Henry v. Clarksdale Municipal Separate School District Brief for Appellants

    I n  t h e

MnlUft down of Kppmlz
F oe t h e  F if t h  C ib c h it  

No. 23255

R ebecca  E. H e n r y , et al.,
Appellants,

— v . —

T h e  C larksdale  M u n ic ip a l  S epa ra te  S chool  D is t r ic t ,
et al.,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF MISSISSIPPI

BRIEF FOR APPELLANTS

C onrad K. H a rper  
Of Counsel

J ack  G r een b er g

J a m es  M. N abrit  III
M elv y n  Z arr

10 Columbus Circle 
New York, New York 10019

H e n r y  M. A ronson

538% N. Farish Street 
Jackson, Mississippi 39201

R. J ess B ro w n

125% N. Farish Street 
Jackson, Mississippi 39201

Attorneys for Appellants



I N D E X
PAGE

Statement of the Case......... ................................... ....... 1

A. Summary of the Litigation______________ -....  1

B. Statement of Facts ............ ..........................-....— 4
1. Summary of Desegregation under the Board’s

Plan .................................................    4
2. The Board’s Zoning Scheme ............................. 5
3. Testimony of Educational Experts................ . 10

4. Effect of State Action on Board’s Zone Lines 16
(a) Testimony of School Board Attorney

Luckett .........................................   17
(b) Testimony of City Commissioner Bell .... 18
(c) Testimony of City Planning Commission

Chairman ......          20

(d) Testimony of Dr. Aaron H enry .............. 20
5. Opinion of the Court Below............................  21
6. The Board’s Revised Zone Lines.....................  26

Specifications of Error ....................    27

A r g u m e n t

I. Effectuation of the Brown Decision Bars the 
Board’s Use of a Neighborhood School Assign­
ment Policy to Justify Its Failure to Eliminate 
Segregated Schools, Particularly Where State 
Action and Custom Combine to Maintain Neigh­
borhoods on a Racial Basis................................  29



11

II. Actions oy City and County Officials to Effec­
tively Remove Virtually All Negroes From 
White School Zones Do Not Relieve the Board 
of Its Constitutional Obligation to Desegregate 
the Schools ....................... ..................................  35

III. The Board’s Plan Falls Short of This Court’s 
Standards of Acceptable Pupil and Teacher 
Desegregation   ............ ...... ............................ 39

C o n c lu sio n  ................... .......................................................................  45

PAGE

T able  of C ases

Balaban v. Rubin, 40 Misc. 2d 249, 242 N. Y. S. 2d 974 
(Sup. Ct. 1963), rev’d, 20 App. Div. 2d 438, 248 
N. Y. S. 2d 574 (2d Dept.), aff’d 14 N. Y. S. 2d 193,
199 N. E. 2d 375 (1964), cert, denied 379 U. S. 881
(1964) ........... .......................... ....................................  33

Barksdale v. Springfield School Comm., 237 F. Supp.
543 (D. Mass. 1965), vacated without prejudice, 348
F. 2d 261 (1st Cir. 1961) ............ ............................... 33

Beckett v. School Board of Norfolk, Civ. No. 2214
(E. D. Va.) ........................................................... ....43,44

Bell v. School City of Gary, Indiana, 213 F. Supp. 819 
(N. D. Ind. 1963), aff’d 324 F. 2d 209 (7th Cir. 1963),
cert, denied 377 U. S. 924 (1964) .......... .....................  33

Blocker v. Board of Education of Manhasset, 226 F.
Supp. 208 (E. D. N. Y. 1964) .................................... 33

Board of Public Instruction of Duval County v. Brax­
ton, 326 F. 2d 616 (5th Cir. 1964) .................... ........ 40

Booker v. Board of Education of Plainfield, 45 N. J.
161, 212 A. 2d 1 (1965) 33



I l l

Boson v. Rippy, 285 F. 2d 43 (5th Cir. 1960) .............. 33
Bradley v. School Board of City of Richmond, 382

U. S. 103 (1965) .................................................. 33,39,40
Bradley v. School Board of City of Richmond, Civ. No.

3353 (E. I). Va.) .......................................................... 44
Briggs v. Elliott, 132 F. Supp. 776 (E. D. S. C.

1955) ....... ........... ...................................................... 23,25
Brooks v. County School Board of Arlington, Virginia,

324 F. 2d 303 (4th Cir. 1963) .................................... 30
Brown v. Board of Education, 347 U. S. 483

(1958) ........ - ............................................. 25, 29, 31, 32, 39

Cooper v. Aaron, 358 U. S. 1 (1958) ............................  31

Dowell v. School Board of the Oklahoma Public
Schools, 219 F. Supp. 427 (W. D. Okla. 1963) ....36, 39,44 

Dowell v. School Board of the Oklahoma Public
Schools, 244 F. Supp. 971 (W. D. Okla. 1965) .......37, 41,

42, 44
Downs v. Board of Education of Kansas City, Kansas,

336 F. 2d 988 (10th Cir. 1964), cert, denied 380 U. S.
914 ........................... ....................................................  33

Dove v. Parham, 282 F. 2d 256 (8th Cir. 1960) .............. 30

Gilliam v. School Board of City of Hopewell, Virginia,
345 F. 2d 325 (4th Cir. 1965), reversed on other 
grounds, sub nom. Bradley v. School Board of City
of Richmond, 382 IT. S. 103 (1965) ............................  33

Gomillion v. Lightfoot, 364 U. S. 339 (1960) .................  36
Goss v. Board of Education, 373 U. S. 683 (1963) ......  33
Griffin v. County School Board of Prince Edward 

County, 377 U. S. 218 (1964)

PAGE

33



PAGE

IV

Holland v. Board of Public Instruction of Palm Beach,
Fla., 258 F. 2d 730 (5th Cir. 1958) ...........................- 36

Houston Independent School District v. Ross, 282 F. 2d 
95 (5th Cir. 1960) ........................................................  33

Jackson v. Pasadena School Board, 31 Cal. Rptr. 606,
382 P. 2d 878, 8 Race Rel. L. Rep. 924 (1963) ..........  33

Ivier v. County School Board of Augusta County, 249 
F. Supp. 239 (W. D. Ya. 1966) ..................... 39, 41, 42, 44

Lockett v. Board of Education of Muscogee County,
Ga., 342 F. 2d 225 (5th Cir. 1965) ............................  40

Morean v. Board of Education of Montclair, 42 N. J.
237, 200 A. 2d 97, 9 Race Rel. L. Rep. 688 (1964) ....... 33

Northcross v. Board of Education of the City of Mem­
phis, 333 F. 2d 661 (6th Cir. 1964) ............................  30

Price v. Denison Independent School District, 348 F.
2d 1010 (5th Cir. 1965) ......... ................................... 22, 39

Rogers v. Paul, 382 U. S. 198 (1965) ..........................  39
Ross v. Dyer, 312 F. 2d 191 (5th Cir. 1963) .................  30

Singleton v. Jackson Municipal Separate School Dis­
trict, 348 F. 2d 729 (5th Cir. 1965) ...........................25, 29

Singleton v. Jackson Municipal School District, 355 
F. 2d 865 (5th Cir. 1966) ......................................... 39,41



V

PAGE

Sweatt v. Painter, 339 U. S. 629 (1950) ......................... 32

Taylor v. Board of Education of New Rochelle, 191 
F. Supp. 181 (S. D. N. Y. 1961) ................................  36

O t h e r  A u t h o r it ie s

Wright, Public School Desegregation: Legal Remedies 
for De Facto Segregation, 40 N. Y. U. Law Rev. 285 
(1965) .......................................................................... 38



I n  t h e

Unite?* States (Cmtrt nf Appeals
F oe t h e  F if t h  C ir c u it  

No. 23255

R ebecca  E. H e n r y , et al.,
Appellants,

T h e  Clarksdale  M u n ic ip a l  S eparate  S chool  D is t r ic t ,
et al.,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF MISSISSIPPI

BRIEF FOR APPELLANTS

Statement of the Case

A.

Summary of the Litigation

Negro parents and pupils residing in Clarksdale, Mis­
sissippi appeal the December 13, 1965 order of the United 
States District Court for the Northern District of Missis­
sippi approving a desegregation plan submitted by Clarks­
dale school authorities pursuant to its orders of June 26, 
1964 and August 10, 1965.



2

Suit was filed in April, 1964 seeking injunctive relief 
against the Board’s policy of maintaining the public schools 
of Clarksdale on a segregated basis (R. 1-12).1 The Board’s 
answer admitted the schools were segregated (R. 13-19), 
and the district court on June 26, 1964 granted plaintiffs’ 
motion for a temporary injunction, ordering the Board to 
prepare a desegregation plan which would provide a mini­
mum of one desegregated grade for the school term be­
ginning September, 1964 (R. 20-24). In response, the 
Board submitted a plan consisting of four alternative modi­
fied stair-step time schedules for desegregation, each of 
which was to be accomplished by the assignment of pupils 
in accordance with newly designed school boundaries or 
zone lines (R. 25-49). Plaintiffs filed objections to the 
method and speed of the desegregation proposals (R. 46- 
49), but the district court, following an August 19, 1964 
hearing of these objections, ordered into effect portions of 
two of the Board’s plans “as a tentative and interim pro­
cedure” (R. 63) for the purpose of requiring the desegre­
gation of grade 1 in September, 1964 and of grade 2 in 
January, 1965 (R. 63-64).

On January 5, 1965, appellants filed a motion for further 
injunctive relief alleging that no actual desegregation had 
resulted from the Board’s implementation of its plan and

1 Negroes in Clarksdale had sought school desegregation since 
August, 1954 when a petition, signed by 454 heads of families, was 
submitted to the school board (R. 425). The Board never replied, 
but the petition and the names of its signers were published in a 
local newspaper, with the result that various pressures and intimi­
dations caused some of them to withdraw their names (R. 425-26). 
Following this, there was less activity for school desegregation, but 
another petition, signed by the parents of 25 children, was filed in 
1963 (R. 427-28). Again, there was no response from the Board 
and again the petition and the names of its signers were published 
in a local newspaper (R. 428). Thus followed this action (R. 8-9).



3

that, because of the nature of the plan, no desegregation 
could be expected to result (E. 65-67). A full hearing was 
held on April 8 and 9, following which the district court, 
on August 10, 1965, issued an order (R. 111-17) approving 
some of the school zones submitted by the Board and 
directing the Board to reconsider their proposals as to 
certain other school zones, which nevertheless were “tem­
porarily approved” for the Fall semester (E. 115). The 
order required inter alia desegregation of five grades for 
the 1965-66 school year and the desegregation of the re­
maining seven grades during the following two years 
(R. 112).

Appellants filed a motion to amend the findings and 
judgment (R. 120-125), asserting that court approval of 
zone lines conforming to racial neighborhoods and violat­
ing educational standards effectively foreclosed any de­
segregation for a second year; the motion also challenged 
the basis for findings concerning the validity of the zone 
lines (R. 122) and asserted that the district court’s con­
clusion that the Board had no affirmative constitutional 
duty to integrate its schools was incompatible with de­
cisions of this Court (R. 123-24). It was denied on August 
30, 1965 (R. 126).

In October, 1965, after the start of the new school year, 
the Board, in compliance with the district court’s August 
10th order, filed a revised plan for those attendance zones 
which had not received final court approval (R. 127-35). 
Appellants filed objections to the revised plan, pointing out 
that only two of the five zones had been altered and that 
the Board’s recommendation that two zones be combined 
would not, under the circumstances, desegregate those



4

zones. Appellants also opposed the Board’s request that 
all zones be retained in their present form until the Fall 
of 1966 (R. 136-40). Following a hearing on November 15, 
1965, the district court, on December 13, 1965, approved 
all the Board’s zone boundaries (R. 148-49). Appellants 
filed a notice of appeal on December 14, 1965 (R. 150).

B.

Statement of Facts

1. Sum m ary of Desegregation Under the B oard’s Plan

Public school desegregation was initiated in Mississippi 
in the Fall of 1964, after four school districts, including 
Clarksdale, were enjoined by federal courts to desegregate 
at least 1 grade. Three systems, Jackson, Biloxi and Leake 
County, offered first graders their choice of Negro or white 
schools, and 61 Negro children enrolled in formerly all- 
white schools.2 3 Clarksdale devised an assignment plan 
under which all first graders were assigned in accordance 
with redrawn school zones lines (R. 25-45, 50-62). As a 
result not a single child was enrolled in a desegregated 
school (R. 160-62). For the second semester of the 1964-65 
school year the Board was required to assign all second 
grade pupils in accordance with its school zone lines and 
again not a single child teas enrolled in a desegregated 
school3 (R. 163-64).

When this case was heard in April, 1965, there were 
almost 5,000 students attending the Clarksdale public

2 Yol. II, Southern School News, p. 1 (Sept. 1964).
3 The Board reported that approximately 64 first and second 

grade white pupils were residing’ in Negro school zones but that 
some entered private schools and others moved or left the system. 
None attended desegregated schools (R. 160-64).



5

schools (B. 157-59), but the 2,800 Negro pupils continued 
to attend the five Negro schools and the 2,100 white chil­
dren continued to attend the six white schools.4

When the Clarksdale schools opened in September, 1965, 
they were under the court’s August 10, 1965 order to de­
segregate five grades (3, 4 and 12 in addition to grades 1 
and 2) (B. 112). But again, no pupils were enrolled in 
schools formerly serving the opposite race (B. 195), until, 
however, two Negroes were permitted to transfer to a 
white school.5

2. The Board’s Zoning Schem e

The City of Clarksdale is bisected from the northeast 
to the southwest by a main line of the Illinois Central 
Bailroad track. Traditionally, most Negroes in the City 
have lived south of these tracks, while the great majority 
of the City’s white residents live north of the tracks (B. 
381, 775, Population Distribution Map). The Higgins High 
School, containing all the Negro pupils in grades 7-12 (ex­
cept two), is located south of these tracks, while the high

4 The Clarksdale Board and the Coahoma County Board, under 
a written agreement, shared jurisdiction over combined high school 
facilities operated for all white high school children in the City 
and County. Based on this fact, the Coahoma County Board had 
been named a defendant in the complaint (It. 4) ; however, this 
agreement was permitted to expire at the end of the 1964-65 school 
year (R. 73,156).

5 Following the opening of school, two Negro girls in the 11th 
‘grade requested Latin, a course not offered at the Negro Higgins 
High School. Under provisions of the court’s August 10, 1965 
order requiring the granting of transfers to obtain courses not 
offered at schools vdiere they were initially enrolled (R. 114), 
they obtained transfers to the white Clarksdale High School (R. 
195).



6

schools containing all the white public high school pupils 
are located north of the tracks (R. 219, 381).

In similar fashion, four elementary schools, Oliver, Hall, 
Washington and Riverton, containing all the Negro ele­
mentary pupils, are located south of the Illinois Central’s 
tracks. Three of the four elementary schools serving white 
pupils are located north of the tracks. The fourth elemen­
tary school, Eliza Clark, is located in a white residential 
section south of the tracks (R. 273).

The Board maintains that the race of residents was not 
considered in drawing zone lines (R. 212, 248), except as 
an “incidental factor” (R. 212, 248, 710), with school utiliza­
tion, proximity, natural boundaries and safety and health 
the major considerations (R. 263). The Board has admitted 
following historical boundary lines utilized under the seg­
regated system (R. 281-82). Thus, boundary lines such as 
the Illinois Central tracks which bisect the City (R. 270) 
and the Wilson Avenue line dividing white Eliza Clark and 
Negro Myrtle Hall zones (R. 246-47) have traditionally 
served as boundaries between Negro and white neighbor­
hoods (R. 164-67). The result of continuing to use these tra­
ditional zones has been to continue Negro pupils in Negro 
schools and white pupils in white schools. Based on Board 
statistics provided in March, 1965, 865 Negro high school 
pupils, all but two of the total eligible to attend high school, 
live south of the Illinois tracks, attend Higgins, and if the 
Board has its way, will continue at Higgins (R. 183).6

6 The Board reported 198 of the 1,023 white high school pupils 
reside south of the Illinois Central tracks (R. 183), but half of 
these live in the Eliza Clark zone, and it is unlikely that any would 
attend the Negro Higgins High School if assigned there.



7

As to elementary schools, the Board has zoned the one 
white and four Negro elementary schools located south of 
the Illinois Central tracks so that all Negroes will be 
assigned to schools traditionally serving Negro pupils and 
the great majority of white pupils will be assigned to the 
white Eliza Clark School. The three remaining white ele­
mentary schools located north of the Illinois Central tracks 
have been zoned so as to serve only pupils living north of 
the tracks (R. 186, 610). Few if any of these students are 
Negroes. In fact, the Board estimated that in December 
1964, only one Negro elementary school child was eligible 
by reason of residence to attend an elementary school now 
serving only white pupils (R. 168).T

The Board has followed traditional racial boundary lines 
even when they appeared to clash with standards of efficient 
school utilization, proximity and other generally accepted 
school zoning criteria. For example, the Eliza Clark zone 
completely encompassed all white pupils living in the largest 
white neighborhood located south of the Illinois Central 
tracks, but did not include even one Negro (R. 168), though 
Negro neighborhoods surround the Eliza Clark zone on 
three sides. While railroad tracks mark the northern and 
western boundaries and a highway makes up its southern 
boundary, these geographical features do not interfere with 
travel, as indicated by the number of pupils required to 7

7 As with the high school students, a percentage of white ele­
mentary pupils (145 of 1025) reside in attendance zones serving 
Negro schools. But the experience thus far is that none will choose 
to accept assignment to such schools.



8

cross both the tracks or the highway under both the Board’s 
old (R. 164-67) and new zones (R. 270-71).8

The eastern boundary of the Clark school zone followed 
a Clarksdale street, Wilson Avenue, which is only 200 feet 
from the school (R. 277). Wilson Avenue is not a major 
thoroughfare, is only partially paved, and in some parts 
is only a rut through a grassy area (R. 281-82). Its sole 
distinguishing characteristic is that whites reside in great 
numbers along the western half and Negroes reside in great 
numbers along its eastern half (R. 280). Finally, it ap­
pears that Negroes live south of Highway 61, which was 
the southern boundary of the Eliza Clark zone (R. 282- 
83).

The Board Superintendent explained that capacity of the 
Clark School and its physical condition dictated the draw­
ing of the school’s zone boundaries (R. 280-81). But the 
three adjoining Negro elementary schools are all more 
crowded than Eliza Clark (R. 183). Indeed, Negro schools 
are generally more crowded than schools serving white 
pupils. Teacher-pupil ratios are generally higher in the 
Negro schools, even though Negro teachers until 1965 were 
paid less than white teachers with similar qualifications (R. 
610), and the Board traditionally has spent more money 
per pupil in white than Negro schools (R. 173, 185).

The Board Superintendent, G-ycelle Tynes, testified that 
the system was committed to the neighborhood school plan 
which was “time-honored” and “time-tested” (R. 206, 263),

8 During the 1963-64 school year, before this suit was filed, the 
Board assigned 710 pupils to schools which required travel across 
the Illinois Central Railroad tracks bisecting the City from east 
to west. A total of 594 pupils were so assigned during the 1964-65 
school year (R. 184-85).



9

that the Board’s adherence to this philosophy was strict, 
and that all pupils were required to attend the schools in 
their zones (R. 211). In practice, however, the Board has 
assigned pupils to schools outside the zones of their resi­
dence :

1. All white elementary pupils residing in Zone E-3A, 
pending construction of a school in that zone are assigned 
to either the Eliza Clark (Zone E-1C) or the Oakhurst 
(Zone E-4A) schools (R. 27, 194, 698). When the zone 
lines were drawn to include a zone with no school, the 
Board estimated that the new building would be ready for 
occupancy by September, 1966 (R. 43). In October, 1965, 
they reported no school would be constructed until there 
were sufficient children in the district to justify a school 
building (R. 195-96), and conceded at the November, 1965 
hearing that they do not now own sufficient land in the 
zone to construct an adequate school (R. 696).

2. Approximately thirty percent of the pupils at the 
Eliza Clark School (42 of 147) do not reside within the 
Eliza Clark Zone (R. 702-03).

3. During the first semester of the 1964-65 school year, 
all pupils who were to be assigned to the new Riverton 
School (elementary zone E-2B) when it opened in January, 
1965, were assigned together with teachers to two Negro 
schools in the system (R. 27).

4. During the current school year, the Board, in order 
“to better utilize available class rooms,” enrolled two classes 
of pupils in Myrtle Hall who actually reside in the George 
Oliver area (R. 707) and a class of sixth grade pupils in 
the Riverton School (Zone E-2B) who reside in Zone E-2A, 
the Washington School Zone (R. 193-94, 701, 704).



10

3.  Testim ony o f Educational Experts

To support the contention that the Board’s zone lines 
were gerrymandered to frustrate school desegregation, ap­
pellants obtained the assistance of Reginald Neuwein9 and 
Myron Lieberman,10 two authorities in the field of educa­
tional administration. The two experts spent several days 
studying statistics on the school system and surveying the 
schools and the community (R. 455, 533). At the April, 1965 
hearing, both men testified that, as drawn, the Board’s zone 
lines violated generally accepted criteria for school zones 
and could be regarded only as an effort to maintain seg­
regated schools. They noted that Negro schools were over­
crowded and understaffed and that Negro teachers were 
underpaid, with the result that these schools were not

9 Reginald Neuwein has 36 years of educational experience and 
at present is director of a study of 13,000 elementary and 2,400 
secondary Catholic schools in the United States conducted from the 
University of Notre Dame. He was Superintendent of Schools in 
Stamford, Connecticut and was Director of Administrative Re­
search at the Educational Research Council of Greater Cleveland 
in Cleveland, Ohio, in which position he advised school superin­
tendents and completed 15 school system surveys similar to the 
study requested by appellants of Clarksdale’s school system (R. 
452-54).

10 Myron Lieberman is Chairman of the Professional Studies Di­
vision at Rhode Island College and has charge of the Departments 
of Elementary Education, Secondary Education, Industrial Arts 
Education, Psychology, Philosophy, the Laboratory School of over 
700 pupils and student teaching and faculty research programs. 
He has taught at the University of Illinois, Hofstra University, 
Emory University, the University of Oklahoma, and served as 
Chairman of the Department of Education at Yeshiva University. 
Dr. Lieberman, who earned a Ph.D. Degree in Education at the 
University of Illinois has over 10 years of experience in work deal­
ing with the interrelationship between race and education. He has 
published articles and books, given lectures and chaired conferences 
dealing with race relations and race in education and served as a 
desegregation consultant to the New Rochelle, New York school 
system and other systems working on school integration problems 
(R. 531-32).



11

capable of offering the quality of education offered at the 
white schools. They stated emphatically that both elemen­
tary and high school zone lines could be redrafted so as 
both to improve school utilization and to provide for a sub­
stantial amount of desegregation—despite the increasingly 
rigid neighborhood racial patterns.

Reginald Neuwein (R. 452) was critical of the placement 
of the schools (R. 457) and stated that the school zone 
lines did not meet generally accepted criteria (R. 459). 
He noted that on both counts the white Kirkpatrick (Zone 
E 4-B) and Heidelberg (Zone E 4-C) schools located north 
of the Illinois Central tracks in an all white area appeared 
well placed and well balanced (R. 459-60), but compared 
the Negro Myrtle Hall (Zone E 1-B) and white Eliza 
Clark (Zone E 1-C) school zones (R. 461-62), which are 
divided by a street (Wilson Avenue) on which Negroes live 
on one side and whites on the other (R. 463), and concluded 
that no desirable educational benefit occurred from draw­
ing the line in this fashion (R. 463-64).

Mr. Neuwein recommended that the zone lines for Eliza 
Clark (Zone E 1-C), Riverton (Zone E 2-B) and Washing­
ton (Zone E 2-A) be redrawn (R. 465). He also found fault 
with the location of the high schools (R. 466-67), suggested 
that since the Illinois Central Railroad tracks provided no 
serious barrier or hazard, it should not be an automatic 
zone line (R. 468-69) and that a more appropriate zone line 
between the high school facilities could be drawn in a gen­
erally north-south fashion (R. 469-70). Such a zone line 
would have educational benefits (R. 470) and would not 
serve to perpetuate segregation, as does the present line 
(R, 470-71).



Mr. Neuwein compared average class size statistics for 
the Negro and white schools and found the average enroll­
ment in the white schools 25.1 pupils per class as compared 
with a figure of 35.3 pupils per class in the Negro schools 
(E. 473). He stated that the differential has a substantial 
effect on the quality of education offered in the Negro and 
white schools (E. 473-74), because teachers in the larger 
classes in Negro schools are less able to administer to the 
needs of individual children (E. 477-78).

Another important factor was the average per pupil ex­
penditure, which in 1964 was $202.62 for each Negro ele­
mentary pupil and $295.00 for each white pupil (E. 475). 
Of this amount, there is a difference of $76.00 per pupil 
on salary expenditures and $17.00 per pupil for other 
operational costs (E. 474-75). At the high school level, 
the Board expends $292.00 for each Negro pupil and $424.00 
for each white pupil with a differential of $79.00 per pupil 
for teacher salaries and $52.00 differential for other opera­
tional expenses (E. 476).

Mr. Neuwein concluded that the present zone lines should 
be completely re-examined and redrawn to better balance 
school population. Such redrawn lines would also accom­
plish desegregation (E. 479). Thus, while agreeing that the 
white Kirkpatrick and Heidelberg schools appeared prop­
erly zoned (E. 510), he stated that these schools were part 
of a system that could not truly be desegregated until all 
schools were properly zoned (E. 520). Desegregation would 
also be furthered, according to Mr. Neuwein, by selection 
of faculty according to qualifications and without regard 
to race (E. 480-81).

Dr. Myron Lieberman (E. 531) testified that, based on 
his study of the Clarksdale school system, he had concluded

12



13

the zone lines were not drawn in accordance with sound 
administrative procedures (R. 533). Citing as examples 
the Oakhurst, Clark, Hall and Washington school zones, 
he indicated that while boundaries should minimize travel 
distances and maximize utilization of schools, the white 
Clark School was operating at % capacity, while the adjoin­
ing Negro Hall and Washington schools were both above 
capacity (R. 533-34). He recommended altering the zone 
lines so as to assign pupils from Hall and Washington 
schools to the Clark school and made similar suggestions 
concerning the new Riverton School which was already op­
erating close to capacity (R. 534-35).

Based on the number of pupils presently crossing the 
Illinois Central Railroad tracks, Dr. Lieberman agreed 
with Mr. Neuwein that there was no reason to utilize the 
tracks as a boundary in the Clarksdale community and 
that some pupils assigned to the Riverton School should 
be assigned to the Oakhurst School (R. 537-38).

Dr. Lieberman stated that it would be a miracle if the 
Board’s school utilization policies had not adversely af­
fected the education of both white and Negro pupils (R. 
539). He cited the larger class sizes in Negro schools and 
the fact that Negro pupils must travel longer distances 
to their assigned schools. He also pointed to the greater 
salary of white teachers, the narrower curriculum in the 
Negro schools and the fact that even the rated capacity of 
Negro schoolrooms is set higher than the figure for white 
schoolrooms of similar size (R. 539-41).

As to teacher assignment, Dr. Lieberman noted that there 
are 700 more elementary school Negro than white elemen­
tary school pupils but only four more Negro teachers



14

assigned to Negro elementary schools than to white ele­
mentary schools. He described this as a “staggering dif­
ference”, adding that the situation is probably even worse 
because there are five teachers in white schools who are 
not assigned to classes, but are available for supervisory 
or remedial work with pupils. He described the situation 
as impossible to defend on any sound administrative basis 
(E. 542).

Dr. Lieberman described as an “obvious conclusion” that 
the effect of the board’s school zone lines, school construc­
tion policy and the school addition policy had the effect 
of retaining segregation (R. 543). He stated that if each 
pupil in the system were merely assigned to the school 
located nearest his home, the lines would have been drawn 
much differently, particularly with regard to the Clark, 
Hall and Washington school zone lines (E. 543). In addi­
tion, some pupils now assigned to Riverton would go to 
Oakhurst where there is substantial space available (B. 
543-44). He made a similar suggestion as to the high school 
zones, indicating that a north-south line, perhaps using the 
Sunflower River as a dividing line between the high school 
facilities, would probably be the best solution to maximize 
utilization of facilities and distance factors (R. 545). He 
also suggested that differences in curriculum at the high 
school level made necessary some flexibility in the Board’s 
transfer policy to enable transfers for genuine educational 
reasons (R. 545-46).

He stated that the neighborhood school policy has many 
interpretations, but added:

In this community the only criterion for ‘neighbor­
hood’ that I can honestly see is in using the criterion of



15

race, that ‘neighborhood’ seems to be defined by ‘white’ 
or ‘Negro.’ It certainly isn’t defined in terms of distance 
from school, because if it were there would be many 
Negro pupils going to schools that now enroll only 
whites and there would be some white students that 
would be going to schools that now are enrolling only 
Negroes.

So, I don’t know, but my concept of neighborhood 
school would be that you would go to the school near­
est your home, provided that due account were given 
to the utilization of facilities and safety factors. That, 
I believe, is a legitimate conception of a neighborhood 
school, and if that were followed in this community I 
think the lines could be, as I said before, much dif­
ferent from what they are. (R. 547-48).

He added that school zone lines following legitimate 
criteria would automatically place large numbers of Negro 
pupils in white schools and substantial numbers of white 
pupils in Negro schools (R. 548).

He agreed with Mr. Neuwein that the continued assign­
ment of teachers on the basis of race is an educational 
handicap to all students, both because the racial standard 
makes it more difficult to get the best person in each job 
and because it tends to fix goals on race instead of the 
educational job that must be done, thereby weakening the 
educational process (R. 548-49). He indicated that research 
shows desegregated faculties improve the educational 
standards and general school morale and alter the tradi­
tional racial image of the school (R. 549-50).

Dr. Lieberman blamed the Board’s plan for the fact 
that those white pupils assigned to Negro schools chose



1 6

to leave the school system or to change their residences 
(R. 562). He said that when very few white pupils are as­
signed to a Negro school, they can be expected to move 
(R. 562). Moreover, he stated that school board policies 
are crucial to the racial composition of the schools. Thus, 
the plans should be drawn so as not to maximize segrega­
tion, which he asserted occurs where a few white pupils are 
assigned to a Negro school (R. 562-63).

4.  Effect of State Action on Board’s Zone Lines

While the Board’s zone lines as drawn served to direct 
most white pupils to white schools and virtually all Negro 
pupils to Negro schools, a census taken by the Board 
showed there were from 72 to 80 Negro children of school 
age, including 32 eligible to enter the first grade in the Fall 
of 1964, residing in white school zones (R. 160, 180-81, 
608). But a series of official actions, all taken during the 
Summer of 1964 by Coahoma County and the City of 
Clarksdale, effectively removed almost every Negro fam­
ily living north of the Illinois Central tracks (R. 381). 
These actions were as follows:

(1) The City incorporated a sizeable area of land lo­
cated north of elementary zone E-3A (see maps, R. 
773, 795), excluding a cluster of Negro homes in 
an area along Friar Point Road which is known as 
“Tuxedo Park”. The city then purchased these 
homes, allegedly for park purposes, had them torn 
down and relocated the Negro residents south of the 
Illinois Central railroad tracks (R. 323).

(2) The City by a 1964 ordinance (R. 68-70) de-annexed 
two strips of land on East Second Street located



17

north of the Illinois Central Bailroad tracks and in 
the southern portion of elementary zone E-3A (B. 
328). As a result, Negro pupils residing in these 
areas were rendered ineligible to attend City schools 
(B. 333).

(3) The City and the County, ostensibly to aid in solv­
ing parking problems, purchased areas near the 
County jail in the central business district (elemen­
tary Zone E-3A) for public parking lots (B. 335-36). 
Houses occupied by Negroes in this area were torn 
down (B. 181).

(a)  T estim ony o f School B oard Attorney Luckett

Apxjellants called Board attorney Semmes Luckett to 
testify as to his knowledge, and possible participation in, 
the enactment of the July, 1964 zoning ordinance and the 
property purchases which had the effect of purging virtu­
ally all Negroes residing north of the Illinois Central Bail- 
road tract (B. 312). Attorney Luckett was familiar with 
the content and effect of the ordinance, although indicating 
that he had read it for the first time only the day before 
(B. 314). He said he could not recall whether or not he 
had been present at any official or unofficial meetings of 
the Mayor and City Commissioners regarding the ordi­
nance (B. 315-19). He admitted that he had discussed the 
matters treated in the ordinance with the Mayor and Com­
missioners, but in his capacity as a member of the City 
Planning Commission and not as school board attorney 
(B. 320-21). He denied that the actions taken by the city 
were on his recommendation, but admitted that he favored 
the actions taken for various reasons which he maintained 
had nothing to do with the school system.



18

For example, he had favored for many years city ac­
tion to tear down the Negro housing in Tuxedo Park for 
reasons of health (R. 327-28). He also was in agreement 
with the de-annexation of the Negro residential sections on 
East Second Street, just north of the Illinois Central Rail­
road tracks (R. 328-29). He also recommended that the 
city purchase property around the county jail where Negro 
residences were located (R. 337-38), but is not certain 
that it was his recommendation that led to the action. He 
stated that much of the action had been planned under an 
urban renewal project abandoned in 1961 (R. 340). At­
torney Luckett said that he had assisted the Board in pre­
paring the school zone lines contained in the plan (R. 343) 
and knew that the recommendations which were adopted 
in the city ordinance would reduce the number of Negroes 
who were assigned to white schools (R. 345). He stated he 
had not told the school board that his recommendations 
would affect the amount of desegregation under the plan 
(R. 347), but thought it “entirely possible” that the Board 
knew (R. 347-48).11

(b )  T estim ony o f City C om m issioner B ell

One of the City Commissioners, Hudson F. Bell, Jr., 
testified (R. 352) that the July, 1964 ordinance, which an­
nexed some areas and de-annexed others, was passed as

11 Attorney Luckett, who is acknowledged as the author of the 
State’s Tuition Plan Law (R. 350) (under which some white pupils 
assigned to Negro schools were able to withdraw from the public 
schools, obtain tuition from the State and enroll in private segre­
gated schools) believes that school desegregation is unavoidable, 
but also believes that some “escape valve” is necessary for areas 
with high percentages of Negroes such as Clarksdale (R. 348-49).



19

part of a city improvement project and conformed to an 
urban renewal plan which had to be abandoned in 1961 
because of the passage of a state statute (R. 368). The 
project was later renewed with local funds obtained from 
a sales tax ordinance. He conceded that nothing had been 
done about the de-annexed areas for several years, as other 
projects were deemed more important (R. 370). He said 
the zoning ordinance was the result not of recommenda­
tions by Attorney Luckett, but of the Planning Commis­
sion, of which Luckett was a member at the time the 
recommendations were adopted (R. 371).

Commissioner Bell denied any knowledge of the effect 
the zoning ordinance would have on the Board’s desegre­
gation plan (R. 372-73), but conceded that the action was 
taken after the school suit was filed and after the slum 
clearance project had lain dormant for the four years since 
the urban renewal program had died. While stating that 
revenue from the sales tax ordinance, passed in 1962, en­
abled capital improvements to be made, Commissioner Bell 
was not able to explain why the need for money had held 
up the de-annexation program, since no funds were neces­
sary for this purpose (R. 375-76, 378). He maintained that 
the de-annexation resulted from the City’s inability to pro­
vide the de-annexation areas with sewage facilities and that 
the houses in the Tuxedo Park area were subsequently 
purchased by the City and torn down because of their bad 
condition (R. 388-89). The City and County need for the 
property was given as the basis for the purchase of Negro 
residential areas located near the County jail (R. 390-94). 
Nevertheless, Commissioner Bell conceded that the ordi­
nance had the effect of removing all Negroes living north 
of the railroad tracks (R. 381) and that this was the only



20

action taken on slum housing, which is located throughout 
the city (R. 396-98).

(c )  T estim ony o f City P lann ing  C om m ission Chairman

The Board obtained testimony from the Chairman of 
the City Planning Commission (R. 400), who sought to sup­
port the position of the Board attorney and City Commis­
sioner that the City action which removed the Negro resi­
dents living north of the railroad tracks was not intended 
to achieve this purpose and was done without knowledge of, 
or regard to, the Board’s desegregation plan.

On cross examination, however, it appeared that, not­
withstanding attempted justification of the zoning ordi­
nance based on a desire to rid the area of substandard 
housing, only the substandard housing located north of the 
Illinois Central Railroad tracks was affected. Virtually all 
housing either torn down or de-annexed had been occupied 
by Negroes, while some substandard housing occupied by 
whites in that area was permitted to stand (R. 414-15, 418- 
20, Defs. Exh. 25). Moreover, it appeared that notwith­
standing the Chairman of the Planning Commission con­
tended that the housing affected by the ordinance had the 
highest priority for action under the abandoned urban re­
newal plan (R. 405-06), the ordinance also affected (by 
de-annexation) the area along East Second Street, which 
had been given the lower priority number of XI (Defs. 
Exh. 26, pp. 52-55).

(d )  T estim ony o f Dr. Aaron H enry

Appellant and state NAACP leader Dr. Aaron Henry 
(R. 425) said that the Board’s school zones and the City’s



2 1

zoning ordinance would prevent school desegregation. He 
explained that the great majority of Negroes in Clarksdale 
are day laborers or are employed in the farm system (R. 
434), that the work is frequently sporadic and that the 
pay is very low (E. 438). Negroes live in clearly recog­
nizable areas of the city and generally reside in the school 
zone areas serving Negro schools (E. 438-39). Housing for 
Negroes ranges from very poor to fairly good (E. 440). 
Dr. Henry stated that there are areas south of the railroad 
tracks (particularly in zone E 2-A) which are just as 
dilapidated as the demolished Tuxedo Park or the de- 
annexed area along East Second Street (E. 440).

Dr. Henry, who is also the president of the local NAACP 
and the only Negro pharmacist (R. 425), knows most of the 
Negro residents of Clarksdale. He believes few, if any, 
Negroes now live north of the Illinois Central Railroad 
tracks (R. 441, 449). He said that he doubts that Negroes 
have ever tried to move into the areas served by the 
Kirkpatrick, Heidelburg and Oakhurst Schools because 
of the mores and the customs of segregation in housing (R. 
441). Dr. Henry, whose daughter seeks admission to a 
public school on a desegregated basis (E. 441-42), believes 
that present conditions in Clarksdale would prevent even 
a freedom-of-choice-type desegregation plan from having 
any effect in Clarksdale, because of the general opposition 
to school desegregation of the white community (E. 442-43).

5. Opinion of the Court Below

The district Judge reviewed all the evidence then before 
him in a lengthy Memorandum Opinion dated August 10, 
1965 (R. 74-110). His conclusions may be summarized as 
follows:



22

a. In conformity with this Court’s adoption of the De­
partment of Health, Education and Welfare’s school de­
segregation guidelines in Price v. Denison Independent 
School District Board of Education, 348 F. 2d 1010 (5th 
Cir. 1965), the desegregation rate was set so as to en­
compass all grades by the 1967-68 school year (R. 74-75).

b. The court referred to several school desegregation 
decisions which it interpreted as having held neighborhood 
school zones a constitutionally permissible method of de­
segregation if all pupils within the zone were required to 
attend their assigned school and the boundaries of each 
zone were drawn on a nonracial basis (R. 76-77). Utilizing 
these principles in reviewing the validity of the zone lines 
contained in the Board’s plan, the court determined that 
the junior and senior high school zones and the elementary 
zones located north of the Illinois Central railroad tracks 
should be approved, despite the fact that there were few 
Negroes residing in the area north of the tracks and few 
whites living in the zones located south of the tracks. The 
court found that the residential patterns “arise from racial 
housing patterns which have developed over the years” 
(R. 80). The court found that the railroad tracks were a 
proper and reasonable natural boundary and that selection 
of this boundary as a school zone line did not create the 
racial housing patterns and therefore did not in any way 
detract from the appropriateness of such a boundary (R. 
80). As to the one white and four Negro elementary zones 
located south of the Illinois Central tracks, the court indi­
cated that it was not convinced that more efficient zone 
lines could not be constructed (R. 91). The board was or­
dered to reconsider its recommendations as to these 
school zones, which were nevertheless to be placed into 
operation on a temporary basis for the first semester of



23

the 1965-66 school year (E. 91-92). As to these zones, the 
court stated that it lacked the educational expertise to make 
a final determination, but it rejected the suggestions made 
by appellants’ educational experts, although conceding both 
men were “educationally and theoretically well qualified” 
(E. 96). The court felt they lacked practical experience in 
the operation of the Clarksdale schools (E. 96-97) and that 
their philosophy showed a commitment to mixing Negro 
and white pupils in a classroom (E. 99-100). The court 
regarded as the basic issue in this case not whether actual 
integration occurred, but whether pupils were dealt with 
as individuals without regard to race (E. 97). In support of 
this interpretation of the Supreme Court’s school desegre­
gation decisions, the district court quoted Briggs v. Elliott, 
132 F. Supp. 776 (E. D. S. C. 1955) and a number of appel­
late court decisions based on the Briggs v. Elliott opinion.

c. The district court recognized and took measures to 
correct several of the deficiencies in the administration of 
Negro schools complained of by appellants, including 
teacher salary scales, curricula, teacher-pupil ratios and 
per pupil expenditure of public funds (E. 92-93). The 
court ordered that all these deficiencies be corrected and 
that greater expenditures in the Negro school be authorized 
if necessary to bring these schools up to white school 
standards.

d. The court found merit in appellants’ complaint that 
teachers were assigned on a segregated basis, but deter­
mined that, because teacher contracts had already been 
issued for the 1965-66 school year, immediate relief would 
create “unnecessary and serious problems”, justifying tem­
porary deferral of the problem of faculty desegregation 
(E. 95-96).



24

e. Reviewing the evidence submitted by appellants that 
numerous official actions taken by city and county officials 
had greatly decreased the number of Negroes eligible to 
attend white schools, the court found no connection between 
the board’s obligation to desegregate the public schools 
and the official actions; these he found had been planned for 
several years. Nor did the court see any problem in the 
fact that the school board attorney was a member of the 
Planning Commission which recommended all these mu­
nicipal actions (R. 107). It viewed appellants’ evidence as 
an effort to demonstrate a conspiracy between the defen­
dants and the city and county agencies to frustrate deseg­
regation efforts (R. 107), but rejected the argument as 
unsupportable (R. 108-09).

Following its Memorandum Opinion, the district court 
entered what it designated a final order, approving the high 
school zones and the elementary zones located north of the 
Illinois Central tracks as well as the pace of the desegrega­
tion plan, adding requirements that all school facilities be 
equalized and that students seeking courses not offered in 
their assigned schools be given the right to transfer to 
schools where such courses are offered (R. 114). The order 
temporarily approved the school zones located south of the 
Illinois Central tracks, but required reconsideration of these 
zones by the board and a resubmission of zones “predicated 
on efficient utilization of available school facilities on a 
racially nondiscriminatory basis in accordance with sound 
education principles” (R. 115-16).

The order further provided that, notwithstanding the ele­
mentary subdistricts located north of the Illinois Central 
tracks had been approved, the Board was free to revise



25

these boundaries if this was necessary to accommodate 
changes in the elementary attendance zones located south of 
the Illinois Central tracks. The order awarded costs to 
appellants and retained jurisdiction of the case for addi­
tional orders which might become necessary or appropriate 
(E. 116-17).

On August 18,1965, appellants filed a motion to amend the 
findings and judgment (B. 120-25), in which they pointed 
out that the court’s August 10th order effectively denied 
them relief. They supported this contention by pointing 
out that the school zones as approved by the court effec­
tively excluded Negroes from white schools, that under 
such zones no desegregation had been effected in grades 
one and two and that the evidence indicated that no de­
segregation could be expected in the future. The motion 
also sought reconsideration of the court’s view that the 
Brown decision could be carried out by eliminating dis­
crimination even though no integration resulted. Appel­
lants cited this Court’s decision in Singleton v. Jackson 
Municipal Separate School District, 348 F. 2d 729 (5th 
Cir. 1965), which rejected the teaching of Briggs v. Elliott 
and, upon reexamination of the second Broum opinion, 
concluded that it “clearly imposes on public school au­
thorities the duty to provide an integrated school system.” 
Appellants also maintained that the proof offered by their 
expert witnesses clearly showed that the Board’s zone lines 
violated generally accepted criteria for drafting school 
boundaries and could be justified only as a means for main­
taining segregation. On August 30, 1965, the district court 
denied and overruled plaintiff’s motion (R. 126).



26

6 . The B oard’s R evised Zone Lines

In October, 1965, the Board submitted its revised plan for 
the elementary attendance zones located south of the Illinois 
Central tracks. The sole change recommended was that the 
zone line dividing the white Eliza Clark school from the 
Negro Myrtle Hall school be eradicated and that, effective 
in September, 1966, all first and second grade pupils in the 
combined zone be assigned to the Eliza Clark school and 
all pupils in grades three through six be assigned to the 
Myrtle Hall school (R. 129-31). Appellants promptly filed 
objections to the revised plan (R. 136-4.0), contending that 
there was no greater justification for retaining the zone 
lines of the other elementary schools (R. 137) and that, 
while the eradication of the line between the Myrtle Hall 
and Eliza Clark zones appeared to have advantages from 
an educational and desegregational standpoint, the practi­
cal effect of assigning the 115 white children from Eliza 
Clark with the approximate 415 Negro pupils from Myrtle 
Hall would be that white parents would refuse to send their 
children to the school and would move their residences to 
areas north of the Illinois Central tracks where, as the 
evidence shows, Negroes could not obtain housing (R. 137).

Appellants also objected to the Board’s request that the 
revised zone plan not go into effect until September, 1966, 
in view of the court’s approval of the zones for one semester 
only (R. 138-39). Appellants further complained that the 
Board had failed to report what action, if any, had been 
taken to comply with that portion of the court’s August 
10, 1965 order requiring utilization of all school facilities 
(R. 139-40). Following a hearing on November 15, 1965, 
the court on December 13, 1965 gave full approval to the



27

board’s revised plan and ordered it into effect for the 1966- 
67 school year (R. 141-49).

Specifications of Error

The District Court erred in :
1. Refusing to hold that the Board, having established 

and maintained a racially segregated school system, is con­
stitutionally obligated to submit a desegregation plan which 
actually disestablishes segregation patterns and eradicates 
Negro and white schools.

2. Approving the attendance school zones contained in 
the Board’s desegregation plan over objections that such 
zones are both conformed to racial neighborhoods and de­
signed to perpetuate segregated schools, and despite in­
disputable evidence that:

a. Approval of such zones retains almost intact Negro 
and white schools;

b. The approved zones do not satisfy generally accepted 
criteria for school zones;

c. The zone lines are drawn to capitalize on pendente life 
rezoning and relocation action by City and County 
officials effectively removing large numbers of Negro 
families from zones serving white schools;

d. The Board’s policy of school construction and school 
additions fosters perpetuation of segregation;

e. The Clarksdale school system is readily adaptable to 
zoning which effectively integrates the schools while 
conforming to classical school zoning criteria;



28

f. Community conditions and pressures render inad­
visable further delay in requiring an assignment pol­
icy which actually disestablishes segregated schools.

3. Approving a gradual stair-step desegregation plan 
in the absence of valid administrative factors justifying 
further delay, notwithstanding Negro educational facilities 
remain dramatically inferior.

4. Refusing to require the immediate submission of a 
specific plan providing for the nonracial hiring and assign­
ment of teachers and other faculty personnel.



29

A R G U M E N T

I.
Effectuation of the Brown Decision Bars the Board’s 

Use of a Neighborhood School Assignment Policy to 
Justify Its Failure to Eliminate Segregated Schools, Par­
ticularly Where State Action and Community Custom 
Combine to Maintain Neighborhoods on a Racial Basis.

This Court has now clearly held that school boards op­
erating a dual system are required by the Constitution 
not merely to eliminate the formal application of racial 
criteria to school administration, but must by affirmative 
action seek the complete disestablishment of segregation 
in the public schools. Singleton v. Jackson Municipal Sep­
arate School District, 348 F. 2d 729, 355 F. 2d 865. As 
succinctly stated in the first Singleton case, “ . . . the second 
Brown opinion clearly imposes on public school authorities 
the duty to provide an integrated school system.” 348 
F. 2d 729 at 730, n. 5.

The record clearly shows that pupil assignment via the 
zone lines submitted by the Clarksdale Board will not suffice 
to effect any change in the traditionally segregated assign­
ment patterns which the Brown decision, and this Court, 
have held invalid and which the district court specifically 
enjoined.

Even if the Board’s zone lines reflected traditional ad­
herence to assigning each child to the neighborhood school 
closest to his home, the Brown decision would necessitate 
additional measures to bring about a desegregated school 
system. This Court and other courts have frequently held



3 0

that if the application of educational principles and theories 
results in the preservation of an existing system of imposed 
segregation, the necessity of vindicating constitutional 
rights will prevent their use. Dove v. Parham, 282 F. 2d 
256 (8th Cir. 1960); Ross v. Dyer, 312 F. 2d 191, 196 (5th 
Cir. 1963); Brooks v. County School Board of Arlington, 
Virginia, 324 F. 2d 303, 308 (4th Cir. 1963).

The Sixth Circuit, reviewing evidence that school zone 
lines had been drawn so as to preserve a maximum amount 
of segregation, in Northcross v. Board of Education of City 
of Memphis, 333 F. 2d 661 (6th Cir. 1964), held not only 
that the burden of proof rested with the school board to 
demonstrate that challenged zone lines were not drawn to 
preserve a maximum amount of segregation, but added:

Where the Board is under compulsion to desegregate 
the schools (1st Brown case, 347 U. S. 483) we do not 
think that drawing zone lines in such a manner as to 
disturb the people as little as possible is a proper 
factor in rezoning the schools. 333 F. 2d at 664. See 
also Clemons v. Board of Education of Hillsborough, 
Ohio, 228 F. 2d 853 (6th Cir. 1956).

In this case, the Board’s commitment to the neighborhood 
school policy appears less than convincing when it is con­
sidered that, prior to this suit, pupils were assigned to 
schools much further than those located closest to their 
homes in order to comply with the segregated system. Ex­
cept for those grades now covered by the Board’s plan, 
pupils are still assigned on the basis of race, with the re­
sult that many pupils are required to travel past schools 
to which, but for their color, they would have been routinely 
assigned. Thus, for a full decade after the Brown decision,



31

Board assignment policy required violation of the neigh­
borhood school principle to effect segregation. Now the 
Board opposes any departure from assignment on a strict 
neighborhood basis which would possibly alter segregated 
patterns.

In addition, the Board’s zones are obviously drawn 
with regard to the racial boundaries in the community. 
Appellants’ experts testified that the lines did not comport 
with generally accepted zoning criteria (R. 459, 533) and 
suggested alternate lines which would have both complied 
with educational criteria and effected integration of the 
Clarksdale schools (R. 479, 543). Some of the Board lines 
requiring many Negro pupils to travel substantial dis­
tances to overcrowded Negro schools, while white schools 
located closer to their homes are underutilized, are in­
genious : e.g., the use of the Illinois Central Railroad track 
(the major racial dividing line in Clarksdale) as the sole 
zone boundary for high schools and the key elementary 
school zone boundary, even though the railroad tracks are 
amply dotted with safe underpasses, and the board, prior to 
the desegregation order, directed during the 1963-64 school 
year 1,100 pupils to schools requiring the crossing of the 
Illinois Central tracks and 639 during the 1964-65 school 
year (R. 538). Others are ingenuous, particularly the east­
ern zone line of the Eliza Clark School, which faithfully 
follows Wilson Avenue (a traditional racial boundary with 
Negroes living on the east side and whites on the west side 
of the street), even when that street narrows to a grassy 
field (R. 463). All may accurately be categorized as part 
of a scheme which deprives Negro pupils of both their 
constitutional right to attend schools administered on a 
nonracial basis, Cooper v. Aaron, 358 TJ. S. 1, 17 (1958),



32

and their right, clear even prior to Brown v. Board of 
Education, 347 U. S. 483 (1954), to equal educational facili­
ties. Sweatt v. Painter, 339 U. S. 629 (1950).

While the Board altered the most flagrantly gerry­
mandered elementary zone line, the line between Zone E1C, 
the Eliza Clark white elementary school, and Zone E1B, 
the Myrtle Hall Negro elementary school (R. 666-67), even 
this action was taken with knowledge based on experience 
that, at least during this transitional period, Clarksdale’s 
white pupils will not attend a predominantly Negro school.

The Board’s use of Wilson Avenue, an unpaved road 
little used for travel hut generally acknowledged as a 
long established racial dividing line, typifies the motiva­
tions behind the Board’s construction of all its zone lines. 
The elimination of that line after the district court refused 
to approve it and the consolidation of the Clark and Hall 
zones with a resulting Negro-white ratio so uneven as to 
almost invite parents to withdraw their children from the 
public schools reflects the Board’s intention to substitute 
form for substance in the school desegregation process.12

12 In interrogatories served on the Board after its revised plan 
was announced, appellants, noting- that the combined zones would 
consolidate schools with 415 Negro pupils and only 115 white 
pupils, inquired: “Under such circumstances and based on the 
Board’s experience with the reluctance of white parents to permit 
their children to attend schools with Negroes, particularly where 
the Negro student body constitutes a majority, what plans or other 
action has the Board undertaken to maintain the stability of the 
community in Zone El-C [the combined zone] and prevent white 
parents from moving or enrolling their children in private schools” 
(R. 191). The Board responded :

These defendants have neither the power nor authority to 
prevent anyone from moving from where he or she lives. Nor 
do they have the power or authority to prevent any parent 
from enrolling his or her child in a private school (R. 196).



33

The district court’s acceptance of the Board’s revised 
plan reflects that court’s failure to grasp the settled prin­
ciple that schemes which technically approve desegregation 
but retain the school system in its dual form must be struck 
down. Goss v. Board of Education, 373 U. S. 683 (1963); 
Griffin v. County School Board of Prince Edward County, 
377 U. S. 218 (1964); Boson v. Rippy, 285 F. 2d 43 (5th Cir. 
1960); Houston Independent School District v. Ross, 282 
F. 2d 95 (5th Cir. 1960).

Appellants do not here seek the type of relief sought in 
cases involving school segregation not shown to have re­
sulted from officially sponsored and supported state action.13 
Nor does this case, as indicated above, raise merely the 
issue apparently presented in Gilliam v. School Board of 
City of Hopewell, Virginia, 345 F. 2d 325 (4th Cir. 1965), 
reversed on other grounds, sub nom. Bradley v. School 
Board of City of Richmond, 382 U. S. 103 (1965), of the 
validity of school zone lines drawn in accordance with gen­
erally accepted criteria but resulting in only token de­
segregation. In this case the issue is clear and settled.

13 The right to such relief has been sustained in B ooker v. B o a rd  
o f E d u c a tio n  o f P la in fie ld . 45 N. J. 161, 212 A. 2d 1 (1965); 
B alaban  v. R u b in , 40 Misc. 2d 249, 242 N. Y. S. 2d 974 (Sup. Ct.
1963) , rev’d, 20 A. D. 2d 438, 248 N. Y. S. 2d 574 (2d Dept.), 
aff’d, 14 N. Y. S. 2d 193, 199 N. E. 2d 375 (1964), cert, denied, 
379 U. S. 881 (1964), 9 Race Rel. L. Rep. 690; M orean  v. B o a rd  
o f E d u c a tio n  o f M ontcla ir, 42 N. J. 237, 200 A. 2d 97, 9 Race Rel. 
L. Rep. 688 (1964); Jackson  v. P asadena  School B oard , 31 Cal. 
Rptr. 606, 382 P. 2d 878, 8 Race Rel. L. Rep. 924 (1963); B locker  
v. B oard  o f E d u c a tio n  o f M anhasset, 226 F. Supp. 208 (E. D. N. Y.
1964) ; B arksda le  v. S p rin g fie ld  School C om m ., 237 F. Supp. 543 
(D. Mass. 1965), vacated without prejudice, 348 F. 2d 261 (1st 
Cir. 1961) ; and denied in B e ll v. School C ity  o f G ary, In d ia n a , 213 
F. Supp. 819 (N. D. Ind. 1963), aff’d, 324 F. 2d 209 (7th Cir. 
1963), cert, denied, 377 U. S. 924 (1964), and D ow ns v. B o a rd  o f 
E d u c a tio n  o f K ansas C ity , K ansas, 336 F. 2d 988 (10th Cir. 1964), 
cert, denied, 380 U. S. 914 (1965).



34

A school board under injunction to desegregate does not 
comply by assigning pupils according to zone lines which 
reinforce rather than disestablish traditionally segregated 
schools. If the contrary were true, then, as the Fourth 
Circuit said in invalidating Prince Edward County’s tui­
tion grant plan as a scheme to evade school integration, 
appellees would “have indeed accomplished a remarkable 
feat, stultifying a decade of judicial effort to bring about 
compliance with Brown v. Board of Education. But the 
label applied to these . . . .  schools cannot blind courts, or 
anyone else, to the realities.” Griffin v. Board of Super­
visors, 339 F. 2d 486 (4th Cir. 1964).



35

II.

Actions by City and County Officials to Effectively 
Remove Virtually All Negroes From White School Zones 
Do Not Relieve the Board of Its Constitutional Obliga- 
tin to Desegregate the Schools.

Despite the Board’s efforts to construct its zones to 
contain pupils of one race, a substantial number of Negro 
families lived in four areas located north of the Illinois 
Central Railroad tracks as of March, 1964, when this suit 
was filed. Two groups lived just north of the tracks on 
East Second Street; a third group lived near the County 
Jail and a fourth resided in a section just north of the 
City boundary in an area named Tuxedo Park. Due to 
intervening action by city officials of Clarksdale and Coa­
homa County, none of the children of these families are 
now eligible to attend white schools. A zoning ordinance, 
enacted in July, 1964 by the City of Clarksdale, de-annexed 
the property on East Second Street where the Negroes 
lived; the City and County purchased and demolished the 
homes located near the County Jail; and the City pur­
chased and demolished the homes in Tuxedo Park, after 
annexing adjoining territories containing white residences.

While the Board denies any knowledge of the City and 
County action, and city officials maintain that the ordi­
nance was not intended to affect school desegregation, the 
testimony shows that of all the reasons given (desire to 
clear dilapidated housing, to acquire needed property and 
exclude areas where no sewage lines can be provided), the 
real reason for pushing through in a few months measures 
which had lain dormant for years was the removal of Negro 
residents from areas served by white schools. See Taylor



36

v. Board of Education of New Rochelle, 191 F. Supp. 181, 
192 (8. D. N. Y. 1961); cf. Gomillion v. Lightfool, 364 U. S. 
339 (1960).

Appellants introduced evidence that the Board attorney 
was a member of the City Planning Commission and not 
only had knowledge of the changes but had recommended 
some of them. Other school officials also conceded that they 
were aware of the zoning changes and governmental pur­
chases which effectively removed virtually all Negroes 
living in school zones serviced by white schools. Appellants 
did not, as the District Judge suggests (R. 107), introduce 
this evidence to prove a conspiracy between the school 
board and the City and County officials or to show that 
school officials had offered perjured testimony. Rather, 
they sought to show that the Board was aware of the gov­
ernmental actions, all of which directly affect their general 
obligation under the Constitution and their specific obliga­
tion under two Federal court orders to desegregate the 
schools, and passively accepted it. Appellants reject the 
Board’s contention that the matter was beyond their control. 
For example, pupils uprooted by the City and County could 
have been offered the right to attend the school in the 
zone of their former residence, thereby permitting pupils 
to cross its zone lines to obtain a desegregated education; 
as it is now, crossing of zone lines is presently required 
in order to better utilize segregated schools (R. 701, 704, 
707).

The Board’s obligation is clear. This Court has already 
indicated it would condemn school zone lines drawn to re­
flect patterns of segregation caused by housing ordinances. 
Holland v. Board of Public Instruction of Palm Beach, Fla., 
258 F. 2d 730 (5th Cir. 1958). More recently, in Powell v. 
School Board of the Oklahoma Public Schools, 219 F. Supp.



37

427 (W. D. Okla. 1963), a district court noted the strong 
connection between housing and school segregation and de­
termined that the results of past patterns of housing segre­
gation must be dealt with by the school board. The court 
stated:

The patrons of the School District had lived under a 
dual system and the children’s residential areas were 
fixed by custom, tradition, restrictive covenants and 
laws. The Negro people had been segregated so com­
pletely in their residential pattern that it was difficult 
to determine what way, method and plan and what pro­
gressive plans should be adopted and carried out in 
the future.

Two years later, in Dowell v. School Board of Oklahoma 
Public Schools, 244 F. Supp. 971, 980 (W. D. Okla. 1965), 
the court ordered the school board to take affirmative action 
to integrate the system, holding:

The validity of defendant Board’s action in rezoning 
its public schools must be judged not only in the light 
of the result (more than 90% of the system’s schools 
remained virtually all Negro or all white), but also with 
regard to the residential patterns in Oklahoma City, 
established by statute, and by restrictive covenant, and 
maintained at present by various discriminatory cus­
toms and practices which effectively limit the area 
where Negroes live to easily definable areas. To draw 
school zone lines without regard to these residential 
patterns is to continue the very segregation which 
necessitated the rezoning action, and requires judicial 
condemnation of the procedure. Yick Wo v. Hopkins, 
118 U. S. 356.



38

While speaking in a different context, Judge J. Skelly 
Wright has taken a clear position that school boards must 
consider residential segregation in order to prepare zone 
lines which are constitutionally valid.

Where state policy expressed by its several agen­
cies lends itself to, and leads toward, segregated 
schools, the responsibility of the state is plain. For 
example, where state policy with reference to hous­
ing or state encouragement of private racial cove­
nants in housing leads to residential segregation, and 
the school board uses the neighborhood plan in mak­
ing pupil assignments, the school segregation that re­
sults is clearly the responsibility of the state. Certainly 
the state will not be allowed to do in two steps what 
it may not do in one.14

It is therefore irrelevant whether appellee school officials 
were parties to creating the identifiable racial patterns 
that have existed for a long time in Clarksdale or to carry­
ing out the official actions in the Summer of 1964 that 
completed this segregation. Housing segregation exists, 
and the Board may not close its eyes to this reality and 
may not simply duplicate the segregation housing patterns 
in the schools. This in effect is what results when a Board 
faced with this problem adopts the policy as proclaimed 
by the Superintendent at the November, 1965 hearing on 
the revised plan:

The School Board is disregarding totally the racial 
characteristics of the people and is simply proposing 
these zones as being the best for the children and

14 Wright, P u b lic  School D esegrega tion: L ega l R em ed ies fo r  
D e F acto  S eg reg a tio n , 40 N. Y. U. Law Rev. 285, 295 (1965).



39

patrons of this school district, and racial considera­
tions are just simply out the window (R. 672).

The Board’s duty is not at this late date to become color­
blind, but to draw school zone lines that will create inte­
grated schools in so far as is practicable and consistent with 
sound educational practice. Dowell v. School Board of Okla­
homa City Public Schools, supra; Kier v. County School 
Board of Augusta County, 249 F. Supp. 239, 244 (W. D. 
Va. 1966).

III.

The Board’s Plan Falls Short of This Court’s Stand­
ards of Acceptable Pupil and Teacher Desegregation.

In Price v. Denison Independent School District, 348 
F. 2d 1010 (5th Cir. 1965), this Court adopted the U. S. 
Office of Education’s “Statement of Policies for School De­
segregation under Title VI of the Civil Rights Act of 
1964 (April, 1965)” as its minimum desegregation stand­
ard. In March 1966, its “Revised Statement of Policies for 
School Desegregation” was issued, which is no less relevant 
to judicial appraisal of school plans. See Bradley v. School 
Board of Richmond, 382 U. S. 103 (1965); Singleton v. Jack- 
son Municipal Separate School District, 355 F. 2d 865 (5th 
Cir. 1966).

A.

Even if the Board’s desegregation plan were capable of 
effecting meaningful compliance with Brown, the plan fails 
to meet current minimum standards for speed. Rogers v. 
Paul, 382 U. S. 198 (1965); Singleton v. Jackson Municipal



40

Separate School District, 355 F. 2d 865 (5th Cir. 1966). 
These decisions bar denial of a desegregated education to 
any child seeking it, even though the grade such child is 
eligible to enter has not been reached in an approved de­
segregation plan. But the Board’s plan as approved by the 
court below permits only students seeking courses not of­
fered in the segregated grades to which they are assigned 
to obtain transfers to desegregated schools.

B.

The Board concedes that until the current 1965-66 school 
year, Negro teachers were paid less than white teachers with 
similar qualifications, and were hired and assigned on a 
strictly segregated basis. In addition, appellants’ educa­
tional experts testified that racial assignment of teachers 
seriously lowers educational standards and goals (R. 54S- 
50). The district court however refused to require deseg­
regation of teacher assignments because of feared con­
fusion and unrest in the school system.

This Court, for a period of time, left the scheduling of 
teacher desegregation to district judges. Compare Board 
of Public Instruction of Duval County v. Braxton, 326 F. 2d 
616 (5th Cir. 1964) with Lockett v. Board of Education of 
Musogee County, Ga., 342 F. 2d 225 (5th Cir. 1965). Now, 
the Supreme Court has indicated that delay in this matter 
may no longer be countenanced, Bradley v. School Board 
of Richmond, supra. Accordingly, this Court now requires 
school boards to “ . . . provide an adequate start toward 
elimination of race as a basis for the employment and allo­
cation of teachers, administrators, and other personnel.”



41

Singleton v. Jackson Municipal Separate School District, 
355 F. 2d 865 (5th Cir. 1966).

Prompt faculty desegregation is also required by the re­
vised school desegregation guidelines, which make each 
school system responsible for correcting the effects of all 
past discriminatory teacher assignment practices and call 
for “significant progress” toward teacher desegregation in 
the 1966-67 school year. Thus, new assignments must be 
made on a nonracial basis, “ . . . except to correct the effects 
of past discriminatory assignments.” 181.13(b). The pat­
tern of past assignments must be altered so that schools are 
not identifiable as intended for students of a particular race 
and so that faculty of a particular race are not concen­
trated in schools where students are all or preponderantly 
of that race. 181.13(d).

In view of the already discussed difficulties likely to be 
encountered in attempting to desegregate the Clarksdale 
school system by either freedom of choice or geographic 
assignment procedures, it is imperative that the Board be 
required to promptly adopt an effective faculty desegre­
gation plan. See Dowell v. School Board of Oklahoma City 
Public Schools, 244 F. Supp. 971 (W. D. Okla. 1965), on 
appeal to 10th Circuit, No. 8523; and Kier v. County School 
Board of Augusta County, 249 F. Supp. 239 (W. D. Va. 
1966).

In the Oklahoma City case, the court, adopting the recom­
mendations of educational experts retained by plaintiffs 
with the court’s approval to study the system, set a goal of 
1970 for “ . . . the same approximate percentage of non­
white teachers in each school as there now is in the sys­
tem. . . . ” The 1970 date was keyed to personnel turnover



42

figures indicating that approximately 15% of the total 
faculty is replaced each year, permitting the accomplish­
ment of faculty integration by replacements to the faculty 
as well as by transfers. 244 F. 2d at 977-78.

In the Augusta County case, the district court, noting the 
small number of Negro teachers in the system, ordered 
faculty desegregation to be completed by the 1966-67 school 
term. Referring to the Oklahoma City case, supra, the court 
said:

Insofar as possible, the percentage of Negro teachers 
in each school in the system should approximate the per­
centage of the Negro teachers in the entire system for 
the 1965-66 school session. Such a guideline can not be 
rigorously adhered to, of course, but the existence of 
some standard is necessary in order for the Court to 
evaluate the sufficiency of the steps taken by the school 
authorities pursuant to the Court’s order. 249 F. 
Supp. at 247.

The court acknowledged that the standard for teacher as­
signments is race-conscious, but justified such relief as nec­
essary to correct discrimination practiced in the past. 
Quoting from a 1963 opinion on the subject by the Attorney 
General of California, 8 Race Rel. L. Rep. 1303 (1963), the 
court held that:

Clearly, defendants may consider race in disestab­
lishing their segregated schools without violating the 
Fourteenth Amendment’s equal protection clause. The 
admonition of the first Mr. Justice Harlan in his dis­
senting opinion in Plessy v. Ferguson, 163 U. S. 537, 
559, 16 S. Ct. 1138, 41 L. Ed. 256 (1896) that “Our



43

Constitution is color-blind” was directed against the 
“separate but equal” doctrine, and its rejection in 
Brown v. Board of Education, 347 U. S. 483, 74 S. Ct. 
686, 98 L. Ed. 873, was an explicit recognition that 
separate educational facilities are inherently unequal, 
and did not convert Justice Harlan’s metaphor into 
constitutional dogma barring affirmative action to ac­
complish the purposes of the Fourteenth Amendment. 
Thus, racial classifications which effect invidious dis­
crimination are forbidden but may be upheld if deemed 
necessary to accomplish an overriding governmental 
purpose.

Recently, in Beckett v. School Board of Norfolk, Civ. No. 
2214 (E. D. Va.) where the faculty is 40% Negro, a district 
court entered a consent order on March 17, 1966, approving 
a plan submitted by the Board containing provisions for 
teacher desegregation which, in addition to recognizing its 
obligation to take all reasonable steps to eliminate existing 
racial segregation of faculty that resulted from the past 
operation of a dual school system, committed the Board 
inter alia to the following:

The Superintendent of Schools and his staff will take 
affirmative steps to solicit and encourage teachers 
presently employed in the System to accept transfers 
to schools in which the majority of the faculty members 
are of a race different from that of the teacher to be 
transferred. Such transfers will be made by the Super­
intendent and his staff in all cases in which the teachers 
are qualified and suitable, apart from race or color, for 
the positions to which they are to be transferred.



44

In filling faculty vacancies which occur prior to the 
opening of each school year, presently employed teach­
ers of the race opposite the race that is in the majority 
in the faculty at the school where the vacancy exists 
at the time of the vacancy will be preferred in filling 
such vacancy. Any such vacancy will be filled by a 
teacher whose race is the same as the race of the ma­
jority on the faculty only if no qualified and suitable 
teacher of the opposite race is available for transfer 
from within the System.

Newly employed teachers will be assigned to schools 
without regard to their race or color, provided, that if 
there is more than one newly employed teacher who is 
qualified and suitable for a particular position and the 
race of one of these teachers is different from the race 
of the majority of the teachers on the faculty where the 
vacancy exists, such teacher will be assigned to the 
vacancy in preference to one whose race is the same.15

An effective faculty desegregation plan must establish 
specific goals to be achieved by affirmative policies ad­
ministered with regard to a definite time schedule. The 
plans in the Oklahoma City, Augusta County and Norfolk 
cases, supra, meet these criteria. The Clarksdale Board, for 
valid constitutional and educational reasons, should be re­
quired to submit a faculty desegregation plan patterned 
after those reviewed above.

15 A similar plan was approved on March 30, 1966, by the district 
court in B ra d le y  v. Schoo l B o a rd  o f C ity  o f R ich m o n d , Civ. No. 
3353 (E. D. Va.) for a system in which about 50%  of the teachers 
are Negro.



45

CONCLUSION

For the foregoing reasons, appellants respectfully submit 
that the appealed portions of the district court’s judgment 
should be reversed and the case remanded with specific in­
structions to require the Board to prepare a desegregation 
plan capable of meeting its constitutional duty to operate 
a unitary, integrated school system.

Respectfully submitted,

J ack  G reen berg

J a m es  M. N abrit  III
M elv y n  Z arr

10 Columbus Circle 
New York, New York 10019

H e n r y  M . A ronson

538% N. Farish Street 
Jackson, Mississippi 39201

R. J ess  B row n

125% N. Farish Street 
Jackson, Mississippi 39201

Attorneys for Appellants

C onrad K. H arper  
Of Counsel



46

CERTIFICATE OF SERVICE

I hereby certify that on April 22, 1966, I served a copy 
of the foregoing Brief for Appellants upon Semmes 
Luckett, Esq., 121 Yazoo Avenue, Clarksdale, Mississippi 
38614, attorney for appellees, by United States air mail, 
postage prepaid.

Attorney for Appellants



i