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VOLUME II
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
APPENDICES A THROUGH H INCLUSIVE
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
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
ER 1 ER ee hE ee Sen Al10
Letter Directive of the Court of Appeals of June 25,
1869 he 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, 1988 . ..........coeciessrniricninaneis 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 ......................... A46
Appendix G—
Letter of November 4, 1969 re Proposed Order ........ A58
Proposed Oder... eee ee A60
Appendix H—
Opinion of the District Court Approving Freedom of
CHOICE PIONS cs riser cs ciara nies A63
Al
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.
(IncLupING CONSOLIDATED CASES)
PETITION FOR WRIT OF CERTIORARI WITH MOTION
TO EXPEDITE HEARING
APPENDIX A
Opinion of the Court of Appeals of July 3, 1969
[Caption omitted]
Before
Brown, Chief Judge,
THORNBERRY and MORGAN, Circuit Judges.
PER CURIAM:
As questions of time present such urgency as we ap-
proach the beginning of the new school year September
A2
1969-70, the court requested in advance of argument that
the parties submit proposed opinion-orders modeled after
some of our recent school desegregation cases. We have
drawn freely upon these proposed opinion-orders.
These are twenty-five school desegregation cases in
a consolidated appeal from an en banc decision of the U. S.
District Court for the Southern District of Mississippi.
These cases present a common issue: whether the District
Court erred in approving the continued use by these school
districts of freedom of choice plans as a method for the
disestablishment of the dual school systems.
The plaintiffs’ position is that the District Court erred
in failing to apply the principles announced in recent deci-
sions of the Supreme Court and of this Court.
These same school districts, along with others, were
before this Court last year in Adams v. Mathews, 403 F.2d
181 (5th Cir., 1968). The cases were there remanded with
instructions that the district courts determine:
(1) whether the school board’s existing plan of de-
segregation is adequate “to convert [the dual system]
to a unitary system in which racial discrimination
would be eliminated root and branch” and (2) whether
the proposed changes will result in a desegregation
plan that “promises realistically to work now.”
403 F.2d at 188. In determining whether freedom of choice
would be acceptable, the following standards were to be
applied:
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 facul-
ties and school activities then, as a matter of law, the
existing plan fails to meet constitutional standards as
established in Green.
A3
Ibid.
In all pertinent respects, the facts in these cases are
similar. No white student has ever attended any tradi-
tionally Negro school in any of the school districts. Every
district thus continues to operate and maintain its all-
Negro schools. The record compels the conclusion that to
eliminate the dual character of these schools alternative
methods of desegregation must be employed which would
include such methods as zoning and pairing.
Not only has there been no cross-over of white stu-
dents to Negro schools, but only a small fraction of Negro
students have enrolled in the white schools.! The highest
1. Illustrative are the following tables, corrected to the latest
available data furnished and checked by counsel, in the cases in
which the Government is a party showing the racial character of
the schools in each district and the enrollment by race:
RACIAL CHARACTER
Predom-
Total Number All- All- nantly
District of Schools Negro White White
Amite 1
Canton
Columbia
Covington
Forrest
Franklin
Hinds
Kemper
Lauderdale
Lawrence
Leake
Lincoln
Madison
Marion
Meridian
Natchez-Adams
Neshoba
North Pike
Noxubee
Philadelphia
Sharkey-Issaquena
Anguilla-Line
South Pike
Wilkinson
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percentage is in the Enterprise Consolidated School Dis-
trict, which has 16 percent of its Negro students enrolled
in white schools—a degree of desegregation held to be in-
adequate in Green v. County School Board, 391 U. S. 430
(1968). The statistics in the remaining districts range
from a high of 10.6 percent in Forrest County to a low of
0.0 percent in Neshoba and Lincoln Counties. For the most
part school activities also continue to be segregated. Al-
though Negroes attending predominantly white schoools do
participate on teams of such schools in athletic contests,
in none of the districts do white and all-Negro schools
compete in athletics.
These facts indicate that these cases fall squarely
within the decisions of the Supreme Court in Green and
ENROLLMENT BY RACE AND PERCENTAGE
OF NEGROES IN WHITE SCHOOLS
1968-1969 Enrollment Negroes in White Schools
District Negro White Number Percentage
Amite 2,649 1,484 63 2.4 9
Canton 3,440 1,352 4 11¢
Columbia 912 1,553 60 6.6 9%
Covington 1,422 1,968 89 5.1:
Forrest 480 3,085 81 16.9 9%
Franklin 1,029 1,124 38 3.7 6,
Hinds 7,409 6,559 481 6.5 %
Kemper 1,896 786 11 .589
Lauderdale 1,872 3,060 26 1.4 9
Lawrence 1,263 1,889 32 2.5 9,
Leake 1,568 1,950 67 4.3 9
Lincoln 941 1,149 5 2 0
Madison 3,198 1,128 41 1.3 o;
Marion 1,082 1,741 34 3.1
Meridian 3,974 5,805 606 15.2 9,
Natchez-Adams 5,509 4,496 541 9.8 9
Neshoba 591 1,875 1 169%
North Pike 632 708 2 319
Noxubee 3,002 829 95 3.2 %
Philadelphia 406 923 11 2.7 9%
Sharkey-Issaquena 1,241 603 104 6.4 9%
Anguilla-Line 769 207 30 3.9 9%
South Pike 1,737 994 46* 2.6
Wilkinson 2,032 689 55 2.7 o;
Note: There is a disagreement over proper accounting for some
special classes which, for these purposes, we consider un-
important.
Ab
its companion cases and the decisions of this Court. See
United States v. Greenwood Municipal Separate School
District, 406 F.2d 1086 (5th Cir. 1969); Henry v. Clorks-
dale Municipal Separate School District, No. 23255 (5th
Cir., March 6, 1969); United States v. Indianola Municipal
Separate School District, No. 25,655 (5th Cir, April 11,
1969); Anthony v. Marshall County Board of Education,
No. 26,432. (5th Cir., April. 15, 1969); Hall v. St. Helena
Parish School Board, No. 26,450 (5th Cir., May 28, 1969);
Davis v. Board of School Commissioners of Mobile County,
No. 26,886 (5th Cir., June 3, 1969); United States v. Jef-
ferson County Board of Education, No. 27,444 (5th Cir.,
June 26, 1969); United States v. Choctaw County Board of
Education, 5 Cir. 1969, F.2d (No. 27.207, July 1,
1969); United States v. The Board of Education of Baldwin
County, 5 Cir. 1969, 7.24 (No. 27,281, July 1, 1969);
United States v. The Board of Education of the City of
Bessemer, 5 Cir. 1969, F.2d (Nos. 26,582; 26,583;
26,584; July 1, 1969). The proper conclusion to be drawn
from these facts is clear from the mandate of Adams v.
Mathews, supra: ‘as a matter of law, the existing plan
fails to meet constitutional standards as established in
Green.”
We hold that these school districts will no longer be
able to rely on freedom of choice as the method for dises-
tablishing their dual school systems.
This may mean that the tasks for the courts will be-
come more difficult. The District Court itself has stated
that it “does not possess any of the training or skill or ex-
perience or facilities to operate any kind of schools; and
unhesitatingly admits to its utter incompetence to exercise
or exert any helpful power or authority in that area.”
And this Court has observed that judges “are not edu-
Ab
cators or school administrators.” United States v. Jeffer-
son County Board of Education, supra at 855. Accordingly,
we deem it appropriate for the Court to require these
school boards to enlist the assistance of experts in edu-
cation as well as desegregation; and to require the school
boards to cooperate with them in the disestablishment of
their dual school systems.
With respect to faculty desegregation, little progress
has been made.? Although Natchez-Municipal Separate
District has a level of 19.2% and Lawrence County a level
of 10.6%, seven school districts have less than one full-
time teacher per school assigned across racial lines. In the
remaining systems, fewer than 10 percent of the full-time
faculties teach in schools in which their race is in the
minority. Faculties must be integrated. United States
v. Montgomery County Board of Education, No. 798, at 8
2. The latest corrected figures (see Note 1 supra) are:
Full & Part Full time desegre- Part time desegre-
time teachers gating teachers gating teac
District Negro White Negro White Negro
Amite 95 66 0 0 0
Canton 120 21 3 i 1
Columbia 43 71 5 4 0
Covington 64 103 3 3 1
Forrest 43 122 4 S 1]
Franklin Ai 45 3 4 1
Hinds 295 281.9 29 0
Kemper 68 45 0 1 0
Lauderdale 82 131 8 3 0
Lawrence 50 81 10 4 0
Leake 87 90 0 3 0
Lincoln 38 74 0 0 0
Madison 147 66 0 8 0
Marion 438 96 4 6 0
Meridian 180 317 8 17 4
Natchez-Adams 484 0 0 0
Neshoba 35 86 0 3 0
North Pike 26 30 1 2 1
Noxubee 135 61 6 1 0
Philadelphia 25 46 0 0 0
Sharkey-Issaquena 71 31 0 0 0
Anguilla-Line 0 0 0
South Pike 78 52.8 2 3.3 0
Wilkinson 97 39 0 6 0
hers
White
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AT
(Sup.Ct., June 2, 1969). Minimum standards should be
established for making substantial progress toward this
goal in 1969 and finishing the job by 1970. United States
v. Board of Education of the City of Bessemer, 5 Cir.,
1968, 396 F.2d 44; Choctaw County, supra, Baldwin County,
supra.
The Court on the motion to summarily reverse or al-
ternatively to expedite submission of the case filed by the
Government and the private plaintiffs concluded that
fundamental constitutional rights of many persons would
be jeopardized, if not lost, if this Court routinely calen-
dared this case for briefing and argument in the regular
course. Before we could ever hear it, the opening of the
school year September 1969-1970 would have gone by.
With this and the total absence of any new issue even
resembling a constitutional issue in this much litigated field,
we therefore concluded that the appeals should be ex-
pedited. Full arguments were had and representatives
from every District were heard from. In the course of
these arguments, several contentions were made as to
which we make these additional specific comments.
Based upon opinion surveys conducted by presumably
competent sampling experts, testimony of school admin-
istrators, board members, and educational experts, the
School Districts urged, and the District Court found in
effect, that the failure of a single white student to attend
an all-Negro school was due to the provisions of our Jej-
ferson decree which in effect prohibited school authorities
from influencing the exercise of choice by students or
parents. We find this completely unsupported. This
record affords no basis for any expectation of any sub-
stantial change were the provision modified.
Based upon similar testimony, the School Districts
urged a related contention that the uncontradicted statistics
AS
showing only slight integration are not a reliable indicator
of the commands of Green. This argument rests on the
assertion that quite apart from a prior dual race school
system, there would be concentration of Negroes or white
persons from what was described as “polarization.” To
bolster this, they pointed to school statistics in non-southern
communities. Statistics are not, of course, the whole an-
swer, but nothing is as emphatic as zero, and in the face
of slight numbers and low percentages of Negroes attend-
ing white schools, and no whites attending Negro schools,
we find this argument unimpressive.
In the same vein is the contention similarly based on
surveys and opinion testimony of educators that on stated
percentages (e.g., 20%, 30%, 70%, etc.), integration of Ne-
groes (either from influx of Negroes into white schools or
whites into Negro schools), there will be an exodus of
white students up to the point of almost 100% Negro
schools. This, like community response or hostility or
scholastic achievement disparities, is but a repetition of
contentions long since rejected in Cooper v. Aaron, 1958,
2553. U.8.1,........ BC cinsnes fon 1.04. ....... ; Stell v. Savan-
nah-Chatham County Bd. of Ed., 5 Cir., 1964, 333 F.2d 55,
61; and United States v. Jefferson County Bd. of Ed., 5 Cir.
1969, ....... Rod... [No. 27444, June 26, 1969].
The order of the District Court in each case is reversed
and the cases are remanded to the District Court with the
following direction:
1. These cases shall receive the highest priority.
2. The District Court shall forthwith request that edu-
cators from the Office of Education of the United States
Department of Health, Education and Welfare collaborate
with the defendant school boards in the preparation of
plans to disestablish the dual school systems in question.
A9
The disestablishment plans shall be directed to student and
faculty assignment, school bus routes if transportation is
provided, all facilities, all athletic and other school activi-
ties, and all school location and construction activities. The
District Court shall further require the school boards to
make available to the Office of Education or its designees
all requested information relating to the operation of the
school systems.
3. The board, in conjunction with the Office of Edu-
cation, shall develop and present to the District Court
before August 11, 1969, an acceptable plan of desegregation.
4, If the Office of Education and a school board agree
upon a plan of desegregation, it shall be presented to the
District Court on or before August 11, 1969. The court shall
approve such plan for implementation commencing with
the 1969 school year, unless within seven days after sub-
mission to the court any party files any objection or pro-
posed amendment thereto alleging that the plan, or any
part thereof, does not conform to constitutional standards.
5. If no agreement is reached, the Office of Education
shall present its proposal to the District Court on or before
August 11, 1969. The Court shall approve such plan for
implementation commencing with the 1969 school year, un-
less within seven days a party makes proper showing that
the plan or any part thereof does not conform to constitu-
tional standards.
6. For plans to which objections are made or amend-
ments suggested, or which in any event the District Court
will not approve without a hearing, the District Court shall
hold hearings within five days after the time for filing ob-
jections and proposed amendments has expired. In no
event later than August 21, 1969.
7. The plans shall be completed, approved, and
ordered for implementation by the District Court no later
Al0
than August 25, 1969. Such a plan shall be implemented
commencing with the beginning of the 1969-1970 school
year.
8. Because of the urgency of formulating and approv-
ing plans to be implemented for the 1969-70 school term it
is ordered as follows: The mandate of this Court shall
issue immediately and will not be stayed pending petitions
for rehearing or certiorari. This Court will not extend the
time for filing petitions for rehearing or briefs in support
of or in opposition thereto. Any appeals from orders or
decrees of the District Court on remand shall be expedited.
The record on any appeal shall be lodged with this court
and appellants’ brief filed, all within ten days of the date
of the order or decree of the district court from which the
appeal is taken. Appellee’s brief shall be due ten days
thereafter. The court will determine the time and place for
oral argument if allowed. The court will determine the
time for briefing and for oral argument if allowed. No
consideration will be given to the fact of interrupting the
school year in the event further relief is indicated.
REVERSED AND REMANDED WITH DIRECTIONS
Modification of Order of the Court of Appeals
of July 25, 1969
[Caption omitted]
Before
Brown, Chief Judge,
THORNBERRY and MorcAN, Circuit Judges.
Per Curiam:
The opinion published in the above styled cases on
July 3, 1969 is hereby modified by renumbering former
paragraph 8 to be number 7 and striking from such order,
on pages 17 and 18, paragraphs 5, 6 and 7 in their entirety,
All
and inserting in lieu thereof new paragraphs 5 and 6 which
shall read as follows:
9. If no agreement is reached, the Office of Education
shall present its proposal for a plan for the school
district to the district court on or before August 11,
1969. The parties shall have ten (10) days from the
date such a proposed plan is filed with the district
court to file objections or suggested amendments
thereto. The district court shall hold a hearing on
the proposed plan and any objections and suggested
amendments thereto, and shall enter a plan which
conforms to constitutional standards no later than
ten (10) days after the time for filing objections has
expired.
6. A plan for the school district shall be entered for
implementation by the district court no later than
September 1, 1969 and shall be effective for the be-
ginning of the 1969-1970 school year. The district
court shall enter Findings of Fact and Conclusions
of Law regarding the efficacy of any plan which is
approved or ordered to immediately disestablish the
dual school system in question. Jurisdiction shall
be retained, however, under the teaching of Green
v. County School Board of New Kent County, 391
U. S. 430, 439 (1968), and Raney v. Board of Educa-
tion of Gould School District, 391 U.S. 443, 449
(1968), until it is clear that disestablishment has
been achieved.
Al2
Letter Directive of the Court of Appeals
of June 25, 1969
UNITED STATES COURT OF APPEALS
Fira CircuIlr
Orrick oF THE CLERK
EpwArD W. WADSWORTH Room 408-400 RovAaL ST.
CLERK NEw ORLEANS, La. 70130
June 25, 1969
To CouNseL LiSTED BELOW
Nos. 28030 and 28042
United States v. Hinds County School Board, et al.
Gentlemen:
I am directed by the Court to forward the following
instructions regarding the 25 consolidated Mississippi
school cases (U.S. v. Hinds County School Board, et al.):
1. The Court will hear oral argument on all of these
cases on the motion for summary reversal and the merits
in all of the cases both private plaintiffs and those of the
United States. The argument will be held in New Orleans
beginning 9:30 A.M., Wednesday, July 2. Counsel should
hold themselves in availability for Thursday, July 3, as
well. The parties will work out amongst themselves a
suitable proposed schedule of orders and probable times.
The Court does not put any specific limitation on time but
of course desires no unnecessary repetition.
2. The United States is to arrange for a court re-
porter, the cost to be charged as costs in the case.
3. The parties are free to file in typewritten form,
with xerox copies or similar reproduction, any additional
Al3
memoranda or briefs and it would be helpful if copies are
simultaneously sent both to the Clerk and to the Judges
at their home stations. Special effort should be made to
have any memoranda, responses, etc. in the Clerk’s office
by Noon, Tuesday, July 1. Responses and rejoinders will
be permitted as desired.
4. The District Clerk is to furnish, and the U. S.
Department of Justice is to procure and have available in
the courtroom for use by the Judges on the bench, with
respect to each school district involved, copies of the latest
statistical report required to be filed with the District
Court under the Jefferson type decree theretofore entered.
Counsel are also directed to supply hopefully in a mutually
agreeable way a consolidated recap which sets out the
statistical data substantially in the format of the Exhibit
“J” attached to the motion of the private plaintiffs-appel-
lants covering each of the Boards of Education. If desired,
these tables may be adapted to show relative percentages
of all pertinent items including those set forth in Exhibits
A through D attached to the response to motion for sum-
mary reversal filed June 20 by Messrs. Bridforth and
Satterfield.
5. The Court takes notice of Judge Cox’s order with
respect to the record but since the appeal is being ex-
pedited on the original record without reproduction re-
quired or permitted, the U. S. Attorney shall make ar-
rangements with the District Clerk to transmit to the
Clerk of the Court of Appeals the entire record of the
District Court including the transcript of the evidence in
all of the cases so that it will be available to the Court
as needed during argument and submission. The Court
contemplates, however, that the record may be returned
in a very short time. If the District Clerk prefers, it would
be quite in order for him, one of his deputies, or the U.S.
Al4
Attorney to transport and deliver the record to the Clerk
of the Court of Appeals.
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 er-
roneous, 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.
7. To enable the Court to announce a decision as
quickly as possible after submission, the appellants are re-
quested to file in 15 copies a proposed opinion-order with
definitive time table and provisions on the hypothesis that
the appeal will be sustained. These should be modeled
somewhat on the form used by the Court in its recent opin-
ions in Hall, et al. v. St. Helena Parish School Board, et al.,
No. 26450, May 28, 1969, and Davis, et al. v. Board of School
Commissioners of Mobile County, et al., No. 26886, June 3,
1969. When and as additional opinion-orders of this type
are issued in other school desegregation cases, copies will
be immediately transmitted to all counsel so that the parties
can make appropriate comments during argument with
respect to suggested modifications or changes in their pro-
posed opinion-orders.
The Court hopes that the appellants, private and gov-
ernment, can collaborate and submit a mutually agreeable
proposed opinion-order and it desires from the appellees
contrary proposed orders covering separately (a) on the
hypothesis that the decrees of the District Court will be
affirmed, and (b) on the hypothesis that the appellants’
motion and appeals will be sustained for reversal.
Al5
8. The Court recognizes that this is a huge record in-
volving a large number of parties and matters of great
public interest and importance. Everyone will be heard
but the Court also expects the distinguished counsel who
appear in this case to collaborate in the best traditions of
the bar to the end that waste of time and effort is elim-
inated and repetition avoided as much as possible. The
Clerk will stand ready to be of whatever assistance he can
in meeting this very compressed time schedule.
Very truly yours,
EpwArRD W. WADSWORTH,
Clerk
By /s/ GILBERT F. GANUCHEAU
Gilbert F. Ganucheau
Chief Deputy Clerk
GFG:adg
cc: (See attached list)
Al6
APPENDIX B
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Nos. 28,030 and 28,042
(Civil Action No. 4075(J))
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
V.
HINDS COUNTY SCHOOL BOARD, et al,
Defendants-Appellees.
(AND ALL OTHER CONSOLIDATED CASES)
APPEALS FROM THE UNITED STATES DisTRicT COURT FOR THE
SOUTHERN DISTRICT OF MISSISSIPPI
Before BELL, THORNBERRY, and MORGAN, Circuit
Judges.
PER CURIAM:
These cases, consolidated for order, are here for dis-
position in light of the decision of the Supreme Court in
Alexander v. Holmes County Board of Education, No. 632,
dated October 29, 1969. They involve 30 school districts
in the Southern District of Mississippi. Suits to disestab-
lish the dual school system were brought against fourteen
of the school districts by private litigants: Anguilla, Can-
ton, Enterprise, Holly Bluff, Holmes, Leake, Madison,
Meridian, North Pike, Quitman, Sharkey-Issaquena, Wil-
kinson, Yazoo City, and Yazoo County. The suits with re-
spect to the other sixteen school districts were government
initiated.
Al7
The scope of the problem of converting from dual to
unitary school systems in these districts may be seen from
the following tables which reflect racial composition.
GROUP 1
System White Students Negro Students
Amite 1461 2582
Anguilla Line 214 906
Canton Municipal 1326 3672
Hinds 6438 7489
Holly Bluff 240 483
Holmes 913 5355
Kemper 793 2060
Madison 1238 3376
Natchez-Adams 4494 5927
Noxubee County 872 3573
Sharkey-Issaquena 630 2002
South Pike 1135 2156
Wilkinson 779 2757
Yazoo County 1071 2495
GROUP II
System White Students Negro Students
Enterprise 405 363
Franklin 1094 1075
Leake 2088 2224
North Pike 697 605
Quitman 1656 1490
Yazoo City 2014 2089
AlS8
CROUP 11
System White Students Negro Students
Columbia City 1538 896
Covington 1998 1629
Forrest 4195 1062
Lauderdale 3063 1858
Lawrence 1942 1277
Lincoln 1671 1018
Marion 2064 1564
Meridian 6418 4405
Neshoba 2045 877
Philadelphia 969 548
It is ordered, adjudged and decreed, effective im-
mediately, that “the school districts here involved may no
longer operate a dual system based on race or color” and
each district is to operate henceforth, pursuant to the
terms hereof, as a unitary school system within which no
person is “effectively excluded from any school because
of race or color.” Alexander v. Holmes County Board of
Education, supra.
To effectuate the conversion of these school systems
to unitary school systems within the context of the order
of the Supreme Court in Alexander v. Holmes County
Board of Education, it is ordered, adjudged, and decreed
that the permanent plans as distinguished from the interim
plans prepared by the Office of Education, Department of
Health, Education and Welfare, attached hereto and
marked as Appendices 1 through 30 shall be immediately
enforced as the plans of the respective systems subject to
the following terms, conditions, and exceptions:
(1) The time between the date hereof and December
31, 1969 shall be utilized in arranging the transfer of faculty,
Al9
transfer of equipment, supplies and libraries where neces-
sary, the reconstitution of school bus routes where indi-
cated, and in solving other logistical problems which may
ensue in effectuating the attached plans. This activity
shall commence immediately. The Office of Education
plans will result in the transfer of thousands of school chil-
dren and hundreds of faculty members to new schools.
Many children will have new teachers after December 31,
1969. It will be necessary for final grades to be entered and
for other records to be completed by faculty members and
school administrators for the students for the partial school
year involved prior to the transfers. The interim period
between the date of this order and December 31, 1969 will
also be utilized for this purpose.
(2) No later than December 31, 1969 the pupil at-
tendance patterns and faculty assignments in each district
shall comply with the respective plans.
(3) As to the South Pike school district (App. 1),
the plan suggested by the Office of Education shall be
fully complied with except as to pupil assignment. The
present pupil assignment and attendance pattern will suf-
fice until the further order of this court. This system has
1135 white students and 2156 Negro students. Each of its
seven schools are presently integrated. We conclude that
a unitary system has been established as to pupil assign-
ment. The Office of Education plan in other respects will
assure a completely unitary system.
(4) As to the Madison County system, the Office of
Education plan (App. 2) is modified as follows: Subsec-
tions 4 through 8 of the Office of Education Recommended
Plan for Student Desegregation 1969-70 are eliminated. In
place of those subsections we substitute the geographic zon-
ing arrangement for East Flora, Flora, Rosa Scott, Madi-
son-Ridgeland, and Ridgeland Elementary set out in sec-
A20
tions A.2. and A.3. (App. 2(b)) of the proposed plan of the
Madison County Board of Education. All other provisions
of the Office of Education plan regarding Madison County
are to become effective pursuant to the terms of this order.
(5) The attendance plan submitted by the Wilkinson
County Board of Education will be considered by the court
as a modification of the Office of Education plan (App. 3)
upon a showing through a pupil locator map of the contem-
plated racial characteristics of the schools for girls.
(6) The attendance plan submitted by the North
Pike County Consolidated School District will be consid-
ered by the court as a modification of the Office of Educa-
tion plan (App. 4) upon a showing through a pupil locator
map of the contemplated racial characteristics of the Jones
and Johnston Elementary schools.
(7) It appearing that the lack of buildings prevents
the immediate implementation of the permanent plan of
the Office of Education suggested for the Quitman Consoli-
dated school district, the pupil attendance interim plan of
the Office of Education for this district is authorized for use
during the remainder of this school term (App. 5). The
permanent plan shall be effectuated commencing in Sep-
tember, 1970. This relief is appropriate in view of the sim-
ilarity between the proposed attendance plan of the school
district and that of the Office of Education.
It is ordered, adjudged and decreed that these respec-
tive plans shall remain in full force and effect until the
further order of this court. They may be modified by the
court through the following procedure. Honorable Dan M.
Russell, Jr., United States District Judge for the Southern
District of Mississippi, is hereby designated to receive sug-
gested modifications to the plans. No suggested modifica-
tion may be submitted to Judge Russell before March 1,
A2l
1970 and any such suggestion or request shall contemplate
an effective date of September, 1970.
Judge Russell is directed to make full findings of fact
with respect to any modification recommended or disap-
proved and these findings are to be referred to this court
for its review. Pursuant to the terms of the order of the
Supreme Court in Alexander v. Holmes County Board of
Education, supra, no amendment or modification to any
plan shall become effective without the order of this court.
This order is entered only after full consideration of
the suggested plans of the Office of Education and those
of the local school boards. It is apparent that in some in-
stances the plans are cursory in nature. They were devised
without pupil locator maps. They do not contain informa-
tion as to geographical area, transportation routes or dis-
tances. Some have not considered zoning. The school
board plans are almost all without statistical data as to
race. It is entirely possible that more effective plans can
be devised on a local level and that these will insure the
simultaneous accomplishment of maximum education and
unitary school systems. To this end, and as an imprimatur
of local consideration, it is suggested the school board spon-
sored requests for changes in plans show either Negro rep-
resentation on school boards or prior consideration by a
bi-racial advisory committee to the school board.
Nothing herein is intended to prevent the respective
school boards and superintendents from seeking the further
counsel and assistance of the Office of Education (HEW),
or the assistance of the Mississippi State Department of
Education, University Schools of Education in or out of Mis-
sissippi, or of others having expertise in the education field.
The motion of counsel in those cases instituted by pri-
vate litigants for attorneys fees is held in abeyance for the
A22
present. The motion of the private litigants to require the
filing of further plans by the Office of Education for use in
the Hinds County, Holmes County and Meridian districts
is denied.
Jurisdiction of these cases is retained in this court, pur-
suant to the aforesaid order of the Supreme Court, to in-
sure prompt and faithful compliance with this order. The
court also retains jurisdiction to modify or amend this or-
der as may be necessary or desirable to the end that unitary
school systems will be operated.
IT IS SO ORDERED.
This 7th day of November, 1969.
/s/. Griifin B, Bell
Griffin B. Bell
United States Circuit Judge
/s/ Homer Thornberry
Homer Thornberry
United States Circuit Judge
/s/ Lewis R. Morgan
Lewis R. Morgan
United States Circuit Judge
A23
APPENDIX C
SUPREME COURT OF THE UNITED STATES
No. 632.—October Term, 1969.
Beatrice Alexander, et al,
Petitioners On Writ of Certiorari to the
United States Court of
"Appeals for the Fifth Cir-
Holmes County Board of cuit.
Education et al.
Vv.
7
[ October 29, 1969.]
PER CURIAM.
These cases come to the Court on a petition for certi-
orari to the Court of Appeals for the Fifth Circuit. The
petition was granted on October 9, 1969, and the case set
down for early argument. The question presented is one
of paramount importance, involving as it does the denial
of fundamental rights to many thousands of school children,
who are presently attending Mississippi schools under seg-
regated conditions contrary to the applicable decisions of
this Court. Against this background the Court of Appeals
should have denied all motions for additional time because
continued operation of segregated schools under a standard
of allowing “all deliberate speed” for desegregation is no
longer constitutionally permissible. Under explicit hold-
ings of this Court the obligation of every school district is
to terminate dual school systems 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). Accordingly,
IT IS HEREBY ADJUDGED, ORDERED, AND DE-
CREED:
1. The Court of Appeals’ order of August 28, 1969,
is vacated, and the cases are remanded to that court to
A24
issue its decree and order, effective immediately, declaring
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 immediately to operate as uni-
tary school systems within which no person is to be ef-
fectively excluded from any school because of race or color.
2. 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 modifications
which that court deems proper insofar as those recom-
mendations insure a totally unitary school system for all
eligible pupils without regard to race or color.
The Court of Appeals may make its determination and
enter its order without further arguments or submissions.
3. While each of these school systems is being op-
erated as a unitary system under the order of the Court of
Appeals, the District Court may hear and consider objec-
tions thereto or proposed amendments thereof, provided,
however, that the Court of Appeals’ order shall be com-
plied with in all respects while the District Court con-
siders such objections or amendments, if any are made.
No amendment shall become effective before being passed
upon by the Court of Appeals.
4. The Court of Appeals shall retain jurisdiction to
insure prompt and faithful compliance with its order, and
may modify or amend the same as may be deemed neces-
sary or desirable for the operation of a unitary school
system.
5. The order of the Court of Appeals dated August
28, 1969, having been vacated and the case remanded for
proceedings in conformity with this order, the judgment
shall issue forthwith and the Court of Appeals is requested
to give priority to the execution of this judgment as far
as possible and necessary.
A25
APPENDIX D
IN THE
UNITED STATES COURT OF APPEALS
POR THE HMpPTH CIRCUIT
Nos. 28,030 and 28,042
UNITED STATES OF AMERICA
Plaintiff-Appellant
V.
HINDS COUNTY SCHOOL BOARD, et al,
Defendants-Appellees
AND OTHER CONSOLIDATED CASES
Judge Griffin B. Bell is hereby designated in the place
and stead of Chief Judge John R. Brown in these cases
and thenceforth the panel shall be composed of Judges
Bell, Thornberry and Morgan.
Order
In order that this Court may effectuate the order of the
Supreme Court of the United States of October 29, 1969,
the mandate in each and every one of the cases covered
by or included in this Court’s order of August 28, 1969,
granting a stay of the Court’s earlier orders of July 3 and
July 25, 1969, are hereby recalled effective immediately.
This panel of the Court hereby assumes direction and con-
trol of each of the cases for the purpose of effectuating the
order of the Supreme Court.
Appellants, appellees and the United States of Amer-
ica as amicus or intervenors shall file with the Clerk of
this Court on or before the fifth day of November, 1969,
A26
their recommended and proposed orders which will prop-
erly effectuate and implement the opinion and decree of
the Supreme Court of the United States rendered on Octo-
ber 29, 1969, in the above named cases.
October 31, 1969.
A27
APPENDIX E
IN THE
United States Court of Appeals
FOR THE FIFTH CIRCUIT
No. 26285
DEREK JEROME SINGLETON, ET AL,
Appellants,
Versus
JACKSON MUNICIPAL SEPARATE
SCHOOL DISTRICT, ET Al,
Appellees.
Appeal from the United States District Court
for the Southern District of Mississippi
No. 28261
CLARENCE ANTHONY, ET AL,
Appellants,
Versus
MARSHALL COUNTY BOARD OF EDUCATION,
Appellee.
Appeal from the United States District Court
for the Northern District of Mississippi
No. 28045
UNITED STATES OF AMERICA,
Appellant,
versus
CHARLES F. MATHEWS, ET AL,
Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
A28
No. 28350
LINDA STOUT, by her father and next friend
BLEVIN STOUT, ET AL,
Plaintiffs- Appellants,
UNITED STATES OF AMERICA,
Plaintiff-Intervenor,
versus
JEFFERSON COUNTY BOARD OF EDUCATION, ET AL,
Defendants-Appellees,
DORIS ELAINE BROWN, ET AL,
Plaintiffs-Appellants,
UNITED STATES OF AMERICA,
Plaintiff-Intervenor,
versus
THE BOARD OF FDUCATION OF THE CITY
OF BESSEMER, ET AL,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Alabama
No. 28349
BIRDIE MAE DAVIS, ET AL,
Plaintiffs-Appellants,
UNITED STATES OF AMERICA,
Plaintiff-Intervenor,
Versus
BOARD OF SCHOOL COMMISSIONERS OF
MOBILE COUNTY, ET AL,
Defendants-Appellees,
TWILA FRAZIER, ET AL,
Defendants-Intervenor-Appellees.
Appeal from the United States District Court
for the Southern District of Alabama
A29
No. 28340
ROBERT CARTER, ET AL,
Plaintiffs-Appellants,
versus
WEST FELICTANA PARISH SCHOOL BOARD, ET AL,
Defendants-Appellees,
SHARON LYNNE GEORGE, ET AL,
Plaintiffs-Appellants,
versus
C. WALTER DAVIS, PRESIDENT, EAST FELICTIANA
PARISH SCHOOL BOARD, ET AL,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
No. 28342
IRMA J. SMITH, ET AL,
Plaintiffs-Appellants,
versus
CONCORDIA PARISH SCHOOL BOARD, ET AL,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
No. 28361
HEMON HARRIS, ET AL,
Plaintiffs-Appellants-Cross Appellees,
versus
ST. JOHN THE BAPTIST PARISH SCHOOL BOARD,
ET AL,
Defendants-Appellees-Cross Appellants.
Appeal from the United States District Court
for the Eastern District of Louisiana
A30
No. 28409
NEELY BENNETT, ET AL,
Appellants,
versus
R. E. EVANS, ET AL,
Appellees,
ALLENE PATRICIA ANN BENNETT, a minor, by
R. B. BENNETT, her father and next friend,
Appellants,
versus
BURKE COUNTY BOARD OF EDUCATION, ET AL,
Appellees.
Appeal from the United States District Court
for the Southern District of Georgia
No. 28407
SHIRLEY BIVINS, ET AL,
Plaintiffs-Appellants,
versus
BIBB COUNTY BOARD OF EDUCATION AND
ORPHANAGE FOR BIBB COUNTY, ET AL,
Defendants-Appellees.
Appeal from the United States District Court
for the Middle District of Georgia
No. 28408
OSCAR C. THOMIE, JR., ET Al,
Plaintiffs-Appellants,
versus
HOUSTON COUNTY BOARD OF EDUCATION,
Defendants-Appellees.
Appeal from the United States District Court
for the Middle District of Georgia
A3l
No. 27863
JEAN CAROLYN YOUNGBLOOD, ET AL,
Plaintiffs-Appellants,
UNITED STATES OF AMERICA,
Plaintiff-Intervenor,
versus
THE BOARD OF PUBLIC INSTRUCTION
OF BAY COUNTY, FLORIDA, ET AL,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Florida
No. 27983
LAVON WRIGHT, ET AL,
Plaintiffs- Appellants,
versus
THE BOARD OF PUBLIC INSTRUCTION OF
ALACHUA COUNTY, FLORIDA, ET AL,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Florida
(December 1, 1969)
Before BROWN, Chief Judge, WISDOM, GEWIN, BELL,
THORNBERRY, COLEMAN, GOLDBERG, AINS-
WORTH, GODBOLD, DYER, SIMPSON, MORGAN,
CARSWELL, and CLARK, Circuit Judges, EN BANC. *
PER CURIAM: These appeals, all involving school
desegregation orders, are consolidated for opinion pur-
poses. They involve, in the main, common questions of
¥*Judge Wisdom did not participate in Nos. 26285, 28261, 28045,
28350, 28349 and 28361. Judge Ainsworth did not participate in
No. 28342. Judge Carswell did not participate in Nos. 27863 and
27983. Judge Clark did not participate in No. 26285.
A32
law and fact. They were heard en banc on successive
days.
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,
ie US. .....998Ct. ...... 24 1.22d.2d 19. That decision
supervened all existing authority to the contrary. It sent
the doctrine of deliberate speed to its final resting place.
24 LL.Ed.2d at p. 21.
The rule of the case is to be found in the direction to
this court to issue its order “effective immediately de-
claring that each of the school districts . . . may no longer
operate a dual school system based on race or color, and
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.” We
effectuated this rule and order in United States v. Hinds
County School Beard, 5 Cir., 1969, ....... ¥24 ..... , |Nog,
28,030 and 28,042, slip opinion dated Nov. 7, 1969]. It must
likewise be effectuated in these and all other school cases
now being or which are to be considered in this or the
district courts of this circuit.
The tenor of the decision in Alexander v. Holmes
County is to shift the burden from the standpoint of time
for converting to unitary school systems. The shift is
from a status of litigation to one of unitary operation pend-
ing litigation. The new modus operandi is to require im-
mediate operation as unitary systems. Suggested modi-
fications to unitary plans are not to delay implementa-
tion. Hearings on requested changes in unitary operating
plans may be in order but no delay in conversion may
ensue because of the need for modification or hearing.
In Alexander v. Holmes County, the court had unitary
plans available for each of the school districts. In addi-
A33
tion, this court, on remand, gave each district a limited
time within which to offer its own plan. It was apparent
there, as it is here, that converting to a unitary system
involved basically the merger of faculty and staff, students,
transportation, services, athletic and other extra-curricu-
lar school activities. We required that the conversion to
unitary systems in those districts take place not later than
December 31, 1969. It was the earliest feasible date in the
view of the court. United States v. Hinds County, supra.
In three of the systems there (Hinds County, Holmes
County and Meridian), because of particular logistical dif-
ficulties, the Office of Education (HEW) had recom-
mended two step plans. The result was, and the court
ordered, that the first step be implemented not later than
December 31, 1969 and the other beginning with the fall
1970 school term.
I
Because of Alexander v. Holmes County, each of the
cases here, as will be later discussed, must be considered
anew, either in whole or in part, by the district courts.
It happens that there are extant unitary plans for some
of the school districts here, either Office of Education or
school board originated. Some are operating under free-
dom of choice plans. In no one of the districts has a plan
been submitted in light of the precedent of Alexander wv.
Holmes County. That case resolves all questions except
as to mechanics. The school districts here may no longer
operate dual systems and must begin immediately to oper-
ate as unitary systems. The focus of the mechanics ques-
tion is on the accomplishment of the immediacy require-
ment laid down in Alexander v. Holmes County.
Despite the absence of plans, it will be possible to
merge faculties and staff, transportation, services, ath-
letics and other extra-curricular activities during the pres-
A34
ent school term. It will be difficult to arrange the merger
of student bodies into unitary systems prior to the fall
1970 term in the absence of merger plans. The court has
concluded that two-step plans are to be implemented. One
step must be accomplished not later than February 1, 1970
and it will include all steps necessary to conversion to a
unitary system save the merger of student bodies into
unitary systems. The student body merger will constitute
the second step and must be accomplished not later than
the beginning of the fall term 1970." The district courts,
in the respective cases here, are directed to so order and
to give first priority to effectuating this requirement.
To this end, the district courts are directed to require
the respective school districts, appellees herein, to request
the Office of Education (HEW) to prepare plans for the
merger of the student bodies into unitary systems. These
plans shall be filed with the district courts not later than
January 6, 1970 together with such additional plan or mod-
ification of the Office of Education plan as the school dis-
trict may wish to offer. The district court shall enter its
final order not later than February 1, 1970 requiring and
setting out the details of a plan designed to accomplish a
unitary system of pupil attendance with the start of the
fall 1970 school term. Such order may include a plan de-
signed by the district court in the absence of the submis-
sion of an otherwise satisfactory plan. A copy of such plan
1. Many faculty and staff members will be transferred under
step one. It will be necessary for final grades to be entered and
for other records to be completed, prior to the transfers, by the
transferring faculty members and administrators for the partial
school year involved. The interim period prior to February 1, 1970
is allowed for this purpose.
The interim period prior to the start of the fall 1970 school
term is allowed for arranging the student transfers. Many stu-
dents must transfer. Buildings will be put to new use. In some
instances it may be necessary to transfer equipment, supplies or
libraries. School bus routes must be reconstituted. The period
allowed is at least adequate for the orderly accomplishment of
the task.
A35
as is approved shall be filed by the clerk of the district
court with the clerk of this court.?
The following provisions are being required as step one
in the conversion process. The district courts are directed
to make them a part of the orders to be entered and to
also give first priority to implementation.
The respective school districts, appellees herein,
must take the following action not later than February
1, 1970;
DESEGREGATION OF FACULTY AND
OTHER STAFF
The School Board shall announce and implement
the following policies:
1. Effective not later than February 1, 1970, the
principals, teachers, teacher-aides and other staff who
work directly with children at a school shall be so as-
signed that in no case will the racial composition of a
staff indicate that a school is intended for Negro stu-
dents or white students. For the remainder of the 1969-
70 school year the district shall assign the staff de-
scribed above so that the ratio of Negro to white teach-
ers 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 en-
tire school system.
The school district shall, to the extent necessary
to carry out this desegregation plan, direct members of
2. In formulating plans, nothing herein is intended to prevent
the respective school districts or the district court from seeking
the counsel and assistance of state departments of education, uni-
versity schools of education or of others having expertise in the
field of education.
It is also to be noted that many problems of a local nature
are likely to arise in converting to and maintaining unitary sys-
tems. These problems may best be resolved on the community
level. The district courts should suggest the advisability of bi-
racial advisory committees to school boards in those districts
having no Negro school board members.
A36
its staff as a condition of continued employment to ac-
cept 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.
3. If there is to be a reduction in the number of prin-
cipals, teachers, teacher-aides, or other professional
staff employed by the school district which will re-
sult in a dismissal or demotion of any such staff mem-
bers, the staff member to be dismissed or demoted
must be selected on the basis of objective and reason-
able 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 person of a race, color,
or national origin different from that of the individual
dismissed or demoted, until each displaced staff mem-
ber 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 objec-
tive criteria to be used in selecting the staff member
who is to be dismissed or demoted. These criteria shall
be available 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 criteria. Such evaluation shall be made
available upon request to the dismissed or demoted
employee.
“Demotion” as used above includes any reassign-
ment (1) under which the staff member receives less
pay or has less responsibility than under the assign-
ment he held previously, (2) which requires a lesser
degree of skill than did the assignment he held previ-
ously, or (3) under which the staff member is asked
A317
to teach a subject or grade other than one for which
he is certified or for which he has had substantial ex-
perience within a reasonably current period. In gen-
eral and depending upon the subject matter involved,
five years is such a reasonable period.
MAJORITY TO MINORITY
TRANSFER POLICY
The school district shall permit a student attend-
ing a school in which his race is in the majority to
choose to attend another school, where space is avail-
able, and where his race is in the minority.
TRANSPORTATION
The transportation system, in those school dis-
tricts having transportation systems, shall be com-
pletely re-examined regularly by the superintendent,
his staff, and the school board. Bus routes and the as-
signment of students to buses will be designed to insure
the transportation of all eligible pupils on a non-segre-
gated and otherwise non-discriminatory basis.
SCHOOL CONSTRUCTION AND
SITE SELECTION
All school construction, school consolidation, and
site selection (including the location of any temporary
classrooms) in the system shall be done in a manner
which will prevent the recurrence of the dual school
structure once this desegregation plan is implemented.
ATTENDANCE OUTSIDE SYSTEM
OF RESIDENCE
If the school district grants transfers to students
living in the district for their attendance at public
schools outside the district, or if it permits transfers
into the district of students who live outside the dis-
trict, it shall do so on a non-discriminatory basis, ex-
cept that it shall not consent to transfers where the
cumulative effect will reduce desegregation in either
district or reinforce the dual school system.
A38
See United States v. Hinds County, supra, decided Novem-
ber 6, 1969. The orders there embrace these same require-
ments.
II
In addition to the foregoing requirements of general
applicability, the order of the court which is peculiar to
each of the specific cases being considered is as follows:
NO. 26285—JACKSON, MISSISSIPPI
This is a freedom of choice system. The issue pre-
sented has to do with school building construction. We en-
joined the proposed construction pending appeal.
A federal appellate court is bound to consider any
change, either in fact or in law, which has supervened since
the judgment was entered. Bell v. State of Maryland, 378
U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822 (1964). We there-
fore reverse and remand for compliance with the require-
ments of Alexander v. Holmes County and the other pro-
visions and conditions of this order. Our order enjoining
the proposed construction pending appeal is continued in
effect until such time as the district court has approved a
plan for conversion to a unitary school system.
NO. 28261—MARSHALL COUNTY AND HOLLY
SPRINGS, MISSISSIPPI
This suit seeks to desegregate two school districts,
Marshall County and Holly Springs, Mississippi. The dis-
trict court approved plans which would assign students to
schools on the basis of achievement test scores. We pre-
termit a discussion of the validity per se of a plan based
on testing except to hold that testing cannot be employed
in any event until unitary school systems have been es-
tablished.
A39
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. 28045—UNITED STATES V. MATTHEWS
(LONGVIEW, TEXAS)
This system is operating under a plan approved by the
district court which appears to be realistic and workable
except that it is to be implemented over a period of five
years. This is inadequate.
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. 28350—JEFFERSON COUNTY AND
BESSEMER, ALABAMA
These consolidated cases involve the school boards
of Jefferson County and the City of Bessemer, Alabama.
Prior plans for desegregation of the two systems were
disapproved by this court on June 26, 1969, United States
of America v. Jefferson County Board of Education, et al.,
iiRhe F.2d ....... (5th Cir. 1969) [No. 27444, June 26, 1969],
at which time we reversed and remanded the case with
specific directions. The record does not reflect any sub-
stantial change in the two systems since this earlier opin-
ion, and it is therefore unnecessary to restate the facts.
The plans approved by the district court and now under
review in this court do not comply with the standards re-
quired in Alexander v. Holmes County.
We reverse and remand for compliance with the re-
quirements of Alexander v. Holmes County and the
other provisions and conditions of this order.
A40
NO. 28349—MOBILE COUNTY, ALABAMA
On June 3, 1969, we held that the attendance zone and
freedom of choice method of student assignment used by
the Mobile School Commissioners was constitutionally un-
acceptable. Pursuant to our mandate the district court re-
quested the Office of Education (HEW) to collaborate
with the board in the preparation of a plan to fully desegre-
gate all public schools in Mobile County. Having failed to
reach agreement with the board, the Office of Education
filed its plan which the district court on August 1, 1969,
adopted with slight modification (but which did not reduce
the amount of desegregation which will result). The
court’s order directs the board for the 1969-1970 school
year to close two rural schools, establish attendance zones
for the 25 other rural schools, make assignments based on
those zones, restructure the Hillsdale School, assign all stu-
dents in the western portion of the metropolitan area ac-
cording to geographic attendance zones designed to deseg-
regate all the schools in that part of the system, and re-
assign approximately 1,000 teachers and staff. Thus the
district court’s order of August 1, now before us on appeal
by the plaintiffs, will fully desegregate all of Mobile County
schools except the schools in the eastern portion of metro-
politan Mobile where it was proposed by the plan to trans-
port students to the western part of the city. The district
court was not satisfied with this latter provision and re-
quired the board after further study and collaboration with
HEW officials, to submit by December 1, 1969, a plan for
the desegregation of the schools in the eastern part of the
metropolitan area.
The school board urges reversal of the district court’s
order dealing with the grade organization of the Hills-
dale School and the faculty provisions.
We affirm the order of the district court with direc-
tions to desegregate the eastern part of the metropolitan
A41
area of the Mobile County School System and to otherwise
create a unitary system in compliance with the require-
ments of Holmes County and in accordance with the other
provisions and conditions of this order.
NO. 28340—EAST AND WEST FELICIANA
PARISHES, LOUISIANA
East Feliciana is operating under a plan which closed
one rural Negro elementary school and zoned the four re-
maining rural elementary schools. All elementary stu-
dents not encompassed in the rural zones, and all high
school students, continue to have free choice. Majority to
minority transfer is allowed on a space-available basis
prior to beginning of the school year.
The plan has not produced a unitary system. We re-
verse and remand for compliance with the requirements
of Alexander v. Holmes County and the other provisions
and conditions of this order.
West Feliciana is operating under a plan approved
for 1969-70 which zones the two rural elementary schools.
These schools enroll approximately 15 per cent of the stu-
dents of the district. The plan retains “open enrollment”
(a euphemism for free choice) for the other schools. The
plan asserts that race should not be a criterion for employ-
ment or assignment of personnel. However, the board
promises to seek voluntary transfers and if substantial
compliance cannot be obtained by this method it proposes
to adopt other means to accomplish substantial results.
This plan has not produced a unitary system. We
reverse and remand for compliance with the requirements
of Alexander v. Holmes County and the other provisions
and conditions of this order.
A42
NO. 28342—CONCORDIA PARISH, LOUISIANA
The plan in effect for desegregating this school dis-
trict has not produced a unitary system. It involves
zoning, pairing, freedom of choice and some separation by
sex. We pretermit the question posed as to sex separation
since it may not arise under such plan as may be approved
for a unitary system.
This plan has not produced a unitary system. We
reverse and remand for compliance with the requirements
of Alexander v. Holmes County and the other provisions
and conditions of this order.
NO. 28361—ST. JOHN THE BAPTIST
PARISH, LOUISIANA
This school district has been operating under a free-
dom of choice plan. The parish is divided into two sec-
tions by the Mississippi River and no bridge is located
in the parish. The schools are situated near the east and
west banks of the river.
A realistic start has been made in converting the
east bank schools to a unitary system. It, however, is
less than adequate. As to the west bank schools, the
present enrollment is 1626 Negro and 156 whites. The
whites, under freedom of choice, all attend the same
school, one of five schools on the west bank. The 156
whites are in a school with 406 Negroes. We affirm
as to this part of the plan. We do not believe it necessary
to divide this small number of whites, already in a deseg-
regated minority position, amongst the five schools.
We reverse and remand for compliance with the re-
quirements of Alexander v. Holmes County and the other
provisions and conditions of this order.
A43
NO. 28409—BURKE COUNTY, GEORGIA
The interim plan in operation here, developed by the
Office of Education (HEW), has not produced a unitary
system. The district court ordered preparation of a final
plan for use in 1970-71. This delay is no longer permissible.
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. 28407—BIBB COUNTY, GEORGIA
This is a freedom of choice system on which a special
course transfer provision has been superimposed. Special
courses offered in all-Negro schools are being attended by
whites in substantial numbers. This has resulted in some
attendance on a part time basis by whites in every all-Negro
school. Some three hundred whites are on the waiting list
for one of the special courses, remedial reading. The racial
cross-over by faculty in the system is 27 per cent.
The order appealed from continues the existing plan
with certain modifications. It continues and expands the
elective course programs in all-Negro schools in an effort
to encourage voluntary integration. The plan calls for a
limitation of freedom of choice with respect to four schools
about to become resegregated. Under the present plan the
school board is empowered to limit Negro enrollment to
40 per cent at these schools to avoid resegregation. Earlier
a panel of this court affirmed the district court’s denial of
an injunction against the quota provision of this plan pend-
ing hearing en banc. The prayer for injunction against
continuation of the quota provision is now denied and the
provision may be retained by the district court pending
further consideration as a part of carrying out the re-
quirements of this order.
A44
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 desegregation
which approaches a unitary system. We reverse and re-
mand for compliance with the requirements of Alexander
v. Holmes County and the other provisions and conditions
of this order.
NO. 28408—HOUSTON COUNTY, GEORGIA
This system is operating under a freedom of choice
plan. Appellants seek zoning and pairing. There is also
an issue as to restricting transfers by Negroes to formerly
all-white schools. Cf. No. 28407—Bibb County, supra. In
addition, appellants object to the conversion of an all-
Negro school into an integrated adult education center.
As in the Bibb County case, these are all questions for
consideration on remand within the scope of such uni-
tary plan as may be approved.
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. 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
A45
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
provision and conditions of this order.
III
In the event of an appeal or appeals to this court
from an order entered as aforesaid in the district courts,
such appeal shall be on the original record and the parties
are encouraged to appeal on an agreed statement as is pro-
vided for in Rule 10(d), Federal Rules of Appellate Pro-
cedure (FRAP). Pursuant to Rule 2, FRAP, the provisions
of Rule 4(a) as to the time for filing notice of appeal are
suspended and it is ordered that any notice of appeal be
filed within fifteen days of the date of entry of the order
appealed from and notices of cross-appeal within five
days thereafter. The provisions of Rule 11 are suspended
and it is ordered that the record be transmitted to this
court within fifteen days after filing of the notice of ap-
peal. The provisions of Rule 31 are suspended to the ex-
tent that the brief of the appellant shall be filed within
fifteen days after the date on which the record is filed and
the brief of the appellee shall be filed within ten days
after the date on which the brief of appellant is filed.
No reply brief shall be filed except upon order of the court.
The times set herein may be enlarged by the court up-
on good cause shown.
The mandate in each of the within matters shall issue
forthwith. No stay will be granted pending petition for
rehearing or application for certiorari.
A46
REVERSED as to all save Mobile and St. John The
Baptist Parish; AFFIRMED as to Mobile with direction;
AFFIRMED in part and REVERSED in part as to St.
John The Baptist Parish; REMANDED to the district
courts for further proceedings consistent herewith
APPENDIX F
Proceedings
JUDGE BELL:
Ladies and gentlemen, we have called this Pre-order
conference today for the purpose of making some an-
nouncements 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.
My name is Judge Bell. I happen to be from Georgia.
On my right is Judge Thornberry from Texas, and on my
left is Judge Morgan from Georgia. We are the panel of the
Fifth Circuit Court of Appeals that has been assigned to
hear this case, or these cases. There are really twenty-
five cases and thirty school districts involved.
I came to these cases within the last few days. Judge
Morgan and Judge Thornberry have heard arguments dur-
ing the past summer in the cases. But since last Friday
we have all been engaged in studying the plans.
We first studied all the HEW plans because they were
all the ones that we had on hand. Since then we have
taken the time and had the occasion to study all of the
Mississippi plans.
Now, there is one district, Covington, Mississippi, that
has not submitted a plan, but we have had plans from every
other district. And, as I say, they have been studied.
A47
We have also studied the Supreme Court decision in
these cases and we are of the view that action is required,
and immediate action. That in a nutshell is what the posi-
tion of the cases is at this time. The question is what
kind of action and what kind of a time schedule are you to
follow and what plans are to be invoked. The HEW plans,
we call them HEW plans, but they are prepared by the
Office of Education of HEW, show in many instances that
they probably could have had more time spent in preparing
them. But the same is true of the local plans. And in
most instances the local plans don’t contain any statistics
as to who would be in the various school buildings or what
the racial composition of the faculty would be in various
school buildings. So, on the whole, the plans, taking them
altogether, are not too satisfactory. But the HEW plans
do have the feature that in every one they show who would
be in the buildings, and our duty is to see that you have
unitary school systems, and we can hardly do that unless
we know who would be in the school buildings under the
resulting changes.
We can look at these plans also and see if there are
going to be good logistical problems which may come from
making up new school bus routes, and the fact that there
will be many hundreds of teachers who will have to change
schools. There will be thousands of children who will have
to change schools. In many instances you will have to
change some of the equipment, facilities in the building,
such as blackboards, lavatories, libraries, so it is not an
easy job and it is not a job that can be done in one day
or a few days. We have taken that into consideration.
We also have had to think about the problem that
comes from the fact that the Supreme Court has ordered
that these cases stay in this Court rather than go back to
the District Court. That means that we have had to set
A48
up a procedure for handling the cases now and what will
take place in the weeks and months to come, and we have
done that. 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 con-
ference 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.
We have started out adopting almost precisely what
the Supreme Court has said in the opinion of last week.
And we have grouped the schools into three groups, not
that that is significant as to the relief that we are going
to order, but these groupings are based on the racial char-
acteristics of the student bodies, and they do show that
some groups may have more problems than other groups.
And then we are going to order that effective immediately
school districts here involved may no longer operate a
dual system based on race or color and that henceforth
each district is to operate pursuant to the terms of the
order as a unitary school system within which no person
is effectively excluded from any school because of race or
color.
Now, that is the language of the Supreme Court deci-
sion. It is a little different from some of the language used
in the old Supreme Court decisions but probably means
the same thing. But if there is anything to be said about
it, it is positive language that something must be done
immediately.
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
A49
of Education, HEW. And that is a permanent plan and
not the interim plan.
Now, in twenty-seven of the systems the permanent is
a one-step plan, has to be done right away. In three
districts, Hinds County, Meridian and Holmes County, the
HEW plan is a two-step plan. Now, when we say two-step
plan, that is not to be confused with an interim plan be-
cause in each of these, or in most of the HEW plans they
do have the alternative plan, which they call the interim
steps. Only in one instance are we using the interim plan.
But the NAACP in the Meridian, Hinds County and Holmes
County has asked that we require HEW to get up a new
plan within five days. We are going to deny that motion
and let these three systems use the two-step plan. They
must use the HEW plan, but they can use the two-step
plan.
Now, in the case of the South Pike School District, we
have studied that district and we came to the conclusion
that they already had a unitary system insofar as the stu-
dent bodies were concerned. It happened that they had in
that district seven schools, 1135 White students, 2156 Negro
students, and every school was integrated, every school as
of last year was integrated.
Now, in that district we are going to require that the
HEW plan be put in in its entirety except as to the student
assignment. That means faculty and all the other things
that are in these plans.
Now, in the Madison County School system HEW had
a plan. The school board came in with a plan of their own
in which they wanted to have a different type zoning from
the HEW zoning. We have studied that and we have come
to the conclusion that the school board’s zones ought to be
adopted, and, therefore, we are going to allow the Madison
A50
County system to use their proposed zoning, and that zon-
ing will be substituted for the zoning that the HEW had.
Everything else in the HEW plan, of course, will have to
be complied with, except the zoning can be changed.
Wilkinson County has come up with a plan whereby
they propose to put all of the boys in the county in what
is now the Negro high school. We might permit that but
first we have got to see through some showing, possibly
through a pupil locater map, what is going to be the racial
characteristics of the schools that are set aside for the fe-
male students. That is not clear to us, but that can be
shown later.
In every other respect the HEW plan will have to
be put into effect, which means faculty, and I ought to say
now for the Court that when we say faculty, where you have
schools now where you have no cross overs between teach-
ers of opposite races from one or two under the HEW plan,
you are going to have a ratio of almost equal to that in the
faculty population of the system. This is in the Court’s
mind more important than the assignment of the students.
Perhaps if we had required this long ago, the Freedom of
Choice might have worked, but we never did that and it
is too late now to worry about it. It is just going to have
to be done now. What has happened in the past has hap-
pened and we can’t recall anything from the past.
Now, in the Quitman Consolidated School District, it
happened that the plan that the Quitman Board of Edu-
cation offered is the same as the plan that HEW offered
except in one particular, and that is that they say they
can’t put the plan in until next year rather than this year;
that is, attendance plan, because they have got to add some
portable units to a building. And what we have said is that
they, and the HEW plan recognizes it, so they are going
to be permitted to use the HEW’s interim plan for the bal-
ance of this school term.
A51
Now, those are the only variations from the HEW plan
that we have in mind now, unless something happens to-
day that changes our mind. These things, as I said in the
beginning, are a result of a lot of study that we have done,
the three of us. It takes long hours to go through all of
these plans, but you are fortunate in this respect, that
each one of us has had a lot of experience in, not in edu-
cation, but in the judicial side of education. We have had
many school cases, both in the Three-Judge District Courts
and also on the Court of Appeals, and in the case of my
colleagues, as District Judges.
Now, we have had to devise a procedure which we
think will bring order to what is assuredly a difficult task.
As I said, the Supreme Court order requires that we retain
jurisdiction of these cases; that they be handled henceforth
in this Court, but the order does say that we can permit a
District Judge to hear requests for modification, that sort
of thing, much in the nature of a Master, and he will report
to the Fifth Circuit.
So what we have done, what we intend to do is ap-
point the Honorable Dan M. Russell, Jr., United States Dis-
trict Judge for the Southern District of Mississippi, we are
going to designate him as the Judge in the Southern District
of Mississippi to work with this panel of the Court to see
that these orders are carried out and also to hear requests
for modifications of the plan.
We are of the firm view that in many instances bet-
ter plans can be devised than the plan we are ordering in-
to effect. But those plans will be devised on the local level.
That is the best way to get up a plan. We all know, and
it is not to chide anyone, criticize anyone, but we all
know that if we had got these plans up in the past, we
wouldn’t have come to the place we are today. We have
seen this is very evident from the plans that the school
Ab52
boards have filed since last Friday, that you can get up
plans. We think you can get up better plans, not only
for the interest of a unitary school system but in the in-
terest of better education, and we are not losing sight of
the importance of education along with having a unitary
school system.
So we are going to provide in the order that Judge
Russell will be the medium through which you will pass to
ask that these plans be modified.
We do have two points about Judge Russell’s service we
ought to call to your attention. This is our thinking. We
are thinking that you ought to file anything with Judge Rus-
sell before March 1st. That doesn’t mean that you can’t
file, ask for a modification, but we have got to have orderly
procedures, and if you are going to ask that anything be
modified, you will have to file it with us. Judge Russell
can set up and by the time March 1st comes you will know,
you will have some idea of what problems you are having
and you will know better what modifications you ought to
seek.
Now, these modifications that you seek, we are pro-
viding in the order cannot be effective before September,
and that is for the purpose of operating as a unitary system
for the remainder of this school year under these plans.
Now, we may not have picked out the best way of
doing this. It might be that some other Court somewhere
could find a better way, but this is our judgment and it
happened to fall on us to make the judgment, and this
is what we have done. We think that this is the way to
do it.
Now, when we say that you have got to get started
immediately, that is exactly what we mean, but we know
that you have got to do a lot of shuffling around, a lot of
A53
changes. You have got a lot of problems that have got
to be met and handled. So what we are going to do is we
are going to provide in the order that you start imme-
diately, that means tomorrow, making your plans to re-
assign faculty, making up your new bus routes, student
assignment plans. It will take time for the teachers to
enter final grades for the students. It will take time for
the teachers and the school administrators to make up
final records on these children before they leave or before
the teacher leaves. There has never been anything done,
as far as I know, in this country of this magnitude in-
volving children. We know all of that is a problem, but,
nevertheless, it must be done. And what we are doing is
we are saying you will have to start on that immediately.
That means tomorrow. But the transfers will not become
effective until December 31st. That means that you will
have from now until the Christmas Holidays to move all
this equipment, libraries and all you have to do. We are
not unaware that it is a big job. That will give you
plenty of time to do it.
Then on December 31st all of the logistical problems
ought to be solved and when school starts then on the next
day, everybody will be in the new school building, all the
teachers will be where they are supposed to be, all the
children will be where they are supposed to be.
We know you have problems about athletic sched-
ules. We have seen some of the petitions you filed about
things of that nature, but there is not a thing we can do
about it. The athletic schedule is of very little importance
in light of all of the other things that will be taking place.
There are a lot of sad things about this. We have had
two petitions where the children have bought high school
class rings. They have bought invitations to send to people
when they graduate from high school. That is very sad.
Ad4
The Court regrets very much that we disturb anybody
in such a situation as that, but we do not have the dis-
cretion to avoid that. This is just something that will just
have to be done.
Now, when you got to Judge Russell to seek modifica-
tions, there is no reason to go unless you can go with the
facts. There is no reason to file a school plan saying, “We
have got a paper here and we are going to have six zones.”
If Judge Russell doesn’t know who is going to be in the
buildings, he doesn’t know whether it is going to be a uni-
tary system or not. He doesn’t know what it will be.
That is some of the trouble that we have had with some
of the plans that have been filed yesterday and today. So
don’t go to Judge Russell and take his time unless you are
ready with a plan that you think will do what the law
requires, and that is to have a unitary system.
You must tell him what the racial characteristics of
the student body will be under your plan. You must tell
him about the school bus routes. You must tell him about
the faculty and all of those things that Judges need before
they can make a sound decision. And Judge Russell will
be required to make full findings of fact and to recom-
mend the modification or to recommend that it be disap-
proved. And after that is done, then it will come to this
panel of this Court and we will look it over. And I say
you can’t file anything, anyway. I think we haven’t settled
on that, March 1st or April 1st, one or the other, but that
will give you time to think about it and realize what some
of your problems are.
Let me see if there is anything else that we ought to
say to you. Yes, this is very important. I noted that we
feel certain that better plans can be devised than the plans
that we are ordering into effect but it is up to the local
people to get up those plans. You know what the law is
Ab5
and you know what to do. Now, we are saying in here
that you can seek assistance of the Office of Education of
HEW. You can seek the assistance of the Mississippi State
Department of Education. You can seek the assistance of
any university that has a School of Education in Mis-
sissippi, or outside of Mississippi, or you can bring in any
experts that you may wish to bring in to help you in better
setting up unitary systems and at the same time preserv-
ing education. We think that as you come in with plans
that there is going to have to be some fair representation
in the local community so that the Court will know that it
has been considered by the Negroes and the White people.
In many school districts throughout the South, this is
no criticism of Mississippi, but throughout the South there
have been very few Negroes on school boards. We know
that school board members are elected in Mississippi, I un-
derstand they are, and maybe Negroes have been elected
to the school board, but it would be better if you had some
Negroes on your local school boards and then the Court
would know that you sat down on a local level and you
worked out a fair plan. But until you do that, and we know
that you can’t displace school board members, we are going
to say that when you apply to Judge Russell the plan that
you offer ought to have the inclinatory of a committee, bi-
racial committee that somebody has formed on the local
level so that committee can say, now, they don’t need to
say it, the school board can say, but the school board ought
to be able to say, “Yes, we have a committee. The com-
mittee has studied this and the committee looks on it with
favor, too. This is a plan that we have all worked out as
citizens, Negro and White, on the local level.” I think that
would go a long way toward straightening out a lot of your
problems. Of late we have seen this happen in two or three
school systems and it is a very fine way to proceed.
A56
Now, the NAACP has filed a motion to be awarded
attorney’s fees. We are not going to pass on that motion
now. There have been one or two cases in the country
where attorney’s fees have been awarded where the school
districts were recalcitrant. Judge Morgan and I had a case
somewhat like that and we did not award attorney’s fees
but we awarded some travel expense, travel costs. We
don’t know what we will do about that, but we do not
want to get into a side issue at this time where we have
got such an important thing going on as to get the school
districts reconstituted. So we are not going to pass on
that at this time. We are going to retain jurisdiction of
the cases, just as the Supreme Court ordered us to do, and
we are going to retain jurisdiction until it is determined
that all of these orders have been carried out and that the
unitary school systems are being operated.
Now, one thing we need to do in the order, and we
haven’t done this, and we will find out today what you think
about it, we are going to have to have some kind of report.
We don’t want a complicated report. Our thinking is that
perhaps we could just require you to report on February 1st
that you had carried out the Court order, give copies to
opposing Counsel, and then maybe October 1st you file a
similar statement, the school board can file it, saying that
the plan is still being adhered to and it is still in opera-
tion, still functional, something of that kind. If anybody
wants a better report, they can suggest it, but I don’t think
we need a great complication.
It would be well, I think, if we knew that the schools
were still integrated. Maybe we ought to have some detail
on it, but we don’t have to put that in this present order,
but certainly if we don’t put it in the present order, we will
have to put it in an order at an early date because we are
going to have to have some report, some way the Court
ABT
has got to know that all of these things have been done.
We will be glad to have your comments on that. As I say,
we don’t want any legal arguments. This is a factual thing.
We are now dealing in practicalities. We would be glad
to have any suggestion as to the practicality of the report-
ing requirements.
Now, we have a Court Reporter here today, which
is somewhat unusual to have a Court Reporter at a con-
ference of this kind, but as you ask questions you will
have to give your name and address so the Court Re-
porter can have a record of just who it is speaking. That
is about all the Court can say by way of a preliminary
statement. That gives you the idea of our thinking and
what we are proposing to do, and we will now open the
floor for questions and we want you to feel entirely free.
Had it been possible, we would have been glad to have
had this meeting in the library or one of the conference
rooms where we could all sit around the table, and I know
then you would feel freer to answer questions but we
don’t have great facilities here in this building and we have
a large number of people, so we had to have it in the
Courtroom, but because we are here on the Bench and
you are sitting out in the audience does not mean you are
not free to ask questions. We asked all the school super-
intendents to come because, after all, the school superin-
tendents are going to have a very hard job getting all of
this done in the next few weeks. So, school superintend-
ents, please know that we welcome questions from you,
too, lawyers on either side or the school superintendents
or school board members.
And we will now open the floor for questions.
A58
APPENDIX G
DEPARTMENT OF JUSTICE
Washington
November 4, 1969
Honorable Griffin Bell
U. 8. Circuit Judge
U. S. Courthouse
Atlanta, Georgia, 30301
Honorable Homer Thornberry
U. S. Circuit Judge
U. S. Courthouse
Austin, Texas 78701
Honorable Lewis R. Morgan
U. S. Circuit Judge
U. S. Courthouse
Newnan, Georgia 30263
Re: United States v. Hinds County School Board,
et al.,, and other consolidated cases
Dear Judges Bell, Thornberry, and Morgan:
In accordance with this Court’s order of October 31,
1969, I am forwarding herewith a Proposed Order in the
above cases.
Please permit me to make a few comments by way of
explanation and observation:
1. Our Proposed Order reflects our belief that the
burden of desegregation remains on the school board. “Un-
der explicit holdings of this Court the obligation of every
school district is to terminate dual school systems at once
and to operate now and hereafter only unitary schools.”
Alexander v. Holmes County Board of Education, et al.
Ab9
2. There are obviously alternative methods which
may accomplish a constitutionally adequate result. It is our
belief that the school boards should be permitted to choose
among such alternatives provided that they are able to
make such decisions within the time established by the
Court. From the Supreme Court decision this must, obvi-
ously, be a short period of time.
3. The decision also allowed for alternate plans either
by the parties or by the Department of Health, Education
and Welfare, and the Proposed Order enclosed provides
the Court with those options.
4. In our Proposed Order, we have not presumed to
set specific dates within which orders of the Court should
be issued and carried out. We anticipate that this issue,
among others, will be the subject of the informal confer-
ence scheduled for November 6, 1969.
5. We have not here offered specific orders for spe-
cific school districts; since, if the Court permits a very short
time for the school boards to submit alternative plans, that
will be the time for the fashioning and issuance of specific
orders running to individual school districts.
Sincerely,
/s/ Jerris Leonard
Jerris Leonard
Assistant Attorney General
Civil Rights Division
Original and 25 copies to Clerk, Fifth Circuit Court of Ap-
peals, New Orleans, La.
cc: Counsel of record as indicated in the certificate of
service, enclosed.
A60
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Nos. 28030 & 28042
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
Vv.
HINDS COUNTY SCHOOL BOARD, ET AL.,
Defendants-Appellees.
AND OTHER CONSOLIDATED CASES
Proposed Order
Upon the basis of the Judgment and Order of the
United States Supreme Court in cases styled Alexander v.
Holmes County Board of Education, ........ Us... (OT.
No. 632, decided October 29, 1969), and pursuant to the di-
rectives of this Court of October 31, 1969, and November 3,
1969.
IT IS ORDERED:
(1) That defendant school boards shall, not later
thon 8:00 pum on «li... ciiaies , (a date to be deter-
mined by the Court) file with this Court proposed
plans for the desegregation of their respective school
districts which said plans shall meet the requirements
set out by the Supreme Court in the cases styled Alex-
ander v. Holmes County Board of Education, supra,
“to terminate dual school systems at once” and which
will provide that defendant school districts will “oper-
A61
ate now and hereafter only unitary schools”; and
which will “insure a totally unitary school system for
all eligible pupils without regard to race or color”.
(2) That the other parties hereto may, not later
thon 3:00pm. on ........ccie i. oe, (a date to be de-
termined by the Court) submit amendments to the
plans offered by defendants herewith or alternate
plans, which said plans shall meet the requirements
set out by the Supreme Court in the cases styled
Alexander v. Holmes County Board of Education,
supra, as more fully set out in paragraph 1 above.
(3) That the United States Office of Education,
Department of Health, Education & Welfare is re-
quested to consult with the defendant school boards,
and the defendant boards are ordered to seek consulta-
tion of the Office of Education, in order to carry out
their obligations pursuant to paragraph 1 hereof; the
Office of Education is requested to file with this Court
a report of the results of its dealings with the defendant
school beards not, later than 5:00 pm.on ......................
(a date to be determined by the Court) which report
may suggest amendments to the school boards’ plans
or alternate plans, which plans shall meet the require-
ments set out by the Supreme Court in the cases
styled Alexander v. Holmes County Board of Educa-
tion, supra, as more fully set forth in paragraph 1 above.
(4) That the defendant school boards shall take
all steps necessary and proper to implement the plans
ordered by this Court not later than the beginning
of thesschool day of... (a date to be de-
termined by the Court) and any party may, subse-
quent to said date, file with the district court, and
the district court may hear and consider, objections
or proposed amendments thereto; provided, however,
that the plans adopted by this Court shall be complied
with in all respects while the district court considers
such objections and amendments, if any, and no amend-
ment shall become effective prior to approval by this
Court.
A62
(5) That all plans and reports submitted pursu-
ant to paragraphs 1, 2 and 3 above shall, simulta-
neously with the filing with the Clerk of this Court,
be served personally upon the opposing counsel as fol-
lows: upon counsel for defendants at their respective
offices within the Southern District of Mississippi; up-
on the United States by service upon the United States
Attorney, Jackson, Mississippi; upon counsel for pri-
vate plaintiffs, at their offices, 538 1/2 North Farish
Street, Jackson, Mississippi.
(6) That the Order applied for herein shall be
made applicable to all of the defendant school dis-
tricts heretofore consolidated with the above-cap-
tioned case in this Court and all orders made applicable
hereto shall be likewise applicable to all parties there-
to.
(7) That pursuant to the Judgment of the Su-
preme Court of the United States this Court expressly
retains jurisdiction of these matters for the purpose of
insuring prompt, faithful and unimpeded compliance
with its orders.
(8) That personal service of this Order shall
be made upon all defendants by the United States
Marshal assigned to the United States District Court
for the Southern District of Mississippi forthwith; by
service on the United States Attorney, Jackson, Mis-
sissippi, upon counsel for private plaintiffs at their
law offices, 538 1/2 North Farish Street, Jackson,
Mississippi; upon the United States Office of Educa-
tion, Department of Health, Education and Welfare by
service on the United States Attorney, Jackson, Mis-
sissippi.
A63
APPENDIX H
Opinion of the District Court Approving
Freedom of Choice Plans
[Caption omitted]
These twenty-five school cases involving thirty-three
school systems are before the Court on motions of the
plaintiffs to update the Jefferson decree in all of these
cases to comport with the requirements of Green.! The
Jefferson decree is sometimes referred to as the model
decree for the establishment of a unitary school system as
such plan was designed and approved by the United States
Court of Appeals for the Fifth Circuit en banc.? The right
of these movants under existing circumstances to institute
and maintain this proceeding is challenged in limine. The
challenge questions the right of these plaintiffs to institute
this proceeding for supplemental relief in these cases where
no child or parent admittedly has complained of any dis-
criminatory treatment by the school. In some of these
cases, a final judgment was entered and it is contended
that such judgments cannot be reopened for the purpose of
enlarging and expanding the relief granted in the original
judgment. Under Civil Rule 65(d), an injunction must be
specific to be enforced. But no additional relief is sought.
These plaintiffs seek not to expand or enlarge upon the
relief previously granted, but simply seek to require these
schools to adopt and apply a plan which will accomplish
the purpose enjoined by the model decree. There is no
merit in either of these motions for the reason indi-
cated; and for the further reason that the Supreme Court
of the United States has enjoined upon the United States
1. Charles C. Green, et al. v. County School Board of New
Kent County, Virginia, et ol., 391 U.S. 430, 33 S.Ct. 1639.
2. United States v. Jefferson County Board of Education, (5
C.A.) (1966) 372 F.2d 836, affirmed on rehearing en banc 380
F.2d 385, certiorari denied.
Ab4
District Courts the duty to keep these school cases open,
and to supervise them to the end that ultimately the prin-
ciples in Brown (and allied school cases)? are made to ef-
fectively operate so that no child in any public school is in
any manner denied any equal protection right by any
school. Those motions of the defendants to dismiss these
motions for that reason will be denied.
The Enterprise and Quitman schools in Civil Action
No. 1302 (E), supra, move the Court to dismiss the motion
in that case because of the lack of authority of the attor-
ney to have filed it. The Court heard testimony on this
question and finds as a fact that the attorney who filed
such motion never represented the plaintiffs in that case
and that he had no express or implied power or authority
to have filed such motion here. The facts and circum-
stances thereasto will be set forth in detail in the accom-
panying footnote. That motion of the defendants in said
Civil Action No. 1302 (E), supra, will be sustained.
3. Charles C. Green, et al. v. County School Board of New
Kent County, Virginia, et al., 391 U.S. 430, 88 S.Ct. 1639; Arthur
Lee Raney, et al. v. Board of Education of Gould School District, 391
U.S. 443, 88 S.Ct. 1697; Brenda K. Monroe, et al. v. Board of Com-
missioners of City of Jackson, Tennessee, 391 U.S. 450, 88 S.Ct.
1700.
4. This matter is before the Court on motion of the defendants
to dismiss the motion of the attorney for supplemental relief. The
facts show and the Court finds: That the attorney who filed the
motion for supplemental relief was not one of the attorneys who
initially instituted the suit; that original local counsel resigned
as attorney and withdrew from the case with approval of the
Court; that present counsel seeking such relief graduated from
law school two or three years ago and that he does not know any
of the plaintiffs and was never requested by any plaintiff (parent
or child of this school) to seek any supplemental relief; that no
parent, or child communicated with counsel and advised him of
any discrimination, or unsatisfactory compliance by either school
in its progress toward complying with the requirements of the
model decree and the Court thus finds from such undisputed testi-
mony and reasonable inferences deducible from it that counsel
who signed the motion in this case for supplemental relief had no
express or implied authority from any plaintiff, or parent, or
child from either school to do so; that no parent or child from
either school appeared at the hearing, and no representative of
any parent, or any child from either school appeared at the trial
A65
Most of the schools in these cases when judged by
their statistics alone do not present any impressive ac-
complishment or measure up to the minimum require-
ments of Green in the disestablishment of every vestige of
desegregation under the old system. Most of the schools
in these cases still can be recognized and operate as schools
clearly identifiable by race. The facts and underlying cir-
cumstances in these cases unmistakably show that very
little progress has been made in desegregating these
schools, except in a very few instances. It is incumbent
upon the plaintiffs in these cases to show a lack of sub-
stantial progress toward the disestablishment of a dual
school system and the establishment of a unitary school
system of both races. It thereupon devolves upon the de-
fendants to explain or overcome such showing by the
plaintiffs. The rule is that the burden of proof always
rests upon the plaintiff (or movant) who must establish
proof of his claim. When the plaintiff makes out a prima
facie case, then the burden of evidence devolves upon the
defendant to explain, or justify the facts and circumstances
surrounding his position, but the burden of proof never
shifts from the plaintiff.
There are many variable conditions which exist in
these twenty-five defendants’ cases that require some
special and separate consideration and treatment. In
some of these schools such as the Noxubee County School
during the two weeks while these school cases were being heard
to testify that anybody connected with either of said schocls had
authorized present counsel to seek such supplemental relief, and
the Court finds that present counsel (Anderson) had no such
power or authority (express or implied), and that defendants’
motion to dismiss his application for such relief as being unau-
thorized will be granted. This suit was initially instituted by
non-resident counsel who never appeared in the case, and local
counsel who withdrew from the case prior to the hearing, so that
only Reuben V. Anderson, a young Jackson lawyer, appeared as
attorney for this motion and sought by his own testimony to
establish his right to do so, but entirely without factual support
or justification therefor.
AG6
District, Civil Action No. 1372 (E), there are from three to
four colored students to each white student in these
schools. A forced mixing of those schools by a mathemati-
cal formula of indiscriminate mixing would result in the
creation of all Negro schools. All of these schools com-
plain of the provision in the model decree which denies
the school authorities the right to persuade parents and
children to transfer to schools of the opposite race. The
facts in this case show that all of these schools have very
faithfully obeyed that injunction of the Court. No school
board member or teacher or representative of any school
has tried to influence any child or any parent to send any
child to any school predominantly of the opposite race. But
it is the oft repeated law in this Circuit that the school
board (and nobody else) has the nondelegable duty to
adopt a plan which will conform to all of the requirements
of the model decree and to see that such plan works. Every
school official who testified in every one of these cases be-
fore the Court testified convincingly before this Court that
this provision of this model decree had interfered with a
fair and just and proper operation of the freedom of choice
plan in these schools. Yet, like Prometheus (chained to a
rock) these schools are ordered by the Court to shoulder
this very positive and important duty of desegregating
these schools while the Court denies them the right to
counsel with and persuade parents to let their children
enter a school predominantly of the opposite race. This
Circuit has steadfastly refused to modify that provision
in the model decree in any manner, or to any extent and
considers such provision as an important matter of policy
to be changed only by the United States Court of Appeals
5. That provision appears in paragraph II(o) of the Jefferson
decree and provides: “At no time shall any official, teacher or
employee of the school system influence any parent, or other
adult person serving as a parent, or any student, in the exercise
of a choice or favor; or penalize any person because of the choice
made.
ABT
for this Circuit sitting en banc. This Court is unable to as-
say the degree to which such provision in the injunction
of this Court has contributed to the failure of these schools
to accomplish more impressive results than are revealed
by the bare figure statistics as to mixing of the races in
these schools. Certainly, these statistics cannot be ig-
nored or disregarded and are well calculated to have an
impressive effect upon any trier of facts in search of some
means for determining whether or not the freedom of choice
plan has worked. But there is nothing in Green, or its
two companion cases, to indicate that statistics alone are
to determine whether or not a plan works. Otherwise, a
mathematical formula would have been prescribed by the
Court and sound judicial discretion of this Court would
have been discarded. But, instead, Green said, “We do
not hold that ‘freedom of choice’ can have no place in such
a plan.” * * * “Although the general experience under
‘freedom of choice’ to date has been such as to indicate its
ineffectiveness as a tool of desegregation, there may well
be instances in which it can serve as an effective device.
Where it offers real promise of aiding a desegregation pro-
gram to effectuate conversion of a state-imposed dual sys-
tem to a unitary, non-racial system there might be no ob-
jection to allowing such a device to prove itself in opera-
tion.” The facts and circumstances in practically all of
these cases (with a very few exceptions) show this Court
to its entire satisfaction that these schools, operating un-
der the freedom of choice plan, have operated in the very
best of good faith with the Court in an honest effort to
comply with and conform to all of the requirements of the
model decree. In these cases so much progress has been
made in the attitude and cooperation of the parents, chil-
dren and teachers that they are entitled to much credit and
commendation of the Court as good citizens who wish to
comply with all of the requirements of the law, and to lay
A68
aside any inbred and ingrained former adverse opinions
about the operation of a unitary school system.
This Court has long entertained and often expressed
the view that the freedom of choice plan would not work
effectively, so long as mere lip service was paid the plan by
the school authorities, when the facts and circumstances
would disclose that actually the parent and the child in
some of these schools would not in truth and in fact be a
free agent as to the school to be attended by the colored
child. But a very careful examination of the witnesses
and analysis of their testimony in these cases revealed to
the Court not one instance where any colored parent, or
colored child did not do exactly what they wanted to do
in deciding as to the school which the colored child would
attend. There are many reasons (and very important rea-
sons) why colored children have not sought to attend
formerly all-white schools. The primary reason is that the
vast majority of all schools attended by colored children
qualify for the government subsidiary as “target schools.”
They are provided by the government with free lunches,
and even improved facilities and working tools in their
shops, because the majority of the parents in such schools
are in low income brackets. A disruption of those benefits
would be disastrous to those children who would be obliged
to leave school and lose all educational advantages now
available to them there. It is such facts and circumstances
which have caused the courts to wisely observe, time and
again, that there is no easy and quick and ready-made cure
for the past ills of state enforced segregation. The problem
and its cure must yield to the facts and circumstances in
each particular school case. The cure must not result in a
destruction of the wholesome objective of the plan. It is a
sorry and very strange principle of constitutional law
which would foster by its application a catastrophic de-
struction of the right sought to be protected and enjoyed.
A69
Well trained colored teachers in active service in for-
merly colored schools and in formerly white schools in this
district have appeared before this Court and convincingly
testified under oath as a matter of fact that freedom of
choice was actually working in their schools; that perfect
harmony and understanding existed in the school and that
no danger to the school system lurked in the implementa-
tion of the freedom of choice plan, but that any kind of
forced mixing of the races against the wishes of the in-
volved parents and children (colored and white) would re-
sult in an absolute and complete destruction of the school
and its system. That is likewise a fair analysis and char-
acterization of the uncontradicted testimony of experienced
expert witnesses who have spent their lives in school serv-
ice in many other states. This testimony does not show
that desegregation is unpopular with some parents and
some children, but does positively show that any rushed
and random forced mixing applied for the sake of imme-
diate mathematical statistics would literally destroy the
school system for both races. In many instances where the
ratio of colored people to white people is very high, the
result would be not to create just schools, but to create
predominantly colored schools, readily identifiable as such
in every instance. The same corresponding result would
follow in areas where the white population is very dense
and few Negroes live.
Surely, the policy and practice burden of these schools
is not on the parents and children to provide a unitary
school system, but is squarely upon the shoulder of these
school boards. But what can a school board member do
who is enjoined under penalty of contempt by the Jefferson
decree not to try to persuade, or dissuade any child, or
any parent as to the school which the child will attend?
That Jefferson decree has not been amended and sugges-
tion as to amendment of the particular section has been
AT)
rejected. These board members have thus been deprived
of the valuable right and opportunity to properly discharge
and perform this duty so heavily resting upon them alone.
Outsiders may converse with parents and children as to
the school to be attended, where such others have no duty
or responsibility in the connection, but school board mem-
bers cannot do so. The paid agitators and transients and
meddlers simply have not produced impressive results
which are statistically favorable to the school board, which
has been mandated by the Court to perform its duty, but
not allowed by the Court to discharge its responsibility in
that connection. The Court finds from such circumstances
and conditions that the mathematical statistics as to the
working progress of the freedom of choice plan for this
reason alone is unfair, unjust, unrealistic and misleading.
The plan has not failed. The Court just has not allowed it
to work.
There is nothing in Green which condemns the free-
dom of choice plan as it is working in the designated
schools in this district. The Court has simply not afforded
these schools a fair and just opportunity to try to improve
the figure statistics of the plan at work. That opportunity
should not be denied or withheld.®
The Natchez schools, appearing as Civil Action No.
1120 (W), have demonstrated outstanding progress with
the freedom of choice plan. These schools accommodate
approximately 10,400 children, 55% of whom are Negro and
6. One of the authors of the majority opinion in the Jefferson
school case (Judge Thornberry) speaking for a panel composed
of Judge Brown and District Judge Taylor, in United States Vv.
Greenwood Municipal Separate School District, (5 C.A.) 406 F.2d
1086 held: “If it develops that no children in the school district
are being denied equal protection of the laws, then no relief will
be granted. This was the position taken by the Court below and
by another district court which considered the same question.
See United States v. Junction City School District, W.D., Arkansas,
1966, 253 F.Supp. 766. We agree.”
Al
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 predominantly 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 fig-
ure statistics are misleading and tell only part of the story.
There would appear to be no occasion or necessity for any
updating of the model decree to meet the requirements
of Green. The movants in this case have simply not shown
that any child in this school district has been denied equal
protection of the law in any instance. The defendants in
this case have satisfied the Court that the freedom of
choice plan has worked in that system and the plaintiffs
have not shown the contrary by the greater weight of the
credible evidence (including statistics). That ends our in-
quiry here, as set forth in footnote 6. The plaintiff’s mo-
tion to update the decree in this particular case for the
additional reason stated in this case will be denied.
As to the other cases, the plaintiffs have not shown
by the greater weight of the more convincing evidence that
the freedom of choice plan as to the other schools has not
worked and that there is no probable prospect of such
plan working. The plan has not been afforded an op-
portunity and chance to work, and it simply cannot be
honestly said that the plan has not worked. It cannot be
said from the evidence in this case that the plan will not
work if given a chance to do so. The Court, therefore,
finds as a fact and holds as a matter of law that the
ATT2
movants in these cases have failed to prove that such free-
dom of choice plan should be discarded as not workable,
and that the schools should be required to adopt another
plan which would work more effectively under the model
decree. That conclusion represents the best exercise by
this Court of its sound judicial discretion in making that
determination, and is surely not clearly erroneous on this
record. Insofar as such question is committed to the sound
judicial discretion of this Court even though disagreed
with by an appellate court, no appellate court can pass
judgment anew on that question which is addressed to the
trial court and not an appellate court, as was said in
Platt v. Minnesota Mining & Manufacturing Co., 376 US
240, 84 S.Ct. 769. There it was held: “The District Court’s
use of an inappropriate factor did not empower the Court
of Appeals to order the transfers. The function of the
Court of Appeals in this case was to determine the ap-
propriate criteria and then leave their application to the
trial judge on remand.” The motions of these plaintiffs
to update the remaining twenty-three cases to conform
with Green as to the working of the freedom of choice
plan to desegregate the student body of these schools will
be denied. The status of the faculties in these schools
is another matter later to be discussed.
The underlying fundamental principle which is decreed
in Brown and its satellite decisions is that a denial of his
equal protection rights accrues to a Negro not afforded an
education in public unitary school system. State enforced
segregation in public schools is condemned as an obstacle
and barrier to the enjoyment of such vested right. It is
universally decreed by the courts at this time that every
vestige and influence of such state enforced segregation
must be completely eradicated from the state supported
public schools; that a unitary school system shall replace
AT3
the dual system of schools, so that henceforth the system
shall operate schools without regard to race or color. Most
of the schools involved in these cases before the Court have
accepted and adopted such principles in good faith and have
made impressive strides in that field in compliance with
the requirements of the model decree. But the statistics
which this Circuit says speaks so loudly, that they listen
thereto, do not by themselves make a very attractive bare
figure picture of any rewarding or impressive accomplish-
ment. But these statistics alone are misleading, and do
not truly and convincingly reflect the facts and circum-
stances as they actually exist. Surely, a school board is
not responsible and is not accountable for a completely
voluntary choice of a Negro child who wishes to attend the
school which is attended predominantly by Negroes; yet,
such a choice would be reflected in these statistics as a
failure of the school board to discharge its duty, when the
school board is enjoined not to persuade or dissuade the
child or the parent in such decision. It simply may not
be honestly said under such circumstances that the free-
dom of choice plan has not worked in such a case! The
vast majority of colored children simply do not wish to
attend a school which is predominantly white, and white
children simply do not wish to attend a school which is
predominantly Negro, and that ingrained and inbred in-
fluence and characteristic of the races will not be changed
by any psuedo teachers, or sociologists in judicial robes. If
forced mixing is the ultimate goal in these cases, then ex-
treme care must be exercised by more knowledgeable and
more experienced men than mere judges of trial and appel-
late courts to avoid a complete disruption of our entire edu-
cational system in this district. It is easy for a judge in
an ivory tower, aloof and afar from the actual working
circumstances and conditions in these schools, to rational-
ize and unilaterally decree the answer to problems with
A'T4
which he is not familiar and without regard to and consid-
eration for the completely insurmountable barriers to the
suggested course of solution. This Court certainly does not
possess any of the training, or skill, or experience or facil-
ities necessary to operate any kind of schools; and unhes-
itatingly admits to its utter incompetence to exercise, or
exert any helpful power or authority in that area. These
school boards are thus confronted with many very serious
and perplexing school problems which will command the
very highest skill of their expertise in discharging and per-
forming in accordance with the requirements of law. The
responsibility is strictly theirs to carry out the mandate of
this Court under penalty of sanctions. If the HEW has any
competent and experienced administrative people who
could completely divest themselves of all political ambi-
tions and influence, it is possible that they could be of some
help to these boards in devising and administering plans for
the complete desegregation of these schools without injury
to the educational objective. But plans heretofore have
not been meaningful or helpful in criticisms thereof before
this Court, and have resulted in nothing but a waste of time.
Nobody needs any more guidelines or plans any longer to
be completely informed of the duty of these school boards.
It is unmistakably clear now that this duty does not rest
on the parent or on the child to make these plans work,
but such duty rests squarely and alone upon the shoulders of
these school board members. It is their duty under the
injunction heretofore issued by this Court to see that the
existing freedom of choice plan for the desegregation of
these public schools works now, or will work in the im-
mediate future. If and when it becomes apparent to the
Court that a plan is working to the degree that no parent
or child of either race can convince the Court that some
child is being denied the equal protection of the laws un-
der the Fourteenth Amendment to the Federal Constitu-
AT5
tion by the policy and operating practices of a publicly sup-
ported school, then the plan in operation must be said to
be working and any additional relief requested should be
denied. Those are exactly the facts and circumstances
established before this Court without any dispute, or con-
tradiction in the evidence in this record on that question.
The rule in this Circuit under such facts and circumstances
is that further relief should be denied. That is the rule of
this Circuit as declared in United States v. Greenwood
Municipal Separate School District, supra, where it is said:
“If it develops that no children in the school district are
being denied equal protection of the laws, then no relief
will be granted. This was the position taken by the Court
below and by another district court which considered the
same question. See United States v. Junction City School
District, W.D., Arkansas, 1966, 253 F.Supp. 766. We agree.”
Now as to the faculty. Very little progress has been
made by any of these other schools in desegregating the
faculties. That is a monumental job as the evidence in this
record shows for several reasons. Teachers are not well
paid in this district, and the schools are simply not in a
position to crack any whip over their heads. Actually, the
facts show that there is such a scarcity of available teach-
ers in this district that many of the Schools have been
unable to complete their present faculty requirements. The
evidence in this record does not show one single instance
where there has been any discrimination on the part of
any school authority in hiring teachers. In many of these
schools, the teachers are married and simply teach schools
as sort of an avocation without regard to the adequacy of
the salary, because they live in the town where the school
is situated and they are not dependent for their livelihood
on such salary. Several of these schools are obliged to
compete with the United States Government where their
schools are operated on Indian reservations financed by
AT6
the Government. Such teachers are paid much more at-
tractive salaries than the neighboring adjoining state
schools can afford to pay from their limited budgets. These
teachers who thus contract with these school boards insist
upon designating in the contract the school at which they
will teach at such reduced salary. Now, it is very unreal-
istically suggested that the school board should disregard
such provision in their contract, and should stand upon the
suggestion or legal advice (as dicta in this Circuit) that such
teachers be assigned without regard to terms of the con-
tract, and use such court advice as a defense, if sued upon
such contract, or breach thereof. Surely, a teacher has
a vested right to teach where he or she pleases, and the
teacher owes no duty to the contrary to anybody. It is
certainly not difficult to foresee the calamitous result which
would follow the pursuit of such a suggestion in the state
court trial, and the result which would accrue to the school.
That simply is not the answer to the problem, and no
panacea is offered here, but these schools surely do have
a very positive duty to uproot and remove every vestige
of the former segregated policies which were for so long
state enforced in this area. This Circuit has frequently
expressed its impatience, and at times with some petulance,
at the schools’ lack of progress in complying with the lit-
eral requirements of the Jefferson decree. United States
v. Board of Education of the City of Bessemer, (5 C.A.)
396 F.2d 44 imposes upon school boards the positive duty
to desegregate faculties, with the sanction of discharge, if a
teacher refuses an assignment in furtherance of an order
of the board. Target dates must be set for the ultimate
accomplishment of such result of complete integration of
the faculty by the school year 1970-1971 says this Circuit.
Cf: United States v. Greenwood Municipal Separate
School District, 406 F.2d 1086, 1093-4.
ATT
Montgomery County Board of Education v. Arlam Carr,
Jr., (5 C.A.) 400 F.2d 1 holds: That good faith in a court of
equity in this sensitive area of desegregation is an impor-
tant element; that there must be target dates for the ac-
complishment of faculty desegregation; that there can be
no mixing by any numerical or racial percentage ratio of
faculty which would enlarge upon the requirements of the
model decree; that there shall be no hard and fast rule as
to exact percentages, but only approximations of such ratios
that must remain flexible. [Certiorari granted and set for
argument on April 21 and April 28 calendars in United
States Supreme Court. ]
In sum, and by way of recap of the finding of facts by
the Court as to all remaining schools before the Court in
this record, the Court expressly finds from the uncontra-
dicted, undisputed credible evidence offered before it in
this case that:
(1) The freedom of choice plan in all of these cases is
universally acclaimed by both races in all schools as being
most desirable, most workable and acceptable by every-
body. Nobody testified to anything to the contrary or to
anything better. Every witness who testified on both sides
testified substantially to the same effect. There is no sub-
stantial dispute or contradiction of such fact to be found
anywhere in this record as to any school. The movants
had no witnesses of their own, but used only teachers or
officials of these schools as their witnesses. . ..
(2) The target schools are accomplishing a very effec-
tive and wholesome purpose and these schools should not
be disturbed or disrupted in their service under federal
law to these underprivileged children who could not other-
wise afford to attend any school.
(3) Extracurricular activities are being engaged in on
a gradual and cautious basis in this particular delicate area,
AT8
which can easily result in a destruction of the entire pro-
gram for both races by any precipitous action of a court in
the exercise of its equity jurisdiction even in the very best
of good faith.
(4) No parent and no child in any school has com-
plained to anybody of any discriminatory treatment ac-
corded any child, or of any alleged failure of the freedom
of choice plan to operate effectively as to anybody in any
one of these schools before the Court; and no parent and
no child in any school before the Court appeared here to
testify in support of any one of the plaintiffs’ motions to
show any necessity or propriety for updating the model
decree.
(5) No school in the district has attained the figure
degree of mixing of the races among the students to equal
that condemned in Green as being unsatisfactory, but it
cannot be said as a matter of fact that the freedom of
choice plan has failed in these schools primarily because
the board (and all teachers and officials) have been en-
joined and are still enjoined not to try to persuade any
child or any parent to mix with the opposite race so as to
make such freedom of choice plan work. No school can be
criticized or penalized for not making such plan work when
they were enjoined by the Court not to try to make it work.
(6) There is no proof anywhere to be found in this
record that any school board or other school authority has
done anything (or not done something that should have
been done) which has denied any child (black or white)
of the equal protection of the laws under the Federal Con-
stitution. That should end the inquiry here under foot-
note 6, supra.
(7) No school has violated, or neglected any duty
under the Jefferson decree entered by this Court in any
one of these cases.
AT9
(8) Each school board has done everything possible,
which it was authorized by the model decree to do, to estab-
lish and operate a unitary school system in each of the
districts before the Court and have made satisfactory and
acceptable progress to that end.
(9) Faculties should and must be desegregated as re-
quired by the model decree. A target date must be set by
a plan and must be met, as the orders of the United States
Court of Appeals for this Circuit demand. United States v.
Bessemer, 396 F.2d 44; United States v. Greenwood Munic-
ipal Separate School District, 406 F.2d 1086, 1093-4; Mont-
gomery County Board of Education v. Arlam Carr, Jr., 400
P2441.
(10) The detailed facts as to progress figures as to
mixing of the races in the various schools are as shown in
the reports of the schools filed with the Court, and are not
impressive as figure statistics in such limited and distorted
view of the workings of the freedom of choice plan.
(11) Any additional findings or conclusions, under
Civil Rule 52, desired by any party may be submitted to
the Court for its proper action within ten days after date
of this opinion.
Finally, it is the duty of each of these remaining
twenty-three schools to adopt a plan for the desegregation
of the faculties of such schools, and for the fixation of a
target date therefor, and to meet such target date in ac-
cordance with the cited decisions of this Circuit on that
question. Time is too short between now and the com-
mencement of the fall sessions of school to contemplate
filing plans and having hearings on such plans in the in-
terim. As previously stated, these hearings accomplish ab-
solutely nothing, and result in extensive arguments and
delays with no corresponding benefit or accomplishment.
A80
But each school in this group will be enjoined more spe-
cifically than heretofore to commence and make some
substantial progress in the desegregation of the faculty at
each school at the 1969 fall session with the target date
as fixed by the cited decisions from this Circuit. The mo-
tions of the plaintiffs in the twenty-three remaining cases
before the Court will be sustained to the extent stated.
The plaintiffs (or movants) in each of the twenty-five
school cases before the Court are directed to furnish the
Court with all separate orders in these cases in conformity
with the provisions of this opinion, and within the time
required by the rules of this Court.
May 13, 1969
/s/ HaroLp Cox
United States District Judge
/s/ DaN M. RUSSELL, JR.
United States District Judge
/s/ WALTER L. Nixon, Jr.
United States District Judge