Davis v. Mobile County Board of School Commissioners Supplemental and Second Supplemental Record on Appeal
Public Court Documents
January 1, 1963

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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 -4 3 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 -44- 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. -4 5 - 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 -4 7 - 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 -4 9 - 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 -