Order Per Curiam; Objection to Motion to Proceed as Amicus Curiae

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

  

  

Nos. 28030 & 28042 

  

~~ MA Mm o n vey ED WA RD © UNITED STATES OF AMERICA, ; 

Ye 

HINDS COUNTY SCHOOL BOARD, et al, 
Defendants-Appellees. 

(Civil Action No. 4075(J)) 

  

BUFORD A. 1¥Z, et 1}, 
Plaintiffs-Appellees, 

Ve. 

URITED STATES OF AMERICA, 
Defendant-Appellant 

Ve 

  

MILTON EVANS, 
Third Party 
Defendant-Appellee. $ 

{Civil Action No. 2034(1)) 

  

UNITED STATES OF AMERICA, 

Plaintifsi- Appellant, 

Vv. 

EMPER Cou TY SC 31 100 1, BOARD 3 et 3) [} 

Defendants-Appellees. 

{Civil Action No. 1373(E)) 

  sn — 

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, 

  

Vv. 

NORTH PIKE COUNTY CONSOLIDATED 
SCHOOL DISTRICT, et al b } 

eo) Defendants-Appellees, 

TE IYI Y IIIA VIE "Tt STI Ty Bi 

UNITED STATES OF AMERIC:, 

Plaintiif-Appellant I | ? 

VY. 

Als fend gd IIIT ial. he. % tf TAP"Y IS ¥ CIYTYYS A TY 1 NAY 1C] Gb RR REL BE an PERE RY IPAL PAAR 

CE ITTINS YY CNT rs - 4 
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{Civil Action No. 1120(7)) 

 



      

UNITED STATES OF AMERICA, 
Plaintiff-Appellant, 

  

Ve. 

“MARION COUNTY SCHOOL DISTRICT, et al, 
Defenda ants- Appellees. 

(Civil Action No. 2178(H)) 

  

JOAN ANDERSON, et al, 
Plaintiffs-Appellants, 

UNITED STATES OF AMERICA , 
Plaintiff-Intervenor- 
Appellant, 

v. 

THE CANTON MUNICIPAL SCHOOL DISTRICT, et al, 
and THE MADISON COUNTY SCHCOL DISTRICT, el a), 

Defendants-Appellees. 

(Civil Action No. 3700(J)) 

  

UNITED STATES OF AMERICA, 
Plaintiff-Appellant, 

Ve . 3 : : . : 

SOUTH PIKE COUNTY CONSOLIDATED 
SCHCOL DISTRICT, et al, 

Defendants mAppeliiecs. 

(Civil Action No. 3984(J)) 

  

BEATRICE ALEXANDER, et al, 
Plaintiffs-Appellants, 

Vv. 

HOLMES COUNTY BOARD OF EDUCATION, et al, . 
Defendants-Appellees. 

(Civil Action No. 3779(J)) 

  

et al, 

Plaintiffs—-Appellants, 

THE YAZOO COUNTY BOARD OF EDUCATION. et al, 

: Defendan 1S Appelle 

{Civil Action No. 1208(W)) 

  

JOHN BARNHARDT, et al 

"Plaint] b
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MERIDIAN SEPARATE SCHOOL DISTRICT en 33, 
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UNITED STATES OF AMERICA, 

Plaintiff-Appellant, 

  

  

LN, 

NESHOBA COUNTY SCHOOL DISTR ICT, et 1a), 
Defendants- -Appellees. 

(Civil Action No. 1396(E)) 

  

UNITED STATES OF AMERICA, 
Plaintiff-Appellant, 

Ve. 

NOXUBEE COUNTY SCHOOL DISTRICT, et al, : 
Defenda ants-Appellees. : p 

(Civil Action No. 1372(E)) 

  

ud = UNITED STATES OF AMERICA, 
® * | Plaintiff-Appellant, 

Ve. 

LAUDERDALE COUNTY SCHOOL DISTRICT, et al, 
: Defendants- ~Appellees. 

(Civil ation No. W3B02(EY) 

  

DIAN HUDSON, et al, 
Plaintiffs-Appellants, 

UNITED STATES OF AMERICA, 
Plaintils- Intervenor- 
Appellant, 

Ve. 

LEAKE COUNTY SCHOOL BOARD, et al, 

Defendants ~Appellees. 

(Civil Action No. 3382(J)) 

  

UNITED STATES OF AMERICA, : 
Plaintiff-Appellant, 

Vv. 

COLUMBIA MUNICIPAL SEPARATE SCHOOL, et al, 
Defendants- ~Appellees. 

(Civil Action No. 2199(H)) 

  

UNITED STATES OF AMERICA, 
Plaintiff-Appellant, 

AMITE COUNTY SCHOOL DI STRICT, et al, 
: Dofonda nts-Appellees : 

- 
- 

{Civil Action No. 3083¢7)) 

 



UNITED STATES OF AMERICA, 
Plaintiff-Appellant, 

      

  

Ye. 

"COVINGTON COUNTY SCHCOL DISTRICT, et al, 
: Defendants-Appellees. 

(Civil Action No. 2148(H)) 

  

UNITED STATES OF AMERICA, : 
Plaintiff-Appellant, 

Ve. 

LAWRENCE COUNTY SCHOOL DISTRICT, etal, 
Defendants-Appellees. 

(Civil Action No. 2216(H)) 

  

JEREMIAH BLACKWELL, JR., et al, 
4 Plaintiffs-Appellants, 

ve. 

ISSAQUENA COUNTY BOARD OF EDUCATION, et al, 
~ Defendants-Appellees. 

(Civil Action No. 1096(W)) 

  

UNITED STATES OF AMERICA, : 
Plaintiff-Appellant, 

Ve. 

WILKINSON COUNTY SCHOOL DISTRICT, et a, 
Defendants-Appellees. 

(Civil Action No. 1160(v)) 

  

CHARLES KILLINGSVWORTH, et al, 
w : | Plaintiffs-Appellants J 

Ve. 

E CONSOLIDATED SCHOOL DISTRICT 
ONSOLIDATED SCHCOL DISTRICT, 

Defendants-Appellees. 

THE ENTERPRIS 

and QUITMAN C 

(Civil Action No. 1302(E)) 

Py -   

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, 

Vv. 

LINCOLN COUNTY SCHOOL DISTRICT,et al, 
; Defendants-Appellees. 

{Civil Action No..4203L3)) 

 



  

. 

. . 

  

UNITED STATES OF AMERICA, 
Plaintiff~Appellant, 

"vy, 

PHILADELPHIA MUNICIPAL SEPARATE 
SCHOOL DISTRICT, et al, 

Defendants-Appellees. 

"(Civil Action No. 1368(E) 

  

UNITED STATES OF AMERICA, 
Plaintiff-Appellant, 

Ve. 

FRANKLIN COUNTY SCHOOL DISTRICT, et al, 
Defendants-Appellees. 

(Civil Action No. 4256(J)) 

  

Appeals from the United States District Court for the 
Southern District of Mississippi 

  

Before BELL, THORNBERRY, and MORGAN, Circuit Judges. 

PER CURIAM: 

These cases, consolidated for ‘order, are here for dis- 

  
position in light of the decision of the Supreme Court in Alexander 

v. Holmes County Board of Education, No. 632, dated October 29, 1969.       

They involve 30 school districts in the Southern nistrios of Missis- 

sippi. Suits to disestablish the dual school system were Yroaait 

against fourteen of the school districts by private litigants: 

Anguilla, Canton, Enterprise, Holly Bluff, Holmes Leake, Madison, 

Meridian, North Pike, Quitman, Sharkey-Issaquena, Wilkinson, Yazoo 

City, and Yazoo County. The suits with respect to the other six-~ 

teen school districts were government initiated. 

The scope of the problem of converting from dual to 

unitary school systems in these districts may be seen from the fol- 

lowing tables which reflect racial composition. 

 



£4 / 50 Naf pf 72:0 Rf 

a go 

  

SYSTEM WHITE STUDENTS NEGRO STUDENTS 

Amite 1461 2582 

Anguilla Line “ 214 906 

Canton Municipal 1326 3672 

Hinds 6438 7489 

Holly Bluff 240 483 

Holmes 913 : 5355; : 

Kemper 793 2060 

Madison 1238 3376 

% Natchez -Adams 4494 5927 

Noxubee County - 872 3573 

Sharkey-Issaquena 630 2002 

South Pike 3135 2156 . 

Wilkinson 779 - RE 1 0 

Yazoo County 1071 2495 

GROUP II 
Enterprise 405 363 

Franklin 1024 1075 

Leake 2088 i 2224 

% North Pike 697 605 

Quitman 1656 1490 

Yazoo City 2014 ‘+L 2089 

 



  

GROUP IIT 

SYSTEM WHITE STUDENTS NEGRO STUDENTS 

uta City 1538 896 

Covington Fi 1998 1629 

Forrest 4195 1062 

Lauderdale 3063 Et 1858 

Lawrence 1942 i 3277 

Lincoln 1671 1018 

Marion 2064 1564 

Meridian 6418 4405 

Neshoba 2045 877 

Philadelphia 269 548 

It is ordered, adjudged and decreed, effective imme- 

diately, that "the school districts here involved may no longer 

operate a dual system based on race or color" and each district 

is to operate henceforth, pursuant to the terms hereof, as a 

unitary school system within which no person is "effectively ex- 

      

cluded from any school because of race or color." Alexander v 

Holmes County Board of Education, supra. 

To effectuate the conversion of these school systems 

to unitary school systems within the context of the order of 

the Supreme Court in Alexander v. Holmes County Board of Educa- 
      

tion, it is ordered, adjudged, and decreed that the permanent 

plans as distinguished from the interim plans prepared 

3 

 



  

by the Office of Education, Department of Health, Education 

and Welfare, attached hereto and marked as Appendices 1 

yd through 30 shall be immediately enforced as the plans of the 

respective systems subject to the following terms, conditions, 

and exceptions: 

(1) The time between the date hereof and December 

| A 
31, 1959 ghall be utilized vn Zeranaing the transfer of 

| faculty, ‘transfer of equipment, supplies and libraries where 
hp = \ ; Cs er  empm— - NN oe - : 

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necessary, Ahe reconstitution of school bus routes where indi- 
BE  —————————— : : — 

    

  cated, and in Solving other logistical problems which may 

1 

re———— — 0 aaa — 
le aa 

  

| ensue in effectuating the attached plans. This activity shall 
| —— J — 
| 

| commence immediately. The Office of Education plans will re- 

sult in the transfer of thousands of school children and 

hundreds of faculty members to new schools. ‘Many children 

will have new teachers after December 31, 1969. It will be 

necessary for final grades to be entered and for other records 
- — —~— 

  

Se —— 

to JB completed by faculty members and sohool. alninistrators © 

for the students for the partial school year involved prior 

to the transfers. The interim period between the date of. this 

order and December 31, 1969 will also be utilized for this 

purpose. | 

(2) No later than December 31, 1969 the pupil at- 

tendance patterns and faculty assignments in each district 

shall comply with the respective plans. % - L 

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(3) As to the South Pike school district (App. 1), 

the plan suggested by the Office of Education shall be fully 

complied with except as to pupil assignment. The present pupil 

assignment and Ae pattern will suffice until the fur- 

ther order of this court. This system has 1135 white students 

and 2156 Negro students. Each of its seven schools are pre- 

sently integrated. We conclude that a unitary system has been 

established as to pupil Ass lgnrents The Office of Education 

plan in other respects will assure a completely unitary system. 

ac (4) As to the Madison County system, the Office of Bt 

® Education plan (App. 2) is modified as follows: Subsections’ 

| 4 through 8 of the Office of Education Recommended Plan for | 

| Student Desegregation 1969-70 are eliminated. In place of \ 

| those subsections we substitute the geographic zoning arrange- . 

| ment for East Flora, Flora, Rosa Scott, Madison-Ridgeland, and [ 

| 'Ridpeland Elementary set out in sections A.2. and A.3. (App. 

| 2(b)} of the proposed plan of the Madison County Board of 

Education. All other provisions of the Office of Education | 

| plan regarding Madison County are to become effective pursuant 

\ ot 

\..to the terms of this order. 

(5) The attendance plan submitted by the Wilkinson 

» County Board of Education will be considered by the court as 

a modification of the Office of Education plan (App.3) upon 

a showing through a pupil locator map of the contemplated 

racial characteristics of the schools for girls. 

soll) wien 

 



  

(6) The attendance plan submitted by the North 

Pike County Consolidated School District will be considered 

by the court as a modification of the Office of Education plan 

(App. 4) upon a showing through a pupil locator map of the 

¢ontemplated racial characteristics of the Jones and Johnston 

Elementary schools. 

(7) It appearing that the lack of buildings pre- 

vents the immediate Sb Yeentabin of the permanent plan of 

the Office of Education suggested for the Quitman Consolidated 

school district, the pupil attendance interim plan of the 

Office of Education for this district is authorized for use 

during the remainder of this school term (App.5). The perma- 

nent plan shall be effectuated commencing in September, 1970. 

This relief is appropriate in view of the similarity between 

‘the proposed attendance plan of ie school district and that 

of the Office of Education. 

It is ordered, adjudged and decreed that these re- 

spective plans shall remain in full force and effect until 

the further order of this court. They may be modified by the 

court through the following procedure. Honorable Dan M. 

Russell, Jr., United States District Judge for the Southern 

District of Mississippi, is hereby designated to receive sug- 

oe 

 



  

’ 

gested modifications to the plans. No suggested modifica- 

tion may be submitted to Judge Russell before March 1, 1970 

and any such suggestion or request shall contemplate an 

effective date of September, 1970. 

Judge Russell is directed to make full findings of 

fact with respect to any modification recommended ob disap- 

proved and these findings are to be referred to this court 

for its review. Pursuant to the terms of the order of the 

Supreme Court in Alexander v. Holmes County Board of Education, 
  

supra, no amendment or modification to any plan shall become 

effective without the order of this court. 

This order is entered only after full consideration 

of the suggested plans of the Office of Education and those 

of the local school boards. It is apparent that in some in- 

stances the plans are cursory in nature. They were devised 

without pupil locator maps. They do not contain information 

as to geographical area, transportation routes or distances. 

Some have not considered zoning. The school board plans are 

almost all without statistical data as to race. It is en- 

tirely possible that more effective plans can be devised on 

a local level and that these will insure the simultaneous 

accomplishment of maximum education and unitary school sys- 

tems. To this end, and as an imprimatur of local consideration, 

a ————— jad Ea EE  ama— —————— ee —— 

it is suggested the school board sponsored requests for. changes PASI RAT ag doit in I ud LoS 2. > 
Br 

 



  

% iin plans show either Negro representation on school boards 

—————— 

ee —— 

VE prior consideration by a bi-racial advisory committee to 
1% 

—— 

al the school ‘board. 

Nothing herein is intended to prevent the respective 

school boards and superintendents from seeking the fumthor 

counsel and assistance ot the Office of Education (HEW), or 

the ass istance of the Mississippi State Department of Educa- 

tion, University Schools of Education in or out of Mississippi, 

or of others having expertise in the education field. 

The motion of counsel in those cases instituted by 

private litigants for attorneys fees is held in abeyance for 

po the present. The motion of the private litigants to require 

the filing of further plans by the Office of Education for 

use in the Hinds County, Holmes County and Mor LALAn districts 
——— — pe — — 

is denied. | | . 

Jurisdiction of these cases is retained in this 

court, pursuant to the aforesaid order of the Supreme Court, 

to insure prompt and faithful compliance with this oi Aer. The 

court also retains jurisdiction to modify or amend this order 

as may be necessary or desirable to the end that unitary 

school systems will be operated. 

IT IS SO ORDERFD. 

This 7th day of November, 1969. e 

eo [ i Yo 08 

Griffin B. Bell 

United States Circuit Judge 

Li i | IA WN appA VAM 

ie. Thornberry 

United States Circuit Judge 

  

  

  

fre 74 p 
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£ /7 74 7. 
7 i, v yr Tumble » . YN i 
—— — 

Lewis R. Morgan 

United States Circuit Judge 

  

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IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

NOS. 28030 & 28042 

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT 

VS 

HINDS COUNTY SCHOOL BOARD, ET AL DEFENDANTS-APPELLEES 

BEATRICE ALEXANDER, ET AL, PLAINTIFFS-APPELLANTS 

VS 

HOLMES COUNTY BOARD OF EDUCATION, ET AL DEFENDANTS-APPELLEES 

AND ALL CASES CONSOLIDATED AND INCLUDED IN 

THE COURT'S ORDER OF NOVEMBER 7, 1969 

OBJECTION TO MOTION TO PROGEED AS AMICUS CURIAE 
  

Come now the Defendants-Appellees in those cases brought 

by the United States of America as sole Plaintiff and in which 

there has been no intervention by private counsel on behalf of 

Negro school children by and through one of their attorneys, 

William A. Allain, Assistant Attorney General of the State of 

Mississippi, and file this Objection to the Motion to Proceed 

as Amicus Curiae filed by the N.A.A.C.P. Legal Defense & Ed- 

ucational Fund, Inc. and move the Court to deny said Motion. 

The United States of America, Plaintiff-Appellant has 

and will continue to adequately represent the interest of the 

  Negro school children in these school districts. United States 

v. General Electric Company. 95 F. Supp. 165. 
  

It is obvious that Movant is attempting to intervene 

as a party Plaintiff rather than Amicus Curiaze. In its Motion, 

Movant request the right to ''submit pleadings, evidence, arguments 

 



  

and Briefs, to move for injunctive and other necessary and proper 

relief, and to initiate such further proceedings that may be 

necessary and appropriate.” This is not the proper function of an 

Amicus Curiae, but is the function of a party to the litigation, 

  

Petition of Oskar Tiedemann and Company, 289 F. Supp. 237, Page 240, 

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Since Movant "seeks nothing short of the opportunity to conduct o . 

a ‘vigorous adversary proceeding'under circumstances which LY 

effectively displace the Attorney General as vindicator of the 

public interest; and secondly, because its effectiveness as 

amicus curiae is impaired in view of its current position’ in this 

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litigation this Motion to proceed as Amicus Guriae should be denied. 

United States v. Loew's, Inc., 20 FJ.R.D. 423, 425, 
  

The granting of a Motion to appear as Amicus Curiae 

rest entirely in the sound discretion of the Court and a Motion 

to appear in an amicus capacity which amounts to a Petition to 

appear as a party should be denied. Clark v. Sandusky, 205 F.2d 
  

915, 917. 

Movant is not in the same position as the United States 

of America appearing as Amicus Curiae to vindicate the authority 

  

| 

| 

| 
of Federal Courts. Bush v. Orleans Parish School Board, 190 F. Supp. | 

861. AEE. 81 S.Ct. 754, 365 U.S. 569, 5 L.Bd.2d 806, | 
| 

Granting of the Motion to proceed as Amicus Curiae 

will in no way aid or assist this Court, but will only provide 

the N.A.A.C.P. Legal Defense and Educational Fund, Inc. a vehicle 

by which to inject itself as a party Plaintiff without being subject 

to or bound by the decision or decisions of this Court in these 

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57 

cases wherein the United States of America is the sole Plaintiff. 

RESPECTFULLY SUBMITTED, 

  

WILLIAM A, ALLAIN ) 
ASSISTANT ATTORNEY GENERAL OF THE 
STATE OF MISSISSIPPI | 

 



  

CERTIFICATE OF SERVICE 
  

This is to certify that I, WILLIAM A. ALIAIN, Assistant 

Attorney General of the State of Mississippi, have this day | 

mailed by United States mail, postage prepaid, one true and | 

correct copy of the foregoing Objection To Motion To Proceed As 

Amicus Curiae to Melvyn R. Leventhal, Reuben V. Anderson, Fred 

L. Banks, Jr., Attorneys at Law, 538% North Farish Street, Jackson, 

Mississippi, 39202 and Jack Greenberg, James M. Nabrit, III, | 

Norman CGC, Amaker, Norman J. Chachkin and Melvyn Zarr, Attorneys 

at Law, 10 Columbus Circle, New York, New York 10019. 

ZA A | 
THIS /§ day of November, 1969. | 

Wl &. Alle 
WILLIAM A. ALIAIN 
  

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