Henry v. Clarksdale Municipal Separate School District Brief for Appellants
Public Court Documents
April 22, 1966

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Brief Collection, LDF Court Filings. Henry v. Clarksdale Municipal Separate School District Brief for Appellants, 1966. 4a1cc20b-b89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/46d034d7-1796-412a-9553-bf8855374fb3/henry-v-clarksdale-municipal-separate-school-district-brief-for-appellants. Accessed April 19, 2025.
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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