They had opportunities to condemn the
system but, in the exercise of perfect judicial integrity,
did not. As I understand it, an Omnipotent God does
not change yesterday when it is past and gone. Cer-
tainly this Court cannot do it. We are now concerned
with rectifying the errors of the present and forestall-
ing, if we can, the anticipated errors of the future. I
decline to participate in any ex post facto condemna-
tions. I prefer to believe that this Court is not de-
liberately doing so.

I further believe that whatever the Fourteenth
Amendment requires of any State it requires of all
States. If we are requiring something here in the en-
forcement of Fourteenth Amendment rights that

should not be required of all fifty States then we have
exceeded our authority and we have misapplied the
Constitution.

7. The Petitioners Have Not Been Accorded Due Proc-
ess of Law. There Has Been No Hearing on the
Merits by Any Court nor Any Opportunity for the
Litigants to Be Heard on the Merits Through Their
Attorneys.

Twenty-five cases were consolidated under Docket Nos.

28,030 and 28,042 by the Court of Appeals for the Fifth

Circuit. The opinion therein was rendered July 3, 1969,

and appears as U.S.A., et als., v. Hinds County, et als.,

not yet reported. As was found in such opinion, all of these

school districts had been operating for a number of years

under a Jefferson type decree which provided a freedom

of choice plan as authorized and delineated in Jefferson II.

U.S.A. v. Jefferson, 380 F.2d 385.

The Per Curiam mandate dated October 29, 1969, after

requiring that the school systems here involved should not

operate as dual school systems based on race but should

“begin immediately to operate as unitary school systems

within which no person is to be effectively excluded from

any school because of race or color”, provided as follows:

The Court of Appeals may in its discretion direct the
schools here involved to accept all or any part of the
August 11, 1969, recommendations of the Department
of Health, Education, and Welfare, with any modifica-
tions which that court deems proper insofar as those
recommendations insure a totally unitary school sys-
tem for all eligible pupils without regard to race or
color.

The Court of Appeals for the Fifth Circuit has now

acted under the circumstances hereinafter fully detailed.

It has substituted for all of the Jefferson type decrees pro-

viding for freedom of choice and has rendered a decree,

the nature of this decree will be hereinafter described. At-

tached to this decree are the thirty HEW plans filed on

August 11, 1969. With the very minor exceptions detailed

in the decree, these are put in full force and effect in every

particular. The Court did not permit the alternate step

procedure (referred to in many plans as “interim steps”)

to be utilized.

On October 29 the Per Curiam opinion of the Supreme

Court was rendered. Copies thereof were received by at-

torneys for the defendants on or about Friday, October 31,

and Saturday, November 1.

On Friday, October 31, the Court of Appeals issued its

order directing all parties to all twenty-five suits to file

with the Clerk of that Court on or before Wednesday,
November 5, their recommended and proposed orders to ef-

fectuate and implement the opinion and decree of this

Court. Such order was received by the attorneys for the

parties in due course of the mails, a few being orally noti-

fied.

The order of the Court of Appeals issued on Friday,

October 31, contained the following directions:

Appellants, appellees and the United States of Amer-
ica as amicus or intervenor shall file with the Clerk
of this Court on or before the fifth day of November,
1969, their recommended and proposed orders which
will properly effectuate and implement the opinion
and decree of the Supreme Court of the United States
rendered on October 29, 1969, in the above named
cases.

On Monday, November 3, attorneys for the defendants

were advised by telephone and otherwise to be present in

New Orleans before the Court of Appeals at 1:00 P.M. on

Thursday, November 6, to attend a pre-order conference,

and to have the superintendents of the school districts pres-

ent at that time.

On Wednesday, November 5, the various districts filed

their proposed orders embodying plans which had been

very hastily prepared and revised over the week end, these

being in the hands of the Court for from twenty-four to

thirty-six hours prior to the “pre-order conference” held

at 1:00 P.M. on Thursday, November 6. In the mean-

while, the attorneys for the private plaintiffs had sent to

the Court copies of the several plans of desegregation filed

by HEW on August 11. Hence a very few hours was con-

sumed by the Court of Appeals in a comparison of these

plans.

The oral notification to attorneys for the school dis-

tricts to be present at the “pre-order conference” on No-

vember 6 included a statement that no arguments would be

received on that date but there would only be a discussion

of the order.

Attached hereto as Exhibit 3 is the chronology of events

which occurred in these cases.

In accordance with the announcement and requirement

of the Court, no argument was presented by any of the

attorneys. No briefs on the merits were prepared within

the three business days involved nor permitted to be filed

by the Court. No hearing of any kind was had in the Court

of Appeals at this or any other time, concerning the judg-

ments proposed to be entered and the specific, clear, de-

tailed, and revolutionary provisions thereof, embodied

therein through attachment of the plans filed by HEW on

August 11.

Never in the history of jurisprudence in the United

States has the fundamental concept of due process of law

been so flagrantly violated. The following has occurred:

1. The original judgment of the Court of Appeals of

July 3 set up a procedure whereby hearings would be had

and due process of law completed.

2. The amendatory order of August 28, 1969, entered

by the Court of Appeals also set up a procedure whereby

hearings would be had and due process of law completed.

3. The mandate of the Supreme Court of October 29,

1969, provided:

The Court of Appeals may make its determination and
enter its order without further arguments or submis-
sions.

4. The Court of Appeals having elected to prohibit all

attorneys from presenting either briefs or oral arguments

on the merits and not to consider any evidence before a

Master or otherwise, due process of law was never accorded

to either the United States as plaintiff or intervenor in

twenty of these suits, nor to the school districts as defend-

ants in twenty-five of these suits. (The Court of Appeals

applied the mandate of this Court to all twenty-five consoli-

dated cases.)

Subsequent to the entry of the November 7 Judg-

ment, the Court of Appeals has permitted motion to be

filed for minor revisions in a number of the plans. None

of these affect the basic constitutional questions or the

conflicts with other Circuits presented in this Petition.

It appears from the record that no amendments have been

permitted unless they were approved by all parties to the

suits, including the plaintiffs, defendants and intervenors.

If there are any exceptions, the same are minor.

Every citizen of the United States is protected by the

constitutional guarantee of due process of law. This is

fundamental and has always been one of the basic concepts

of our system of justice. One of the early statements of

this fundamental constitutional right, which lives today

for the protection of every citizen, was made by this Court

through Justice White in Hovey v. Elliott, 167 U.S. 409, 42

L.Ed. 415, as follows:

The fundamental conception of a court of justice is
condemnation only after hearing. To say that courts
have inherent power to deny all right to defend an ac-
tion and to render decrees without any hearing what-
ever is, in the very nature of things, to convert the
court exercising such an authority into an instrument
of wrong and oppression, and hence to strip it of that
attribute of justice upon which the exercise of judicial
power necessarily depends. . .

In Galpin v. Page, 35 US. ........ , 18 Wall, 350 |21:959],
the court said (p. 368 (963) ):

“It is a rule as old as the law, and never more to
be respected than now, that no one shall be personally
bound until he has had his day in court, by which is
meant, until he has been duly cited to appear, and has
been afforded an opportunity to be heard. Judgment
without such citation and opportunity wants all the
attributes of a judicial determination; it is judicial
usurpation and oppression, and can never be upheld
where justice is justly administered.”

Again, in Ex parte Wall, 107 U.S. 289 [27:562], the
court quoted with approval the observations as to “due
process of law” made by Judge Cooley, in his Constitu-
tional Limitations, at page 353, where he says:

“Perhaps no definition is more often quoted than
that given by Mr. Webster in the Dartmouth College
Case, 171.S........ , 4 Wheat. 518 [4:629]: ‘By the law
of the land is most clearly intended in the general law;
a law which hears before it condemns, which proceeds
upon inquiry and renders judgments only after trial.
The meaning is that every citizen shall hold his life,
liberty, property, and immunities under the protection
of the general rules which govern society.” ”

In Morgan v. United States of America, 304 U.S. 13, 82

L.Ed. 1129, this Court said through Chief Justice Charles

Evans Hughes:

The right to a hearing embraces not only the right
to present evidence but also a reasonable opportunity
to know the claims of the opposing party and to meet
them. The right to submit argument implies that op-
portunity; otherwise the right may be but a barren
one.

Here, there has never been an opportunity for evidence

to be introduced, there has been no opportunity whatso-

ever for the parties to be heard by their attorneys, in the

District Court, in the Court of Appeals or in the Supreme

Court of the United States as to any matter pertaining to

the merits of the judgment which has been entered. The

present judgment sets aside each judgment under which

each of these school districts had been operating for a num-

ber of years, a judgment theretofore approved by the Court

of Appeals of the Fifth Circuit in Jefferson II. It has de-

stroyed in every district freedom of choice. It has re-

quired compulsory integration of every faculty and staff to

the racial balance existing in the entire system. It will

require compulsory assignment of students by use of pair-

ing, racial zoning or direct assignment. In most instances

this will also approach a racial balance and in every in-

stance it is designed to and will very materially remove

existing racial imbalance. This action falls squarely with-

in the rules announced by this Court in Powell v. Ala-

bama, 287 U.S. 45, 77 L.Ed. 158, in which this Court said:

... The words of Webster, so often quoted, that by “the
law of the land” is intended “a law which hears before
it condemns,” have been repeated in varying forms of
expression in a multitude of decisions. In Holden v.
Hardy, 169 U.S. 366, 339, 42 L.Ed. 780, 790, 18 S.Ct.
383, the necessity of due notice and an opportunity of
being heard is described as among the “immutable

principles of justice which inhere in the very idea of
free government which no member of the Union may
disregard.”

And Mr. Justice Field, in an earlier case, Galpin v.
Page, 18 Wall. 350, 363, 369, 21 L.Ed. 959, 963, 964,
said that the rule that no one shall be personally
bound until he has had his day in court was as old
as the law, and it meant that he must be cited to
appear and afforded an opportunity to be heard.
“Judgment without such citation and opportunity wants
all the attributes of a judicial determination; it is ju-
dicial usurpation and oppression, and never can be up-
held where justice is justly administered.”

There has been mo hearing on the merits upon any

plan of desegregation embodied in the judgments entered

on. November 7. Moreover, no court has permitted the

plaintiff, the United States of America, or the defendants

in these cases to be heard on the merits by brief or other-

wise. Not one iota of testimony has been permitted before

any court upon any portion of the judgments and plans now

put into effect.

CONCLUSION

Even if this Court should hold that a disparate rule

may be applied in the Fifth Circuit as compared to the

other Federal Judicial Circuits or to school districts in

which de jure segregation existed prior to Brown I, at a

time it was held by this Court to be constitutional, the

general basic principles and actions required should be

upon the basis of equality.

Should the Court deny all other relief sought by this

Petition for Writ of Certiorari, certainly the petitioners

here should be accorded treatment equal to that which has

been accorded to the school districts affected by the thir-

teen consolidated cases decided under the title of Singleton

v. Jackson Municipal Separate School District on December

1, 1969.

In the cases here the only “plans of desegregation”

which had been filed are those which were found to be

insufficient and improper by the Secretary of Health,

Education, and Welfare of the United States. The so-called

plans which are now about to be put into effect over the

protest of all Federal educational authorities, over the

protest of the Department of Justice of the United States,

over the protest of State and local educational officials

and contrary to the decision of both the United States

District Court and the Court of Appeals of the Fifth Circuit

cannot be a legitimate and proper basis of differentiating

between these cases and the cases decided as Singleton.

As elsewhere pointed out in this brief, the plans filed

herein were so hurriedly drawn as to amount almost en-

tirely to a mathematical division of students upon the

basis of race. These plans amounted simply to an appli-

cation of mathematical calculations as distinguished from

the application of educational principles.

If this Court permits these decisions to remain in ef-

fect, they will result in destruction or material crippling

of the public school system in all those districts in which

the proportion of Negro students to white students is great.

This includes almost all of these school districts.

We respectfully submit that this Petition should be

granted and, that upon certiorari, an orderly and realistic

continuation of supplemental or modified plans should be

permitted. Even the unique plan of desegregation or in-

tegration contained in the order of the three-judge court

iin Georgia rendered December 17, 1969, in the case of

U. S. A. v. The State of Georgia et al. (applicable to 69

school systems in that state) appears to hold a greater pos-

sibility of saving the public school system than the radical

and peremptory action here. Such order also more nearly

conforms to constitutional standards than does the order

of November 7 in the consolidated cases at bar.

In the alternative, and only in the alternative, we

respectfully submit that at a minimum the requirement of

compulsory integration of the student bodies (referred to

in Singleton as “merger” of the student bodies) should

be deferred until the fall term of 1970.

If the Writ of Certiorari is granted, we will point out

in detail the facts demonstrating that these separate and

different districts have met the tests laid down in Green,

Raney and Monroe. We attach a resume of several typical

districts as Exhibit 4 for the information of the Court.

Ear "mm

PRAYER

Petitioners pray that upon the issuance of a writ of

certiorari the hearing thereof be expedited as rapidly as

is consistent with the filing in this Court of the full records,

preparation of transcripts of proper portions thereof and

complete briefing by the attorneys for the parties.

Respectfully submitted, this 7th day of January, 1970.

A. F. SUMMER

Attorney General for the State of Mis-

sissippi

New Capitol Building

Jackson, Mississippi 39205

SATTERFIELD, SHELL, WILLIAMS AND BUFORD

Post Office Box 466

Yazoo City, Mississippi 39194

Special Counsel for the Petitioners, as-

sociated with other attorneys of

record for the Petitioners in each of

the Consolidated Cases

EXHIBIT 1

Extracts from Typical H. E. W. Plans

ITI.

DESEGREGATION OF FACULTY

AND OTHER STAFF

The School Board shall announce and implement the

following policies:

1. The principals, teachers, teacher-aides and other

staff who work directly with children at a school shall be

so assigned for the school year 1969-70 and subsequent

years that in no case will the racial composition of a staff

indicate that a school is intended for Negro students or

white students. For the 1969-70 school year the district

shall assign the staff described above so that the ratio of

Negro to white teachers in each school, and the ratio of

other staff in each, are substantially the same as each

such ratio is to the teachers and other staff, respectively,

in the entire school system.

The school district shall, to the extent necessary to

carry out this desegregation plan, direct members of its

staff as a condition of continued employment to accept

new assignments.

2. Staff members who work directly with children,

and professional staff who work on the administrative level

will be hired, assigned, promoted, paid, demoted, dismissed,

and otherwise treated without regard to race, color, or

national origin, except to the extent necessary to correct

discrimination.

3. If there is to be a reduction in the number of

principals, teachers, teacher-aides, or other professional

staff employed by the school district which will result in

a dismissal or demotion of any such staff members, the

staff member to be dismissed or demoted must be selected

on the basis of objective and reasonable non-discriminatory

standards from among all the staff of the school district.

In addition if there is any such dismissal or demotion, no

staff vacancy may be filled through recruitment of a per-

son of a race, color, or national origin different from that

of the individual dismissed or demoted, until each displaced

staff member who is qualified has had an opportunity to

fill the vacancy and has failed to accept an offer to do so.

Prior to such a reduction, the school board will de-

velop or require the development of non-racial objective

criteria to be used in selecting the staff member who is

to be dismissed or demoted. These criteria shall be avail-

able for public inspection and shall be retained by the

school district. The school district also shall record and

preserve the evaluation of staff members under the cri-

teria. Such evaluation shall be made available upon re-

quest to the dismissed or demoted employee.

“Demotion” as used above includes any reassignment

(1) under which the staff member receives less pay or has

less responsibility than under the assignment he held pre-

viously, (2) which requires a lesser degree of skill than

did the assignment he held previously, or (3) under which

the staff member is asked to teach a subject or grade other

than one for which he is certified or for which he has had

substantial experience within a reasonably current period.

In general and depending upon the subject matter in-

volved, five years is such a reasonable period.

Iv.

TRANSPORTATION

The transportation system shall be completely re-ex-

amined regularly by the superintendent, his staff, and the

school board. Bus routes and the assignment of students

to buses will be designed to insure the transportation of

all eligible pupils on a non-segregated and otherwise non-

discriminatory basis.

SCHOOL CONSTRUCTION AND SITE SELECTION

The size and location of new school buildings and ad-

ditions to existing buildings can significantly affect de-

segregation now and in the future.

All school construction, school consolidation, and site

selection (including the location of any temporary class-

rooms) in this system shall be done in a manner which

will prevent the recurrence of the dual school structure

once this desegregation plan is implemented.

Vi.

MAJORITY TO MINORITY TRANSFER POLICY

Whenever there shall exist schools containing a ma-

jority of Negro students, this school district shall permit

a student (Negro or white) attending a school in which

his race is in the majority to choose to attend another

school where space is available, and where his race is in

a minority.

COMPOSITE BUILDING INFORMATION FORM

SHARKEY ISSAQUENA LINE CONSOLIDATED

PROPOSED

DATE: Projected 1969-70

Capacity Students Staff

Name of School Grades Perm. *W. Ports Ww N T WwW N T Comments

Weathers Att. Center 7-12 1500 1800 308 1034 1342

Fielding L. Wright 2-6 900 12568 279 865 1144 Portables from Cary
to be relocated

2
Issaquena K-1 330 43 103 146 K Enrollment not

projected

Cary Close Use for materials

Center or other edu
purposes

630 2002 2632

* Maximum Capacity

*%* To be reduced
by implementation
of Item 5 (1969-70
Recommendations)

COMPOSITE BUILDING INFORMATION FORM

AMITE COUNTY

DATE: Projected 1969-70

Name of School Grades MC w i T Ww Me T Comments

Central School 1-6 1925 469 852 1321

Liberty Attendance Center 7-12 1200 448 726. 1174

Gloster A. C. 9-12 570 163 255 418

Amite Co. Training Sch. 1-8 1120 317 747 1066

Gloster A. C. 9-12 570 163 255 418

Crosby A. C. 1-6 280 64 0 64

TOTAL 1461 2582 4043

|
|

COMPOSITE BUILDING INFORMATION FORM

LAUDERDALE COUNTY

DATE: Projected 1969-70

Name of School Grades As w i J w Be Comments

Southeast 1-8 870 870 532 430 962 Add 3 Portables

Northeast 1-8 1080 1080 630 500 1130 Add 2 Portables Se

West 1-8 1080 1080 657 280 937 =

Clarkdale 1-8 780 780 322 160 482

Middleton 9-12 1850 1970 948 492 1440 Remove 3 Portables

* *

3089 1862 4961

* [ncreased figures over 1968-69 reflect authorized increase in enrollment.

DATE: Projected 1969-70

Name of School

Holly Bluff

Campbellsville

COMPOSITE BUILDING INFORMATION FORM

HOLLY BLUFF, MISS.

Capacity Students Staff
Grades Perm. W. Ports Ww N T Ww N T

1-b 300 360 100 252 352 b 10 15

6-12 480 140 231 871 7 9 16

780 360 240 483 723 12 19 31

Comments

2 Portables

COMPOSITE BUILDING INFORMATION FORM

DATE: Projected 1969-70

Name of School Grades

Lena 1-8

South Leake 9-12

Murphy 1-8

Grier 1-12

Edinburg 1-12

Carthage 1-8

Jordan 9-12

LEAKE COUNTY

Capacity

Perm. W. Ports Ww

162

165

268

200

250

536

6507

2088

Students

120

208

395

400

150

757

194

2224

282

373

663

600

400

1293

701

4312

Staff
N 7 Comments

2 Portables from
Murphy

DATE: Projected 1969-70

Name of School

Eva Harris High

Loyd Star Jr. High

Progress Elem.

West Lincoln

Bogue Chitto

Lincoln Co. Training

Enterprise

TOTAL

COMPOSITE BUILDING INFORMATION FORM

LINCOLN COUNTY

Capacity Students Staff
Grades Perm. W. Ports w N T w N 'T Comments

10-12 520 660 350 206 556 4 auxiliary classrooms

4-9 425 209 165 374

1-3 210 108 99 207
-
Ww

1-9 455 222 132 354

3-9 780 390 231 621 |

1-2 210 172 50 222

1-9 360 220 135 365

1671 1018 2689

COMPOSITE BUILDING INFORMATION FORM

YAZOO CITY, MISS,

DATE: Projected 1969-70

Capacity Students Staff

Name of School Grades Perm. W. Ports Ww N T w N Comments

Main Street 1-5 405 180 220 400

& Spec. Ed.

Woolfolk 1-5 718 1068 481 585 1066

Annie Ellise 1-b 432 462 200 242 442

Yazoo City Jr. H.S.
Webster St. 6 540 176 185 361

N. I. Taylor &
J. H. Webber 7-9 918 1098 bi2 515 1027

Yazoo City H.S. 10-12 540 810 465 342 807

37563 3438 2014 2089 4103

COMPOSITE BUILDING INFORMATION FORM

FRANKLIN COUNTY SCHOOLS

DATE: Projected Enrollment 1969-70

Capacity Students Staff

Name of School Grades Perm. W. Ports Ww N T Ww N T Comments

Franklin 7-12 1380 — 546 512 1058

Lillie Mae Bryant 1-6 1350 Hi 5317 560 1097 -

TOTAL 1083 1072 2155

Jones Special Retarded Ungraded 11 3 14

GRAND TOTAL 1094 1076 2169

EXHIBIT 2

Compilation from Reports to Department of Health,

Education and Welfare Described on Page 50

of the Petition

SCHOOL DISTRICTS AMONG THE 100 LARGEST IN THE UNITED STATES, WHICH HAVE NO HISTORY OF COMPULSORY LEGAL SEGREGATION

Column 1 Column 2 Column 3 Column 4 Column 5 Column 6 Column 7 Column 8 Column 9

Schools Composed of
Enrollment No. of Schools No. of Schools Students of One Race**

Total Having Less Having Less
White Negro Other Total Schools In Than 19, White Than 19 Negro Total Y% of All

District Students % Students Yo Students Y% Enrollment District Enroliment Enrollment Schools Schools

San Juan School Dist., Carmichael, Calif. 51,481 96.8 134 2 1,559 2.9 53,174 77 a 79 79 93.5

Fresno City School Dist., Fresno, Calif. 40,748 70.0 5,251 9.0 12,235 21.0 58,234 74 3 3 33 44.6
Garden Grove School Dist., Garden Grove, Calif. 47,147 89.1 83 2 5,678 10.7 52,908 70 Rt 68 68 97.1
Long Beach School Dist., Long Beach, Calif. 61,454 85.3 5,489 7.6 9,122 7.1 72,065 78 —— 46 46 59.0
San Francisco School Dist., Calif. 38.824% 41.3 25,923 27.5 29,407 31.2 94,154 1564 6 7 13 8.4
Los Angeles School Dist., Calif. 350,909 53.7 147,738 22.6 154,902 23.7 653,549 591 65 294 359 60.7
Mt. Diablo Unified Schools, Concord, Calif. 45,645 94.4 369 8 2,337 4.8 48,351 56 on 47 47 83.9
Oakland Unified Schools, Oakland, Calif. 19,835 30.9 35,386 55.2 8,881 13.9 64,102 88 12 — 12 13.6
Richmond Unified, Richmond, Calif. 28,860 66.9 10,424 24.2 3,839 8.9 43.123 63 2 13 15 23.8
Sacramento City Unified, Calif. 34,763 66.2 7,324 13.9 10,458 19.9 52,545 qq _ 3 3 3.9
San Diego Schools, Calif. 98,163 76.1 15,004 11.7 15,747 12.2 128,914 153 1 70 73 46.4
School Dist. No. 1, City and Co. of Denver, Colo. 63,398 65.6 13,639 14.2 19,540 20.2 96,577 116 3 51 54 46.6
Jefferson Co. Schools, Lakewood, Colo. 58,909 97.6 60 1 1,399 2.3 60,368 111 — 108 108 97.3
Chicago Public Schools, Chicago, Ill. 219,478 37.7 308,266 52.9 54,530 9.4 582,274 610 208 184 392 64.3
Fort Wayne Community Schools, Fort Wayne, Ind. 85,377 85.1 5,760 13.8 458 3.4 41,595 56 — 21 21 37.5
Indianapolis Public Schools, Indiana 72,010 66.3 36,577 33.7 ee Ht 108,587 119 17 35 52 43.7
Gary Community Schools, Gary, Ind. 14,063 29.0 29,826 61.6 4,542 9.4 48,431 45 21 4 25 55.6
Des Moines Community Schools, Iowa 42,425 91.2 3,611 7.8 496 1.0 46,532 81 et 36 36 44.4
Unified School Dist. No. 259, Wichita, Kan. 58,060 84.9 8,913 13.0 1,418 2.1 68,391 116 2 55 57 49.1
Boston School Department, Massachusetts 64,500 68.5 25,482 27.1 4,192 4.4 94,174 196 11 45 56 28.6
Detroit Public Schools, Michigan 115,225 38.9 176,478 59.6 4,531 1.5 296,234 302 67 31 98 32.5
Flint City School Dist., Flint, Mich. 28,645 61.6 17,212 37.0 638 14 46,495 55 3 12 15 27.3
Special School Dist. No. 1, Minneapolis, Minn. 62,490 89.3 5,255 7.5 2.261 3.2 70,006 98 = 42 42 42.9
Indep. School Dist., No. 625, St. Paul, Minn. 45,669* 90.7 2,917 5.8 1,752 8.5 50,338 83 en 40 40 48.2
Omaha Public Schools Dist. No. 1, Neb. 49.956* $0.0 11,284 18.1 1,191 1.9 62,431 95 2 46 48 50.5
Clark Co. School Dist., Las Vegas, Nev. 56,723 84.0 8,233 12.2 2,570 3.8 67,526 86 1 38 39 45.3
Albuquerque Public School System, N. M. 47,710 59.9 1,897 2.4 30,062 37.9 79,669 110 1 61 62 56.4
Jersey City School Dist., N. J. 16,457 44.4 15,998 43.1 4,628 12.5 37,083 35 2 3 5 14.3

Newark Public Schools, Newark, N. J. 13,716 18.0 55,057 72.5 7,187 9.5 75,960 80 29 — 27 33.8
Buffalo, N. Y., Erie Co. 43,942 60.9 26,381 36.6 1,792 2.5 72,115 101 16 5 21 20.8
Rochester, N. Y., Monroe Co. 32,016 67.6 13,679 23.9 1.677 3.5 47,372 59 . — in an
New York City Public Schools, N. Y., N. Y. 467,365 43.9 334,841 31.5 261,581 24.6 1,063,787 853 113 45 158 18.5
Cleveland, Ohio, Cuyahoga Co. 66,324 42.5 87,241 55.9 2,489 1.6 156,054 180 57 58 115 63.9
Cincinnati, Ohio, Hamilton Co. 49,231 56.7 37,275 42.9 301 4 86,807 106 13 27 40 87.7
Toledo, Ohio, Lucas Co. 43,658 70.8 16,473 26.7 1,553 2.5 61,684 76 3 28 31 40.8
Akron, Ohio, Summit Co. 43,341 74.0 15,137 25.8 111 2 58,589 71 2 23 25 35.2
Columbus, Ohio, Franklin Co. 81,655 75.7 28,729 26.0 315 3 110,699 168 6 71 79 45.8
Dayton, Ohio, Montgomery Co. 36 582 61.5 22,790 38.2 155 3 59,527 69 14 21 35 50.7
Portland Public Schools, Oregon 71,33 89.5 6,463 8.1 1,894 24 79,688 115 — 40 40 34.8

Schools Composed of
Students of One Race*

School Dist. of Philadelphia, Pa. 109,512 38.7 166,083 58.8 7.022 2.5 282,617 278 63 24 87 31.3
Pittsburgh City School Dist., Pa. 46,005 60.3 29,898 39.2 365 5 76,268 113 13 13 26 23.0
Granite School Dist., Salt Lake City, Utah 60,276 96.8 59 J 1,901 3.1 62,236 67 _. 66 66 98.5
Tacoma, Wash., Pierce Co. 32,646 87.2 3,635 9.5 1,239 3.3 37,420 66 — 7 7 10.6
Seattle, Wash., King Co. : 77,293 82.2 10,376 11.0 6,356 6.8 94,025 130 — 25 25 19.2
Milwaukee Public Schools, Milwaukee, Wisc. 95,089 72.9 31,130 23.9 4,154 3.2 130,373 1h7 12 67 79 50.3

3,238,906 56.5 1,809,680 31.6 684,465 11.9 766 1,982 2,748 42.4

* Adjusted for differences noted in preparation of form OS/CR 101

#% Qtudent bodies with less than 19% Negro or white students are considered to be of

one race. Races other than Negro and white are not considered.

5,733,051 6,484

EXHIBIT 3

Chronology of Events

The chronology of events is as follows:

The district court, consisting of three judges, for the

Southern District of Mississippi, sitting in banc, rendered

its opinion on May 13, 1969, and entered orders in each of

these cases on or about August 16, 1969, see Appendix H,

p. A63.

On June 10, 1969, attorneys for the private plaintiffs

filed notice of appeal and a motion for summary reversal.

On June 10, 1969, notice was issued by the Clerk of

the United States Court of Appeals for the Fifth Circuit

to the attorneys for the school districts in which there

were private plaintiffs, that the motion for summary re-

versal would be presented for ruling without oral argument

on or about June 20, 1969, together with any response or

opposition that may be filed by opposing counsel by that

date.

On June 12, 1969, the United States of America filed

notice of appeal in the cases where the United States of

America was plaintiff but filed no motion for summary

reversal in connection with said notice of appeal.

On June 23, 1969, the United States of America filed

a “Motion for Summary Reversal and Motion to Consoli-

date Appeals, etc.” in the cases in which the United States
of America was plaintiff.

On June 24, 1969, the district court entered an “order

as to the appellate record” in which the district court recog-

nized that the record in these cases was voluminous and

that it would be “a Herculean task for the appellate court

to examine such a voluminous record in any reasonable

length of time”. Accordingly, the district court ordered

that appellants’ counsel was to file with the Clerk of the

court within five days a designation of so much of the

record in each of the cases that they desired to be used

in the appeal. The district court further ordered that with-

in three days after receipt of a copy of such designation

by appellants’ counsel, appellees’ counsel was to file a

designation of those parts of the record not previously

designated which they deemed necessary for use on appeal.

The court further ordered that the Clerk should have thirty

days in which to prepare the record and to forward same to

the Clerk of the Court of Appeals for the Fifth Circuit

in New Orleans. This order was disregarded by the Court

of Appeals.

On June 25, 1969, the United States Court of Appeals

for the Fifth Circuit addressed a directive to counsel of

record in all cases to the effect that the Court would hear

oral argument on all of these cases “on the motion for sum-

mary reversal and the merits in all of the cases both private

plaintiffs and those of the United States”, see Appendix

A, p. A12. This directive advised that the argument would

be held in New Orleans beginning at 9:30 A.M., July 2,

1969, and any memoranda or responses would have to be

filed in the office of the Clerk by noon, July 1, 1969.

The Court further found:

6. The Court’s general approach will be to accept
the fact findings of the District Court and to determine
what, if any, legal relief is now required based thereon.
To the extent that appellants, private or government,
assert that any one or more specific fact findings (as
distinguished from mixed questions of law and fact)
are clearly erroneous, the appellants concerned shall
xerox copies of pertinent excerpts of the transcript of
the evidence for use by the Judges (4 copies) which
may be made available during argument.

No party filed xerox copies of pertinent excerpts from

the record asserting that any findings of fact of the District

Court were erroneous.

The foregoing letter dated June 25, 1969, was received

by some of the counsel of record on June 26, 1969, and by

others on June 27, 1969. This meant that counsel had, at

best, Friday, June 27, Saturday, June 28, Sunday, June

29 and Monday, June 30 to prepare any response, since it

had to be filed by noon, July 1, 1969.

Briefs filed by the United States of America were re-

ceived by some of the counsel on Monday, June 30, 1969 and

by others on Tuesday, July 1, 1969. In addition, supple-

ments to the brief were delivered to counsel on the morning

of the hearing, July 2, 1969. Thus, counsel were afforded

no opportunity whatsoever to examine or inspect same in

order to reply thereto either in writing or orally.

The proposed opinion-orders as submitted by the pri-

vate plaintiffs and the United States of America were not

submitted to nor seen by opposing counsel until the morning

of the hearing, July 2. Accordingly, there was no opportu-

nity to examine same or make any meaningful comments

in regard thereto.

The record in the district court was brought into the

courtroom and was present during the argument on July 2.

It is the understanding of counsel that this record con-

sisted of four large packing boxes and that these boxes were

still sealed as same had been sealed by the Clerk of the

district court and remained sealed during the entire argu-

ment.

The oral argument of counsel was concluded during

the middle of the afternoon on July 2.

The opinion of the panel of this Court was entered

July 3, 1969, applying to all of the cases.

The Appeals Court Order of July 3 (later amended

on July 25) provided that each board and HEW should

present to the District Court before August 11 an acceptable

plan of desegregation for each district.

On August 11 such HEW plans were filed with the

Court. Because of the lack of time to confer and collabo-

rate, none of the thirty-three defendant districts reached

an agreement with HEW and on August 11 each defend-
ant district also filed a separate plan with the District

Court.

On or before August 21, the districts filed objections

to the plans of HEW and attached affidavits containing

testimony supporting their own plans and criticizing the

plans of HEW. No objections to the school district plans

were thus filed by the plaintiff or intervenors.

As cited in the Petition for Writ of Certiorari filed by

the individual Plaintiffs-Appellants in Alexander:

On August 19, 1969, the Secretary of the Depart-
ment of Health, Education and Welfare sent a letter to
the Chief Judge of the Court of Appeals and the judges
of the district court requesting that the plans submitted
by the Office of Education be withdrawn and that the
1969-70 deadline for implementation of plans be re-
scinded.

On August 21 motion was filed by the United States

embodying as a part thereof the letter of the Secretary of

the Department of Health, Education, and Welfare dated

August 19, setting forth that the adoption of the terminal

plans which had been filed on August 11:

. . . must surely in my judgment, produce chaos, con-
fusion, and a catastrophic educational set-back to the
135,700 children, black and white alike, who must look
to the 222 schools of these thirty-three Mississippi dis-
tricts for their only available educational opportunity.

On August 28, 1969, after a hearing in the District Court

and a review of the record by the Court of Appeals, such

Court entered an order granting the relief prayed for and

changing the time table which had been set forth in the

judgment of July 3, 1969.

Petition for Writ of Certiorari was filed in this Court

in cause docketed as No. 632 and designated as Alexander

v. Holmes County Board of Education, et als., affecting the

nine cases therein described.

On October 29 the Per Curiam opinion of the Supreme

Court was rendered. Copies thereof were received by at-

torneys for the defendants on or about Friday, October 31,

and Saturday, November 1.

On Friday, October 31, the Court of Appeals issued its

order directing all parties to all twenty-five suits to file

with the Clerk of that Court on or before Wedesday, No-

vember 5, their recommended and proposed orders to ef-

fectuate and implement the opinion and decree of this

Court. Such order was received by the attorneys for the

parties in due course of the mails, a few being orally no-

tified.

The order of the Court of Appeals issued on Friday, Oc-

tober 31, contained the following directions:

Appellants, appellees and the United States of Amer-
ica as amicus or intervenor shall file with the Clerk of
this Court on or before the fifth day of November, 1969,
their recommended and proposed orders which will
properly effectuate and implement the opinion and de-
cree of the Supreme Court of the United States rend-
ered on October 29, 1969, in the above named cases.

On Monday, November 3, attorneys for the defendants

were advised by telephone and otherwise to be present

in New Orleans before the Court of Appeals at 1:00 P.M.

on Thursday, November 6, to attend a pre-order confer-

ence, and to have the superintendents of the school dis-

tricts present at that time.

On Wednesday, November 5, the various districts filed

their proposed orders embodying plans which had been

very hastily prepared and revised over the week end,

these being in the hands of the Court for from twenty-four

to thirty-six hours prior to the “pre-order conference” held

at 1:00 P.M. on Thursday, November 6. In the meanwhile,

the attorneys for the private plaintiffs had sent to the

Court copies of the several plans of desegregation filed by

HEW on August 11. Hence a very few hours was con-

sumed by the Court of Appeals in a comparison of these

plans.

The oral notification to attorneys for the school districts

to be present at the “pre-order conference” on November

6 included a statement that no arguments would be re-

ceived on that date but there would only be a discussion

of the order.

EXHIBIT 4

Resume of Facts Concerning Four School Districts

The evidence concerning the Meridian Separate School

District demonstrates that the school board faculty and

staff began preparation for desegregation in 1954.

Many people of the Caucasian race have attempted
to articulate what they believe to be the feeling and judg-
ment of our Negro citizens and their children. Regardless

of whom they may be and of the position they take, those

who disagree question the ability of a white individual to

reflect the beliefs, wishes and sentiments of the black com-

munity. “Since the memory of man runneth not to the

contrary” if the statements of an individual cannot be met

or his arguments cannot be refuted, the individual is then

attacked on any ground within the imagination of man.

In these cases the testimony of Mrs. Jeanie Ruth Crump

in the Meridian case (our Appendix 3) is irrefutable and

beyond question. She speaks from thirty years’ experience

as an educator in Mississippi.

Mrs. Crump is the Principal of the Wechsler Elemen-

tary School in Meridian. She holds a Bachelor of Arts

degree from Rust College in Holly Springs, Mississippi, and

a Master of Education and Administration from Tuskeegee

Institute. She is a member of the National Education As-

sociation, and of the American Teachers Association, of the

National Elementary Principals Association, the National

Classroom Teachers Association, the Department of Early

Childhood Education, a member of the Mississippi Teachers

Association, the Fifth Educational District Association, the

State Association of Principals and Supervisors, the Merid-

ian District Teachers Association. She is Chairman of

the Study Group Committee for the State Principals and

Supervisors Association and has served three times as

Secretary of the Mississippi Teachers Association. She

testified:

I have been involved in Civil Rights since I was a child.
I'm a protege of Mary McCall Bethune and Eleanor
Roosevelt and I have been since I was a youth and I
still am. I am a member of the NAACP. I'm a mem-
ber of the Black Methodists of the United Methodist
Church. I suppose that my husband has paid our dues
in the Southern Christian Leadership. I'm a member
of the Fellowship of the Concerned and I'm also a very
active in the Board of Social Concerned of the Metho-
dist Church, and also the National Council of Negro
Women.

Q. With your broad contact with the entire Negro
community, do you know of any fear of retaliation, any
hostility, or any type of pressure that has been ap-
plied by the White community or by anyone to keep
Negro children from choosing formerly all White
schools?

A. Idonot personally know.

Q. Have you heard of any?

A. Ihave not heard of any.

Q. Do you know of any public officials or school of-
ficials who has improperly influenced or sought to in-
fluence the choice of the Negro children?

A. Not any.

Q. Are you aware of any effort or any practice by the
Meridian Separate School District to discourage Ne-
groes from choosing formerly all white schools?

A. No. Notany.

Q. Mrs. Crump, you stated you've been with the
Meridian system for thirty years. State what changes,
if any, have been made since 1954, in the city school
system with reference to whether it’s dual or non-
unitary.

A. Well, of course, that’s self-evident. In 1954, we
know that we had a dual system and I don’t know
whether this is irrelevant or not, but I think that’s one

of the reasons why I stayed in Meridian, because of
the fact that I felt it needed to, if it didn’t do this on
its own integrity that it would need to do it. I felt that
this was this type of community. But in 1954, you
know that we had this dual system of education. But
so far as I'm concerned now, and my interpretation to
the community is that we have a unitary system, and if
any of our parents make reference to a White or Negro
school, I say “No, we don’t have such now. We have
the Meridian Separate School District. We just have
schools”.

Q. Have you participated personally in mixed faculty,
principal, and other professional meetings within the
Separate School District?

A. Well, it interests me greatly about the word mixed,
because I think of how that I mix a cake, but we do
have integrated faculty meetings. We've had inte-
grated principals’ meetings I guess for about twelve
years. But not any of our professional meetings are
anything but integrated. All of our teachers meetings
are integrated. All of our principals meetings are in-

tegrated. In fact, all of our staff meetings are inte-
grated. . . .

Well, I personally—you asked for an opinion—and I
personally think that at this time that this freedom of
choice is working well, and I think that it will work

even better, because, as I said before, I think that the
community of Meridian has accepted this and I think
that they are really more interested in good education
and good teachers than they are Black and White. . . .

Yes, I predict further faculty integration in Meridian,

and I think it’s possibly going to be faster than maybe
what Mr. Vincent assesses it to be. I think this par-
ticularly in regard to the Negro teachers.

Q. Do you predict further student integration in Me-
ridian?

A. Yes, I predict that and I predict that there will be
more, rather, there will be some students coming into

Negro schools. I believe here, come the ’69 session.

BY THE COURT: Take from your school, from Wech-
sler, would they resent the Court telling them they had
to get into some other school? Or go to an all White
school?

A. I believe that they would. I believe that they
would. ..,

BY THE COURT: So you think to take that choice
away from them and tell them they had to go into
another school that they would rebel or what-not?

A. 1 think so. I think the children would rebel as

much as their parents would, because I think they have
fundamental reasons for their choices. In fact, I'm sure
some of them do. . . .

Q. That they've experienced the zoning plan and
didn’t like it too well?

A. Yes, that’s right. For example, sir, we have stu-
dents coming from every section of the city to Merid-
ian, I mean, to Wechsler. We have them from com-
ing past Chalk, coming past West End. We have them

coming past East End; we have them coming past Mt.
Barton, coming to Wechsler. They chose to come. . . .

Mr. Paul L. Franklin, Assistant Superintendent for

Business Affairs, testified as follows:

We have a teacher salary schedule. All teachers are
employed without regard to race on a single salary
schedule, being paid the same, based upon their experi-
ence and qualifications. We have salary schedule for
all non-certified or classified employees, and these are
paid on the same salary schedule based upon their ex-
perience and training without regard to race. Our
school buses are operated without regard to race, and
as a bus becomes in need of replacing, it’s replaced
without regard to race. We do have uniform budget-
ing, the allocations are made to the individual schools

in operation, based upon the per pupil allocations, and
this is without regard to race. We have uniformity in
our building construction and this is also without regard
to race. Our buildings have been corrected. The in-

adequacies and our buildings and equipment through-
out the School District will be comparable without re-
gard to race. We have central planning of menus for
our school system. This is done with a committee of
cafeteria managers from each individual school. This is
on an integrated basis. We have in-service training for
our non-instructional or classified employees strictly
on an integrated basis and this has taken place for at
least ten years, now. We have all of our teachers now,
with the exception of a few vocational shop teachers,
have a degree or better, in regardless of what school
they teach or regardless of the race. . .

No, this took place gradually over a period of time,
beginning with 1954. In 1954, we adopted a salary
schedule for teaching personmel. This was the first
step, I would say, to this.

Q. And, what was the next step?

A. Well, in 1958, we began integrated in-service pro-
gram for our non-certificated personnel.

Q. And what was the next step?

A. During this same period of time of, say ’57, 1957-
58, we began an extensive construction program to
try to make our schools uniform and all of them ade-
quate.

Q. The other matters, the other items that have been
made unitary, did they take part from year to year?

A. Yes, they did. Of course, in 1958, we began uni-
form menus throughout the school system.

Q. When did you testify that the professional per-
sonnel policies was adopted by the board on the first
occasion?

A. I'm not, I don’t remember the exact date on that,
but I think it was in ’54, but this can be verified by
the Superintendent or Assistant Superintendent for
Instruction.

Mr. Arnold Vincent, Assistant Superintendent of In-

struction, testified as follows:

Q. Mr. Vincent, based upon your experience, your
observation, and other work you have done with the
Meridian school district, what is your best judgment
about whether or not the freedom of choice plan is
working? . . .

A. The first year was 20. That was ’65-66. This
next year was 103 Colored children chose traditionally
White schools. In ’67-68, 253. In 1968-69, 457. There
has been about 100% increase every year in both the
faculty desegregation and the student population de-
segregation in schools.

Mr. Charles A. Armstrong, Principal of Meridian

Senior High School, testified as follows:

Since 1960—well, actually since 1953 in Meridian, I’ve
been involved, but since 1960 direct responsibility of

school beginning, of course, rests upon my shoulders
with a lot of other people we involve. I would say
that we had the best beginning of this year that we
have had in any of the time of which I know about.
It was smooth and orderly. No report of any harass-
ment, any intimidation. Our teachers and our stu-

dents on the first day of school are ready to teach and
just a smooth beginning of school.

Q. Do the Negro students participate in the same ac-
tivities as all the other students?

A. Yes, sir. There's no regard to race or color here
at all.

Q. What about your athletic program?

A. We have Negro students involved in football,
basketball and track and baseball. Our championship
football team of last year, one of the starting members
was a young man who played tackle, a 265 pound
youngster who attracted a lot of attention with his
prowess as an athlete. In basketball, we had two
members, and there were several, eight or mine stu-

dents who were out for football. This year, one other
Negro student is a starter on the kicking teams. In
basketball, we had two members who made our travel-

ing squad and who both played in varsity and B com-
petition. In other activities, in band, I think we
have—

Q. Chorus?

A. Chorus, Choralaires, all of our club activities, club
activities stemming from special interests, and class-
room activities, service clubs. I think twelve of these
clubs have Negro members by their choice.

Q. What is your own attitude toward desegregation
at this school, Mr. Armstrong?

A. Well, I have no problem with the whole idea.
These are children. I'm involved in public education.
I think it’s awfully important that public education
continue. I have no problem whatsoever personally
with it at all. And I think that these youngsters need
to be treated as human beings with educational prob-
lems and everything that we do is directed to this.
With all our students, now, with Negro and the White.
This permeates our organization.

Q. Do you feel that a true and real free choice is

being exercised by the students?

A. i1l:de.

Q. Do you feel that the freedom of choice plan is
working, Mr. Armstrong?

A. lcertainly do. ...

BY THE COURT: Excuse me, Counsel. Do you know
of any plan which would be more effective than the
freedom of choice plan to accomplish the result that the
Supreme Court asked for in the Green case, that is, to
destroy every root and branch of the traditional dual
system, and at the same time to accomplish the highest
level of educational achievement?

BY THE WITNESS: 1 don’t know of any such plan

that would do this. I think that if it happens and as
it happens it'll happen with people wanting it to hap-
pen by making choices, for people seeing that the
process will work by choice.

The Enterprise Consolidated School District is one of

the smallest school districts among these consolidated

cases. The undisputed testimony appearing in the record

(Appendix 2) reveals that 27% of the black students in

such district attend schools formerly predominantly white.

As the ratio of black students to white students in this

district is 40% black and 60% white, this is an outstanding

achievement. The projected percentage for the school

year 1968-1969 is 30%. This demonstrates the unreliability

of the statistics appearing in the Petition for Writ of

Certiorari, particularly in Note 3 on page 4 thereof. It

is said that such statistics are taken “for the most part”

from compilations by the United States submitted to the

Court of Appeals. However, it is seen by comparing the

statistics utilized by the Court of Appeals (Petitioners’

Appendix B, pp. 30a-31a), that only seven of the fourteen

school districts now before the Court are included therein.

This demonstrates a complete unreliability of the figures

or “statistics” utilized in this petition.

We have attached as appendix the pertinent extracts

from the evidence applicable to the Yazoo City and Yazoo

County School Districts. As these districts are about

average size they may also be considered typical.

The testimony of Honorable John Holmes, President

of the Board of Trustees of the Yazoo City District, is of

material importance. He is the son of a former distin-

guished member of the Court of Appeals of the 5th Cir-

cuit, Judge Edwin Holmes, now deceased. The District

Court found concerning all of the school districts in the

consolidated cases that the injunction prohibiting any mem-

ber of the faculty from influencing the choice of any parent

or student has constituted a major factor in preventing

more mixing under the freedom of choice plan (See Pe-

titioners’ Appendix A, pp. 4a-5a).

In response to a question concerning such provision of

the injunction, Mr. Holmes testified that this particular

provision, in his opinion, had destroyed the ability of the

school officials to obtain greater numbers of transfers by

the students to schools in which their race is in the minor-

ity (See Appendix 1 hereto). This record also demon-

strates that the one statistic chosen by the Petitioners con-

veys a false picture of the actual accomplishments under

the freedom of choice plans.

The one statistic utilized in the petition for Writ of

Certiorari is very misleading. An illustration is the fact

that in the formerly white Bentonia School the percentage

of Negro students to total enrollment average 15.8% and

five grades have more than 20%. In the formerly white

Bentonia School the percentage of Negro students varies

in the several grades, averaging 10 1/2%. Other evidence

appears in the record demonstrating a true compliance

with Constitutional requirements.

The Natchez Special Municipal School District is a de-

fendant in one of the 25 consolidated cases. Although

not now before this Court, it is typical of the 19 school

districts necessarily affected by the determination of the

pending proceeding.

The Opinion of the District Court rendered on May

16, 1969 (at p. 9a of Petitioners’ Appendix), made a find-

ing concerning the Natchez schools. The Court of Ap-

peals did not disturb this finding in its opinion of July

3, 1968 (appearing at p. 28a of Petitioners’ Appendix).

Such finding by the District Court is as follows:

The Natchez schools, appearing as Civil Action No.
1120 (W), have demonstrated outstanding progress
with the freedom of choice plan. These schools accom-
modate approximately 10,400 children, 55% of whom

are Negro and 45% of whom are white. There are 40
Negro teachers in the predominantly white schools
and 53 white teachers in the predominantly Negro
schools. There are 456 Negro children in the pre-
dominantly white schools. There are 40 white and
70 Negro children in the vocational schools. A Negro
is on the school board. All decisions of the school
board have been unanimous. It is the view of the
Court in this case that these schools have shown
satisfactory and acceptable progress under all of the
facts and circumstances in complying with all of the
requirements of the model decree. In this case, as in
all of these cases, the bare figure statistics are mis-
leading and tell only part of the story.

The evidence introduced at the August 21-22, 1968,

hearing discloses that in the Natchez Special Municipal

Separate School District (herein referred to as Natchez)

does not operate a dual system of schools. All of the schools

in the Natchez system are fully and equally accredited by

the two Mississippi Accrediting Commissions and by the

regional agency known as the Southern Association of

Schools and Colleges. All schools in the Natchez system

are comparable as to facilities, per pupil expenditure,

teacher-pupil ratio and curricula. The Instructional Ma-

terials Center for all schools, including library and teach-
ing aid materials, is operated from a central office. The

transportation system is desegregated and is operated from

a central office, with buses scheduled for the convenience

of all students equally. A transportation system within

the Natchez city limits, supported entirely by local funds,

is operated in order to make the freedom of choice plan

more effective.

The Natchez freedom of choice plan is working ef-

fectively to accomplish desegregation. The Natchez school

board is composed of members of both races and has never

had a dissenting vote on any issue involving school de-

segregation. The administrative staff is desegregated.

Forty Negro teachers teach in the white schools and 53

white teachers teach in the Negro schools on a permanent

half-day basis. Of the 16 attendance centers nine are in-

tegrated. Eight of these are predominantly white and one

is predominantly Negro. In at least one predominantly

white school there are approximately 30% Negro students

in attendance. In the predominantly Negro school which

is desegregated, there are approximately 40% white stu-

dents in attendance. Integration among students of the

district increased approximately 100% from the 1967-68

school year to the 1968-69 school year.

All faculty and staff meetings are integrated, and all

in-service workshops are integrated. Athletic programs

at the various schools are integrated and students of both

races are on the squads at the mixed schools.

This extensive integration and complete desegregation

has taken place during the two and one-half years since

the freedom of choice plan was inaugurated. This is par-

ticularly remarkable in view of the “near state of anarchy”

which had existed at Natchez during recent months re-

ferred to in the District Court’s order dated January 28,

1966. During 1965 the District Court rendered its findings

of fact and conclusions of law as to Natchez, reciting:

The City of Natchez and Adams County, Missis-
sippi, are now and have, for the past two months, been
subjected to unusual racial tension and unrest. Dem-
onstrations, boycotts, and riots have been and are be-
ing threatened, and the situation recently developed to
the extent that the National Guard was ordered into
said City to protect persons and property against vio-
lence.

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Petition for Writ of Certiorari to the US Court of Appeals for the Fifth Circuit

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