United States v. Jefferson County Board of Education Appendix B to the Consolidated Brief on Behalf of Appellees

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 23,331
UNITED STATES OF AMERICA, 

Appellant-Intervenor,

GEORGE ROBERT BOYKINS, ET AL,

Interveners,
V s.

FAIRFIELD BOARD OF EDUCATION, 
ET A L.,

Appellees.

No. 23,335
UNITED STATES OF AMERICA, 

Appellant-Intervenor,

DORIS ELAINE BROWN, ET A L .,

Interveners,
V s.

THE BOARD OF EDUCATION OF THE 
CITY OF BESSEMER, ET A L., 

Appellees

NO. 23,345
UNITED STATES OF AMERICA,

Appellant-Intervenor,

LINDA STOUT, by her father and next 
friend, BLEVIN STOUT,

Intervener,

VS.

JEFFERSON COUNTY BOARD OF EDUCATION,
Appellees.

ALL ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR 
THE NORTHERN DISTRICT OF ALABAMA

APPENDIX B TO THE
CONSOLIDATED BRIEF ON BEHALF OF THE ABOVE APPELLEES

SUMMARY OF CHANGES IN 1966 GUIDELINES, LIMITATIONS 
IN THE CIVIL RIGHTS ACT OF 1964 WHICH PROHIBIT THEM, 
AND CONSTITUTIONAL PRINCIPLES WHICH THEY VIOLATE.



APPENDIX B

As this Court looked with favor upon the April 1965 HEW Guidelines in both appearances of Singleton and in Price and the Eighth 
Circuit gave some weight to the same Guidelines in Kemp, we present this comparison thereof with the new Guidelines issued in 
March 1966 which are the subject of the questions propounded by the Court.

In legal and constitutional effect the Guidelines are poles apart. It has taken only eleven months for the Guidelines to become so 
restrictive and oppressive that they violate every fundamental constitutional principle announced by this Court to protect students 
from arbitrary governmental action. They replace unconstitutional restrictive state action with unconstitutional restrictive 
federal administrative action. They likewise destroy fundamental constitutional rights of school boards preserved to them by 
the Tenth Amendment and unaffected by the Fourteenth Amendment. References to "pages" are to the pages in this brief.

FAR-REACHING CHANGES IN THE GUIDELINES (VIOLATING EXPRESS PROHIBITIONS IN THE CIVIL 
RIGHTS ACT OF 1964) WOULD REQUIRE THIS COURT TO OVERRULE BASIC CONSTITUTIONAL 
PRINCIPLES ANNOUNCED IN ARMSTRONG, BOSON. AVERY. GIBSON. AUGUSTUS. CALHOUN,

STELL, LOCKETT, BIVINS, PRICE AND SINGLETON

1966 GUIDELINES 1965 GUIDELINES

Elimination of Freedom of Choice Plans and Substitution 
of Compulsory Integration (Pages 88, 101 and 108)

#181,11 - "under certain conditions, a plan based on free choice V.D. 
of school may be a way to undertake desegregation. . . "  
but the Commissioner " . .  .may require the adoption 
of an alternative plan".

"Desegregation of a school system may, however, 
be initiated by a 'free choice* plan containing 
provisions that will meet the following require­
ments as to all grades covered by free choice;

#181.14 - describes certain programs and provides "free choice 
desegregation procedures normally may not be applied 
to such program s. "

None



#181.54 - recites that "the Commissioner will scrutinize with
special care the operation of voluntary plans of desegre­
gation in school systems which have adopted the free 
choice p lan .. . .  The single most substantial indication 
as to whether a free choice plan is actually working to 
eliminate the dual school system is the extent to which 
Negro or other minority group students have in fact 
transferred from segregated schools."

None

#181.54 - also provides "if a school system in these circumstances
is unable to make such a start for the 1966-1967 school year 
under a free choice plan, it will normally be required to 
adopt a different type of plan."

#181.54 - provides as to freedom of choice plans, "the Commissioner 
will review the working of the plan and will normally r e ­
quire school officials to take additional actions as a pre­
requisite to continued use of the free choice plan, even as 
an interim device" if he is not satisfied.

NOTE; See below the requirement that unless transfers equal 
arbitrary percentage increases, freedom of choice plan 
will be outlawed.

None

V .B .6 . - "The Commissioner of Education may 
from time to time redetermine the 
adequacy of any desegregation plan to 
accomplish the purposes of the Civil 
Rights Act. " This immediately follows 
the section covering plans approved by 
Court order.

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2. The 1966 Guidelines require an assignment and transfer of pupils to schools so 
as to result in a racial balance, destroying freedom of choice by the students.
(Pages 88, 92, 118)__________________________________________________________

The Courts have condemned the use of a dual system of attendance zones and separate systems of schools for the races. They 
have not held that the constitutional rights of students are violated when a reasonable and proper freedom of choice plan results 
in one integrated system which has different schools with different percentages of the races. Compulsory integration, i . e . ,  
compulsory racial balance is unconstitutional. Although the result is somewhat disguised by the use of many words, the follow­
ing provisions are material:

#181.49 - "no choice may be denied in assigning students to schools 
for any reason other than overcrowding."

V . E . 5 .  - recognizes that attendance may be "subject to 
the requirements and criteria applicable equally 
to all students without regard to race, color, or 
national origin to transfer. . . . "

#181.33 - outlaws freedom of choice under geographic attendance 
zone plans, requiring that "regardless of any previous 
attendance at another school, each student must be 
assigned to the school serving his own residence", 
with narrow exceptions.

V . C. 4 .  - "At the beginning of any school year any pupil 
attending a school outside his zone of residence 
shall have the right to transfer to and attend the 
school in his zone of residence."

#181.54 = "The Commissioner will review the working of the plan 
and will normally require school officials to take addi­
tional actions as a prerequisite to continued use of a 
free choice plan, even as an interim device . . . "  unless 
his "scheduling" is met including arbitrary percentages 
of transfers, i . e , ,  if 8-9% transfer for 1965-1966, then 
16-18% must transfer in 1966-1967; and if 4-5% trans­
fer during 1965-1966, three times that percentage must 
transfer in 1966-1967, etc .

None. As to progress in opening all grades to 
all students, V . E . 4 . a , ( 5 )  provides: "Any stu­
dent attending any grade , .  . shall have an oppor­
tunity, subject to the requirements and criteria 
applicable equally to all students without regard 
to race, color, or national origin to transfer to 
any other school in which he originally would 
have been entitled to enroll but for his race, 
color, or national origin; , . . ."

#181.54 - also provides that if there is "a substantial deviation" from 
these percentages the Commissioner "will require the school 
system to take additional steps to further desegregation."

None

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#181 .5(a) - "a school system which does not maintain any character­
istic of a dual school structure may initially demonstrate 
compliance by submitting HEW Form 4 4 1 . ” This reveals 
the actual and ultimate intent of the Guidelines.

III.D. - provides that no school system may execute HEW 
Form 441 if "There remain any other practices 
characteristic of dual or segregated school sys­
tems."

#181.32 - prohibits the maintenance of "what is essentially a dual 
school structure” - -  i . e . ,  racial imbalance.

None

#181 .66(c) - defines the term "dual school structure" as meaning 
"a system of separate school facilities for students based 
on race, color, or national origin" - -  which, if construed 
with "schools identifiable as intended for students of a par­
ticular race", means schools with racial imbalance.

VII. - "Definitions" - contains no definition of "dual
school system", thereby recognizing the judicial 
dual zoning or dual area definition.

#181.43 = "Each student must be required to exercise the free choice V . D. l  
of schools once annually. ”

- "No pupil shall be assigned, reassigned or trans­
ferred without being given once annually, at an ap= 
propriate time, an adequate prior opportunity to 
make an effective choice of school.

#181.45 - If a student fails or forgets to deliver his choice within 
the period fixed "he must be assigned to the school 
nearest his home where space is available."

V.D.4.C.  - limited to initial assignment.

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3. In the face of a prohibition to the contrary contained in the Act, the 1966 
Guidelines require transportation of pupils to achieve racial balance.
(Pages 92, 119)_______________________________________________________

Although Section 407(a) of the Act expressly provides that nothing therein "shall empower any official or court of the United 
States to issue any order seeking to achieve a racial balance in any school by requiring that transportation of pupils from one 
school to another or one school district to another in order to achieve such racial balance", the following provisions appear 
in the 1966 Guidelines, which are calculated to bring about that result;

#181.51 - "no factor such as . . .  the operation of the school trans­
portation system or any other factor except overcrowding, 
may limit or affect the assignment of students to schools 
on the basis of their choices."

None. See V.B.2 .  "If bussing or other trans­
portation is furnished or sponsored by the school 
or school system, the plan shall call for its pro­
vision without discrimination based on race, 
color, or national origin. "

#181.51 - "Where transportation is generally provided, busses must 
be routed to the maximum extent feasible so as to serve 
each student choosing any school in the system ."

#181.14 - "routing and scheduling of transportation must be planned 
on the basis of such factors as economy and efficiency, 
and may not operate to impede desegregation. Routes 
and schedules must be changed to the extent necessary 
to comply with this provision."

None

None

#181.49 - "no choice may be denied in assigning students to schools 
for any reason other than overcrowding."

None

- B-5



4 . Racial balance of the teaching and professional staff is required without 
relation to the desegregation of each school, (Pages 90 and 122)

#181.13 - "each school system is responsible for correcting the 
effects of all past discriminatory practices in the a s ­
signment of teachers and other professional staff", 
i . e . ,  assignments to attain a racial balance.

V . B . l , - provides for desegregation of faculty and staff 
and that "Steps shall also be taken toward the 
elimination of segregation of teaching and staff 
personnel in the schools resulting from prior 
assignments based on race, color, or national 
origin."

#181.54 - "in districts with a sizeable percentage of Negroes or a 
minority group of students . . .  where schools are identi- 
fiable on the basis of staff composition as intended for 
students of a particular race, color or national origin, 
such steps must in all cases, include substantial 
further changes in staffing patterns to eliminate such 
identifiability" - -  i . e , ,  require racial balance.

V . E . 4 . a . ( 6 )  - During the 1965-1966 school year "Steps 
will be taken for the desegregation of faculty, 
at least including such actions as joint faculty 
meetings and joint inservice program s."

#1 8 1 .13(d) - requires assignment of "a significant portion of the pro­
fessional staff of each race to particular schools in the sys­
tem where their race is in a minority"; also that "the pat­
tern of assignment of teachers and other professional staff 
among the various schools of a system may not be such that 
the schools are identifiable as intended for students of a par- 
ticular race, color, or national origin, or such that teachers 
or other professional staff of a particular race are concen­
trated in those schools where all, or the majority, of the 
students, are of that race", i . e . ,  requires racial balance.

None

#181.13(c) - "Teachers and other professional staff may not be dismissed, 
demoted, or passed over for retention, promotion, or rehiring, 
on the ground of race, color, or national origin.

None

- B-6 -



#181.14

5 . In the face of a prohibition to the contrary contained in the Act, the 1966 Guidelines 
require desegregation of programs or activities which do not receive any federal 
financial assistance . (Pages 93 and 110)__________________________________________

requires desegregation not only of facilities, activities and V.B.2 .  - Equivalent provision, 
programs conducted or sponsored by schools, but also if 
they are "affiliated with" the schools .

#181 .14(b)(3) - specifically includes "parent-teacher meetings" and 
is clearly intended to include any activities affiliated with 
or related to schools even though they are conducted by 
persons not enrolled in these schools and even though stu­
dents in the schools do not attend the sam e.

None

B-7



PROVISIONS OF THE CIVIL RIGHTS ACT OF 1964 WHICH 
PROHIBIT ABOVE REQUIREMENTS OF THE 1966 GUIDELINES

(/Sectio n  401(b): " . . .  but 'desegregation' shall not mean the assignment of students to
public schools in order to overcome racial im balance."

/5
L / u

ection 604: " . . .  nothing contained in this Title shall be construed to authorize action
under this Title by any Department or Agency with respect to any employment practice 
of any em ployer."

Section 701(b) of Title VII - Equal Erhployment Opportunity - specifically excepts:
" . . .  a state or political subdivision thereof."

Section 407(a): " . . .  provided that nothing herein shall empower any official or court
of the United States to issue any order seeking to achieve a racial balance in any school 
by requiring the transportation of pupils from one school to another or one school dis­
trict to another in order to achieve such racial balance. . . . "

Section 407(a): " . . .  provided that nothing herein shall . .  . enlarge the existing power
of the court to insure compliance with constitutional standards".

Section 410: "Nothing in this title shall prohibit classification and assignment for reasons 
other than race, color, religion, or national o rig in ".

Section 601: Limits the application of Title VI to "any program or activity receiving 
federal financial assistance".

Section 602: Limits action under Title VI to "the particular program, or part thereof 
in which non-compliance has been found". It also requires that all rules, regulations 
and orders "shall be consistent with achievement of the objectives of the statute authoriz­
ing the financial assistance" and shall be "approved by the President".

- B-8 -



CONSTITUTIONAL PRINCIPLES OVERRULED IF 1966 GUIDELINES 
ARE JUDICIALLY ENFORCED OR OTHERWISE RECOGNIZED

Avery (supported by Armstrong, Boson, page 102):

"The Constitution as construed in the School Segregation Cases . . .  forbids any state 
action requiring segregation of children in public schools solely on account of race; 
it does not, however, require actual integration of the ra c e s ."

Singleton (supported by Bivins, Stell, Gaines, Gibson, Augustus, Calhoun and Lockett, 
pages 108, 120):

"We approve the use of a freedom of choice plan provided it is within the limits 
of the teaching of the Stell and Gaines c as es . "

Boson (supported by Dodson, Calhoun, Goss and others, page 117):

"But, as this court was at pains to say in Boson v. Rippy, a school board has 
ample authority to transfer pupils from school to school upon any reasonable 
and legitimate basis without regard to race or color . "

Brown (supported by many cases, page 112)

" ’Full implementation of these constitutional principles may require solution of 
varied local school problem s. School authorities have the primary responsibility 
for elucidating, assessing, and solving these problems; courts will have to con­
sider whether the action of school authorities constitutes good faith implementa­
tion of the governing constitutional principles."

Stell (supported by Calhoun, Goss, Watson, Lockett, Price and Brown, page 115)

"To that end, the courts may consider problems related to administration, 
arising from the physical condition of the school plant, the school transporta­
tion system, personnel, revision of school districts and attendance areas into 
compact units to achieve a system of determining admission to the public schools 
on a nonracial b a sis . . . ."

Augustus (supported by Bradley, Paul, Singleton and Lockett, page 122) saying as to 
desegregation of faculty:

"The district court may well decide to postpone the consideration and determination 
of that question until the desegregation of the pupils has either been accomplished 
or has made substantial p rog ress."

B-9



Singleton (supported by Kemp and others, page 126);

"It is for the courts and the courts alone, to determine when the operation of 
a school system violates rights guaranteed by the constitution."

Respectfully submitted.

Maurice Bishop
George Rogers
Reid B. Barnes
William G. Somerville, J r .
J . Howard McEniry

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing brief and argument has been 
served upon attorneys for appellant and attorneys for appellant-intervenor, by United

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