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