Davis v. Mobile County Board of School Commissioners Supplemental and Second Supplemental Record on Appeal

Public Court Documents
January 1, 1963

Davis v. Mobile County Board of School Commissioners Supplemental and Second Supplemental Record on Appeal preview

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  • Brief Collection, LDF Court Filings. Davis v. Mobile County Board of School Commissioners Supplemental and Second Supplemental Record on Appeal, 1963. 06d7fb03-af9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/4b13eafc-cd1d-4b90-bbdc-204d33f4dfa2/davis-v-mobile-county-board-of-school-commissioners-supplemental-and-second-supplemental-record-on-appeal. Accessed April 29, 2025.

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    IN THE

UNITED STATES

COURT OF APPEALS
FOR THE FIFTH C I RC UI T  

No. 2 0 6 5 7

Birdie Mae Davis, et al., 

vs.

Board of School Commissioners 
of Mobile County, et al.,

Appellants

Appellees

SUPPLEMENTAL AND SECOND SUPPLEM ENTAL 
RECORD ON A PPE A L

Jack Greenberg 
Constance Baker Motley 
Derrick A. Bell, Jr.
Suite 2030 
10 Columbus C ircle 
New York 11, New York

Vernon Z. Crawford 
578 Davis Avenue 
Mobile, Alabama

Clarence E. Moses 
1050-1/2 Davis Avenue 
Mobile, Alabama

Attorneys for Appellants

Palmer Pillans 
George F. Wood
A. L. Philips, Jr.
510 Van Antwerp Building 
Mobile, Alabama

Joseph F. Johnson 
9th Floor
F irst National Bank Building 
Birmingham 3, Alabama

Attorneys for Appellees

Appeal from the United States D istrict Court 
for the Southern D istrict of Alabama 

Southern Division

Mimeographed Record



I N D E X

Supplemental Record on Appeal
Page

Supplemental A f f i d a v i t  o f  Superintendent
Cranford H. Burns 43

Findings and Opinion on Motion fo r
Pre lim inary  In junction  47

Order Denying Pre lim inary In junction  and
S e tt in g  Case f o r  T r ia l  56

N otice  o f  Appeal 58

Second Supplemental Record on Appeal 

Judgment and Order Under Mandate
Dated July 9, 19^3 60

Order Amending Judgment and Order Entered
July 11, 1963 82

Desegregation Plan F i led  by Board o f
School Commissioners 63

P l a i n t i f f s '  Objections to Desegregation Plan 73

Transcr ip t  o f  Proceedings on August 21, 1963 77

Order o f  Court o f  August 21, 1963 97

Order Approving Board Plan as M odified 98

N otice  o f  Appeal 10°

Designation o f  Record 102



SUPPLEMENTAL RECORD ON APPEAL



BIRDIE MAE DAVIS, e t a ls ,  )

P l a i n t i f f s  CIVIL ACTION
)

VS
NO. 3003-63

BOARD OF SCHOOL COMMISSIONERS )
OF MOBILE COUNTY, et a ls ,

Defendants )

STATE OF ALABAMA)

COUNTY OF MOBILE)

Persona lly  appeared be fo re  me, the undersigned 

au thority  in  and f o r  sa id county in  said s ta te ,  Cranford H. 

Burns, who, being by me f i r s t  duly sworn, on oath deposes 

and says:

I  wish to supplement my a f f i d a v i t  o f  A p r i l  24, 1963 

in  the fo l lo w in g  p a r t ic u la r s :

There are p resen t ly  89 schools in  the Mobile County 

system w ith a pup il load, in  1962- 63, o f  approximately 

75,000 p u p ils .

The pup il load in the Mobile County School system 

has doubled since the end o f  World War I I .  Since 1940, 42;=» 

o f  the increase in  the number o f  elementary and high school 

students in  the S tate  o f  Alabama has occurred in Mobile 

County. As a re su lt  o f  th is  tremendous growth, our bu ild in g  

program, l o c a l l y ,  f e l l  f i v e  years behind at one p o in t .  I t

IN  THE UNITED STATES D ISTR IC T  COURT
FOR THE SOUTHERN D ISTR IC T  OF ALABAMA

SOUTHERN D IV IS IO N

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was necessary to re so r t  to "double" o r  "h a l f -d a y "  sessions 

and during one per iod  more than 14,000 pupils  were attend ing 

school on ly a h a l f  day.

The average annual in crease  in  school attendance has 

been 3>000, which, at 30 pup ils  to the room, would requ ire  

100 new classrooms each year to  accommodate the in c rease , 

without regard to the f i v e  yea r  d e f i c i t .

14 new schoo ls , w ith  more than 300 rooms, are now 

in the construction  o r  planning s tage , designed f o r  occupancy 

in September o f 1964. H a lf day sessions must continue through 

the 1963-64 school yea r  but i t  i s  a n tic ip a ted  that these can 

be com pletely  e lim inated  w ith  the beginning o f  the 1964-65 

school term.

There were more than 2370 teachers in  the system in 

1962-63 and some 105 non-teaching p r in c ip a ls  and a ss is ta n ts .  

More than 200 school busses are required to transport those 

pupils  who requ ire  tran sporta t ion  to  t h e i r  schools .

Under normal con d it ion s , the planning fo r  any p a r t i ­

cu la r  school year commences in  March preced ing that year and 

continues u n t i l  the actual opening o f  the schools . This 

planning i s  based upon a very c a re fu l  estim ate o f  pup il load 

in  each school d i s t r i c t ,  making use o f  formulae evolved from 

past experience and a knowledge o f  the pup il population in 

the attendance areas. When these estim ates have been p re ­

pared, toge th er  w ith  a breakdown in to  t h e i r  components, c la ss  

by c la s s ,  and school by school, they are furnished to  the

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Ass is tan t Superintendents in  charge o f  the various Adminis­

t r a t i v e  D iv is io n ,  in c lud ing  Teacher Personnel; Pupil Person­

n e l;  Curriculum; Business O f f i c e ;  T ransporta tion , e t c .  Based 

upon these ca re fu l  es tim ates, an o rd e r ly  curriculum is  a r­

ranged; pup ils  are assigned to in d iv id u a l c la sses ; supplies 

are ordered; teachers are assigned; and school busses are 

a l lo ca ted  and routed.

Plans fo r  the 1963-64 session have a lready been 

evo lved , most o f  the necessary adm in is tra t ive  d e ta i l s  have 

been accomplished, and committments in  a l l  aspects o f  the 

Adm in istration  have been made, a l l  based upon a balanced 

teacher-pup il r a t i o .

P re-schoo l r e g is t r a t io n  o f  those pupils  who w i l l  

make up the F ir s t  Grade in  the 1963-64 school year took p lace  

some weeks ago, c lasses  have been made up and teachers as­

signed, based thereon.

Any major r e -a l lo c a t io n  o f  pupils  f o r  the school 

year 1963-64 would, in  my op in ion , be extremely d i f f i c u l t  and 

d is ru p t iv e  o f  e f f e c t i v e  educational goa ls  and procedures. Not 

only would there be the n ecess ity  f o r  a complete re-p lann ing o f  

the e n t ir e  school yea r  but such re-p lann ing would have to be 

done without knowledge o f  pup il d is t r ib u t io n  such as has gone 

in to  our annual planning based upon past exper ience . Teach­

ing personnel, a lready assigned and lo ca ted , would requ ire  

reassignment. In th is  area, p a r t ic u la r ly ,  the problems would 

be g rea t .  The s h i f t in g  o f  teaching personnel i s  not simple.

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I t  requ ires  in d iv id u a l cons idera tion  o f  each teacher and an 

appra isa l o f  the character  o f  the community to  be served , as 

w e l l  as in d iv id u a l d e s ire s  and p re ferences  o f  the teachers 

themselves; advance knowledge o f  number and type o f  c lasses  

to be o f fe r e d  and o ther  fa c to r s .

The 1962-63 school year has ended and the teach ing 

personnel have g en e ra l ly  sca tte red , some in  summer schools , 

some on vacation , others in  various endeavors and are not 

a va i la b le  g en e ra l ly  to render advice and counsel in  connec­

t ion  w ith  an undertaking o f  the magnitude o f  d esegrega t ion .

In desegrega t ing  our schools the s e le c t io n  o f  teach­

ers fo r  assignment to those schools having both white and 

negro ch ild ren  would be a m atter requ ir in g  extreme care f o l ­

lowing personal in te rv ie w s .  The d ) I l i t y  and the w i l l in gn ess  

o f  teachers to be so assigned would have to be determined In 

each instance .

While the evo lu t ion  o f  a plan f o r  desegregation  would 

requ ire  considerab le  time, the adm in is tra t ive  d e ta i l s  neces­

sary In pu tt in g  such plan in to  e f f e c t  would take even longer.

/s/ Cranford H. Burns______
Cranford H. Burns

-4 6 -



IN  THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION

BIRDIE MAE DAVIS, e t  a l .  )

P l a i n t i f f s ,  ) CIVIL ACTION

Vs. ) NO. 3003-63

BOARD OF SCHOOL COMMISSIONERS ) FINDINGS AND OPINION
OF MOBILE COUNTY, et a l .  ON MOTION FOR

) PRELIMINARY INJUNCTION
Defendants.

)

This cause was submitted on p l a i n t i f f s ’ motion fo r  

a p re lim inary  in ju n c t ion , d i r e c t in g  defendants to present 

f o r  approval o f  the court, w ith in  a period  to be determined 

by the court, a plan f o r  the reo rgan iza t ion  o f  the e n t ir e  

school system o f  Mobile County, Alabama, in to  a un ita ry  non- 

r a c ia l  system.

The motion purported ly  sought r e l i e f  in  th e  a lte rn a ­

t i v e ,  but the f i r s t  a l t e r n a t iv e  prayed permanent r e l i e f  "upon 

the conclusion o f  the t r i a l "  and hence d id  not seek in te r lo c u ­

to ry  r e l i e f .

The complaint and motion in  th is  case were f i l e d  on 

March 27, 1963. On A p r i l  23, p l a i n t i f f s  urged the granting  

o f  the motion and suggested, in  open court, without previous 

n o t ic e ,  t h i r t y  days as the period  o f  time to  be determined by 

the court in  which defendants should be ordered to submit a 

plan fo r  the reo rgan iza t ion  o f  the Mobile County School 

system. The court took the motion under submission on that

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date , and d ire c ted  the p a r t ie s  to  f i l e  b r ie fs  w ith in  d e s ig ­

nated tim es. The c o u r t 's  action  in  th is  m atter was appealed 

by p l a i n t i f f s ,  and the appeal was dismissed by the Court o f  

Appeals by o rd e r  dated May 24, 1963.

For the reasons s ta ted  below, the motion i s  denied 

as to  the s p e c i f i c  r e l i e f  requested, req u ir in g  the presen ta­

t ion  o f  a plan w ith in  t h i r t y  days. However, an in te r lo c u to r y  

order w i l l  be entered which w i l l  assure the p ro tec t io n  o f  the 

r ig h ts  o f  the p l a i n t i f f s .

Based upon the a f f i d a v i t s  f i l e d  by p l a i n t i f f s  and 

respondents and on fa c ts  o f  which the court takes ju d ic ia l  

n o t ic e ,  the court makes the fo l lo w in g  f in d in gs  o f  f a c t .

FINDINGS OF FACT

1. The Mobile County School System Is  administered 

by the Board o f  School Commissioners o f  Mobile County, a 

five-man Board. The p ro fe s s io n a l s t a f f  i s  under the d ir e c t io n  

o f  a County Superintendent o f  Education and h is  seve ra l As­

s is ta n t  Superintendents, each being in  charge o f  a p a r t ic u la r  

phase o f  Board a c t i v i t i e s .

2. During the school year 1962- 63, there  were 89 

schools in  the Mobile County School system, accommodating a 

pupil load o f  approximately 73^000 p u p ils .  More than 2,370 

teachers are employed In add it ion  to 105 non-teaching school 

p r in c ip a ls  and a ss is ta n ts .  More than 200 public  school buses 

are operated by the Board in  the transporta t ion  o f  school 

ch ildren  in  Mobile County.
-4 8 -



3. The schools o f  Mobile County are , and have been 

since the end o f  World War I I ,  s e r io u s ly  overcrowded. During 

th is  pe r iod , the pu p il load has doubled. Forty-two percent 

o f  the in crease  in  the number o f  pup ils  in  the S ta te  o f  

Alabama since 1940, has occurred in  Mobile County. The av­

erage annual pup il in crease  has been 3^000.

4. As a re s u lt  o f  the rapid growth o f  the school 

popu lation , a b u ild in g  program s u f f i c i e n t  to  house p roper ly  

the students f e l l  f i v e  years behind. As a consequence, i t  

was necessary to  in s t i t u t e  h a lf-d ay  o r  "double" sess ions, 

the number o f  pupils  in double sessions amounting to as many 

as 14,000 at one time.

5. In an e f f o r t  to accommodate the pup il load , the 

School Board has engaged in  an acce lera ted  bu ild in g  program, 

and as a re su lt  the phys ica l f a c i l i t i e s  are g radua lly  o v e r ­

tak ing the d e f i c i t .  The adm in is tra t ive  s t a f f  o f  the School 

Board has employed ca re fu l  planning to  u t i l i z e  the space 

a va i la b le ,  and throughout th is  period  has resorted  to  the 

transporta t ion  o f  pup ils  from crowded schools nearer th e i r  

homes to  more d is ta n t  schools where le s s  crowded conditions 

ex is ted . Many wooden po rtab le  classrooms have been construc­

ted and u t i l i z e d  at the more crowded schoo ls . As a resu lt  o f  

these e f f o r t s ,  the number o f  pu p ils  in  double sessions has 

gradually  decreased over  the years .

6. Fourteen new schools , w ith more than three 

hundred rooms, are under construction  o r  are about to be

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commenced, designed f o r  occupancy in  September o f  1964. At 

that time, f o r  the f i r s t  time s ince World War I I ,  i t  i s  prob­

able that no student w ith in  the system w i l l  be in  double­

session c la ss es .  However, double sessions must continue 

through the school year 1963- 64.

7 . In normal years , in  the Mobile County School 

System, the planning f o r  a school term commences in  March 

be fo re  the term beginning in  September. The Board o f  School 

Commissioners o f  Mobile County fo llow ed  the stated p ra c t ic e ,  

and the planning fo r  the session 1963-64 began in  March o f  

1963.

8. Planning by the School Board s t a f f  cons is ts  o f  

an ascertainment o f  pup il load based upon ca re fu l  estimates 

and formulae d e r ived  from the experience o f  past yea rs . The 

gross pup il load f o r  each school i s  then Troken down in to  

c la ss -b y -c la ss  f ig u res  which are furnished to the Ass is tan t 

Superintendents. Based upon these f ig u re s ,  c lasses  are o r ­

ganized and pu p ils  assigned th ere to ; the curriculum is  estab­

l ish ed  fo r  each school; necessary supplies are determined 

and ordered; class-room teachers are assigned, in v o lv in g  in 

many cases in d iv id u a l t ra n s fe rs ;  and school busses are a l ­

located  and routed.

9. The r e g is t r a t io n  o f  the f i r s t - g r a d e  pup ils  fo r  

the term 1963-64 was accomplished be fo re  the end o f  the la s t  

preceding school term. Each re g is t ra n t  was placed in  a 

c la ss , and teacher assignments made,

-5 0 -



10. S u bs ta n t ia l ly  a l l  o f  the planning f o r  the 1963- 

64 school session has a lready taken p lace , and most o f  the 

necessary adm in is tra t ive  d e ta i l s  have been accomplished. 

Teachers and the adm in is tra t ive  personnel o f  the various 

schools have la r g e ly  departed the area f o r  a d d it ion a l p ro ­

fe s s io n a l schoo ling , o r  are on vaca t ion , o r  in  o ther  summer 

employment.

11. Any major r e -a l lo c a t io n  o f  p u p ils ,  as would be 

requ ired in  a genera l desegregation  process, would requ ire  

the abandonment o f  planning a lready accomplished and the 

evo lv in g  o f  new p lans. Such planning would be more d i f f i c u l t  

o f  accomplishment than a normal plan in  that the adm inistra­

t i v e  personnel would be without knowledge o f  pu p il d is t r ib u ­

t io n ,  and the formulae evolved in  normal years would be in ­

appropria te . Many adm in is tra t ive  d e ta i l s  a lready accom­

p lished  would requ ire  c a n c e l la t io n .  I t  would be necessary 

that a dm in is tra t ive  and teach ing personnel be a v a i la b le  f o r  

consu lta tion  and study o f  the problems p e cu l ia r  to each o f  

the schools in vo lv ed . Many o f  these personnel are u n ava il­

ab le .

12. Teaching personnel would have to be re-ass igned 

in many instances. In the realm o f  teacher assignment and 

t ra n s fe r ,  many human d i f f i c u l t i e s  e x is t .  Consideration o f  

community needs must be co-ord inated  w ith  consideration  o f  

in d iv id u a l teacher q u a l i f i c a t io n s  and p e rs o n a l i t y .  I t  would 

be necessary to a scerta in  the q u a l i f ic a t io n s  o f  each teacher

-5 1 -



to be assigned to desegregated schools .

13- By reason o f  l im ited  ph ys ica l f a c i l i t i e s ,  p e r­

sonnel problems, and a dm in is tra t ive  commitments, i t  i s  not 

now, nor has i t  been s ince the hearing o f  the motion, reason­

ably p o ss ib le  to reorgan ize  the school system o f  Mobile 

County w ith in  such time as to a f f e c t  the school year 1963- 64,

14. The app lica t ion s  by the in d iv id u a l student 

p l a i n t i f f s  f o r  t ra n s fe r  to Baker High School during January 

1963, were denied f o r  v a l id  adm in is tra t ive  reasons.

OPINION

Under the circumstances d is c losed  by the f in d ings  o f  

fa c t ,  i t  i s  c le a r  that the motion f o r  in te r lo c u to ry  r e l i e f  

cannot be granted as a p r a c t ic a l  matter, independent o f  o ther 

cons idera t ions . The ra d ica l  r e v is io n  o f  school attendance 

areas and o ther fa r -reach in g  adm in is tra t ive  changes in  the 

c ity -cou n ty  school system contemplated by the motion, simply 

cannot be managed w ith in  the time a v a i la b le .  I t  i s  very 

doubtfu l that i t  could have been managed w ith in  a period  o f  

four to s ix  months, even I f  a l l  teachers and o ther  adminis­

t r a t i v e  personnel were a va i la b le  f o r  the e n t ir e  time, which 

they are not. I t  i s  c e r ta in  that no such order could now 

be made e f f e c t i v e  in  the absence o f  every element which would 

be e s s e n t ia l  to  i t s  success-~tlme, peop le , and, in  a l l  proba­

b i l i t y ,  money.

No plan c r  basis f o r  genera l rearrangement o f  an

-5 2 -



e n t ir e  l o c a l  school system should be required by th is  o r  any 

court w ithout a f fo rd in g  to both the school a u th o r it ie s  and 

the pub lic  ample time fo r  cons idera tion  and d iscuss ion  o f  

a l t e rn a t iv e s .  The a rb it r a ry ,  hasty, and premature im position  

o f  a plan would d e fea t  the intended purpose and would c rea te  

confusion, and im pair the educational process f o r  a l l  p u p ils ,

That i t  i s  im possib le to p red ic t  what s p e c i f i c  plan 

would be requ ired upon the f in a l  outcome o f  th is  case, i s  

made p la in  by the d ec is ion  o f  Judge Lynne f o r  the Northern 

D is t r i c t  o f  Alabama in  Armstrong v. Bi rmingham Board o f  Edu­

c a t io n . That dec is ion  was f i l e d  on May 28, 1963, a f t e r  the 

submission o f  th is  motion. I t  holds, fo l lo w in g  the dec is ion  

upholding the v a l id i t y  o f  the Alabama school placement and 

re la ted  laws by the Supreme Court o f  the United S tates In 

Shuttlesworth v . Birmingham Board o f  Education, 358 U.S. 101 

(1958), that the p r in c ip le  o f  the Brown case can be f a i r l y  

and adequately applied  by the school a u th o r it ie s  through the 

processing o f  app lica t ion s  pursuant to the S tate  laws, and 

that any den ia l o f  c o n s t itu t io n a l  r ig h ts  in  the handling o f  

such a p p lica t ion s  can be corrected  by the D is t r i c t  Court on 

motion o r  by o ther  proper proceeding.

Although the Armstrong dec is ion  would not n ecessa r i­

ly  be c o n tr o l l in g  here a f t e r  f in a l  hearing, i t  does furn ish  

a sound and appropriate  basis fo r  r e je c t in g  the notion that 

the sweeping reo rgan iza t ion  proposed by the motion i s  now 

necessary f o r  p l a i n t i f f s '  p ro te c t io n .

~53



The F i f t h  C ircu it  Court o f  Appeals in  i t s  per curiam

opinio:-, in  th is  ease,, handed down or. May 24, 1963, had th is  

to says "The Supreme Court in  the second Brown case, 1955* 

349 U.S. 294, 75 S .C t. 753* 99 L.Ed. IO83, and in  Cooper v. 

Aaron, 1958, 358 U.S. 1, 78 S .C t. 1401, 2 L .B l .  2d 5* w ise ly  

l e f t  an area o f  d is c r e t io n  in  the desegregation  process in  

the D is t r i c t  Courts, f e e l in g  that they were c lo se  to the 

lo c a l  problems, and to school o f f i c i a l s ,  and the ch ild ren  

in v o lv e d ."

In l in e  w ith  th is ,  I  f e e l  compelled to s ta te  here 

that th is  court ordered the desegregation  o f  the municipal 

g o l f  course in Mobile on the 13th day o f  March 1961. That 

case had been held under advisement f o r  fourteen  months.

The op in ion was w r it ten  long p r io r  to i t s  r e le a s e .  The time 

o f  r e lea se  was chosen by the court as being opportune, and 

ev id en t ly  i t  was. There has been no in c iden t on the g o l f  

course s ince i t s  in te g ra t io n .

This court took under submission on July 25* 1961, 

motions to dismiss in  the desegregation  case in v o lv in g  the 

f a c i l i t i e s  o f  the Mobile Municipal A irp o r t .  On October 3* 

1981, the motions were denied. The case i s  s t i l l  pending, 

but w i l l  be dismissed as moot. The A irp o r t  f a c i l i t i e s  have 

long s ince been in teg ra ted .  The court, c lo se  to the commun­

i t y  and i t s  problems, b e l ie v ed  that th is  would come about 

v o lu n ta r i ly  and without the n ecess ity  o f  ju d ic ia l  enforcement. 

Relying upon th is  b e l i e f  proved p ro v id e n t ia l .  There has not

-5 4 -



been the f i r s t  in c id en t .

There i s  now pending in  th is  court a case fo r  the 

desegregation  o f  the C ity  Bus Lines f o r  the C ity  o f  Mobile. 

The C ity  Bus Lines have long since been in te g ra ted .  There 

have been no in c id en ts ,  though the court has never ruled on 

th is  case. This case, at the appropriate  tim e, w i l l  a lso  

very l i k e l y  be dismissed as moot, though there i s  one c i t y  

ordinance which must e i th e r  be repealed o r  be s tr ick en  down 

by the court.

The l i b r a r i e s  in  the C ity  o f  Mbbile have long s ince 

been in te g ra ted ,  though no case was ever  f i l e d  f o r  t h e i r  

in te g ra t io n .  Many drugstore lunch counters in  Mobile are 

in teg ra ted , and many ch a in -s to re  lunch counters have been 

in teg ra ted , though no su its  have been f i l e d .

Mobile i s  perhaps the most desegregated c i t y  in  the 

South, w ith  no unfortunate in c id en ts .  I f  and when the appel­

la t e  courts are c a l le d  upon to pass on the procedure which 

the D is t r i c t  Court here o u t l in e s ,  i s  i t  too much to ask that 

they be mindful o f  that "a rea  o f  d is c re t io n  in  the desegre­

gation  process in  the D is t r i c t  Courts," l e f t  by the Supreme 

Court in  the second Brown case, and approved as wise by the 

Court o f  Appeals f o r  th is  C ircu it  in the ins tan t case? I f  

so, th is  court has every reason to b e l ie v e  that the mandate 

o f  the court w i l l  be honestly , consc ien t iou s ly , and f a i r l y  

ca rr ied  out w ith  the le a s t  p o ss ib le ,  i f  not complete absence 

o f ,  unfortunate in c id en ts .

- 5 5 -



The specific relief prayed for in the motion will 
be denied. The case will be set for trial on the 14th day 
of November 1963. Consideration of the motion to dismiss, 
filed by the defendants, will be reserved until the trial 
of the cause. Defendants will be granted twenty days from 
the date of this order to file an answer.

In addition to any other relevant evidence which 
defendants may choose to offer, they will be directed to pre­
pare and present at the trial a specific plan for the opera­
tion of the schools of Mobile County on a racially non- 
discriminatory basis, consistent with the principles estab­
lished by the Supreme Court, to commence at the beginning of 
the 1964-65 school year.

Entered this the 24th day of June 1963.

s/ Daniel  H. Thomas______
D is t r i c t  Judge'

IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION

BIRDIE MAE DAVIS, et a l . 

P l a i n t i f f s ,  

v s .

BOARD OF SCHOOL COMMISSIONERS 
OF MOBILE COUNTY, et a l .

Defendants.

CIVIL ACTION

NO. 3003-63

ORDER DENYING MOTION 
FOR PRELIMINARY INJUNCTION 
AND SETTING CASE FOR TRIAL

- 56-



This cause having been taken under submission on 

A p r i l  25, 1963, on motion f o r  p re lim inary  in ju n c t ion , w ith  

leave  g iven  to f i l e  b r i e f s ;  and the court having considered 

the a f f i d a v i t s  f i l e d  pursuant to  o rder  o f  court o f  A p r i l  12, 

1963> and the b r i e f s  f i l e d  here in , and having th is  day f i l e d  

i t s  f in d in gs  o f  fa c t  w ith  op in ion , i t  is  now

ORDERED, ADJUDGED and DECREED that:

1. The motion fo r  pre lim inary  in ju nction  i s  denied.

2. This case i s  set f o r  t r i a l  at 9:30 a.m ., on 

November 14, 19&3. Consideration o f  the defendants ' motion 

to dismiss i s  reserved u n t i l  t r i a l  o f  the cause. Defendants 

sh a ll  have twenty days from the date o f  th is  order w ith in  

which to f i l e  an answer.

3. Defendants are d ire c ted  to present at the t r i a l ,  

as a part o f  t h e i r  evidence a f t e r  the completion o f  p la in ­

t i f f s ’ case, a s p e c i f i c  plan f o r  the operation  o f  the schools 

under t h e i r  au thor ity  and con tro l on a r a c ia l l y  non- 

d iscr im ina tory  bas is , consis ten t w ith the p r in c ip le s  estab­

lished  by the Supreme Court, to commence not l a t e r  than the 

beginning o f  the 1964-65 school year.

Done th is  the 24th day o f  June 1963.

/s/ DANIEL Hu THOMAS______
D is t r i c t  Judge

- 5 7 “



BIRDIE MAE DAVIS, et a l . ,

P l a i n t i f f s ,  

v s .

BOARD OF SCHOOL COMMISSIONERS 
OF MOBILE COUNTY, et a l . ,

Defendants.

NOTICE OF APPEAL

N otice  i s  hereby g iven  that B ird ie  Mae Davis, Betty  

Ann Davis and James A llen  Davis, minors, by Mrs, O l l i e  Mae 

Davis, t h e i r  mother and next fr ien d ; Joseph Benjamin Pu rifoy  

and E tta  Maurine P u r ifo y , minors, by 0. B. Pu r ifoy , t h e i r  

fa ther  and next fr ie n d ;  J u l ie t t e  E la ine Daniels , W i l l i e  

LeBaron D an ie ls , Wyman Emanuel Daniels and Carol Raymond 

Daniels, minors, by Sam Daniels , t h e i r  fa th e r  and next fr ie n d ;  

Sharon Pau le tte  M orr isse tte  and Rhonda Jean M orr is se tte ,  

minors, by Mrs. E arline  W. M orr isse tte , t h e i r  mother and next 

fr ien d ; J e r i lyn  W illiam s, W alter Daniel Rainey and Russell 

L ione l Rainey, minors, by Rev, W. D. Rainey, t h e i r  fa th e r  and 

next fr ie n d ;  Catherine Ruth Deer, minor, by J. V/. Deer, her 

fa th er  and next fr ie n d ;  Mae Wornie Bolton, minor, by Mr. &

Mrs. A lgea  Bolton , her parents and next fr ie n d s ;  John Jones, 

minor, by Mr. & Mrs. W i l l i e  Jones, h is parents and next 

fr ien ds ; L loyd Morris, minor, by Mr. & Mrs. Clarence Morris,

IN  THE UNITED STATES D ISTR IC T  COURT
FOR THE SOUTHERN D ISTR IC T  OF ALABAMA

SOUTHERN D IV IS IO N

CIVIL ACTION 

NO. 3003-63

-5 8



his parents and next fr ien d s ; and Vernon R u ff in ,  minor, by 

Mr. & Mrs. Roscoe Henderson, h is  parents and next fr ien d s ; 

appeal to the Court o f  Appeals f o r  the F i f t h  C ircu it  from

th is  Court 's  Order Denying P l a in t i f f s  Motion fo r  Pre lim inary

In ju nction .

Vernon Z. Crawford 
578 Davis Avenue 
Mobile, Alabama

S/ Clarence B> Moses ______
Clarence E. Moses 
1050|- Davis Avenue 
Mobile, Alabama

Jack Greenberg 
Constance Baker Motley 
Derrick  A. B e l l ,  Jr.
Su ite  1790 
10 Columbus C irc le  
New York 19, New York

Attorneys f o r  P l a i n t i f f s

59~



SECOND SUPPLEMENTAL RECORD ON APPEAL



IN  THE UNITED STATES D ISTR IC T  COURT
FOR THE SOUTHERN D ISTR IC T  OF ALABAMA

SOUTHERN D IV IS IO N

BIRDIE MAE DAVIS, et a l . )

P l a i n t i f f s ,  )

v s . )

BOARD OF SCHOOL COMMISSIONERS )
OF MOBILE COUNTY, et a l .

)
Defendants.

)

CIVIL ACTION

NO. 3003-63

JUDGMENT AND ORDER 
UNDER MANDATE DATED 
JULY 9, 1963.

The fo l lo w in g  judgment and order I s  entered by d i ­

rec t ion  o f  mandate dated July 9, 1963, from the United S tates  

Court o f  Appeals f o r  the F i f t h  C irc u it ,  on p l a i n t i f f s '  motion 

fo r  in ju n ct ion  req u ir in g  the Mobile County Schools to commence 

in te g ra t io n  not l a t e r  than September 1963:

"The Defendant, Board o f  School Commissioners o f  

Mobile County and the o ther in d iv id u a l Defendants (Charles E. 

McNeil, P res iden t; W illiam  B. Crane, Jack C. G a l la le e ,  Arthur 

Smith, J r . ,  and Kenneth Reed, Members; and Cranford H. Burns, 

Superin tendent), and th e i r  agents, servants , employees, suc­

cessors In o f f i c e  and those In concert w ith  them who sh a ll  

r e c e iv e  n o t ic e  o f  th is  order, be and they are hereby r e s t r a in ­

ed and enjoined from req u ir in g  and perm itt in g  segregation  o f  

the races in  any school under th e i r  superv is ion , from and 

a f t e r  such time as may be necessary to make arrangements fo r  

admission o f  ch ild ren  to such schools on a r a c ia l l y  non­

disc r im inatory basis w ith  a l l  d e l ib e ra te  speed, as required 

by the Supreme Court in  Brown v . Board o f  Education o f  Topeka,

- 60-



1955, 349 U.S. 294, 75 S .C t. 753, 99 L. Ed. 1083.

" I t  i s  fu r th er  ordered, adjudged and decreed that 

said persons be and they are hereby required to make an im­

mediate s ta r t  in  the desegregation  o f  the school o f  Mobile 

County, and that a plan be submitted to the D is t r i c t  Coui^t by 

August 1, 1963, which sh a ll  include a statement that the main­

tenance o f  separate schools f o r  the Negro and white ch ild ren  

o f  Mobile County sh a l l  be com pletely  ended w ith  respect to 

the f i r s t  grade during the school year commencing September 

1963, and w ith  respect to at le a s t  one su ccess ive ly  h igher 

a d d it ion a l grade each school year th e r e a f t e r .

"The D is t r i c t  Court may modify th is  order to d e fe r  

desegregation  o f  ru ra l schools In Mobile County u n t i l  Sept­

ember 1964, should the D is t r i c t  Court a f t e r  fu r th e r  hearing 

conclude that sp ec ia l  planning o f  adm in is tra t ive  problems fo r  

rura l schools in  the county make i t  im pract icab le  f o r  such 

schools to s ta r t  desegregation  in  September 1963."

Such ju r is d ic t io n  as remains in  o r  i s  de lega ted  to 

the D is t r i c t  Court i s  reserved f o r  the entry  o f  such o ther and 

fu rth er  orders as may be appropriate  or necessary.

Dated th is  the 11th day o f  July 1963.

S/ Daniel H. Thomas 
D is t r i c t  judge

- 61-



IN  THE UNITED STATES D ISTR IC T  COURT
FOR THE SOUTHERN D ISTR IC T  OF ALABAMA

SOUTHERN D IV IS IO N

BIRDIE MAE DAVIS, e t  a l . )

P l a i n t i f f s ,  )

v s . )

BOARD OF SCHOOL COMMISSIONERS )
OF MOBILE COUNTY, et a l .

)
Defendants.

)

CIVIL ACTION 

NO. 3003-63

ORDER AMENDING JUDGMENT 
AND ORDER ENTERED 
JULY 11, 1963

In keeping w ith the mandate o f  the United States 

Court o f  Appeals f o r  the F i f th  C irc u it ,  issued July 18, 1963, 

amending i t s  judgment and order o f  July 9, 1963, i t  i s

ORDERED, ADJUDGED AND DECREED by th is  court that the 

judgment and order o f  th is  court entered July 11, 1963, be

and i t  hereby i s  amended by d e le t in g  the fo l lo w in g  paragraph:

" I t  i s  fu r th e r  ordered, adjudged and decreed that 
said persons be and they are hereby required to make an 
immediate s ta r t  in  the desegregation  o f  the schools o f  
Mobile County, and that a plan be submitted to the D is ­
t r i c t  Court by August 1, 1963, which sh a ll  include a 
statement that the maintenance o f  separate schools fo r  
the Negro and white ch ildren  o f  Mobile County sh a ll  be 
com pletely  ended w ith respect to the f i r s t  grade during 
the school year commencing September 1963, and w ith  r e ­
spect to at le a s t  one su ccess ive ly  h igher a d d it ion a l 
grade each school year th e r e a f t e r . "

and in  l i e u  th e re o f  the fo l lo w in g  paragraph is  entered as the

judgment and order  o f  th is  court:

" I t  i s  fu r th e r  ordered, adjudged and decreed that

said persons be and they are hereby required to submit to th is

Court not l a t e r  than August 19, 1963* a Plan under which the

said defendants propose to make an immediate s ta r t  in the

62-



desegregation  o f  the schools o f  Mobile County, Alabama, which 

plan sh a l l  e f f e c t i v e l y  p rov ide  f o r  the ca rry in g  in to  e f f e c t  

not l a t e r  than the beginning o f  the school year commencing 

September 1963 and th e r e a f t e r  o f  the Alabama Pupil Placement 

Law as to a l l  school grades without r a c ia l  d is c r im in a tion , 

in c lud ing  'th e  admission o f  new pup ils  en ter in g  the f i r s t  

grade, o r  coming in to  the County f o r  the f i r s t  time, on a 

nonracia l b a s i s , ' Augustus v . Board o f  Public  In s t ru c t io n ,

5 C ir .  1962, 306 F.2d 862, 869 ( th a t  op in ion describes  such 

a plan which has been approved and i s  opera t ing  in  Pensacola, 

F l o r id a ) ."

Dated th is  the 26th day o f  July 1963,

S/ DANIEL H. THOMAS 
D is t r i c t  Judge

IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF ALABAMA, 

SOUTHERN DIVISION

BIRDIE MAE DAVIS, ET AL, 

P l a i n t i f f s  

v s .

BOARD OF SCHOOL COMMISSIONERS 
OF MOBILE COUNTY, ET AL,

Defendants

PLAN SUBMITTED BY THE BOARD OF SCHOOL 
COMMISSIONERS OF MOBILE COUNTY PURSUANT 
TO ORDER DATED JULY 11, 1963 AS AMENDED 
JULY 26, 1963

CIVIL ACTION 

NO. 3003-63

“ 63



This plan f o r  the beginning o f  desegrega tion  o f  the 

schools o f  Mobile County i s  submitted pursuant to the order 

o f  the court entered July 11, 1963 as amended July 26, 1963. 

Said order  contains a pre lim inary  in ju nction  req u ir in g  the 

beginning o f  desegrega tion  by order o f  the United States 

Court o f  Appeals f o r  the F i f t h  C ircu it  pending t r i a l  o f  the 

case and f in a l  decree .

The plan i s  presented a f t e r  f u l l  cons idera tion  by the 

Board and in  the l i g h t  o f  the fo l lo w in g  fa c ts ,  among o thers :

A. The Board is  in  the midst o f  an a cce lera ted  b u ild ­

ing program designed to remove the n ecess ity  o f  h a l f  day 

sessions and p rov ide  adequate housing fo r  more than 75,000 

pupils o f  grades 1-12 and to  cope w ith a continuing annual 

pupil load increase o f  approximately 3*000 p u p ils .

B. The r e s id e n t ia l  pa ttern  is  continually  being r e ­

shaped, causing major changes in  neighborhood pa tte rn s . These 

patterns are being fu r th e r  a lte red  by the construction  o f  new 

thoroughfares, I -65 and 1 - 10, through the community, d is p la c ­

ing between 1200 and 2000 res idences; and

C. These changes have brought about the t ra n s fe r  o f  

students w ith in  the system, the admission o f  new students, 

and the withdrawal o f  o ld  students, and have created a major 

problem fo r  the Mobile School System both w ith in  the cen tra l 

o f f i c e  o f  the Superintendent's s t a f f  and at the o f f i c e s  o f  

the re s p ec t iv e  p r in c ip a ls  o f  the 89 lo c a l  schools; and

D. The Board considers that any genera l o r  a rb itra ry  re -

-6 4 -



assignment o f  pup ils  p resen t ly  in  attendance at the 89 e x i s t ­

ing schools , according to  any r ig id  ru le  o f  prox im ity  to 

school o r  s o le ly  by request on the part o f  the parents o f  

pu p ils , would be im p rac t ica l and a d is s e r v ic e  to the system, 

to the lo c a l  schools , and to the pupils  being tran s fe rred *  

such t ra n s fe rs  would tend to  overload  some schools and lea ve  

other f a c i l i t i e s  in  le s s  than f u l l  use and at the same time 

resu lt  in  an unbalanced teacher-pu p il r a t io  throughout the 

system* and

E. The estimated enrollments f o r  September, 1963 were 

developed la s t  February and bu ild in g  and classroom capacity  

has been adjusted thereto* school supp lies , textbooks, and 

other m ater ia ls  and equipment have been a l lo ca te d  accord ing ly* 

schools have been s ta f fe d  and teachers assigned on the same 

estimated enrollments* and

F. Portab le  classrooms, h a l f  day sess ions, makeshift 

rooms, and o ther  emergency measures have been u t i l i z e d  as 

means o f  coping with the current pup il overload in  the Mobile 

Public Schools, toward the end o f  p rov id ing  sea t ing  space fo r  

the 75*000 pup ils  o f  1962-63 and an estimated a d d it ion a l 3*000 

pupils f o r  September o f  1963-64, These fa c ts  lead to  the con­

clusion that g rea t caution in  continuous, system-wide study

o f  f a c i l i t i e s  a v a i la b le ,  as w e l l  as o ther  fa c to rs  r e la t in g  to 

educational p o l i c i e s  governing admissions, t ra n s fe rs ,  and 

placement o f  pup ils  as are set fo r th  in th is  document* i s  

v i t a l l y  e s s e n t ia l  to o rd e r ly  procedures* and

- 65-



G. The problems in  connection w ith  any desegrega tion  o f  

the schools ou ts ide  the corporate  l im i t s  o f  the C ity  o f  Mobile 

are su b s ta n t ia l ly  d i f f e r e n t  from the problems in vo lved  f o r  de­

segregation  w ith in  the C ity  o f  Mobile and th is  plan i s  con­

fined  in  i t s  f i r s t  year o f  operation  to schools w ith in  the 

corporate l im i t s  o f  Mobile.

H. The number o f  pupils  both white and negro in  the 

f i r s t  grade o f  schools in the C ity  o f  Mobile f o r  the year be­

ginning in  September 1963 w i l l  be approximately 8025 and the 

number in  the 12th grade in  th e  c i t y  schools w i l l  be 3836.

I .  The school year 1963-64 begins on September 4, 1963.

J. In the judgment o f  the Board i t  i s  not p ra c t ica b le *  

on account o f  the short space o f  time remaining* to consider 

in d iv id u a l a p p lica t ion s  in  beh a lf o f  negro pup ils  fo r  ass ign ­

ment o r  t r a n s fe r  to schools which have been attended only by 

pupils  o f  the white race except app lica t ion s  p e r ta in in g  to one 

grade only* f o r  the school year commencing September 4* 1963; 

and

I t  i s  the judgment o f  the School Board that i t  i s  f o r  the 

best in t e r e s ts  o f  the pup ils  o f  a l l  grades and the o rd e r ly  and 

e f f i c i e n t  operation  o f  the Mobile School system that the 12th 

grade be se lec ted  as the grade fo r  the processing o f  such 

tran s fe rs  f o r  the school year 1963-64 and that tra n s fe rs  and 

assignments p e r ta in in g  to any o ther grade cannot as a p r a c t i ­

ca l m atter be granted f o r  the term commencing in  September* 

1963.

- 66-



The Board, th e r e fo r e ,  proposes the fo l lo w in g  p lan , pur­

suant to  the sa id o rder  o f  the Court:

(1 )  Assignments: A l l  e x is t in g  school assignments sh a l l

continue without change except when tra n s fe rs  are authorized 

by the A ss is tan t Superintendent in  Charge o f  Pupil Personnel 

under the p rov is ion s  o f  th is  p lan . Pupils  en ter in g  the f i r s t  

grade, when the plan sh a l l  have become ap p licab le  th ere to , 

and pup ils  otherw ise  en ter in g  the school system fo r  the f i r s t  

time, when the plan sh a l l  have become ap p licab le  to the grade 

en tered, sh a ll  be assigned without regard to race, as i s  pro­

vided h e re in a fte r .

(2 )  T ra n s fe rs :

( a ) Parents o r  guardians o f  pu p ils  in  grades to 

which th is  plan sh a ll have become a p p licab le ,  wish­

ing  school assignment f o r  the pup ils  o ther  than as 

p rev iou s ly  assigned o r  as p r e - r e g is t e r e d ,  may make 

ap p lica t ion  to that end between A p r i l  1 and A p r i l  

15 o f  each year fo r  t ra n s fe r  f o r  the next succeed­

ing  school year. A f t e r  1963, such per iod  sh a ll  r e ­

p lace  the normal July 31st c u t - o f f  date f o r  t ra n s fe r  

a p p lica t ion s ; o f  former years .

(B) Designation  o f  Ass is tan t Superintendent: In

the assignment, t ra n s fe r  o r  continuance o f  pupils  

to s p e c i f i c  schools , subject to the supervis ion  and 

rev iew  by the Superintendent and Board, the A s s is t ­

ant Superintendent in  charge o f  Pupil Personnel



s h a l l  be charged w ith  the r e s p o n s ib i l i t y  f o r  and 

the assignment o f  pup il admission by t r a n s fe r  and 

by o r ig in a l  enro llm ent.

(C ) T ran s fe r  Requests: A pp lica t ion s  fo r  t r a n s fe r

o r  i n i t i a l  assignment sh a l l  be in  w r i t in g  on forms 

prescr ibed  and supplied by the Board. The proper 

forms w i l l  be furnished to parents o f  pup ils  on r e ­

quest. Separate A pp lica t ion s  must be f i l e d  fo r  

each pup il f o r  whom an assignment o r  t r a n s fe r  i s  

requ ested .

(D) Pupil Placement Act C r i t e r ia  Used: For the

grade o r  grades as to  which th is  plan i s  e f f e c t i v e ,  

race o r  c o lo r  o f  the pu p il sh a l l  not be a fa c to r  

in  assignment o r  the gran ting  o f  t ra n s fe r ,  but the 

fo l lo w in g  c r i t e r i a  sh a l l  be considered in  making the 

assignment o r  g ran ting  the requested t ra n s fe r ,  along 

w ith  o ther re levan t fa c to r s :  (a )  a va i la b le  room at

the school to which t ra n s fe r  o r  assignment i s  r e ­

quested,* (b )  The a v a i l a b i l i t y  o f  transporta t ion  

f a c i l i t i e s ;  ( c )  s u i t a b i l i t y  o f  es tab lished  cu rr icu la  

f o r  p a r t ic u la r  pu p ils ; (d )  the choice and in te r e s ts  

o f  the pu p il;  ( e )  the request o r  consent o f  parents 

o r  guardians and the reasons assigned th e re fo r ;  ( f )  

the e f f e c t  o f  the admission o f  new pupils  upon es­

tab lish ed  o r  proposed academic programs; ( g )  the 

adequacy o f  the p u p i l 's  academic preparation  fo r

-6 8 -



admission to  a p a r t ic u la r  school and curriculum;

(h ) the s ch o la s t ic  aptitude and r e l a t i v e  i n t e l l i ­

gence, o r  mental energy o r  a b i l i t y  o f  the pu p il;

( i )  the p sych o lo g ica l q u a l i f i c a t io n  o f  the pup il 

f o r  the type o f  teach ing and assoc ia t ion s  in vo lved ;

( j )  the e f f e c t  o f  admission o f  the pu p il upon the 

academic progress o f  o ther  students in  a p a r t ic u la r  

school o r  f a c i l i t y  th e reo f ;  (k )  the e f f e c t  o f  ad­

mission upon p r e v a i l in g  academic standards at a 

p a r t ic u la r  school; (1 )  the p o s s ib i l i t y  o r  th rea t o f  

f r i c t i o n  or d iso rd e r  among pup ils  o r  o thers ; (m) 

the p sych o log ica l e f f e c t  upon the pup ils  in  a ttend­

ance at a p a r t ic u la r  school; (n ) the p o s s ib i l i t y  o f  

breaches o f  the peace o r  i l l  w i l l  o r  economic r e ­

t a l i a t i o n  w ith in  the community; ( o )  the home e n v ir ­

onment o f  the pu p il;  (p ) the maintenance o r  severance 

o f  es tab lished  s o c ia l  and p sych o log ica l r e la t io n ­

ships w ith  o ther pup ils  and w ith teachers , ( q) the 

morals, conduct, hea lth  and personal standards o f  

the p u p il .

(E ) Tests and In te rv ie w s : The Ass is tan t Superin­

tendent in  Charge o f  Pupil Personnel may requ ire  

in te rv iew s  w ith  the parents o r  guardian and the 

p u p i l ,  w ith the parents o r  guardian, o r  w ith  o ther 

persons. He may conduct o r  authorize  such examin­

a tions o r  te s ts  and o th er  in v e s t ig a t io n s  as he deems

- 69-



approp r ia te . In the absence o f  excuses s a t is fa c t o r y  

to  the Pupil Personnel O f f i c e ,  f a i lu r e  to  appear f o r  

any requested examination, t e s t ,  o r  in te rv ie w  by 

the pup il o r  parents o r  guardian, w i l l  be deemed a 

withdrawal o f  the a p p l ic a t ion .

(F )  N otice  o f  Action  Taken; N o t ice  o f  the action  

taken by the A ss is tan t Superintendent in  Charge o f  

Pupil Personnel on each a p p lic a t ion  w i l l  be made on 

o r  b e fo re  June 15. For the school yea r  1963-64 the 

n o t ic e  o f  ac t ion  taken by the A ss is tan t Superintend­

ent w i l l  be made on o r  be fo re  September 3. Such 

action  sh a l l  be f in a l ,  unless a Board hearing is  r e ­

quested in  w r i t in g  w ith in  ten days from the date 

when the n o t ic e  o f  action  taken on the t ra n s fe r  r e ­

quest i s  mailed.

(G) Review: I f  a hearing i s  requested by the par­

ents or guardian o r  the Board f e e l s  a need f o r  a 

hearing , such a hearing sh a l l  a l low  f o r  a minimum 

o f  ten days n o t ic e ,  but w i l l  be held w ith in  ttventy 

days. F a i lu re  o f  parents o r  guardians to appear, 

w ith  the pu p il ,  at the hearing w i l l  be deemed a 

withdrawal o f  the a p p l ic a t io n .  Hearings may be 

conducted by the Board, as a whole, o r  the Board 

may des ignate  not le s s  than three Board members to 

conduct the hearing. In e i th e r  case, the m a jo r ity  

d ec is ion  o f  the Board o r  the committee o f  the Board

-7 0 -



w i l l  be deemed a f in a l  d e c is io n .  The Board may 

des ignate  a Board member o r  o th er  competent rep re ­

s en ta t iv e  to conduct such a hearing, take testimony, 

and report evidence w ith  h is recommendation to  the 

Board w ith in  f i f t e e n  days fo l lo w in g  the hearing.

The Board 's d ec is ion  a f t e r  a hearing, report o f  

ev idence, and recommendation w i l l  be deemed f in a l .  

The Board sh a ll  be authorized to in v e s t ig a t e  ob je c ­

t ion s  o r  problems r e la t in g  to the d ec is ion  at hand, 

in c lud ing  an examination o f  the pup il in vo lv ed , o r  

the Board may au thorize  i t s  adm in is tra t ive  s t a f f  o r  

o th er  competent person to  perform th is  in v e s t ig a ­

t io n  fo r  them. I f  the Board determines that a pup il 

i s  p h y s ica l ly  o r  mentally in capac ita ted  to b e n e f i t  

from fu r th e r  normal schoo ling , the Board may assign 

the pup il to  an excep tiona l c lass  or to  some a v a i l ­

ab le sp ec ia l  school, o r  term inate the enrollment o f  

said p u p il .

(3 )  i n i t i a l  Assignments: When th is  plan sh a ll  have be­

come a p p licab le  to the f i r s t  grade, pupils  r e g is t e r in g  fo r  

the f i r s t  grade may apply f o r  attendance at the school in the 

d i s t r i c t  o f  t h e i r  res idence o r  the nearest school form erly  

attended e x c lu s iv e ly  by th e i r  race, at t h e i r  op tion .

Pupils  en ter in g  the Mobile County school system fo r  the 

f i r s t  time, in  grades to which the plan has become ap p licab le ,  

may apply f o r  attendance at the school in  the d i s t r i c t  o f

-7 1 -



t h e i r  res idence , o r  the nearest school fo rm erly  attended ex­

c lu s iv e ly  by th e i r  race, at t h e i r  op tion .

Upon the submission o f  th is  plan, schools sh a l l  no lon ger

be designated by race.

(4 )  A p p l i c a b i l i t y  o f  F lan : This plan sh a l l  have a p p l i ­

cation  in  the school year 1963-64 to the 12 th grade, in  the 

C ity  o f  Mobile schools on ly . In the school year 19o4-o5 i t  

sh a ll have a p p lica t ion  to the 1 1 th and 12th  grades in  a l l  

schools o f  Mobile County. I t  sh a l l  have a p p lica t ion  to grades 

a lready included and to one a d d it ion a l lower grade each school 

year th e r e a f t e r  u n t i l  a l l  12 grades are a f fe c t e d .

(5 )  Specia l  Prov is ion s  fo r  1963-64: The normal July 31

c u t - o f f  date f o r  making app lica t ion s  f o r  t ra n s fe r  f o r  the 

1963-64 school term sh a ll  be observed. For 12th grade pup ils  

in the C ity  o f  Mobile schools requesting t ra n s fe r  on o r  b e fo re  

July 31, the t ra n s fe r  p rov is ion s  o f  th is  plan sh a l l  apply and 

race o r  c o lo r  sh a l l  not be considered as a fa c to r  in ac t in g  

upon such a p p l ic a t io n .  Public n o t ic e  o f  the dead line was gj-v- 

en by p u b lica t ion  in  a d a i ly  newspaper o f  genera l c ir c u la t io n  

in Mobile County one week p r io r  to the c lo s in g  o f  the period  

fo r  r e c e iv in g  t ra n s fe r  ap p lica t ion s , as a conscious reminder 

to the parents and guardians.

BOARD OF SCHOOL COMMISSIONERS OF
MOBILE COUNTY

/S/ CHARLES E. MeNEIL
' "  President

/S/ WILLIAM B. CRANE
Member

- 7 2 -



/s/ ARTHUR SMITH, JR.
Member

/S/ KENNETH REED
Member

/S/ JACK C. GALLAGHER
Member

IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION

BIRDIE MAE DAVIS, e t a l . ,
P l a i n t i f f s ,

v .

BOARD OF SCHOOL COMMISSIONERS 
OF MOBILE COUNTY, et a l ,,

Defendants.

PLAINTIFF’ S OBJECTIONS TO DEFENDANTS’ PLAN 
OF DESEGREGATION FILED AUGUST 19, 19o3

Come now the p l a i n t i f f s ,  by th e i r  undersigned a ttorneys , 

and o b jec t  to the desegregation  plan f i l e d  by defendants on 

August 19, 1963 , pursuant to the order  o f  th is  Court o f  July 

11, 1963 , as amended July 26, 1963, on the fo l lo w in g  grounds:

1) The plan does not conform to the mandate o f  th is  

Court o f  July 26, 1963, o r  the mandate o f  the United States 

Court o f  Appeals, F i f t h  C irc u it ,  pursuant to which the order 

o f  th is  Court o f  July 26th was entered, in  that:

CIVIL ACTION 

NO- 3003-63

-7 3 -



a) The plan does not p rov ide  f o r  t ra n s fe rs  in  a l l  

grades ( in c lu d in g  the f i r s t  grade and pu p ils  en ter in g  the 

school system in  the C ity  o f  Mobile f o r  the f i r s t  tim e) in 

September 1963 pursuant to the Alabama Pupil Placement Law.

b) The plan does not p rov ide  f o r  a period  o f  time., 

p r io r  to the opening o f  school in  September 1963, f o r  making 

a p p lica t ion  fo r  t ra n s fe r ,  thus rendering the plan wholly in ­

e f f e c t i v e  w ith  respect to the September 1963 term.

2) A l l  o f  the c r i t e r i a  o f  the plan which sh a ll  be con­

sidered in  making the assignment o r  g ran ting  the request fo r  

t ra n s fe r  are so vague and in d e f in i t e  as to permit o f  a rb it ra ry  

action  by the A ss is tan t Superintendent in  Charge o f  Pupil 

Personnel, the Board or  o ther persons de lega ted  r e s p o n s ib i l i t y  

fo r  pup il assignment and t ra n s fe r .

3) P l a i n t i f f s  ob je c t  to the use o f  any c r i t e r i a  o ther  

than n on -rac ia l geographic zoning.

4) P l a in t i f f s  s p e c i f i c a l l y  ob je c t  to the fo l lo w in g

c r i t e r io n  o r  standard f o r  pup il assignment o r  t ra n s fe r  set 

fo r th  in  paragraph (D ),  p. 4 o f  the plan: " . . . a l o n g  w ith

other re levan t f a c t o r s : . . . "

5) P l a i n t i f f s  ob jec t  to the fo l lo w in g  c r i t e r i a  because 

based upon oppos it ion  o r  h o s i t i l i t y  to the Supreme Court's 

dec is ion  in  Brown v. Board o f  Education o f  Topeka, 347 U.S.

483 (1954):

"jL) the p o s s ib i l i t y  o r  th reat o f  f r i c t i o n  o r
d iso rd e r  among pupils  o r  o th e rs . "

74 -



"n ) the p o s s ib i l i t y  o f  breaches o f  the peace o r  
i l l  w i l l  o r  economic r e t a l i a t i o n  w ith in  the com­
m unity."

6 ) The plan prov ides that the Ass is tan t Superintendent 

in Charge o f  Pupil Personnel "may requ ire  in te rv iew s "  and may 

conduct o r  authorize  such examinations o r  t e s ts  o r  o th er  in ­

v e s t ig a t io n s  "as he deems a p p rop r ia te ."  There are no stand­

ards o r  c r i t e r i a  which guide the A ss is tan t Superintendent in 

determ ining what in te rv iew s , t e s t s ,  examinations, o r  i n v e s t i ­

gations are o r  may be requ ired o r  appropria te , o r  when any 

in te rv iew  may be requ ired  o r  what fa c to rs  may be considered 

upon such an in te rv ie w .

7) The plan" prov ides fo r  n o t i f i c a t i o n  o f  action  taken 

by the A ss is tan t Superintendent f o r  the school yea r  1963-64 

on September 3rd, one day p r io r  to  the opening o f  school on 

September 4, 1963 . This i s  obv iously  in s u f f i c i e n t  time to 

n o t i f y  a student o f  the gran ting  o f  a t ra n s fe r  o r  i n i t i a l  

assignment.

8 ) The plan does not prov ide any standards o r  c r i t e r i a  

fo r  a determ ination by the Board that a pup il i s  p h y s ica l ly  

or m entally in capac ita ted  o r  f o r  determining that the p u p i l 's  

education should be term inated.

9 ) With respect to i n i t i a l  assignment to  the f i r s t  grade 

and i n i t i a l  assignment to any grade o f  a pup il en ter in g  the 

system fo r  the f i r s t  time, the plan does not prov ide fo r  

th e ir  assignment to school on a nonracia l b a s is .  Xt provides 

fo r  an e le c t io n  to atend the nearest school, a form erly

-75~



"w h ite ” school o r  "Negro" school.

10) The plan prov ides fo r  grade-a -year  desegregation  

without any equ itab le  ju s t i f i c a t i o n  fo r  such gradual desegre­

gation  o f  the school system o f  Mobile County.

11) Contrary to the order  o f  the Court o f  Appeals o f  

July 18, 1963, and the order  o f  th is  court o f  July 26, 1963* 

the plan does not p rov ide  f o r  redrawing o f  school zone l in e s  

to e lim in a te  the dual r a c ia l  zones p resen t ly  in  e f f e c t .

12) The plan prov ides fo r  observance o f  the normal 

July 31 c u t - o f f  date f o r  making app lica t ion s  f o r  t ra n s fe r  f o r  

the 1963-64 school year. Since that date has a lready passed 

p r io r  to submission o f  the plan, such p rov is ion  e f f e c t i v e l y  

cuts o f f  any "prompt and reasonable" s ta r t  toward desegrega­

tion  o f  the pub lic  schools o f  Mobile County in  September 

1963, as no p rov is ion  i s  now made fo r  persons seeking de­

segregated education in  September 1963 in grade tw e lve  under 

the plan as w r it te n .  Moreover, i t  appears that p resen tly  

there are , in  fa c t ,  no Negro app lica t ion s  fo r  t ra n s fe r  in

the 12th grade in  the C ity  o f  Mobile. A l l  such tran s fe rs  

were fo r  desegregation  in  schools ou ts ide  the C ity  o f  Mobile 

p r io r  to July 31, 1963 . Schools ou ts ide  the c i t y  o f  Mobile 

were e lim inated  from the required s ta r t  toward desegragation  

in September 1963 by order o f  th is  court o f  August 12, 1963 .

13) P l a i n t i f f s  reserve  the r igh t  to f i l e  fu r th er



ob jec t ion s  to the plan and to have a more complete hearing on 

these o b je c t io n s .

R esp ec t fu l ly  submitted

/s/______ Constance Baker___________
CONSTANCE BAKER MOTLEY 
JACK GREENBERG 
DERRICK BELL 
10 Columbus C irc le  
New York 19, New York

VERNON Z. CRAWFORD 
578 Davis Avenue 
Mobile, Alabama

CLARENCE E. MOSES 
1050-1 Davis Avenue 
Mobile, Alabama

Attorneys fo r  P l a i n t i f f s

(71) IN THE DISTRICT COURT OF THE UNITED STATES FOR THE 
SOUTHERN DISTRICT OF ALABAMA, SOUTHERN DIVISION.

B ird ie  Mae Davis, et a l . ,  

P l a i n t i f f s ,  

vs .

Board o f  School Commissioners o f  

Mobile County, e t a l . ,

Defendants.

C iv i l  Action 

No. 3003-63.

TRANSCRIPT OF PROCEEDINGS HAD BEFORE HON. DANIEL 
H. THOMAS, UNITED STATES DISTRICT JUDGE, AT MOBILE, 

ALABAMA, ON AUGUST 21st, 19o3.

-7 7 -



Appearances: For P l a i n t i f f s  Constant Baker Motley* Esq.,
Vernon Z, Crawford, Esq., and 
Clarence E. Moses, Esq.

For Defendants Palmer P i l la n s ,  Esq.,
George F. Wood, Esq., and 
Abram L. P h i l l ip s ,  Esq.

Judge Thomas: This m atter comes up th is  morning.

The School Board 's plan was f i l e d  Monday. P l a i n t i f f s  

asked f o r  an immediate hearing, and I  set i t  f o r  th is  

morning at 9:30  o 'c lo c k .

(72) I  see by the f i l e  that ob jec t ion s  were f i l e d  by the

P l a in t i f f s  th is  morning, and I  th ink  the proper procedure 

would be to take i t  up on the o b je c t io n s .  How long does 

each s ide wish to argue?

Mrs. Motley: W e ll,  I  th ink t h i r t y  minutes would be

s u f f i c i e n t .

Mr. Wood: That i s  f in e  w ith  us.

Judge Thomas: A l l  r ig h t ,  l im i t  your arguments to

not more than t h i r t y  minutes to the s id e .  P l a in t i f f s  

may proceed.

Mrs. Motley: I  would l i k e  to save a port ion  o f  that

time f o r  r eb u t ta l .

Judge Thomas: A l l  r ig h t ,  how much would you wish?

Mrs. Motley: I  would say about ten minutes o f  the

h a l f  hour.

Judge Thomas: A l l  r ig h t .

Mrs. Motley: I  would l i k e  to say th is .  We have

made a number o f  ob jec t ion s  to the plan, as f i l e d ,  but

- 78-



th ere  are two primary o b je c t io n s ,  which we press at th is  

time, because o f  the shortness o f  time between now and 

the opening o f  school on September 3rd o r  4th, Our f i r s t  

ob je c t io n  i s  that the plan does not conform to the order 

o f  the United States Court o f  Appeals f o r  the F i f t h  C ir ­

cu it  and the order o f  th is  Court o f  (73) July 2oth, 19°3j 

in  that the plan does not p rov ide  f o r  t ra n s fe r  app lica ­

t ion s  in  a l l  grades in  September 19^3* and the plan does 

not prov ide f o r  the admission o f  f i r s t  grade students on 

a non r a c ia l  bas is , and the plan does not p rov ide  fo r  

the admission o f  students coming in to  the school system 

in  the C ity  o f  Mobile on a non r a c ia l  basis  the f i r s t  

time in  September 1963 . Now, your Honor w i l l  r e c a l l  that 

o r i g in a l l y ,  on July 9th, the F i f t h  C ircu it  entered an 

order in  th is  case, req u ir in g  the desegregation  o f  a 

grade, the f i r s t  gr*ade, in  the C ity  o f  Mobile, and the 

order  was amended on July l8 th , to conform w ith the order 

entered by another panel o f  the F i f t h  C irc u it ,  in the 

Birmingham school case. Now, in  the Birmingham school 

case, Judge Lynne, as you may r e c a l l ,  ruled that the 

P l a i n t i f f s  and others s im i la r ly  s ituated  could apply fo r  

t ra n s fe rs  to white schools under the Alabama Pupil 

Placement Law, and that the Board in  Birmingham had as­

sured him that they would consider such app lica t ion s  and 

act upon them. Xn h is  order , he said that he would hear 

any ob jec t ion s  by any persons seeking a t ra n s fe r  on f i v e

-7 9 -



days n o t ic e .  Noxv, when that case got to the Court o f  

Appeals, the Court o f  Appeals, in  i t s  op in ion , said 

"W e ll ,  the School Board has agreed to th is  as a plan, 

that i s ,  to  consider app lica t ion s  under the Alabama Pupil 

Assignment Law, and we agree that th is  i s  what they ought 

to do, but, in add it ion , they have to p rov ide  f o r  the 

admission o f  f i r s t  grade students on a (7^-) non r a c ia l  

bas is , they have to p rov ide  f o r  the admission o f  new 

students on a non r a c ia l  bas is ,  and, in  add it ion , they 

have to re-draw the school zone l i n e . "  That comes not 

from the words o f  the opinion i t s e l f ,  but from the 

Augustus case, which the F i f t h  C ircu it  c i t e s  in  i t s  

op in ion in  the Birmingham case as the example o f  a plan 

which is  in  opera t ion , which i t  p re v iou s ly  approved, and 

which i t  was in  e f f e c t  approving the Birmingham case. In 

the Augustus case, the F i f t h  C ircu it  provided that in  

add it ion  to the School Board in Pensacola considering  

app lica t ion s  fo r  admission under the F lo r id a  Pupil As­

signment Law, the School Board, as a minimum s ta r t  toward 

desegregation,- had to re-draw the school zone l in e ,  and 

they said i f  i t  i s  too la t e  f o r  September 1962, because 

that case was decided by the F i f t h  C ircu it  in  August 

1962 , they have to re-draw the school zone l in e s  in  Sept­

ember 1963 fo r  two grades o f  the system,* and they ru led , 

as I  sa id  a moment ago, that doing away w ith the dual 

school zone l in e  o r  dual school d i s t r i c t  Is  a minimum r e ­

-80-



quirement o f  d eseg rega t ion , and that the pu p il assignment 

law, standing a lone, i s  not a p lan . Moreover, in  the 

Birmingham case, the Court s p e c i f i c a l l y  en jo ined the 

school a u th o r it ie s  from consider ing  grades in  the a p p l i ­

ca t ion  on the c r i t e r i a  o f  the Alabama Pupil Assignment 

Law. Now, once that order was entered in  the Birmingham 

case, (75 ) the panel o f  the F i f t h  C irc u it ,  which heard 

th is  case, amended i t s  order, so that Mobile would not 

be requ ired to desegregate  the f i r s t  grade in  September 

which would requ ire  the re-drawing o f  school zone l in e s  

f o r  everybody, so that the f i r s t  graders would be ass ign ­

ed to  the school in  zones in  which they l i v e d ,  they chang­

ed that order to  conform to the Birmingham o rder , which 

i s  r e a l l y  a broader order, because I t  permits persons in  

a l l  grades, Includ ing the P l a i n t i f f s ,  who obviously  are 

above the f i r s t  grade, to apply f o r  t ra n s fe r .  The Board 

i s  to consider those t ra n s fe rs ,  as I  understand the op in­

ion , and, from those t ra n s fe rs ,  make a s ta r t  toward de­

seg rega t in g  the schools In  the C ity  o f  M obile.

Now, the present plan does not do th a t .  The 

present plan amends the F i f t h  C ircu it  o rder to l im i t  de­

segregation  again to a s in g le  grade, the tw e l f th  grade, 

at the oppos ite  end o f  the p o le ,  and, in  add it ion , im­

poses upon that l im i ta t io n  the Pupil Assignment Law, and 

I  th ink that i s  c le a r ly  contrary to the op in ion o f  the 

F i f t h  C ircu it  in  the Birmingham case and in  th is  case,

8 1 -



which was that a l l  grades should be open* that the P la in ­

t i f f s  and others s im i la r ly  s itu a ted  should have the op­

po rtu n ity  to apply f o r  t ra n s fe r  in  September in  a l l  the 

grades, and that the School Board would a lso  permit s tu ­

dents coming in to  th e  school system, .to the f i r s t  ( 76 ) grade 

and from ou ts ide  the community f o r  the f i r s t  time on a 

non r a c ia l  bas is .

Our second major ob je c t io n  is  that th is  plan 

having been f i l e d  on Monday, August 19 th , does not pro­

v id e  any per iod  o f  time now fo r  students to t ra n s fe r  or 

to seek t ra n s fe r .  The Board says in  i t s  plan that i t s  

t r a d i t io n a l  July 31st cut o f f  date w i l l  be the date ap­

p l ic a b le  to t ra n s fe rs  under th is  plan, which everybody 

in  the community understood as a cut o f f  date f o r  trans­

f e r s .  Obviously, they understood that as a t ra n s fe r  

date, which operated w ith in  the time o f  segregd ion ; the 

plan had not been announced, the community was not aware 

o f  what the plan would be, and, th e re fo re ,  persons who 

were desirous o f  t ra n s fe r r in g  to white schools , o r  v ic e  

versa , were awaiting the announcement o f  the Board 's 

p lan . Now, that the Board has announced i t s  plan, i t  has 

not made any p rov is ion  fo r  anybody to take advantage o f  

the plan, so that we th ink that th is  i s  a serious o b je c ­

t io n  to the v a l i d i t y  o f  th is  p lan . That p ro v is ion  o f  

making July 31st as the cut o f f  date f o r  the ap p lica t ion  

e f f e c t i v e l y  cuts o f f  the plan fo r  September 1963, because

-82-



everybody was w a it in g  to see what the plan would be and 

whether the plan would be approved by the Court and whe­

th er , in  fa c t ,  desegregation  would, in  fa c t ,  go ahead, 

and they are too la t e .

Now, in  add it ion  to those two major ob jec t ion s  

which we have to the p lan, xve o b je c t  to the c r i t e r i a  

which they have d e - (7 7 ) texamined would be used fo r  con­

s id e r in g  t ra n s fe r s .  Now, a l l  these c r i t e r i a s ,  I  ga ther, 

are from the Alabama Pupil Assignment Law and the Alabama 

Pupil Assignment Law has been upheld against an a ttack  

by P l a i n t i f f s  in  Shuttlesworth aga inst the C ity  Board o f  

Education in  Birmingham, on the ground that the law in 

i t s e l f  d iscrim inated  against Negroes. That was the so le  

a ttack  in  the Shuttlesworth case, as the op in ion i t s e l f  

po in ts  out. There was no a ttack  in  that case on the 

in d iv id u a l c r i t e r i a  o f  the p lan . However, we in  th is  

case are making an a ttack  upon the c r i t e r i a  o f  the A la ­

bama Pupil Assignment Law, as to a l l  o f  them. We say they 

are so vague and in d e f in i t e  and so devoid o f  s p e c i f i c  

content that i t  g ives  to the adm in istra tor  o f  the law un­

bounded d is c r e t io n  to deny an ap p lica t ion  and the person 

denied admission to the school would have no basis fo r  

prov ing  that he was d iscrim inated  aga inst, because he 

would have no measureable standard by which he could 

t e s t  the ac t ion  o f  the adm in istra tor . I f  the school 

a u th o r it ie s  use the Alabama Pupil Assignment Law as a

-8 3 -



gu ide, I  th ink they are requ ired  to use ru les  and regu­

la t io n s  which g iv e  s p e c i f i c  content and meaning to the 

law and make that law workable and the c r i t e r i a  so dexi 

n i t e  that a student who complains o f  the action  o f  the 

adm in istra tor  would have some basis  o f  appeal. Now, in  

add it ion  to  th a t ,  we say that there are two ( 78 ) c r i t e r i a  

that have a lready been held c o n s t i tu t io n a l ly  vo id , and 

that i s  the one, which is  d e lin ea ted  ( l ) ,  the p o s s ib i l i t y  

o r  th rea t o f  f r i c t i o n  o r  d iso rd e r  among pu p ils  o r  o thers , 

and the one de lin ea ted  (n ) ,  the p o s s iD i l i t y  o f  breaches 

o f  peace o r  i l l  w i l l  o r  economic r e t a l ia t io n  w ith in  the 

community. In the A t lan ta  School case, the Calhoun case, 

the D is t r i c t  Court, in  that case struck those two p r o v is ­

ions from the A tlan ta  plan, and the A tlan ta  plan was 

id e n t ic a l  w ith  th is  plan, in  that, i t  s ta r ts  w ith  the 

tw e l f th  grade, and a l l  the c r i t e r i a  used were from the 

Alabama Pupil Assignment Law. As to those two c r i t e r i a ,  

we f e e l  that the Defendants should not be perm itted to 

use those c r i t e r i a .

Now, because o f  the shortness o f  time between 

now7 and the opening o f  school, we r e a l i z e  that the Court 

cannot pass upon a l l  o f  these ob jec t ion s  today. There­

fo r e ,  we th ink that what the Court ought to do, w ith  r e s ­

pect to September 19^3^ is  to requ ire  the Board to use a 

s in g le  o b je c t iv e  standard in  passing upon t ra n s fe r  a p p l i ­

ca tions  f o r  September 19^3 and come in  w ith a plan, using

-8 4 -



the Alabama Pupil Assignment Law, i f  that i s  what they 

understood, using i t  w ith  more d e f in i t e  and s p e c i f i c  

standards fo r  1964. In add it ion , f o r  1964, I  th ink the 

Court should requ ire  the school a u th o r it ie s  to come in 

w ith  a map o f  the school zone l in e s ,  on a nonrac ia l bas­

i s ,  to desegregate at le a s t  the f i r s t  th ree  grades pur­

suant to school zone l in e s  in  1964.

(79 ) Now, there are o th er  ob jec t ion s  which we 

have, and, as I  say, we are not press ing  a l l  those at 

th is  moment, because we don 't  th ink there  i s  s u f f i c i e n t  

time f o r  the Court to act upon those o b je c t io n s .  Now,

I  r e f e r ,  fo r  example, to the superin tendent 's  o r  a s s is t ­

ant superin tendent's  d is c re t io n  to have in te rv ie w s ,  e t c . ,  

and there i s  nothing in  there  to guide the ass is tan t 

superintendent as to what fa c to rs  he would consider on 

such in te rv iew s , and there is  a p rov is ion  which says that 

the Board may determine a student i s  p h y s ic a l ly  o r  mental­

l y  in capac ita ted  o r  that his education should be term in­

ated a l to g e th e r .  There i s  not a s in g le  th ing in  that plan 

by \tfhich the Board is  to determine when a studen t's  educa­

t ion  i s  to be term inated. That c e r ta in ly  i s  an a rb it ra ry  

standard. Now, then the plan prov ides fo r  th is  gradual 

desegrega t ion . There is  nothing in  th is  plan to ju s t i f y  

any such gradual desegrega t ion . Now, when the F i f t h  C ir ­

cu it  amended th is  order in  th is  case, I  th ink i t  was amend­

ing the order to go fu rth er  than a grade a year, because 

you remember the f i r s t  order  said the f i r s t  grade and a 
grade th e r e a f t e r .  This order was s p e c i f i c a l l y  amended,

to e lim ina te  the

~85~



grade a year fe a tu re .  I t  permits students in  a l l  grades 

to apply f o r  t ra n s fe rs .  I  th ink the reason that was done 

i s  because o f  the Supreme Court d ec is ion  in  the Watson 

case, which invo lved  re c re a t io n a l  f a c i l i t i e s  in  Memphis, 

and the question was whether the d e l ib e ra t e  speed d oc tr in e  

would be e x - ( 80) tended to the area o f  r e c rea t ion , but, 

n everth e less  a dec is ion  in  which the Supreme Court in  a 

unanimous op in ion said they never intended d e l ib e ra te  

speed to  encompass in d e f in i t e  d e lay . Here, we have a 

proposal f o r  a grade a year, which is  ju s t  a rb it r a ry ,  

which would take the next tw e lve  years to desegregate 

the schools in  Mobile.

Now, the Board r e l i e s  on th is  school construc­

t io n  program. By t h e i r  own statement, that w i l l  be com­

p le ted  in  the next year o r  two. This they have used as 

the reason a l l  a long, as the reason not to desegregate 

the schools in September. As that construction  w i l l  be 

over  in  a couple o f  years, we say that the grade a year 

i s  on ly  a rb i t r a r y .  I t  is  not equ itab le  ju s t i f i c a t i o n .

The F i f t h  C ircu it  has e lim inated the grade a year by the 

Mobile and Birmingham order, and the Supreme Court in  the 

Watson case has c e r ta in ly  precluded the adoption o f  the 

grade a year plan, nine years a f t e r  the Supreme Court's 

d e c is io n .

I  b e l ie v e  I  would l i k e  to save the remainder 

o f  our time fo r  r eb u t ta l .

-86



Judge Thomas: A l l  r i g h t .

Mr. Wood: May i t  p lease the Court, I  would l i k e  to

address m yself to these ob jec t ion s  in  the reverse  order 

made. The th ird  o f  the primary ob jec t ion s  made by P la in ­

t i f f s  have to do w ith  the c r i t e r i a  applied  by the plan, 

as submitted by the Defendant Board. ( 8 l )  Whatever may 

be the thought o f  the P l a i n t i f f s ,  the Supreme Court has 

approved in  p r in c ip le  the c r i t e r i a  o f  the Alabama Pupil 

Placement A ct, so long as those c r i t e r i a  are applied in 

good fa i th .  This Court i s  d ir e c ted  to and w i l l ,  o f  

course, re ta in  ju r is d ic t io n  o f  th is  case, in  order  that 

pup ils  who f e e l  that any c r i t e r i a  set up in  th is  plan 

have not been app lied  in  good fa i th ,  w i l l  have reso r t  

hereto f o r  the t e s t in g  o f  the a p p lica t ion  o f  the p lan .

I  th ink at the ou tset o f  our d iscuss ion , we must s ta r t  

w ith the basic assumption that the Defendant School 

Board, being men o f  in t e g r i t y ,  w i l l  apply good fa i t h  in  

the plan they propose. We must not lay  that to one s ide 

and make suspect on the fa ce  every th ing  that the Board i s  

c a l led  upon to  do o r  c a l l s  upon i t s e l f  to do. They must 

be accorded the notion that they w i l l  act in  good fa i th ,  

as they are requ ired  to do. Consequently, the o b jec t ion  

P l a in t i f f s  make to  the c r i t e r i a  se t up in  the plan so 

long as those c r i t e r i a  remain approved by the Supreme 

Court, i s  not v a l id ,  and we submit should be r e je c te d .

Turning now to the second po in t made by the

-8 7 -



P l a i n t i f f s ,  no time f o r  t ra n s fe r .  As i s  po inted out in 

the p lan , the Board continued in  e f f e c t  i t s  July 31st cut 

o f f  da te , which fo r  many years gone by has been the date 

that t ra n s fe r  requests were terminated - the submission 

o f  t r a n s fe r  requests . To say that the com-(82)munity o f  

Mobile d id  not know anything about whether they could ap­

p ly  o r  what was going on cannot be taken s e r io u s ly ,  w ith 

a l l  o f  the p u b l ic i t y  going on about th is  very th ing  we 

are d iscuss ing now. In add it ion  to th a t , the plan recog­

n ized  and there was p u b lica t ion  o f  the dead l in e  a week 

ahead. A c tu a l ly ,  i t  appeared in  a fron t page news s to ry  

in  the a fternoon press one wTeek be fo re  the dead line 

c lo sed . To show that the word was around, that the com­

munity did know, a c tu a l ly  hundreds and hundreds o f  r e ­

quests fo r  t ra n s fe rs  were made, twenty-nine o f  them fo r  

Negro ch ild ren , requesting  t ra n s fe rs  to white schools .

So, there  was nothing m islead ing, nothing ex post facto  

about th is  th in g . I t  was announced p u b l ic ly  and simply 

the same cut o f f  date t r a d i t i o n a l l y  observed was put 

in  to the plan.

Now, l e t  us turn to the primary po in t made 

by the P l a i n t i f f s ,  which requ ires  a cons idera tion  o f  the 

e n t ir e  h is to ry ,  I  b e l ie v e ,  o f  the ru lin gs  In th is  case. 

I n i t i a l l y ,  as Your Honor w i l l  r e c a l l ,  there was required 

by the Court o f  Appeals on July 9th, the desegregation  o f  

the f i r s t  grade in  1963> and one a d d it ion a l h igher grade



each year th e r e a f t e r .  Fo llow ing  an a p p lica t ion  fo r  r e ­

hearing b e fo re  the whole Court* the Court m odified i t s  

e a r l i e r  order* to conform i t s  order* not to make us sub­

je c t  to  every th ing  the D is t r i c t  Court did in  Birmingham* 

but to conform ( 83) i t s  order to the o rder  i t  entered in  

the Birmingham case. I t  sp e lled  out s p e c i f i c a l l y  what 

your Honor here was to en ter  in  the D is t r i c t  Court order* 

using the id e n t ic a l  language used in  the Birmingham case* 

i t  did not engra ft  in  those words anything done in  the 

Birmingham case* as P l a i n t i f f s '  counsel has engra fted  

in to  this opinion* but i t  sp e lled  out s p e c i f i c a l l y  what 

was to be done* and* in  i t s  opinion* the Court o f  Appeals 

said that i t  was not p resc r ib in g  the when and the how o f  

the s ta r t  o f  the desegregation  process* i t  made re fe ren ce  

in  i t s  op in ion to the fa c t  that i t  would not now consid­

er  that the Court p resc r ib e  a uniform system and a t a i l o r  

made plan to f i t  a p a r t ic u la r  school system* which would 

be considered by the D is t r i c t  Court. Cei’ ta in ly *  as a 

m od if ica tion *  i t  would not requ ire  more than the o r ig in a l  

order requ ired . Now* what did th is  order requ ire* that 

i s  the amended order o r  the m odified order o f  the Court 

o f  Appeals? I t  required* f i r s t  o f  a l l *  that a s ta r t  be 

made. L e t 's  keep that word " s t a r t "  ever  b e fo re  us. I t  

fu r th e r  ordered* adjudged and decreed that said persons 

be and they are hereby required to submit to th is  Court 

not l a t e r  than August 19 th a plan* under which the said

- 89-



defendants propose to make an immediate s t a r t .  I t  goes 

on to  say that s ta r t  sh a ll  be made in 19&3 and that the 

plan and the process continue th e re a fte r *  that i t  progress 

th e re a fte r *  and that i t  go on to i t s  f r u i t io n  th e r e a f t e r .

I t  p rov ides that w ith in  the plan the Pupil Placement Law 

be taken (84 ) in to  account. I t  says that the Defendants 

in  t a i l o r  making th is  plan to f i t  the school s itu a t ion  

here should contemplate w ith in  the framework o f  the en­

t i r e  plan the notion  o f  the admission o f  f i r s t  graders 

and a l l  new persons coming in to  the school system f o r  the 

f i r s t  time* without cons idera t ion  o f  race . I t  does not 

p resc r ib e  that every s in g le  th ing in th is  order be done 

in  September 1963 . I f  i t  did* i t  would be the f i r s t  ord­

er  o f  any cou rt. We submit that was not in  the mj_nds o f  

the Court o f  Appeals at the time i t  entered th is  order .

I t  never was and was not at the time th is  order was i s ­

sued. I t  says in  the order to make use o f  the Alabama 

Pupil Placement Act as c r i t e r ia *  and then i t  r e fe r r ed  to 

page 869 o f  the Augustus case* the Pensacola case* where­

in  the Court ou tlin ed  the e lim ina tion  o f  the dual school 

attendance zones f o r  d i s t r i c t s .  May I  say at th is  time 

that the s itu a t ion  o f  the School Board i s  in  process at 

th is  time o f  e l im ina tin g  what few dual attendance zones 

there  remain. There are not many. This i s  not a f u l l  

dual zone system. The preparation  o f  that s in g le  zone sys­

tem i s  now under1 way. L e t 's  look  at what the Pensacola

-9 0 -



case p ro v id ed . I t  was stated in  the C ourt 's  order , 

s t a r t in g  at Paragraphs 8 and 9 > on page 869, o f  that 

case, "We are re lu ctan t to su b s t itu te  our judgment fo r  

that o f  the D is t r i c t  Court" - I  w i l l  pass over  that - 'The 

plan should however ( 85 ) more c l e a r ly  p rov ide  fo r  the ad­

mission o f  new pup ils  en ter in g  the f i r s t  grade, o r  coming 

in to  the County f o r  the f i r s t  time, on a nonrac ia l bas is . 

There cannot be f u l l  compliance w ith  the Supreme Court s 

requirements to desegregate u n t i l  a l l  dual school d i s ­

t r i c t s  based on race are e lim ina ted . I t  i s  probably too 

la t e ,  without undue confusion, to requ ire  the e lim ina ­

t io n  as to any grade o f  such dual d i s t r i c t s  in  time fo r  

the 1962 f a l l  terra. The plan should, however, px-ovide 

f o r  the e l im ina tion  o f  a l l  dual school d i s t r i c t s  on 

r a c ia l  l in e s  at the e a r l i e s t  p ra c t ic a b le  tim e. I f  i t  

appears too la t e  f o r  such e lim in a tion  as to any grade in 

time fo r  the 1962 f a l l  term, then, the plan should pro­

v id e  f o r  such e l im in a tion  as to the f i r s t  two grades f o r  

the 1963 term, and th e r e a f t e r  f o r  such e lim ina tion  as 

to at le a s t  one successive a d d it ion a l grade each school 

y e a r . "  Now, those s p e c i f i c  requirements the Court o f  

Appeals made in  i t s  order  was to the grade a year plan, 

which ca l le d  fo r  the e l im in a tion  o f  dual sones a grade 

a yea r . That i s  r ig h t  In th is  plan, as each grade is  

reached, we s ta r t  at the tw e l f th  grade ra ther  than the 

f i r s t  grade, but the plan contemplates as the f i r s t

9 1 -



grade I s  reached, as each trade in  the school i s  reached, 

and newcomers in  the community may make a p p lica t ion  to a t ­

tend schools in  t h e i r  d i s t r i c t ,  not nearest t h e i r  home as 

b e fo re , but in  t h e i r  d i s t r i c t ,  o r  to the nearest school 

(86 ) p r im a r i ly  served, and e i th e r  race at t h e i r  op tion  

may apply there , they are g iven  the ch o ice . Judge Rives 

in  the Birmingham case says that vo luntary desegregation  

i s  not u ncon stitu tiona l and i f  Negro ch ild ren  choose to 

go to  p r im a r i ly  Negro schools , then, there I s  nothing 

u ncon st itu t ion a l requ ired , so long as they are not r e ­

quired to  attend those schools because o f  race. The plan 

recogn izes  the option  o f  the parents and the ch ild  to a t ­

tend the school in  the d i s t r i c t ,  when that grade is  

reached, in  the s in g le  zone d i s t r i c t ,  without regard to 

race o r  c o lo r .

We submit that th is  plan, in  making a pro ­

v is io n  fo r  the admission o f  f i r s t  grade ch ild ren  in  t h e i r  

d i s t r i c t ,  when the plan has reached that grade, newcomers 

to the school system, when the plan has reached those 

grades, by the option  to  make ap p lica t ion  at the school 

w ith in  t h e i r  d i s t r i c t ,  that that complies w ith the exact 

wording o f  the Court o f  Appeals ' o rd e r . I t  contemplates 

that a s ta r t  be made in  September 1963 w ith  the tw e l f th  

grade. I t  sets up a continuing plan that reaches on to 

the f u l l  tw e lve  grades, contemplating desegregation  o f  

the e n t ir e  system. The key words In th is  order are that

-9 2



a s ta r t  be made, commencing in  September 1963 . I t  i s  not 

a blanket plan, a blanket order, saying you have got to 

desegregate  the whole system in  September. I t  permits a 

plan to be submitted in  accordance w ith  the accepted p ro ­

cedure throughout the whole area o f  the country where 

th is  ( 8 7 ) process is  going on, that has been used and 

continues to be used. I t  i s  almost an id e n t ic a l  copy o f  

the A t lan ta  p lan . I t  goes fu r th e r  and recogn izes  the 

s in g le  zone d i s t r i c t s  as i s  done in  Escambia County. We 

submit that the plan fo l lo w s  exac t ly  the requirements o f  

the o rd e r . I t  not on ly  prov ides f o r  the f i r s t  graders, 

when reached, but there  i s  a s p e c i f i c  p rov is ion  fo r  new 

comers coming in to  the school system at the time the 

grade where they would en ter  i s  reached, pe rm itt in g  them 

to make a p p lica t ion s  at the school in  the zone o f  t h e i r  

res idence , without regard to race o r  c o lo r .  We submit 

i t  complies com plete ly .

Mrs. Motley: I  th ink that Mr. Wood may have misunderstood

my argument. I  d id  not intend to suggest to the Court 

that the F i f t h  C ircu it  o rder requ ires  Mobile to deseg­

rega te  a l l  o f  i t s  schools at th is  tim e. I  said that what 

I  thought the F i f th  C ircu it  Order requ ired was that they 

accept a p p lica t ion s  fo r  t ra n s fe r  in a l l  grades and make 

a s ta r t  w ith  these t ra n s fe r  a p p lica t ion s  toward desegre­

ga t ion . I  d id  not say that the F i f t h  C ircu it  order r e ­

quired them to desegregate a l l  o f  the grades. Defend-

-9 3 -



a n ts ’ a ttorneys construed the order that way themselves, 

when they app lied  to the United S tates  Supreme Court, to 

Ju st ice  Black fo r  the stay o f  that o rder . In t h e i r  one 

paragraph, they complained that the o rder  (88 ) required 

a reo rgan iza t ion  o f  a school system o f  75^000 peop le .

As Judge Black pointed out, the duty on th is  Court in  

the second Brown case is  w h ile  g iv in g  consideration  or 

weight to these pub lic  and p r iv a te  con s id era t ions , th is  

Court must requ ire  a prompt and reasonable s ta r t  toward 

desegrega tion  now. Nothing in  the defendants ' argument 

po in ts  toward any s ta r t  which can be considered reason­

able o r  prompt in  September 1963 , and the burden on them 

i s  to show the Court that whatever th is  p lan , i t  w i l l  

r e su lt  in  a s ta r t  in  September 1963 , but where i s  the 

evidence now be fo re  th is  Court that any s ta r t  w i l l  be 

made in  1983? There i s  not any. He said that twenty- 

nine Negroes applied f o r  t ra n s fe r  p r io r  to July 31st. 

Under th e i r  plan, tra n s fe rs  w i l l  be considered only in 

the tw e l f th  grade, but d id  he t e l l  the Court how many 

Negroes in  the tw e l f th  grade app lied  fo r  admission. They 

propose to make a s ta r t  o f  app lica t ion s  in  the tw e l f th  

grade. The duty i s  on th is  Court to find  out how many 

Negroes have applied f o r  tra n s fe rs  in  the tw e l f th  grade 

and xvhether t h e i r  tra n s fe rs  are acted upon in  good fa i t h  

would co n s t itu te  a prompt and reasonable s ta r t  toward 

desegregation  in  September 1963 .

-.94-



Now, I  th ink, I  am sure the Court w i l l  read 

the Augustus case, and, in  reading the Augustus case, I  

am sure that the Court w i l l  be convinced, as we are, that 

the Augustus ( 89) case i s  a plan in  two p a r ts : the f i r s t  

part o f  the plan is  the pu p il assignment under the F lo r id a  

Pupil Assignment Law, where Escambia County F lo r id a  p re­

sented to the D is t r i c t  Court a plan fo r  accepting trans­

fe r s  in  a l l  grades throughout the county - that was a 

county wide school system - and t h e i r  plan was pup il 

assignment - they sent l e t t e r s  to every parent in  the 

county, saying you may apply f o r  t r a n s fe r  f o r  your ch i ld ,  

i t  w i l l  be considered without regard to race, under the 

c r i t e r i a  o f  the F lo r id a  Pupil Assignment Law, and they 

accepted in  Escambia County, in  September 1962, I  be­

l i e v e  i t  was, tw en ty -e igh t students in  a l l  grades, one 

through tw e lve , in  Escambia County. That was the plan 

which the D is t r i c t  Court approved. When i t  got to the 

F i f t h  C irc u it ,  the F i f t h  C ircu it  approved that, but said 

"You have t o  do more than th a t , "  and that i s ,  you have 

got to s ta r t  the e l im in a tin g  o f  these zone l in e s ,  and i f  

i t  i s  too la t e  fo r  September 1962, you do two grades next 

year. The F i f t h  C ircu it  c a r e fu l ly  po inted out that the 

case was be fo re  the D is t r i c t  Court and i t  was to stay 

there  u n t i l  complete desegrega tion , and the P l a in t i f f s  

could come back any time and furthermore the P l a in t i f f s  

could present t h e i r  own plan to the D is t r i c t  Court.

- 9 5 “



There was no b inding d ec is ion  in  that case that tw e lve  

years was the time in  which they would be re-zoned. They 

sa id "You s ta r t  w ith  th a t , and then you come back l a t e r " .  

They s p e c i f i c a l l y  held in  the D a llas  case that the F i f t h  

C ircu it  (90 ) was not approving a tw e lve year p lan . I  am 

sure by the amending o f  these orders there  i s  no approv­

a l  o f  the tw e lve  yea r  p lan .

The th ing  that has to be determined by th is  

Court today i s  whether under th is  plan a prompt and reas ­

onable s ta r t  toward desegregation  w i l l  be made in  Sept­

ember 1963 . I  say that nothing Mr. Wood has said in d i ­

cates to th is  Court that th is  plan w i l l  r e su lt  in  such a 

s t a r t .  I t  cannot do th a t , because there i s  no time w ith ­

in  which anybody can now apply in  any grade f o r  t ra n s fe r .

Judge Thomas: May I  ask you th is  question? Assume that

the F i f t h  C ircu it  op in ion , w ith  which you d isag ree , - I  

idealize that - says a grade a year, assuming they con­

template th a t ,  do they say the f i r s t  grade?

Mrs. Motley: In th is  case?

Judge Thomas: Yes.

Mrs. Motley: No, s i r ,  as I  understand th is  case, they

d on 't  say any grade. That i s  the problem. They say, as 

in  Birmingham, a l l  grades are open.

Judge Thomas: I t  i s  your contention that i t  i s  a l l  grades,

that the F i f t h  C ircu it  does not say f i r s t  grade?

Mrs. Motley: No, s i r ,  i t  says take a p p lica t ion s  from

- 96-



everybody in  grades one through tw e lve  that wants a 

t r a n s fe r  now and consider those ap p lica t ion s  under the 

(91 ) Alabama Pupil Assignment Law, and w ith  those a p p l i ­

ca tions make a prompt and reasonable s ta r t  in  September 

1963.

Judge Thomas: I  w i l l  take th is  m atter under submission.

I  r e a l i z e  i t  requ ires  a prompt ru l in g ,  and I  w i l l  ru le  

on i t  promptly.

(92 ) I ,  Rosa Gerhardt, court r ep o r te r ,  hereby c e r t i f y  that the 

fo rego in g  pages, numbered 1 to 21, both in c lu s iv e ,  c o n s t itu te  

and are a true and co rrec t  t ra n s c r ip t  o f  proceedings had be­

fo re  Hon. Daniel H. Thomas, United States D is t r i c t  Judge, at 

Mobile, Alabama, on August 21st, 1963 , in  the D is t r i c t  Court 

o f  the United States fir the Southern D is t r i c t  o f  Alabama, 

Southern D iv is io n , in  the m atter o f  B ird ie  Mae Davis, et a l . ,  

P l a i n t i f f s ,  vs Board o f  School Commissioners o f  Mobile County, 

Alabama, et a l . ,  Defendants, C i v i l  Action  No. 3003-53.

Dated, th is ,  the 21st day o f  August, 1963 .

S/ Rosa Gerhardt 

Court Reporter

U.S. DISTRICT COURT 
SOU. DIST„ ALA.
FILED IN CLERK'S OFFICE 
AUGUST 21, 1963 
WILLIAM J. O'CONNOR 

CLERK

-9 7 -



IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF ALABAMA.

BIRDIE MAE DAVIS, ET AL., )

P l a i n t i f f s ,  ) CIVIL ACTION

vs. ) NO. 3003-63

BOARD OF SCHOOL COMMISSIONERS )
OF MOBILE COUNTY, ET AL.,

Defendants.
)

This cause came on to he heard in  open court on th is  

day on P l a i n t i f f s '  Objections to Defendants' Plan o f  Deseg­

rega t ion  f i l e d  August 19, 1963 .

Arguments were heard.

Thereupon in  open court on th is  day the Court took under 

submission the fo rego in g  o b je c t io n s .

Dated at Mobile, Alabama, th is  the 21 day o f  August,

1963.

/S/ DANIEL H. THOMAS__________
UNITED STATES DISTRICT JUDGE

IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION

BIRDIE MAE DAVIS, ET AL., )
P l a i n t i f f s ,

v s . )

CIVIL ACTION 

NO. 3003-63

BOARD OF SCHOOL COMMISSIONERS ) ORDER APPROVING PLAN
OF MOBILE COUNTY, ET AL., AS MODIFIED

Defendants. )

- 98-



This cause coming on to be considered by the Court pur­

suant to n o t ic e ,  w ith  counsel f o r  the r e sp ec t iv e  p a r t ie s  be­

ing  present and heard, on a proposed plan as h e re to fo re  f i l e d  

by the Board o f  School Commissioners o f  Mobile County, A la ­

bama, and ob jec t ion s  to p a r t ic u la rs  th ere to  f i l e d  by p la in ­

t i f f s ,  i t  i s ,  upon cons idera t ion , hereby

ORDERED:

1. The proposed plan as submitted by the Board o f  School 

Commissioners o f  Mobile County, Alabama, and f i l e d  here in  on 

August 19, 1963* pursuant to  previous order  o f  th is  Court, be 

and i t  hereby i s  approved w ith  the fo l lo w in g  amendments and

m o d if ic a t io n s :

(1 )  The s o -ca l led  " c u t - o f f  date" fo r  the 1963-64 
school term, r e fe r r ed  to in  paragraph ( 5 ) o f  the Plan 
and at o ther  p laces th ere in , sh a l l  be changed from 
July 31, 1963 , to on o r  b e fo re  August 28, 1963* fo r  
12th grade p u p i ls .

(2 )  The defendants, p r io r  to the beginning o f  the 
1963-64 term o f  school on September 4, 1963* sh a l l  p ro­
cess a l l  app lica t ion s  f o r  t ra n s fe r  h e re to fo re  rece ived , 
and a l l  such a p p lica t ion s  fo r  t ra n s fe r  o f  12th grade 
pup ils  that may be rece ived  not l a t e r  than said extended 
da te , August 28, 1963 .

Th is Court re ta in s  ju r is d ic t io n  fo r  the purpose o f  making 

and en ter in g  such fu rth er  orders as may be necessary to ac­

complish the e s s e n t ia l  purposes o f  the Plan as here in  m odified

and approved.

DONE AND ORDERED at Mobile, 

o f  August 19 6 3 .
S/

Alabama, th is  the 23rd day

DANIEL H. THOMAS 
D is t r i c t  Judge

- 9 9 -



IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION

BIRDIE MAE DAVIS, ET A L .,

P l a i n t i f f s ,

v s .

BOARD OF SCHOOL COMMISSIONERS OF 
MOBILE COUNTY, ET AL.,

Defendants.

NOTICE OF APPEAL

N otice  i s  hereby g iven  that B ird ie  Mae Davis, Betty  Ann 

Davis and James A llen  Davis, minors, by Mrs. O l l i e  Mae Davis, 

t h e i r  mother and next fr ie n d j Joseph Benjamin Pu rifoy  and Etta  

Maurine Pu r ifoy , minors, by 0. B. Pu r ifoy , t h e i r  fa th e r  and 

next fr ien d ; J u l ie t t e  E la ine Dan ie ls , M i l l i e  LeBaron Daniels , 

Wyman Emanuel Daniels and Carl Raymond Daniels , minors, by Sam 

D an ie ls , t h e i r  fa th e r  and next fr ie n d j  Sharon Pau lette  

M o rr is se tte  and Rhonda Jean M orr is se t te ,  minors, by Mrs. E a r l­

in e  W. M o rr is se t te ,  t h e i r  mother and next fr ie n d j J e r i ly n  

W ill iam s ,W a lter  Daniel Rainey and Russell L ion e l Rainey, 

minors, by Rev. W. D. Rainey, t h e i r  fa th e r  and next fr ien d j 

Catherine Ruth Deer, minor, by J. W. Deer, her fa th e r  and 

next fr ie n d j Demond Gates, minor, by Mrs. Lee C. Roper, his 

mother and next fr ie n d j Mae Wornie Bolton , minor, by Mr. &

Mrs. A lgea  Bolton, her parents and next fr ien d s ; John Jones, 

minor, by Mr. & Mrs. W i l l i e  Jones, h is  parents and next

CIVIL ACTION 

NO. 3003-63

-100-



fr ien d s ; L loyd M orris , minor, by Mr. & Mrs. Clarence Morris, 

h is parents and next fr ien d s ; and Vernon R u ff in , minor, by 

Mr. & Mrs. Roscoe Henderson, h is  parents and next fr ie n d s ,  

appeal to the Court o f  Appeals f o r  the F i f t h  C ircu it  from 

th is  Court 's  order o f  August 23, 1963 approving w ith minor 

m od if ica t ion s  the plan o f  desegregation  f i l e d  by the defend­

ant Board on August 19, 19&3, which plan f a i l s  to prov ide 

p l a i n t i f f s  w ith the r e l i e f  to which they are e n t i t l e d  under 

the order o f  July 18, 1963 by the United S tates  Court o f  Ap­

pea ls  f o r  the F i f t h  C irc u it .

Jack Greenberg 
Constance Baker Motley 
D err ick  A. B e l l ,  Jr. 
Su ite  2030 
10 Columbus C irc le  
New York 19, New York

Attorneys For P l a i n t i f f s

Vernon Z. Crawford 
578 Davis Avenue 
Mobile, Alabama

Clarence E. Moses 
1050|- Davis Avenue 
Mobile, Alabama

Attorneys For Purpose o f  Accepting 
Serv ice

- 101 -



IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION

BIRDIE MAE DAVIS, e t a l . ,  )

P l a i n t i f f s ,  )

v . ) CIVIL ACTION

BOARD OF SCHOOL COMMISSIONERS ) NO. 3003-63
OF MOBILE COUNTY, et a l .,

)
Defendants.

)

PLAINTIFFS’ DESIGNATION OF CONTENT 
OF RECORD ON APPEAL

1. Order o f  the Court o f  July 11, 1963| order  o f  the 

Court o f  July 26, 1963 .

2. Defendants' plan o f  desegregation  f i l e d  August 19,

1963.

3. P l a i n t i f f s ’ ob je c t ion s  to Defendants ’ plan o f  de­

segregat ion  f i l e d  August 1 9 , 1963 .

4. T ranscr ip t o f  proceedings in  the D is t r i c t  Court o f

August 21, 1963 .

5. Order o f  Court o f  August 21, 1963 .

6. Order o f  Court o f  August 23, 1963 .

7. P l a i n t i f f s '  N otice  o f  Appeal.

8. This Designation .

R esp ec t fu l ly  submitted,

S/ Vernon Z. Crawford 
VERNON Z. CRAWFORD 
578 Davis Avenue, 
Mobile, Alabama

-102-



CLARENCE E* MOSES 
1050^ Davis Avenue 
M obile, Alabama

CONSTANCE BAKER MOTLEY 
JACK GREENBERG 
DERRICK BELL 
10 Columbus C irc le  
New York 19 , New York

-1 0 3 -

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