Response of Appellants in Support of Motion to Intervene as Appellants

    FOR THE FIFTH CIRCUIT 

  

NO. 

UNITED STATES OF AMERICA, Plaintiff-Appellant, 

Vv. 

HINDS COUNTY SCHOOL BOARD, et al., Defendants-Appellees. 

BUFORD A. LEE, et al., laintiffs-Appellees, 

Vv. 

UNITED STATES OF AMERICA, Defendant-Appellant, 

Vv. 

MILTON EVANS, Third Party 
Defendant-Appellee. 

- UNITED STATES OF AMERICA, Plaintiff-Appellant, 

Vv. 

KEMPER COUNTY SCHOOL BOARD, et al., Defendants-Appellees. 

UNITED STATES OF AMERICA, Plaintiff-Appellant, 

Vv. 

NORTH PIKE COUNTY CONSOLIDATED 
SCHOOL DISTRICT, et al., Defendants-Appellees. 

UNITED STATES OF AMERICA, Plaintiff-Appellant, 

Vv. 

NATCHEZ SPECIAL MUNICIPAL SEPARATL 
SCHOOL DISTRICT, et al., Defendants-Appellees. 

UNITED STATES OF AMERICA, Plaintiff-Appellant, 

V. 

MARION COUNTY SCHOOL DISTRICT, 
el al. Defendants-Appellees. 

 



  

    

    

    

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UNITED STATES OF AMERICA, Plaintiff-Appellant, 

Ve 

LAUDERDALE COUNTY SCHOOL DISTRICT, 
et ail., Defendants-Appellees. 

DIAN HUDSON, et al., Plaintiffs-Appellants, 

UNITED STATES OF AMERICA, Plaintiff-Intervenor- 
Appellant, 

Va 

LEAKE COUNTY SCHOOL BOARD, et al., Defendants-Appellees. 

UNITED STATES OF AMERICA, Plaintiff-Appellant, 

V. 

COLUMBIA MUNICIPAL SEPARATE SCHOOL, 
et al., Defendants~-Appellees. 

UNITED STATES OF AMERICA Plaintiff-Appellant, 

v, 

AMITE COUNTY SCHOOL DISTRICT, 
et al., Defendants-Appellees. 

UNITED STATES OF AMERICA, Plaintiff-Appellant, 

V. 

COVINGTON COUNTY SCHOOL DISTRICT, 
et al., Defendants~-Appellees. 

UNITED STATES OF AMERICA, Plaintiff-Appellant, 

Vv. 

LAWRENCE COUNTY SCHOOL DISTRICT, 
et al., Defendants-Appellees. 

JEREMIAH BLACKWELL, JR., et al., Plaintiffs-Appellants, 

Vv. 

ISSAQUENA COUNTY BOARD OF EDUCATION, 
et al., Defendants-Appellees. 

iii 

 



  

UNITED STATES OF AMERICA, 

Ve 

WILKINSON COUNTY SCHOOL DISTRICT, 
= ad 

cu al., 

CHARLES KILLINGSWORTH, et al., 

Vv LJ 

THE ENTERPRISE CONSOLIDATE 
SCHOOL DISTRICT and 
QUITMAN CONSOLIDATED SCHOOL 
DISTRICT, 

UNITED STATES OF AMERICA, 

Vv. 

LINCOLN COUNTY SCHOOL DISTRICT, 

et al., 

UNITED STATES OF AMERICA, 

Vv. 

PHILADELPHIA MUNICIPAL SEPARATE 

SCHOOL DISTRICT, et al., 

UNITED STATES OF AMERICA, 

Vv. 

FRANKLIN COUNTY SCHOOL DISTRICT 

et al., 

: 

iv 

Plaintiff-Appellant, 

Defendants-Appellees. 

Plaintiffs-Appellants, 

Defendants-Appellees. 

- 

Plaintiff-Appellant, 

Defendants-Appellees. 

Plaintiff-Appellant, 

Defendants-Appellees. 

Plaintiff-Appellant, 

Defendants-=Appellees. 

 



  

RESPONSE IN QPPOSITION TO THE MOTION OF 
THE UNITED STATES TO CONSOLIDATE APPEALS, 
MOTION FOR SUMMARY REVERSAL, OR IN THE 
ALTERNATIVE, TO PLACE ON THE SUMMARY 
HEARING CALENDAR, TO PROCEED ON THE 
ORIGINAL RECORD, AND TO EXPEDITE APPEALS 
  

  

The Appellees respond to the several motions of the United 

States as follows: 

1. The Appellees oppose the motion to consolidate this 

case with the several other cases for the reason that these 

cases may or may not include common questions of law; but, 

this case clearly does not have common questions of fact with 

the other cases. | 

2. The Appellees oppose the motion for summary reversal 

for the reasons that (a) this Court should have and consider 

the full record and (b) this is an attempt to entice the 

Court into an irrevocable decision without an opportunity for 

the Appellees to fully present their case to the Court. 

3. The Appellees oppose the placing of this matter on 

the summary calendar, expediting the appeal and proceeding 

on the original record for the reasons that (a) this case 

is of importance to thousands of people, and (b) it is 

impossible for the Appellees and their attorney to acequately 

prepare for an expedited appeal upon such short notice. 

4. The order of the District Court appealed from 

should be affirmed and this case remanded to the District 

Court for implementation of the said order because: 

(a) The Appellees have made substantial progress 

from year to year toward the elimination of the 

dual school system. 

(Lb) The District Court found as a fact that the 

Appellees' freedom of choice plan was working 

and that it showed promise of continuing to 

 



  

work toward the elimination of the dual school 

system, 

(¢c) The Appellees' freedom of choice plan is best 

adapted to the maintenance of quality education 

while working toward the elimination of the 

dual school system. 

(d) The Appellees' freedom of choice plan will 

secure more "long term" desegregation than 

any other plan for the district. 

(e) The District Court found as a fact that the 

"tieing" of the hands of the Appellees had 

hindered the effective operation of free choice 

and that the "untieing" of the Appellees’ 

hands would allow Appellees to take affirmative 

steps toward more mixing. 

CONCLUDING STATEMENT 
  

Because of the very short notice the Appellees' attorney 

has not been able to, in his opinion, adequately prepare for 

this appeal. The Brief of the United States was received 

by mail on June 30, 1969, and all response must be on file 

with the Clerk of this Court by noon Tuesday, July 1, 1969. 

Therefore, because of the lack of time Appellees' attorney 

is not attempting to prepare the statistical data suggested 

by the Court in paragraph 4 of the Clerk's letter dated 

June 25, 1969. 

Appellees' attorney attaches hereto proposed opinion - 

orders as Exhibits "A" and "B" pursuant to paragraph 7 of 

the aforesaid letter. These proposed opinion - orders were 

prepared unilaterally by Appellees' attorney. 

Appellees! attorne because of lack of time to prenare PP Yo Pp 

a separate brief, is attaching hereto a copy of his brief 

 



  

filed with the District Court at the conclusion of the 

hearing and prior to the rendition of the opinion by the 

District Court. 

Appellees respectfully ask this Court to consider the 

aforesaid brief and upon a hearing hereon to affirm the 

order of the District Court and remand this case to the 

District Court for implementation of the District Court 

order appealed from. 

Respectfully submitted, 

2 \ 1 —_ 
/ i /] f 4 op, 
fg pf RR i" ns 

  

{1 ily 3 \gnp lk, 
William B. Compton // 
426 Citizens National Bank 

Building 
P. O. Bow Bu5 

= 

Attorney for Defendants-Appellees 

CILRETLITFTICATE 
  

I hereby certify that I will personally endeavor to serve 

a representative from the Department of Justice, United States 

of America, on Tuesday, July 1, 1969, in New Orleans, Louisiana, 

at or prior to the commencement of the oral arguments in this 

cause. JI am not mailing copies of this response with supporting 

exhibits and brief for the reason that I anticipate that the 

attorneys for the United States will be en route to New Orleans, 

Louisiana, today for the oral arguments and hence they could 

not possibly receive same if they were mailed. 

WITNESS MY SIGNATURE this the lst day of July, 1969. 

/ Ti Lie | a 
te {7 / \ dx { / s——_ 

Jud . 

William B. Compton 7) 
426 Citizens National Bank 

Building 

  

P. GG. BOM Bub 
Meridian, Mississippi 39301 

Attorney for Defendants-Appellees 

 



  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

NO. 

UNITED STATES OF AMERICA, Plaintiff-Appellant, 

Ve 

HINDS COUNTY SCHOOL BOARD, et al., Defendants~Appellees. 

[AND OTHER CASES] 

UNITED STATES OF AMERICA, Plaintiff-Appellant, 

Ve 

LAUDERDALE COUNTY SCHOOL DISTRICT, 
et al., Defendants-Appellees. 

SUGGESTED OPINION - ORDER 
  

After hearing and considering the matter of United States 

of America v. Lauderdale County School District, et al., this 

Court is of the opinion that the District Court order appealed 

from should be affirmed. 

IT IS THEREFORE ORDERED that the District Court order 

appealed from be and the same is hereby affirmed and this case 

is remanded to the District Court for implementation of said 

order. 

SO ORDERED, ADJUDGED AND DECREED on this the day 

of July, 1969, 

  

EXHIBIT Han 
  

 



  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE PIFTH CIRCUIT 

NO. 

UNITED STATES OF AMERICA, Plaintiff-Appellant, 

Ve 

HINDS COUNTY SCHOOL BOARD, et al., Defendants-Appellees. 

[AND OTHER CASES] 

UNITED STATES OF AMERICA, Plaintiff-Appellant, 

Ve 

LAUDERDALE COUNTY SCHOOL DISTRICT, 
et al., Defendants-Appellees. 

SUGGESTED OPINION - ORDER 
  

After hearing and considering the matter of United States 

of America v. Lauderdale County School District, et al., this 

Court is of the opinion that the District Court order appealed 

from should be reversed and this case remanded to the District 

Court. 

IT IS THEREFORE ORDERED that the District Court order 

appealed from be and the same is hereby reversed and this case 

is remanded to the District Court with the following instructions: 

1. This case shall receive the highest priority. 

2. The District Court shall forthwith request the Office 

of Education of the United States Department of Health, Education 

and Welfare to collaborate with the Board of Education of the 

Defendant school system in the preparation of a plan to fully 

and affirmatively desegregate all the public schools in the 

Defendant school district. The District Court shall further 

require the Board of Education of the Defendant school district 

 



  

to make available to the Office of Education or its designees 

all requested information relating to the operation of the 

school district. 

3. Proceed according to an expedited time schedule for 

the submission, review and approval of the plan, as follows: 

(a) The board shall within 20 days of this order 

develop, in conjunction with the experts of the 

Office of Health, Education and Welfare, an 

acceptable plan of operation, conformable to the 

constitutional rights of the Negro students. 

(b) If such plan is agreed upon by the school 

board and the Office of Education within the time 

fixed, the Court will approve such plan, unless 

the plaintiffs within five days make proper showing 

that the plan does not meet constitutional standards. 

(¢) If no such agreed plan is developed within 

20 days, the Office of Education is requested to 

submit within 5 days its recommendation of a plan 

for the school district. 

(d) The parties shall have five days from the 

date a plan is filed with the District Court to 

file objections or suggested amendments thereto. 

(e) For plans as to which objections are made or 

amendments suggested, or which in any event the 

District Court will not approve without hearing, the 

District Court shall commence hearings beginning no 

later than ten days after the time for filing 

objections has expired. 

(f) A new plan for the district effective for the 

beginning of the 1969-70 school term shall be 

completed and approved by the District Court no 

later than August 15, 1969. 

 



  

Because of the urgency of formulating and approving 

plans to be effective 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 vehearing ob 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 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. Appellees' brief shall be due ten days 

thereafter. The court will determine the time and place 

for oral argument if allowed. 

SO ORDERED, ADJUDGED AND DECREED on this the day 

of July, 1969. 

  

EX EIB 17 a 
  

 



  

IN TEE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF MISSISSIPPI 

EASTERN DIVISION 

UNITED STATES OF AMERICA, ) 
) 

PLAINTIFF ) 
5) 

V. ) CIVIL ACTION NO. 1367 
) 

LAUDERDALE COUNTY SCHOOL ) 
DISTRICT, ET AL, ) 

) 
DEFENDANTS. ) 

REPLY: BRIEF FOR THE DEFENDANTS 
  

  

Ze INTRODUCTION 
  

This hearing was held on October 18, 1968, upon the 

motion of the United States of America by Ramsey Clark, 

Attorney Seneval of the United States, asking for supple- 

mental relief and more particularly to require the 

Defendants to implement the principles enunciated by the 

Supreme Court in Green v. County School Board of New Kent 
  

County, Virginia, et al, 391 U. S. 4380 (1863), commencing 
  

with the 1968-69 school year. 

It is therefore relevant to examine the opinion of the 

Supreme Court of the United States in the Green case, supra. 

The Supreme Court, speaking in the Green case, stated that: 

", . + The burden on a school board today is to 
come forward with a plan that promises realistically 
to work, and promises realistically to work now. 

"The obligation of the district courts, as it always 
has been, is to assess the effectiveness of a 
proposed plan in achieving desegregation. There 
is no universal answer to complex problems of 
desegregation; there 1s obviously no one plan that 
will do the job in every case. The matter must be 
assessed in light of the circumstances present and 
the options available in each instance. It is 
incumbent upon the school board to establish that 

 



  

its proposed plan promises meaningful and immediate 
progress .toward disestablishing state-imposed 
segregation. It is incumbent upon the district 
court to weigh that claim in light of the facts 
at hand and in light of any alternatives which 
may be shown as feasible and more promising in 
their effectiveness. Where the court finds the 
board to be acting in good faith and the proposed 
plan to have real prospects for dismantling the 
state-imposed dual system 'at the earliest 
practicable date,' then the plan may be said to 
provide effective relief. Of course, where other, 
more promising courses of action are open to the 
board, that may indicate a lack of good faith; 
and at the least it places a heavy burden upon 
the board to explain its preference for an 
apparently less effective method. Moreover, 
whatever plan is adopted will require evaluation 
in practice, and the court should retain 
jurisdiction until it is clear that state-imposed 
segregation has been completely removed. See 
No. 805, Raney v. Board of Education, post, at p. 5. 

  

"We do not hold that 'freedom of choice' can have 
no place in such a plan. VWe do not hold that a 
'freedom-of-choice' plan might of itself be 
unconstitutional, although that argument has been 
urged upon us. Rather, all we decide today is 

that in desegregating a dual system a plan 
utilizing 'freedom of choice' is not an end in 
itself. As Judge Sobeloff has put it, 

' "Freedom of choice" is not a 
sacred talisman; it is only a means 
to a constitutionally required end-- 
the abolition of the system of 
segregation and its effects. If the 
means prove effective, it is acceptable, 
but if it fails to undo segregation, 
other means must be used to achieve 
this end. The school officials have the 

' . continuing duty to take whatever action 
may be necessary to create a "unitary, 
non-racial system! ' Bowman v. Count 
School Board, 382 F.2¢ 3258, 333 {C.A. 
4th Cir. 1967) (concurring opinion). 
Accord, Kemp v. Beasley, 389 F.2d 178 

(C. A. 8Th Cir. 78657; United States v. 
Jefferson County Board of Education, supra. 

  

  

  
  

"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 program to effectuate 
conversion of a state-imposed dual system to a 
unitary, nonracial system there might be no 

objection to allowing such a device to prove itself 
in operation. On the other hand, if there are 
reasonably available other ways, such for illustration 

as zoning, promising speedier and more effective 

 



  

conversion to a unitary, nonracial school system, 
‘freedom of choice' must be held unacceptable." 

The District Court must examine and evaluate the court 

I ordered Jefferson model decree now in effect in the Defendant's 
  

school district in the light of the language of the Supreme 

Court of the United States quoted hereinabove from the Green 

case. If the District Court should find that the Defendant is 

acting in good faith and that the plan that it is now using 

has real promise for dismantling the state-imposed dual system 

at the earliest practical date, or that it has already 

dismantled same, then, under the language of the Green case 

the freedom of choice plan of the Defendant may be approved 

as adequate. 

The Defendants respectfully submit that, under the 

evidence that has been presented at a hearing of this case, 

that the Defendants have been and are now performing their 

legal obligations imposed upon them by the Constitution and 

its interpretation by the Supreme Court; that the court 

ordered model Jefferson decree now in effect in this district 
  

meets all of the requirements that have been set out in the 

Green decision; and, that the Defendants have carried. out 

the provisions of the so-called Jefferson model decree in 
  

good faith and that the motion of the Plaintiff in this case 

should be therefore denied. 

XI. THE Issue 
  

The issue for determination in this case is whether the 

Defendant's court ordered Jefferson model decree freedom of 
  

choice desegregation plan is adequate to convert the dual 

school system into a unitary, non-racial school system as 

prescribed by the Green decision. 

 



  

rex. THE FACTS 
  

The Meridian Municipal Separate School District comprises 

the City of Meridian and certain annexed territory adjacent 

to the City of Meridian. The Lauderdale County School 

District comprises the entire County of Lauderdale excluding 

the territory embraced within the Meridian Municipal Separate 

School District. There is no marked residential racial 

patterns within the Lauderdale County School District with 

the white and black races tiving throughout the Distelnt 

similar to "salt and pepper". As of the date of the hearing 

of this case the School District had a total enrollment of 

five thousand two (5,002) students of which one thousand 

eight hundred fifty four (1,854) were of the black race or 

other minority races and the remaining three thousand one 

hundred forty eight (3,148) being of the white race. 

Currently the Defendant School District operates five 

(5) attendance centers with each attendance center serving 

grades one (l) through twelve (12). The Clarkdale Attendance 

Center is an older location and the building was extensively 

renovated in 19862 and has a total enrollment of four hundred 

ninety four (494) students with one hundred seventy eight 

(178) of these students being in grades nine (9) through 

twelve (12). There are no Negro students in this attendance 

center, Northeast Attendance Center was constructed in 1961 

and has a total enrollment of nine hundred thirty two (932) 

students of which eighteen (18) are Negro, thirteen (13) are 

of the oriental race and the remaining nine hundred one (S01) 

students are of the white race. There are two hundred 

fourteen (214) students in grades nine (9) through twelve (12) 

in the Northeast Attendance Center. The Southeast Attendance 

Center was constructed in 1962 and has a total enrollment of 

 



  

seven hundred seventy three (773) students of which none are 

Negro. There are two hundred forty seven (247) students in 

grades nine (9) through twelve (12) in Southeast stendance 

Center. The West Lauderdale Attendance Center has a total 

enrollment of nine hundred forty nine (949) students of which 

four (4) are Negro and the remaining nine hundred forty five. 

(345) students are of the white race. There are two hundred 

sixty two (262) students in grades nine (8) through twelve 

(12) in West Lauderdale Attendance Center. The Middleton 

‘Attendance Center was constructed in 1959 and has a total 

enrollment of one thousand eight hundred fifty four (1,854) 

students of which three (3) are American Indians and the 

remaining one thousand eight hundred fifty one (1,851) are 

of the Negro race. There are four hundred fifty four (454) 

students in grades nine (9) through twelve (12) in Middleton. 

Attendance Center. 

The Defendant School District initiated a voluntary 

freedom of choice desegregation plan in 1965 which was 

approved by the Department of Health, Education and Welfare 

and resulted in six (6) Negroes attending formerly white 

schools during the 1965-66 school session. During the 1866-67 

school session a total of seven (7) Negro students attended 

formerly white schools. Prior to the beginning of the 1866-67 

school session the Government initiated a suit against the 

Defendant School District and the freedom of choice plan then 

n effect with BH. EE. W. was filed with the Court and subse- He
 

— 

quently approved by the Court. In the summer of 1967 the 

Jefferson model decree was entered in the Defendant School 
  

District case by the District Court. and during the 1967-568 

school year a total of twenty three (23) Negro students 

attended formerly all-white schools. During the 1968-68 

school year there are a total of twenty two (22) Negro 

 



  

students presently attending formerly all-white Schools. 

The first faculty desegregation took place in 1959 when 

a white guidance counsellor was employed by: the Defendant 

School District to serve all five (5) attendance centers. 

The next step toward desegregation was in the year 1962 when 

the Defendant School District employed a Spanish teacher in 

one of the attendance centers. The next desegregation of 

faculty took place during the 1966-67 school year when two (2) 

Negro librarians were employed voluntarily by the School 

District for service in the formerly all-white schools. 

During the 1867-68 school year eight (8) Negro teachers were 

employed to teach in the four (4) formerly all-white schools 

with two (2) of the Negro teachers teaching in each of the 

formerly all-white attendance centers. During the 1968-69 

"school year the eight (8) Negro teachers are still teaching 

in the four (4) formerly all-white attendance centers and in 

addition thereto there are currently seven (7) white teachers 

teaching at the Middleton Attendance Center which was formerly 

s3l-Negro. 

The Defendant School District employs a total of two 

hundred twelve (212) teachers of which eighty five (85) are 

Negro and one hundred twenty seven (127) are of the white 

race, including one American Indian and one or more Spanish 

teachers. 

The Superintendent of Education testified that some time 

during each week six hundred eighty one (681) white students 

are being directly taught by Negro teachers; and, this 

represents 21.6% of the total white students in the District, 

The Superintendent further testified that at some time during 

each week four hundred forty five (445) Negro students are 

taught by white teachers; and, that this represents 19% of 

the total Negro enrollment. There is a total of one thousand 

 



  

twenty six (1,026) Negro and white students being taught 

directly by members of the opposite race at some time during 

any given week. This represents 20.5% of the total students 

in the District who are now being taught by members of the 

opposite race on a regular basis. This does not include the 

part time teachers, the health nurse, the guidance counsellors 

nor the professional staff members who work with all the 

schools. 

The County Superintendent of Education and the principal 

of Middleton Attendance Center both testified that in their 

opinion there will be substantial further faculty and student 

desegregation in the future. 

Both the Superintendent of Education and the principal 

of Middleton Attendance Center testified that they had no 

knowledge of any threats, intimidations, fear or economic 

reprisal or pressure of any kind that had been applied to the 

students or parents within the District to discourage the 

exercise of an honest-to-goodness freedom of choice. Both the 

Superintendent of Education and Mr. Posey testified that to 

their knowledge the freedom of choice plan was a true and 

honest~to-goodness freedom of choice within the Defendant 

School District. 

The Plaintiff has not filed a single complaint against 

the Defendant School District and have not made a single 

allegation nor charge of any kind against the true and 

effective operation of the freedom of choice plan of the 

Defendant School District. The testimony in the record shows 

that Middleton Attendance Center is a "target school" and that 

it receives Title I Funds from the United States Government 

for use in the Middleton Attendance Center. The other 

attendance centers do not qualify for the Title I Funds under 

- 

 



  

the standards set up by the Government. The Superintendent 

testified that for the budget year that had just ended the 

"Title I budget for Middleton Attendance Center was Two Hundred 

Eighty Three Thousand Nine Hundred Sixty Eight Dollars 

($283,968.00) and that this is equivalent to One Hundred 

Seventy Two and 10/100 Dollars ($172.10) per child; that these 

funds are used at the Middleton Attendance Center to provide 

special programs such as (1) guidance counsellors and programs 

(2) special remedial reading programs (3) special library and 

librarian programs (4) special foods program which includes 

lunches under Title I Funds to one hundred eighty four (184) 

students per day (5) special health service including a full 

time health nurse for the school and (6) special speech 

therapy classes and instruction. In addition to: the special 

programs described above, a summer school was conducted at 

Middleton Attendance Center during the summer of the year 

1368 for the purpose of offering remedial courses to students 

in need of the same and to enable other students to repeat 

courses that they had failed and to make up subjects in which 

they were deficient. In addition to the programs described, 

Principal Posey testified that much in the way of additional 

equipment has been supplied to Middleton Attendance Center 

and that the end result is that Middleton Attendance Center 

has more facilities for teaching than all the other remaining 

schools in the District combined because of the availability 

of Title I Funds for this purpose. 

The Superintendent of Education and Principal Posey both 

testified that the students at Middleton Attendance Center 

had a greater collective pad for special enrichment and 

accellerated programs than the students in the remaining 

schools. In addition to the one hundred eighty four (184) 

free lunches provided daily at Middleton Attendance Center 

 



  

under Title I Funds, the Defendant School District provides 

seventy five (75) additional free lunches for a combined 

total of two hundred fifty nine (259) free lunches provided 

each day to the students in most need for them that attend 

Middleton Attendance Center. 

The Superintendent and Mr. Posey both testified that the 

School District had worked very hard within the past several 

years to equalize the school facilities within the District 

and that in their opinion, largely because of Title I Funds, 

Middleton Attendance Center surpassed all the other attendance 

centers; but, that all of the attendance centers had been 

substantially equalized. The record further shows that the 

Defendant School District now has a uniform salary schedule; 

that the Defendant School District now has uniform budget 

allocation for other expenditures to each school based upon 

the number of children attending that school; that the 

curriculum offering has been standardized and equalized; 

that the transportation system has been equalized and that 

there is no longer any distinction between the buses provided 

for the formerly all-white schools and the buses provided for 

the formerly all-Negro school; and, that all other programs, 

services and activities are provided to all the students in 

the District without regard to race. 

Ninety eight per cent (98%) of the total sthidents in 

the District ride school buses provided by the District from 

their homes to the respective schools which they have chosen 

to attend. The school buses are routed according to the 

schools that they are to serve and not according to race; 

however, as of this date Negro drivers operate the school 

buses going to the formerly all-Negro school at the Middleton 

Attendance Center and white drivers operate the buses going 

 



  

to the other four (4) formerly all-white attendance centers. 

As of the date of the school hearing a total of three hundred 

forty (340) students ride school buses in an integrated 

situation. 

As of the date of the school hearing the formerly all- 

white schools play each other in athletic events and do not 

play the formerly all-Negro school within the District. The 

formerly all-white schools are in a conference in which only 

formerly all-white schools are members; and, Middleton 

Attendance Center is in a conference whose members are formerly 

all-Negro schools. It is undisputed that the student body of 

Middleton Attendance Center, being at this time all Negro 

students, have the greater collective need for school 

"enrichment programs" and "remedial and catch-up programs" 

for it is common knowledge that the Negro students, as a class, 

‘achieve on a level several grades below that of the average 

white child. This is a universal fact and is amply demonstrated 

by the testimony in the Hinds County case with which the 
  

Defendant School District case was consolidated for the purpose 

of hearing. The principal of Middleton Attendance Center 

testified that in his opinion because of the greater need of 

the Negro students and the distinct advantages that are being 

offered to them through the use of Title I Funds this had the 

effect of discouraging many of the Negro students from choosing 

a formerly all-white school wher freedom of choice. The 

testimony of the principal is that he has been able to. 

substantially increase the average dally attendance of the 

Negro students because of the advantages that Middleton 

Attendance Center now has to offer and because of the special 

programs that are designed to reach the slow learners and the 

low achievers. The principal further testified that in his 

-:I0 = 

 



  

opinion if freedom of choice were abandoned and some other 

form of assignment of students was instituted that would 

force the Negro students in Middleton Attendance Center to 

be spread among the remaining formerly all-white attendance 

centers that many of the prospective high school graduates 

would become prospective drop-outs and many of the prospective 

drop-outs would actually drop out of school. The principal 

further testified that in his opinion the vast majority of 

the Negro students and their parents prefer to attend 

Middleton Attendance Center. This is true because of the 

elemental human desire and need to identify with other human 

beings of like nature, like economic and social level, like 

intelligence and like achievement level and learning rate. 

Dr. van den Haag's testimony in the Hinds County case amply 
  

supports this elemental fact that we all recognize from 

common knowledge to be the truth. 

The principal's opirdin is buttressed by an informal 

poll that was taken at a public meeting called at the Middleton 

ttendance Center in which the zoning or geographical pink was 

explained to the parents attending the meeting, pairing was 

explained to the parents and, of course, freedom of choice was 

explained. After full discussion of the three possible plans 

for assignment of students blank forms were passed out to the 

assembled parents in which they could indicate their desires 

as between ‘the three (3) plans. The principal testified that 

he had received four hundred fifty eight (458) signatures on 

a voluntary basis from the parents and that of that number 

four hundred twenty five (425) indicated a desire for the 

freedom of choice plan while thirty three (33) desire some 

other method of desegregation. Approximately three hundred 

(300) parents were in attendance at this meeting and the 

- iva 

 



  

principal testified that he supervised the passing out of the 

forms and the gathering back of the forms after they had been 

signed by the parents and that he would estimate that ninety 

per cent (90%) of the forms evidencing the choice of the 

person or parent signing the form were turned in to him at 

the conclusion of the meeting. The Defendant School District 

has submitted all of the forms to the Court and they have 

been introduced into evidence. The Defendant School District 

does not represent that the four hundred fifty eight (458) 

signatures are all of the parents of Negro children attending 

Middleton Attendance Center; neither do they represent that 

all of the parents of children attending Middleton Attendance 

Center would have the same choice as is represented by the 

forms that have been signed by the four hundred fifty eight 

(458) parents whose forms are now a part of the evidence in 

this case. The Government admitted in the record that the 

testimony of Principal Posey as to the number of parents who 

have chosen or indicated a desire for freedom of choice and 

the number that had indicated a desire for some other plan 

represented a true recap of the results that are reflected in 

the total of the forms and for this reason the Defendants have 

not filed a formal recap Wom the Court as was suggested by 

the Court during the hearing. The Defendants did not exercise 

any influence either for or against freedom of choice and the 

persons who signed the forms (in the nature of a petition to 

the Court) were completely free of all pressure and completely 

free of all suggestions as to how or what their choice should be. 

And finally the Superintendent testified that his records 

reveal that in the year 1948 the Defendant School District 

had a total of sixty five (65) separate attendance centers 

of which forty eight (48) were then all-Negro schools and 

seventeen (17) were then all-white schools. That since 1948 

Lo A 

 



  

and as of the year 1962 the sixty five (65) attendance 

centers have been abolished and consolidated into a total 

of five (5) attendance centers which have been explained at 

the outset in the Statement of Facts herein. That this 

consolidation of schools and abandonment of sixty five (65) 

attendance centers was a very traumatic experience upon the 

population of the District as almost no one desires to lose 

the community or neighborhood. school. Notwithstanding the 

traumatic experience that the population has undergone, the 

citizens of the District did vote a bond issue for the 

construction of the sclools that are now being enjoyed by the 

students in the School District. The Superintendent testified 

that based upon the ability of ‘the District that the Defendant 

District rates one ‘hundred seventeen per cent (117%) in local 

effort toward schools using one hundred per cent (100%) as 

the average throughout the nation. The School Board of the 

Defendant School District, the teachers, the stall, and the 

citizens of the Defendant School District all collectively 

desire the very best educational opportunity available for 

all of the students within the District and the record is 

replete with ample evidence of this fact, 

IV. ARGUMENT 
  

A. THE DEFENDANTS HAVE ACTED IN GOOD FAITH IN IMPLEMENTING 

THEIR OWN FREEDOM OF CHOICE PLAN AND IN THE SUBSEQUENT 

COURT ORDERED JEFFERSON MODEL DECREE FREEDOM OF CHOICE 

PLAN. 

  

  

  

The Defendants initially set about and negotiated with 

H. E. W. and obtained a freedom of choice plan in early 1965 

which first became effective for the 1865-66 school year. 

This was done prior to the time of the filing of a suit 

‘against the Defendants by the Justice Department. Subsequently, 

13 

 



  

the Defendants filed with the Court their freedom of choice 

plan then in effect with H. E. W. in response to the suit 

initiated by the Justice Department. The Court subsequently 

approved the Defendants' freedom of choice plan and the 

Defendants operated under this court approval for the year 

1966-67. In the summer of 1967 the Court imposed upon and 

entered the Jefferson model decree freedom of choice plan 
  

and the Defendants operated under this Jefferson model decree 
  

for the school year 1967-68 and are currently operating 

under this same plan for the 1968-69 school year. The 

Justice Department has never filed a single complaint against 

the Defendant School District alleging any act whatsoever 

showing a lack of good faith. The Defendants have had no 

complaints of any nature lodged against them in court 

arising out of the operation of their freedom of choice plan. 

The Plaintiff has not raised any question by the pending 

motion for supplemental relief challenging the Defendants’ 

  

205d Saleh operation of their court ordered Jefferson model 

decree freedom of choice plan. 

The testimony in this record is clear and undisputed 

that the Defendants have operated their freedom of choice 

plan in good faith and that they have taken affirmative steps 

to carry out both the letter and the spirit of their present 

court ordered Jefferson model decree freedom of choice plan. 
  

The record proves conclusively that during the entire 

time that the Defendants have been operating under a freedom 

of choice plan that they have maintained and constantly 

improved the educational opportunities in the schools of the 

Distwict and more especially whe educational opportunities 

in the Middleton Attendance Center with the help. of Title I 

Funds made available for this purpose by the United States 

Government. 

 



  

The Defendants are ready, willing and are taking 

aff Lonative action in implementing their freedom of choice 

plan; the Defendants are actively "working" at making their 

freedom of choice plan a success; and, the Defendants have 

sought and gained the support of the citizens and the students 

of the District for their freedom of choice plan. 

Good faith is recognized by the Defendants as an 

essential element of any desegregation plan. The courts have 

recognized good faith as being a pre-requisite to any 

  

désegregation plan. In the case of Montgomery Board of 

Education v. Carr, F.2d » No. 25865 (August 1, 1968), 
  

the Court said: 

"In our view, good faith conduct on the part of 
any litigant in any court, especially a court 
of equity and, more particularly, in the 
sensitive areaof desegregation, is a vital 
element for appropriate consideration. Our 
feeling with respect to good faith is buttressed 
by the recent decision of the Supreme Court in 
Green v. School Bd. of New Kent, U.S. , 
20 L.B4.24 718 1983." fei 

The Court said in the case of Green v. School Bd. of New Kent, 
  

391 U.S. 430, 20 L.EG.2d4 716 (1968) as follows: 

"Where the court finds the board to be acting 
in good faith and the proposed plan to have 
real prospects for dismantling the state 
imposed dual system 'at the earliest practicable 
date', ‘then the plan may be said to provide 
effective relief." 

B. THE DEFENDANTS HAVE USED FREEDOM CF CHOICE TO EFFECTUATE 
A TRANSITION FROM A DUAL SCHOOL SYSTEM TO A UNITARY NON- 
RACIAL BLHOOL SYSTEM 

  

  

  

The Defendants have used their own freedom of choice 

desegregation plan and the subsequent court ordered freedom 

of choice desegregation plans to effect a transition from a 

dual school system to a unitary non-racial school system 

which they now operate. 

i 15m 

 



  

As evidence of the single unitary non-racial school 

sysiten the Defendants would point out to the Court that they 

now have a completely desegregated student body; that 

freedom of choice for assignment to schools applies to all 

twelve (12) grades; that dual attendance zones are now 

abolished; that all students are assigned to the schools of 

their choice in accordance with the present Jefferson model 
  

decree freedom of choice desegregation plan; that the 

faculty and staff of the Defendant District has now been 

desegregated following the provision of the court ordered 

plan; that all activities, services, facilities and programs 

of all the schools within the District are now operated with- 

out regard to race and that all of same are available to all 

students without regard to race; that the curriculum is now 

uniform throughout the schools of the District without regard 

to race; that the buildings, facilities, staffing and equipment 

of its schools are now uniform throughout the District without 

regard to race; and, that transportation is now furnished 

without regard to race and buses are routed to the schools 

chosen by the students without regard to race. The record 

contains many other items and descriptions of the unitary 

nature of the Defendant School District. 

C. THL FREEDOM OF CHOICL DESLGRIGATION PLAN HAS "WORXED™® 
  

The record shows that there has been a steady increase 

and a steady progress by the Defendant School District since 

1965 in student desegregation, faculty desegregation and 

in the equalization of schools, facilities, equipment, 

‘services and activities. For example, in 1966-67 there were 

two (2) Negro librarians teaching in the white schools and 

this has now progressed to. the point that during the current 

15 

 



  

1968-69 school year we have a total of fifteen (15) full 

time teachers teaching in minority race situations and this 

does not include the numerous part time teachers, such as 

guidance counsellors, special speech therapist, health 

nurse and professional staff that work in all schools of 

the District. The Defendants submit that significant progress 

is shown by the fact that 21.6% of all the white students 

are now being taught by Negro teachers while 19% of all the 

Negro students are now being taught by white teachers. The 

Superintendent and the other witness, Attendance Center 

Principal Posey, both testified, and their testimony is 

undisputed, that the Defendants' freedom of choice plan is 

working and that there is every indication that there will 

be further substantial faculty and student desegregation 

under the present freedom of choice plan now in effect. 

The Defendants admit that the student desegregation has 

not progressed as they expected; however, the Defendants 

sincerely believe that the lack of numerical progress in 

increases from year to year is substantially explained by 

the fact that large sums of Title I Funds have been made 

available by the United States Government for enrichment 

programs at Middleton Attendance Center. It is a matter 

of common knowledge and undisputed that Negro students as a 

class achieve several grades behind the average white students 

as a class and that the Negro students presently attending 

the schools of the District are no exception to this rule. 

The Negro students within the School District, as a class, 

have greater need and in many 1lnstances acute needs for 

remedial programs and for enrichment programs that wiil 

assist in bringing the Negro students forward to a point 

where they are more nearly on an equal basis with the average 

white students of the District. The Defendants' witnesses 

 



  

testified that they have used, for example, during the past 

year Two Hundred Eighty Three Thousand Nine Rundved Sixty 

Eight Dollars ($283, 968.00) in Title I Funds at Middleton 

ttendance Center in furnishing special remedial: programs 

in guidance, special reading, library, special food programs, 

special health services and special speech therapy programs. 

In addition, one hundred eighty four (184) free lunches are 

provided to needy students every day under Title I Funds and 

an additional seventy five (75) free lunches are provided to 

needy students from other funds available to Middleton 

Attendance Center, making a total of two hundred fifty nine 

(259) free lunches provided each day to needy students. 

During the summer of 1968 a summer school program was offered 

and given students at Middleton Attendance Center with the 

Title I Funds and during this summer program an effort was 

made to bring the slow learners and the low achievers 

forward and to furnish subjects and courses for students who 

had failed during the regular school term. All of these 

programs are needed and the United States Government recognizes 

the acute need by the fact that it has approved Middleton 

Attendance Center as a "target school" and has not approved 

any of the other four (4) attendance centers in the District 

as "target schools’. It is only normal and natural that 

Negro students who, as a class, are behind the white students, 

as a class, would not voluntarily transfer or exercise a 

choice to attend formerly all-white schools and thereby risk 

losing the special advantages that are being made available 

to them under the Title I Funds that have been described above. 

The Defendants are not trying to use the Title I Funds as an 

excuse to perpetuate segregation but they only suggest that 

the facts are as they have been stated and that these facts 

iB 

 



  

are a logical explanation for why there has been no substantial 

increase from year to year in student desegregation. The 

Defendants believe that as the Negro students, as a class, 

progress and move forward and close the gap between the 

achievement level of the Negro student, as a class, and the 

achievement level of the white student, as a class, that there 

will be further and increased desegregation with more students 

choosing to enter the formerly all-white schools. Further, 

the Defendants believe that many low achieving white students 

and white students with special handicaps and needs for 

remedial programs (similar to many Negro students) will 

choose to attend Middleton Attendance Center in order to 

take advantage of these special programs that the District 

is enabled to provide at Middleton Attendance Center only 

through the use of Title I Funds. 

The Defendants would suggest unto the Court that the 

first reason for the existance of a school system is to 

educate children and that the Defendants now recognize their 

duty to provide equal educational opportunities to all 

students without regard to race and in accordance with 

Constitutional principles. The Defendants also recognize 

that the Negro students (as a class) have special and unique 

needs and that these needs must be met. The District is 

only able to meet these special and unique needs through 

Title I Funds. The Defendant School District is a poor 

school district as school districts are compared and 

measured. The Defendants have made substantial and real 

progress in providing equal educational opportunities for 

all students in the District without regard to race; and, 

the Defendants have enhanced the quality of the educational 

“3g 

 



  

opportunity within the District. The Defendants recognize 

that much remains to be done and that the schools of the 

District can be further and substantially improved. The 

Defendants are working daily toward improving the schools 

and the educational opportunities in the District. The 

Defendants expect that substantial further progress will be 

made in faculty desegregation during the 1969-70 school year 

"and that hopefully there will be a substantial increase in 

the number of Negro children choosing to attend formerly 

all-white schools. The Defendants further hope that there 

will be some white students who will choose to attend 

Middleton Attendance Center for the 1969-70 school year; 

however, the Defendants wish to be frank with the Court 

that this may be a pre-mature wish at this time. 

D. THE PERCENTAGES OF STUDENT AND FACULTY RACE MIXING 

CONSTITUTE ONLY ONE OF NUMERQUS FACTORS WHICH DETERMIN 

WHETHER DUALITY HAS BEEN ELIMINATED IN THE SCHOOL SYST 

  

>-
 

  

+ 
ned 

EM t+
 

  

The entire school system must be examined part by part 

and then as a whole before a valid judgment can be made as 

+0 whether the school system has been converted into a single 

unitary non-racial system. 

Pure statistics, standing alone, do not ipso facto prove 

anything. The major essential elements of any school district 

are its students, its teac hers, its administrative staff, 

its maintenance, custodial and housekeeping staff, its 

transportation system, its buildings, its equipment, its 

libraries, its curriculum, its budget, its financial wealth 

and the attitude of its policy makers. Tach of these 

essential elements must be examined separately and then a 

judgment formed upon the basis of the result of the examination 

of each individual element and of the collection examination 

- OE 

 



  

results of all the essential elements before a meaningful 

conclusion can be reached as to whether the school system 

has been converted into a single unitary non-racial system. 

It goes without saying that each of the essential elements 

mentioned above can and most often do vary widely in degree 

from other school districts. For example, the racial make- 

up of the student body varies widely from district to 

district; the size of the student body varies widely; the 

location of the residential patterns often vary; the 

location of the schools within the district and in relation 

to the. residential patterns will vary; and, the ratio of 

the races to each other varies. Thus, it is possible and 

often occurs that a school district is unitary insofar as 

several of the essential elements are concerned and it is 

entirely possible to have a dual system as it applies to the 

remaining essential elements of a school system. 

The mere fact, standing alone, that a district has one 

or more schools in which the student body is all Negro does 

not prove that the district is operating a dual school 

system. At most, it would only require an examination of 

all the remaining major essential elements of a school 

system before reaching a conclusion on the question. 

Green does not teach blind obedience to any particular 

percentage of student or faculty mixing as a prerequisite to 

constitutionality. It only teaches that the dual school 

system must be abolished. Nowhere in Green did the United 

sate Supreme Court state that any statistic or percentage 

of attendance, or racial composition of student body, 

standing alone and to the exclusion of every other circum- 

stance, 1s controlling or even substantially significant 

with respect to the question of "adequate compliance" with 

the duty of the school district to convert the school system 

- OT 

 



  

into a single unitary non-racial school system. Speaking 

+o the :precise issue the Supreme Court in the Green case 

states that: 

"The pattern of separate 'white' and 'Negro' 
schools in the New Kent County school system 
established under compulsion of state laws 1s 
precisely the pattern of segregation to which 
Erown I and Brown II were particularly 
addressed, and which Brown I declared 

unconstitutionally denied Negro school children 
equal protection of the laws. Racial 

identification of the system's schools was 
complete, extending not just to the composition 
of student bodies at the two schools but to 
every facet of school operations--faculty, 
staff, transportation, extracurricula 

activities and racilities. In short, the State, 

acting through the local school board and school 

officials, orge nized and operated a dual: system, 
part 'white' and part 'Negro.' (emphasis added) 

  

  

  

  

  

  

  

  

  

  

Ye vii .The transition $o 2 un SEs. BENS 
system of public education was 

end to be brought about; it was because of 
complexities arising from the transition to a 
system of public education freed of racial 
discrimination’ that we provided for 'all deliberate 

speed' 1n the implementation of the principles of 

  

  

  

  

  

  

  

  

Brown 1. 3432.01. 3 at 299-301. Thus we recognized 
the task would necessarily involve solution of 
varied Local SChOC. Drop.Cms.’ 4id., Bf 288. «+. v 7 
  

(emphasis added) 

The Defendants would suggest unto the Court that the law as 

announced in the Green case is of sufficient latitude to 

ancompass the special problems that are inherent in the 

educationally deprived or deficient Negro children, as a 

class, presently attending Middleton Attendance Center. 

Further, that not only does the United States Supreme Court 

recognize unique problems of this nature but that the Congress 

of the United States and the Department of H. E. W. recognizes 

the unique problems of the deprived Negro children, as a 

class, and that they have therefore made Title I Funds 

available to the District for the purpose of enabling the 

District to try and equalize through educational achievement 

of the Negro students, as a class, to the educational 

achievement level of the white students, as a class. 

- 00 

 



  

Even the United States Court of Appeals for the Fifth 

Circuit recognizes in the case of United States of America 
  

v. Jefferson I that racial percentages are not sacred and 
  

inviolate standing alone. The case provides as follows: 

"Footnote 5. . . . .As we see it, the law 
imposes an absolute duty to desegregate, that 

is, disestablish segregation. And an absolute 
duty to integrate, in the sense that a 
disproportionate concentration of Negroes in 
certain schools cannot be ignored; racial 
mixing of students is a high priority 
educational goal. The law does not require a 
maximum of racial mixing or striking a racial 
balance accurately reflecting the racial 
composition of the community or the school 

  

  

  

  

  

  

population. It does not require that each and 
every child shall attend a racially balanced 
school. . . ." (emphasls added) 

The Court, speaking in the case of United States of 
  

America v. Jefferson (en banc) on the question of percentages 
  

observed that: 

"The percentages referred to in the Guidelines 
and in this Court's decree are simply a rough 
rule of thumb for measuring the effectiveness 
of freedom of choice as a useful tool. The 
percentages are not a method for setting quotas 

or striking a balance." 

It is respectfully submitted that percentages and ratios are 

only a "rough rule of thumb" to be used in measuring the 

effectiveness of desegregation plan. An examination of 

percentages and ratios applicable to the Defendant School 

District is only the beginning, and not the sole criterion, 

for determining whether the Defendant School System is in 

fact unitary and non-racial. The adherence to any particular 

percentage or ratio in determining the question of whether 

a school system is in fact unitary and non-racial can only 

lead to impossible legal thickets. For example, if the 

district-wide racial composition of the Defendant School 

District is a given percentage (say 40%, for example), then, 

is it necessary to apply this given overall percentage to 

i 

 



  

- 

each school within the district, to each class within the 

district, to each section within each class within the 

district, to each team, to each club, to each band, to each 

activity and to each program. On the other hand, if the 

racial: percentage of a given district is more concentrated 

within certain areas or around certain schools, then is it 

necessary to redistribute the students artificially through- 

out the district in such a manner as to strike a racial 

balance? The same question might very well be applied on 

a county wide basis, a district wide basis, or even a state 

wide Siete. There 1s no end to the complexities that would 

arise once the court should embark upon a path of following 

fixed mathemati ical percentages or ratios to the exclusion of 

all else in determining whether a:school system is in fact 

unitary and non-racial. 

In summary, percentages of racial make-up of either the 

student body or of the faculty of the Defendant School 

J F
e
 strict are only peripherally relevant. All the other 

major elements going to make up the Defendant School District 

must be considered and evaluated separately and collectively 

in determining the answer to the question. 

  

J THE COURT SHOULD RECOGNIZE AND CONSIDER THE SPECIAL AND 

UNIQUE PROBLEM INHERENT IN THE TRANSITION FROM A DUAL 
  

CHOOL SYSTEM TO A SINGLE UNITARY NON-RACIAL SCHOOL SYSTEM 
  

WHERE THE SUBJECT SCHOOL DISTRICT CONTAINS A SUBSTANTIAL 
  

PERCENTAGE OF NEGRO STUDENTS. 
  

The United States Cour "t of Appeals for the Fifth Circuit 

speaking in the case of United States v. Jefferson I 
  

recognized the many and unique problems inherent in the 

transition from a dual school system to a single unitary non- 

racial school system where there are substantial numbers of 

Negro students involved. The Court stated that: 

-on 

 



  

"We approach decision-mak here with humility. 

Many intelligent men of good will who have 

dedicated their lives to public education are 

deeply concerned for fear that a doctrinaire 

approach to desegregating schools may lower 

educational standards or even destroy public 

schools in some areas. These educators and 

school administrators, especially in communities 

where total segregation has been the way of life 

from cradle to coffin, may fail to understand 

all of the legal implications of Brown but they 

understand the grim realities of the problems 

that complicate their task. 

"The Court is aware of the gravity of their 

problems. (1) Some determined opponents of 

desegregation would scuttle public education 

rather than send their children to schools wit 

Negro children. These men flee to the suburbs, 

reinforcing urban neighborhood school patterns. 

(2) Private schools, aided by state grants, have 

mushroomed in some states in this circuit. The 

flight of white children to these new schools 

‘and to established private and parochial schools 

promotes resegregation. (3) Many white teachers 

prefer not to teach in Negro schools. They are 

tempted to seek employment at white schools or 

to retire. (4) Many Negro children, for various 

reasons, prefer to finish school where they 

started. (5) The gap between white and Negro 

scholastic achievements causes all sorts of 

difficulties. There is no consolation in the 

fact that the gap depends on the socio-economic 

status of Negroes at least as much as it depends 

on inferior Negro schools. 

"No court can have a confident solution for a 

legal problem so closely interwoven with political, 

social, and moral threads as the problem of 

establishing fair, workable standards for undoing 

de jure school segregation in the South. . ." 

The testimony in the Hinds County case covered many 
  

facets and phases inherent in dealing with the Negro student, 

as a class, as the transition from a dual school system 

progresses to that of a single unitary non-racial school 

system. The Defendants adopt the proof in the Hinds County 
  

case and incorporate the proof by reference into their case. 

This Court, as a court of equity, should consider the 

complex problems that are involved and should temper its 

decision by recognizing existence of the problems and that 

- 

+he Defendants have been and are presently grappling with 

“5 i 

 



  

these problems and that they will continue to grapple with 

these problems and seek solutions to these problems in 

reasonable, equitable and constitutional ways and means. 

The Defendants do not seek to use these many and complex 

problems as an excuse for failure to comply with their 

constitutional duty; but, they do strongly urge unto the 

Court that these many and complex problems cannot be solved 

over night and they cannot be solved by “the entry of a 

judicial decree. These problems will more readily lend 

themselves to solution on a local level where the courts 

allow the Defendants, and others similarly situated, 

sufficient latitude and discretion to work with and toward 

solving these problems. 

To be specific, if the Court should see fit to order 

the Defendants to abandon freedom of choice and use I) 

desegregation plan that would result in more immediate 

mixing of white and black students in the same schools then 

unquestionably the quality of the educational opportunities 

within the district would be lowered considerably. It is 

o 

children whose achievement fa
} 

lo
p 
=
 

joi
} 

0 St
 impossible to take white an 

levels vary so widely (as a class) from each other and 

arbitrarily mix them together and expect either the higher 

achieving group or the lower achieving group to realize their 

full potential. The Defendants would suggest that equal 

educational opportunity is required but that to compel 

students of such widely varying achievement levels to be 

indiscriminately mixed together just for the sake of mixing 

would be equally discriminatory and would violate the 

constitutional right of each group. Under such circumstances 

the higher achieving students would be held to a level of 

mediocrity that would stifle their ambition and smother 

their intellectual interests while the lower achieving group 

 



  

would be flustrated at their inability to comprehend the 

revel of attainment already possessed by the higher 

achievers and the lower achievers would therefore become 

discouraged and ready to drop out. The complexities of 

these problems do not excuse non- compliance with 

constutional requirements; but, to deny the grim reality 

of the existance of these problems and of the need for 

Hs special and unique consideration in the treatment of these 

sroblems while striving for constitutional goals must be 

aver kept in mind. 

As the educational disparities are gradually eliminated 

and as the Defendants and others similarly situated gain 

xnowledge and experience in closing the gap between the 

white and Negro students in the District, their attention 

-
 

can be directed more sharply to the main and ultimate goa 

of achieving true educational opportunity within the District 

for all students without regard to race. Dr. Hill, in his 

testimony before the Court, very eloquently stated in effect 

~hat whatever is done should be done first in the name of 

cood education and secondly in the name of desegregation or 

it will not produce desegregation very long. 

+ is a matter of common knowledge that throughout the 

H
 

United States the trend has been toward more racial isolation 

or racial segregation. The United States Commission on 

Civil Rights in its repor 

The Public Schools, Volume 1," page 198, states the following 

"Extent. Racial isolation in the public schools 
@  E——————C——————— . 

is intense throughout the United States. In the 

Nation's metropolitan areas, where two-thirds of 

both the Negro and white population now live, at 

is most severe. Seventy-five peleent of the Negro 

elementary students in the Nation's cities are in 

schools with enrollments that are nearly all-Negro 

(30 percent or more Negro), while 83 percent of 

the white students are in nearly all-white schools. 

Nearly nine of every 10 Negro elementary students 

in the cities attend majority-Negro schools. 

WBE A Gy 

 



  

"This high level of racial separation in city 
senools exists whether the city is 

small, whether the proportion of Negr 
is large or small, and whether the ci 
North or South. 

enrollment 
y i8 located t

t
 O 

"Trends. Racial isolation in the public schools 
has been increasing. Over recent years Negro 

elementary school enrollment in northern city 
school systems has increased, as have the number 
and proportion of Negro elementar students in 
majority-Negro and nearly all-Negro schools. 

Most of this increase has been absorbed in schools 
which are now more than 90 percent Negro, and 

almost the entire increase in schools which are 
now majority-Negro. There is evidence to suggest 
that once a school becomes almost half- or 
majority-Negro, it tends rapidly to become 
nearly all-Negro. 

"In Southern and border cities, although the 
proportion of Negroes in all-Negro schools has 
decreased since the 1854 Supreme Court decision 
in Brown v. Board of Bouton, a rising Negro 

enrollment, combined with only slight doscgrenation, 

has produced a substan: tial §ncrense in the number 
of Negroes attending nearly all-Negro schools. 

  

"The Nation's metropolitan area populations are 
growing and are becoming increasingly separated 
by race. Between 1940 and 1960, the incr ease in 
Negroes in metropolitan areas occurred mainly in 
the central cities while the white increase 
occurred mainly in the suburbs. These trends are 
continuing. 

"The trends are reflected among school-age children. 
{a) By 1960, four of every five nonwhite school-ag 

children in metropolitan areas lived in central c 

while nearly three of every five white children 1 
in the suburbs. 

(b) Negro schoolchildren in metropolitan areas 
increasingly are attending central city schools 
and white children, suburban schools. 

(c) A substantial number of major cities have 
elementary school enrollments that are more than 
half-Negro." 

It should be noted that the trend is toward more and more 

racial segregation in spite of an all-out on-slaught by the 
“ 

Federal Courts and the Congress and the Executive Branch of 

the Government toward reversing this trend. The experience 

the entire United States should not and cannot be ignored. 

The Defendants respectfully urge upon the Court that freedom 

of choice be allowed a further trial and opportunity in which 

- 

 



  

0 prove itself in operation. The Court should weigh 

carefully its decision before overruling freedom of choice 

Only in the South has 

in the matter of desegregation. Freedom of choice has been 

the tool most often used in the South and the racial 

desegregation progress that has been made is largely 

attributable to the use of the freedom of choice plan. 

Even though the progress has not been substantial, as a 

whole, still progress has been made In passing upon 

freedom of choice plans in certain school distric in the 

Western District of Louisiana Chief Judge Ben C. Dawkins, 

Jr., Judge Edwin F. Hunter, Jr., and Judge Richard J. 

Putnam, sitting en banc, in the case of Conley, et al v. 

Lake Charles School Board, C. A. No. 998l, and other es 
  

consolidated thereon, decided on N 

the following: 

In 

an
 

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almost a thing 

so-called "Negro 
white faculty 
based upon facts 

March lst reports 

open to bring 
commanded in G3 

certainly worke 

given the Port 

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if 'now' me 

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our belief, 
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populations are proud of their communities. We 
enjoy a state of comparative serenity (especially 

as contrasted to conditions in schools located 

in some other sectiéns of the nation), watching 
together the approach of better times, awaiting 
together with patience and sure expectation that 
the achievement of social justice and our 
collective conscience tells us must come. With 
every ounce of sincerity which we possess we 
think freedom of choice is the best plan available, 
We are not today going to jeopardize the success 
already achieved by casting aside something that 
is working and reach blindly into an experimental 
"grab bag.' Rather, we will hear from each school 
board, as indicated, in Mar Ch concerning other 

plans, if such are pr cticable' and ‘reasonable’, 
f choice. 

"We have heard these cases 'en banc' and rendered 
this ruling together. The Supreme Court of the 
United States has stated that 'no one plan will 

do. the j0b in every case.’ Some of the parishes 
have made splendid Progress. Vermilion, for 
example, now has 44% of the total of the Negro 
students in DT edominantly white schools. We 

retained jurisdiction and each case in the future 

is assigned to the original judge who initiated 
the orders. That judge will make any additiona 
findings or conclusions he might deem appropriate. 
Any motions for rehearing on any specific case 
should be addressed to the individual judge 
handling that specific cease. Each judge will 
make further findings, if they are required, in 
each individual case after receiving the March ih 
1969 report by the respective school boards. 

1 harmony has been rocky and "The road to ra 
n ] f citizens are 

og 
fw] 

often disappoin ; 
dedicated to the cau 

citizenship and esta 
relations. We do no 
hand. These cases m 

cl 
Ti but millions of 

e of wiping out second class 
lishing mutual trust in race 

t minimize the a at 
ust be handled s0 as not to 

interfere with the primary, indeed the overriding, 
purpose of schools--that is, to render the best 
education possible to all our children. We deem 
it appropriate to.conclude by quoting verbatim the 
language. of the Honorable John R. Brown, Chief 
Judge of the United States Court of Appeals for 
the Fifth Circuit: 

'Finally, we think it appropriate to 
sound these comments. We do not seek 
the burden or respons sibility of school 
operation. We ought not to have it. 
By now the law. is clear. These cases 

bear many service stripes .including many 

  

  

  

trips to this Court. The aim of Jefferson 
is to lay down sufficiently definitive 
standards so ail can Wg le and apply 
them. Now it should be yup to school 
boards either alone in taking the 

initiative so obviously called for, or in 
  

 



  

  

conjunction with cooperative (it i 
efforts of parent, race or similar 
to achieve the goal of race-les 

TO be sure, t ] j 

this, too, is t 
The Judiciary is not ] 2, e universal 
galvor. Jin saying this we believe we express 
for the District ‘udge--indeed all of them--a 
like hope that the schools soon run without 
orders of any kind from Courts, Federal or 

Ss 
Q 

  

  

democracy. 
- 

0 8)
 

= = O +t
 

9)
 

0 ci
 

  

&
 ¢ 

1%
 

d 
State.! U. S. v. Bessemer; et al, No. 25809, 
5th Cir., June 3, 1968. (Emphasis added) 

  

  

  

F. THE DEFENDANTS WOULD URGE UNTO THE COURT THAT THEIR 

FREEDOM OF CHOICE PLAN UNDER THE PRESENT CIRCUMSTANCES 

PREVAILING IN THIS DISTRICT WILL BRING ABOUT MORE 

E es - M rar. ot LASTING DESEGREGATION THAN 
  

  

The success that the Defendants freedom of choice plan 

has brought about thus far is not by accident.:. It is the 

result of planning, hard work and dedication on the part of 

Defendants and hundreds of their teachers and other employees 

toward making freedom of choice work. The professional staff 

lay personnel, teachers and board members of the Defendant 

School District have spent many thousands of hours in plannin 

=tudy and preparation for the transition from a dual school 

system to a single unitary non-racial school system. The 

Defendant School District has been able to solicit and obtain 

+he support of the students, faculty, staff, parents, other 

aitizens and elected officials for the ir freedom of choice 

vlan. Without the support of these several groups no 

desegregation plan can hope to be successful. The preparatio 

that has already been made and the work of dedicated staff 

and employees toward making freedom of choice work will bring 

forth further substantial and effective ‘integration of the 

school system. 

The Defendants honestly believe that if the Court should 

substantially alter the present freedom of choice plan or 

the Court should order an alternative plan then in either 

event this would negate more than four (4) years of concentr 

Fe
 £ 

ted 

 



  

effort. on their part and would create unrest, uncer 

and substantial loss of confidence by the public in 

Defendant school system. This could 

n in the. community before a 

St 

ny 

Defendants have such a stable climate 

choice and there is no reason to believe + 

could hope to obtain the degree of supp 

- - 

»lan that they have alread 

he Court could no doubt order mixing 
Th 

students in such a manner as to bring 

mixture of white and black students in 

y obtained for free 

of whit 

not help but 

dom Oo 

™ 
a 

= 

etaxrd 

tability 

choice. 

e' and black 

a I about an’ immedia 

however, the mere mixing of black and w 

7iven school does not indicate the operation of “ 

= 1 Po 3 1 2 Ong range unltary non-racial school s Y 

+S 

the schoolhouse; 

- . 
- de 

bi eS 

Sten. 

on this subject, in the case of The Board 

tude 
vy = 

ad LO IND 

an effective 

Judge Coleman, 

  

~ = T - i gd | - A 1 — >f Duval County, Florida v. Braxton, 
  

{August 29, 1968), said the following: 

"The problem inherent in a zoning plan is 
people are free to move about as They see 

Lf they dislike the zone 
nove to another. 

Therefore, abe 

Ley are placed they will 
wl 

(5 
- 

than that which existed prior to the inauguration 
of the plan. The end result of the zoning 
approach, if extensively exercised, is that large 
sections of the country may become a collection 
of zones or pockets, where only one race would 

be dominant. The National experience Wish the 
so-called ghettos in the large cities would 
indicate the undesirability of such an outcome.’ 

The uncontradicted testimony of t 

case ls that freedom of choice is the only plan aval 

o 

Cc hy 
s in far more glaring 
3 

of Public Instruction 

F.2d , No. 25478 

that 
Loo JE, ETO 
WE OR REI 

in wha .ch 

This 
segregation 

non-racial school system and that it is the only pl 

will accomplish the most integregation 

Defendants have the consti 

- 

an 

lable to 

which 

tutional obligation to establish a 

 



  

al school system; and, they do not have the S] He
 

. 
5 

§ 

[43
] H Re
t po
 

O 33
 1 H 0 H
e
 

obligation of establishing some pre-conceived or pre- ‘i 

determined percentage or ratio for each school and then 

attempting to force and coerce students to attend such schools x © . 

in order to attain and maintain such racial rat 

ultimate goal is that of providing equal educational 

- 

less will suffice. 

The Defendants request only that they be allowed to 

retain their present freedom of choice plan; and, that they 

- 

be allowed to further prove its effectiveness in operation. 

V. CONCLUSION. 
  

The Defendants have shown conclusively through acts 

and deeds that they have acted in good faith throughout in 

initially negotiating a voluntary freedom of choice plan 

with H. E. W. and carrying the plan into effect on a voluntary 

masis; that they have further shown their good faith by 

carrying out the subsequent court ordered freedom of choice 

oe TEL LITT, plan; and, that finally they have shown their good faith by 

carrying out both the letter and the spirit of the Jefferson 
  

model decree freedom of choice plan ordered by the Court and 

which is now in effect in their district. 

The sole question to be determined here is whether that 

Jefferson model decree court ordered freedom of choice plan 
  

- - 

should be modified as a result of the decision of the Supreme 

Court of the United States in the Green case. Thus, the 

ultimate question is whether the present court ordered plan 

meets the requirements set forth by the Supreme Court of 

he United States in the Green decision. 

 



    

We respectfully urge that the present court ordered 

Ju = plan meets every requirement of the Green case; that in 

+he operation of the court ordered freedom of choice plan 

“he requirements of the Green case are met; and, that the 

present court ordered plan will result in the most 

effective desegregation of any plan available to the 

Defendant. 

The Defendants should be allowed to continue using ahs 

their freedom of choice plan without alteration. The 

—~ 

motion of the Plaintiff should therefore be dismissed. 

Respectfully submitted, & 

  

/ N /} ~ — 

nde biti bi (im Py : 

WILLIAM B. COMPTON 
Witherspoon & Compton 
Attorneys at Law 

P.O. Box Bub 
Meridian, Mississippi 38301 

Telephone Number: 
Area Code 601 
485-5187 

ATTORNEY FOR THE DEFENDANTS 

CERTIFICATE OF SERVICE 
  

-T 3 oy = te ae gn . ig ET Wed . on 

I, William B. Compton, atforney for the defendants, 

do hereby certify that true and correct copies of the fore- 

Honorabl 

Attorney 
U. S. Department of Justice 
Washington, D. C. 20530 

WITNESS MY SIGNATURE this the llth day of February, 

foi Fd 
ALLA en