Supplemental Brief for Intervenors and Appellants

     [||2cf7d0cf-aa71-40fb-b087-43f54ffe1939||] IN THE 

fuiten States Court of Appeals 
FOR THE FIFTH CIRCUIT 

ACREE, 

HENRY, 

DAVIS, 

UNITED STATES, 
DAVIS, 

UNITED STATES, 

UNITED STATES, 

UNITED STATES, 

UNITED STATES, 
Appellants 

et al. v. COUNTY BOARD OF EDUCATION OF 

et 

et 

et 

al. 

al. 

al. 

al. 

al. 

al. . BOARD OF EDUCATION 

RICHMOND COUNTY, GEORGIA, et al. 
. CLARKSDALE MUNICIPAL SEPARATE 
SCHOOL DISTRICT, et al. 

. BOARD OF SCHOOL COMMISSIONERS 
OF MOBILE COUNTY, et al. 

. CADDO PARISH SCHOOL BOARD, et al. 

. EAST BATON ROUGE PARISH SCHOOL 
BOARD, et al. 

. FAIRFIELD BOARD OF EDUCATION, 
et al. 

OF CITY OF 

BESSEMER, et al. 

. JEFFERSON COUNTY BOARD OF EDU- 
CATION, et al. 

. BOSSIER PARISH SCHOOL BOARD, et al. 
Appellees 

ON APPEAL FROM THE UNITED STATES DISTRICT COURTS FOR THE NORTHERN AND 

SOUTHERN DISTRICTS OF ALABAMA, SOUTHERN DISTRICT OF GEORGIA, EASTERN 

AND WESTERN DISTRICTS OF LOUISIANA AND NORTHERN DISTRICT OF MISSISSIPPI 

SUPPLEMENTAL BRIEF FOR INTERVENORS AND APPELLANTS 

JACK GREENBERG 

JAMES M. NABRIT, III 

MICHAEL MELTSNER 

LEROY D. CLARK 

NORMAN C. AMAKER 

ALFRED FEINBERG 
10 Columbus Circle 

New York, New York 

DAVID H. HOOD 
2001 Carolina Avenue 
Bessemer, Alabama 

JESSE N. STONE, JR. 
85414, Texas Avenue 

Shreveport, Louisiana 

A. P. TUREAUD 
1821 Orleans Avenue 
New Orleans, Louisiana 

VERNON Z. CRAWFORD 

578 Davis Avenue 

Mobile, Alabama 

OSCAR W. ADAMS, JR. 
1630 Fourth Avenue North 
Birmingham, Alabama 

DEMETRIUS C. NEWTON 
408 North 17th Street 
Birmingham, Alabama 

JOHNNIE JONES 
530 South 13th Street 
Baton Rouge 2, Louisiana 

JOHN H. RUFFIN, JR. 
930 Gwinnett Street 

Augusta, Georgia 

HOWARD MOORE, JR. 
85914, Hunter Street, N.W. 
Atlanta, Georgia 

Attorneys for Intervenors and Appellants 

CONRAD K. HARPER 
Of Counsel 



. 22723 

. 23255 

. 22759 

. 23274 

. 23116 

. 23331 

. 23335 

. 23345 

. 23365 

IN THE 

Nunited States Court of Appeals 
FOR THE FIFTH CIRCUIT 

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

HENRY, 

DAVIS, 

UNITED STATES, 
DAVIS, 

UNITED STATES, 

UNITED STATES, 

UNITED STATES, 

UNITED STATES, 

Appellants 

et 

et 

et 

et 

et 

et 

et 

et 

al. 

al. 

al. 

al. 

al. 

al. 

al. 

al. 

RICHMOND COUNTY, GEORGIA, et al. 
. CLARKSDALE MUNICIPAL SEPARATE 
SCHOOL DISTRICT, et al. 

. BOARD OF SCHOOL COMMISSIONERS 
OF MOBILE COUNTY, et al. 

v. CADDO PARISH SCHOOL BOARD, et al. 

v. EAST BATON ROUGE PARISH SCHOOL 
BOARD, et al. 

. FAIRFIELD BOARD OF EDUCATION, 
et al. 

. BOARD OF EDUCATION OF CITY OF 
BESSEMER, et al. 

. JEFFERSON COUNTY BOARD OF EDU- 
CATION, et a. 

. BOSSIER PARISH SCHOOL BOARD, et al. 
Appellees 

ON APPEAL FROM THE UNITED STATES DISTRICT COURTS FOR THE NORTHERN AND 

SOUTHERN DISTRICTS OF ALABAMA, SOUTHERN DISTRICT OF GEORGIA, EASTERN 

AND WESTERN DISTRICTS OF LOUISIANA AND NORTHERN DISTRICT OF MISSISSIPPI 

SUPPLEMENTAL BRIEF 

FOR INTERVENORS AND APPELLANTS 

ARGUMENT 

This Court Should Rely Upon Applicable HEW Guide- 

lines in School Segregation Cases Provided the Guide- 

lines, Where Followed, Effect Actual Desegregation. 

In answer to the April 21, 1966 letter of the Clerk to 

this Court, the undersigned counsel urge that the HEW 

guidelines® be adopted as minimum standards for all school 

1 The United States Office of Education Department of Health, Educa- 
tion and Welfare, Revised Statement of Policies for School Desegrega- 



2 

desegregation plans, provided the guidelines, where fol- 

lowed, effect meaningful desegregation. Such a policy as- 

sures desirable uniformity among school districts within 

the jurisdiction of this Court. The guidelines, moreover, 

represent the expert judgment of the United States Office 

of Education staff that all school districts are capable 

of accomplishing certain preliminary or elementary deseg- 

regation goals. These expert judgments, formulated after 

opportunity for fact finding and consultation not readily 

available to the judiciary, are entitled to great weight, 

cf. Price v. Denison Independent School District, 348 

F.2d 1010 (5th Cir. 1965); Udall v. Tallman, 380 U.S. 1 

(1965), even where delicate constitutional questions are 

involved, cf. Zemel v. Rusk, 381 U.S. 1 (1965). Regula- 

tions promulgated pursuant to congressional authoriza- 

tion? generally have the force of statute. Federal Crop 

Ins. Corp. v. Merril, 332 U.S. 380, 385-86 (1947) (wheat 

crop insurance regulations); Standard Oil Company v. 

Johnson, 316 U.S. 481, 489 (1942) (War Department 

regulations); Arizona Grocery Company v. Atcheson, 

Topeka and Santa Fe Railroad Co., 284 U.S. 370, 386 

(1932) (ICC regulations). The result should not be dif- 

ferent in the instant cases where either the United States 

is a party or private litigants have borne the brunt of 

seeking constitutionally required desegregation. 

tion (March 1966) [hereinafter cited as Revised Statement] 45 CFR, 

Part 181. 

2 Section 602 of the 1964 Civil Rights Act, 78 Stat. 252, 42 U.S.C. 
§2000d-1 (1964), specifically provides for the issuance of rules and regula- 

tions, consistent with the Act, by federal departments empowered to extend 
federal financial assistance to any program, other than a program in- 

volving a federal contract of insurance or guaranty. Guidelines are issued 
pursuant to §602. Revised Statement §181.1. Section 602 embodies a well 
known congressional practice. See Shapiro, The Choice of Rulemaking 
or Adjudication in the Development of Administrative Policy, 78 Harv. 
L. Rev. 921, 958-71 (1965). 



3 

The guidelines have not been formulated in a context 

unsympathetic to local problems; §§403 through 405 of 

the 1964 Civil. Rights Act® provide that, upon request, 

the Commissioner of Education may render technical as- 

sistance to public school systems engaged in desegrega- 

tion. The Commissioner may also establish training in- 

stitutes to counsel school personnel having educational 

problems occasioned by desegregation; and the Commis- 

sioner may make grants to school boards to defray the 

costs of providing in-service training on desegregation. 

In short, the Commissioner may assist those school boards 

who allege that they will have difficulty complying with 

the guidelines. In view of these facts, especially the as- 

sistance which may be furnished to meet alleged difficulties, 

there is a heavy burden on those who would argue that 

they cannot meet HEW standards. None of the school 

boards in these cases has met that burden; indeed, none 

of them has indicated that it cannot desegregate its school 

system by the HEW deadline of September, 1967. 

The failure of this Court to adopt standards at least 

as stringent as the guidelines would encourage litigation 

by recalcitrant school boards, cf. Singleton v. Jackson 

Municipal Separate School District, 348 F.2d 729, 731 (5th 

Cir. 1965), because court-ordered desegregation plans are 

exempted from the guidelines. Revised Statement §181.6. 

Where school boards’ plans do not meet minimum stan- 

dards,* this Court should invite HEW to enter such cases 

378 Stat. 247-48, 42 U.S.C. §§2000¢-1 through 2000c-3 (1964). 

* As of May 6, 1966, counsel are informed that, with one exception to 

be mentioned, none of the school boards, in the nine cases for which this 
brief is filed, has complied with the HEW guidelines. This is so because 

under Revised Statement §181.6, school boards under a court order need 

only file a copy of said order, which the school boards have done. The 

single exception is the County Board of Education of Richmond County, 
Georgia, No. 22723 in this Court, which has filed form 441-B with the 



4 

with a view towards raising the plans to the level of the 

guidelines. This position is, therefore, substantially similar 

to that advanced by the United States in its suggested 

specific decree in seven school segregation cases now pend- 

ing in this Court." We would emphasize, however, that 

the adoption of a specific decree in these cases framed in 

terms of the guidelines is only a partial answer to the 

segregation problem. Thus, we go further than the posi- 

tion taken by the United States. Uppermost must be the 

actual realization of desegregation. The assistance fur- 

nished by HEW to local school boards desegregating 

under a court order would provide an effective method of 

bringing about this meaningful desegregation. 

Of course, the focus of the courts must be, under Brown 

v. Board of Education, 347 U.S. 483 (1954), on the realiza- 

tion of desegregated education, if necessary, irrespective 

of the guidelines. The courts must require that those 

plans conforming to the guidelines operate to provide a 

desegregated education. For those matters not covered 

by the guidelines, such as school construction programs 

perpetuating segregated education and the need to up- 

grade inferior schools which in fact remain all-Negro,® 

Department of Health, Education and Welfare. The Richmond County 

Board has not filed any of the other extensive information necessary to 
bring it into full compliance with the guidelines. This information was 

obtained from the office of Mr. David S. Seeley, Assistant Commissioner 

of the Equal Educational Opportunities Program in the Department of 

Health, Education and Welfare. 

5 Vol. IV of Appendix to briefs of the United States in Nos. 23173, 

23192, 23274, 23331, 23335, 23345, 23365. 

6 Revised Statement, §181.15 speaks only of closing the ‘small, inade- 
quate” Negro school. 

Overcrowded Negro schools exist in Clarksdale, Miss., Brief for Appel- 
lants in No. 23255, pp. 10-14; East Baton Rouge, La., Brief for Appellants 
in No. 23116, pp. 9-10; Fairfield, Ala., Brief for Intervenors in No. 23331, 
pp. 19-20; and Jefferson County, Ala., Brief for Intervenors in No. 23345, 
p. 10. Proportionally more funds are spent on white schools than on Negro 



bs) 

the courts must also frame mandates designed to make 

equal educational opportunity a reality. School author- 

ities must be put on notice that the only valid plan is 

one which effects desegregation. To this end frequent 

and comprehensive court review of the facts of desegrega- 

tion is a necessity. See the order in Carr v. Montgomery 

Board of Education, Civil No. 2072-N, M.D. Ala., March 22, 

1966, requiring periodic reports from the school board. 

Where the facts reveal that actual desegregation is mot 

taking place, courts should require school boards to take 

effective affirmative steps such as ordering rezoning or 

other assignment methods. The opinion in Dowell v. School 

Board of Oklahoma Public Schools, 244 F. Supp. 971 

(W.D. Okla. 1965) (appeal pending, 10th Circuit, No. 

8523), illustrates the comprehensiveness of a court man- 

date designed to guarantee desegregation. 

Brown v. Board of Education, 349 U.S. 297 (1955), 

held that: 

Once such a start [toward desegregation] has been 

made, the courts may find that additional time is 

necessary to carry out the ruling in an effective man- 

schools in Clarksdale, Miss., Brief for Appellants in No. 23255, pp. 8, 
12-13; and in Fairfield, Ala., Brief for Intervenors in No. 23331, p. 20. 

The physical facilities of Negro schools are inferior to those of whites in 

Bossier Parish, La., Brief for Appellant Lemon in No. 23365, pp. 8-9; in 
Jefferson County, Ala., Brief for Intervenor in No. 23345, pp. 9-10; in 

Bessemer, Ala., Brief for Intervenors in No. 23335, pp. 16-18; in Fair- 
field, Ala., Brief for Intervenors in No. 23331, p. 20; and in Mobile 

County, Alabama, Brief for Appellants in No. 22756, pp. 13-14. Negro 

schools have course offerings inferior to those provided in white schools in 
Richmond County, Ga., Brief for Appellant in No. 22723, p. 2; in Bossier 

Parish, La., Brief for Appellant Lemon in No. 23365, pp. 7-8; in Jefferson 

County, Ala., Brief for Intervenor in No. 23345, p. 9; in Bessemer, Ala., 
Brief for Intervenors in No. 23335, p. 16; in Fairfield, Ala., Brief for 

Intervenors in No. 23331, p. 21; in Mobile County, Ala., Brief for Appel- 

lants in No. 22759, p. 14; and in Clarksdale, Miss., Brief for Appellants 
in No. 23255, p. 5, n.5. 



6 

ner. The burden rests upon the defendants [i.e., the 

school boards] to establish that such is necessary in 

the public interest and is consistent with good faith 

compliance at the earliest practicable date. 349 U.S. 

at 300 (emphasis supplied). 

Eleven years later, none of the school boards in these 

cases has given sufficient justification for any delay. Nome 

has alleged that it cannot comply with the HEW goal of 

desegregation by September 1967, thus the least that can 

be required of them is conformity to HEW’s standards. 

Respectfully submitted, 

JACK GREENBERG 
JAMES M. NABRIT, III 

MICHAEL MELTSNER 
LEROY D. CLARK 

NORMAN C. AMAKER 

ALFRED FEINBERG 

10 Columbus Circle 

New York, New York 

DAVID H. HOOD 
2001 Carolina Avenue 

Bessemer, Alabama 

JESSE N. STONE, JR. 
8541, Texas Avenue 

Shreveport, Louisiana 

A. P. TUREAUD 
1821 Orleans Avenue 

New Orleans, Louisiana 

VERNON Z. CRAWFORD 

578 Davis Avenue 

Mobile, Alabama 

OSCAR W. ADAMS, JR. 

1630 Fourth Avenue North 

Birmingham, Alabama 

DEMETRIUS C. NEWTON 
408 North 17th Street 
Birmingham, Alabama 

JOHNNIE JONES 
530 South 13th Street 

Baton Rouge 2, Louisiana 

JOHN H. RUFFIN, JR. 
930 Gwinnett Street 

Augusta, Georgia ’ 

HOWARD MOORE, JR. 
8591, Hunter Street, N.-W. 

Atlanta, Georgia 

Attorneys for Intervenors and Appellants 

CONRAD K. HARPER 

Of Coumsel 



7 

Certificate of Service 

This is to certify that a copy of the foregoing supple- 

mental brief has been served on each of the attorneys for 

appellees and the United States, as listed below, by being 

deposited in the United States mail, air mail, postage 

prepaid, on this 

Hon. John A. Richardson 

District Attorney 

1st Judicial District 

Caddo Parish Courthouse 

Shreveport, Louisiana 

Hon. William P. Schuler 

Assistant Attorney General 

201 Trist Building 

Arabi, Louisiana 

'. J. Bennett Johnston, Jr. 

930 Giddens Lane Building 

Shreveport, Louisiana 

. Macon Weaver 

United States Attorney 
- Federal Building 

Birmingham, Alabama 

Mr. Maurice F. Bishop 
Bishop & Carlton 
325-29 Frank Nelson Building 

Birmingham, Alabama 

. Reid B. Barnes 

Lange, Simpson, Robinson & 
Somerville 

317 North 20th Street 

Birmingham, Alabama 

Hon. Jack P. F. Gremillion 

Attorney General 

State Capitol 
Baton Rouge, Louisiana 

David L. Norman 

Department of Justice 

Washington, D. C. 

Edward L. Shaheen 
United States Attorney 

Federal Building 

Shreveport, Louisiana 

Mr. 

Mr. 

day of May, 1966: 

Mr. J. Howard MecEniry 

MecEniry, McEniry & McEniry 
1721 4th Avenue North 
Bessemer, Alabama 

Hon. Louis H. Padgett, Jr. 

District Attorney 

Bossier Bank Building 
Bossier City, Louisiana 

Hon. John Doar 

St. John Barrett 
Peter Smith 
Department of Justice 
Washington, D.C. 20530 

George F. Wood, Esq. 

510 Van Antwerp Building 
Mobile, Alabama 

Franklin H. Pierce, Esq. 

Southern Finance Building 

Augusta, Georgia 

Ed Foulcher, Esq. 

520 Green Street 
Augusta, Georgia 

Semmes Luckett, Esq. 
121 Yazoo Avenue 

Clarksdale, Mississippi 38614 

John F. Ward, Esq. 
Burton, Roberts and Ward 

206 Louisiana Avenue 

Baton Rouge, Louisiana 

Attorney for Intervenors and 

Appellants 



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